Residual Buyout - Terms and Conditions

AGREEMENTThis Residual Buyout Terms and Conditions (this “Agreement”), dated as of the date the Residual Buy-Out Agreement is signed by Nuvei (the “Effective Date”), is entered into between the entity listed on the Residual Buy Out Agreement (“Seller”), and Nuvei Technologies, Inc. (“Nuvei”), a Delaware corporation, located at 1375 N. Scottsdale Rd., Suite 400, Scottsdale, Arizona, 85257.  Nuvei and Seller may be referred to individually as “Party,” and collectively as “Parties.”  Capitalized terms used herein but not otherwise defined shall have the same meanings assigned to those terms in the Seller Agreement (defined below).

            WHEREAS, Nuvei and Seller are parties to that certain Seller Agreement, as dated and defined on the Residual Buy-Out Agreement Form, which is fully incorporated herein by reference (the “Seller Agreement”), under which Nuvei agreed to pay Seller compensation based on revenue from Merchants, as defined in the Seller Agreement, in connection with marketing services provided by Seller pursuant to the Seller Agreement.

            WHEREAS, Seller desires to sell to Nuvei all of its right, title and interest to the Purchased Residuals (as defined below), and Nuvei desires to purchase all such right, title and interest to the Purchased Residuals, subject to the terms set forth below.

            NOW, THEREFORE, in consideration of the covenants and the mutual promises set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

            1. Sale and Transfer.  Seller hereby irrevocably sells, assigns and transfers to Nuvei, free and clear of all liens, mortgages, charges, encumbrances, security interests, equities, claims and impediments (collectively, “Liens”), and Nuvei hereby purchases and accepts, the percentage listed on the Residual Buy-Out Agreement (in the form set forth in Exhibit A) (“Percentage of Purchased Residuals”) of Seller’s right, title, and interest in all payments due to Seller pursuant to the Seller Agreement (as amended) for all Merchants solicited prior to the Residual Buy-Out Accrual Date, together with any other compensation or payments payable by Nuvei to Seller, directly or indirectly, pursuant to the Seller Agreement for all Merchant transactions taking place, or Merchant fees accrued, on or after the Purchased Residuals Accrual Date, whether now existing, or hereafter arising (collectively, the “Purchased Residuals”). Seller shall, at any time after the Residual Buy-Out Agreement Effective Date and without further consideration execute and deliver such further instruments of assignment, transfer or assumption and take such further action as the other may reasonably request in order to more effectively transfer, reduce to possession or record title to the Purchased Residuals in favor of Nuvei.

            2. Consideration.  In exchange for the Purchased Residuals, and subject to the terms and conditions herein, Nuvei and Seller agree that Nuvei will pay the Seller an upfront payment of the price listed on the Residual Buy Out Agreement (“Purchase Price”).  Seller acknowledges that Nuvei may, but is not required to, file a UCC-1 Financing Statement evidencing the sale of the Purchased Residuals in accordance with the Uniform Commercial Code.  

             3. Attrition Guaranty. For the period of time listed on the Residual Buy Out Agreement (the “Attrition Guaranty Time Period”), Seller shall continue producing Compensation, as defined in the Seller Agreement, at the amount, per month, as defined in the Residual Buy Out Agreement.  Should the Compensation fall below such Attrition Guaranty threshold, Nuvei would be made whole by Seller for the shortfall between the Compensation and the Attrition Guaranty. Nuvei, at its sole choice and discretion, shall have the right to (i) off-set all or part of such shortfall against any other compensation owed to Seller under the Seller Agreement and/or (ii) demand payment in cash for all or part of such shortfall amount.  Seller may be eligible to earn additional compensation based on the Attrition Guaranty Schedule, which is attached hereto as Schedule A, and fully incorporated herein by reference.

            4. Release.

             a. Nuvei is hereby absolutely released and forever discharged from any obligation to pay Purchased Residuals to Seller.

             b. Seller releases Nuvei and its affiliates, successors, assigns, transferees, officers, directors, employees, representatives, agents, independent contractors, and attorneys from any claims or causes of action arising from transactions, occurrences or events leading up to the negotiation of this Agreement, damages, charges, costs, demands, expenses, rights, offsets, recoupments, liabilities, and obligations, whether direct or derivative, direct or indirect, known or unknown, existing as of the date hereof under the Seller Agreement.

            5. Excluded Assets and Liabilities. Nuvei is expressly not agreeing, and under no circumstances shall Nuvei be obligated, to pay, discharge or assume any liability of the Seller or its principals or affiliates, and none of the Purchased Residuals shall be or become liable for or subject to any liabilities, obligations, expenses, or commitments of Seller or its principals or affiliates, of any kind, whether accrued or contingent, recorded or unrecorded, known or unknown.

           6. Representations and Warranties.  As a material inducement to Nuvei to enter into this Agreement, and with the understanding that Nuvei is relying thereon, Seller represents and warrants to Nuvei as follows:

            a. Seller has good and unencumbered title to the Purchased Residuals, free and clear of any Liens, and Seller has no knowledge of and has not received any notice of any claim or alleged claim by any other person or entity to all or any portion of the Purchased Residuals.

            b. Seller has not received notice, either written or oral, that any of the Merchants intend to discontinue the services of Nuvei or not renew any contract with Nuvei.

            c. Seller is duly organized, validly existing and in good standing under the laws of its state of organization and has the power to own its properties and assets and carry on its operation of its business as it is presently being conducted.  The Seller is qualified to do business and is in good standing in those states where the business of the Seller requires qualification.  The Seller has the power and authority to enter into and to perform all of their obligations under this Agreement, to sell the Purchased Residuals and to execute, deliver and perform all of its obligations under all of the agreements to be executed and delivered by it in connection with the transactions contemplated by this Agreement.  The execution, delivery and performance of this Agreement by the Seller do not conflict with or result in a breach or default under any of the terms, conditions, or provisions of the Seller’s governing documents.  The execution, delivery and performance of this Agreement by the Seller do not, and the consummation of the transactions contemplated by this Agreement will not, violate any provision of, or result in the acceleration of any obligation under, any mortgage, lease, agreement, instrument, order, license, arbitration award, judgment or decree to which the Seller is a party or which concerns the Purchased Residuals.  This Agreement constitutes, and upon their execution and delivery, the other agreements to be executed and delivered by the Seller will constitute, the valid and binding obligations of the Seller, enforceable against the Seller in accordance with its terms.

            d. Seller is not obligated to pay commissions, residuals or other compensation to referral sources, agents, sub-ISOs or any other party in connection with the Purchased Residuals or the Merchants.  

            7. Survival of Warranties and Representations.  All of the warranties and representations made by the parties in this Agreement shall survive the closing and remain operative and in full force and effect and may be relied upon regardless of any other information, or any investigation or inquiry, by or on behalf of the party to whom the warranty or representation is given.

            8. Non-Solicitation.  

            a. During the period beginning as of the Effective Date and for ten (10) years thereafter, Seller and its successors in interest, assigns, officers, directors, employees, principals, agents and affiliates shall not (i) directly or indirectly solicit, recruit or consult with any Merchants for purposes of marketing, promoting, selling or providing payment card processing and related services or similar services or products that compete directly or indirectly with those provided by Nuvei to any Merchants, wherever located, or (ii) interfere with, disrupt or attempt to disrupt any current business relationship, contractual or otherwise, between Nuvei and any Merchants, potential or prospective customer or merchant, agent or employee of Nuvei, or any relationship pursuant to which Nuvei does, will or could receive revenue in relation to any Merchants.  

            b. Seller agrees that during the period of ten (10) years following the Effective Date, it will not at any time, directly or indirectly, communicate, furnish, divulge or disclose to any individual, firm, association, partnership or corporation (except to its accountants or attorneys), any knowledge or information with respect to any matters concerning or relating to the Merchants or the Purchased Residuals, including but not limited to, copies or originals of any information supplied to Nuvei or the names and contact information for any of the Merchants.  Furthermore, Seller agrees to keep the terms of this Agreement and the information concerning the transactions described herein confidential, and shall not, in any way whatsoever, disclose the terms of this transaction to any third party, except to its owners, lenders, affiliates, accountants or attorneys, without the prior written consent of Nuvei.

            9. Confidentiality.  Unless otherwise required by law, Seller agrees that during the period of ten (10) years following the Effective Date, it will not voluntarily at any time, directly or indirectly, communicate, furnish, divulge or disclose to any individual, firm, association, partnership or corporation except, to its accountants or attorneys, any knowledge or information with respect to any matters concerning or relating to the Merchants or the Purchased Residuals, including but not limited to, copies or originals of any information supplied to Nuvei or the names and contact information for any of the Merchants.  Furthermore, the parties hereto agree to keep the terms of this Agreement and the information concerning the transactions described herein confidential, and shall not, in any way whatsoever, disclose the terms of this transaction to any third party, except to its owners, lenders, affiliates, accountants or attorneys, without the prior written consent of the other party; provided, that either party may disclose the terms of this Agreement as required by law and for the purpose of enforcing this Agreement.

             10. Indemnification; Set-Off.  Seller hereby agrees to indemnify and hold Nuvei harmless from all liabilities, losses, costs or expenses that it may experience from any breach of any covenant, representation or warranty made hereunder, or any liability of Seller not expressly assumed herein.  In addition to any other remedy permitted by this Agreement, Nuvei shall have the right to offset any obligations or liabilities of Seller due to Nuvei under this Agreement against any payments due to Seller from Nuvei or its affiliates under any agreement to which Seller is a party. For greater certainty, the indemnification obligations herein shall supplement and not replace those set forth in the Seller Agreement.

            11. Notices.  Any notice or demand required to be given will be given in writing and shall be hand delivered, emailed, or mailed by certified mail, postage prepaid, to the address set forth below, or as the Parties may hereinafter substitute.  Notice shall be deemed received on the date of delivery or the date of the email so long as written documentation verifies such delivery.

NUVEI:

Address: 1375 N Scottsdale Rd., Suite 400

Scottsdale, Arizona 85257

Email: Legal.NA@Nuvei.com

PROVIDER:

Address: to the address specified on the Residual Buyout Agreement.

Email: to the email address specified on the Residual Buyout Agreement.            

              12. Governing Law.  This Agreement will be governed by the laws of the State of Delaware without reference to any jurisdictions conflict of laws principles that would require application of law of a different jurisdiction.

            13. BINDING ARBITRATION. EXCEPT AS SET FORTH IN SECTION 12 OF THIS AGREEMENT, ANY DISPUTE OR CLAIM BETWEEN THE PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION IN THE STATE OF DELAWARE IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION FROM TIME TO TIME IN FORCE AND EFFECT. A SINGLE ARBITRATOR SHALL PREPARE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW. IT IS MUTUALLY AGREED THAT THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE VALID AND BINDING; PROVIDED HOWEVER, THAT THE PARTIES HERETO AGREE THAT THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO AWARD PUNITIVE OR EXEMPLARY DAMAGES AGAINST ANY PARTY. EACH OF THE PARTIES HERETO FURTHER AGREES THAT IT WILL NOT BECOME A MEMBER OF ANY CLASS-WIDE LITIGATION OR ARBITRATION AND WILL NOT INITIATE ANY CLASS ACTION LITIGATION OR CLASS ARBITRATION AGAINST THE OTHER PARTY.

            14. Entire Agreement; Binding Agreement; Severability.  This Agreement and the instruments and documents called for by this Agreement, constitute the whole agreement of the parties and supersede any commitment, agreement, letter of intent, memorandum, or understanding previously made by the parties or any of them, with respect to the subject matter of this Agreement. This Agreement, once fully executed, will be binding upon the parties hereto, their heirs, successors, executors and assigns. Any provision of this Agreement that is unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

            Waiver, Amendment or Modification.  Any waiver, amendment or modification of any provisions of this Agreement, or any right, power or remedy hereunder or thereunder will not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought.  No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder will operate as a waiver thereof in the future.