Exhibit 10.25
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT dated as of August 13, 2003 (this "Amendment"),
is made by and between NCO PORTFOLIO MANAGEMENT, INC. (the "Borrower") and NCO
GROUP, INC. (the "Lender").
Background
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A. The Borrower has previously entered into that certain Credit Agreement,
dated as of February 20, 2001 (as amended, modified or supplemented from time to
time, the "Credit Agreement"), with the Lender. All capitalized terms not
defined herein shall have the meanings set forth in the Credit Agreement.
B. The Borrower has requested that the Lender amend certain provisions of
the Credit Agreement, and the Lender has agreed to amend such provisions on the
terms, and subject to the conditions, set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
agree as follows:
1. Certain Acknowledgments. The Borrower and Lender each acknowledge
and agree as follows:
(a) as of the Second Amendment Effective Date (defined below),
the Borrower is unconditionally liable to the Lender under the Credit Agreement
and each of the Loan Documents, for the payment of the principal amount of the
RC Loans, plus all accrued and unpaid interest through the date hereof, plus
certain fees and expenses as more fully described in the Credit Agreement, and
that the Borrower has no defenses, counterclaims, deductions, credits, claims or
rights of setoff or recoupment with respect to such Obligations. As of August 8,
2003, the aggregate outstanding principal balance of RC Loans is Twenty-Five
Million Dollars ($25,000,000).
(b) (i) as of June 30, 2003, the RC Commitment and the Maximum
Credit Amount were reduced to, and currently equal, Thirty-Two Million Five
Hundred Dollars ($32,500,000), (ii) pursuant to Section 1.7(a)(ii) (Reductions
of RC Commitment; Quarterly Reductions) of the Credit Agreement, the RC
Commitment and the Maximum Credit Amount shall be further reduced to
Twenty-Eight Million Seven Hundred Fifty Thousand Dollars ($28,750,000) as of
September 30, 2003, and further reduced to Twenty-Five Million Dollars
($25,000,000) as of December 31, 2003, (iii) pursuant to Section 1.7(d)
(Reductions of RC Commitment; Payment) of the Credit Agreement, on each such
Reduction Date, the Borrower shall pay to the Lender the amount, if any, by
which the outstanding principal balance of the RC Loans exceeds the amount of
the RC Commitment as reduced on such Reduction Date, and (iv) pursuant to
Section 1.7(c) (Reductions of RC Commitment; No Reinstatement of RC Commitment)
of the Credit Agreement, each such reduction of the RC Commitment and the
Maximum Credit Amount is permanent.
(c) This Amendment is being executed and delivered in
connection with an amendment and restatement of the NCOG Syndicated Credit
Facility. Pursuant to the NCOG Syndicated Credit Facility, the Agent and the
financial institutions party thereto have agreed to terminate and release the
NCOG Syndicated Credit Facility Documents (which shall mean only the following
agreements: the Special Suretyship Agreement, the Additional Subfacility
Security Agreement and the NCOP/NCOG Subordination Agreement, each dated as of
February 20, 2001) if, and only if, (i) the Borrower causes each Subsidiary
Obligor in existence as of the Second Amendment Effective Date to guaranty and
become surety for the Obligations pursuant to a Subsidiary Guaranty acceptable
to the Agent (the "Subsidiary Guaranty"), and (ii) grants, and causes each
Subsidiary Obligor in existence as of the Second Amendment Effective Date to
grant, in favor of the Lender a Lien on substantially all of their present and
future personal property assets to secure the Obligations pursuant to a Security
Agreement and a Pledge Agreement acceptable to the Agent (together with the
Subsidiary Guaranty, the "Security Documents"). Accordingly, (x) on (and as the
conditions precedent to the occurrence of) the Second Amendment Effective Date,
the Borrower shall, and shall cause each Subsidiary Obligor in existence as of
the Second Amendment Effective Date to, execute and deliver the Security
Documents in favor of the Lender, and (y) after the Second Amendment Effective
Date, so long as the Credit Agreement remains in effect, the Borrower shall
cause each Subsidiary Obligor formed or acquired after the Second Amendment
Effective Date to join into the Security Documents in favor of the Lender
promptly after the formation or acquisition of such Subsidiary Obligor. The
Borrower further acknowledges that all of the Lender's rights, title and
interest in and to the Credit Agreement, the Security Documents and the other
Loan Documents shall constitute part of the collateral for the Lender's
obligations under the NCOG Syndicated Credit Facility.
(d) In connection with the termination and release of the NCOG
Syndicated Credit Facility Documents, as of the Second Amendment Effective Date,
all references to the NCOG Syndicated Credit Facility Documents and the Special
Suretyship Obligations contained in the Credit Agreement are no longer
applicable.
(e) Notwithstanding anything contained in the Credit Agreement
or the other Loan Documents to the contrary, the terms and provisions of the
Credit Agreement and the Loan Documents shall be interpreted in a manner such
that neither the Lender, the Borrower nor any Subsidiary Obligor will be
required or permitted to take any action which would constitute an Event of
Default under the NCOG Syndicated Credit Facility.
2. Amendments. The Credit Agreement is hereby further amended as
follows:
(a) Section 1.1(b) (Commitment to Lender; Swingline); Related
Provisions. The Swingline Commitment is hereby terminated. Accordingly, all
references to the Swingline Commitment, Available Swingline Commitment,
Pre-Reduction Fee, Swingline, Swingline Loans and Swingline Note contained in
the Credit Agreement (including, without limitation, Sections 1.1(b) (Commitment
to Lender; Swingline) and 1.9(d) (Fees; Pre-Reduction Fee) thereof) are no
longer applicable. The Swingline Note is hereby cancelled.
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(b) Section 1.9(b) (Fees; NCOP Unused Fee). Section 1.9(b)
(Fees; NCOP Unused Fee) is amended by deleting the first sentence thereof in its
entirety and replacing the same with the following:
"The Borrower shall pay to the Lender, an unused fee ("NCOP Unused
Fee") equal to .375% of the average daily unused amount of the RC
Commitment for each day during the period from and including the Second
Amendment Effective Date to, but excluding, the Maturity Date."
(c) Section 1.7(a) (Reductions of RC Commitment; Quarterly
Reductions). Section 1.7(a) (Reductions of RC Commitment; Quarterly Reductions)
is amended by deleting clause (iv) (Commitment Reductions Under NCOG Syndicated
Credit Facility) in its entirety.
(d) Sections 6.1 (Financial Covenants). Section 6.1 (Financial
Covenants) of the Credit Agreement is amended and restated in its entirety as
follows:
"(a) Consolidated Funded Debt to Consolidated EBITDA. The ratio of
Consolidated Funded Debt to Consolidated EBITDA shall not be more than
2.5 to 1.0 for any quarter (measured as of the last day of each
quarter) commencing with the quarter ending September 30, 2003.
(b) Calculation of Consolidated EBITDA. Consolidated EBITDA shall be
calculated on a rolling four quarters basis, adjusted for any
acquisition completed during the quarter most recently ended."
(e) Sections 6.2 (Liens). Section 6.2 (Liens) of the Credit
Agreement is amended by amending and restating clause (a) thereof in its
entirety as follows:
"(a) Neither the Borrower nor any Subsidiary Obligor shall at any time
create, incur, assume or suffer to exist any Lien on any of its
property (now owned or hereafter acquired), or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, except
for the following (`Permitted Liens'):
(i) Liens pursuant to the Loan Documents in favor of the
Lender to secure the Obligations;
(ii) Liens existing on the date hereof securing obligations
existing on the date hereof, as such Liens and obligations are listed
in Schedule 6.2(a) hereto;
(iii) Liens arising from taxes, assessments, charges or
claims, or statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course
of business, in each case, to the extent not yet due or remaining
payable without penalty or to the extent permitted to remain unpaid
under the proviso to Section 5.3 (Payment of Taxes and Other Potential
Charges and Priority Claims), provided that the aggregate amount of all
tax obligations secured by Liens described in this Section 6.2(a)(iii)
shall not at any time exceed $250,000;
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(iv) Liens in the form of cash deposits securing workers'
compensation insurance obligations;
(v) Liens in the form of usual and customary cash deposits
securing obligations under real estate leases in the ordinary course of
business and precautionary filings of Uniform Commercial Code financing
statements by lessors under operating leases which filings do not
secure indebtedness (subject to compliance with Section 6.12 (Dealings
with Affiliates));
(vi) leases or subleases granted to other Persons, easements,
rights-of-way, zoning restrictions or other similar charges or
encumbrances on real property, in each case incidental to, and not
interfering with, the ordinary conduct of the business of the Borrower
or any of the Subsidiary Obligors; and
(vii) Liens pursuant to Capitalized Leases and Purchase Money
Indebtedness permitted under Section 6.3(a)(iii) hereof, provided that
no such Lien shall extend to or cover any property other than that
which is leased thereunder or purchased thereby.
'Permitted Lien' shall in no event include any Lien imposed by, or
required to be granted pursuant to, ERISA or any Environmental Law."
(f) Sections 6.3 (Indebtedness). Section 6.3 (Indebtedness) of
the Credit Agreement is amended by amending and restating clauses (a)(iii), (iv)
and (v) thereof in their entirety as follows:
"(iii) Subject to Section 6.14 (Capital Expenditures) hereof,
Indebtedness in respect of Capitalized Leases and/or Purchase Money
Indebtedness;
(iv) Indebtedness in the form of deferred purchase price for
property in connection with the direct acquisition of delinquent pools
of Accounts, but only to the extent that the incurrence of such
Indebtedness is in compliance with Section 6.1(a) (Financial Covenants;
Consolidated Funded Debt to Consolidated EBITDA) hereof;
(v) [INTENTIONALLY OMITTED];"
(g) Sections 6.4 (Guaranties). Section 6.4 (Guaranties) of the
Credit Agreement is amended by amending and restating clauses (a) and (f) in
their entirety as follows:
"(a) Guaranties of the Obligations in favor of the Lender by
the Subsidiary Obligors pursuant to the Loan Documents;"
"(f) [INTENTIONALLY OMITTED]; and"
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(h) Sections 6.5 (Loans, Advances and Investments).
Notwithstanding anything to the contrary contained in Section 6.5 (Loans,
Advances and Investments) of the Credit Agreement, the Borrower and any
Subsidiary Obligor may have investments in the form of capital stock or other
equity interests in account debtors distributed to the Borrower as consideration
for claims in bankruptcy proceedings involving such account debtors.
(i) Sections 6.9 (Mergers, Acquisitions, Etc.).
Notwithstanding anything to the contrary contained in Section 6.9(b) (Mergers,
Acquisitions, Etc.) of the Credit Agreement, the Borrower or any Subsidiary
Obligor may dissolve (i) Subsidiaries with substantially no assets and no
liabilities, and (ii) other Subsidiaries of the Borrower so long as any such
dissolution is accomplished in compliance in all material respects with
applicable Laws and upon the prior written approval of the Lender and the Agent.
(j) Sections 6.10 (Disposition of Properties). Notwithstanding
anything to the contrary contained in Section 6.10 (Disposition of Properties)
of the Credit Agreement, the Borrower and any Subsidiary Obligor may (i)
terminate leaseholds which are no longer useful in their business, (ii) dispose
of their properties, tangible or intangible, in transactions with each other
(subject to compliance with any requirements applicable to Collateral hereunder
or in the Security Documents) and (iii) make other dispositions that are
expressly permitted by the covenants set forth in Article VI of the Credit
Agreement. Section 6.10 (Disposition of Properties) of the Credit Agreement is
further amended by amending and restating clause (d) thereof in its entirety as
follows:
"(d) The Borrower and the Subsidiary Obligors may dispose of any other
property so long as the fair market value of all property disposed of
pursuant to this paragraph (d) does not exceed $1,000,000 in the
aggregate in any fiscal year; and"
(k) Sections 6.12 (Dealings with Affiliates). Notwithstanding
anything to the contrary contained in Section 6.12 (Dealings with Affiliates) of
the Credit Agreement, the Borrower and any Subsidiary Obligor may enter into
transactions with Affiliates that are expressly permitted by the covenants set
forth in Article VI of the Credit Agreement.
(l) Sections 6.16 (Limitation On Payments of Purchase Money
Indebtedness). Section 6.16 (Limitation On Payments of Purchase Money
Indebtedness) of the Credit Agreement is amended by deleting the last clause
thereof in its entirety and replacing the same with the following:
"except that so long as no Event of Default or Default has occurred,
the Borrower and any Subsidiary Obligor may pay principal and interest
on and fees and expense reimbursements with respect to Purchase Money
Indebtedness when due, and in the case of Purchase Money Indebtedness
that is subject to subordination provisions, to the extent consistent
with the subordination provisions of such Purchase Money Indebtedness."
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(m) Section 7.2 (Consequences of An Event of Default). Section
7.2 (Consequences of An Event of Default) of the Credit Agreement is amended by
inserting the words ", excluding clauses (i) - (iii) and (1) of paragraph (p)"
at the end of the parenthetical contained in the first two lines of each of
clauses (a) and (b) thereof.
(n) Article VIII (Subordination to Special Suretyship
Obligations). Article VIII (Subordination to Special Suretyship Obligations) of
the Credit Agreement is amended and restated in its entirety as follows:
"ARTICLE VIII: [INTENTIONALLY OMITTED]."
(o) Section 9.1 (Definitions; Construction). Section 9.1
(Definitions; Construction) of the Credit Agreement is amended by (i) amending
and restating the defined terms "Agent," "Consolidated Funded Debt,"
"Consolidated Net Income," "Interest Expense," "Loan Documents," "Maturity
Date," "NCOG Syndicated Credit Facility," "Subsidiary Obligors" "RC Commitment"
as set forth below, and (ii) inserting (in alphabetical order) the defined terms
"Collateral," "Non-Recourse Indebtedness," "Second Amendment," "Second Amendment
Effective Date" and "Security Documents" as set forth below:
"Agent" means Citizens Bank of Pennsylvania, as Administrative Agent in
connection with the NCOG Syndicated Credit Facility, and any successor
Administrative Agent under, and as defined in, the NCOG Syndicated
Credit Facility.
"Collateral" means the property from time to time subject to the Liens
of the Security Documents.
"Consolidated Funded Debt" shall mean all Indebtedness (but excluding
Non-Recourse Indebtedness) of Borrower and its consolidated
Subsidiaries for borrowed money, including without limitation the
Obligations, Capitalized Leases and Subordinated Debt.
"Consolidated Net Income" for any period shall mean the net earnings
(or loss) after taxes of Borrower and its consolidated Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP;
provided, that there shall be deducted therefrom (a) income (or loss)
accounted for by Borrower on the equity method because of the income
(or loss) during such period of any Person (other than a consolidated
Subsidiary) in which Borrower or any of its consolidated Subsidiaries
has an ownership interest, but the deduction for such equity income
shall be reversed to the extent that during such period or at any
subsequent time an amount not in excess of such income has been
actually received by Borrower or any of its consolidated Subsidiaries
in the form of cash or cash equivalents, (b) income (or loss) of a
foreign Subsidiary, but the deduction for such Subsidiary income (or
loss) shall be reversed to the extent that during such period or at any
subsequent time an amount not in excess of such income has been
actually received by Borrower or any of its consolidated Subsidiaries
in the form of cash or property dividends or similar distributions, not
subject to foreign currency translation, (c) the undistributed earnings
of any consolidated Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is
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restricted (whether such restriction arises by operation of Law, by
agreement, by its articles of incorporation or by-laws or other
constituent documents, or otherwise), (d) any restoration to income of
any contingency reserve, except to the extent that provision for such
reserve was made against income during such period, and (e) any gain
arising from the acquisition of securities, or the extinguishment,
under GAAP, of any Indebtedness of Borrower or any of its consolidated
Subsidiaries (but excluding Non-Recourse Indebtedness).
"Interest Expense" means, for any Person, for any period, the sum
(without duplication) of (a) all interest accrued (or accreted) on
Indebtedness (except Non-Recourse Indebtedness) of such Person during
such period whether or not actually paid plus (b) the net amount
accrued under any Interest Rate Hedging Agreements (or less the net
amount receivable thereunder) during such period.
"Loan Documents" means this Agreement, the Notes, the Security
Documents, and all other agreements and instruments extending,
renewing, refinancing or refunding any indebtedness, obligation or
liability arising under any of the foregoing, in each case as the same
may be amended, modified or supplemented from time to time hereafter.
"Maturity Date" means March 15, 2006.
"NCOG Syndicated Credit Facility" means that certain Sixth Amended and
Restated Credit Agreement, dated as of August __, 2003, as amended,
modified or supplemented from time to time hereafter, by and among the
Lender, as borrower, certain Subsidiaries of the Lender (other than the
Borrower and its Subsidiaries), as guarantors, Agent, as agent, and
certain financial institutions, as lenders, and all Loan Documents (as
defined in such Sixth Amended and Restated Credit Agreement).
"Non-Recourse Indebtedness" means obligations of the Non-Surety
Entities which are non-recourse as to the Borrower and the Subsidiary
Obligors, which obligations may be secured by pools of Accounts of the
Non-Surety Entities.
"RC Commitment" means the obligation of the Lender to make RC Loans in
an amount not to exceed the Maximum Credit Amount (as reduced from time
to time in accordance with Section 1.7(a)(ii) (Reductions of RC
Commitment; Quarterly Reductions) hereof (as more fully described in
Section 1(b) of the Second Amendment.
"Second Amendment" means the Second Amendment to Credit Agreement,
dated as of August __, 2003, between the Borrower and the Lender.
"Second Amendment Effective Date" means the Closing Date (as defined in
the NCOG Syndicated Credit Facility).
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"Security Documents" shall have the meaning set forth in the Second
Amendment.
"Subsidiary Obligors" means all Subsidiaries of the Borrower as of the
Second Amendment Effective Date, and each future Subsidiary of the
Borrower, in each case, other than the Non-Surety Entities.
(p) Section 9.1 (Definitions; Construction). Notwithstanding
anything to the contrary contained in Section 9.1 (Definitions; Construction) of
the Credit Agreement, the defined term "Indebtedness," as applied to any Person,
shall not include (i) accounts payable to trade creditors arising out of
purchases of goods or services in the ordinary course of business and payable
and paid on usual trade terms, or (ii) deposits held by any Person for its
customers in the ordinary course of business.
(q) Section 9.3 (Accounting Principles). Section 9.3
(Accounting Principles) is amended by (i) deleting the last sentence of clause
(a) in its entirety, and (ii) and inserting the words "or the Borrower's
accountant's interpretation of GAAP" after the words "change in GAAP" in the
proviso in clause (b) thereof.
(r) Section 10.1 (Notices). Notwithstanding anything to the
contrary contained in Section 10.1 (Notices) of the Credit Agreement, (i)
notices given by U.S. mail under the Credit Agreement shall be effective when
received, and (ii) notices under the Credit Agreement may be given by reputable
overnight delivery service and, if given in such manner, such notices shall be
effective the day after such notice is deposited with such service.
(s) Disclosure Schedules. Schedules 4.2(a) (Jurisdictions),
4.1(m) (Partnerships), 4.1(n) (Ownership), 4.1(r) (Insurance), 4.1(v) (Employee
Benefits), 4.1(y) (Names), 4.1(z) (Non-Surety Entities), 6.2(a) (Liens), 6.3(a)
Indebtedness (Borrower and Subsidiary Obligors), 6.3(b) Indebtedness (Non-Surety
Entities), 6.5 (Loan and Investments), 6.12 (Affiliate Transactions) appended to
the Credit Agreement are replaced by the updated versions of those disclosure
schedules attached hereto (collectively, the "Updated Disclosure Schedules").
(t) Exhibit D. Exhibit D (Form of Quarterly Compliance
Certificate) to the Credit Agreement is amended to the extent necessary to
incorporate the amendments set forth in Section 2(e) hereof.
3. Representations and Warranties. The Borrower represents and warrants
to the Lender as follows:
(a) Except as set forth in the Updated Disclosure Schedules,
each of the representations and warranties contained in Section 4.1 of the
Credit Agreement is accurate in all material respects on and as of the date
hereof.
(b) The Borrower has heretofore furnished to the Lender
financial statements for Borrower and its consolidated Subsidiaries as of
December 31, 2002 and the related statements of income, cash flows and changes
in stockholders' equity for the fiscal year then ended, as examined and reported
on by Ernst & Young LLP, who delivered an unqualified opinion in respect
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thereof. The financial statements present fairly the financial condition of the
Borrower and its consolidated Subsidiaries, as of the end of such fiscal year,
and the results of operations and cash flows for such consolidated group the
fiscal year then ended, all in conformity with GAAP.
(c) The Borrower has heretofore furnished to the Lender interim company
prepared financial statements for the Borrower and its consolidated
Subsidiaries, dated March 31, 2003 for the fiscal quarter then ending. Such
financial statements present fairly the financial condition of the Borrower and
its consolidated Subsidiaries, as of the end of such fiscal quarter and the
results of operations and cash flows for such consolidated group for such fiscal
quarter, all in conformity with GAAP, subject to normal and recurring year-end
audit adjustments, except that such interim financial statements do not contain
footnotes.
(d) As of the date hereof, no Default or Event of Default exists.
4. Amendment Fee. On or promptly after the Second Amendment Effective
Date, as determined by the Lender after consultation with the Borrower, the
Borrower shall pay to the Lender a non-refundable amendment fee in an amount to
be determined by the Lender after consultation with the Borrower based on a
reasonable allocation of the closing and related fees and expenses incurred by
the Lender in connection with this Amendment and the amendment and restatement
of the NCOG Syndicated Credit Facility, and the transactions contemplated hereby
and thereby.
5. Ratification; References. Except as amended hereby, the Credit
Agreement and each other Loan Document remains in full force and effect and is
hereby ratified. From and after the date that this Amendment becomes effective,
any reference in the Credit Agreement or any other related documents to the
Credit Agreement shall be and mean a reference to such agreement as amended
hereby and as the same may be further amended, modified or supplemented from
time to time.
6. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the law of the Commonwealth of Pennsylvania without regard to
its conflict of laws principles.
7. Effectiveness. This Amendment shall be effective on the Second
Amendment
Effective Date.
8. Counterparts. This Amendment may be executed in any number of
counterparts each of which shall be an original and all of which, when taken
together, shall constitute one instrument. Delivery of an executed signature
page of this Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
NCO PORTFOLIO MANAGEMENT, INC.,
as the Borrower
By:
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
NCO GROUP, INC., as the Lender
By:
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Updated Disclosure Schedules
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