EXHIBIT 10.3
AMENDED AND RESTATED
EXCLUSIVITY AGREEMENT
This Amended and Restated Exclusivity Agreement is made and entered
into as of June 30, 2005, and amends and restates in its entirety that certain
Letter Agreement dated August 19, 2002 (the "Original Agreement") by and between
CFSC Capital Corp. XXXIV, a Delaware corporation ("Lender"), and NCOP Lakes,
Inc., a Nevada corporation ("Lakes"), NCO Financial Systems, Inc., a Delaware
corporation ("Servicer"), NCO Portfolio Management, Inc., a Delaware corporation
("Parent"), and NCO Group, Inc., a Pennsylvania corporation ("NCOG"). Also
joining in this Agreement are NCOP Capital, Inc., a Nevada corporation ("NCOP
Capital"), and NCOP Capital I, LLC, a Nevada limited liability company ("NCOP
I"), which have previously acknowledged and agreed to be bound by the terms of
the Original Agreement. Additional entities may join in this Amended and
Restated Exclusivity Agreement as provided herein.
Lender has from time to time entered into Credit Agreements
(collectively, the "Credit Agreements") with Lakes, NCOP Capital and NCOP I
(collectively, the "Borrowers"). Borrowers are wholly owned subsidiaries of
Parent. Additional affiliates of Parent may enter into additional Credit
Agreements in the future as contemplated hereby, each of which shall be
considered a Credit Agreement for the purposes hereof. Affiliates of Lender
(collectively the "Cargill Venturers") may enter into joint investment
arrangements (to be negotiated consistent with the terms set forth on Exhibit A)
(collectively "Joint Venture Agreements" or "Joint Ventures") with affiliates of
Parent (collectively the "NCO Venturers") for the purpose of acquiring interests
in certain classes of assets described in items 1, 3 and 4 on Exhibit A attached
hereto. (The Credit Agreements and Joint Venture Agreements are collectively
referred to herein as "Finance Agreements".)
1. In order to induce Lender and the Cargill Venturers to make loans
under the Credit Agreements and investments under the Joint Venture Agreements
and as a condition precedent to such loans and investments, the Borrowers, the
Parent, the Servicer and NCOG (collectively, the Borrowers, the Parent, the
Servicer and NCOG are herein called the "Grantors"), on behalf of themselves and
on behalf of all parties, whether now existing or subsequently formed, including
any existing or future NCO Venturers, which are related to, controlling, or
controlled by, or under common control with any one or more of the Grantors
(either through financial investment or management responsibility), or any
member or equity holder of any Grantor which holds fifty percent (50%) or more
of the membership or other equity interests in such Grantor (collectively, the
"Affiliated Parties"), hereby grant to the Lender or the Cargill Venturers,
pursuant to the terms and conditions of this Agreement, the exclusive right to
finance (under the terms of the Credit Agreements) or joint venture (under the
terms of the Joint Venture Agreements) debt obligations of the following classes
(collectively, the "Obligations") to be acquired by any of the Grantors or any
Affiliated Party at any time from and after the date hereof to and including
June 30, 2009 or such later date as the parties hereto may subsequently
designate in writing (the "Termination Date"). "Obligations" shall include
portfolios of debt of the following types:
(a) US-based consumer debt with a purchase price equal to or greater
than $1,000,000.
(b) Non- US-based consumer debt.
(c) Portfolios of payments due for health-care goods or services.
Notwithstanding anything to the contrary contained herein, the Grantors
shall not be in violation of this Agreement as a result of maintaining, renewing
or extending, or performing under, any existing joint venture arrangement
between Xxxxxx Integrated Holding Corporation or its affiliates and NCOG and its
subsidiaries, including, without limitation, Inovision-Medclr NCOP Ventures,
LLC, Inovision-Medclr-NCOP-NF, L.L.C., Inovision-Medclr-NCOP-F, L.L.C. and
NCOP/Xxxxxx, Inc., as such existing joint venture arrangements may be amended
from time to time, provided that such existing joint venture arrangements are
not amended to add new Obligations other than in a manner expressly permitted
hereunder.
2. The Grantors agree, on behalf of themselves and on behalf of each
Affiliated Party, that in the event any Grantor or any Affiliated Party desires
to purchase any Obligations, such Grantor or such Affiliated Party, as
applicable, shall not purchase such Obligations until the Lender or appropriate
Cargill Venturer shall have been given the opportunity to exercise its exclusive
right to finance or invest in the purchase of such Obligations pursuant to the
terms of this Agreement and a Finance Agreement. Thereafter, the Financier (as
defined below) shall accept or reject such Finance Request (as defined below)
within 5 days in accordance with the provisions of the applicable Finance
Agreement. Failure to accept such a request within 5 days in accordance with the
provisions of the applicable Finance Agreement shall be deemed a rejection. The
economic terms pertaining to advance rates, equity participations and residual
sharing arrangements with respect to classes of transactions shall be as set
forth on Exhibit A attached hereto; provided, however, that the Lender, or the
appropriate Cargill Venturer, in its sole discretion, may agree to economic
terms more favorable to the Grantor or the Affiliated Party on a
transaction-by-transaction basis.
3. In the event that any of the Grantors or any Affiliated Party
desires to purchase any Obligations, the Grantors shall cause the appropriate
Borrower or NCO Venturer (a "Purchaser") that is the proposed Purchaser to
provide to the Lender or the appropriate Cargill Venturer (a "Financier") with
respect to such Obligations a request ("Finance Request") and a related bid
package in accordance with the provisions of the applicable Finance Agreement.
Thereafter, the Financier shall accept or reject such Finance Request within 5
days in accordance with the provisions of the applicable Finance Agreement.
Failure to accept such a request within 5 days in accordance with the provisions
of the applicable Finance Agreement shall be deemed a rejection. If the
Financier accepts such Finance Request, in the case of a transaction subject to
a Credit Agreement and the Borrower is the winning bidder and elects to close on
the purchase, (i) the Borrower shall borrow thereunder in its own name and
acquire the assets therein described in its own name or (ii) the Borrower shall
request that the Lender enter into a new set of loan documents with a newly
2
created entity owned by the owners of the Borrower (herein, a "New Borrower"),
on substantially the same terms and conditions as the loan documents
contemplated by the existing Credit Agreement for NCOP Capital or hereby and,
upon consummation of the execution and delivery of such new loan documents in
form and content acceptable to the Lender (the "New Loan Documents"),
satisfaction of all terms and conditions for borrowing thereunder, the Lender
shall permit the New Borrower to satisfy the obligations of the Grantors
hereunder with respect to such accepted Finance Request. (Upon entering into a
Credit Agreement, a New Borrower shall join in this Agreement by executing and
delivering to Lender a joinder agreement in the form of Exhibit B attached
hereto.) The Grantors shall reimburse the Lender for all costs and expenses,
including fees and disbursements of counsel to the Lender, incurred in
connection with negotiation, preparation and delivery of the New Loan Documents,
which amounts shall be due and payable upon demand of the Lender and shall not
be paid from the proceeds of assets acquired. If the Financier accepts such
Finance Request, in the case of a transaction subject to a Joint Venture
arrangement and the Joint Venture is the winning bidder and elects to close on
the purchase, (i) the appropriate Joint Venture shall acquire the assets therein
described in its own name or (ii) affiliates of Lender and Parent shall enter
into a new Joint Venture Agreement in order to form a newly created Joint
Venture (herein, a "New Joint Venture"), on substantially the same terms and
conditions contemplated by attached Exhibit A or otherwise hereby and, upon
consummation of the execution and delivery of such new Joint Venture documents
in form and content acceptable to the respective Joint Venturers (the "New Joint
Venture Documents"), satisfaction of all terms and conditions for a purchase
thereunder, the Cargill Venturer shall permit the New Joint Venturer to satisfy
the obligations of the Grantors hereunder with respect to such accepted Finance
Request. (Upon entering into a Joint Venture Agreement, a New Joint Venturer
shall join in this Agreement by executing and delivering to Lender a joinder
agreement in the form of Exhibit B attached hereto.) If the Financier rejects a
Finance Request, thereafter any Grantor or any Affiliated Party (other than an
existing Borrower or NCO Joint Venturer) may purchase such Obligations with its
own funds, funds from the NCOG's credit facilities or may obtain financing to
purchase such Obligations from another party, provided the economic terms of
such requested financing are no more favorable to such other party than those
permitted to be offered to the Financier pursuant to the Finance Request
submitted to the Financier with respect to such Obligations. A purchase
completed in accordance with the requirements of this paragraph shall be
referred to as a "Complying Purchase."
4. In a circumstance where the Parent or an Affiliated Party (other
than a Borrower or existing NCO Venturer) desires to purchase Obligations
without first complying with the requirements for a Complying Purchase, such
Parent or Affiliated Party, as applicable, may do so provided that it shall:
(a) notify the appropriate Lender or Cargill Venturer in writing
prior to such purchase, which notice shall include a description of the
Obligations to be purchased and the purchase price and estimated
purchase expenses for such Obligations;
(b) purchase such Obligations pursuant to a purchase agreement (the
"Purchase Agreement") that is fully assignable to the appropriate
Borrower or NCO Venturer;
3
(c) immediately offer to assign all of such purchaser's, right,
title and interest in and to such Obligations, the Purchase Agreement
and any UCC-1 financing statement or other security received in
connection therewith to the appropriate Purchaser pursuant to an
assignment agreement (the "Assignment Agreement") under which the
Parent or such Affiliated Party shall represent and warrant that (1)
the Parent or Affiliated Party, as applicable, has not conducted any
collection activities outside the ordinary course of business with
respect to the Obligations purchased under the Purchase Agreement, and
(2) any amount paid by the Purchaser to the Parent or Affiliated Party,
as applicable, in connection with the execution and delivery of the
Assignment Agreement contains no administrative expense or other fee in
favor of the Parent or Affiliated Party, as applicable, and such amount
does not, when aggregated with all amounts still owing to the seller
under the Purchase Agreement, exceed the purchase price and estimated
expenses set forth in the notice in (a) above;
(d) cause a Purchaser or a New Borrower or New Joint Venture to
comply with the requirements for a Complying Purchase above;
(e) upon the receipt by a Purchaser or a New Borrower or New Joint
Venture of an accepted Finance Request with respect thereto, properly
execute and deliver the Assignment Agreement and all other documents
required to properly assign all such purchaser's right, title and
interest in and to (i) such Obligations free of all liens, claims or
other encumbrances, (ii) the Purchase Agreement and (iii) any UCC-1
financing statement or other security received in connection therewith,
in each case, to the applicable Purchaser, New Borrower or New Joint
Venturer (it being understood and agreed that, in connection with any
such transaction, the agreements shall provide that the Financier and
each other applicable party receives all of the economic benefits to
which it would have been entitled had the Obligations been initially
acquired through a Complying Purchase);
(f) at all times prior to the Financier's rejection of a Finance
Request in accordance with the applicable Finance Agreement with
respect thereto, treat such Obligations as held in trust for the
applicable Purchaser and not as the Parent's or Affiliated Party's
exclusive property, including, without limitation conducting no
collection activities outside the ordinary course of business with
respect thereto;
Provided, that, any financing obtained by the Parent or Affiliated
Party with respect to any Obligations purchased by the Parent or an
Affiliated Party in connection with the above subparagraphs (a) through
(f) subsequent to the Financier's rejection of a Finance Request
submitted in connection therewith may not be requested on economic
terms more favorable to the lender(s) than those permitted to be
offered to the Financier pursuant to the Finance Request so rejected.
5. Notwithstanding anything to the contrary contained herein, this
Agreement may be terminated by Grantors prior to the Termination Date if either:
(a) all of the following conditions precedent shall have been
satisfied:
4
(1) Not less than twenty-four (24) calendar months shall have
elapsed since the date of this Agreement;
(2) There shall have occurred, at any time after the date of
this Agreement, a "change of control" which, for the purposes of
this Agreement, means any event, circumstance or occurrence that
results in a person or entity other than Xxxxxxx X. Xxxxxxx or any
affiliate of Xxxxxxx X. Xxxxxxx owning more than fifty percent (50%)
of the issued and outstanding equity interests in NCOG, its
successors and assigns;
(3) NCOG, its successors and assigns, shall have requested that
the Lender or its affiliates terminate their agreements to consider
making any future loans under any Credit Agreement or investments
under any Joint Venture Agreement;
(4) NCOG, its successors and assigns, shall have agreed to pay
or cause the Borrowers and NCO Venturers to pay a termination fee
(the "Termination Fee") equal to the product of (y) $250,000 and (z)
the number of calendar months (or portion thereof) remaining between
the effective date of any such termination and the Termination Date,
which Termination Fee shall be secured by all collateral securing
any obligations of any Borrower under any Credit Agreement and the
NCO Venturers' interest in any assets of any Joint Venture and
payable from (x) proceeds of such collateral which would otherwise
be allocated to a Borrower under a Credit Agreement or an NCO
Venturer under a Joint Venture Agreement, if available, or (y) other
funds of the Borrowers, the NCO Venturers or NCOG; and
(5) NCOG, its successors and assigns, and/or the Borrower(s) and
NCO Venturers shall have executed and delivered to the Lender a
promissory note or notes evidencing the obligation to pay the
Termination Fee, which shall provide for monthly payments of
$250,000 each, commencing on the first day of the first month
following the effective date of any such termination and continuing
thereafter until paid in full and each Borrower and NCO Venturer not
joining in such note or notes shall have delivered to the Lender its
irrevocable guaranty of payment of such promissory note(s), each in
form and content acceptable to the Lender.
Or
(b) by June 30, 2006: (1) an affiliate of Borrower ("RMA Portfolio
Buyer") has not consummated the purchase of certain portfolios (such
portfolios, collectively, the "RMA Portfolio") owned by Risk Management
Alternatives, Inc. ("RMA") or its affiliates, which RMA Portfolio is
currently financed by Lender or an affiliate of Lender (for purposes
hereof, "RMA Lender"), or (2) RMA Lender has not entered into that
certain Consent and Acknowledgment among RMA Lender, RMA and Risk
Management Alternatives Portfolio Services, LLC, in conjunction with
the sale of the RMA Portfolio to the RMA Portfolio Buyer (the "Consent
5
and Acknowledgment"), which provides that the Contingent Payment (as
defined in the Consent and Acknowledgment) payable to the RMA Lender as
part of the Final Distribution (as defined in the Consent and
Acknowledgment) shall be $4,000,000, or (3) Lender has not agreed to
finance the purchase of the RMA Portfolio by the RMA Portfolio Buyer
pursuant to the terms of the Credit Agreement with NCOP Capital as
amended as the date hereof, in which case the Grantors may terminate
this Agreement without owing any termination fee upon written notice to
Lender (the date such notice is delivered to Lender, the "Early
Termination Date"); provided, however, that:
(1) the applicable Grantors set forth below shall pay
to Lender, and the Lender shall pay to such Grantors, the
amount of compensation lost by the other as a result of
amendments to the Credit Agreements as contemplated hereby and
by that certain letter agreement between Lender and NCO
Financial Systems, Inc. dated June 30, 2005 (collectively, the
"Amended Credit Agreements"), which compensation shall be
payable on the Early Termination Date and calculated as
follows:
(i) NCO Financial Systems, Inc. shall pay to
Lender $164,000 representing the amount paid by Lender
to it pursuant to the referenced letter agreement;
(ii) The Grantors shall pay to Lender an amount
equal to the termination fee, if any, that would have
been due Lender under the Original Agreement had this
Agreement not replaced the Original Agreement;
(iii) Each Borrower or Affiliated Party (as
applicable) shall pay to Lender the amount of any
residual payment Lender would have received with
respect to all loans made by Lender to such Borrower or
Affiliated Party from and after July 1, 2005
(collectively, the "Post-Amendment Loans") as if
Lender's Contingent Payment Percentage had been
thirty-five percent (35%), calculated through the Early
Termination Date;
(iv) Lender shall pay each Borrower's or
Affiliated Party's (as applicable) equityholder an
amount equal to the difference by which eighty percent
(80%) of the Total Cost of each Asset Pool acquired
with a Post-Amendment Loan exceeds the amount funded by
Lender with regard to such Asset Pool (the "Funding
Difference"); and
(v) Lender shall pay each Borrower's or
Affiliated Party's (as applicable) equityholder an
amount equal to the interest that would have accrued on
the Funding Difference with respect to each Asset Pool
as if interest had accrued at the rates provided in the
Credit Agreements as they existed prior to June 30,
2005 (the Base Rate plus three and a quarter percent
(3.25%)) (the "Prior Rate"); and
6
(2) effective as of the Early Termination Date, (A)
Lender shall recalculate and reset the outstanding principal
balance of each Post-Amendment Loan by crediting all
collections received with regard to such Post-Amendment Loan
as if Lender had funded eighty percent (80%) and the
applicable Borrower or Affiliated Party had funded twenty
percent (20%) of the Total Costs of the related Asset Pool and
interest on all such funding had accrued at the Prior Rate
through the Early Termination Date (which recalculation and
resetting will result in the outstanding principal balance of
each Post-Amendment Loan being higher than it would have been
had Lender and the applicable Borrower or Affiliated Party
funded the respective percentages of the Total Cost of such
Asset Pool set forth in the Amended Credit Agreements and
accrued interest at the rate set forth therein), and (B) the
terms of each Post-Amendment Loan shall be deemed amended
during the remaining portion of the term of such
Post-Amendment Loan such that the respective percentages of
the Total Cost of such Asset Pool shall be as set forth in
clause (A) above and such that (y) the interest rate
applicable to such Post-Amendment Loan shall be the Prior
Rate, and (z) the Contingent Payment Percentage applicable to
such Post-Amendment Loan shall be thirty-five percent (35%).
The parties acknowledge and agree that the purpose of the preceding paragraph
5(b) is to compensate each party upon termination of this Agreement in a manner
in which such party would have been compensated had the Amended Credit
Agreements never taken effect and, accordingly, the parties agree that if, due
to circumstances not reasonably anticipated by a party as of the date hereof,
the operation of paragraph 5(b) fails to so compensate a party, the parties
shall negotiate in good faith with the goal of providing such compensation to
such party, provided that nothing contained in this paragraph shall impair or
otherwise limit the right of the Grantors to effect a termination of this
Agreement so long as the Grantors make the payments to Lender described in
paragraph 5(b) (which payments may be made without prejudicing the rights of the
Grantors under this paragraph).
6. The Grantors, by signing below, hereby acknowledge and agree that
any failure by the Grantors or any Affiliated Party (including future parties to
this Agreement) to comply with the terms and conditions of this Agreement shall
constitute an event of default under all Finance Agreements. The Lender and the
Cargill Venturers shall be entitled to seek relief pursuant to the Finance
Agreements and shall be entitled to independently seek relief for damages under
this Agreement, either in equity or at law, against any Grantor, or all
Grantors; provided, however, that the Lender and Cargill Venturers shall not
seek money damages against any Grantor if such Grantor (i) has not breached a
covenant or agreement under this Agreement, and (ii) is not an Affiliated Party
of the party which has breached such covenant or agreement. Each party (for
itself and its affiliates) hereby waives any right to claim or recover any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages.
7
7. The parties acknowledge that they intend to promptly enter into
amendments to certain of their existing agreements, and to enter into certain
new agreements in connection with new purchases of Obligations (including,
without limitation, agreements to form and fund new Joint Ventures), which
amendments and new agreements will be consistent with the terms and provisions
of this Agreement and the other amendments and side letters entered into on this
date. The parties agree to negotiate all such amendments and new agreements in
good faith and to promptly enter into amendments to the Credit Agreements for
Lakes and NCOP I, which amendments will contain modifications conforming the
relevant provisions thereof to the modifications contained in the amendment to
the Credit Agreement for NCOP Capital entered into on this date.
8. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts taken together, shall
constitute but one and the same instrument. This Agreement shall be binding upon
the Grantors and their respective representatives, successors and assigns.
[Signature page follows]
8
By signing this Agreement below, the signatories agree to be bound by
its terms and conditions as of the date first written above.
Very truly yours,
NCOP LAKES, INC. NCO FINANCIAL SYSTEMS, INC.
By_____________________________________________ By__________________________
Its__________________________________________ Its_______________________
NCO PORTFOLIO MANAGEMENT, INC. NCO GROUP, INC.
By_____________________________________________ By__________________________
Its__________________________________________ Its_______________________
NCOP CAPITAL, INC. NCOP CAPITAL I, LLC.
By_____________________________________________ By__________________________
Its__________________________________________ Its_______________________
Accepted and agreed to as of June 30, 2005.
CFSC CAPITAL CORP. XXXIV
By_____________________________________________
Its__________________________________________
Signature Page to Exclusivity Agreement
9
