UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 10, 2012
ENCORE CAPITAL GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 000-26489 | 48-1090909 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 3111 Camino Del Rio North, Suite 1300, San Diego, California | 92108 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(877) 445-4581
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On April 10, 2012, Encore Capital Group, Inc. (the “Company”) entered into an amendment to the Credit Agreement dated as of February 8, 2010 (as previously amended by (i) Amendment No. 1 dated as of September 20, 2010, (ii) Amendment No. 2 dated as of September 21, 2010 and (iii) Amendment No. 3 dated as of March 25, 2011), by and among the Company, the financial institutions listed on the signature pages thereto, and JPMorgan Chase Bank, N.A., as collateral agent and administrative agent (the “Amendment”). The Amendment adds new lenders and amends certain provisions of the Credit Agreement to (a) increase the aggregate revolving loan commitment by $115 million from $410.5 million to $525.5 million and (b) increase the accordion feature by an additional $100 million thereby resulting in a maximum of $625.5 million that can be borrowed under the facility.
The foregoing summary of the Amendment does not comport to be complete and is qualified in its entirety by reference to the complete text of the Amendment, a copy of which is filed as Exhibit 10.1 to this report and incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-balance Sheet Arrangement of a Registrant. |
The information provided above under Item 1.01 is hereby incorporated in this Item 2.03 by reference.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On April 12, 2012 Mr. Richard A. Mandell notified the Company that he will not be standing for re-election for the coming year. Mr. Mandell’s service as a director will end effective the date of the annual meeting of stockholders to be held in 2012, at which time all other directors will stand for re-election. Mr. Mandell’s decision is not due to any disagreement with the Company.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit |
Description | |
| 10.1 | Amendment No. 4, dated as of April 10, 2012, to Credit Agreement, dated as of February 8, 2010, by and among the Company, the financial institutions listed on the signature pages thereto, and JPMorgan Chase Bank, N.A. as collateral agent and administrative agent. | |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ENCORE CAPITAL GROUP, INC. | ||
| Date: April 16, 2012 | /s/ Paul Grinberg | |
| Paul Grinberg | ||
| Executive Vice President, Chief Financial Officer and Treasurer | ||
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Exhibit Index
| Exhibit |
Description | |
| 10.1 | Amendment No. 4, dated as of April 10, 2012, to Credit Agreement, dated as of February 8, 2010, by and among the Company, the financial institutions listed on the signature pages thereto, and JPMorgan Chase Bank, N.A. as collateral agent and administrative agent. | |
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 4
Dated as of April 10, 2012
to
CREDIT AGREEMENT
Dated as of February 8, 2010
THIS AMENDMENT NO. 4 (“Amendment”) is made as of April 10, 2012 by and among Encore Capital Group, Inc. (the “Borrower”), the financial institutions listed on the signature pages hereof (the “Lenders”) and JPMorgan Chase Bank, N.A. (“JPMorgan”), as Collateral Agent (the “Collateral Agent”) and as Administrative Agent (the “Administrative Agent” and, together with the Collateral Agent, the “Agents”), under that certain Credit Agreement dated as of February 8, 2010 by and among the Borrower, the Lenders and the Agents (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent agree to certain amendments with respect to the Credit Agreement;
WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to such amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders party hereto and the Administrative Agent have agreed to enter into this Amendment.
1. Amendments to Credit Agreement. Effective as of the date of satisfaction of the conditions precedent set forth in Section 3 below, the Credit Agreement is amended as follows:
(a) Section 1.1 of the Credit Agreement is amended to add the following definition in its appropriate alphabetical order therein:
“ “Amendment No. 4 Effective Date” means April 10, 2012.”
(b) Section 1.1 of the Credit Agreement is further amended to amend and restate the definition of “Aggregate Revolving Loan Commitment” set forth therein in its entirety as follows:
“ “Aggregate Revolving Loan Commitment” means the aggregate of the Revolving Loan Commitments of all the Lenders, as may be increased or reduced from time to time pursuant to the terms hereof. The Aggregate Revolving Loan Commitment as of the Amendment No. 4 Effective Date is Five Hundred Twenty Five Million Five Hundred Thousand and 00/100 Dollars ($525,500,000).”
(c) Section 2.5.3 of the Credit Agreement is hereby amended to amend and restate the first sentence thereof in its entirety as follows:
“At any time, but not more than two (2) times during the period commencing on the Amendment No. 4 Effective Date and ending on the three-year anniversary of the Closing Date and not more than three (3) times during each successive one-year anniversary of the Closing Date, the Borrower may request that the Aggregate Revolving Loan Commitment be increased; provided that (A) the Aggregate Revolving Loan Commitment shall at no time exceed $625,500,000 minus the aggregate amount of all reductions in the Aggregate Revolving Loan Commitment previously made pursuant to Section 2.5.2; (B) such request shall be in an amount not less than $5,000,000; and (C) the aggregate amount of all such increases effected on or after the Amendment No. 4 Effective Date shall not exceed $100,000,000.”
(d) The Revolving Loan Commitments of certain of the Lenders (the “Increasing Lenders”) are hereby increased as set forth in the Commitment Schedule on Annex A attached hereto. Certain financial institutions not party to the Credit Agreement prior to the date hereof are identified as New Lenders on Annex A attached hereto (the “New Lenders”). Upon the effectiveness hereof and the execution hereof by each New Lender, such New Lender shall constitute a “Lender” for all purposes under the Loan Documents. Accordingly, the Commitment Schedule attached to the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Annex A. The Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurodollar Loans and the reallocation described in Section 2 below (unless such compensation is waived by such Lender in its sole discretion), in each case on the terms and in the manner set forth in Section 3.4 of the Credit Agreement.
2. Reallocations. The Administrative Agent shall (and the Lenders party hereto authorize the Administrative Agent to) make such reallocations of the Aggregate Outstanding Revolving Credit Exposure under the Credit Agreement as are necessary in order that the Revolving Credit Exposure with respect to such Lender reflects such Lender’s Revolving Loan Pro Rata Share of the Aggregate Outstanding Revolving Credit Exposure under the Credit Agreement as amended hereby.
3. Conditions of Effectiveness. The effectiveness of this Amendment is subject to the conditions precedent that (a) the Administrative Agent shall have received (i) counterparts of this Amendment duly executed by the Borrower, each Increasing Lender, each New Lender, the Required Lenders, the Administrative Agent and the Collateral Agent and the Consent and Reaffirmation attached hereto duly executed by the Guarantors and (ii) such other opinions, instruments and documents as are reasonably requested by the Administrative Agent and the Collateral Agent and (b) the Borrower shall have paid, to the extent invoiced, all fees and expenses of the Administrative Agent and its affiliates (including attorneys’ fees and expenses) in connection with this Amendment and the other Loan Documents.
4. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby constitute legal, valid and binding obligations of the Borrower and are enforceable against the Borrower in accordance with their terms.
(b) As of the date hereof and giving effect to the terms of this Amendment, (i) there exists no Default or Unmatured Default and (ii) the representations and warranties contained in Article V
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of the Credit Agreement, as amended hereby, are true and correct, except for representations and warranties made with reference solely to an earlier date.
5. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
(c) Other than as expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
6. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws of the State of New York, but giving effect to federal laws applicable to national banks.
7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
| ENCORE CAPITAL GROUP, INC., | ||
| as the Borrower | ||
| By: | /s/ J. Brandon Black | |
| Name: | J. Brandon Black | |
| Title: | President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| JPMORGAN CHASE BANK, N.A., | ||
| as Administrative Agent and as a Lender | ||
| By: | /s/ Anna C. Araya | |
| Name: | Anna C. Araya | |
| Title: | Vice President | |
| JPMORGAN CHASE BANK, N.A., | ||
| as Collateral Agent | ||
| By: | /s/ Anna C. Araya | |
| Name: | Anna C. Araya | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| BANK OF AMERICA, N.A., as a Lender | ||
| By: | /s/ Christopher D. Pannacciulli | |
| Name: | Christopher D. Pannacciulli | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| FIFTH THIRD BANK, as a Lender | ||
| By: | /s/ Gregory J. Vollmer | |
| Name: | Gregory J. Vollmer | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| SUNTRUST BANK, as a Lender | ||
| By: | /s/ Douglas O’Bryan | |
| Name: | Douglas O’Bryan | |
| Title: | Director | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| MORGAN STANLEY SENIOR FUNDING, INC., as a Lender | ||
| By: | /s/ Harry Comninellis | |
| Name: | Harry Comninellis | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| CALIFORNIA BANK & TRUST, as a Lender | ||
| By: | /s/ Michael G. Powell | |
| Name: | Michael G. Powell | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| COMPASS BANK, as a Lender | ||
| By: | /s/ Mark Sunderland | |
| Name: | Mark Sunderland | |
| Title: | Senior Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| ISRAEL DISCOUNT BANK OF NEW YORK, as a Lender | ||
| By: | /s/ Kenneth Lipke | |
| Name: | Kenneth Lipke | |
| Title: | First Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| BANK LEUMI, USA, as a Lender | ||
| By: | /s/ Vandit Jan-Engel | |
| Name: | Vandit Jan-Engel | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| MANUFACTURERS BANK, as a Lender | ||
| By: | /s/ Maureen Kelly | |
| Name: | Maureen Kelly | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| ING CAPITAL LLC, as a Lender | ||
| By: | /s/ Mary Forstner | |
| Name: | Mary Forstner | |
| Title: | Director | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| UNION BANK, N.A., as a Lender | ||
| By: | /s/ Edmund Ozorio | |
| Name: | Edmund Ozorio | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a New Lender | ||
| By: | /s/ Mary Conners | |
| Name: | Mary Conners | |
| Title: | Director | |
| By: | /s/ Kevin Tanzer | |
| Name: | Kevin Tanzer | |
| Title: | Director | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| FIRST BANK, as a New Lender | ||
| By: | /s/ Susan J. Pepping | |
| Name: | Susan J. Pepping | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| AMALGAMATED BANK, as a New Lender | ||
| By: | /s/ Jackson Eng | |
| Name: | Jackson Eng | |
| Title: | First Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
| CATHAY BANK, CALIFORNIA BANKING CORPORATION, as a New Lender | ||
| By: | /s/ Shahid Kathrada | |
| Name: | Shahid Kathrada | |
| Title: | Vice President | |
Signature Page to Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010
ANNEX A
COMMITMENT SCHEDULE
| Lender1 |
Amount of Revolving Loan Commitment |
|||
| JPMorgan Chase Bank, N.A. |
$ | 55,000,000 | ||
| Bank of America, N.A. |
$ | 55,000,000 | ||
| Deutsche Bank Trust Company Americas* |
$ | 50,000,000 | ||
| SunTrust Bank |
$ | 50,000,000 | ||
| ING Capital LLC |
$ | 45,000,000 | ||
| California Bank & Trust |
$ | 40,000,000 | ||
| Fifth Third Bank |
$ | 40,000,000 | ||
| Morgan Stanley Senior Funding, Inc. |
$ | 40,000,000 | ||
| Citibank, N.A. |
$ | 33,000,000 | ||
| Bank Leumi USA |
$ | 20,000,000 | ||
| Compass Bank, successor in interest to Guaranty Bank |
$ | 20,000,000 | ||
| Israel Discount Bank of New York |
$ | 20,000,000 | ||
| Amalgamated Bank* |
$ | 15,000,000 | ||
| First Bank* |
$ | 15,000,000 | ||
| Cathay Bank, California Banking Corporation* |
$ | 10,000,000 | ||
| Union Bank, N.A. |
$ | 10,000,000 | ||
| Manufacturers Bank |
$ | 7,500,000 | ||
| TOTAL |
$ | 525,500,000 | ||
| 1 | Lenders marked with an “*” are New Lenders. |
CONSENT AND REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the foregoing Amendment No. 4 to the Credit Agreement dated as of February 8, 2010 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) by and among Encore Capital Group, Inc. (the “Borrower”), the financial institutions from time to time party thereto (the “Lenders”) and JPMorgan Chase Bank, N.A., in its individual capacity as a Lender and in its capacities as contractual representative (the “Administrative Agent”) and as collateral agent (the “Collateral Agent”), which Amendment No. 4 is dated as of April 10, 2012 (the “Amendment”). Capitalized terms used in this Consent and Reaffirmation and not defined herein shall have the meanings given to them in the Credit Agreement. Without in any way establishing a course of dealing by the Administrative Agent, the Collateral Agent or any Lender, each of the undersigned consents to the Amendment and reaffirms the terms and conditions of the Guaranty Agreement, the Pledge and Security Agreement and any other Loan Document executed by it and acknowledges and agrees that such agreement and each and every such Loan Document executed by the undersigned in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed.
All references to the Credit Agreement contained in the above-referenced documents shall be a reference to the Credit Agreement as so modified by the Amendment and as each of the same may from time to time hereafter be amended, modified or restated.
Dated: April 10, 2012
[Signature Page Follows]
| MIDLAND CREDIT MANAGEMENT, INC. | ASCENSION CAPITAL GROUP, INC. | |||||||
| By: | /s/ J. Brandon Black |
By: | /s/ J. Brandon Black | |||||
| Name: | J. Brandon Black | Name: | J. Brandon Black | |||||
| Title: | President | Title: | President | |||||
| MIDLAND PORTFOLIO SERVICES, INC. | MIDLAND FUNDING LLC | |||||||
| By: | /s/ J. Brandon Black |
By: | /s/ J. Brandon Black | |||||
| Name: | J. Brandon Black | Name: | J. Brandon Black | |||||
| Title: | President | Title: | President | |||||
| MIDLAND INDIA LLC | MIDLAND INTERNATIONAL LLC | |||||||
| By: | /s/ Glen Freter |
By: | /s/ J. Brandon Black | |||||
| Name: | Glen Freter | Name: | J. Brandon Black | |||||
| Title: | Treasurer | Title: | President | |||||
| MIDLAND FUNDING NCC-2 CORPORATION | MRC RECEIVABLES CORPORATION | |||||||
| By: | /s/ J. Brandon Black |
By: | /s/ J. Brandon Black | |||||
| Name: | J. Brandon Black | Name: | J. Brandon Black | |||||
| Title: | President | Title: | President | |||||
Signature Page to Consent and Reaffirmation
Amendment No. 4
Encore Capital Group, Inc.
Credit Agreement dated as of February 8, 2010