EXHIBIT 10.2
AMENDMENT NO. 3
TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 3 TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of March 17, 2005, by and among NCO GROUP, INC.,
a Pennsylvania corporation ("Borrower"), the Lenders referred to on the
signature pages hereto, CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania
state-chartered bank, for itself and as Administrative Agent for the other
Lenders (in such capacity, together with its successors and assigns in such
capacity, the "Administrative Agent"), CITIZENS BANK OF PENNSYLVANIA, a
Pennsylvania state-chartered bank, as the Issuer and as a Co-Arranger, WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Co-Arranger and Syndication Agent, FLEET
NATIONAL BANK, GENERAL ELECTRIC CAPITAL CORPORATION, KEYBANK NATIONAL
ASSOCIATION and NATIONAL CITY BANK, as Co-Documentation Agents, and SOVEREIGN
BANK, as Co-Agent. Capitalized terms used and not otherwise defined in this
Amendment shall have the meanings ascribed in the Credit Agreement (as
hereinafter defined).
BACKGROUND
WHEREAS, the parties hereto are party to a certain Sixth Amended and
Restated Credit Agreement dated as of August 13, 2003 (as amended, restated,
supplemented or modified from time to time, the "Credit Agreement"); and
WHEREAS, NCPM is now a wholly-owned Subsidiary of the Borrower;
WHEREAS, Borrower is causing NCPM to become a guarantor of the debt
under the Credit Agreement and other Loan Documents and to provide a security
interest in substantially all of its personal property to secure that guaranty;
WHEREAS, NCPM will no longer be in need of the credit provided for
under the NCOG/NCPM Credit Agreement as it will be a Guarantor and, as such, the
Borrower shall be entitled to make loans to it in accordance with the Credit
Agreement;
WHEREAS, concurrent with the joinder of NCPM as a Guarantor under the
Loan Documents, certain of its Subsidiaries shall also become Guarantors and
provide a security interest under the Loan Documents and certain other of its
Subsidiaries shall remain Unrestricted Subsidiaries;
WHEREAS, Borrower desires (a) to eliminate the provisions of the Credit
Agreement providing for the NCPM/NCOG Credit Agreement, (b) to eliminate the
provisions respecting a prepayment in connection with the termination of the
NCPM/NCOG Credit Agreement, (c) to eliminate the prohibition on purchasing
delinquent pools of accounts and (d) to allow for additional investments in
Unrestricted Subsidiaries; and Borrower is willing to eliminate the provisions
respecting a Permitted NCPM Sale Transaction; and
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WHEREAS, Borrower has requested such modifications to the Credit
Agreement, and the Administrative Agent and Majority Lenders are willing to do
so on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Amendments to Credit Agreement. From and after the date on which
each of the conditions set forth in Section 2 below has been satisfied, all
references to the Credit Agreement in the Loan Documents shall mean and refer to
the Credit Agreement as modified as follows:
(a) Clause (ii) (Permitted NCPM Sale Transaction) and clause (iii)
(Prepayment Upon Termination of NCPM/NCOG Credit Agreement) of Section 1.6(b)
(Mandatory Prepayments and RC Commitment Reductions) are deleted in their
entirety and replaced with "intentionally omitted."
(b) Section 5.20 (NCOG/NCPM Loan) is deleted in its entirety and
replaced with "intentionally omitted."
(c) Clause (i) of Section 6.5 (Loans, Advances and Investments) is
amended in its entirety to read:
(i) Loans, advances, capital contributions and other
investments by Borrower and its Restricted
Subsidiaries in Unrestricted Subsidiaries for the
purpose of acquiring pools of receivables in an
aggregate amount at any time (including such
investments made prior to the Closing Date, as well
as such investments made during the term of this
Agreement) not to exceed the greater of (A) fifteen
percent (15%) of the Net Assets of the Borrower and
its Subsidiaries and (B) One Hundred Million Dollars
provided, except for Permitted Forward Contract
Payments, no such investment shall be made at any
time that a Default or Event of Default shall then
exist or be caused thereby.
The calculation of the permitted amount to be
invested under this paragraph (i) shall be made as of
the time such proposed investment is to be made, but
the amount of Net Assets shall be based on the
financial statements most recently delivered to the
Lenders. The "amount" of any investment shall be: (x)
an amount equal to the sum of the amount of cash or
the net fair market value of other assets (determined
as of the time the applicable investment is made)
paid by the Borrower and its Restricted Subsidiaries
as equity investments in or loans to Unrestricted
Subsidiaries less (y) the sum of the amount of any
cash dividends or other equity distributions made by
Unrestricted Subsidiaries and proceeds of any
permitted sales of equity of Unrestricted
Subsidiaries and repayments of loans to Unrestricted
Subsidiaries, in each case received by the Borrower
and its Restricted Subsidiaries.
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(d) Clause (k) of Section 6.5 (Loans, Advances and Investments) is
deleted in its entirety and replaced with "intentionally omitted."
(e) Clause (d) of Section 6.10 (Dispositions of Property) is deleted
in its entirety and replaced with "intentionally omitted."
(f) Section 6.11 (Stock Issuance) is amended by deleting the phrase
"a Permitted NCPM Purchase Transaction or" from clause (d) thereof.
(g) Clause (e) of Section 6.12 (Dealings with Affiliates) is deleted
in its entirety and replaced with "intentionally omitted."
(h) Section 6.13 (Acquired Delinquent Pools Of Accounts) is deleted
in its entirety replaced with "intentionally omitted."
(i) The last sentence of Section 5.1(c) (Quarterly Compliance
Certificates) is amended in its entirety to read accordingly:
"The Quarterly Compliance Certificate shall set forth
the amount of loans and other investments made
pursuant Section 6.5(i) (Loans, Advances and
Investments)."
(j) The phrase "Sections 6.13 (Acquired Delinquent Pools of
Accounts) and" in Section 6.5(j) (Loans, Advances and Investments) is deleted.
(k) The phrase "and Section 6.13 (Acquired Delinquent Pools of
Accounts)" in Section 6.12(f)(Transactions with Affiliates) is deleted.
(l) Section 10.1 (Certain Definitions) is amended by deleting the
following definitions in their entirety: CLOSING DATE NCPM INTEREST, DEBT
PORTION OF THE NCPM INVESTMENT, EQUITY PERCENTAGE SOLD, MAXIMUM NCPM INVESTMENT
AMOUNT, PERMITTED AMENDMENTS, PERMITTED NCPM PURCHASE TRANSACTION, PERMITTED
NCPM SALE TRANSACTION, and REQUISITE PAYMENT AMOUNT ON TERMINATION OF NCPM
FACILITY.
(m) Section 10.1 (Certain Definitions) is amended by inserting the
following definitions in their correct alphabetical location:
"FORWARD CONTRACT" a contract to purchase, at a date
after the date of the contract, pools of receivables.
"NET ASSETS" means, as it relates to the Borrower and
its Subsidiaries, the difference between (a) the
amount of all assets on the consolidated balance
sheet of the Borrower and its Subsidiaries and (b)
the amount of all liabilities on the consolidated
balance sheet of the Borrower and its Subsidiaries,
in each case determined in accordance with GAAP.
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"NON-PAYMENT DEFAULT" means any Default or Event of
Default other than the failure of the Borrower to pay
principal, reimbursement obligations in respect of
Letters of Credit, interest, Unused Fees and fees
relating to Letters of Credit pursuant to Section
1.8(b) (Fees) when due.
"PERMITTED FORWARD CONTRACT PAYMENTS" means loans to
Unrestricted Subsidiaries pursuant to clause (i) of
Section 6.5 (Loans, Advances, Investments) made
during any Non-Payment Default to finance payments
required to be made under any Forward Contracts that
were entered into on a committed basis prior to the
date of such Non-Payment Default.
(n) Section 10.1 (Certain Definitions) is amended by deleting the
last sentence of the definition of "PERMITTED ACQUISITION."
(o) Section 10.1 (Certain Definitions) is amended by deleting the
phrase "and are permitted under the NCPM/NCOG Credit Agreement" in the
definition of "NON-RECOURSE INDEBTEDNESS".
(p) All references to "Section 5.20 (NCOG/NCPM Loan)" and "Section
6.13 (Acquired Delinquent Pools of Accounts)" elsewhere in the Credit Agreement
are deleted.
2. Conditions to Amendments. The amendments to the Credit Agreement set
forth in Section 1 shall be effective as of the date first above written upon
satisfaction of each of the following conditions:
(a) the Administrative Agent, the Majority Lenders and Borrower
shall have duly executed and delivered this Amendment to the Administrative
Agent;
(b) NCPM and such of its Subsidiaries as are not restricted from
doing the same shall have become Guarantors and granted a security interest in
substantially all of their personal property in accordance with the terms of the
Loan Documents;
(c) The Agent shall have received such joinder documents, good
standing certificates, authorizing resolutions, opinions of counsel and such
other documents as the Agent may reasonably request in connection with the
joinders set forth in the preceding clause (b); and
(d) Borrower shall have delivered such other information as the
Administrative Agent shall reasonably request.
3. Borrower's Representations and Warranties. Borrower hereby
represents and warrants to the Administrative Agent and Lenders as follows:
(a) All of the representations and warranties made by Borrower in
the Credit Agreement and the other Loan Documents to which it is party remain
true, complete and accurate as of the date hereof, except to the extent such
representations and warranties were expressly made as of a specified date.
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(b) No Default or Event of Default exists, or will exist after
giving effect to this Amendment, under the Credit Agreement and other Loan
Documents.
(c) Borrower has the corporate power and authority to execute,
deliver, perform this Amendment, and to execute, deliver, perform and take all
actions contemplated to be taken by it under this Amendment, and all such action
has been duly and validly authorized by all necessary corporate proceedings on
its part.
(d) This Amendment, the Credit Agreement and the other Loan
Documents to which Borrower is party constitute the legal, valid and binding
agreements of Borrower, enforceable in accordance with their respective terms,
except as enforceability may be affected by bankruptcy, insolvency, moratorium
or other laws affecting creditors' rights generally.
(e) Borrower has no claims, defenses or set-offs to its respective
obligations under the Credit Agreement and other Loan Documents to which it is
party.
4. Payment of Expenses. Borrower shall pay all reasonable costs and
expenses (including, without limitation, attorneys' fees) incurred by the
Administrative Agent in connection with this Amendment.
5. Event of Default. A breach of any covenant, representation or
warranty set forth in this Amendment by Borrower shall constitute an Event of
Default under the Credit Agreement.
6. Effect of Agreement. Except as expressly amended in Section 1, the
Credit Agreement and the other Loan Documents in effect as of the date hereof
shall remain in full force and effect, unmodified, and are enforceable against
Borrower in accordance with their respective terms.
7. Binding Effect. This Amendment shall extend to and bind the parties
hereto and their respective successors and assigns.
8. Governing Law. This Amendment and the rights and obligations of the
parties under this Amendment shall be construed in accordance with and shall be
governed by the laws of the Commonwealth of Pennsylvania.
9. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument. Delivery of a photocopy
or telecopy of an executed counterpart of a signature page to this Amendment
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment No. 3 to Sixth Amended and Restated Credit Agreement as of the day and
year first above written.
NCO GROUP, INC.
By:____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
President and Chief Executive Officer
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CITIZENS BANK OF PENNSYLVANIA,
for itself, as Administrative Agent, as the Issuer,
as a Co-Arranger, and as Collateral Agent
By:_________________________
Name:
Title:
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[LENDER COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 3]
_____________________________
By:__________________________
Name:
Title:
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