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Title: |
Credit Agreement |
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Entities: |
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Date: |
2007 |
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Size: |
Preview shows 67KB of 435KB total |
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Price: |
$55 |
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ID: |
#2909507 |
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Start of Preview |
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$565,000,000
CREDIT AGREEMENT
Dated as of November 15, 2006
Among
COLLECT HOLDINGS, INC.
as Parent
COLLECT ACQUISITION CORP.
which on the Closing Date shall be merged with and into
NCO GROUP, INC.
(with NCO Group, Inc. surviving such merger)
and
NCO FINANCIAL SYSTEMS, INC.
as Borrowers
and
THE INITIAL LENDERS, ISSUING BANKS AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Issuing Banks and Swing Line Bank
and
MORGAN STANLEY & CO. INCORPORATED
as Collateral Agent
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent
and
CITIZENS? BANK OF PENNSYLVANIA
and
FIFTH THIRD BANK
and
NATIONAL CITY BANK
as Co-Documentation Agents
MORGAN STANLEY SENIOR FUNDING, INC.
and
J.P. MORGAN SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
T A B L E O F C O N T E N T S
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Section |
Page | |||
| ARTICLE I | ||||
| DEFINITIONS AND ACCOUNTING TERMS | ||||
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SECTION 1.01. |
Certain Defined Terms | 2 | ||
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SECTION 1.02. |
Computation of Time Periods; Other Definitional Provisions | 37 | ||
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SECTION 1.03. |
Accounting Terms | 37 | ||
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SECTION 1.04. |
Currency Equivalents Generally | 37 | ||
| ARTICLE II | ||||
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AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT |
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SECTION 2.01. |
The Advances and the Letters of Credit | 38 | ||
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SECTION 2.02. |
Making the Advances | 39 | ||
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SECTION 2.03. |
Issuance of and Drawings and Reimbursement Under Letters of Credit | 42 | ||
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SECTION 2.04. |
Repayment of Advances | 44 | ||
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SECTION 2.05. |
Termination or Reduction of the Commitments | 46 | ||
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SECTION 2.06. |
Prepayments | 47 | ||
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SECTION 2.07. |
Interest | 48 | ||
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SECTION 2.08. |
Fees | 49 | ||
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SECTION 2.09. |
Conversion of Advances | 50 | ||
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SECTION 2.10. |
Increased Costs, Etc. | 51 | ||
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SECTION 2.11. |
Payments and Computations | 52 | ||
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SECTION 2.12. |
Taxes | 53 | ||
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SECTION 2.13. |
Sharing of Payments, Etc. | 56 | ||
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SECTION 2.14. |
Use of Proceeds | 57 | ||
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SECTION 2.15. |
Defaulting Lenders | 57 | ||
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SECTION 2.16 |
. Evidence of Debt | 60 | ||
|
SECTION 2.17. |
Incremental Facilities | 60 | ||
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SECTION 2.18. |
Designation of Additional Borrowers | 63 | ||
| ARTICLE III | ||||
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CONDITIONS TO EFFECTIVENESS AND OF LENDING AND ISSUANCES OF LETTERS OF CREDIT |
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SECTION 3.01. |
Conditions Precedent | 63 | ||
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SECTION 3.02. |
Conditions Precedent to Each Borrowing and Issuance | 69 | ||
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SECTION 3.03. |
Determinations Under Section 3.01 | 70 | ||
| ARTICLE IV | ||||
| REPRESENTATIONS AND WARRANTIES | ||||
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SECTION 4.01. |
Representations and Warranties of the Borrower | 70 | ||
| ARTICLE V | ||||
| COVENANTS OF THE PARENT | ||||
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SECTION 5.01. |
Affirmative Covenants | 77 | ||
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SECTION 5.02. |
Negative Covenants | 83 | ||
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SECTION 5.03. |
Reporting Requirements | 100 | ||
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SECTION 5.04. |
Financial Covenants | 104 | ||
| ARTICLE VI | ||||
| EVENTS OF DEFAULT | ||||
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SECTION 6.01. |
Events of Default | 106 | ||
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SECTION 6.02. |
Actions in Respect of the Letters of Credit upon Default | 109 | ||
| ARTICLE VII | ||||
| THE AGENTS | ||||
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SECTION 7.01. |
Authorization and Action | 110 | ||
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SECTION 7.02. |
Agents? Reliance, Etc. | 111 | ||
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SECTION 7.03. |
MSSF, MS&Co and Affiliates | 112 | ||
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SECTION 7.04. |
Lender Party Credit Decision | 112 | ||
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SECTION 7.05. |
Indemnification | 112 | ||
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SECTION 7.06. |
Successor Agents | 113 | ||
| ARTICLE VIII | ||||
| GUARANTY | ||||
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SECTION 8.01. |
Guaranty; Limitation of Liability | 114 | ||
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SECTION 8.02. |
Guaranty Absolute | 115 | ||
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SECTION 8.03. |
Waivers and Acknowledgments | 116 | ||
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SECTION 8.04. |
Subrogation | 117 | ||
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SECTION 8.05. |
Guaranty Supplements | 117 | ||
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SECTION 8.06. |
Subordination | 118 | ||
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SECTION 8.07. |
Continuing Guaranty; Assignments | 118 | ||
ii
| ARTICLE IX | ||||
| MISCELLANEOUS | ||||
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SECTION 9.01. |
Amendments, Etc. | 119 | ||
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SECTION 9.02. |
Notices, Etc. | 120 | ||
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SECTION 9.03. |
No Waiver; Remedies | 122 | ||
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SECTION 9.04. |
Costs and Expenses | 122 | ||
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SECTION 9.05. |
Right of Set-off | 124 | ||
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SECTION 9.06. |
Binding Effect | 124 | ||
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SECTION 9.07. |
Assignments and Participations | 124 | ||
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SECTION 9.08. |
Execution in Counterparts | 128 | ||
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SECTION 9.09. |
No Liability of the Issuing Banks | 128 | ||
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SECTION 9.10. |
Confidentiality | 129 | ||
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SECTION 9.11. |
Release of Collateral | 129 | ||
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SECTION 9.12. |
Replacement of Lenders | 129 | ||
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SECTION 9.13. |
Patriot Act Notice | 130 | ||
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SECTION 9.14. |
Jurisdiction, Etc. | 130 | ||
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SECTION 9.15. |
Governing Law | 131 | ||
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SECTION 9.16. |
Waiver of Jury Trial | 132 | ||
iii
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SCHEDULES |
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Schedule I |
- | Commitments and Applicable Lending Offices | ||
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Schedule II |
- | Subsidiary Guarantors | ||
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Schedule 4.01(a)(ii) |
- | Exceptions to Good Standing | ||
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Schedule 4.01(b) |
- | Loan Parties | ||
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Schedule 4.01(c) |
- | Subsidiaries | ||
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Schedule 4.01(e) |
- | Authorizations, Approvals, Actions, Notices and Filings | ||
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Schedule 4.01(g) |
- | Litigation | ||
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Schedule 4.01(q) |
- | Plans, Multiemployer Plans and Welfare Plans | ||
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Schedule 4.01(r) |
- | Environmental Disclosure | ||
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Schedule 4.01(u) |
- | Existing Debt | ||
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Schedule 4.01(v) |
- | Surviving Debt | ||
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Schedule 4.01(w) |
- | Liens | ||
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Schedule 4.01(x) |
- | Owned Real Property | ||
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Schedule 4.01(y)(i) |
- | Leased Real Property (Lessee) | ||
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Schedule 4.01(y)(ii) |
- | Leased Real Property (Lessor) | ||
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Schedule 4.01(z) |
- | Investments | ||
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Schedule 4.01(aa) |
- | Material Contracts | ||
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Schedule 5.02(t) |
- | Transactions with Affiliates |
| EXHIBITS | ||||
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Exhibit A-1 |
- | Form of Revolving Credit Note | ||
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Exhibit A-2 |
- | Form of Term B Note | ||
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Exhibit B |
- | Form of Notice of Borrowing | ||
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Exhibit C |
- | Form of Assignment and Assumption | ||
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Exhibit D |
- | Form of Security Agreement | ||
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Exhibit E |
- | Form of Subsidiary Guaranty Supplement | ||
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Exhibit F |
- | Form of Opinion of Counsel to the Loan Parties | ||
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Exhibit G |
- | Form of Mortgage | ||
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Exhibit H |
- | Form of Solvency Certificate | ||
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Exhibit J |
- | Form of Opinion of Counsel to the Loan Parties (Real Properties) |
iv
CREDIT AGREEMENT
CREDIT AGREEMENT (this ?Agreement?) dated as of November 15, 2006 among COLLECT ACQUISITION CORP., a Pennsylvania corporation (to be succeeded upon the Merger as the Surviving Corporation, the ?Initial Borrower?), NCO FINANCIAL SYSTEMS, INC., a Pennsylvania corporation (the ?Initial Subsidiary Borrower?), COLLECT HOLDINGS, INC., a Delaware corporation (the ?Parent?), the Subsidiary Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), the Issuing Banks (as hereinafter defined), the Swing Line Bank (as hereinafter defined), MORGAN STANLEY & CO. INCORPORATED (?MS&Co?), as collateral agent (together with any successor collateral agent appointed pursuant to Article VII, the ?Collateral Agent?) for the Secured Parties (as hereinafter defined), and MORGAN STANLEY SENIOR FUNDING, INC. (?MSSF?), as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the ?Administrative Agent? and, together with the Collateral Agent, the ?Agents?) for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Initial Borrower was organized by One Equity Partners II, L.P., a Cayman Islands limited partnership (the ?Sponsor?), to acquire control of NCO Group, Inc., a Pennsylvania corporation (the ?Company?).
(2) Pursuant to the Agreement and Plan of Merger dated July 21, 2006 (as amended (as defined in Section 1.02), to the extent permitted under the Loan Documents (as hereinafter defined), the ?Merger Agreement?) among the Parent, the Initial Borrower and the Company, the Initial Borrower has agreed to consummate a merger (the ?Merger?) with the Company in which the Company will be the surviving corporation (the ?Surviving Corporation?).
(3) The Initial Borrower has requested that, immediately upon the consummation of the Merger, the Lender Parties lend to the Surviving Corporation up to $465 million of Term B Advances (as hereinafter defined) and up to $10 million of Revolving Credit Advances (as hereinafter defined) to pay to the holders (other than the Initial Borrower) of the Company Stock (as hereinafter defined) the cash consideration for their shares in the Merger, pay transaction fees and expenses, refinance certain Existing Debt (as hereinafter defined) of the Company and that, from time to time, the Lender Parties lend to the Borrowers and issue Letters of Credit for the account of the Borrowers to provide working capital for the Surviving Corporation and its Subsidiaries and for other general corporate purposes. The Lender Parties have indicated their willingness to agree to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
?Additional Borrower? has the meaning specified in Section 2.18.
?Administrative Agent? has the meaning specified in the recital of parties to this Agreement.
?Administrative Agent?s Account? means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lender Parties from time to time.
?Advance? means a Term B Advance, a Revolving Credit Advance, a Swing Line Advance, a Letter of Credit Advance or an Advance under an Incremental Facility.
?Affiliate? means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term ?control? (including the terms ?controlling,? ?controlled by? and ?under common control with?) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
?Agents? has the meaning specified in the recital of parties to this Agreement.
?Agreement Value? means, for each Hedge Agreement, on any date of determination, an amount determined reasonably and in good faith by, (a) if the counterparty to such Hedge Agreement is a Hedge Bank that shall make such determination upon request by the Administrative Agent, such counterparty or (b) otherwise, the Administrative Agent, in each case equal to the amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to such counterparty in accordance with its terms as if (i) such Hedge Agreement was being terminated early on such date of determination, and (ii) such Loan Party or Subsidiary was the sole ?Affected Party?.
?Applicable Lending Office? means, with respect to each Lender Party, such Lender Party?s Domestic Lending Office in the case of a Base Rate Advance and such Lender Party?s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
?Applicable Margin? means (a) in respect of the Revolving Credit Facility, (i) for the first six months following the Effective Date, 2.00% per annum for Base Rate Advances and 3.00% per annum for Eurodollar Rate Advances and (ii) thereafter, a percentage per annum determined by reference to the Leverage Ratio as set forth below:
|
Leverage Ratio |
Base Rate Advances | Eurodollar Rate Advances | ||||
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Level I less than 3:1 |
1.50 | % | 2.50 | % | ||
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Level II 3:1 or greater, but less than 4:1 |
1.75 | % | 2.75 | % | ||
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Level III 4:1 or greater |
2.00 | % | 3.00 | % |
2
, (b) in respect of the Swing Line Facility, (i) for the first six months following the Effective Date, 2.00% per annum and (ii) thereafter a percentage per annum determined by reference to the Leverage Ratio as set forth above for Base Rate Advances, (c) in respect of the Term B Facility, (i) for the first six months following the Effective Date, 2.00% per annum for Base Rate Advances and 3.00% per annum for Eurodollar Rate Advances and (ii) thereafter a percentage per annum determined by reference to the Leverage Ratio as set forth below:
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