Exhibit 10.16
AMENDMENT NO. 1 AND CONSENT
TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
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This AMENDment No. 1 AND CONSENT to SIXTH amended AND RESTATED CREDIT
AGREEMENT (this "Agreement") is dated as of November 20, 2003, 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 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
Agreement shall have the meanings ascribed in the Credit Agreement (as
hereinafter defined).
BACKGROUND
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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 and RMH Teleservices, Inc. (the "Target") are parties
to a certain Merger Agreement dated as of November 18, 2003 filed with the
United States Securities and Exchange Commission as of November 20, 2003 (the
"Merger Agreement"), pursuant to the terms and conditions of which Borrower has
offered to purchase 100% of the issued and outstanding common stock in the
Target on or before June 30, 2004, by way of an exchange of capital stock in the
Borrower (the "Stock Acquisition"); and
WHEREAS, in connection with the Stock Acquisition, Borrower has
requested that the Administrative Agent and Lenders (i) consent to the Stock
Acquisition, and (ii) modify certain terms and conditions of the Credit
Agreement; and
WHEREAS, the Administrative Agent and Lenders are willing to (i)
consent to the Stock Acquisition, and (ii) modify certain terms and conditions
of the Credit Agreement, 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. Consent. In accordance with Section 6.9 of the Credit Agreement, the
Administrative Agent and the Super Majority Lenders hereby consent to the Stock
Acquisition and the operation of the combined company post-acquisition.
2. Amendments to Credit Agreement. From and after the date on which
each of the conditions set forth in Section 3 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. Section 5.10 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
The Borrower shall, and shall cause each Restricted Subsidiary to,
continue to engage in its business substantially as conducted and
operated during the present and preceding fiscal year or in customer
relations management services, and no such Person shall engage in any
other business not substantially similar to the business as presently
conducted or in customer relations management services.
b. Clause (e) Section 6.3(Indebtedness) of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
(e) Indebtedness, in an aggregate outstanding principal amount not
to exceed $38,000,000 at any time in respect of Capitalized Leases
and/or Purchase Money Indebtedness;
c. Clause (d) of Section 6.11 (Stock Issuance) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
(d) the issuance of stock of Borrower in connection with a Permitted
NCPM Purchase Transaction or the issuance of stock of Borrower or
options or warrants which may be exercised for stock of the Borrower in
Permitted Acquisitions to the extent it would not otherwise cause a
Default or Event of Default hereunder
The definition of "Permitted Acquisition" in Section 10.1 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"Permitted Acquisition" shall mean any acquisition (by way of stock
purchase, merger, asset purchase or otherwise) by the Borrower or any
Restricted Subsidiary of all of the properties or stock of any going
concern or going line of business; provided, however, that (1) each
such business being acquired by any such Person must (a) have a
positive EBITDA for the immediately preceding twelve months prior to
the acquisition, after adjustments for unusual expense items and (b) be
in a line of business permitted by Section 5.10 (Continuation or Change
In Business) (2) after recasting the Borrower's consolidated financial
statements for the immediately preceding twelve month period to include
the results of operations from the target of the acquisition, and
preparing pro forma financial statements for the immediately succeeding
twelve month period, the acquiring Person and target on a consolidated
basis shall have met the financial covenants described in Section 6.1
(Financial Covenants) of this Agreement for the immediately preceding
twelve months prior to the acquisition and on a pro forma basis for the
immediately following twelve month period after the acquisition (such
compliance to be evidenced by a Pro-Forma Covenant Compliance
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Certificate in the form of Exhibit H attached hereto ("Pro-Forma
Covenant Compliance Certificate"); (3) with respect to any merger
involving the Borrower, it shall be the surviving corporation, and with
respect to any merger involving a Restricted Subsidiary which is not a
Guarantor (but not involving the Borrower or a Guarantor), it shall be
the surviving corporation, and with respect to any merger involving a
Guarantor (but not involving the Borrower), the Guarantor shall be the
surviving corporation (unless the target survives and becomes a
Guarantor pursuant to the terms hereof); (4) after giving effect to the
acquisition, no Event of Default or Default shall exist; (5) the
disclosure schedules shall be updated to account for the acquisition as
required by Section 5.17 (Update of Schedules); and (6) the cash
consideration to be paid by the acquiring Persons for all such
acquisitions must not exceed (x) except in the case of the Permitted
RMH Acquisition (the purchase price for which is excluded from this
clause (x)) if the Consolidated Funded Debt to Consolidated EBITDA
Ratio is equal to or greater than 2.00 to 1.00, an aggregate amount of
$20,000,000.00 cash or Borrower common stock in any rolling twelve
month period, or (y) if the Consolidated Funded Debt to Consolidated
EBITDA Ratio is less than 2.00 to 1.00, $25,000,000.00 cash (but no
limitation on the amount funded with Borrower common stock) in any
rolling twelve month period. Any acquisition which does not meet the
criteria set forth in clause (1)(a) above in this definition requires
the prior written consent of the Super Majority Lenders. In addition to
the foregoing, any Permitted NCPM Purchase Transaction made in
accordance with Section 6.10(d) shall be deemed to be a Permitted
Acquisition.
For the sake of clarity, the provisions of the foregoing definition that are
change by this Amendment are in clause (1)(b) and (6)(x).
c. A new definition is hereby added to Section 10.1 of the
Credit Agreement, such that it appears in proper alphabetical order, as follows:
"Permitted RMH Acquisition" shall mean Borrower's acquisition
of 100% of the issued and outstanding capital stock of RMH
Teleservices, Inc., by way of an exchange of capital stock in the
Borrower, pursuant to the terms and conditions of a certain Merger
Agreement dated as of November 18, 2003 between Borrower and RMH
Teleservices, Inc.
3. Conditions to Consent and Amendments.
a. The consent in Section 1 above and the amendments in
Section 2 above shall be effective, as of the date first above written, upon
satisfaction of each of the following conditions:
(i) The Administrative Agent, the Super Majority Lenders and
Borrower shall have duly executed and delivered this Agreement to the
Administrative Agent; and
(ii) The Borrower shall have delivered such other information
as the Administrative Agent shall reasonably request.
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b. On or prior to the effective date of the Stock Acquisition
(or on such other date as may be specified in the Credit Agreement or below),
Borrower shall satisfy the following conditions:
(i) Borrower shall have delivered updated disclosure schedules
to the Credit Agreement, if any, pursuant to Section 5.17 of the Credit
Agreement;
(ii) Promptly upon execution thereof or such otherwise
becoming available, and in any event prior to consummation of the Stock
Acquisition, Borrower shall have delivered to the Administrative Agent
true, correct and complete copies of the Merger Agreement and all other
instruments, agreements and documents executed and/or delivered in
connection therewith or otherwise setting forth terms and conditions of
the Stock Acquisition, together with all amendments and schedules and
exhibits thereto (collectively, the "Acquisition Documents"), and all
such Acquisition Documents shall be reasonably satisfactory to the
Administrative Agent in all material respects, and shall set forth
terms which are substantially consistent with the terms of the Stock
Acquisition as they were previously described to the Administrative
Agent and Lenders;
(iii) As soon as practicable, Borrower shall have delivered
such joinder documents and security documents, if any, as shall be
necessary to cause all of the assets (including equity of any
subsidiaries) acquired in connection with the Stock Acquisition to be
subject to a valid, first priority security interest, subject to such
exceptions as are permitted by the Credit Agreement; and
(iv) Borrower shall have delivered such other information as
the Administrative Agent shall reasonably request.
4. Borrower's Representations and Warranties. Borrower hereby
represents and warrants to the Administrative Agent 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 the Stock Acquisition as contemplated herein, under the Credit
Agreement and other Loan Documents.
c. Borrower has corporate power and authority to execute,
deliver, perform this Agreement, and to execute, deliver, perform and take all
actions contemplated to be taken by it under the Acquisition Documents, and all
such action has been duly and validly authorized by all necessary corporate
proceedings on its part.
d. This Agreement, 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.
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e. Borrower has, and will have after giving effect to the
Stock Acquisition, no claims, defenses or set-offs to its respective obligations
under the Credit Agreement and other Loan Documents to which it is party.
5. Payment of Expenses. Borrower shall pay any and all fees due and
payable in connection with this Agreement and all costs and expenses (including,
without limitation, attorneys' fees) incurred by the Administrative Agent in
connection with this Agreement.
6. Event of Default. A breach of any covenant, representation or
warranty set forth in this Agreement by Borrower shall constitute an Event of
Default under the Credit Agreement.
7. Effect of Agreement. Except as expressly amended in Section 2 above,
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.
8. Further Modifications. This Agreement contains all of the
modifications to the Credit Agreement, and no further or other modifications to
the Credit Agreement shall be effective unless in writing executed by all of the
parties thereto.
9. Binding Effect. This Agreement shall extend to and bind the parties
hereto and their respective successors and assigns.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
document. This Agreement shall extend to and bind the parties hereto and their
respective successors and assigns.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment No. 1 and Consent to Sixth Amended and Restated Credit Agreement as of
the day and year first above written.
NCO GROUP, INC.
By:
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XXXXXXX X. XXXXXXX,
as President and Chief Executive Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CITIZENS BANK OF PENNSYLVANIA,
for itself, as Administrative Agent, as a
Co-Arranger, and as Collateral Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender, Syndication Agent and as a
Co-Arranger
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender and as a Co-Documentation Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
NATIONAL CITY BANK,
as a Lender and as a Co-Documentation Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
FLEET NATIONAL BANK,
as a Lender and as a Co-Documentation Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
KEYBANK NATIONAL ASSOCIATION,
as a Lender and as a Co-Documentation Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
SOVEREIGN BANK,
as a Lender and as a Co-Agent
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
PROVIDENT BANK, as a Lender
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Lender
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
US BANK NATIONAL ASSOCIATION,
as Lender
By:
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Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
PROVIDENT BANK, as a Lender
By:
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Name:
Title:
[END OF SIGNATURES PAGES]
