Exhibit 10.1
Execution Version
NOTE REPURCHASE AGREEMENT
This NOTE REPURCHASE AGREEMENT (this “Agreement”) is made and entered into as of August 11, 2023 by and between WP Bronco Holdings, LLC (the “Seller”), and WEX Inc., a Delaware corporation (the “Company”).
WHEREAS, Seller is the holder of $310,000,000 in aggregate principal amount of the Company’s 6.50% Convertible Senior Notes due 2027 (CUSIP 96208TAC8) (the “Notes”) issued pursuant to an indenture, by and between The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), and the Company, dated as of July 1, 2020; and
WHEREAS, Seller desires to sell to the Company, and the Company desires to purchase from Seller, $310,000,000 in aggregate principal amount of the Notes on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, conditions, warranties, representations, and agreements hereinafter contained, the parties mutually agree and covenant as follows:
1. Repurchase of Notes. On the terms and subject to the conditions set forth herein, on the Closing Date (as defined below), Seller agrees to transfer and sell to the Company, and the Company agrees to purchase from Seller, $310,000,000 in aggregate principal amount of the Notes, free and clear of any and all liens and encumbrances, for an aggregate purchase price equal to $370,411,250 (the “Purchase Price”), which Purchase Price includes accrued and unpaid interest due on the Notes from, and including July 15, 2023 to, but excluding August 11, 2023.
2. Closing. The closing of the purchase and sale of Notes pursuant to Section 1 of this Agreement (the “Closing”) shall occur concurrently with the execution of this Agreement or at such other time as the parties shall mutually agree in writing (the “Closing Date”). On the Closing Date, Seller shall deliver, or cause to be delivered, the Notes to the Trustee for the account of the Company, or such other account as the Company may designate, in book entry form through the facilities of The Depository Trust Company, against payment to or upon the order of Seller of the Purchase Price by wire transfer in immediately available funds to the account designated by Seller in writing, or pursuant to such other procedures as agreed by the parties.
3. Representations and Warranties of Seller. Seller hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date, as follows:
(a) Power and Authorization. Seller is duly organized, validly existing and in good standing, and has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.
(b) Valid and Binding Agreement; No Violation. This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency or other similar laws relating to enforcement of creditors’
rights generally and general principles of equity. The execution of this Agreement and consummation of the transactions contemplated hereby will not constitute a violation of, or conflict with or result in a default under, any court order, contract, commitment, agreement, understanding, arrangement or restriction of any kind to which Seller is a party or by which Seller is bound.
(c) Title to the Notes. Seller is the sole legal and beneficial owner of the Notes and has good, valid and marketable title to the Notes, free and clear of any liens or encumbrances. Seller has not, in whole or in part, (a) assigned, transferred, hypothecated, pledged or otherwise disposed of any of the Notes or its rights in the Notes, or (b) given any person or entity any transfer order, power of attorney or other authority of any nature whatsoever with respect to the Notes. The Notes being sold by Seller pursuant to this Agreement constitute all of the Notes held by Seller.
(d) Full Satisfaction of Obligations under the Notes; Further Assurances. Seller acknowledges that upon payment of the Purchase Price by the Company in accordance with the procedures set forth in Section 2 of this Agreement, the obligations of the Company to such Seller under the Notes will have been satisfied in full. Seller agrees to execute such further instruments and take such further action as may be reasonably necessary to evidence the satisfaction of the Company’s obligations to Seller with respect to the Notes.
(e) Adequate Information; No Reliance. Seller acknowledges and agrees that (i) Seller has been furnished with all materials it considers relevant to making an investment decision to enter into the transactions contemplated by this Agreement and has had the opportunity to review the Company’s filings with the Securities and Exchange Commission (the “SEC”), including, without limitation, all filings made pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (ii) Seller has had full opportunity to ask questions of the Company concerning the Company, its business, operations, financial performance, financial condition and prospects, (iii) Seller has had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the risks involved in the sale of the Notes and to make an informed investment decision with respect to such sale and (iv) Seller is not relying, and has not relied, upon any statement, advice (whether legal, tax, financial, accounting or other), representation or warranty made by the Company or any of its affiliates or representatives, except for the publicly available filings made by the Company with the SEC under the Exchange Act and the representations and warranties made by the Company in this Agreement.
4. Representations and Warranties of the Company. The Company hereby represents and warrants to Seller, as of the date hereof and as of the Closing Date as follows:
(a) Power and Authorization. The Company is duly organized, validly existing and in good standing, and has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.
(b) Valid and Binding Agreement; No Violation. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to bankruptcy, insolvency or other similar laws relating to enforcement of creditors’ rights generally and general principles of equity. The execution of this Agreement and consummation of the transactions contemplated hereby will not constitute a violation of, or conflict with or result in a default under, any court order, contract, commitment, agreement, understanding, arrangement or restriction of any kind to which the Company is a party or by which the Company is bound.
5. Survival of Representations and Warranties. All representations and warranties made hereunder shall survive the consummation of the transactions on the Closing Date.
6. Conditions to the Closing.
(a) Conditions to the Company’s Obligations. The Company’s obligation to consummate the Closing is subject to the satisfaction of the following condition (which may be waived by the Company, in whole or in part):
(i) Each of the representations and warranties of Seller contained in Section 3 of this Agreement shall be true and correct as of the Closing Date.
(b) Conditions to Seller’s Obligations. Seller’s obligation to consummate the Closing is subject to the satisfaction of each of the following conditions (which may be waived by Seller, in whole or in part):
(i) Each of the representations and warranties of the Company contained in Section 4 of this Agreement shall be true and correct as of the Closing Date.
7. Miscellaneous Provisions.
(a) Costs and Expenses. Seller and the Company shall each pay their own respective costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement, including, but not limited to, attorneys’ fees and any brokers’ fees.
(b) Governing Law. This Agreement and the transactions contemplated herein shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York without regard to its choice of law rules.
(c) Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous oral or written agreements, representations, warranties, contracts, correspondence, conversations, memoranda and understandings between or among the parties or any of their agents, representatives or affiliates relative to such subject matter, including, without limitation, any term sheets, emails or draft documents.
(d) Amendments and Modifications. This Agreement shall not be modified, amended, waived or changed in any respect except in a writing duly signed by the parties, and each party waives any right to amend this Agreement in any other manner.
(e) Execution in Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original, but all of which shall be deemed to constitute one instrument.
(f) Successors and Assigns. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties and their heirs, personal representatives, successors, transferees and assigns.
(g) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Company shall be directed to WEX Inc., 1 Hancock St., Portland, ME, Attention: Chief Legal Officer, Email: hilary.rapkin@wexinc.com, with a copy to: Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attention: Alexander D. Lynch and Ashley J. Butler, Email: alex.lynch@weil.com; ashley.butler@weil.com). Notices to Seller shall be directed to c/o Warburg Pincus LLC 450 Lexington Avenue New York, NY 10017 Attention: General Counsel, Email: notices@warburgpincus.com with a copy to: Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Attention: David Lopez and David Leinwand, Email: dlopez@cgsh.com; dleinwand@cgsh.com.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.
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| WP Bronco Holdings, LLC |
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| By: | /s/ David Sreter | | |
| Name: | David Sreter | | |
| Title: | Vice President and Assistant Treasurer |
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| WEX Inc. | | |
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| By: | /s/ Jagtar Narula | |
| Name: | Jagtar Narula | |
| Title: | Chief Financial Officer |
[Signature Page to Note Repurchase Agreement]
Exhibit 10.2
Execution Version
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of August 10, 2023, by and among WEX INC., a Delaware corporation (the “Company”), WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED, as a Designated Borrower (as defined in the Existing Credit Agreement referred to below), WEX CARD HOLDINGS AUSTRALIA PTY LTD. (the “Specified Designated Borrower” and, together with the Company and the Designated Borrower, the “Amendment Loan Parties”), the Lenders party hereto and BANK OF AMERICA, N.A., as the Administrative Agent (as defined in the Existing Credit Agreement referred to below).
W I T N E S S E T H:
WHEREAS, the Company, the Designated Borrowers from time to time party thereto, the Specified Designated Borrower, the Lenders from time to time party thereto and the Administrative Agent, Swing Line Lender and L/C Issuer are party to that certain Amended and Restated Credit Agreement, dated as of April 1, 2021 (as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of April 24, 2023 and as it may be further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, pursuant to Section 10.01 of the Existing Credit Agreement, the Company has requested that the Lenders consent to certain amendments to the Existing Credit Agreement as set forth herein; and
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”) unless the context otherwise requires.
SECTION 2. Amendments. Effective as of the Second Amendment Effective Date (as defined below), the Existing Credit Agreement shall be amended as follows:
(a) The following defined term shall be added to Section 1.01 of the Existing Credit Agreement:
“Bank Term Funding Program” means the bank term funding program created on March 12, 2023 by the Federal Reserve.
(b) The definition of “Operating Indebtedness” is hereby amended to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as follows:
“Operating Indebtedness” means, as of any date of determination, (i) all unsecured Indebtedness incurred in the ordinary course of the banking operations of any Bank Regulated Subsidiary which is includable as a liability on the consolidated balance sheet
of such Bank Regulated Subsidiary and its consolidated subsidiaries at such date, determined on a consolidated basis in accordance with GAAP and (ii) all Indebtedness of any Bank Regulated Subsidiary incurred pursuant to Federal Reserve’s Bank Term Funding Program.”
SECTION 3. Conditions to Effectiveness of Amendments. The effectiveness of the amendments set forth in Section 2 is subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “Second Amendment Effective Date”):
(a) (i) each of the Amendment Loan Parties shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Lender party hereto (which constitutes the Required Lenders and the Required Financial Covenant Lenders) shall have executed and delivered a counterpart of this Amendment to the Administrative Agent, and (iii) the Administrative Agent shall have executed a counterpart of this Amendment; and
(b) all expenses of the Administrative Agent required to be paid by the Company pursuant to the Existing Credit Agreement shall have been paid to the extent an invoice has been received prior to the date hereof.
SECTION 4. Representations and Warranties. Each Amendment Loan Party hereby represents and warrants on and as of the Second Amendment Effective Date that:
(a) the representations and warranties of the Borrowers contained in Article V of the Amended Credit Agreement and the representations and warranties of each Loan Party contained in each other Loan Document shall be true and correct (or true and correct in all material respects, in the case of any such representation or warranty that is not qualified as to materiality) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct (or true and correct in all material respects, in the case of any such representation or warranty that is not qualified as to materiality) as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Existing Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Existing Credit Agreement;
(b) this Amendment has been duly executed and delivered by each Amendment Loan Party and this Amendment, the Amended Credit Agreement and each other Loan Document constitute legal, valid and binding obligations of such Amendment Loan Party, enforceable against such Amendment Loan Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(c) the Guaranties do, and shall continue to, guarantee the Obligations (or Foreign Obligations, as applicable) in accordance with the terms thereof;
(d) the Collateral Documents and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Obligations (or Foreign Obligations, as applicable) in accordance with the terms thereof; and
(e) the execution, delivery and performance by each Amendment Loan Party of this Amendment and the performance by each Amendment Loan Party of the Amended Credit Agreement have been duly authorized by all necessary corporate or other organizational action, and do not and will
not (a) contravene the terms of any of such Amendment Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Amendment Loan Party is a party or affecting such Amendment Loan Party or the properties of such Amendment Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Amendment Loan Party or its property is subject; or (c) violate any Law, except, in each case referred to in clauses (b) or (c), to the extent that the same could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 5. Effects on Loan Documents.
(a) On and after the Second Amendment Effective Date, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.
(b) Except as specifically amended herein, all Loan Documents (including the Guaranties and all Liens granted thereunder in respect of the Obligations) shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Each Amendment Loan Party reaffirms its Guarantees and any prior grant and the validity of any Liens granted by it pursuant to the Collateral Documents, in each case, in accordance with the terms thereof, with all such Liens continuing to secure the applicable Obligations in full force and effect after giving effect to this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. This Amendment and the Amended Credit Agreement shall not constitute a novation of the Existing Credit Agreement or the other Loan Documents.
(d) The Company and the other parties hereto acknowledge and agree that, on and after the Second Amendment Effective Date, this Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement.
SECTION 6. GOVERNING LAW. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 7. Miscellaneous.
(a) This Amendment shall be binding upon and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders and their respective successors and permitted assigns.
(b) To the extent permitted by applicable Law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(c) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment may be in the form of an Electronic Record and may be executed using Electronic Signatures (as defined in 15 USC §7006, as it may be amended from time to time) (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper counterpart to this Amendment which has been converted into electronic form (such as scanned into PDF format), or an electronically signed counterpart to this Amendment converted into another format, for transmission, delivery and/or retention.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.
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| WEX INC. |
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| By: | /s/ Jagtar Narula | | | |
| Name: | Jagtar Narula |
| Title: | Chief Financial Officer |
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| DESIGNATED BORROWER: |
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| WRIGHT EXPRESS INTERNATIONAL HOLDINGS LIMITED |
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| By: | /s/ Hilary Ann Rapkin | |
| Name: | Hilary Ann Rapkin |
| Title: | Director |
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| SPECIFIED DESIGNATED BORROWER: |
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Executed in accordance with section 127 of the Corporations Act 2001 (Cth) by |
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| WEX CARD HOLDINGS AUSTRALIA PTY LTD |
| (ACN 123 181 635) |
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| By: | /s/ Matthew Arthur | | |
| Name: | Matthew Arthur |
| Title: | Director |
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| By: | /s/ Hilary Ann Rapkin | |
| Name: | Hilary Ann Rapkin |
| Title: | Director |
[Signature Page to Second Amendment to Amended and Restated Credit Agreement (WEX)]
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| BANK OF AMERICA, N.A., |
| as Administrative Agent |
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| By: |
| /s/ Denise Jones |
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| Name: Denise Jones |
| Title: Vice President |
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| BANK OF AMERICA, N.A., |
| as a Lender |
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| By: |
| /s/ Robert C. Megan |
| Name: Robert C. Megan |
| Title: Senior Vice President |
[Signature Page to Second Amendment to Amended and Restated Credit Agreement (WEX)]
Lender Consents
[On file with the Administrative Agent]
