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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:
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(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 Marlin 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/Marlin, 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
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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 Ob
