EXHIBIT 10.1
AMENDMENT NO. 2
TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 2 TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of October 13, 2004, 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, Borrower desires to have the Issuer issue Letters of Credit in
certain non-Dollar currencies, and the Issuer is willing to do so subject to the
terms and conditions of this Amendment; and
WHEREAS, Borrower has requested that the Administrative Agent, the
Issuer and the Lenders modify certain terms and conditions of the Credit
Agreement to permit the issuance of such Letters of Credit, and the
Administrative Agent, the Issuer and the 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) The following new definitions are hereby added to Section 10.1
(Certain Definitions) of the Credit Agreement, such that they appear in proper
alphabetical order:
"Available Foreign Currency" shall mean any available
and freely-convertible non-Dollar currency selected by
Borrower and approved by the Issuer from time to time.
"Dollar Equivalent Amount" shall mean, on any date of
determination, with respect to any Available Foreign Currency,
the amount of Dollars into which the Issuer determines that it
could convert an amount of such Available Foreign Currency on
such date of determination, based upon the quoted spot rates
of the Issuer at which its applicable branch or office offers
to exchange Dollars for such Available Foreign Currency in the
foreign exchange market (using, in the event more than one
such spot rate is so quoted, the arithmetic mean of such
quoted rates, rounded upward to the nearest 1/100).
(b) Paragraph (a) of Section 1.14 (Issuance Of Letters Of Credit -
Terms) of the Credit Agreement is hereby amended by adding the phrase "and/or
any Guarantor" after the word "Borrower" in the first sentence thereof.
(c) Paragraph (b) of Section 1.14 (Issuance Of Letters Of Credit -
Terms) of the Credit Agreement is hereby amended by adding the phrase "or in an
Available Foreign Currency" after the word "Dollars" in the first sentence
thereof.
(d) Section 1.14 (Issuance Of Letters Of Credit) of the Credit
Agreement is hereby amended by adding the following new paragraphs (k) and (l)
at the end thereof:
(k) Letters of Credit Denominated in an Available
Foreign Currency. For purposes of this Agreement, the amount
of all obligations of Borrower under this Section 1.14 that
are stated in an amount in an Available Foreign Currency shall
be the Dollar Equivalent Amount of such amount. Without
limiting the generality of the foregoing, the Dollar
Equivalent Amount of the Contingent Reimbursement Obligations
and any unreimbursed Drawings with respect to all Letters of
Credit denominated in an Available Foreign Currency shall be
the amount determined by the Issuer in its the most recent
valuation of such obligations. If, after giving effect to any
such determination, the sum of all outstanding RC Loans plus
all Contingent Reimbursement Obligations plus any unreimbursed
Drawings exceeds the RC Commitment, then Borrower shall repay
the RC Loans immediately in an amount equal to such excess
amount. All payments by Borrower to the Issuer under this
Section 1.14 shall be made in Dollars.
(l) Rights and Obligations of Borrower and
Guarantors. The rights of Borrower to request the issuance of
Letters of Credit under this Section 1.14 shall be deemed to
include the rights of any Guarantor to request the issuance of
Letters of Credit, in each case subject to the same
obligations and agreements of Borrower as are set forth in
this Section 1.14.
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2. Conditions to Amendments. The amendments 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 Issuer, the Majority Lenders and
Borrower shall have duly executed and delivered this Amendment to the
Administrative Agent; and
(b) 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, the Issuer and the 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.
(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 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.
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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. 2 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
CITIZENS BANK OF PENNSYLVANIA,
for itself, as Administrative Agent, as the Issuer,
as a Co-Arranger, and as Collateral Agent
By:_____________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender, Syndication Agent and as a Co-Arranger
By:______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and as a Co-Documentation Agent
By:______________________________
Name:
Title:
NATIONAL CITY BANK,
as a Lender and as a Co-Documentation Agent
By:______________________________
Name:
Title:
FLEET NATIONAL BANK,
as a Lender and as a Co-Documentation Agent
By:______________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Lender and as a Co-Documentation Agent
By:______________________________
Name:
Title:
SOVEREIGN BANK,
as a Lender and as a Co-Agent
By:______________________________
Name:
Title:
PROVIDENT BANK, as a Lender
By:______________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Lender
By:______________________________
Name:
Title:
US BANK NATIONAL ASSOCIATION,
as Lender
By:______________________________
Name:
Title:
PROVIDENT BANK, as a Lender
By:______________________________
Name:
Title: