UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________________________________________________________
FORM 10-K
(Mark One)
| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the fiscal year ended December 31, 2019 or
| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |||||
For the transition period from to .
COMMISSION FILE NUMBER: 000-26489
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation or organization) | (IRS Employer Identification No.) | |||||||
(Address of principal executive offices, including zip code)
(877 ) 445-4581
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class | Trading Symbol(s) | Name of Each Exchange on Which Registered | ||||||||||||
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| ☒ | Accelerated filer | ☐ | Non-accelerated filer | ☐ | Smaller reporting company | |||||||||||||||||||||||||||
| Emerging growth company | ||||||||||||||||||||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒
The aggregate market value of the voting stock held by non-affiliates of the registrant was approximately $1,037.5 million at June 28, 2019, based on the closing price of the common stock of $33.87 per share on such date, as reported by NASDAQ.
The number of shares of our Common Stock outstanding at February 19, 2020, was 31,097,865 .
Documents Incorporated by Reference
TABLE OF CONTENTS
| Page | |||||
PART I
Item 1—Business
Our Business
We are an international specialty finance company providing debt recovery solutions and other related services for consumers across a broad range of financial assets. We primarily purchase portfolios of defaulted consumer receivables at deep discounts to face value and manage them by working with individuals as they repay their obligations and work toward financial recovery. Defaulted receivables are consumers’ unpaid financial obligations to credit originators, including banks, credit unions, consumer finance companies and commercial retailers. Defaulted receivables may also include receivables subject to bankruptcy proceedings. We also provide debt servicing and other portfolio management services to credit originators for non-performing loans.
Through Midland Credit Management, Inc. and its domestic affiliates (collectively, “MCM”) we are a market leader in portfolio purchasing and recovery in the United States. Through Cabot Credit Management Limited (“CCM”) and its subsidiaries and European affiliates (collectively, “Cabot”) we are one of the largest credit management services providers in Europe and a market leader in the United Kingdom and Ireland. These are our primary operations.
We also have additional international investments and operations as we have explored new asset classes and geographies including: (1) our investments in non-performing loans in Colombia, Peru, Mexico and Brazil; and (2) an investment in Encore Asset Reconstruction Company (“EARC”) in India. We refer to these additional international operations as our Latin America and Asia-Pacific (“LAAP”) operations. In August 2019, we completed the sale of Baycorp, which specialized in the management of non-performing loans in Australia and New Zealand and was previously a component of LAAP.
To date, operating results from LAAP have not been significant to our total consolidated operating results. Our long-term growth strategy is focused on continuing to invest in our core portfolio purchasing and recovery business in the United States and United Kingdom and strengthening and developing our business in the rest of Europe. As a result, descriptions of our operations in Part I - Item 1 of this Form 10-K will focus primarily on MCM (United States) and Cabot (Europe) operations.
Throughout this Annual Report on Form 10-K, when we refer to our United States operations, we include accounts originated in the United States that are serviced through our operations centers in the United States, India and Costa Rica. When we refer to our international operations, we are referring to accounts originated outside of the United States. Those accounts are generally serviced in the country of origin.
Company Information
We were incorporated in Delaware in 1999. In June 2013, we completed our merger with Asset Acceptance Capital Corp., which was another leading provider of debt recovery solutions in the United States. In July 2013, by acquiring a majority ownership interest in the indirect holding company of CCM, Janus Holdings S.a r.l., we acquired control of CCM. In February 2014, CCM acquired Marlin Financial Group Limited, a leading acquirer of non-performing consumer debt in the United Kingdom. In August 2014, we acquired Atlantic Credit & Finance, Inc., which was a market leader in the United States in buying and collecting on freshly charged-off debt. In June 2015, CCM expanded in the United Kingdom by acquiring Hillesden Securities Ltd and its subsidiaries (“dlc”). In March 2016, we completed the divestiture of our membership interests in Propel Acquisition LLC and its subsidiaries, our tax lien business. In November 2017, CCM strengthened its debt servicing offerings with the acquisition of Wescot Credit Services Limited (“Wescot”), a leading U.K. contingency debt collection and BPO services company. In July 2018, we completed the purchase of all of the outstanding equity of CCM not owned by us. As a result, CCM became our wholly owned subsidiary.
Our headquarters is located in San Diego, California 92108 and our telephone number is (877) 445-4581. Our website address is www.encorecapital.com. The site provides access, free of charge, to relevant investor related information, such as our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments to those reports that are filed with or furnished to the Securities and Exchange Commission (“SEC”) pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, press releases, featured articles, an event calendar, and frequently asked questions. SEC filings are available on our Internet site as soon as reasonably practicable after being filed with, or furnished to, the SEC. Also available on our website are our Standards of Business Conduct and charters for the committees of our Board of Directors. We intend to disclose any amendment to, or waiver of, a provision of our Standards of Business Conduct on our website. The content of our Internet site is not incorporated by reference into this Annual Report on Form 10-K. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC (http://www.sec.gov).
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Our Competitive Advantages
Analytic Strength. We believe that success in our business depends on our ability to establish and maintain an information advantage. Leveraging an industry-leading financially distressed consumer database, our in-house team of statisticians, business analysts, and software programmers have developed, and continually enhance, proprietary behavioral and valuation models, custom software applications, and other business tools that guide our portfolio purchases. Moreover, our collection channels are informed by powerful statistical models specific to each collection activity, and each year we deploy significant capital to purchase credit bureau and customized consumer data that describe account level and macroeconomic factors related to credit, savings, and payment behavior.
Consumer Intelligence. At the core of our analytic approach is a focus on characterizing our consumers’ willingness and ability to repay their financial obligations. In this effort, we apply tools and methods from statistics, psychology, economics, and management science across the full extent of our business. During portfolio valuation, we use an internally developed and proprietary family of statistical models that determines the likelihood and expected amount of payment for each consumer within a portfolio. Subsequently, the expectations for each account are aggregated to arrive at a portfolio-level liquidation solution and a valuation for the entire portfolio is determined. During the collection process, we apply a number of proprietary operational frameworks to match our collection approach to an individual consumer’s payment behavior.
Strong Capital Stewardship. We continue to maintain a focus on raising and deploying capital prudently to maximize the return on our invested capital. Our operational scale and geographic diversification enable us to adjust to market trends and deploy capital to maximize risk-adjusted returns.
Operational Scale and Cost Efficiency. We are a market leader in portfolio purchasing and recovery in the United States and one of the largest credit management services providers in Europe. This operational scale combined with cost efficiency is central to our collection and purchasing strategies. We experience considerable cost advantages, stemming from our operations in India and Costa Rica and the development and implementation of operational models that enhance profitability. We believe that we are the only company in our industry with successful collection platforms in India and Costa Rica. This cost-saving, first-mover advantage helps to reduce our call center variable cost-to-collect.
Principled Intent. Across the full extent of our operations, we strive to treat consumers with respect, compassion, and integrity. From affordable payment plans to hardship solutions, we work with our consumers as they attempt to return to financial health. We are committed to dialogue that is honorable and constructive and hope to play an important and positive role in our consumers’ financial recovery. We believe that our interests, and those of the financial institutions from which we purchase portfolios, are closely aligned with the interests of government agencies seeking to protect consumer rights. We expect to continue investing in infrastructure and processes that support consumer advocacy and financial literacy while promoting an appropriate balance between corporate and consumer responsibility.
Our Strategy
Competitive Advantage. We strive to enhance our competitive advantages through innovation, which we expect will result in collections growth and improved productivity. To continue generating strong risk-adjusted returns, we intend to continue investing in analytics and technology, risk management and compliance. We will also continue investing in initiatives that enhance our relationships with consumers, expand our digital capabilities and collections, improve liquidation rates on our portfolios or reduce costs.
Market Focus. We continue to concentrate on our core portfolio purchasing and recovery business in the U.S. and the U.K. markets, where scale helps us generate our highest risk-adjusted returns. We believe these markets have attractive structural characteristics including: (1) a large and consistent flow of purchasing opportunities; (2) a strong regulatory framework with barriers to entry that support issuers to outsource or sell; (3) a high degree of sophistication and data availability; and (4) stable long term returns and resilience in the event of macroeconomic disruption.
Balance Sheet Strength. We are focused on strengthening our balance sheet while delivering strong financial and operational results. This includes increasing our cash flow through efficient collection operations and applying excess cash flows to reduce our debt, which allows us to grow estimated remaining collections and earnings while at the same time reducing financial leverage.
Purchasing Approach
We provide sellers of delinquent receivables liquidity and immediate value through the purchase of charged-off consumer receivables. We believe that we are a valuable partner to these sellers given our financial strength, focus on principled intent, and track record of financial success.
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Identify purchase opportunities. We maintain relationships with various financial service providers such as banks, credit unions, consumer finance companies, retailers, utilities companies and government agencies. These relationships frequently generate recurring purchase opportunities. We identify purchase opportunities and secure, where possible, exclusive negotiation rights. We believe that we are a valued partner for credit originators from whom we purchase portfolios, and our ability to secure exclusive negotiation rights is typically a result of our strong relationships and our purchasing scale. Receivable portfolios are typically sold either through a general auction, in which the seller requests bids from market participants, or in a private sale where the buyer negotiates directly with a seller. The sale transaction can be either for a one-time spot purchase or for a “forward flow” contract. A “forward flow” contract is a commitment to purchase receivables over a duration that is typically three to twelve months, but can be longer, with specifically defined volume, frequency, and pricing. Typically, these forward flow contracts have provisions that allow for early termination or price re-negotiation should the underlying quality of the portfolio deteriorate over time or if any particular month’s delivery is materially different than the original portfolio used to price the forward flow contract. In the U.S., where we have the ability in many of our forward flow contracts to terminate upon a certain specified amount of notice, we generally attempt to secure forward flow contracts for receivables because a consistent volume of receivables over a set duration can enable us to more accurately forecast and plan our operational needs.
Evaluate purchase opportunities using analytical models. Once a portfolio of interest is identified, we obtain detailed information regarding the portfolio’s accounts, including certain information regarding the consumers themselves. We use this account-level information to perform due diligence and evaluate the portfolio. We use statistical analysis and forecasting to analyze this information to create expected future cash forecasts for the portfolio. Our collection expectations are based on, among other things, account characteristics and credit file variables, which we use to predict a consumer’s willingness and ability to repay their debt. Our servicing strategy and collections channel capacity are also a major determinant of collections expectations and portfolio expected value. Additional adjustments to cash expectations are made to account for qualitative factors that may affect the payment behavior of our consumers (such as prior collection activities or the underwriting approach of the seller), and to ensure our valuations are aligned with our operations.
Formal approval process. Once we have determined the estimated value of the portfolio and have completed our qualitative due diligence, we present the purchase opportunity to our investment committee, which either sets the maximum purchase price for the portfolio based on an Internal Rate of Return (“IRR”) and at times also on other strategic objectives, or declines to bid. Members of the investment committee vary based on the type, amount and jurisdiction of the purchase opportunity, but include our Chief Executive Officer and Chief Financial Officer for all material purchases.
We believe long-term success is best achieved by combining a diversified asset sourcing approach with an account-level scoring methodology and a disciplined evaluation process.
Collection Approach
MCM (United States)
We continue to expand and build upon the insight developed from previous collections when developing our account collection strategies for portfolios we have acquired. We refine our collection approach to determine the most effective collection strategy to pursue for each account. Our current collection approaches consist of:
•Direct Mail and Email. We develop innovative mail and email campaigns offering consumers payment programs, and occasionally appropriate discounts, to encourage settlement of their accounts.
•Call Centers. We maintain domestic collection call centers in Phoenix, Arizona, St. Cloud, Minnesota, Troy, Michigan, and Roanoke, Virginia and international call centers in Gurgaon, India and San Jose, Costa Rica. Call centers generally consist of multiple collection departments. Account managers supervised by group managers are trained and divided into specialty teams. Account managers assess our consumers’ willingness and capacity to pay. They attempt to work with consumers to evaluate sources and means of repayment to achieve a full or negotiated lump sum settlement or develop payment programs customized to the individual’s ability to pay. In cases where a payment plan is developed, account managers encourage consumers to pay through automatic payment arrangements. We continuously educate account managers to understand and apply applicable laws and policies that are relevant in the account manager’s daily collection activities. Our ongoing training and monitoring efforts help ensure compliance with applicable laws and policies by account managers.
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•Legal Action. We generally refer accounts for legal action where the consumer has not responded to our direct mail efforts or our calls and it appears the consumer is able, but unwilling, to pay their obligations. When we decide to pursue legal action, we place the account into our internal legal channel or refer them to our network of retained law firms. If placed to our internal legal channel, attorneys in that channel will evaluate the accounts and make the final determination whether to pursue legal action. If referred to our network of retained law firms, we rely on our law firms’ expertise with respect to applicable debt collection laws to evaluate the accounts placed in that channel in order to make the decision about whether or not to pursue collection litigation. Prior to engaging an external law firm (and throughout our engagement of any external law firm), we monitor and evaluate the firm’s compliance with consumer credit laws and regulations, operations, financial condition, and experience, among other key criteria. The law firms we hire may also attempt to communicate with the consumers in an attempt to collect their debts prior to initiating litigation. We pay these law firms a contingent fee based on amounts they collect on our behalf.
•Third-Party Collection Agencies. We selectively employ a strategy that uses collection agencies. Collection agencies receive a contingent fee based on amounts they collect on our behalf. Generally, we use these agencies when they can generate more collections than our internal call centers or can do so at a lower cost.
•Digital Collections. We have made significant progress in developing our digital strategies and continue to analyze and optimize our digital strategies and our collection website. Currently consumers can access their account information, supporting documents and make payments through our website. We leverage direct mail, email, and search engines to promote our digital channel to our consumers. Account managers in our call centers are also encouraged to make consumers aware of our digital channels including our website. We expect digital collections to increase as we continue to develop our digital strategies and more consumers become aware of the digital channel.
•Inactive. We strive to use our financial resources judiciously and efficiently by not deploying resources on accounts where the prospects of collection are remote based on a consumer’s situation.
•No Resale. Our policy is to not resell accounts to third parties in the ordinary course of business.
We expand and build upon the insight developed during our purchase process when developing our account collection strategies for portfolios we have acquired. Our proprietary consumer-level collectability analysis is the primary determinant of whether an account is actively serviced post-purchase. The channel identification process is analogous to a decision tree where we first differentiate those consumers who we believe are unable to pay from those who we believe are able to pay. Consumers who we believe are financially incapable of making any payments, or are facing extenuating circumstances or hardships that would prevent them from making payments, are excluded from our collection process. It is our practice to attempt to contact consumers and assess each consumer’s willingness to pay through analytics, phone calls, email and/or letters. If the consumer’s contact information is unavailable or out of date, the account is routed to our skip tracing process, which includes the use of different skip tracing companies to provide accurate phone numbers and addresses. The consumers that engage with us are presented with payment plans that are intended to suit their needs or are sometimes offered discounts on their obligations. For the consumers that do not respond to our calls, emails or our letters we must then decide whether to pursue collections through legal action. Throughout our ownership period of accounts, we periodically refine our collection approach to determine the most effective collection strategy to pursue for each account.
Cabot (Europe)
In Europe, we also use direct mail and email, call centers, legal action, third-party collection agencies and digital methods to pursue collections.
We use insights developed during our purchasing process to build account collection strategies. Our proprietary consumer-level collectability analysis is the primary determinant of how an account will be serviced post-purchase. We continuously refine this analysis to determine the most effective collection strategy to pursue for each account we own. We purchase both paying portfolios, which consist of accounts where over 50% of the investment value is associated with consumers who are already repaying some of their debt, albeit at levels that still require the debt to be written off under the originators’ internal accounting policies, and non-paying portfolios, where 50% or more of the investment value is associated with consumers who are not repaying some of their debt, which are higher risk and have less predictable cash flows than paying portfolios. Paying portfolios tend to have a higher purchase price relative to face value than non-paying accounts due to the higher expectations for collections, as well as lower anticipated collection costs. Non-paying portfolios often consist of a substantial number of accounts without contact details and for which the vendor has made numerous unsuccessful attempts to collect.
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We employ a variety of collections strategies from the point of purchase, tailored to both the type of account and the consumer’s financial strength. For paying accounts, we seek to engage with the consumers to transfer across their payment stream to us and understand their detailed financial situation. For non-paying accounts, we apply a segmentation framework tailoring our communication and contact intensity in line with our assessment of their credit bureau data, the size of their debt, and whether we have an existing relationship with them from other accounts. Where contact is made and consumers indicate both a willingness and ability to pay, we create tailor-made payment plans to suit the consumer’s situation. In doing so, we utilize U.K. regulatory protocols to assess affordability and ensure their plan is fair, balanced and sustainable. Where we identify consumers with an ability to pay but who appear to be unwilling to pay their debt due, we pursue a range of collections strategies, which may include litigation processes in order to stimulate engagement and enable us to agree to a suitable plan. Scoring is applied in conjunction with manual selection criteria to determine whether litigation might be an option, also informing any enforcement action that may be deemed most appropriate to the consumer’s situation. Relationships with consumers are maintained through the duration of the payment plan, seeking to review plans at least annually in order to take into account fluctuations in consumers’ financial situations. Again, scoring is used to vary the intensity of contact effort, mirroring the likelihood of a consumer’s financial situation having changed. In the event that a consumer breaks their plan, segmentation is used to tailor the communication and contact intensity as we seek to re-engage with the consumer and understand the reason for the break. By understanding the reason for the break we can tailor the solutions we recommend to rehabilitate the plan and put the consumer back on the path to financial recovery. In this way, we have built strong relationships with our consumer base with a robust repayment stream, reflected in exceptional customer service scores.
Debt Servicing
Our debt servicing operations, which are primarily performed by subsidiaries of Cabot, include early stage collections, business process outsourcing and contingent collections for credit originators. We mainly provide debt servicing for consumer accounts, but also provide services for business-to-business accounts. We believe our debt servicing operations provide us: exposure to the oversight requirements of financial services clients that drive a continually evolving compliance agenda; access to proprietary debt purchase opportunities; and an opportunity to support clients across the collections and recoveries lifecycle, thereby allowing us to remain close to evolving trends.
Seasonality
MCM (United States)
While seasonality does not have a material impact on our business, collections are generally higher in the first three calendar quarters and are the slowest in the fourth calendar quarter. Relatively higher collections for a quarter can result in a lower cost-to-collect ratio compared to the other quarters, as our fixed costs are relatively constant and applied against a larger collection base. The seasonal impact on our business may also be influenced by our purchasing levels, the types of portfolios we purchase, and our operating strategies.
Collection seasonality can also affect revenue as a percentage of collections, also referred to as our revenue recognition rate. Generally, revenue for each pool group declines steadily over time, whereas collections can fluctuate from quarter to quarter based on seasonality, as described above. In quarters with lower collections (e.g., the fourth calendar quarter), the revenue recognition rate can be higher than in quarters with higher collections (e.g., the first three calendar quarters).
In addition, seasonality could have an impact on the relative level of quarterly earnings. In quarters with stronger collections, total costs are higher as a result of the additional efforts required to generate those collections. Since revenue for each pool group declines steadily over time, in quarters with higher collections and higher costs (e.g., the first three calendar quarters), all else being equal, earnings could be lower than in quarters with lower collections and lower costs (e.g., the fourth calendar quarter). Additionally, in quarters where a greater percentage of collections come from our legal and agency outsourcing channels, cost to collect will be higher than if there were more collections from our internal collection sites.
Cabot (Europe)
While seasonality does not have a material impact on European operations, collections are generally strongest in the second and third calendar quarters and slower in the first and fourth quarters, largely driven by the impact of the December holiday season and the New Year holiday, and the related impact on consumers’ ability to repay their balances. This drives a higher level of payment plan defaults over this period, which are typically repaired across the first quarter of the following year. The August vacation season in the United Kingdom also has an unfavorable effect on the level of collections, but this is traditionally compensated for by higher collections in July and September.
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Compliance and Enterprise Risk Management
We have established a compliance management system framework, operational procedures, and governance structures to enable us to conduct business in accordance with applicable rules, regulations, and guidelines. Our philosophy rests on well-established risk management principles including a model leveraging three lines of defense. Our first line of defense consists of business lines or other operating units, whose role is to own and manage risks and associated mitigating controls. Our second line of defense is comprised of strong legal, compliance, and enterprise risk management functions, who ensure that the business maintains policies and procedures in compliance with existing laws and regulations, advise the business on assessing risk and strengthening controls, and provide additional, related support. These second-line functions facilitate oversight by our management and Board of Directors and are responsible for promoting compliance with applicable laws and regulations, assisting in formulating and maintaining policies and procedures, and engaging in training, risk assessments, testing, monitoring, complaint response, compliance audits and corrective actions. Our third line of defense is provided by our internal audit function, providing independent assurance that both first and second line functions are performing their roles appropriately within the context of our framework.
Beyond written policies, one of our core internal goals is the adherence to principled intent as it pertains to all consumer interactions. We believe that it is in our shareholders’ and our employees’ best interest to treat all consumers with the highest standards of integrity. Specifically, we have strict policies and a code of ethics that guide all dealings with our consumers. Our employees undergo comprehensive training on legal and regulatory compliance, and we engage in regular call monitoring checks, data checks, performance reviews, and other operational reviews to ensure compliance with company guidelines.
Credit originators who sell us defaulted consumer receivables routinely conduct examinations of our collection practices and procedures and typically make reports with recommendations to us as to how they believe we can improve those practices and procedures. We respond to these reports in the ordinary course of business and make changes to our practices and procedures that we believe are appropriate to address any issues raised in such reports.
Information Technology
Technical Infrastructure. Our internal network has been configured to be redundant in areas that support critical functions, at our core office sites. This redundancy has been implemented within the local area network and the data center network and includes fully redundant Multiprotocol Label Switching (MPLS) networks. We have the capability to handle high transaction volume in our server network architecture with scalability to meet and exceed our future growth plans. Redundancy, coupled with seamless scalability and our high-performance infrastructure, will allow for rapid business transformation and growth.
Omni-Channel Enabled Dialer Technology. Our call centers employ the use of upgraded dialer technology that expands our ability to service the consumer in their preferred channel of communication. This technology allows additional call volume capacity and greater efficiency through shorter wait times and an increase in the number of live contacts. This technology helps maximize account manager productivity and further optimizes the yield on our portfolio purchases. Additionally, the use of predictive dialing technology helps us comply with applicable federal and state laws in the United States that restrict the time, place and manner in which debt collectors can call consumers. Recognizing mobile phone dialing has a different set of legal restrictions, we utilize a distinctly different platform for non-consented mobile phones in order to comply with all laws while providing a framework for us to maximize contact with our consumers.
Computer Hardware. We have made significant improvements in our data centers, and now have redundancy in support of continued growth. We use a robust computer platform to perform our daily operations, including the collection efforts of our global workforce. Our custom software applications are integrated within our database server environment allowing us to process transaction loads with speed and efficiency. The computer platform offers us reliability and expansion opportunities. Furthermore, this hardware incorporates state of the art data security protection. We back up our data utilizing a tapeless configuration, and copies are replicated between our two co-location data centers. We also mirror our production data to a remote location to give us full protection in the event of the loss of our primary data center. To improve the integrity and reliability of our computer platform, we regularly engage outside auditors specializing in information technology and cybersecurity to examine both our operating systems and disaster recovery plans.
Process Control. To provide assurance that our entire infrastructure continues to operate efficiently and securely, we have developed a strong process and control environment. These governance, risk management, and control protocols govern all areas of the enterprise: from physical security and cybersecurity, to change management, data protection, and segregation of duties.
Cybersecurity. We divide our cybersecurity and information security functions into the four core tenets that we believe make up a solid information security practice: (1) security strategy and architecture; (2) operational security; (3) vulnerability and threat management; and (4) IT governance, risk and controls. We invest in cybersecurity and advanced technologies, including next generation threat prevention and threat intelligence solutions, to protect our organization and consumer and
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proprietary data throughout its life cycle. We believe that our adoption and implementation of leading security frameworks for the financial services industry and the regulatory environments and geographies in which we operate demonstrates our commitment to cybersecurity and information security. To ensure the integrity and reliability of our environment, we periodically engage outside auditors specializing in cybersecurity to examine and test our technical posture as well as our detection and response capabilities.
Competition
The consumer credit recovery industry is highly competitive in the United States, the United Kingdom and throughout Europe. We compete with a wide range of collection and financial services companies, traditional contingency collection agencies and in-house recovery departments. Competitive pressures affect the availability and pricing of receivable portfolios, as well as the availability and cost of qualified recovery personnel.
When purchasing receivables, we compete primarily on the basis of price, the ease of negotiating and closing the prospective portfolio purchases with us, our ability to obtain funding, and our reputation with respect to the quality of services that we provide. We believe that our ability to compete effectively in this market is also dependent upon, among other things, our relationships with credit originators and portfolio resellers of charged-off consumer receivables, and our ability to provide quality collection strategies in compliance with applicable laws.
We believe that smaller competitors in the United States and the United Kingdom are facing difficulties in the portfolio purchasing market because of the higher cost to operate due to increased regulatory pressure and scrutiny applied by regulators. In addition, sellers of charged-off consumer receivables are increasingly sensitive to the reputational risks involved in the industry and are therefore being more selective with buyers in the marketplace. We believe this favors larger participants in this market, such as us, that are better able to adapt to these pressures.
Government Regulation
MCM (United States)
Our operations in the United States are subject to federal, state, and municipal statutes, rules, regulations, and ordinances that establish specific guidelines and procedures that debt purchasers and collectors must follow when collecting consumer accounts. It is our policy to comply with the provisions of all applicable laws in all of our recovery activities. Our failure to comply with these laws could have a material adverse effect on us to the extent that they limit our recovery activities or subject us to fines or penalties in connection with such activities.
The federal Fair Debt Collection Practices Act (“FDCPA”) and comparable state and local laws establish specific guidelines and procedures that debt collectors must follow when communicating with consumers, including the time, place and manner of the communications, and prohibit unfair, deceptive, or abusive debt collection practices. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (the “Dodd-Frank Act”), Congress transferred the Federal Trade Commission’s (“FTC”) role of administering the FDCPA to the Consumer Financial Protection Bureau (“CFPB”), along with certain other federal statutes, and gave the CFPB authority to implement regulations under the FDCPA. The FTC and the CFPB share enforcement responsibilities under the FDCPA.
In addition to the FDCPA, the federal laws that directly or indirectly apply to our business (including the regulations that implement these laws) include the following:
| Dodd-Frank Act, including the Consumer Financial Protection Act (Title X of the Dodd-Frank Act, “CFPA”) | Servicemembers’ Civil Relief Act | |||||||
| Electronic Fund Transfer Act | Telephone Consumer Protection Act (“TCPA”) | |||||||
| Equal Credit Opportunity Act | Truth In Lending Act | |||||||
| Fair Credit Billing Act | U.S. Bankruptcy Code | |||||||
| Fair Credit Reporting Act (“FCRA”) | Wire Act | |||||||
| Federal Trade Commission Act (“FTCA”) | Credit CARD Act | |||||||
| Gramm-Leach-Bliley Act | Foreign Corrupt Practices Act | |||||||
| Health Insurance Portability and Accountability Act | ||||||||
The Dodd-Frank Act was adopted to reform and strengthen regulation and supervision of the U.S. financial services industry. It contains comprehensive provisions governing the oversight of financial institutions, some of which apply to us. Among other things, the Dodd-Frank Act established the CFPB, which has broad authority to implement and enforce “federal consumer financial law,” as well as authority to examine financial institutions, including credit issuers that may be sellers of
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receivables and debt buyers and collectors such as us, for compliance with federal consumer financial law. The CFPB has authority to prevent unfair, deceptive, or abusive acts or practices by issuing regulations or by using its enforcement authority without first issuing regulations. The Dodd-Frank Act also authorizes state officials to enforce regulations issued by the CFPB and to enforce the CFPA general prohibition against unfair, deceptive, and abusive acts or practices.
The CFPB’s authorities include the ability to issue regulations under all significant federal statutes that affect the collection industry, including the FDCPA, FCRA, and others. In May 2019, the CFPB issued a Notice of Proposed Rulemaking (“NPRM”) regarding debt collection. The NPRM proposes rules related to, among other things: disclosures by debt collectors to consumers; requirements for debt validation; use of newer technologies (text, voicemail and email) to communicate with consumers; and limits relating to telephonic communications. The industry and public had a 90-day period to comment on the proposed rules, which was extended by 30 days. The CFPB will evaluate any comments and issue the final rules. It is anticipated that the final rules will be issued in early to mid 2020, with an effective date one year after the final rules are issued.
The Dodd-Frank Act also gave the CFPB supervisory and examination authority over a variety of institutions that may engage in debt collection, including us. Accordingly, the CFPB is authorized to supervise and conduct examinations of our business practices. The prospect of supervision has increased the potential consequences of noncompliance with federal consumer financial law.
The CFPB can conduct hearings, adjudication proceedings, and investigations, either unilaterally or jointly with other state and federal regulators, to determine if federal consumer financial law has been violated. The CFPB has authority to impose monetary penalties for violations of applicable federal consumer financial laws (including the CFPA, FDCPA, and FCRA, among other consumer protection statutes), require remediation of practices, and pursue enforcement actions. The CFPB also has authority to obtain cease and desist orders (which can include orders for restitution or rescission of contracts, as well as other kinds of affirmative relief), costs, and monetary penalties ranging from $5,000 per day for ordinary violations of federal consumer financial laws to $25,000 per day for reckless violations and $1 million per day for knowing violations. In addition, where a company has violated Title X of the Dodd-Frank Act or CFPB regulations implemented under Title X of the Dodd-Frank Act, the Dodd-Frank Act empowers state Attorneys General and state regulators to bring civil actions to remedy violations of state law. The CFPB has been active in its supervision, examination and enforcement of financial services companies, including bringing enforcement actions, imposing fines and mandating large refunds to customers of several financial institutions for practices relating to debt collection practices.
On September 9, 2015, we entered into a consent order (the “Consent Order”) with the CFPB in which we settled allegations arising from our practices between 2011 and 2015. We will continue to cooperate and engage with the CFPB and work to ensure compliance with the Consent Order, which terminates in September 2020. In addition, we are subject to ancillary state attorney general investigations related to similar debt collection practices.
In addition, the CFPB has issued guidance in the form of bulletins on debt collection and credit furnishing activities generally, including one that specifically addresses representations regarding credit reports and credit scores during the debt collection process, another that focuses on the application of the CFPA’s prohibition of “unfair, deceptive, or abusive” acts or practices on debt collection and another that discusses the risks that in-person collection of consumer debt may create in violating the FDPCA and CFPA. The CFPB also accepts debt collection consumer complaints and released template letters for consumers to use when corresponding with debt collectors. The CFPB makes publicly available its data on consumer complaints. The Dodd-Frank Act also mandates the submission of multiple studies and reports to Congress by the CFPB, and CFPB staff regularly make speeches on topics related to credit and debt. All of these activities could trigger additional legislative or regulatory action. In addition, the CFPB has engaged in enforcement activity in sectors adjacent to our industry, impacting credit originators, collection firms, and payment processors, among others. The CFPB’s enforcement activity in these spaces, especially in the absence of clear rules or regulatory expectations, can be disruptive to third parties as they attempt to define appropriate business practices. As a result, certain commercial relationships we maintain may be disrupted or impacted by changes in third-parties’ business practices or perceptions of elevated risk relating to the debt collection industry.
Our activities are also subject to federal and state laws concerning identity theft, privacy, data security, the use of automated dialing equipment, and other laws related to consumers and consumer protection. In response to petitions filed by third parties, in July 2015, the Federal Communications Commission (“FCC”) released a declaratory ruling interpreting the TCPA, which could impact the way consumers may be contacted on their cellular phones and could impact our operations and financial results. The FCC is currently engaged in further rulemaking regarding the definition of an automatic telephone dialing system under the TCPA.
In addition to the federal statutes detailed above, many states have general consumer protection statutes, laws, regulations, or court rules that apply to debt purchasing and collection. In a number of states and cities, we must maintain licenses to perform debt recovery services and must satisfy related bonding requirements. It is our policy to comply with all material licensing and bonding requirements. Our failure to comply with existing licensing requirements, changing interpretations of
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existing requirements, or adoption of new licensing requirements, could restrict our ability to collect in regions, subject us to increased regulation, increase our costs, or adversely affect our ability to collect our receivables.
State laws, among other things, also may limit the interest rate and the fees that a credit originator may impose on our consumers, limit the time in which we may file legal actions to enforce consumer accounts, and require specific account information for certain collection activities. By way of example, the California Fair Debt Buying Practices Act that directly applies to debt buyers, applies to accounts sold after January 1, 2014. The law requires debt buyers operating in the state to have in their possession specific account information before debt collection efforts can begin, among other requirements. Moreover, the New York State Department of Financial Services issued new debt collection regulations, which took effect in September 2015 and established new requirements for collecting debt in the state. In addition, other state and local requirements and court rulings in various jurisdictions may also affect our ability to collect.
The relationship between consumers and credit card issuers is also extensively regulated by federal and state consumer protection and related laws and regulations. These laws may affect some of our operations because the majority of our receivables originate through credit card transactions. The laws and regulations applicable to credit card issuers, among other things, impose disclosure requirements when a credit card account is advertised, when it is applied for and when it is opened, at the end of monthly billing cycles, and at year-end. Federal law requires, among other things, that credit card issuers disclose to consumers the interest rates, fees, grace periods, and balance calculation methods associated with their credit card accounts. Some laws prohibit discriminatory practices in connection with the extension of credit. If the originating institution fails to comply with applicable statutes, rules, and regulations, it could create claims and rights for consumers that would reduce or eliminate their obligations related to those receivables. When we acquire receivables, we generally require the credit originator or portfolio reseller to represent that they have complied with applicable statutes, rules, and regulations relating to the origination and collection of the receivables before they were sold to us.
Federal statutes further provide that, in some cases, consumers cannot be held liable for, or their liability is limited with respect to, charges to their credit card accounts that resulted from unauthorized use of their credit cards. These laws, among others, may give consumers a legal cause of action against us, or may limit our ability to recover amounts owing with respect to the receivables, whether or not we committed any wrongful act or omission in connection with the account.
These laws and regulations, and others similar to the ones listed above, as well as laws applicable to specific types of debt, impose requirements or restrictions on collection methods or our ability to enforce and recover certain of our receivables. Effects of the law, including those described above, and any new or changed laws, rules, or regulations, and reinterpretation of the same, may adversely affect our ability to recover amounts owing with respect to our receivables or the sale of receivables by creditors and resellers.
Cabot (Europe)
Our operations in Europe are affected by foreign statutes, rules and regulations. It is our policy to comply with these laws in all of our recovery activities.
Financial Conduct Authority Regulation. U.K. debt purchase and services collections businesses are principally regulated by the Financial Conduct Authority (“FCA”), the UK Information Commissioner’s Office (“ICO”) and the UK Office of Communications (“OFCOM”). Cabot has two regulated entities in the UK, the debt purchase brand Cabot Credit Management Group Limited (“CCMG”) and the servicing brand Wescot. The FCA regards debt collection as a ‘‘high risk’’ activity primarily due to the potential impact that poor practice can have on already vulnerable consumers and as a result maintains a high focus on the sector. The FCA Handbook sets out the FCA rules and other provisions. Firms wishing to carry on regulated consumer credit activities must comply with all applicable sections of the FCA Handbook, including Customer Treatment principles, as well as the applicable consumer credit laws and regulations.
The FCA has applied its rules to consumer credit firms in a number of areas, including its high-level principles and conduct of business standards. The FCA has significant powers and given the FCA has only been responsible for regulating consumer credit since April 2014, it is likely that the regulatory requirements applicable to the debt purchase industry will continue to increase, as the FCA deepens its understanding of the industry through continued supervision. In addition, it is likely that the compliance framework that will be needed to continue to satisfy the FCA requirements will demand continued investment and resources in our compliance governance framework.
A recent key regulatory change program is the implementation of Senior Managers and Certification Regime (‘‘SMCR’’) for UK operations. These requirements duplicate those that are already in place for UK based Banks and are designed to drive accountability and risk ownership within businesses. This directly impacted CCMG’s senior management team and the wider requirements will affect the majority of colleagues who will need to be aware and adhere to the required standards of conduct.
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Companies authorized by the FCA must be able to demonstrate that they meet the threshold conditions for authorization and comply on an ongoing basis with the FCA’s high level standards for authorized firms, such as its Principles for Business (including the principle of ‘‘treating customers fairly’’), and rules and guidance on systems and controls. In addition to the full authorization of its business with the FCA, CCMG and Wescot have appointed certain individuals who have significant control or influence over the management of the respective businesses, known as Senior Management Function Managers (“SMF Managers”), and are jointly and severally liable for the acts and omissions of the respective businesses and their business affairs. SMF Managers are subject to statements of principle and codes of practice established and enforced by the FCA.
The FCA has the ability to, among other things, impose significant fines, ban certain individuals from carrying on trade within the financial services industry, impose requirements on a firm’s permission, cease certain products from being collected upon and in extreme circumstances remove permissions to trade.
In addition to the permissions granted as part of this FCA authorization, in February 2017, CCMG was granted a variation of permissions from the FCA in order to administer regulated mortgage contracts.
Consumer protection. The Consumer Credit Act of 1974 (and its related regulations) (the “U.K. Consumer Credit Act”) and the U.K. Consumer Rights Act 2015 set forth requirements for the entry into and ongoing management of consumer credit arrangements in the United Kingdom. A failure to comply with these requirements can make agreements unenforceable or can result in a requirement that charged and collected interest be repaid. The FCA is in the process of reviewing the provisions of the U.K. Consumer Credit Act, with a view to consider implementing rules into its handbook to replace the legislation.
Data protection. In addition to these regulations on debt collection and debt purchase activities, Cabot must comply with the General Data Protection Regulation 2016/679 (“GDPR”). This substantially replaced the previous legislation (Data Protection Act of 1998) and introduced significant changes to the data protection regime including but not limited to: the conditions for obtaining consent to process personal data; transparency and providing information to individuals regarding the processing of their personal data; enhanced rights for individuals; notification obligations for personal data breach; and new supervisory authorities, including a European Data Protection Board (“EDPB”). CCMG has made the required changes in its UK operations across its debt purchasing and servicing businesses to meet the requirements of the GDPR. A Data Protection Officer has been appointed and is supported by Privacy Champions at each UK site to promote and enforce good data protection practices.
Ireland. The regulatory regime in the Republic of Ireland has been subject to significant changes in recent years. In July 2015, the Irish Parliament introduced the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 (the “2015 Act”), which requires credit servicing firms to be regulated by the Central Bank of Ireland to ensure regulatory protection for consumers following the sale of consumer loan portfolios to unregulated entities. Cabot Financial Ireland is authorized by the Central Bank of Ireland under Part V of the Central Bank Act 1997 as amended by the 2015 Act as a Credit Servicing Firm. As a result, Cabot Financial Ireland is subject to the Central Bank of Ireland’s supervisory and enforcement regime and is subject to various regulatory consumer protection codes. Cabot Financial Ireland was already obligated to ensure compliance with these codes through its contractual agreements to service loans on behalf of various Irish financial institutions and is audited on a regular basis against such obligations.
In June 2016, the United Kingdom held a referendum in which voters approved the United Kingdom’s withdrawal from the European Union, commonly referred to as “Brexit.” The United Kingdom formally exited the European Union on January 31, 2020 and a transition period is in place until December 31, 2020 during which time the United Kingdom will remain in both the EU customs union and single market and follow EU rules. There is a significant lack of clarity over the terms of the United Kingdom’s future relationship with the European Union after this date. Brexit could, among other outcomes, disrupt the free movement of goods, services and people between the United Kingdom and the European Union, undermine bilateral cooperation in key policy areas and significantly disrupt trade between the United Kingdom and the European Union. Given the lack of comparable precedent, it is unclear what financial, trade and legal implications Brexit will have and how it will affect us.
In addition, the other markets in which we currently operate (including Spain, Italy, Poland and Portugal) are subject to local laws and regulations, and we have implemented compliance programs to facilitate compliance with all applicable laws and regulations in those markets. Our operations outside the United States are subject to the U.S. Foreign Corrupt Practices Act, which prohibits U.S. companies and their agents and employees from providing anything of value to a foreign official for the purposes of influencing any act or decision of these individuals in order to obtain an unfair advantage, to help, obtain, or retain business.
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Employees
As of December 31, 2019, we had approximately 7,300 employees worldwide. None of our employees in North America are represented by a labor union or subject to the terms of collective bargaining agreements. We have employees in Spain who are represented by collective bargaining agreements. We believe that our relations with our employees in all locations are good.
Item 1A—Risk Factors
There are risks and uncertainties in our business that could cause our actual results to differ from those anticipated. We urge you to read these risk factors carefully in connection with evaluating our business and in connection with the forward-looking statements and other information contained in this Annual Report on Form 10-K. Any of the risks described herein could affect our business, financial condition, or future results and the actual outcome of matters as to which forward-looking statements are made. The list of risks is not intended to be exhaustive, and the order in which the risks appear is not intended as an indication of their relative weight or importance. Additional risks and uncertainties not currently known to us, or that we currently deem to be immaterial, also may adversely affect our business, financial condition and/or operating results.
Risks Related to Our Business and Industry
Financial and economic conditions affect the ability of consumers to pay their obligations, which could harm our financial results.
Economic conditions globally and locally directly affect unemployment, credit availability, and real estate values. Adverse conditions, economic changes, and financial disruptions place financial pressure on the consumer, which may reduce our ability to collect on our consumer receivable portfolios and may adversely affect the value of our consumer receivable portfolios. Further, increased financial pressures on the financially distressed consumer may result in additional regulatory requirements or restrictions on our operations and increased litigation filed against us. These conditions could increase our costs and harm our business, financial condition, and operating results.
We may not be able to purchase receivables at favorable prices, which could limit our growth or profitability.
Our ability to continue to operate profitably depends upon the continued availability of receivable portfolios that meet our purchasing standards and are cost-effective based upon projected collections exceeding our costs. Due, in part, to fluctuating prices for receivable portfolios and competition within the marketplace, there has been considerable variation in our purchasing volume and pricing from quarter to quarter and we expect that to continue. The volume of our portfolio purchases may be limited when prices are high and may or may not increase when portfolio pricing is more favorable to us. Further, our rates of return may decline when portfolio prices are high. We do not know how long portfolios will be available for purchase on terms acceptable to us, or at all.
The availability of receivable portfolios at favorable prices depends on a number of factors, including:
•volume of defaults in consumer debt;
•continued sale of receivable portfolios by originating institutions and portfolio resellers at sufficient volumes and acceptable price levels;
•competition in the marketplace;
•our ability to develop and maintain favorable relationships with key major credit originators and portfolio resellers;
•our ability to obtain adequate data from credit originators or portfolio resellers to appropriately evaluate the collectability of, estimate the value of, and collect on portfolios; and
•changes in laws and regulations governing consumer lending, bankruptcy, and collections.
We enter into “forward flow” contracts, which are commitments to purchase receivables on a periodic basis over a specified period of time in accordance with certain criteria, which may include a specifically defined volume, frequency, and pricing. In periods of decreasing prices, we may end up paying an amount higher for such debt portfolios in a forward flow contract than we would otherwise agree to pay at the time for a spot purchase, which could result in reduced returns. We would likely only be able to terminate such forward flow agreements in certain limited circumstances.
In addition, because of the length of time involved in collecting charged-off consumer receivables on acquired portfolios and the volatility in the timing of our collections, we may not be able to identify trends and make changes in our purchasing strategies in a timely manner. Ultimately, if we are unable to continually purchase and collect on a sufficient volume of
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receivables to generate cash collections that exceed our costs or to generate satisfactory returns, our business, financial condition and operating results will be adversely affected.
A significant portion of our portfolio purchases during any period may be concentrated with a small number of sellers, which could adversely affect our volume and timing of purchases.
A significant percentage of our portfolio purchases for any given fiscal quarter or year may be concentrated with a few large sellers, some of which may also involve forward flow arrangements. We cannot be certain that any of our significant sellers will continue to sell charged-off receivables to us on terms or in quantities acceptable to us, or that we would be able to replace these purchases with purchases from other sellers.
A significant decrease in the volume of portfolio available from any of our principal sellers on terms acceptable to us would force us to seek alternative sources of charged-off receivables. Further, we have historically complemented our portfolio purchases from credit originators by purchasing portfolios from resellers or through the acquisition of portfolios from competitors looking to exit the market. As a result of consolidation in the market, there are fewer competitors to acquire on favorable terms. In addition, as the regulatory market continues to evolve, increased documentation requirements for collecting on portfolios may make purchasing accounts through resellers more difficult. Several larger issuers have also begun to prohibit resale of portfolios.
We may be unable to find alternative sources from which to purchase charged-off receivables, and even if we could successfully replace these purchases, the search could take time and the receivables could be of lower quality, cost more, or both, any of which could adversely affect our business, financial condition and operating results.
We face intense competition that could impair our ability to maintain or grow our purchasing volumes.
The charged-off receivables purchasing market is highly competitive. We compete with a wide range of other purchasers of charged-off consumer receivables. To the extent our competitors are able to better maximize recoveries on their assets or are willing to accept lower rates of return, we may not be able to grow or sustain our purchasing volumes or we may be forced to acquire portfolios at expected rates of return lower than our historical rates of return. Some of our competitors may obtain alternative sources of financing at more favorable rates than those available to us, the proceeds from which may be used to fund expansion and to increase the amount of charged-off receivables they purchase.
We face bidding competition in our acquisition of charged-off consumer receivables. We believe that successful bids are predominantly awarded based on price and, to a lesser extent, based on service, reputation, and relationships with the sellers of charged-off receivables. Some of our current competitors, and potential new competitors, may have more effective pricing and collection models, greater adaptability to changing market needs, and more established relationships in our industry than we do. Moreover, our competitors may elect to pay prices for portfolios that we determine are not economically sustainable and, in that event, we may not be able to continue to offer competitive bids for charged-off receivables.
If we are unable to develop and expand our business or to adapt to changing market needs as well as our current or future competitors, we may experience reduced access to portfolios of charged-off consumer receivables in sufficient face value amounts at appropriate prices, which could adversely affect our business, financial condition and operating results.
We may purchase receivable portfolios that are unprofitable or we may not be able to collect sufficient amounts to recover our costs and to fund our operations.
We acquire and service charged-off receivables that the obligors have failed to pay and the sellers have deemed uncollectible and have written off. The originating institutions and/or portfolio resellers generally make numerous attempts to recover on these nonperforming receivables, often using a combination of their in-house collection and legal departments, as well as third-party collection agencies. In order to operate profitably over the long term, we must continually purchase and collect on a sufficient volume of charged-off receivables to generate revenue that exceeds our costs. These receivables are difficult to collect, and we may not be successful in collecting amounts sufficient to cover the costs associated with purchasing the receivables and funding our operations. If we are not able to collect on these receivables, collect sufficient amounts to cover our costs or generate satisfactory returns, this may adversely affect our business, financial condition and operating results.
We may experience losses on portfolios consisting of new types of receivables or receivables in new geographies due to our lack of collection experience with these receivables, which could harm our business, financial condition and operating results.
We continually look for opportunities to expand the classes of assets that make up the portfolios we acquire. Therefore, we may acquire portfolios consisting of assets with which we have little or no collection experience or portfolios of receivables in new geographies where we do not historically maintain an operational footprint. Our lack of experience with these assets may hinder our ability to generate expected levels of profits from these portfolios. Further, our existing methods of collections
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may prove ineffective for these new receivables, and we may not be able to collect on these portfolios. Our inexperience with these receivables may have an adverse effect on our business, financial condition and operating results.
The statistical models we use to project remaining cash flows from our receivable portfolios may prove to be inaccurate and, if so, our financial results may be adversely affected.
We use internally developed models to project the remaining cash flows from our receivable portfolios. These models consider known data about our consumers’ accounts, including, among other things, our collection experience and changes in external consumer factors, in addition to data known when we acquired the accounts. However, we may not be able to achieve the collections forecasted by our models. If we are not able to achieve the levels of forecasted collection, our revenues will be reduced or we may be required to record an allowance charge, which may adversely affect our business, financial condition and operating results.
A significant portion of our collections relies upon our success in individual lawsuits brought against consumers and our ability to collect on judgments in our favor.
We generate a significant portion of our revenue by collecting on judgments that are granted by courts in lawsuits filed against consumers. A decrease in the willingness of courts to grant these judgments, a change in the requirements for filing these cases or obtaining these judgments, or a decrease in our ability to collect on these judgments could have an adverse effect on our business, financial condition and operating results. As we increase our use of the legal channel for collections, our short-term margins may decrease as a result of an increase in upfront court costs and costs related to counter claims. We may not be able to collect on certain aged accounts because of applicable statutes of limitations and we may be subject to adverse effects of regulatory changes. Further, courts in certain jurisdictions require that a copy of the account statements or applications be attached to the pleadings in order to obtain a judgment against consumers. If we are unable to produce those account documents, these courts could deny our claims, and our business, financial condition and operating results may be adversely affected.
Increases in costs associated with our collections through collection litigation can raise our costs associated with our collection strategies and the individual lawsuits brought against consumers to collect on judgments in our favor.
We have substantial collection activity through our legal collections channel and, as a consequence, increases in upfront court costs, costs related to counterclaims, and other court costs may increase our total cost in collecting on accounts in this channel, which may have an adverse effect on our business, financial condition and operating results.
We are subject to audits conducted by sellers of debt portfolios and may be required to implement specific changes to our policies and practices as a result of adverse findings by such sellers as a part of the audit process, which could limit our ability to purchase debt portfolios from them in the future, which could materially and adversely affect our business.
Pursuant to purchase contracts, we are subject to audits that are conducted by sellers of debt portfolios. Such audits may occur with little notice and the assessment criteria used by each seller varies based on their own requirements, policies and standards. Although much of the assessment criteria is based on regulatory requirements, we may be asked to comply with additional terms and conditions that are unique to particular debt originators. From time to time, sellers may believe that we are not in compliance with certain of their criteria and in such cases, we may be required to dedicate resources and to incur expenses to address such concerns, including the implementation of new policies and procedures. In addition, to the extent that we are unable to satisfy the requirements of a particular seller, such seller could remove us from their panel of preferred purchasers, which could limit our ability to purchase debt portfolios from that seller in the future, which could adversely affect our business, financial condition and operating results.
We are dependent upon third parties to service a substantial portion of our consumer receivable portfolios.
We use outside collection services to collect a substantial portion of our charged-off receivables. We are dependent upon the efforts of third-party service providers including collection agencies, law firms, data providers, tracing service providers and other servicers to help service and collect our charged-off receivables. Our third-party servicers could fail to perform collection services for us adequately, remit those collections to us or otherwise perform their obligations adequately. In addition, one or more of those third-party service providers could cease operations abruptly or become insolvent, or our relationships with such third-party service providers may otherwise change adversely. Further, we might not be able to secure replacement third-party service providers or promptly transfer account information to our new third-party service provider or in-house in the event our agreements with our third-party collection agencies and attorneys were terminated. In addition, to the extent these third-party service providers violate laws, other regulatory requirements or their contractual obligations, or act inappropriately in the conduct of their business, our business and reputation could be negatively affected or penalties could be directly imposed upon us. Any of the foregoing factors could cause our business, financial condition and operating results to be adversely affected.
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We are dependent on our data gathering systems, proprietary consumer profiles, and if access to such data was lost or became public, our business could be materially and adversely affected.
Our models and consumer databases provide information that is critical to our business. We rely on data provided to us by multiple credit reference agencies, our servicing partners and other sources in order to operate our systems, develop our proprietary consumer profiles and run our business generally. If these credit reference agencies were to terminate their agreements or stop providing us with data for any reason, for example, due to a change in governmental regulation, or if they were to considerably raise the price of their services, our business could be materially and adversely affected. Also, if any of the proprietary information or data that we use became public, for example, due to a change in government regulations, we could lose a significant competitive advantage and our business could be negatively impacted.
If we become unable to continue to acquire or use information and data in the manner in which it is currently acquired and used, or if we were prohibited from accessing or aggregating the data in these systems or profiles for any reason, we may lose a significant competitive advantage, in particular if our competitors continue to be able to acquire and use such data, and our business could be materially and adversely affected.
Our business is subject to extensive laws and regulations, which have increased and may continue to increase.
As noted in detail in “Item 1 - Part 1 - Business - Government Regulation” of this Annual Report on Form 10-K, extensive laws and regulations directly apply to key portions of our business. These laws and regulations are also subject to review from time to time and may be subject to significant change. Changes in laws and regulations applicable to our operations, or the manner in which they are interpreted or applied, could limit our activities in the future or could significantly increase the cost of regulatory compliance. These negative effects could result from changes in collection laws and guidance, laws related to credit reporting, consumer bankruptcy laws, laws related to the management and enforcement of consumer debt, court and enforcement procedures, the statute of limitation for debts, accounting standards, taxation requirements, employment laws, communications laws, data privacy and protection laws, anti-bribery and corruption laws and anti-money laundering laws.
We sometimes purchase accounts in asset classes that are subject to industry-specific and/or issuer-specific restrictions that limit the collection methods that we can use on those accounts. Further, we have seen a trend in laws, rules and regulations requiring increased availability of historic information about receivables in order to collect. If credit originators or portfolio resellers are unable or unwilling to meet these evolving requirements, we may be unable to collect on certain accounts. Our inability to collect sufficient amounts from these accounts, through available collections methods, could adversely affect our business, financial condition and operating results.
In addition, the CFPB has engaged in enforcement activity in sectors adjacent to our industry, impacting credit originators, collection firms, and payment processors, among others. Enforcement activity in these spaces by the CFPB or others, especially in the absence of clear rules or regulatory expectations, may be disruptive to third parties as they attempt to define appropriate business practices. As a result, certain commercial relationships we maintain may be disrupted or impacted by changes in third-parties’ business practices or perceptions of elevated risk relating to the debt collection industry, which could reduce our revenues, or increase our expenses, and consequently adversely affect our business, financial condition and operating results.
Additional consumer protection or privacy laws, rules and regulations may be enacted, or existing laws, rules or regulations may be reinterpreted or enforced in a different manner, imposing additional restrictions or requirements on the collection of receivables.
Any of the developments described above may adversely affect our ability to purchase and collect on receivables and may increase our costs associated with regulatory compliance, which could adversely affect our business, financial condition and operating results.
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Failure to comply with government regulation could result in the suspension, termination or impairment of our ability to conduct business, may require the payment of significant fines and penalties, or require other significant expenditures.
The U.S. collections industry is heavily regulated under various federal, state, and local laws, rules, and regulations. Many states and several cities require that we be licensed as a debt collection company. The CFPB, FTC, state Attorneys General and other regulatory bodies have the authority to investigate a variety of matters, including consumer complaints against debt collection companies, and can bring enforcement actions and seek monetary penalties, consumer restitution, and injunctive relief. If we, or our third-party collection agencies or law firms fail to comply with applicable laws, rules, and regulations, including, but not limited to, identity theft, privacy, data security, the use of automated dialing equipment, laws related to consumer protection, debt collection, and laws applicable to specific types of debt, it could result in the suspension or termination of our ability to conduct collection operations, which would adversely affect us. Further, our ability to collect our receivables may be affected by state laws, which require that certain types of account documentation be presented prior to the institution of any collection activities.
Our failure or the failure of third-party agencies and attorneys, or the credit originators or portfolio resellers selling receivables to us, to comply with existing or new laws, rules, or regulations could limit our ability to recover on receivables, affect the willingness of financial institutions to sell portfolios to us, cause us to pay damages to consumers or result in fines or penalties, which could reduce our revenues, or increase our expenses, and consequently adversely affect our business, financial condition and operating results.
In addition, new federal, state or local laws or regulations, or changes in the ways these rules or laws are interpreted or enforced, could limit our activities in the future and/or significantly increase the cost of regulatory compliance.
Our operations outside the United States are subject to foreign and U.S. laws and regulations that apply to our international operations, including GDPR, the U.K. Consumer Credit Act, the Foreign Corrupt Practices Act, the U.K. Bribery Act and other local laws prohibiting corrupt payments to government officials. Violations of these laws and regulations could result in fines and penalties, criminal sanctions, prohibitions on the conduct of our business and reputational damage.
The debt purchase and collections sector and the broader consumer credit industry in the United Kingdom, Ireland and the other European jurisdictions in which we operate are also highly regulated under various laws and regulations. This legislation is principles-based and therefore the interpretation of compliance is complex and may change over time. Failure to comply with any applicable laws, regulations, rules or contractual compliance obligations could result in investigations, information gathering, public censures, financial penalties, disciplinary measures, liability and/or enforcement actions, including licenses or permissions that we need to do business not being granted or being revoked or the suspension or termination of our ability to conduct collections. In addition, our debt purchase contracts with vendors include certain conditions and failure to comply or revocation of a permission or authorization, or other actions taken by us that may damage the reputation of the vendor, may entitle the vendor to terminate any agreements with us. Damage to our reputation, whether because of a failure to comply with applicable laws, regulations or rules, revocation of a permission or authorization, any other regulatory action or our failure to comply with contractual compliance obligations, could deter vendors from choosing us as their debt purchase or collections provider.
Compliance with this extensive regulatory framework is expensive and labor-intensive. Any of the foregoing could have an adverse effect on our business, financial condition and operating results.
The United Kingdom’s exit from the European Union could have a material adverse effect on our business, financial condition and results of operations.
In June 2016, the United Kingdom held a referendum in which voters approved the United Kingdom’s exit from the E.U., commonly referred to as “Brexit.” The United Kingdom formally exited the European Union on January 31, 2020 and a transition period is in place until December 31, 2020 during which time the United Kingdom will remain in both the EU customs union and single market and follow EU rules. There is a significant lack of clarity over the terms of the United Kingdom’s future relationship with the European Union after this date.
These developments may have a material adverse effect on global economic conditions and the stability of global financial markets, and may significantly reduce global market liquidity, restrict the ability of key market participants to operate in certain financial markets or restrict our access to capital. In addition, Brexit has caused, and may continue to cause, both significant volatility in global stock markets and currency exchange rate fluctuations, as well as create significant uncertainty among United Kingdom businesses and investors. In particular, the pound sterling has lost a significant amount of its value against the U.S. Dollar and the euro respectively since the referendum. We generate a significant portion of our earnings in the United Kingdom, and any significant change in the value of the pound and/or recession in the United Kingdom or any of the foregoing factors could have a material adverse effect on our business, financial condition and operating results.
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Our business, financial condition and operating results may be adversely affected if consumer bankruptcy filings increase or if bankruptcy laws change.
Our business model may be uniquely vulnerable to an economic recession, which typically results in an increase in the amount of defaulted consumer receivables, thereby contributing to an increase in the amount of personal bankruptcy filings. Under certain bankruptcy filings, a consumer’s assets are sold to repay credit originators, with priority given to holders of secured debt. Since the defaulted consumer receivables we purchase are generally unsecured, we often are not able to collect on those receivables. In addition, since we purchase receivables that may have been delinquent for a long period of time, this may be an indication that many of the consumers from whom we collect will be unable to pay their debts going forward and are more likely to file for bankruptcy in an economic recession. Furthermore, potential changes to existing bankruptcy laws could contribute to an increase in consumer bankruptcy filings. We cannot be certain that our collection experience would not decline with an increase in consumer bankruptcy filings. If our actual collection experience with respect to a defaulted consumer receivable portfolio is significantly lower than we projected when we purchased the portfolio, our business, financial condition and operating results could be adversely affected.
We are subject to ongoing risks of regulatory investigations and litigation, including individual and class action lawsuits, under consumer credit, consumer protection, theft, privacy, collections, and other laws, and we may be subject to awards of substantial damages or be required to make other expenditures or change our business practices as a result.
We operate in an extremely litigious climate and currently are, and may in the future be, named as defendants in litigation, including individual and class action lawsuits under consumer credit, consumer protection, theft, privacy, data security, automated dialing equipment, debt collections, and other laws. Many of these cases present novel issues on which there is no clear legal precedent, which increases the difficulty in predicting both the potential outcomes and costs of defending these cases. We are subject to ongoing risks of regulatory investigations, inquiries, litigation, and other actions by the CFPB, FTC, FCA, state Attorneys General, Central Bank of Ireland or other governmental bodies relating to our activities. These litigation and regulatory actions involve potential compensatory or punitive damage claims, fines, costs, sanctions, civil monetary penalties, consumer restitution, or injunctive relief, as well as other forms of relief, that could require us to pay damages, make other expenditures or result in changes to our business practices. Any changes to our business practices could result in lower collections, increased cost to collect or reductions in estimated remaining collections. Actual losses incurred by us in connection with judgments or settlements of these matters may be more than our associated reserves. Further, defending lawsuits and responding to governmental inquiries or investigations, regardless of their merit, could be costly and divert management’s attention from the operation of our business. All of these factors could have an adverse effect on our business, financial condition and operating results.
Negative publicity associated with litigation, governmental investigations, regulatory actions, and other public statements could damage our reputation.
From time to time there are negative news stories about our industry or company, especially with respect to alleged conduct in collecting debt from consumers. These stories may follow the announcements of litigation or regulatory actions involving us or others in our industry. Negative publicity about our alleged or actual debt collection practices or about the debt collection industry in general could adversely affect our stock price, our position in the marketplace in which we compete, and our ability to purchase charged-off receivables, any of which could have an adverse effect on our business, financial condition and operating results.
We may make acquisitions that prove unsuccessful and any mergers, acquisitions, dispositions or joint venture activities may change our business and financial results and introduce new risks.
From time to time, we may make acquisitions of, or otherwise invest in, other companies that could complement our business, including the acquisition of entities in diverse geographic regions and entities offering greater access to businesses and markets that we do not currently serve. The acquisitions we make may be unprofitable or may take some time to achieve profitability. In addition, we may not successfully operate the businesses that we acquire, or may not successfully integrate these businesses with our own, which may result in our inability to maintain our goals, objectives, standards, controls, policies, culture, or profitability. Through acquisitions, we may enter markets in which we have limited or no experience. Any acquisition may result in a potentially dilutive issuance of equity securities, and the incurrence of additional debt which could reduce our profitability. We also pursue dispositions and joint ventures from time to time. Any such transactions could change our business lines, geographic reach, financial results or capital structure. Our company could be larger or smaller after any such transactions and may have a different investment profile.
We may consume resources in pursuing business opportunities, financings or other transactions that are not consummated, which may strain or divert our resources.
We anticipate that the investigation of various transactions, and the negotiation, drafting, and execution of relevant agreements, disclosure documents and other instruments with respect to such transactions, will require substantial management
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time and attention and substantial costs for financial advisors, accountants, attorneys and other advisors. If a decision is made not to consummate a specific transaction, the costs incurred up to that point for the proposed transaction likely would not be recoverable. Furthermore, even if an agreement is reached relating to a specific transaction, we may fail to consummate the transaction for any number of reasons, including those beyond our control. Any such event could consume significant management time and result in a loss to us of the related costs incurred, which could adversely affect our financial position and our business.
We are dependent on our management team for the adoption and implementation of our strategies and the loss of its services could have an adverse effect on our business.
Our management team has considerable experience in finance, banking, consumer collections, and other industries. We believe that the expertise of our executives obtained by managing businesses across numerous other industries has been critical to the enhancement of our operations. Our management team has created a culture of new ideas and progressive thinking, coupled with increased use of technology and statistical analysis. The management teams at each of our operating subsidiaries are also important to the success of their respective operations. The loss of the services of one or more key members of management could disrupt our collective operations and seriously impair our ability to continue to acquire or collect on portfolios of charged-off receivables and to manage and expand our business, any of which could have an adverse effect on business, financial condition and operating results.
We may not be able to manage our growth effectively, including the expansion of our foreign operations.
We have expanded significantly in recent years. Continued growth will place additional demands on our resources, and we cannot be sure that we will be able to manage our growth effectively. For example, continued growth could place strains on our management, operations, and financial resources that our infrastructure, facilities, and personnel may not be able to adequately support. In addition, the expansion of our foreign operations subjects us to a number of additional risks and uncertainties, including:
•compliance with and changes in international laws, including regulatory and compliance requirements that could affect our business;
•differing accounting standards and practices;
•increased exposure to U.S. laws that apply abroad, such as the Foreign Corrupt Practices Act, and exposure to other anti-corruption laws such as the U.K. Bribery Act;
•social, political and economic instability or recessions;
•fluctuations in foreign economies and currency exchange rates;
•difficulty in hiring, staffing and managing qualified and proficient local employees and advisors to run international operations;
•the difficulty of managing and operating an international enterprise, including difficulties in maintaining effective communications with employees due to distance, language, and cultural barriers;
•difficulties implementing and maintaining effective internal controls and risk management and compliance initiatives;
•potential disagreements with our joint venture business partners;
•differing labor regulations and business practices; and
•foreign and, in some circumstances, U.S. tax consequences.
To support our growth and improve our international operations, we continue to make investments in infrastructure, facilities, and personnel in our operations; however, these additional investments may not be successful or our investments may not produce profitable results. If we cannot manage our growth effectively, our business, financial condition and operating results may be adversely affected.
If our technology and telecommunications systems were to fail, or if we are not able to successfully anticipate, invest in, or adopt technological advances within our industry, it could have an adverse effect on our operations.
Our success depends in large part on sophisticated computer and telecommunications systems. The temporary or permanent loss of our computer and telecommunications equipment and software systems, through casualty, operating
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malfunction, software virus, or service provider failure, could disrupt our operations. In the normal course of our business, we must record and process significant amounts of data quickly and accurately to properly bid on prospective acquisitions of receivable portfolios and to access, maintain, and expand the databases we use for our collection activities. Any simultaneous failure of our information systems and their backup systems would interrupt our business operations.
In addition, our business relies on computer and telecommunications technologies, and our ability to integrate new technologies into our business is essential to our competitive position and our success. We may not be successful in anticipating, investing in, or adopting technological changes on a timely or cost-effective basis. Computer and telecommunications technologies are evolving rapidly and are characterized by short product life cycles.
We continue to make significant modifications to our information systems to ensure that they continue to be adequate for our current and foreseeable demands and continued expansion, and our future growth may require additional investment in these systems. These system modifications may exceed our cost or time estimates for completion or may be unsuccessful. If we cannot update our information systems effectively, our business, financial condition and operating results may be adversely affected.
In the event of a cyber security breach or similar incident, our business and operations could suffer.
We rely on information technology networks and systems to process and store electronic information. We collect and store sensitive data, including personally identifiable information of our consumers, on our information technology networks. Despite the implementation of security measures, our information technology networks and systems have been, and in the future may be, vulnerable to disruptions and shutdowns due to attacks by hackers or breaches due to malfeasance by contractors, employees and others who have access to our networks and systems. The occurrence of any of these cyber security events could compromise our networks and the information stored on our networks could be accessed. Any such access could disrupt our operations or result in legal claims, liability, reputational damage or regulatory penalties under laws protecting the privacy of personal information, any of which could adversely affect our business, financial condition and operating results.
We rely on third parties to provide us with services in connection with certain aspects of our business, and any failure by these third parties to perform their obligations, or our inability to arrange for alternative third-party providers for such services, could have an adverse effect on our business, financial condition and operating results.
We have entered into agreements with third parties to provide us with services in connection with our business, including payment processing, credit card authorization and processing, payroll processing, record keeping for retirement and benefit plans and certain information technology functions. Any failure by a third party to provide us with contracted services on a timely basis or within service level expectations and performance standards may have an adverse effect on our business, financial condition and operating results. In addition, we may be unable to find, or enter into agreements with, suitable replacement third party providers for such services, which could adversely affect our business, financial condition and operating results.
We may not be able to adequately protect the intellectual property rights upon which we rely and, as a result, any lack of protection may diminish our competitive advantage.
We rely on proprietary software programs and valuation and collection processes and techniques, and we believe that these assets provide us with a competitive advantage. We consider our proprietary software, processes, and techniques to be trade secrets, but they are not protected by patent or registered copyright. We may not be able to protect our technology and data resources adequately, which may diminish our competitive advantage, which may, in turn, adversely affect our business, financial condition and operating results.
Exchange rate fluctuations could adversely affect our business, financial condition and operating results.
Because we conduct some business in currencies other than U.S. dollars, primarily the British Pound, but report our financial results in U.S. dollars, we face exposure to fluctuations in currency exchange rates upon translation of these business results into U.S. dollars. In the normal course of business, we may employ various strategies to manage these risks, including the use of derivative instruments. These strategies may not be effective in protecting us against the effects of fluctuations from movements in foreign exchange rates. Fluctuations in the foreign currency exchange rates could adversely affect our financial condition and operating results.
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Risks Related to Our Indebtedness and Common Stock
Our significant indebtedness could adversely affect our financial health and could harm our ability to react to changes to our business.
As described in greater detail in “Note 8: Borrowings” to our consolidated financial statements, as of December 31, 2019, our total long-term indebtedness outstanding was approximately $3.5 billion. Our substantial indebtedness could have important consequences to investors. For example, it could:
•increase our vulnerability to general economic downturns and industry conditions;
•require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures and other general corporate requirements;
•limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
•place us at a competitive disadvantage compared to competitors that have less debt;
•increase our exposure to market and regulatory changes that could diminish the amount and value of our inventory that we borrow against under our secured credit facilities; and
•limit, along with the financial and other restrictive covenants contained in the documents governing our indebtedness, our ability to borrow additional funds, make investments and incur liens, among other things.
Any of these factors could adversely affect our business, financial condition and operating results.
Servicing our indebtedness requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our substantial indebtedness.
Our ability to make scheduled payments of the principal of, to pay interest on or to refinance our indebtedness or to make cash payments in connection with any conversion or exchange of our convertible notes or exchangeable notes, respectively, depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our control. Our business may not continue to generate cash flow from operations in the future sufficient to service our indebtedness and make necessary capital expenditures. If we are unable to generate adequate cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring indebtedness or obtaining additional equity capital on terms that may be onerous or highly dilutive. Our ability to refinance our indebtedness will depend on the capital markets and our financial condition at that time. We may not be able to engage in any of these activities or engage in these activities on desirable terms, which could result in a default on our debt obligations which could, in turn, adversely affect our business, financial condition and operating results.
Despite our current indebtedness levels, we may still incur substantially more indebtedness or take other actions which would intensify the risks discussed above.
Despite our current consolidated indebtedness levels, we and our subsidiaries may be able to incur substantial additional indebtedness in the future. We are not restricted under the terms of the indentures governing our convertible notes or exchangeable notes from incurring additional indebtedness, securing existing or future indebtedness, recapitalizing our indebtedness or taking a number of other actions that could have the effect of diminishing our ability to make payments on our indebtedness. Although our credit facilities and other existing debt currently limit the ability of us and certain of our subsidiaries to incur certain additional indebtedness, these restrictions are subject to a number of qualifications and exceptions and, under certain circumstances, additional indebtedness incurred in compliance with these restrictions, including additional secured indebtedness, could be substantial. Also, these restrictions will not prevent us from incurring obligations that do not constitute indebtedness. To the extent new indebtedness or other new obligations are added to our current levels, the risks described above could intensify.
We may not be able to continue to satisfy the covenants in our debt agreements.
Our debt agreements impose a number of covenants, including restrictive covenants on how we operate our business. Failure to satisfy any one of these covenants could result in negative consequences including the following, each of which could have an adverse effect on our business, financial condition and operating results:
•acceleration of outstanding indebtedness;
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•exercise by our lenders of rights with respect to the collateral pledged under certain of our outstanding indebtedness;
•our inability to continue to purchase receivables needed to operate our business; or
•our inability to secure alternative financing on favorable terms, if at all.
Increases in interest rates could adversely affect our business, financial condition and operating results.
Portions of our outstanding debt bear interest at a variable rate. Increases in interest rates could increase our interest expense which would, in turn, lower our earnings. We may periodically evaluate whether to enter into derivative financial instruments, such as interest rate swap agreements, to reduce our exposure to fluctuations in interest rates on variable interest rate debt and their impact on earnings and cash flows. These strategies may not be effective in protecting us against the effects of fluctuations from movements in interest rates. Increases in interest rates could adversely affect our business, financial condition and operating results.
Changes in the method pursuant to which the LIBOR rates are determined and potential phasing out of LIBOR after 2021 may affect the value of the financial obligations to be held or issued by us that are linked to LIBOR or our results of operations or financial condition.
As of December 31, 2019, we held $331.7 million notional amount of interest rate swap agreements and $464.1 million notional amount of interest rate cap contracts that use the London Interbank Offered Rate (“LIBOR”) as a reference rate and borrowings under our revolving credit facilities, term loan facilities, and various other debt obligations bear interest based upon certain reference rates, including LIBOR. On July 27, 2017, the FCA, which regulates LIBOR, announced that it will no longer persuade or compel banks to submit rates for the calculation of LIBOR after 2021. It is unclear whether new methods of calculating LIBOR will be established such that it continues to exist after 2021. The U.S. Federal Reserve began publishing the Secured Overnight Financing Rate (“SOFR”) in April 2018 as an alternative for LIBOR. SOFR is a broad measure of the cost of borrowing cash overnight collateralized by U.S. Treasury securities. A transition away from the widespread use of LIBOR to SOFR or another benchmark rate may occur over the course of the next few years. Whether or not SOFR attains market traction as a LIBOR replacement tool remains in question and the future of LIBOR currently is uncertain. As a result, it is not possible to predict the effect of any changes, establishment of alternative references rates or other reforms to LIBOR that may be enacted in the U.K. or elsewhere. The elimination of LIBOR or any other changes or reforms to the determination or supervision of LIBOR could have an adverse impact on the market for or value of any LIBOR-linked securities, loans, derivatives and other financial obligations or extensions of credit held by or due to us or on our business, financial condition and operating results.
Our common stock price may be subject to significant fluctuations and volatility.
The market price of our common stock has been subject to significant fluctuations. These fluctuations could continue. Among the factors that could affect our stock price are:
•our operating and financial performance and prospects;
•our ability to repay our debt;
•our access to financial and capital markets to refinance our debt;
•investor perceptions of us and the industry and markets in which we operate;
•future sales of equity or equity-related securities;
•changes in earnings estimates or buy/sell recommendations by analysts;
•changes in the supply of, demand for or price of portfolios;
•our acquisition activity, including our expansion into new markets;
•regulatory changes affecting our industry generally or our business and operations;
•general financial, domestic, international, economic and other market conditions; and
•the number of short positions on our stock at any particular time.
The stock market in recent years has experienced significant price and volume fluctuations that have often been unrelated to the operating performance of companies. The market price of our common stock could fluctuate significantly for many reasons, including in response to the risks described in this Annual Report on Form 10-K, elsewhere in our filings with the SEC
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from time to time or for reasons unrelated to our operations, such as reports by industry analysts, investor perceptions or negative announcements by our customers, competitors or suppliers regarding their own performance, as well as industry conditions and general financial, economic and political instability.
The price of our common stock could also be affected by possible sales of our common stock by investors who view our convertible notes or exchangeable notes as a more attractive means of equity participation in us and by hedging or arbitrage trading activity that we expect to develop involving our common stock.
If securities or industry analysts have a negative outlook regarding our stock or our industry, or our operating results do not meet their expectations, our stock price could decline. The trading market for our common stock is influenced by the research and reports that industry or securities analysts publish about us. If one or more of the analysts who cover our company downgrade our stock or if our operating results do not meet their expectations, our stock price could decline.
Future sales of our common stock or the issuance of other equity securities may adversely affect the market price of our common stock.
In the future, we may sell additional shares of our common stock or other equity or equity-related securities to raise capital or issue equity securities to finance acquisitions. In addition, a substantial number of shares of our common stock are reserved for issuance upon conversion of our convertible notes and exchangeable notes and our at-the-market equity offering program. We are not restricted from issuing additional common stock, including securities that are convertible into or exchangeable for, or that represent the right to receive, common stock.
The liquidity and trading volume of our common stock is limited. The issuance or sale of substantial amounts of our common stock or other equity or equity-related securities (or the perception that such issuances or sales may occur) could adversely affect the market price of our common stock as well as our ability to raise capital through the sale of additional equity or equity-related securities. We have registered sales of common stock by certain holders who received shares of our Common Stock upon completion of the Cabot Transaction. Sales of these registered shares of common stock by such holders may occur from time to time in the future. We cannot predict the effect that future issuances or sales of our common stock or other equity or equity-related securities would have on the market price of our common stock.
We may not have the ability to raise the funds necessary to repurchase our convertible notes or exchangeable notes upon a fundamental change or to settle conversions or exchanges in cash, and our future indebtedness may contain limitations on our ability to pay cash upon conversion of our convertible notes.
Holders of our convertible notes and exchangeable notes will have the right to require us to repurchase their notes upon the occurrence of a fundamental change at a repurchase price equal to 100% of their principal amount, plus accrued and unpaid interest, if any. In addition, upon a conversion or exchange of notes, unless we elect to deliver solely shares of our common stock to settle (other than paying cash in lieu of delivering any fractional shares of our common stock), we will be required to make cash payments for each $1,000 in principal amount of notes converted or exchanged of at least the lesser of $1,000 and the sum of certain daily conversion values. However, we may not have enough available cash or be able to obtain financing at the time we are required to make repurchases of the notes surrendered therefor or to settle conversions or exchanges in cash. In addition, certain of our debt agreements contain restrictive covenants that limit our ability to engage in specified types of transactions, which may affect our ability to repurchase our convertible notes or exchangeable notes. Further, our ability to repurchase our convertible notes or exchangeable notes or to pay cash upon conversion or exchange may be limited by law, by regulatory authority or by agreements governing our future indebtedness. Our failure to repurchase the notes or to pay cash upon conversion or exchange of the notes at a time when the repurchase or cash payment upon conversion or exchange is required by any indenture pursuant to which the convertible notes or exchangeable notes were offered would constitute a default under the relevant indenture. Such default could constitute a default under other agreements governing our indebtedness. If the repayment of any indebtedness were to be accelerated, we may not have sufficient funds to repay such indebtedness and repurchase the convertible notes or exchangeable notes.
The conditional conversion feature of our convertible notes or exchangeable notes, if triggered, may adversely affect our financial condition and operating results.
In the event the conditional conversion feature of any of our convertible notes or exchangeable notes is triggered, holders of those notes will be entitled to convert or exchange the notes at any time during specified periods at their option. Even if holders do not elect to convert or exchange their notes, we could be required under applicable accounting rules to reclassify all or a portion of the outstanding principal of the relevant series of notes as a current rather than long-term liability, which would result in a material reduction of our net working capital.
The accounting method for convertible or exchangeable debt securities that may be settled in cash, such as our convertible notes and exchangeable notes, could have a material effect on our reported financial results.
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Under U.S. generally accepted accounting principles, or GAAP, an entity must separately account for the debt component and the embedded conversion or exchange option of convertible or exchangeable debt instruments that may be settled entirely or partially in cash upon conversion or exchange, such as our convertible notes and exchangeable notes, in a manner that reflects the issuer’s economic interest cost. The effect of the accounting treatment for such instruments is that the value of such embedded option would be treated as original issue discount for purposes of accounting for the debt component of the notes, and that original issue discount is amortized into interest expense over the term of the notes using an effective yield method. As a result, we will be required to record a greater amount of non-cash interest expense as a consequence of the amortization of the original issue discount to face amount of the notes over the respective terms of the notes and as a consequence of the amortization of the debt issuance costs. Accordingly, we will report lower net income in our financial results because of the recognition of both the current period’s amortization of the debt discount and the coupon interest of the notes, which could adversely affect our reported or future financial results and the trading price of our common stock.
Under certain circumstances, convertible or exchangeable debt instruments that may be settled entirely or partially in cash (such as our convertible notes and exchangeable notes) are evaluated for their impact on earnings per share utilizing the treasury stock method, the effect of which is that any shares issuable upon conversion or exchange of the notes are not included in the calculation of diluted earnings per share except to the extent that the conversion or exchange value of the notes exceeds their respective principal amount. Under the treasury stock method, for diluted earnings per share purposes, the debt instrument is accounted for as if the number of shares of common stock that would be necessary to settle such excess, if we elected to settle such excess in shares, are issued. We cannot be certain that the accounting standards in the future will continue to permit the use of the treasury stock method, as is currently the case with our convertible notes and exchangeable notes. If we are unable to use the treasury stock method in accounting for any shares issuable upon conversion of our convertible notes, then our diluted earnings per share could be further adversely affected.
Provisions in our charter documents and Delaware law may delay or prevent acquisition of us, which could decrease the value of shares of our common stock.
Our certificate of incorporation and bylaws and Delaware law contain provisions that could make it more difficult for a third party to acquire us without the consent of our Board of Directors. These provisions include advance notice provisions, limitations on actions by our stockholders by written consent and special approval requirements for transactions involving interested stockholders. We are authorized to issue up to five million shares of preferred stock, the relative rights and preferences of which may be fixed by our Board of Directors, subject to the provisions of our articles of incorporation, without stockholder approval. The issuance of preferred stock could be used to dilute the stock ownership of a potential hostile acquirer. The provisions that discourage potential acquisitions of us and adversely affect the voting power of the holders of common stock may adversely affect the price of our common stock and the value of the Convertible Notes.
Item 1B—Unresolved Staff Comments
None.
Item 2—Properties
We consider the following properties our principal properties, all of which we lease:
| Location | Primary use | ||||
| San Diego, CA | Corporate headquarters, internal legal and consumer support services | ||||
| United Kingdom | Cabot corporate office, call center, internal legal and consumer support services | ||||
| India | Call center and administrative offices | ||||
| Troy, MI | Call center and administrative offices | ||||
| St. Cloud, MN | Call center and administrative offices | ||||
| Spain | Call center and administrative offices | ||||
| Roanoke, VA | Call center and administrative offices | ||||
| Costa Rica | Call center and administrative offices | ||||
| Phoenix, AZ | Call center and administrative offices | ||||
We also lease other immaterial office space in the United States, Europe, and Latin America. We believe that our current leased facilities are generally well maintained and in good operating condition. We believe that these facilities are suitable and
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sufficient for our operational needs. Our policy is to improve, replace, and supplement the facilities as considered appropriate to meet the needs of our operations.
Item 3—Legal Proceedings
We are involved in disputes, legal actions, regulatory investigations, inquiries, and other actions from time to time in the ordinary course of business. Although no assurance can be given with respect to the outcome of these or any other actions and the effect such outcomes may have, based on our current knowledge, we believe any liability resulting from the outcome of such disputes, legal actions, regulatory investigations, inquiries, and other actions will not have a material adverse effect on our business, financial position or results of operations.
For additional information see “Note 13: Commitments and Contingencies” to the consolidated financial statements.
Item 4—Mine Safety Disclosures
Not applicable.
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PART II
Item 5—Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our common stock is traded on the NASDAQ Global Select Market under the symbol “ECPG.”
The closing price of our common stock on February 19, 2020, was $34.53 per share and there were 41 stockholders of record. Because many of our shares of common stock are held by brokers and other institutions on behalf of stockholders, we are unable to estimate the total number of beneficial owners of our stock represented by these stockholders of record.
Performance Graph
The following performance graph and related information shall not be deemed “soliciting material” or “filed” with the SEC, nor shall such information be incorporated by reference into any future filing under the Securities Act of 1933 or Securities Exchange Act of 1934, each, as amended, except to the extent that we specifically incorporate it by reference into such filing.
The following graph compares the total cumulative stockholder return on our common stock for the period from December 31, 2014 through December 31, 2019, with the cumulative total return of (a) the NASDAQ Composite Index, (b) a peer group consisting of Arrow Global, B2Holding, Hoist Finance, Intrum, Kruk and PRA Group, Inc. which we believe are comparable companies. The comparison assumes that $100 was invested on December 31, 2014, in our common stock and in each of the comparison indices (including reinvestment of dividends). The stock price performance reflected in the following graph is not necessarily indicative of future stock price performance.
| 12/14 | 12/15 | 12/16 | 12/17 | 12/18 | 12/19 | ||||||||||||||||||||||||||||||
| Encore Capital Group, Inc. | $ | 100.00 | $ | 65.50 | $ | 64.53 | $ | 94.82 | $ | 52.93 | $ | 79.64 | |||||||||||||||||||||||
| NASDAQ Composite Index | $ | 100.00 | $ | 106.96 | $ | 116.45 | $ | 150.96 | $ | 146.67 | $ | 200.49 | |||||||||||||||||||||||
| Peer Group | $ | 100.00 | $ | 93.06 | $ | 98.31 | $ | 114.03 | $ | 68.74 | $ | 89.04 | |||||||||||||||||||||||
Dividend Policy
As a public company, we have never declared or paid dividends on our common stock. We currently intend to retain our future earnings, if any, to finance the further development and expansion of our business and do not intend to pay cash dividends in the foreseeable future. However, the declaration, payment, and amount of future dividends, if any, is subject to the
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discretion of our Board of Directors, which may review our dividend policy from time to time in light of the then existing relevant facts and circumstances. Under the terms of our domestic revolving credit facility, we are not permitted to declare and pay dividends in an amount exceeding, during any fiscal year, 20% of our consolidated net income (as defined in our domestic revolving credit facility) for the then most recently completed fiscal year. We may also be subject to additional dividend restrictions under future debt agreements or the terms of securities we may issue in the future.
Share Repurchases
In August 2015, our Board of Directors approved a $50.0 million share repurchase program. Repurchases under this program are expected to be made with cash on hand and may be made from time to time, subject to market conditions and other factors, in the open market, through private transactions, block transactions, or other methods as determined by the management and our Board of Directors, and in accordance with market conditions, other corporate considerations, and applicable regulatory requirements. The program does not obligate the Company to acquire any particular amount of common stock, and it may be modified or suspended at any time at the Company’s discretion. As of December 31, 2019, we had not made any repurchases under the share repurchase program.
Recent Sales of Unregistered Securities
In September 2019, we sold $100.0 million of 3.25% convertible senior notes due October 1, 2025 in a private placement transaction. Information regarding this transaction is set forth in our Form 8-K filed on September 9, 2019.
Equity Compensation Plan Information
See Item 12—“Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.”
Item 6—Selected Financial Data
This table presents selected historical financial data of Encore Capital Group, Inc. and its consolidated subsidiaries. This information should be carefully considered in conjunction with the consolidated financial statements and notes thereto appearing elsewhere in this Annual Report on Form 10-K, including the acquisitions described therein that materially affected our results. The selected financial data in this section is not intended to replace the consolidated financial statements. The selected financial data (except for “Selected Operating Data”) in the table below, as of December 31, 2017, 2016, and 2015, and for the years ended December 31, 2016 and 2015, was derived from our audited consolidated financial statements not included in this Annual Report on Form 10-K. The selected financial data as of December 31, 2019 and 2018, and for the years ended December 31, 2019, 2018, and 2017, was derived from our audited consolidated financial statements included elsewhere in this Annual Report on Form 10-K. The Selected Operating Data was derived from our books and records (in thousands, except per share data):
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| As of and For The Year Ended December 31, | |||||||||||||||||||||||||||||
| 2019 | 2018 | 2017 | 2016 | 2015 | |||||||||||||||||||||||||
| Revenues | |||||||||||||||||||||||||||||
Revenue from receivable portfolios | $ | 1,269,288 | $ | 1,167,132 | $ | 1,053,373 | $ | 1,030,792 | $ | 1,065,673 | |||||||||||||||||||
| Servicing revenue | 126,527 | 148,044 | 90,087 | 82,513 | 57,531 | ||||||||||||||||||||||||
| Other revenues | 9,974 | 5,381 | 2,342 | 130 | — | ||||||||||||||||||||||||
| Total revenues | 1,405,789 | 1,320,557 | 1,145,802 | 1,113,435 | 1,123,204 | ||||||||||||||||||||||||
| (Allowances) allowance reversals on receivable portfolios, net | (8,108) | 41,473 | 41,236 | (84,177) | 6,763 | ||||||||||||||||||||||||
| Total revenues, adjusted by net allowances | 1,397,681 | 1,362,030 | 1,187,038 | 1,029,258 | 1,129,967 | ||||||||||||||||||||||||
| Operating expenses | |||||||||||||||||||||||||||||
| Salaries and employee benefits | 376,365 | 369,064 | 315,742 | 281,097 | 262,281 | ||||||||||||||||||||||||
| Cost of legal collections | 202,670 | 205,204 | 200,058 | 200,855 | 229,847 | ||||||||||||||||||||||||
| General and administrative expenses | 148,256 | 158,352 | 158,080 | 134,046 | 191,357 | ||||||||||||||||||||||||
| Other operating expenses | 108,433 | 134,934 | 104,938 | 100,737 | 93,210 | ||||||||||||||||||||||||
| Collection agency commissions | 63,865 | 47,948 | 43,703 | 36,141 | 37,858 | ||||||||||||||||||||||||
| Depreciation and amortization | 41,029 | 41,228 | 39,977 | 34,868 | 33,160 | ||||||||||||||||||||||||
| Goodwill impairment | 10,718 | — | — | — | — | ||||||||||||||||||||||||
| Total operating expenses | 951,336 | 956,730 | 862,498 | 787,744 | 847,713 | ||||||||||||||||||||||||
| Income from operations | 446,345 | 405,300 | 324,540 | 241,514 | 282,254 | ||||||||||||||||||||||||
| Other (expense) income | |||||||||||||||||||||||||||||
| Interest expense | (226,760) | (240,048) | (204,161) | (198,367) | (186,556) | ||||||||||||||||||||||||
| Other (expense) income | (18,343) | (8,764) | 10,847 | 14,228 | 2,235 | ||||||||||||||||||||||||
| Total other expense | (245,103) | (248,812) | (193,314) | (184,139) | (184,321) | ||||||||||||||||||||||||
Income from continuing operations before income taxes | 201,242 | 156,488 | 131,226 | 57,375 | 97,933 | ||||||||||||||||||||||||
| Provision for income taxes | (32,333) | (46,752) | (52,049) | (38,205) | (27,162) | ||||||||||||||||||||||||
| Income from continuing operations | 168,909 | 109,736 | 79,177 | 19,170 | 70,771 | ||||||||||||||||||||||||
Loss from discontinued operations, net of tax | — | — | (199) | (2,353) | (23,387) | ||||||||||||||||||||||||
| Net income | 168,909 | 109,736 | 78,978 | 16,817 | 47,384 | ||||||||||||||||||||||||
Net (income) loss attributable to noncontrolling interest | (1,040) | 6,150 | 4,250 | 59,753 | (2,249) | ||||||||||||||||||||||||
Net income attributable to Encore Capital Group, Inc. stockholders | $ | 167,869 | $ | 115,886 | $ | 83,228 | $ | 76,570 | $ | 45,135 | |||||||||||||||||||
Amounts attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||||||||
| Income from continuing operations | 167,869 | 115,886 | 83,427 | 78,923 | 68,522 | ||||||||||||||||||||||||
Loss from discontinued operations, net of tax | — | — | (199) | (2,353) | (23,387) | ||||||||||||||||||||||||
| Net income | $ | 167,869 | $ | 115,886 | $ | 83,228 | $ | 76,570 | $ | 45,135 | |||||||||||||||||||
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| As of and For The Year Ended December 31, | |||||||||||||||||||||||||||||
| 2019 | 2018 | 2017 | 2016 | 2015 | |||||||||||||||||||||||||
Earnings per share attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||||||||
| Basic earnings (loss) per share from: | |||||||||||||||||||||||||||||
| Continuing operations | $ | 5.38 | $ | 4.09 | $ | 3.21 | $ | 3.07 | $ | 2.66 | |||||||||||||||||||
| Discontinued operations | — | — | (0.01) | (0.09) | (0.91) | ||||||||||||||||||||||||
| Net basic earnings per share | $ | 5.38 | $ | 4.09 | $ | 3.20 | $ | 2.98 | $ | 1.75 | |||||||||||||||||||
| Diluted earnings (loss) per share from: | |||||||||||||||||||||||||||||
| Continuing operations | $ | 5.33 | $ | 4.06 | $ | 3.16 | $ | 3.05 | $ | 2.57 | |||||||||||||||||||
| Discontinued operations | — | — | (0.01) | (0.09) | (0.88) | ||||||||||||||||||||||||
| Net diluted earnings per share | $ | 5.33 | $ | 4.06 | $ | 3.15 | $ | 2.96 | $ | 1.69 | |||||||||||||||||||
| Weighted-average shares outstanding: | |||||||||||||||||||||||||||||
| Basic | 31,210 | 28,313 | 25,972 | 25,713 | 25,722 | ||||||||||||||||||||||||
| Diluted | 31,474 | 28,572 | 26,405 | 25,909 | 26,647 | ||||||||||||||||||||||||
| Selected operating data: | |||||||||||||||||||||||||||||
Purchases of receivable portfolios, at cost | $ | 999,858 | $ | 1,131,898 | $ | 1,058,235 | $ | 906,719 | $ | 1,023,722 | |||||||||||||||||||
| Gross collections for the period | 2,026,928 | 1,967,620 | 1,767,644 | 1,685,604 | 1,700,725 | ||||||||||||||||||||||||
Consolidated statements of financial condition data: | |||||||||||||||||||||||||||||
| Cash and cash equivalents | $ | 192,335 | $ | 157,418 | $ | 212,139 | $ | 149,765 | $ | 123,993 | |||||||||||||||||||
| Investment in receivable portfolios, net | 3,283,984 | 3,137,893 | 2,890,613 | 2,382,809 | 2,440,669 | ||||||||||||||||||||||||
| Total assets | 4,909,950 | 4,631,875 | 4,490,712 | 3,670,497 | 4,174,819 | ||||||||||||||||||||||||
| Total borrowings | 3,513,197 | 3,490,633 | 3,446,876 | 2,805,983 | 2,944,063 | ||||||||||||||||||||||||
| Total liabilities | 3,884,544 | 3,812,187 | 3,766,801 | 3,069,982 | 3,526,331 | ||||||||||||||||||||||||
| Total Encore Capital Group, Inc. stockholders’ equity | 1,022,193 | 818,009 | 581,862 | 559,304 | 596,453 | ||||||||||||||||||||||||
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Item 7—Management’s Discussion and Analysis of Financial Condition and Results of Operations
This Annual Report on Form 10-K contains “forward-looking statements” relating to Encore Capital Group, Inc. (“Encore”) and its subsidiaries (which we may collectively refer to as the “Company,” “we,” “our” or “us”) within the meaning of the securities laws. The words “believe,” “expect,” “anticipate,” “estimate,” “project,” “intend,” “plan,” “will,” “may,” and similar expressions often characterize forward-looking statements. These statements may include, but are not limited to, projections of collections, revenues, income or loss, estimates of capital expenditures, plans for future operations, products or services, and financing needs or plans, as well as assumptions relating to these matters. Although we believe that the expectations reflected in these forward-looking statements are reasonable, we caution that these expectations or predictions may not prove to be correct or we may not achieve the financial results, savings or other benefits anticipated in the forward-looking statements. These forward-looking statements are necessarily estimates reflecting the best judgment of our senior management and involve a number of risks and uncertainties, some of which may be beyond our control or cannot be predicted or quantified, that could cause actual results to differ materially from those suggested by the forward-looking statements. Many factors including, but not limited to, those set forth in this Annual Report on Form 10-K under “Part I, Item 1A—Risk Factors,” could cause our actual results, performance, achievements, or industry results to be very different from the results, performance, achievements or industry results expressed or implied by these forward-looking statements. Our business, financial condition, or results of operations could also be materially and adversely affected by other factors besides those listed. Forward-looking statements speak only as of the date the statements were made. We do not undertake any obligation to update or revise any forward-looking statements to reflect new information or future events, or for any other reason, even if experience or future events make it clear that any expected results expressed or implied by these forward-looking statements will not be realized. In addition, it is generally our policy not to make any specific projections as to future earnings, and we do not endorse projections regarding future performance that may be made by third parties.
Our Business
We are an international specialty finance company providing debt recovery solutions and other related services for consumers across a broad range of financial assets. We purchase portfolios of defaulted consumer receivables at deep discounts to face value and manage them by working with individuals as they repay their obligations and work toward financial recovery. Defaulted receivables are consumers’ unpaid financial commitments to credit originators, including banks, credit unions, consumer finance companies and commercial retailers. Defaulted receivables may also include receivables subject to bankruptcy proceedings. We also provide debt servicing and other portfolio management services to credit originators for non-performing loans.
Encore Capital Group, Inc. (“Encore”) has three primary business units: MCM, which consists of Midland Credit Management, Inc. and its subsidiaries and domestic affiliates; Cabot, which consists of Cabot Credit Management Limited (“CCM”) and its subsidiaries and European affiliates, and LAAP, which is comprised of our investments and operations in Latin America and Asia-Pacific.
MCM (United States)
Through MCM, we are a market leader in portfolio purchasing and recovery in the United States, including Puerto Rico.
Cabot (Europe)
Through Cabot, we are one of the largest credit management services providers in Europe and a market leader in the United Kingdom and Ireland. Cabot, in addition to its primary business of portfolio purchasing and recovery, also provides a range of debt servicing offerings such as early stage collections, business process outsourcing (“BPO”), contingent collections, trace services and litigation activities. Cabot strengthened its debt servicing offerings with the acquisition of Wescot Credit Services Limited, a leading U.K. contingency debt collection and BPO services company in November 2017. Previously we controlled CCM via our majority ownership interest in an indirect holding company of CCM. In July 2018, we completed the purchase of all of the outstanding equity of CCM not owned by us (the “Cabot Transaction”). As a result, CCM became a wholly owned subsidiary of Encore.
LAAP (Latin America and Asia-Pacific)
We have purchased non-performing loans in Colombia, Peru, Mexico and Brazil. Additionally, we have invested in Encore Asset Reconstruction Company (“EARC”) in India, which has completed initial immaterial purchases. In December 2018, we completed the sale of all our interests in Refinancia S.A. and its subsidiaries (collectively, “Refinancia”) to the existing minority shareholders of Refinancia, and as a result, we no longer consolidate Refinancia. Refinancia remains the servicer for the non-performing loans we own in Colombia and Peru.
In August 2019, we completed the sale of Baycorp, which specialized in the management of non-performing loans in Australia and New Zealand and was previously a component of our LAAP business unit (the “Baycorp Transaction”).
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To date, operating results from LAAP have not been significant to our total consolidated operating results. Our long-term growth strategy is focused on continuing to invest in our core portfolio purchasing and recovery business in the United States and United Kingdom and strengthening and developing our business in the rest of Europe.
Government Regulation
As discussed in more detail under “Part I - Item 1—Business - Government Regulation” contained in this Annual Report on Form 10-K, our operations in the United States are subject to federal, state and municipal statutes, rules, regulations and ordinances that establish specific guidelines and procedures that debt purchasers and collectors must follow when collecting consumer accounts, including among others, specific guidelines and procedures for communicating with consumers and prohibitions on unfair, deceptive or abusive debt collection practices. Additionally, our operations in Europe are affected by foreign statutes, rules and regulations regarding debt collection and debt purchase activities. These statutes, rules, regulations, ordinances, guidelines and procedures are modified from time to time by the relevant authorities charged with their administration, which could affect the way we conduct our business.
Portfolio Purchasing and Recovery
MCM (United States)
In the United States, the defaulted consumer receivable portfolios we purchase are primarily charged-off credit card debt portfolios. A small percentage of our capital deployment in the United States comprises of receivable portfolios subject to Chapter 13 and Chapter 7 bankruptcy proceedings.
We purchase receivables based on robust, account-level valuation methods and employ proprietary statistical and behavioral models across our U.S. operations. These methods and models allow us to value portfolios accurately (and limit the risk of overpaying), avoid buying portfolios that are incompatible with our methods or strategies and align the accounts we purchase with our business channels to maximize future collections. As a result, we have been able to realize significant returns from the receivables we acquire. We maintain strong relationships with many of the largest financial service providers in the United States.
Cabot (Europe)
In Europe, our purchased under-performing debt portfolios primarily consist of paying and non-paying consumer loan accounts. We also purchase certain secured mortgage portfolios and portfolios that are in insolvency status, in particular, individual voluntary arrangements.
We purchase paying and non-paying receivable portfolios using a proprietary pricing model that utilizes account-level statistical and behavioral data. This model allows us to value portfolios with a high degree of accuracy and quantify portfolio performance in order to maximize future collections. As a result, we have been able to realize significant returns from the assets we have acquired. We maintain strong relationships with many of the largest financial services providers in the United Kingdom and continue to expand in the United Kingdom and the rest of Europe with our acquisitions of portfolios and other credit management services providers.
Purchases and Collections
Portfolio Pricing, Supply and Demand
MCM (United States)
Industry delinquency and charge-off rates have continued to increase, creating higher volumes of charged-off accounts that are sold. In addition, issuers have continued to sell predominantly fresh portfolios. Fresh portfolios are portfolios that are generally sold within six months of the consumer’s account being charged-off by the financial institution. Meanwhile pricing remains favorable. In addition to selling a higher volume of charged-off accounts, issuers continued to sell their volume in mostly forward flow arrangements that are often committed early in the calendar year.
We believe that smaller competitors continue to face difficulties in the portfolio purchasing market because of the high cost to operate due to regulatory pressure and because issuers are being more selective with buyers in the marketplace. We believe this favors larger participants, such as us, because the larger market participants are better able to adapt to these pressures and commit to larger forward flow agreements.
Cabot (Europe)
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The U.K. market for charged-off portfolios continues to provide a consistent pipeline of opportunities, despite an ongoing historic low level of charge-off rates, as creditors have embedded debt sales as an integral part of their business models. The record levels of consumer indebtedness suggest that charged-off debt will increase over time and, together with recent commitments by major debt purchasers to deliver a deleveraging profile, resulted in an improvement in pricing pressure in 2019. In order to capture the increasingly attractive purchasing opportunities while maintaining a deleveraging profile, in the fourth quarter of 2019, we entered into co-investment framework agreements with certain third-party investors that enable us to share the investment with co-investors while providing credit management solutions as the lead servicer for the portfolios. Co-investment reduces risk related to large portfolio purchases and allows us to build and maintain scale in our operation, which helps provide cost advantages. Co-investment also allows us to service the demands of our issuer clients.
The Spanish debt market continues to be one of the largest in Europe with a significant amount of debt to be sold and serviced. In particular, we anticipate strong debt purchasing and servicing opportunities in the secured and small and medium enterprise asset classes given the backlog of non-performing debt that has accumulated in these sectors. Additionally, financial institutions continue to experience both market and regulatory pressure to dispose of non-performing loans which should further increase debt purchasing opportunities in Spain.
Although pricing has been elevated, we believe that as our European businesses increase in scale and continue to improve liquidation and collection efficiencies, our margins will remain competitive. Additionally, our continuing investment in our litigation liquidation channel has enabled us to collect from consumers who have the ability to pay but have so far been unwilling to do so. This also enables us to mitigate some of the impact of elevated pricing.
Purchases by Geographic Location
The following table summarizes the geographic locations of receivable portfolios we purchased during the periods presented (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| United States | $ | 681,777 | $ | 637,881 | $ | 535,906 | |||||||||||
Europe(1) | 306,504 | 455,444 | 464,136 | ||||||||||||||
| Other geographies | 11,577 | 38,573 | 58,193 | ||||||||||||||
| Total purchases | $ | 999,858 | $ | 1,131,898 | $ | 1,058,235 | |||||||||||
__________________
(1)Amounts exclude receivable portfolios purchased and immediately sold to our co-investors under our co-investment framework.
In the United States, capital deployment increased for the year ended December 31, 2019, as compared to 2018. The majority of our deployments in the U.S. are in forward flow agreements, and the timing, contract duration, and volumes for each contract can fluctuate leading to variation when comparing to prior periods. The increase in capital deployment in the United States for the year ended December 31, 2019, as compared to 2018, and for the year ended December 31, 2018, as compared to 2017, was primarily driven by continued growth in the supply of fresh portfolios.
In Europe, capital deployment decreased for the year ended December 31, 2019, as compared to 2018. The decrease was primarily the result of a more selective purchasing process in conjunction with a plan to reduce European debt leverage over time and the strengthening of the U.S. dollar against the British Pound. The decrease in capital deployment in Europe for the year ended December 31, 2018, as compared to 2017, was primarily the result of our significant capital deployment during the third quarter of 2017 in response to an unusually large volume of portfolios offered for sale in the U.K. market at that time. The decrease was partially offset by the weakening of the U.S. dollar against the British Pound in 2018 as compared to 2017.
The average purchase price as a percentage of face value was 8.6%, 13.3%, and 10.5% for the years ended December 31, 2019, 2018, and 2017, respectively. The average purchase price, as a percentage of face value, varies from period to period depending on, among other factors, the type and quality of the accounts purchased and the length of time from charge-off to the time we purchase the portfolios. For example, the average purchase price as a percentage of face value is higher for fresh portfolios as compared to more seasoned portfolios because fresh paper generally has higher returns. Further, paying portfolios tend to have a higher purchase price relative to face value than non-paying accounts due to the higher expectations for collections, as well as lower anticipated collection costs. As a result, in periods that we purchase a higher percentage of fresh paper or paying portfolios, we expect that our purchase price as a percentage of face value would be higher than would be in periods where a higher ratio of seasoned paper or non-paying portfolios were purchased. The average purchase price, as a percentage of face value decreased significantly during the year ended December 31, 2019 as compared to 2018, primarily due
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to capital deployment on certain asset classes in Europe that were deeply discounted during the third quarter of 2019 and a higher concentration of fresh portfolio purchases during the year ended December 31, 2018.
Collections from Purchased Receivables by Channel and Geographic Location
We utilize three channels for the collection of our purchased receivables: call center and digital collections; legal collections; and collection agencies. The call center and digital collections channel consists of collections that result from our call centers, direct mail program and online collections. The legal collections channel consists of collections that result from our internal legal channel or from our network of retained law firms. The collection agencies channel consists of collections from third-party collection agencies that we utilize when we believe they can liquidate better or less expensively than we can or to supplement capacity in our internal call centers. The collection agencies channel also includes collections on accounts purchased where we maintain the collection agency servicing until the accounts can be recalled and placed in our collection channels. The following table summarizes the total collections by collection channel and geographic area (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| United States: | |||||||||||||||||
| Call center and digital collections | $ | 742,272 | $ | 658,272 | $ | 526,429 | |||||||||||
| Legal collections | 563,038 | 548,374 | 546,423 | ||||||||||||||
| Collection agencies | 10,799 | 17,317 | 28,089 | ||||||||||||||
| Subtotal | 1,316,109 | 1,223,963 | 1,100,941 | ||||||||||||||
Europe(1): | |||||||||||||||||
| Call center and digital collections | 257,317 | 291,540 | 300,545 | ||||||||||||||
| Legal collections | 198,903 | 161,556 | 116,620 | ||||||||||||||
| Collection agencies | 178,998 | 182,081 | 137,155 | ||||||||||||||
| Subtotal | 635,218 | 635,177 | 554,320 | ||||||||||||||
Other geographies(2): | |||||||||||||||||
| Call center and digital collections | 25,620 | 86,407 | 88,129 | ||||||||||||||
| Legal collections | 3,541 | 7,908 | 7,892 | ||||||||||||||
| Collection agencies | 46,440 | 14,165 | 16,362 | ||||||||||||||
| Subtotal | 75,601 | 108,480 | 112,383 | ||||||||||||||
| Total collections from purchased receivables | $ | 2,026,928 | $ | 1,967,620 | $ | 1,767,644 | |||||||||||
__________________
(1)Certain reclassifications have been made for prior periods.
(2)In December 2018, we completed the sale of all our interest in Refinancia S.A. (“Refinancia”), which remains the servicer for the non-performing loans we own in Colombia and Peru. As such, subsequent to December 2018, collections for these non-performing loans are classified as collection agency collections instead of call center and digital collections.
Gross collections from purchased receivables increased by $59.3 million, or 3.0%, to $2,026.9 million during the year ended December 31, 2019, from $1,967.6 million during the year ended December 31, 2018. The increase of collections in the United States was primarily due to the acquisition of portfolios with higher returns in recent periods, the increase in our collection capacity and our continued effort in improving liquidation. European collection improvement was partially offset by the unfavorable impact of foreign currency translation, primarily from the strengthening of the U.S. dollar against the British Pound during the year ended December 31, 2019 as compared to 2018.
Gross collections from purchased receivables increased $200.0 million, or 11.3%, to $1,967.6 million during the year ended December 31, 2018, from $1,767.6 million during the year ended December 31, 2017. The increase of collections in the United States was primarily due to the acquisition of portfolios with higher returns in recent periods, the increase in our collection capacity and our continued effort in improving liquidation. Our consumer centric collection approach and our capacity buildup are driving a higher proportion of call center collections compared to legal collections in the United States. The increase in collections in Europe was primarily the result of implementing certain liquidation improvement initiatives and the favorable impact of foreign currency translation, which was primarily driven by the weakening of the U.S. dollar against the British Pound.
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Results of Operations
Results of operations, in dollars and as a percentage of total revenues, adjusted by net allowances, were as follows (in thousands, except percentages):
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||||||||||||||||||||
| Revenues | |||||||||||||||||||||||||||||||||||
| Revenue from receivable portfolios | $ | 1,269,288 | 90.8 | % | $ | 1,167,132 | 85.7 | % | $ | 1,053,373 | 88.7 | % | |||||||||||||||||||||||
| Servicing revenue | 126,527 | 9.1 | % | 148,044 | 10.9 | % | 90,087 | 7.6 | % | ||||||||||||||||||||||||||
| Other revenues | 9,974 | 0.7 | % | 5,381 | 0.4 | % | 2,342 | 0.2 | % | ||||||||||||||||||||||||||
| Total revenues | 1,405,789 | 100.6 | % | 1,320,557 | 97.0 | % | 1,145,802 | 96.5 | % | ||||||||||||||||||||||||||
| (Allowances) allowance reversals on receivable portfolios, net | (8,108) | (0.6) | % | 41,473 | 3.0 | % | 41,236 | 3.5 | % | ||||||||||||||||||||||||||
| Total revenues, adjusted by net allowances | 1,397,681 | 100.0 | % | 1,362,030 | 100.0 | % | 1,187,038 | 100.0 | % | ||||||||||||||||||||||||||
| Operating expenses | |||||||||||||||||||||||||||||||||||
| Salaries and employee benefits | 376,365 | 26.9 | % | 369,064 | 27.1 | % | 315,742 | 26.6 | % | ||||||||||||||||||||||||||
| Cost of legal collections | 202,670 | 14.5 | % | 205,204 | 15.1 | % | 200,058 | 16.9 | % | ||||||||||||||||||||||||||
| General and administrative expenses | 148,256 | 10.6 | % | 158,352 | 11.6 | % | 158,080 | 13.3 | % | ||||||||||||||||||||||||||
| Other operating expenses | 108,433 | 7.8 | % | 134,934 | 9.9 | % | 104,938 | 8.8 | % | ||||||||||||||||||||||||||
| Collection agency commissions | 63,865 | 4.6 | % | 47,948 | 3.5 | % | 43,703 | 3.7 | % | ||||||||||||||||||||||||||
| Depreciation and amortization | 41,029 | 2.9 | % | 41,228 | 3.0 | % | 39,977 | 3.4 | % | ||||||||||||||||||||||||||
| Goodwill impairment | 10,718 | 0.8 | % | — | — | % | — | — | % | ||||||||||||||||||||||||||
| Total operating expenses | 951,336 | 68.1 | % | 956,730 | 70.2 | % | 862,498 | 72.7 | % | ||||||||||||||||||||||||||
| Income from operations | 446,345 | 31.9 | % | 405,300 | 29.8 | % | 324,540 | 27.3 | % | ||||||||||||||||||||||||||
| Other (expense) income | |||||||||||||||||||||||||||||||||||
| Interest expense | (226,760) | (16.2) | % | (240,048) | (17.6) | % | (204,161) | (17.2) | % | ||||||||||||||||||||||||||
| Other (expense) income | (18,343) | (1.3) | % | (8,764) | (0.7) | % | 10,847 | 1.0 | % | ||||||||||||||||||||||||||
| Total other expense | (245,103) | (17.5) | % | (248,812) | (18.3) | % | (193,314) | (16.2) | % | ||||||||||||||||||||||||||
| Income from continuing operations before income taxes | 201,242 | 14.4 | % | 156,488 | 11.5 | % | 131,226 | 11.1 | % | ||||||||||||||||||||||||||
| Provision for income taxes | (32,333) | (2.3) | % | (46,752) | (3.4) | % | (52,049) | (4.5) | % | ||||||||||||||||||||||||||
| Income from continuing operations | 168,909 | 12.1 | % | 109,736 | 8.1 | % | 79,177 | 6.6 | % | ||||||||||||||||||||||||||
| Loss from discontinued operations, net of tax | — | — | % | — | — | % | (199) | 0.0 | % | ||||||||||||||||||||||||||
| Net income | 168,909 | 12.1 | % | 109,736 | 8.1 | % | 78,978 | 6.6 | % | ||||||||||||||||||||||||||
| Net (income) loss attributable to noncontrolling interest | (1,040) | (0.1) | % | 6,150 | 0.4 | % | 4,250 | 0.4 | % | ||||||||||||||||||||||||||
| Net income attributable to Encore Capital Group, Inc. stockholders | $ | 167,869 | 12.0 | % | $ | 115,886 | 8.5 | % | $ | 83,228 | 7.0 | % | |||||||||||||||||||||||
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Results of Operations—Cabot Credit Management Limited
The following table summarizes the operating results contributed by CCM (which does not consolidate the results of its European affiliate Grove Europe S.á r.l.) during the periods presented (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Total revenues, adjusted by net allowances | $ | 505,136 | $ | 522,885 | $ | 399,875 | |||||||||||
| Total operating expenses | (287,122) | (278,676) | (230,401) | ||||||||||||||
| Income from operations | 218,014 | 244,209 | 169,474 | ||||||||||||||
| Interest expense-non-PEC | (123,203) | (128,087) | (105,634) | ||||||||||||||
| PEC interest expense | — | (17,307) | (25,899) | ||||||||||||||
| Other (expense) income | (2,963) | 1,383 | 7,373 | ||||||||||||||
| Income before income taxes | 91,848 | 100,198 | 45,314 | ||||||||||||||
| Provision for income taxes | (16,930) | (19,884) | (17,218) | ||||||||||||||
| Net income | 74,918 | 80,314 | 28,096 | ||||||||||||||
| Net income attributable to noncontrolling interest | (1,040) | (5,143) | (1,923) | ||||||||||||||
| Net income attributable to Encore Capital Group, Inc. stockholders | $ | 73,878 | $ | 75,171 | $ | 26,173 | |||||||||||
Comparison of Results of Operations
Our Annual Report on Form 10-K for the year ended December 31, 2018 includes discussion and analysis of our financial condition and results of operations for the year ended December 31, 2018 as compared to the year ended December 31, 2017 in Item 7 of Part II, “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
Year Ended December 31, 2019 Compared to Year Ended December 31, 2018
Revenues
Our revenues consist of revenue from receivable portfolios, servicing revenue, and other revenues.
Revenue from receivable portfolios consists of accretion revenue and zero basis revenue. Accretion revenue represents revenue derived from pools (quarterly groupings of purchased receivable portfolios) with a cost basis that has not been fully amortized. Revenue from pools with a remaining unamortized cost basis is accrued based on each pool’s effective interest rate applied to each pool’s remaining unamortized cost basis. The cost basis of each pool is increased by revenue earned and decreased by gross collections from purchased receivables and portfolio allowances. The effective interest rate is the internal rate of return (“IRR”) derived from the timing and amounts of actual cash received and anticipated future cash flow projections for each pool. All collections realized after the net book value of a portfolio has been fully recovered, or Zero Basis Portfolios (“ZBA”), are recorded as revenue, or ZBA revenue. We account for our investment in receivable portfolios utilizing the interest method in accordance with the authoritative guidance for loans and debt securities acquired with deteriorated credit quality.
Servicing revenue consists primarily of fee-based income earned on accounts collected on behalf of others, primarily credit originators. We earn fee-based income by providing debt servicing (such as early stage collections, BPO, contingent collections, trace services and litigation activities) to credit originators for non-performing loans.
Other revenues primarily include revenues recognized from the sale of real estate assets that are acquired as a result of our investments in non-performing secured residential mortgage portfolios in Europe and LAAP. Other revenues also include gains recognized on transfers of financial assets.
We may incur allowance charges when actual cash flows from our receivable portfolios underperform compared to our expectations or when there is a change in the timing of cash flows. Factors that may contribute to underperformance and to the recording of valuation allowances may include both internal as well as external factors. Internal factors that may have an impact on our collections include operational activities, such as capacity and the productivity of our collection staff. External factors that may have an impact on our collections include new laws or regulations, new interpretations of existing laws or regulations, and the overall condition of the economy. We record allowance reversals on pool groups that have historic allowance reserves when actual cash flows from these receivable portfolios outperform our expectations.
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Our operating results are impacted by foreign currency translation, which represents the effect of translating operating results where the functional currency is different than our U.S. dollar reporting currency. The strengthening of the U.S. dollar relative to other foreign currencies has an unfavorable impact on our international revenues, and the weakening of the U.S. dollar relative to other foreign currencies has a favorable impact on our international revenues. Our international revenues were unfavorably impacted by foreign currency translation, primarily from the strengthening of the U.S. dollar, which increased, based on average exchange rates, against the British Pound by approximately 4.6%, during the year ended December 31, 2019 as compared to the year ended December 31, 2018.
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The following tables summarize collections from purchased receivables, revenue, end of period receivable balance and other related supplemental data, by year of purchase (in thousands, except percentages):
| Year Ended December 31, 2019 | As of December 31, 2019 | ||||||||||||||||||||||||||||||||||||||||
Collections(1) | Gross Revenue(2) | Revenue Recognition Rate(2) | Net Reversal (Portfolio Allowance) | Revenue % of Total Revenue | Unamortized Balances | Monthly IRR(3) | |||||||||||||||||||||||||||||||||||
| United States: | |||||||||||||||||||||||||||||||||||||||||
ZBA(4) | $ | 83,217 | $ | 74,614 | 89.7 | % | $ | 8,626 | 5.8 | % | $ | — | — | % | |||||||||||||||||||||||||||
| 2011 | 21,684 | 21,158 | 97.6 | % | 304 | 1.7 | % | 2,546 | 85.5 | % | |||||||||||||||||||||||||||||||
| 2012 | 32,258 | 27,850 | 86.3 | % | 273 | 2.2 | % | 5,916 | 35.5 | % | |||||||||||||||||||||||||||||||
| 2013 | 84,133 | 73,248 | 87.1 | % | (150) | 5.8 | % | 14,697 | 33.4 | % | |||||||||||||||||||||||||||||||
| 2014 | 69,059 | 41,886 | 60.7 | % | 3,905 | 3.3 | % | 50,097 | 6.0 | % | |||||||||||||||||||||||||||||||
| 2015 | 85,042 | 37,207 | 43.8 | % | 6,099 | 2.9 | % | 82,187 | 3.1 | % | |||||||||||||||||||||||||||||||
| 2016 | 159,279 | 73,054 | 45.9 | % | 109 | 5.8 | % | 149,159 | 3.2 | % | |||||||||||||||||||||||||||||||
| 2017 | 255,048 | 132,946 | 52.1 | % | 191 | 10.5 | % | 198,714 | 4.5 | % | |||||||||||||||||||||||||||||||
| 2018 | 351,696 | 199,561 | 56.7 | % | (4,955) | 15.7 | % | 409,717 | 3.3 | % | |||||||||||||||||||||||||||||||
| 2019 | 174,693 | 121,614 | 69.6 | % | — | 9.6 | % | 626,911 | 3.3 | % | |||||||||||||||||||||||||||||||
| Subtotal | 1,316,109 | 803,138 | 61.0 | % | 14,402 | 63.3 | % | 1,539,944 | 4.1 | % | |||||||||||||||||||||||||||||||
| Europe: | |||||||||||||||||||||||||||||||||||||||||
ZBA(4) | 324 | 326 | 100.6 | % | — | — | % | — | — | % | |||||||||||||||||||||||||||||||
| 2013 | 113,224 | 88,244 | 77.9 | % | 4,991 | 7.0 | % | 238,033 | 3.1 | % | |||||||||||||||||||||||||||||||
| 2014 | 105,337 | 73,230 | 69.5 | % | (372) | 5.8 | % | 206,895 | 2.9 | % | |||||||||||||||||||||||||||||||
| 2015 | 72,042 | 44,009 | 61.1 | % | 462 | 3.5 | % | 160,113 | 2.3 | % | |||||||||||||||||||||||||||||||
| 2016 | 63,113 | 43,309 | 68.6 | % | (529) | 3.4 | % | 140,663 | 2.7 | % | |||||||||||||||||||||||||||||||
| 2017 | 118,794 | 65,501 | 55.1 | % | (7,190) | 5.2 | % | 290,071 | 1.8 | % | |||||||||||||||||||||||||||||||
| 2018 | 118,266 | 70,553 | 59.7 | % | (18,332) | 5.5 | % | 347,399 | 1.5 | % | |||||||||||||||||||||||||||||||
| 2019 | 44,118 | 29,262 | 66.3 | % | (470) | 2.3 | % | 264,903 | 1.8 | % | |||||||||||||||||||||||||||||||
| Subtotal | 635,218 | 414,434 | 65.2 | % | (21,440) | 32.7 | % | 1,648,077 | 2.2 | % | |||||||||||||||||||||||||||||||
| Other geographies: | |||||||||||||||||||||||||||||||||||||||||
ZBA(4) | 8,647 | 8,667 | 100.2 | % | — | 0.7 | % | — | — | % | |||||||||||||||||||||||||||||||
| 2014 | 4,663 | 6,548 | 140.4 | % | — | 0.4 | % | 60,479 | 103.0 | % | |||||||||||||||||||||||||||||||
| 2015 | 16,530 | 12,149 | 73.5 | % | 382 | 1.0 | % | 6,240 | 22.0 | % | |||||||||||||||||||||||||||||||
| 2016 | 12,172 | 6,402 | 52.6 | % | (399) | 0.5 | % | 4,680 | 5.3 | % | |||||||||||||||||||||||||||||||
| 2017 | 15,383 | 8,505 | 55.3 | % | (98) | 0.7 | % | 15,894 | 6.2 | % | |||||||||||||||||||||||||||||||
| 2018 | 15,008 | 8,082 | 53.9 | % | (955) | 0.6 | % | 8,330 | 3.8 | % | |||||||||||||||||||||||||||||||
| 2019 | 3,198 | 1,363 | 42.6 | % | — | 0.1 | % | 340 | 4.6 | % | |||||||||||||||||||||||||||||||
| Subtotal | 75,601 | 51,716 | 68.4 | % | (1,070) | 4.0 | % | 95,963 | 7.0 | % | |||||||||||||||||||||||||||||||
| Total | $ | 2,026,928 | $ | 1,269,288 | 62.6 | % | $ | (8,108) | 100.0 | % | $ | 3,283,984 | 3.1 | % | |||||||||||||||||||||||||||
_______________________
(1)Does not include amounts collected on behalf of others.
(2)Gross revenue and the revenue recognition rate exclude the effects of net portfolio allowances or net portfolio allowance reversals.
(3)Monthly IRR relates to accretion portfolios and does not include portfolios on cost recovery.
(4)ZBA revenue typically has a 100% revenue recognition rate. However, collections on ZBA pool groups where a valuation allowance remains must first be recorded as an allowance reversal until the allowance for that pool group is zero. Once the entire valuation allowance is reversed, the revenue recognition rate will become 100%.
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| Year Ended December 31, 2018 | As of December 31, 2018 | ||||||||||||||||||||||||||||||||||||||||
Collections(1) | Gross Revenue(2) | Revenue Recognition Rate(2) | Net Reversal (Portfolio Allowance) | Revenue % of Total Revenue | Unamortized Balances | Monthly IRR(3) | |||||||||||||||||||||||||||||||||||
| United States: | |||||||||||||||||||||||||||||||||||||||||
ZBA(4) | $ | 121,216 | $ | 112,347 | 92.7 | % | $ | 9,044 | 9.6 | % | $ | — | — | % | |||||||||||||||||||||||||||
| 2008 | 1,652 | 237 | 14.3 | % | — | 0.0 | % | — | — | % | |||||||||||||||||||||||||||||||
| 2011 | 14,104 | 12,737 | 90.3 | % | (304) | 1.1 | % | 2,905 | 27.4 | % | |||||||||||||||||||||||||||||||
| 2012 | 35,927 | 29,762 | 82.8 | % | (273) | 2.6 | % | 9,963 | 19.7 | % | |||||||||||||||||||||||||||||||
| 2013 | 104,877 | 82,059 | 78.2 | % | — | 7.0 | % | 25,747 | 23.9 | % | |||||||||||||||||||||||||||||||
| 2014 | 94,929 | 51,252 | 54.0 | % | 5,035 | 4.4 | % | 73,615 | 4.8 | % | |||||||||||||||||||||||||||||||
| 2015 | 125,673 | 54,052 | 43.0 | % | (6,226) | 4.6 | % | 124,301 | 2.8 | % | |||||||||||||||||||||||||||||||
| 2016 | 234,690 | 102,674 | 43.7 | % | (401) | 8.8 | % | 236,032 | 3.0 | % | |||||||||||||||||||||||||||||||
| 2017 | 315,853 | 147,719 | 46.8 | % | (646) | 12.7 | % | 321,730 | 3.2 | % | |||||||||||||||||||||||||||||||
| 2018 | 175,042 | 110,323 | 63.0 | % | — | 9.4 | % | 570,440 | 3.1 | % | |||||||||||||||||||||||||||||||
| Subtotal | 1,223,963 | 703,162 | 57.4 | % | 6,229 | 60.2 | % | 1,364,733 | 3.7 | % | |||||||||||||||||||||||||||||||
| Europe: | |||||||||||||||||||||||||||||||||||||||||
ZBA Adjustment(5) | — | 798 | — | % | — | 0.1 | % | — | — | % | |||||||||||||||||||||||||||||||
ZBA(4) | 184 | 185 | 100.5 | % | — | 0.0 | % | — | — | % | |||||||||||||||||||||||||||||||
| 2013 | 132,663 | 98,307 | 74.1 | % | 29,172 | 8.4 | % | 247,672 | 3.1 | % | |||||||||||||||||||||||||||||||
| 2014 | 129,033 | 82,474 | 63.9 | % | 7,956 | 7.1 | % | 233,718 | 2.7 | % | |||||||||||||||||||||||||||||||
| 2015 | 88,002 | 49,701 | 56.5 | % | 893 | 4.3 | % | 183,069 | 2.0 | % | |||||||||||||||||||||||||||||||
| 2016 | 82,986 | 49,078 | 59.1 | % | — | 4.2 | % | 165,432 | 2.2 | % | |||||||||||||||||||||||||||||||
| 2017 | 152,926 | 68,942 | 45.1 | % | — | 5.9 | % | 345,438 | 1.7 | % | |||||||||||||||||||||||||||||||
| 2018 | 49,383 | 36,950 | 74.8 | % | — | 3.1 | % | 428,657 | 1.5 | % | |||||||||||||||||||||||||||||||
| Subtotal | 635,177 | 386,435 | 60.8 | % | 38,021 | 33.1 | % | 1,603,986 | 2.1 | % | |||||||||||||||||||||||||||||||
| Other geographies: | |||||||||||||||||||||||||||||||||||||||||
ZBA(4) | 11,855 | 11,855 | 100.0 | % | — | 1.0 | % | — | — | % | |||||||||||||||||||||||||||||||
| 2013 | 150 | — | — | % | — | — | % | — | — | % | |||||||||||||||||||||||||||||||
| 2014 | 5,209 | 17,345 | 333.0 | % | — | 1.5 | % | 62,455 | 2.4 | % | |||||||||||||||||||||||||||||||
| 2015 | 30,677 | 20,188 | 65.8 | % | (1,748) | 1.7 | % | 19,592 | 7.0 | % | |||||||||||||||||||||||||||||||
| 2016 | 24,604 | 11,268 | 45.8 | % | (869) | 1.0 | % | 26,779 | 2.5 | % | |||||||||||||||||||||||||||||||
| 2017 | 23,075 | 10,377 | 45.0 | % | — | 0.9 | % | 30,599 | 2.7 | % | |||||||||||||||||||||||||||||||
| 2018 | 12,910 | 6,502 | 50.4 | % | (160) | 0.6 | % | 29,749 | 3.4 | % | |||||||||||||||||||||||||||||||
| Subtotal | 108,480 | 77,535 | 71.5 | % | (2,777) | 6.7 | % | 169,174 | 3.2 | % | |||||||||||||||||||||||||||||||
| Total | $ | 1,967,620 | $ | 1,167,132 | 59.3 | % | $ | 41,473 | 100.0 | % | $ | 3,137,893 | 2.9 | % | |||||||||||||||||||||||||||
_______________________
(1)Does not include amounts collected on behalf of others.
(2)Gross revenue and the revenue recognition rate exclude the effects of net portfolio allowances or net portfolio allowance reversals.
(3)Monthly IRR relates to accretion portfolios and does not include portfolios on cost recovery.
(4)ZBA revenue typically has a 100% revenue recognition rate. However, collections on ZBA pool groups where a valuation allowance remains must first be recorded as an allowance reversal until the allowance for that pool group is zero. Once the entire valuation allowance is reversed, the revenue recognition rate will become 100%. All 2009 and 2010 vintages have been converted to ZBA.
(5)Adjustment resulting from certain ZBA revenue that was classified as collections in cost recovery portfolios in prior periods.
The increase in revenue from receivable portfolios was primarily due to increased IRRs resulting from sustained improvements in portfolio collections driven by liquidation improvement initiatives.
Servicing revenue primarily consists of fee-based income earned in Europe for debt servicing and other portfolio management services for credit originators for non-performing loans. The decrease in fee income was primarily attributable to
36
the unfavorable impact of foreign currency translation, which was primarily the result of the strengthening of the U.S. dollar against the British Pound, and the sale of Baycorp in August 2019 as well as the sale of Refinancia in December 2018. Subsequent to the sales, we no longer earn servicing revenue from Baycorp or Refinancia.
Other revenues included a gain of approximately $9.3 million recognized on the sale of certain portfolios in Europe during the year ended December 31, 2019. Refer to “Note 1: Ownership, Description of Business, and Summary of Significant Accounting Policies” of the notes to our consolidated financial statements for our accounting policy on transfers of financial assets.
Net receivable portfolio allowances were $8.1 million for the year ended December 31, 2019 and were primarily attributable to underperformance of certain European portfolios. Net receivable portfolio allowance reversals were $41.5 million for the year ended December 31, 2018. Allowance reversals were primarily a result of sustained improvements in portfolio collections on certain portfolios on which we had previously recorded portfolio allowances in the past. These improvements in portfolio collections were driven by liquidation improvement initiatives.
Operating Expenses
Our operating results are impacted by foreign currency translation, which represents the effect of translating operating results where the functional currency is different than our U.S. dollar reporting currency. The strengthening of the U.S. dollar relative to other foreign currencies has a favorable impact on our international operating expenses, and the weakening of the U.S. dollar relative to other foreign currencies has an unfavorable impact on our international operating expenses. Our operating expenses were favorably impacted by foreign currency translation, primarily by the strengthening of the U.S. dollar against the British Pound by approximately 4.6% for the year ended December 31, 2019 as compared to the year ended December 31, 2018.
Operating expenses are explained in more detail as follows:
Salaries and Employee Benefits
Salaries and employee benefits increased as a result of an increase in salaries and employee benefits at our domestic sites as part of our initiative to increase collections capacity. The increase was partially offset by a decrease in headcount at our international subsidiaries and the favorable impact of foreign currency translation, primarily from the strengthening of the U.S. dollar against the British Pound.
Stock-based compensation decreased $0.4 million, or 3.3%, to $12.6 million during the year ended December 31, 2019, from $13.0 million during the year ended December 31, 2018. The slight decrease was primarily attributable to larger expense reversals during the current year as compared to the corresponding periods in the prior year resulting from adjustments to estimated vesting of certain performance-based awards. The decrease was partially offset by additional expenses recognized due to the continued vesting of equity awards for the Cabot Transaction.
Cost of Legal Collections
Cost of legal collections primarily includes contingent fees paid to our network of attorneys and the cost of litigation. We pursue legal collections using a network of attorneys that specialize in collection matters and through our internal legal channel. Under the agreements with our contracted attorneys, we advance certain out-of-pocket court costs, or Deferred Court Costs. We capitalize these costs in the consolidated financial statements and provide a reserve for those costs that we believe will ultimately be uncollectible. We determine the reserve based on our analysis of historical court costs recovery data.
The cost of legal collections in the United States increased by $2.7 million, or 1.6%, to $174.4 million during the year ended December 31, 2019 compared to $171.7 million during the year ended December 31, 2018. The cost of legal collections in Europe decreased by $4.4 million, or 14.0%, to $27.4 million during the year ended December 31, 2019 compared to $31.8 million during the year ended December 31, 2018. The decrease in Europe was primarily due to the shift of account placements towards non-legal collection channels.
General and Administrative Expenses
Excluding the indirect costs relating to the Cabot Transaction of approximately $8.6 million in 2018, general and administrative expenses decreased $1.5 million, or 1.0% during the year ended December 31, 2019 as compared to the prior year. The decrease was primarily due to (1) higher merger and acquisition costs incurred in prior periods, (2) the favorable impact of the strengthening of the U.S. dollar relative to other foreign currencies and (3) higher infrastructure costs incurred at our domestic sites in prior periods.
Other Operating Expenses
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The decrease in other operating expenses was primarily due to a large expense incurred in our previously owned subsidiary Refinancia during the prior periods, in addition to reduced expenditures for temporary services and the favorable impact of the strengthening of the U.S. dollar relative to other foreign currencies.
Collection Agency Commissions
During the year ended December 31, 2019, we incurred $63.9 million in commissions to third-party collection agencies, or 27.0% of the related gross collections of $236.2 million. During the period, the commission rate as a percentage of related gross collections was 18.5% and 22.7% for our collection outsourcing channels in the United States and Europe, respectively. During the year ended December 31, 2018, we incurred $47.9 million in commissions, or 22.5%, of the related gross collections of $213.6 million. During 2018, the commission rate as a percentage of related gross collections was 15.0% and 22.7% for our collection outsourcing channels in the United States and Europe, respectively.
The increase in collection agency commissions during the year ended December 31, 2019 as compared with the year ended December 31, 2018 was primarily driven by the change in our LAAP operations. As discussed in the “Collections from Purchased Receivables by Channel and Geographic Location” section above, in December 2018, we completed the sale of all our interest in Refinancia, which remains the servicer for the non-performing loans we own in Colombia and Peru. Subsequent to December 2018, collections for these non-performing loans are classified as collection agency collections instead of call center and digital collections. As a result, costs associated with these collections are included in collection agency commissions.
Collections through the collection agencies channel are predominately in Europe and Latin America and vary from period to period depending on, among other things, the number of accounts placed with an agency versus accounts collected internally. Commissions as a percentage of collections in this channel also vary from period to period depending on, among other things, the amount of time that has passed since the charge-off of the accounts placed with an agency, the asset class, and the geographic location of the receivables. Generally, freshly charged-off accounts have a lower commission rate than accounts that have been charged off for a longer period of time, and commission rates for purchased bankruptcy portfolios are lower than the commission rates for charged-off credit card accounts. The United States collection agency commission rate is generally lower than the European rate due to a higher concentration of lower commission rate bankruptcy portfolios collected through the collection agency channel in the United States.
Interest Expense
The following table summarizes our interest expense (in thousands, except percentages):
| Year Ended December 31, | |||||||||||||||||||||||
| 2019 | 2018 | $ Change | % Change | ||||||||||||||||||||
| Stated interest on debt obligations | $ | 193,003 | $ | 186,178 | $ | 6,825 | 3.7 | % | |||||||||||||||
| Interest expense on preferred equity certificates | — | 17,307 | (17,307) | (100.0) | % | ||||||||||||||||||
| Amortization of loan fees and other loan costs | 20,777 | 25,332 | (4,555) | (18.0) | % | ||||||||||||||||||
Amortization of debt discount | 12,980 | 11,231 | 1,749 | 15.6 | % | ||||||||||||||||||
| Total interest expense | $ | 226,760 | $ | 240,048 | $ | (13,288) | (5.5) | % | |||||||||||||||
The decrease in interest expense during the year ended December 31, 2019 as compared to the year ended December 31, 2018 was primarily attributable to the decrease in preferred equity certificates (“PECs”) interest expense. On July 24, 2018, in connection with the Cabot Transaction, we purchased all outstanding PECs including accrued interest that were held by Cabot’s minority shareholders. As a result, no PEC interest expense was incurred subsequent to the Cabot Transaction. The decrease in interest expense was also attributable to higher expenses incurred during the year ended December 31, 2018 relating to finance charges associated with our refinancing activities. During the year ended December 31, 2018, interest expense included approximately $9.2 million in fees relating to the refinancing of the Cabot senior secured notes and approximately $2.5 million of fees for a bridge loan commitment related to the Cabot Transaction. The decrease in interest expense during the year ended December 31, 2019 was also attributable to the favorable impact of the strengthening of the U.S. dollar relative to other foreign currencies.
The decrease in interest expense was partially offset by (1) increases in LIBOR, which resulted in increased interest expense for the Encore Revolving Credit Facility and the Cabot Securitisation Senior Facility and (2) higher balances on the Encore Revolving Credit Facility, Cabot Securitisation Senior Facility, and Cabot Credit Facilities. In addition, the decrease was partially offset by $9.0 million of refinancing costs incurred during the year ended December 31, 2019 associated with the issuance of the 2024 Cabot Floating Rate Notes.
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Other Expense or Income
Other expense or income consists primarily of foreign currency exchange gains or losses, interest income and gains or losses recognized on certain transactions outside of our normal course of business. Other expense was $18.3 million during the year ended December 31, 2019 and primarily included the loss recognized on the Baycorp Transaction of $12.5 million.
Other expense was $8.8 million during the year ended December 31, 2018 and was primarily the result of a loss on a derivative contract of $9.3 million. On May 8, 2018, in anticipation of the completion of the Cabot Transaction, we entered into a foreign exchange forward contract with a notional amount of £176.0 million, which was approximately the anticipated cash consideration for the Cabot Transaction. On August 3, 2018, we settled this contract in cash and recognized a total loss of $9.3 million. This loss was substantially offset by the decrease of final cash consideration in U.S. dollars for the Cabot Transaction.
Provision for Income Taxes
During the years ended December 31, 2019 and 2018, we recorded income tax provisions for income from continuing operations of $32.3 million and $46.8 million, respectively.
The effective tax rates for the respective periods are shown below:
| Year Ended December 31, | |||||||||||
| 2019 | 2018 | ||||||||||
| Federal provision | 21.0 | % | 21.0 | % | |||||||
| State provision | 0.2 | % | 0.1 | % | |||||||
Foreign rate differential(1) | (2.2) | % | (11.7) | % | |||||||
Transaction costs(2) | 0.0 | % | 1.0 | % | |||||||
Permanent items(3) | 0.0 | % | 1.1 | % | |||||||
Change in valuation allowance(4) | (0.5) | % | 17.7 | % | |||||||
IRS settlement(5) | (2.4) | % | — | % | |||||||
| Other | 0.0 | % | 0.7 | % | |||||||
| Effective rate | 16.1 | % | 29.9 | % | |||||||
________________________
(1)Relates primarily to the lower tax rates on the income or loss attributable to international operations.
(2)In 2018, relates primarily to transaction costs incurred in connection with the Cabot Transaction.
(3)Represents a provision for nondeductible items.
(4)Net decrease in valuation allowance during 2019 is attributable to disposition of certain foreign subsidiaries with cumulative operating losses for tax purposes. In 2018, valuation allowance net increase recorded as a result of certain foreign subsidiaries’ cumulative operating losses for tax purposes.
(5)In 2019, includes tax benefit resulting from tax accounting method change.
The effective tax rate for the year ended December 31, 2019 decreased to 16.1% as compared to 29.9% for the year ended December 31, 2018. The decrease was primarily related to the disposition of certain foreign entities with cumulative operating losses for tax purposes during the period ended December 31, 2019.
Our effective tax rate could fluctuate significantly on a quarterly basis and could be adversely affected to the extent earnings are lower than anticipated in countries that have lower statutory tax rates and higher than anticipated in countries that have higher statutory tax rates.
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Cost per Dollar Collected
We utilize cost per dollar collected (or “cost-to-collect”) in order to facilitate a comparison of approximate costs to cash collections from purchased receivables for our portfolio purchasing and recovery business. Cost-to-collect is calculated by dividing adjusted operating expenses by collections from purchased receivables. The calculation of adjusted operating expenses is illustrated in detail in the “Non-GAAP Disclosure” section. The following table summarizes our overall cost per dollar collected by geographic location during the periods presented:
| Year Ended December 31, | |||||||||||
| 2019 | 2018 | ||||||||||
| United States | 40.3 | % | 42.4 | % | |||||||
| Europe | 28.2 | % | 27.7 | % | |||||||
| Other geographies | 54.3 | % | 47.0 | % | |||||||
| Overall cost per dollar collected | 37.0 | % | 37.9 | % | |||||||
Cost-to-collect decreased 90 basis points to 37.0% for the year ended December 31, 2019 from 37.9% during the prior year.
The decrease in overall cost-to-collect was driven by improved cost-to-collect in the United States, which was due to a combination of (1) continued improvement in operational efficiencies in the collection process, (2) collection mix shifting towards non-legal collection, which has lower cost-to-collect, (3) higher total collections that blended down fixed cost and reduced overall cost-to-collect, and (4) reduced cost-to-collect in the legal channel that was driven by improved court cost recovery rates.
Over time, we expect our cost-to-collect to remain competitive, but also to fluctuate from quarter to quarter based on seasonality, product mix of purchases, acquisitions, foreign exchange rates, the cost of new operating initiatives, and the changing regulatory and legislative environment.
As discussed in the “Recent Accounting Pronouncements Not Yet Effective” section in “Note 1: Ownership, Description of Business, and Summary of Significant Accounting Policies” of the notes to the consolidated financial statements, effective for our financial statements for reporting periods subsequent to January 1, 2020, we will no longer capitalize our upfront court costs, instead we will expense all court costs as incurred, which will adversely impact the cost-to-collect metric but will have no impact on the amount of court cost payments incurred.
Non-GAAP Disclosure
In addition to the financial information prepared in conformity with Generally Accepted Accounting Principles (“GAAP”), we provide historical non-GAAP financial information. Management believes that the presentation of such non-GAAP financial information is meaningful and useful in understanding the activities and business metrics of our operations. Management believes that these non-GAAP financial measures reflect an additional way of viewing aspects of our business that, when viewed with our GAAP results, provide a more complete understanding of factors and trends affecting our business.
Management believes that the presentation of these measures provides investors with greater transparency and facilitates comparison of operating results across a broad spectrum of companies with varying capital structures, compensation strategies, derivative instruments, and amortization methods, which provide a more complete understanding of our financial performance, competitive position, and prospects for the future. Readers should consider the information in addition to, but not instead of, our financial statements prepared in accordance with GAAP. This non-GAAP financial information may be determined or calculated differently by other companies, limiting the usefulness of these measures for comparative purposes.
Adjusted Income From Continuing Operations Per Share. Management uses non-GAAP adjusted income from continuing operations attributable to Encore and adjusted income from continuing operations per share (which we also refer to from time to time as adjusted earnings per share), to assess operating performance, in order to highlight trends in our business that may not otherwise be apparent when relying on financial measures calculated in accordance with GAAP. Adjusted income from continuing operations attributable to Encore excludes non-cash interest and issuance cost amortization relating to our convertible and exchangeable notes, acquisition, integration and restructuring related expenses, settlement fees and related administrative expenses, amortization of certain acquired intangible assets and other charges or gains that are not indicative of ongoing operations.
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The following table provides a reconciliation between income from continuing operations and diluted income from continuing operations per share attributable to Encore calculated in accordance with GAAP to adjusted income from continuing operations and adjusted income from continuing operations per share attributable to Encore, respectively. GAAP diluted earnings per share for the year ended December 31, 2017, includes the effect of approximately 0.2 million common shares that were issuable upon conversion of certain convertible senior notes because the average stock price during the period exceeded the conversion price of these notes. However, as described in “Note 8: Borrowings—Encore Convertible Notes and Exchangeable Notes” in the notes to our consolidated financial statements, we have certain hedging transactions in place that have the effect of increasing the effective conversion and exchange price of some of these notes. Accordingly, while these common shares are included in our diluted earnings per share, the hedge transactions will offset the impact of this dilution and no shares will be issued unless our stock price exceeds the effective conversion price, thereby creating a discrepancy between the accounting effect of those notes under GAAP and their economic impact. There was no dilutive effect relating to our convertible or exchangeable notes during the year ended December 31, 2019 or during the year ended December 31, 2018.
We have presented the following metrics both including and excluding the dilutive effect of these convertible and exchangeable notes to better illustrate the economic impact of those notes and the related hedging transactions to shareholders (in thousands, except per share data):
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||||||||||||||||||||||||||
| $ | Per Diluted Share— Accounting and Economic | $ | Per Diluted Share— Accounting and Economic | $ | Per Diluted Share— Accounting | Per Diluted Share— Economic | |||||||||||||||||||||||||||||||||||
GAAP net income from continuing operations attributable to Encore, as reported | $ | 167,869 | $ | 5.33 | $ | 115,886 | $ | 4.06 | $ | 83,427 | $ | 3.16 | $ | 3.18 | |||||||||||||||||||||||||||
| Adjustments: | |||||||||||||||||||||||||||||||||||||||||
Convertible and exchangeable notes non-cash interest and issuance cost amortization | 15,501 | 0.50 | 13,896 | 0.50 | 12,353 | 0.47 | 0.47 | ||||||||||||||||||||||||||||||||||
Acquisition, integration and restructuring related expenses(1) | 7,049 | 0.22 | 11,506 | 0.40 | 16,628 | 0.63 | 0.63 | ||||||||||||||||||||||||||||||||||
Amortization of certain acquired intangible assets(2) | 7,017 | 0.22 | 8,337 | 0.29 | 3,561 | 0.13 | 0.14 | ||||||||||||||||||||||||||||||||||
Net gain on fair value adjustments to contingent considerations(3) | (2,300) | (0.07) | (5,664) | (0.20) | (2,822) | (0.11) | (0.11) | ||||||||||||||||||||||||||||||||||
Expenses related to withdrawn Cabot IPO(4) | — | — | 2,984 | 0.10 | 15,339 | 0.58 | 0.58 | ||||||||||||||||||||||||||||||||||
Loss on derivatives in connection with the Cabot Transaction(5) | — | — | 9,315 | 0.33 | — | — | — | ||||||||||||||||||||||||||||||||||
Goodwill impairment(6) | 10,718 | 0.34 | — | — | — | — | — | ||||||||||||||||||||||||||||||||||
Loss on Baycorp Transaction(6) | 12,489 | 0.40 | — | — | — | — | — | ||||||||||||||||||||||||||||||||||
Income tax effect of the adjustments(7) | (23,230) | (0.74) | (9,079) | (0.32) | (7,936) | (0.30) | (0.30) | ||||||||||||||||||||||||||||||||||
Impact from tax reform(8) | — | — | — | — | 1,182 | 0.05 | 0.05 | ||||||||||||||||||||||||||||||||||
Change in tax accounting method(9) | (7,825) | (0.25) | — | — | — | — | — | ||||||||||||||||||||||||||||||||||
Adjustments attributable to noncontrolling interest(10) | — | — | (5,022) | (0.18) | (15,720) | (0.60) | (0.60) | ||||||||||||||||||||||||||||||||||
Adjusted income from continuing operations attributable to Encore | $ | 187,288 | $ | 5.95 | $ | 142,159 | $ | 4.98 | $ | 106,012 | $ | 4.01 | $ | 4.04 | |||||||||||||||||||||||||||
________________________
(1)Amount represents acquisition, integration and restructuring related expenses, which for the year ended December 31, 2019 includes approximately $1.3 million of transaction costs incurred associated with the Baycorp Transaction. We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
41
(2)As we acquire debt solution service providers around the world, we also acquire intangible assets, such as trade names and customer relationships. These intangible assets are valued at the time of the acquisition and amortized over their estimated lives. We believe that amortization of acquisition-related intangible assets, especially the amortization of an acquired company’s trade names and customer relationships, is the result of pre-acquisition activities. In addition, the amortization of these acquired intangibles is a non-cash static expense that is not affected by operations during any reporting period. As a result, the amortization of certain acquired intangible assets is excluded from our adjusted income from continuing operations attributable to Encore and adjusted income from continuing operations per share.
(3)Amount represents the net gain recognized as a result of fair value adjustments to contingent considerations that were established for our acquisitions of debt solution service providers in Europe. We have adjusted for this amount because we do not believe this is indicative of ongoing operations. Refer to the Contingent Consideration section of “Note 2: Fair Value Measurements” in the notes to our consolidated financial statements for further details.
(4)Amount represents expenses related to the proposed and later withdrawn initial public offering by CCM. We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(5)Amount represents the loss recognized on the forward contract we entered into in anticipation of the completion of the Cabot Transaction. We adjust for this amount because we believe the loss is not indicative of ongoing operations; therefore, adjusting for this loss enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(6)The Baycorp Transaction resulted in a goodwill impairment charge of $10.7 million and a loss on sale of $12.5 million during the year ended December 31, 2019. We believe the goodwill impairment charge and the loss on sale are not indicative of ongoing operations, therefore adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(7)Amount represents the total income tax effect of the adjustments, which is generally calculated based on the applicable marginal tax rate of the jurisdiction in which the portion of the adjustment occurred. Additionally, we adjust for certain discrete tax items that are not indicative of our ongoing operations. We recognized approximately $17.5 million, or $0.55 per diluted share, in tax benefit as a result of the Baycorp Transaction, which is included in this income tax adjustment during the year ended December 31, 2019.
(8)As a result of the Tax Reform Act, we incurred a net additional tax expense of approximately $1.2 million during the year ended December 31, 2017. We believe the Tax Reform Act related expenses are not indicative of our ongoing operations, therefore adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(9)Amount represents the benefit from the tax accounting method change related to revenue reporting. We adjust for certain discrete tax items that are not indicative of our ongoing operations.
(10)Certain of the above pre-tax adjustments include expenses recognized by our partially-owned subsidiaries. This adjustment represents the portion of the non-GAAP adjustments that are attributable to noncontrolling interest.
Adjusted EBITDA. Management utilizes adjusted EBITDA (defined as net income before discontinued operations, interest income and expense, taxes, depreciation and amortization, stock-based compensation expenses, acquisition, integration and restructuring related expenses, settlement fees and related administrative expenses and other charges or gains that are not indicative of ongoing operations), in the evaluation of our operating performance. Adjusted EBITDA for the periods presented is as follows (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| GAAP net income, as reported | $ | 168,909 | $ | 109,736 | $ | 78,978 | |||||||||||
| Adjustments: | |||||||||||||||||
| Loss from discontinued operations, net of tax | — | — | 199 | ||||||||||||||
| Interest expense | 226,760 | 240,048 | 204,161 | ||||||||||||||
| Provision for income taxes | 32,333 | 46,752 | 52,049 | ||||||||||||||
| Depreciation and amortization | 41,029 | 41,228 | 39,977 | ||||||||||||||
| Stock-based compensation expense | 12,557 | 12,980 | 10,399 | ||||||||||||||
Loss on derivative in connection with the Cabot Transaction(1) | — | 9,315 | — | ||||||||||||||
Acquisition, integration and restructuring related expenses(2) | 7,049 | 7,523 | 11,962 | ||||||||||||||
Net gain on fair value adjustments to contingent considerations(3) | (2,300) | (5,664) | (2,822) | ||||||||||||||
Expenses related to withdrawn Cabot IPO(4) | — | 2,984 | 15,339 | ||||||||||||||
Goodwill impairment(5) | 10,718 | — | — | ||||||||||||||
Loss on Baycorp Transaction(5) | 12,489 | — | — | ||||||||||||||
| Interest income | (3,693) | (3,345) | (3,635) | ||||||||||||||
| Adjusted EBITDA | $ | 505,851 | $ | 461,557 | $ | 406,607 | |||||||||||
Collections applied to principal balance(6) | $ | 765,748 | $ | 759,014 | $ | 673,035 | |||||||||||
________________________
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(1)Amount represents the loss recognized on the forward contract we entered into in anticipation of the completion of the Cabot Transaction. We adjust for this amount because we believe the loss is not indicative of ongoing operations; therefore, adjusting for this loss enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(2)Amount represents acquisition, integration and restructuring related expenses, which includes approximately $1.3 million of transaction costs incurred associated with the Baycorp Transaction during the year ended December 31, 2019. We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(3)Amount represents the net gain recognized as a result of fair value adjustments to contingent considerations that were established for our acquisitions of debt solution service providers in Europe. We have adjusted for this amount because we do not believe this is indicative of ongoing operations. Refer to the Contingent Consideration section of “Note 2: Fair Value Measurements” in the notes to our consolidated financial statements for further details.
(4)Amount represents expenses related to the proposed and later withdrawn initial public offering by CCM. We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(5)The Baycorp Transaction resulted in a goodwill impairment charge of $10.7 million and a loss on sale of $12.5 million during the year ended December 31, 2019. We believe the goodwill impairment charge and the loss on sale are not indicative of ongoing operations, therefore adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(6)Amount represents (a) gross collections from receivable portfolios less (b) revenue from receivable portfolios and (c) allowance charges or allowance reversals on receivable portfolios.
Adjusted Operating Expenses. Management utilizes adjusted operating expenses in order to facilitate a comparison of approximate costs to cash collections for our portfolio purchasing and recovery business. Adjusted operating expenses for our portfolio purchasing and recovery business are calculated by starting with GAAP total operating expenses and backing out stock-based compensation expense, operating expenses related to non-portfolio purchasing and recovery business, acquisition, integration and restructuring related operating expenses, settlement fees and related administrative expenses and other charges or gains that are not indicative of ongoing operations. Adjusted operating expenses related to our portfolio purchasing and recovery business for the periods presented are as follows (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| GAAP total operating expenses, as reported | $ | 951,336 | $ | 956,730 | $ | 862,498 | |||||||||||
| Adjustments: | |||||||||||||||||
Operating expenses related to non-portfolio purchasing and recovery business(1) | (173,190) | (193,715) | (125,028) | ||||||||||||||
| Stock-based compensation expense | (12,557) | (12,980) | (10,399) | ||||||||||||||
Acquisition, integration and restructuring related operating expenses(2) | (7,049) | (7,523) | (16,628) | ||||||||||||||
Expenses related to withdrawn Cabot IPO(3) | — | (2,984) | (15,339) | ||||||||||||||
| Goodwill impairment | (10,718) | — | — | ||||||||||||||
Net gain on fair value adjustments to contingent considerations(4) | 2,300 | 5,664 | 2,822 | ||||||||||||||
Adjusted operating expenses related to portfolio purchasing and recovery business | $ | 750,122 | $ | 745,192 | $ | 697,926 | |||||||||||
________________________
(1)Operating expenses related to non-portfolio purchasing and recovery business include operating expenses from other operating segments that primarily engage in fee-based business, as well as corporate overhead not related to our portfolio purchasing and recovery business.
(2)Amount represents acquisition, integration and restructuring related operating expenses (including approximately $1.3 million of transaction costs incurred associated with the Baycorp Transaction during the year ended December 31, 2019 and excluding amounts already included in stock-based compensation expense). We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(3)Amount represents expenses related to the proposed and later withdrawn initial public offering by CCM. We adjust for this amount because we believe these expenses are not indicative of ongoing operations; therefore, adjusting for these expenses enhances comparability to prior periods, anticipated future periods, and our competitors’ results.
(4)Amount represents the net gain recognized as a result of fair value adjustments to contingent considerations that were established for our acquisitions of debt solution service providers in Europe. We have adjusted for this amount because we do not believe this is indicative of ongoing operations. Refer to the Contingent Consideration section of “Note 2: Fair Value Measurements” in the notes to our consolidated financial statements for further details.
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Supplemental Performance Data
The tables included in this supplemental performance data section include detail for purchases, collections and ERC by year of purchase. During any fiscal quarter in which we acquire an entity that has portfolio, the entire historical portfolio of the acquired company is aggregated into static pools for the quarter of acquisition based on common characteristics, resulting in pools for that quarter that may consist of several different vintages of portfolio. These quarterly pools are included in the tables in this section by year of purchase. For example, with the acquisition of Cabot in July 2013, all of Cabot’s historical portfolio to the date of the acquisition (which included several years of historical purchases at various stages of maturity) is included in 2013 for Europe.
Our collection expectations are based on account characteristics and economic variables. Additional adjustments are made to account for qualitative factors that may affect the payment behavior of our consumers and servicing related adjustments to ensure our collection expectations are aligned with our operations. We continue to refine our process of forecasting collections both domestically and internationally with a focus on operational enhancements. Our collection expectations vary between types of portfolio and geographic location. For example, in the U.K., due to the higher concentration of payment plans, as compared to the U.S. and other locations in Europe, we expect to receive streams of collections over longer periods of time. As a result, past performance of pools in certain geographic locations or of certain types of portfolio are not necessarily a suitable indicator of future results in other locations or for other types of portfolio.
The supplemental performance data presented in this section is impacted by foreign currency translation, which represents the effect of translating financial results where the functional currency of our foreign subsidiary is different than our U.S. dollar reporting currency. For example, the strengthening of the U.S. dollar relative to other foreign currencies has an unfavorable reporting impact on our international purchases, collections, and ERC, and the weakening of the U.S. dollar relative to other foreign currencies has a favorable impact on our international purchases, collections, and ERC.
We utilize proprietary forecasting models to continuously evaluate the economic life of each pool.
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Cumulative Collections from Purchased Receivables to Purchase Price Multiple
The following table summarizes our receivable purchases and related gross collections by year of purchase (in thousands, except multiples):
Year of Purchase | Purchase Price(1) | Cumulative Collections through December 31, 2019 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <2010 | 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | Total(2) | Multiple(3) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| United States: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <2010 | $ | 1,403,708 | $ | 2,617,761 | $ | 478,541 | $ | 348,627 | $ | 237,650 | $ | 171,270 | $ | 124,564 | $ | 97,044 | $ | 74,026 | $ | 58,976 | $ | 48,698 | $ | 40,907 | $ | 4,298,064 | 3.1 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2010 | 357,299 | — | 125,853 | 288,788 | 220,686 | 156,806 | 111,993 | 83,578 | 55,650 | 40,193 | 31,699 | 24,948 | 1,140,194 | 3.2 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2011 | 383,805 | — | — | 123,596 | 301,949 | 226,521 | 155,180 | 112,906 | 77,257 | 56,287 | 41,148 | 33,445 | 1,128,289 | 2.9 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2012 | 548,818 | — | — | — | 187,721 | 350,134 | 259,252 | 176,914 | 113,067 | 74,507 | 48,832 | 37,327 | 1,247,754 | 2.3 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2013 | 551,922 | — | — | — | — | 230,051 | 397,646 | 298,068 | 203,386 | 147,503 | 107,399 | 84,665 | 1,468,718 | 2.7 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2014 | 517,800 | — | — | — | — | — | 144,178 | 307,814 | 216,357 | 142,147 | 94,929 | 69,059 | 974,484 | 1.9 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2015 | 499,429 | — | — | — | — | — | — | 105,610 | 231,102 | 186,391 | 125,673 | 85,042 | 733,818 | 1.5 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 553,648 | — | — | — | — | — | — | — | 110,875 | 283,035 | 234,690 | 159,279 | 787,879 | 1.4 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 528,779 | — | — | — | — | — | — | — | — | 111,902 | 315,853 | 255,048 | 682,803 | 1.3 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 631,453 | — | — | — | — | — | — | — | — | — | 175,042 | 351,696 | 526,738 | 0.8 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 679,875 | — | — | — | — | — | — | — | — | — | — | 174,693 | 174,693 | 0.3 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 6,656,536 | 2,617,761 | 604,394 | 761,011 | 948,006 | 1,134,782 | 1,192,813 | 1,181,934 | 1,081,720 | 1,100,941 | 1,223,963 | 1,316,109 | 13,163,434 | 2.0 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Europe: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2013 | 619,079 | — | — | — | — | 134,259 | 249,307 | 212,129 | 165,610 | 146,993 | 132,663 | 113,228 | 1,154,189 | 1.9 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2014 | 630,342 | — | — | — | — | — | 135,549 | 198,127 | 156,665 | 137,806 | 129,033 | 105,337 | 862,517 | 1.4 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2015 | 423,297 | — | — | — | — | — | — | 65,870 | 127,084 | 103,823 | 88,065 | 72,277 | 457,119 | 1.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 258,841 | — | — | — | — | — | — | — | 44,641 | 97,587 | 83,107 | 63,198 | 288,533 | 1.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 464,110 | — | — | — | — | — | — | — | — | 68,111 | 152,926 | 118,794 | 339,831 | 0.7 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 455,549 | — | — | — | — | — | — | — | — | — | 49,383 | 118,266 | 167,649 | 0.4 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 296,937 | — | — | — | — | — | — | — | — | — | — | 44,118 | 44,118 | 0.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 3,148,155 | — | — | — | — | 134,259 | 384,856 | 476,126 | 494,000 | 554,320 | 635,177 | 635,218 | 3,313,956 | 1.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other geographies: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2012 | 6,721 | — | — | — | — | 3,848 | 2,561 | 1,208 | 542 | 551 | 422 | 390 | 9,522 | 1.4 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2013 | 29,568 | — | — | — | — | 6,617 | 17,615 | 10,334 | 4,606 | 3,339 | 2,468 | 1,573 | 46,552 | 1.6 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2014 | 86,989 | — | — | — | — | — | 9,652 | 16,062 | 18,403 | 9,813 | 7,991 | 6,472 | 68,393 | 0.8 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2015 | 83,198 | — | — | — | — | — | — | 15,061 | 57,064 | 43,499 | 32,622 | 17,499 | 165,745 | 2.0 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 64,450 | — | — | — | — | — | — | — | 29,269 | 39,710 | 28,992 | 16,078 | 114,049 | 1.8 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 49,670 | — | — | — | — | — | — | — | — | 15,471 | 23,075 | 15,383 | 53,929 | 1.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 26,371 | — | — | — | — | — | — | — | — | — | 12,910 | 15,008 | 27,918 | 1.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 2,668 | — | — | — | — | — | — | — | — | — | — | 3,198 | 3,198 | 1.2 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 349,635 | — | — | — | — | 10,465 | 29,828 | 42,665 | 109,884 | 112,383 | 108,480 | 75,601 | 489,306 | 1.4 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total | $ | 10,154,326 | $ | 2,617,761 | $ | 604,394 | $ | 761,011 | $ | 948,006 | $ | 1,279,506 | $ | 1,607,497 | $ | 1,700,725 | $ | 1,685,604 | $ | 1,767,644 | $ | 1,967,620 | $ | 2,026,928 | $ | 16,966,696 | 1.7 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
________________________
(1)Adjusted for Put-Backs and Recalls. Put-Backs (“Put-Backs”) and recalls (“Recalls”) represent ineligible accounts that are returned by us or recalled by the seller pursuant to specific guidelines as set forth in the respective purchase agreement.
(2)Cumulative collections from inception through December 31, 2019, excluding collections on behalf of others.
(3)Cumulative Collections Multiple (“Multiple”) through December 31, 2019 refers to collections as a multiple of purchase price.
45
Total Estimated Collections from Purchased Receivables to Purchase Price Multiple
The following table summarizes our purchases, resulting historical gross collections, and estimated remaining gross collections for purchased receivables, by year of purchase (in thousands, except multiples):
Purchase Price(1) | Historical Collections(2) | Estimated Remaining Collections | Total Estimated Gross Collections | Total Estimated Gross Collections to Purchase Price | |||||||||||||||||||||||||
| United States: | |||||||||||||||||||||||||||||
| <2010 | $ | 1,403,708 | $ | 4,298,064 | $ | 84,162 | $ | 4,382,226 | 3.1 | ||||||||||||||||||||
| 2010 | 357,299 | 1,140,194 | 43,752 | 1,183,946 | 3.3 | ||||||||||||||||||||||||
| 2011 | 383,805 | 1,128,289 | 69,577 | 1,197,866 | 3.1 | ||||||||||||||||||||||||
| 2012 | 548,818 | 1,247,754 | 80,806 | 1,328,560 | 2.4 | ||||||||||||||||||||||||
2013(3) | 551,922 | 1,468,718 | 226,760 | 1,695,478 | 3.1 | ||||||||||||||||||||||||
2014(3) | 517,800 | 974,484 | 152,772 | 1,127,256 | 2.2 | ||||||||||||||||||||||||
| 2015 | 499,429 | 733,818 | 172,175 | 905,993 | 1.8 | ||||||||||||||||||||||||
| 2016 | 553,648 | 787,879 | 314,521 | 1,102,400 | 2.0 | ||||||||||||||||||||||||
| 2017 | 528,779 | 682,803 | 491,853 | 1,174,656 | 2.2 | ||||||||||||||||||||||||
| 2018 | 631,453 | 526,738 | 818,780 | 1,345,518 | 2.1 | ||||||||||||||||||||||||
| 2019 | 679,875 | 174,693 | 1,303,125 | 1,477,818 | 2.2 | ||||||||||||||||||||||||
| Subtotal | 6,656,536 | 13,163,434 | 3,758,283 | 16,921,717 | 2.5 | ||||||||||||||||||||||||
| Europe: | |||||||||||||||||||||||||||||
2013(3) | 619,079 | 1,154,189 | 694,503 | 1,848,692 | 3.0 | ||||||||||||||||||||||||
2014(3) | 630,342 | 862,517 | 551,966 | 1,414,483 | 2.2 | ||||||||||||||||||||||||
2015(3) | 423,297 | 457,119 | 380,155 | 837,274 | 2.0 | ||||||||||||||||||||||||
| 2016 | 258,841 | 288,533 | 336,439 | 624,972 | 2.4 | ||||||||||||||||||||||||
| 2017 | 464,110 | 339,831 | 598,570 | 938,401 | 2.0 | ||||||||||||||||||||||||
| 2018 | 455,549 | 167,649 | 672,146 | 839,795 | 1.8 | ||||||||||||||||||||||||
| 2019 | 296,937 | 44,118 | 565,983 | 610,101 | 2.1 | ||||||||||||||||||||||||
| Subtotal | 3,148,155 | 3,313,956 | 3,799,762 | 7,113,718 | 2.3 | ||||||||||||||||||||||||
| Other geographies: | |||||||||||||||||||||||||||||
| 2012 | 6,721 | 9,522 | 482 | 10,004 | 1.5 | ||||||||||||||||||||||||
| 2013 | 29,568 | 46,552 | 2,214 | 48,766 | 1.6 | ||||||||||||||||||||||||
| 2014 | 86,989 | 68,393 | 68,373 | 136,766 | 1.6 | ||||||||||||||||||||||||
| 2015 | 83,198 | 165,745 | 26,970 | 192,715 | 2.3 | ||||||||||||||||||||||||
| 2016 | 64,450 | 114,049 | 15,187 | 129,236 | 2.0 | ||||||||||||||||||||||||
| 2017 | 49,670 | 53,929 | 44,093 | 98,022 | 2.0 | ||||||||||||||||||||||||
| 2018 | 26,371 | 27,918 | 16,969 | 44,887 | 1.7 | ||||||||||||||||||||||||
| 2019 | 2,668 | 3,198 | 722 | 3,920 | 1.5 | ||||||||||||||||||||||||
| Subtotal | 349,635 | 489,306 | 175,010 | 664,316 | 1.9 | ||||||||||||||||||||||||
| Total | $ | 10,154,326 | $ | 16,966,696 | $ | 7,733,055 | $ | 24,699,751 | 2.4 | ||||||||||||||||||||
________________________
(1)Purchase price refers to the cash paid to a seller to acquire a portfolio less Put-backs, Recalls, and other adjustments. Put-Backs and Recalls represent ineligible accounts that are returned by us or recalled by the seller pursuant to specific guidelines as set forth in the respective purchase agreement.
(2)Cumulative collections from inception through December 31, 2019, excluding collections on behalf of others.
(3)Includes portfolios acquired in connection with certain business combinations.
46
Estimated Remaining Gross Collections from Purchased Receivables by Year of Purchase
The following table summarizes our estimated remaining gross collections for purchased receivables by year of purchase (in thousands):
Estimated Remaining Gross Collections by Year of Purchase(1), (2) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2020 | 2021 | 2022 | 2023 | 2024 | 2025 | 2026 | 2027 | 2028 | >2028 | Total(3) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| United States: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| <2010 | $ | 36,427 | $ | 23,517 | $ | 14,684 | $ | 7,608 | $ | 1,926 | $ | — | $ | — | $ | — | $ | — | $ | — | $ | 84,162 | |||||||||||||||||||||||||||||||||||||||||||
| 2010 | 15,238 | 10,591 | 7,439 | 5,240 | 3,696 | 1,548 | — | — | — | — | 43,752 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2011 | 23,594 | 16,063 | 11,143 | 7,822 | 5,508 | 3,884 | 1,563 | — | — | — | 69,577 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2012 | 26,491 | 18,248 | 12,610 | 8,826 | 6,211 | 4,380 | 3,094 | 946 | — | — | 80,806 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
2013(4) | 64,630 | 51,329 | 36,333 | 25,667 | 18,165 | 12,884 | 9,143 | 6,490 | 2,119 | — | 226,760 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
2014(4) | 48,489 | 33,595 | 23,126 | 15,902 | 10,899 | 7,676 | 5,433 | 3,850 | 2,731 | 1,071 | 152,772 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2015 | 58,742 | 37,379 | 25,721 | 17,280 | 11,595 | 7,527 | 5,152 | 3,630 | 2,563 | 2,586 | 172,175 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 106,773 | 70,017 | 43,489 | 29,615 | 20,861 | 14,622 | 10,048 | 7,057 | 4,963 | 7,076 | 314,521 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 167,896 | 109,009 | 72,033 | 45,566 | 30,750 | 21,339 | 14,949 | 10,413 | 7,344 | 12,554 | 491,853 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 297,261 | 184,050 | 119,778 | 77,459 | 49,205 | 32,749 | 22,038 | 14,902 | 9,811 | 11,527 | 818,780 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 401,288 | 340,755 | 195,987 | 123,246 | 83,984 | 57,723 | 40,791 | 29,503 | 21,131 | 8,717 | 1,303,125 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 1,246,829 | 894,553 | 562,343 | 364,231 | 242,800 | 164,332 | 112,211 | 76,791 | 50,662 | 43,531 | 3,758,283 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Europe: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
2013(4) | 103,100 | 98,801 | 93,026 | 86,592 | 79,194 | 71,572 | 64,135 | 57,813 | 40,270 | — | 694,503 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
2014(4) | 88,964 | 81,449 | 73,765 | 67,389 | 59,729 | 50,985 | 43,913 | 38,911 | 34,776 | 12,085 | 551,966 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
2015(4) | 59,404 | 52,884 | 47,470 | 43,021 | 38,325 | 33,377 | 28,333 | 24,867 | 22,411 | 30,063 | 380,155 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 58,856 | 60,458 | 44,231 | 37,186 | 29,742 | 25,343 | 23,922 | 16,127 | 13,861 | 26,713 | 336,439 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 97,872 | 89,186 | 77,349 | 65,927 | 55,536 | 46,462 | 38,411 | 32,235 | 26,073 | 69,519 | 598,570 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 106,980 | 94,045 | 80,080 | 69,976 | 60,541 | 52,211 | 45,361 | 38,474 | 31,720 | 92,758 | 672,146 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 85,762 | 82,763 | 72,295 | 61,404 | 51,048 | 41,565 | 34,663 | 29,653 | 25,682 | 81,148 | 565,983 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 600,938 | 559,586 | 488,216 | 431,495 | 374,115 | 321,515 | 278,738 | 238,080 | 194,793 | 312,286 | 3,799,762 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other geographies: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2012 | 205 | 173 | 104 | — | — | — | — | — | — | — | 482 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2013 | 872 | 648 | 461 | 233 | — | — | — | — | — | — | 2,214 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2014 | 7,532 | 9,848 | 8,243 | 7,831 | 7,018 | 5,586 | 3,357 | 1,819 | 1,709 | 15,430 | 68,373 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
2015(4) | 5,295 | 4,531 | 3,996 | 3,246 | 2,266 | 1,517 | 1,050 | 920 | 795 | 3,354 | 26,970 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2016 | 6,450 | 4,672 | 3,120 | 812 | 87 | 39 | 7 | — | — | — | 15,187 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2017 | 9,192 | 8,067 | 6,105 | 4,514 | 2,629 | 2,281 | 1,627 | 893 | 865 | 7,920 | 44,093 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2018 | 5,673 | 4,110 | 2,960 | 2,016 | 1,000 | 537 | 351 | 230 | 92 | — | 16,969 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2019 | 270 | 181 | 122 | 82 | 56 | 11 | — | — | — | — | 722 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Subtotal | 35,489 | 32,230 | 25,111 | 18,734 | 13,056 | 9,971 | 6,392 | 3,862 | 3,461 | 26,704 | 175,010 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total | $ | 1,883,256 | $ | 1,486,369 | $ | 1,075,670 | $ | 814,460 | $ | 629,971 | $ | 495,818 | $ | 397,341 | $ | 318,733 | $ | 248,916 | $ | 382,521 | $ | 7,733,055 | |||||||||||||||||||||||||||||||||||||||||||
________________________
(1)ERC for Zero Basis Portfolios can extend beyond our collection forecasts. As of December 31, 2019, ERC for Zero Basis Portfolios includes approximately $127.9 million for purchased consumer and bankruptcy receivables in the United States. ERC for Zero Basis Portfolios in Europe and other geographies was immaterial. ERC also includes approximately $110.3 million from cost recovery portfolios, primarily in other geographies.
(2)The collection forecast of each pool in the calculation of accretion revenue is generally estimated up to 120 months in the United States and up to 180 months in Europe. Expected collections beyond the 120-month collection forecast in the United States are included in the presentation of ERC but are not included in the calculation of IRRs.
(3)Represents the expected remaining gross cash collections on purchased portfolios over a 180-month period. As of December 31, 2019, ERC for purchased receivables for 84-month and 120-month periods were:
| 84-Month ERC | 120-Month ERC | ||||||||||
| United States | 3,587,300 | 3,739,633 | |||||||||
| Europe | 3,054,604 | 3,600,233 | |||||||||
| Other geographies | 140,984 | 151,542 | |||||||||
| Total | 6,782,888 | 7,491,408 | |||||||||
(4) Includes portfolios acquired in connection with certain business combinations.
47
Unamortized Balances of Portfolios
The following table summarizes the remaining unamortized balances of our purchased receivable portfolios by year of purchase (in thousands, except percentages):
| Unamortized Balance as of December 31, 2019 | Purchase Price(1) | Unamortized Balance as a Percentage of Purchase Price | Unamortized Balance as a Percentage of Total | ||||||||||||||||||||
| United States: | |||||||||||||||||||||||
| 2011 | $ | 2,546 | $ | 383,805 | 0.7 | % | 0.1 | % | |||||||||||||||
| 2012 | 5,916 | 548,818 | 1.1 | % | 0.2 | % | |||||||||||||||||
2013(2) | 14,697 | 551,922 | 2.7 | % | 0.4 | % | |||||||||||||||||
2014(2) | 50,097 | 517,800 | 9.7 | % | 1.5 | % | |||||||||||||||||
| 2015 | 82,187 | 499,429 | 16.5 | % | 2.5 | % | |||||||||||||||||
| 2016 | 149,159 | 553,648 | 26.9 | % | 4.5 | % | |||||||||||||||||
| 2017 | 198,714 | 528,779 | 37.6 | % | 6.1 | % | |||||||||||||||||
| 2018 | 409,717 | 631,453 | 64.9 | % | 12.5 | % | |||||||||||||||||
| 2019 | 626,911 | 679,875 | 92.2 | % | 19.1 | % | |||||||||||||||||
| Subtotal | 1,539,944 | 4,895,529 | 31.5 | % | 46.9 | % | |||||||||||||||||
| Europe: | |||||||||||||||||||||||
2013(2) | 238,033 | 619,079 | 38.4 | % | 7.2 | % | |||||||||||||||||
2014(2) | 206,895 | 630,342 | 32.8 | % | 6.3 | % | |||||||||||||||||
2015(2) | 160,113 | 423,297 | 37.8 | % | 4.9 | % | |||||||||||||||||
| 2016 | 140,663 | 258,841 | 54.3 | % | 4.3 | % | |||||||||||||||||
| 2017 | 290,071 | 464,110 | 62.5 | % | 8.8 | % | |||||||||||||||||
| 2018 | 347,399 | 455,549 | 76.3 | % | 10.6 | % | |||||||||||||||||
| 2019 | 264,903 | 296,937 | 89.2 | % | 8.1 | % | |||||||||||||||||
| Subtotal | 1,648,077 | 3,148,155 | 52.4 | % | 50.2 | % | |||||||||||||||||
| Other geographies: | |||||||||||||||||||||||
| 2014 | 60,479 | 86,989 | 69.5 | % | 1.8 | % | |||||||||||||||||
| 2015 | 6,240 | 83,198 | 7.5 | % | 0.2 | % | |||||||||||||||||
| 2016 | 4,680 | 64,450 | 7.3 | % | 0.1 | % | |||||||||||||||||
| 2017 | 15,894 | 49,670 | 32.0 | % | 0.5 | % | |||||||||||||||||
| 2018 | 8,330 | 26,371 | 31.6 | % | 0.3 | % | |||||||||||||||||
| 2019 | 340 | 2,668 | 12.7 | % | 0.0 | % | |||||||||||||||||
| Subtotal | 95,963 | 313,346 | 30.6 | % | 2.9 | % | |||||||||||||||||
| Total | $ | 3,283,984 | $ | 8,357,030 | 39.3 | % | 100.0 | % | |||||||||||||||
________________________
(1)Purchase price refers to the cash paid to a seller to acquire a portfolio less Put-backs, Recalls, and other adjustments.
(2)Includes portfolios acquired in connection with certain business combinations.
48
Estimated Future Amortization of Portfolios
As of December 31, 2019, we had $3.3 billion in investment in receivable portfolios. This balance will be amortized based upon current projections of cash collections in excess of revenue applied to the principal balance. The estimated amortization of the investment in receivable portfolios balance is as follows (in thousands):
| Years Ending December 31, | United States | Europe | Other Geographies | Total Amortization | |||||||||||||||||||
| 2020 | $ | 490,321 | $ | 193,958 | $ | 16,067 | $ | 700,346 | |||||||||||||||
| 2021 | 391,655 | 202,906 | 18,140 | 612,701 | |||||||||||||||||||
| 2022 | 235,306 | 179,320 | 15,618 | 430,244 | |||||||||||||||||||
| 2023 | 150,312 | 167,795 | 10,277 | 328,384 | |||||||||||||||||||
| 2024 | 99,254 | 153,618 | 7,368 | 260,240 | |||||||||||||||||||
| 2025 | 66,509 | 141,433 | 6,045 | 213,987 | |||||||||||||||||||
| 2026 | 46,443 | 135,836 | 3,596 | 185,875 | |||||||||||||||||||
| 2027 | 32,055 | 131,219 | 1,987 | 165,261 | |||||||||||||||||||
| 2028 | 20,610 | 126,117 | 1,787 | 148,514 | |||||||||||||||||||
| 2029 | 7,479 | 71,236 | 1,706 | 80,421 | |||||||||||||||||||
| 2030 | — | 52,379 | 1,703 | 54,082 | |||||||||||||||||||
| 2031 | — | 39,122 | 1,700 | 40,822 | |||||||||||||||||||
| 2032 | — | 30,183 | 1,697 | 31,880 | |||||||||||||||||||
| 2033 | — | 16,888 | 1,695 | 18,583 | |||||||||||||||||||
| 2034 | — | 6,067 | 1,692 | 7,759 | |||||||||||||||||||
| Thereafter | — | — | 4,885 | 4,885 | |||||||||||||||||||
| Total | $ | 1,539,944 | $ | 1,648,077 | $ | 95,963 | $ | 3,283,984 | |||||||||||||||
Headcount by Function by Geographic Location
The following table summarizes our headcount by function and by geographic location:
| Headcount as of December 31, | |||||||||||||||||||||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||||||||||||||||||||
| Domestic | International | Domestic | International(1) | Domestic | International(2) | ||||||||||||||||||||||||||||||
| General & Administrative | 1,106 | 2,171 | 1,060 | 2,381 | 923 | 2,693 | |||||||||||||||||||||||||||||
| Account Manager | 418 | 3,560 | 504 | 3,921 | 381 | 4,239 | |||||||||||||||||||||||||||||
| Total | 1,524 | 5,731 | 1,564 | 6,302 | 1,304 | 6,932 | |||||||||||||||||||||||||||||
________________________
(1)Headcount as of December 31, 2018 includes 191 general and administrative and 361 account manager Baycorp employees.
(2)Headcount as of December 31, 2017 includes 262 general and administrative and 509 account manager Refinancia employees and 191 general and administrative and 379 account manager Baycorp employees.
49
Purchases by Quarter
The following table summarizes the receivable portfolios we purchased by quarter, and the respective purchase prices (in thousands):
| Quarter | # of Accounts | Face Value | Purchase Price | ||||||||||||||
| Q1 2017 | 807 | $ | 1,657,393 | $ | 218,727 | ||||||||||||
| Q2 2017 | 1,347 | 2,441,909 | 246,415 | ||||||||||||||
| Q3 2017 | 1,010 | 3,018,072 | 292,332 | ||||||||||||||
| Q4 2017 | 1,434 | 2,985,978 | 300,761 | ||||||||||||||
| Q1 2018 | 973 | 1,799,804 | 276,762 | ||||||||||||||
| Q2 2018 | 1,031 | 2,870,456 | 359,580 | ||||||||||||||
| Q3 2018 | 706 | 1,559,241 | 248,691 | ||||||||||||||
| Q4 2018 | 766 | 2,272,113 | 246,865 | ||||||||||||||
| Q1 2019 | 854 | 1,732,977 | 262,335 | ||||||||||||||
| Q2 2019 | 778 | 2,307,711 | 242,697 | ||||||||||||||
| Q3 2019 | 1,255 | 5,313,092 | 259,910 | ||||||||||||||
| Q4 2019 | 803 | 2,241,628 | 234,916 | ||||||||||||||
Liquidity and Capital Resources
Liquidity
The following table summarizes our cash flow activity, including the cash flows from discontinued operations, for the periods presented (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Net cash provided by operating activities | $ | 244,733 | $ | 186,791 | $ | 123,818 | |||||||||||
| Net cash used in investing activities | (202,333) | (397,516) | (452,131) | ||||||||||||||
| Net cash (used in) provided by financing activities | (19,770) | 166,377 | 378,217 | ||||||||||||||
Operating Cash Flows
Cash flows from operating activities represent the cash receipts and disbursements related to all of our activities other than investing and financing activities. Operating cash flows are derived by adjusting net income for non-cash operating items such as depreciation and amortization, allowance charges and stock-based compensation charges, and changes in operating assets and liabilities which reflect timing differences between the receipt and payment of cash associated with transactions and when they are recognized in results of operations.
Net cash provided by operating activities was $244.7 million, $186.8 million, and $123.8 million during the years ended December 31, 2019, 2018, and 2017, respectively. Cash provided by operating activities is affected by net income, various non-cash add backs in operating activities, including portfolio allowance reversals, and changes in operating assets and liabilities. The primary drivers of the changes in operating cash flow included cash collections recognized as revenue from receivable portfolios, income tax payments, and interest payments. Cash collections recognized as revenue from receivable portfolios were $1,269.3 million, $1,167.1 million, and $1,053.4 million during the years ended December 31, 2019, 2018, and 2017, respectively. Cash paid for income taxes, net of income tax refunds, was $44.0 million, $5.7 million, and $42.4 million for the years ended December 31, 2019, 2018, and 2017, respectively. Interest payments were $178.9 million, $198.8 million, and $162.5 million during the years ended December 31, 2019, 2018, and 2017, respectively.
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Investing Cash Flows
Net cash used in investing activities was $202.3 million, $397.5 million and $452.1 million during the years ended December 31, 2019, 2018 and 2017, respectively. Cash used in investing activities is primarily affected by receivable portfolio purchases offset by collection proceeds applied to the principal of our receivable portfolios. Receivable portfolio purchases were $1,035.1 million, $1,131.1 million, and $1,045.8 million during the years ended December 31, 2019, 2018, and 2017, respectively. Collection proceeds applied to the principal of our receivable portfolios were $757.6 million, $809.7 million, and $709.4 million during the years ended December 31, 2019, 2018, and 2017, respectively.
Financing Cash Flows
Net cash used in financing activities was $19.8 million for the year ended December 31, 2019, and cash provided by financing activities was $166.4 million and $378.2 million for the years ended December 31, 2018 and 2017, respectively. Cash provided by financing activities is primarily affected by borrowings under our credit facilities and proceeds from the issuance of convertible and exchangeable notes offset by repayments of amounts outstanding under our credit facilities, repayments of senior secured notes, and repayments of Encore’s convertible and exchangeable notes. Borrowings under our credit facilities were $603.6 million, $942.2 million and $1,434.5 million during the years ended December 31, 2019, 2018, and 2017, respectively. Proceeds from the issuance of convertible and exchangeable notes were $100.0 million, $172.5 million and $150.0 million during the years ended December 31, 2019, 2018 and 2017. Repayments of amounts outstanding under our credit facilities were $586.4 million, $571.1 million and $1,168.1 million and repayments of senior secured notes were $470.8 million, $91.6 million and $204.2 million during the years ended December 31, 2019, 2018, and 2017, respectively.
Capital Resources
Historically, we have met our cash requirements by utilizing our cash flows from operations, bank borrowings, debt offerings, and equity offerings. From time to time, depending on the capital markets, we consider additional financings to fund our operations and acquisitions. From time to time, we may repurchase outstanding debt or equity and/or restructure or refinance current debt obligations. Our primary cash requirements have included the purchase of receivable portfolios, entity acquisitions, operating expenses, the payment of interest and principal on borrowings, and the payment of income taxes.
We have a revolving credit facility (the “Revolving Credit Facility”) and term loan facility (the “Term Loan Facility”, and together with the Revolving Credit Facility, the “Senior Secured Credit Facilities”) pursuant to a Third Amended and Restated Credit Agreement dated December 20, 2016 (as amended, the “Restated Credit Agreement”). The Senior Secured Credit Facilities have a five-year maturity, expiring in December 2021. As of December 31, 2019, we had $492.0 million outstanding and $272.3 million of availability under the Revolving Credit Facility and $171.7 million outstanding under the Term Loan Facility.
Through Cabot, we have a revolving credit facility of £375.0 million (approximately $497.2 million) (the “Cabot Credit Facility”). As of December 31, 2019, we had £215.5 million (approximately $285.7 million) outstanding and £159.5 million (approximately $211.5 million) of availability under the Cabot Credit Facility.
In August 2018, we established an at-the-market equity offering program (the “ATM Program”) pursuant to which we may issue and sell shares of Encore’s common stock having an aggregate offering price of $50.0 million. During the year ended December 31, 2019, we did not issue any shares under our ATM Program. We have issued a total of 13,600 shares under our ATM Program, generating proceeds of approximately $0.54 million, net of commissions of approximately $5,000.
We have no obligation to sell any of such shares under our ATM Program. Actual sales will depend on a variety of factors to be determined by the Company from time to time, including, among others, market conditions, the trading price of our common stock, our determination of the appropriate sources of funding for the Company, and potential uses of funding available to us. We intend to use the net proceeds from the offering of such shares, if any, for general corporate purposes, which could include repayments of our credit facilities from time to time.
Currently, all of our portfolio purchases are funded with cash from operations and borrowings under our Senior Secured Credit Facilities and our Cabot Credit Facility.
We are in material compliance with all covenants under our financing arrangements. See “Note 8: Borrowings” to our consolidated financial statements for a further discussion of our debt.
Our cash and cash equivalents at December 31, 2019 consisted of $51.5 million held by U.S.-based entities and $140.8 million held by foreign entities. Most of our cash and cash equivalents held by foreign entities is indefinitely reinvested and may be subject to material tax effects if repatriated. However, we believe that our U.S. sources of cash and liquidity are sufficient to meet our business needs in the United States and do not expect that we will need to repatriate the funds.
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We believe that we have sufficient liquidity to fund our operations for at least the next twelve months, given our expectation of continued positive cash flows from operations, our cash and cash equivalents, our access to capital markets, and availability under our credit facilities. Our future cash needs will depend on our acquisitions of portfolios and businesses.
Future Contractual Cash Obligations
The following table summarizes our future contractual cash obligations as of December 31, 2019 (in thousands):
| Payment Due By Period | |||||||||||||||||||||||||||||
| Contractual Obligations | Total | Less Than 1 Year | 1 – 3 Years | 3 – 5 Years | More Than 5 Years | ||||||||||||||||||||||||
| Principal payments on debt | $ | 3,578,313 | $ | 194,467 | $ | 1,116,924 | $ | 2,166,922 | $ | 100,000 | |||||||||||||||||||
Estimated interest payments(1) | 726,020 | 188,875 | 350,489 | 183,406 | 3,250 | ||||||||||||||||||||||||
| Finance leases | 8,740 | 2,898 | 5,245 | 597 | — | ||||||||||||||||||||||||
| Operating leases | 114,775 | 17,898 | 30,571 | 24,809 | 41,497 | ||||||||||||||||||||||||
Purchase commitments on receivable portfolios | 298,938 | 298,938 | — | — | — | ||||||||||||||||||||||||
Total contractual cash obligations(2) | $ | 4,726,786 | $ | 703,076 | $ | 1,503,229 | $ | 2,375,734 | $ | 144,747 | |||||||||||||||||||
________________________
(1)Estimated interest payments are calculated based on outstanding principal amounts, applicable fixed interest rates or currently effective interest rates as of December 31, 2019 for variable rate debt, timing of scheduled payments and the term of the debt obligations.
(2)We had approximately $8.2 million of liabilities and accrued interests related to uncertain tax positions at December 31, 2019. We are unable to reasonably estimate the timing of the cash settlement with the tax authorities due to uncertainties related to these tax matters and, as a result, these obligations are not included in the table. See “Note 11: Income Taxes” to our consolidated financial statements for additional information on our uncertain tax positions.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements as defined by Item 303(a)(4) of Regulation S-K.
Critical Accounting Policies and Estimates
We prepare our financial statements, in conformity with GAAP, which requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. “Note 1: Ownership, Description of Business, and Summary of Significant Accounting Policies” of the notes to the consolidated financial statements describes the significant accounting policies and methods used in the preparation of our consolidated financial statements.
We base our estimates on past experience and other assumptions that we believe are reasonable under the circumstances, and we evaluate these estimates on an ongoing basis. Actual results may differ from these estimates and such differences may be material. We refer to accounting estimates of this type as critical accounting policies and estimates, which we discuss further below. We have reviewed our critical accounting policies and estimates with the audit committee of our board of directors.
Investment in Receivable Portfolios and Related Revenue. Static pools are established on a quarterly basis with accounts purchased during the quarter that have common risk characteristics. Discrete receivable portfolio purchases during a quarter are aggregated into pools based on these common risk characteristics. Once a static pool is established, the portfolios are permanently assigned to the pool. The discount (i.e., the difference between the cost of each static pool and the related aggregate contractual receivable balance) is not recorded because we expect to collect a relatively small percentage of each static pool’s contractual receivable balance. As a result, receivable portfolios are recorded at cost at the time of acquisition. The purchase cost of the portfolios includes certain fees paid to third parties incurred in connection with the direct acquisition of the receivable portfolios.
We account for our investments in consumer receivable portfolios using either the interest method or the cost recovery method. The interest method applies an IRR to the cost basis of the pool, which remains unchanged throughout the life of the pool, unless there is an increase in subsequent expected cash flows. Subsequent increases in expected cash flows are generally recognized prospectively through an upward adjustment of the pool’s IRR over its remaining life. Subsequent decreases in expected cash flows do not change the IRR, but are recognized as an allowance to the cost basis of the pool, and are reflected in the consolidated statements of operations as a reduction in revenue, with a corresponding valuation allowance, offsetting the investment in receivable portfolios in the consolidated statements of financial condition.
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We account for each static pool as a unit for the economic life of the pool (similar to one loan) for recognition of revenue from receivable portfolios, for collections applied to the cost basis of receivable portfolios and for provision for loss or allowance. Revenue from receivable portfolios is accrued based on each pool’s IRR applied to each pool’s adjusted cost basis. The cost basis of each pool is increased by revenue earned and decreased by gross collections and portfolio allowances.
If the amount and timing of future cash collections on a pool of receivables are not reasonably estimable, we account for that pool using the cost recovery method. The accounts in these portfolios have different risk characteristics than those included in other portfolios acquired during the same quarter, or the necessary information was not available to estimate future cash flows and, accordingly, they were not aggregated with other portfolios. Under the cost recovery method of accounting, no revenue is recognized until the carrying value of a cost recovery portfolio has been fully recovered.
Effective January 1, 2020, our investment in receivable portfolios is accounted for under CECL.
Deferred Court Costs. We pursue legal collection using a network of attorneys that specialize in collection matters and through our internal legal channel. We generally pursue collections through legal means only when we believe a consumer has sufficient assets to repay their indebtedness but has, to date, been unwilling to pay. In connection with our agreements with our contracted attorneys, we advance certain out-of-pocket court costs, or Deferred Court Costs. We capitalize these costs in the consolidated financial statements and provide a reserve for those costs that we believe will ultimately be uncollectible. We determine the reserve based on our analysis of historical court costs recovery data. We estimate deferral periods for Deferred Court Costs based on jurisdiction and nature of litigation and write off any Deferred Court Costs not recovered within the respective deferral period. Collections received through litigation are first applied against related court costs with the balance applied to the debtors’ account. Effective January 1, 2020, in connection with the adoption of CECL, we expense all upfront court costs in our statements of operations and include all future projected recoveries of these upfront court costs in the measurement of our investment in receivable portfolios, at a discounted value.
Valuation of Goodwill and Other Intangible Assets. Business combinations typically result in the recording of goodwill and other intangible assets. The excess of the purchase price over the fair value assigned to the tangible and identifiable intangible assets, liabilities assumed, and noncontrolling interest in the acquiree is recorded as goodwill.
Goodwill is tested annually for impairment and in interim periods if events or changes in circumstances indicate that the assets may be impaired. Our judgments regarding the existence of impairment indicators and future cash flows related to goodwill may be based on economic environment, business climate, market capitalization, operating performance, competition, and other factors. Significant judgments are required to estimate the fair value of reporting units including estimating future cash flows, determining appropriate discount rates, growth rates, comparable guideline companies and other assumptions. Future business conditions and/or activities could differ materially from the projections made by management, which in turn, could result in the need for impairment charges. We will perform additional impairment testing if events occur or circumstances change indicating that the carrying amounts may be impaired.
The determination of the recorded value of intangible assets acquired in a business combination requires management to make estimates and assumptions that affect our consolidated financial statements. Valuation techniques consistent with the market approach, income approach and/or cost approach are used to measure fair value. An estimate of fair value can be affected by many assumptions that require significant judgment.
Income Taxes. We use the liability method of accounting for income taxes. When we prepare the consolidated financial statements, we estimate our income taxes based on the various jurisdictions where we conduct business. This requires us to estimate our current tax exposure and to assess temporary differences that result from differing treatments of certain items for tax and accounting purposes. Deferred income taxes are recognized based on the differences between the financial statement and income tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. We then assess the likelihood that our deferred tax assets will be realized. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized. When we establish a valuation allowance or increase this allowance in an accounting period, we record a corresponding tax expense in our statement of operations. When we reduce our valuation allowance in an accounting period, we record a corresponding tax benefit in our statement of operations. We include interest and penalties related to income taxes within our provision for income taxes. See “Note 11: Income Taxes” to our consolidated financial statements for further discussion of income taxes.
Recent Accounting Pronouncements
Information regarding recent accounting pronouncements and the impact of those pronouncements, if any, on our consolidated financial statements is provided in this Annual Report in “Note 1: Ownership, Description of Business, and Summary of Significant Accounting Policies” to our consolidated financial statements.
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Item 7A—Quantitative and Qualitative Disclosures About Market Risk
We are exposed to economic risks from foreign currency exchange rates and interest rates. A portion of these risks is hedged, but the risks may affect our financial statements.
Foreign Currency Exchange Rates
We have operations in foreign countries, which expose us to foreign currency exchange rate fluctuations due to transactions denominated in foreign currencies. Our primary risk of loss due to foreign currency exchange rate risk is related to Euro to British Pound and Indian Rupee to U.S. dollar exchange rates. We continuously evaluate and manage our foreign currency risk through the use of derivative financial instruments, including foreign currency forward contracts with financial counterparties where practicable. Such derivative instruments are viewed as risk management tools and are not used for speculative or trading purposes.
We have currency exchange forward contracts that reduce the effects of currency exchange rate fluctuations between the British Pound and Euro. These derivative contracts generally mature within one to three months and are not designated as hedge instruments for accounting purposes. The gains or losses on these derivative contracts are recognized in other income or expense in the consolidated statements of operations based on fair value changes.
As of December 31, 2019, we had outstanding foreign currency forward contracts that hedge our risk of foreign currency exchange between the British Pound and Euro with a net fair value asset position of approximately $1.0 million. The functional currency of the subsidiary that carries the hedge contracts is the British Pound and the reporting currency is the U.S. dollar. We considered the historical trends in currency exchange rates and determined that it was reasonably possible that changes in exchange rates of 10% between the British Pound and the Euro and 10% between the British Pound and U.S. dollar could be experienced in the near term. A hypothetical 10% change in foreign exchange rates at December 31, 2019 related to the foreign exchange forward contracts would have a $6.7 million impact on income from continuing operations before income taxes.
In addition, we have currency exchange forward contracts that reduce the effects of currency exchange rate fluctuations between the U.S. dollar and Indian Rupee. These foreign currency forward contracts are designated as cash flow hedging instruments and qualify for hedge accounting treatment. Gains and losses arising from the effective portion of such contracts are recorded as a component of accumulated other comprehensive income (“OCI”) as gains and losses on derivative instruments, net of income taxes. The hedging gains and losses in OCI are subsequently reclassified into earnings in the same period in which the underlying transactions affect our earnings.
As of December 31, 2019, our outstanding foreign currency forward contracts that hedge our risk of foreign currency exchange against the Indian Rupee had a fair value asset position of $0.4 million. We considered the historical trends in currency exchange rates and determined that it was reasonably possible that changes in exchange rates of 10% for the Indian Rupee could be experienced in the near term. If the U.S. dollar weakened by 10% against the Indian Rupee at December 31, 2019, the result would have had a favorable effect to the fair value of the derivatives of approximately $1.6 million. If the U.S. dollar strengthened by 10% against the Indian Rupee at December 31, 2019 the result would have had an unfavorable effect to the fair value of the derivatives of approximately $1.3 million.
Interest Rates
We have variable interest-bearing borrowings under our credit facilities that subject us to interest rate risk. We have, from time to time, utilized derivative financial instruments, including interest rate swap contracts and interest rate cap contracts with financial counterparties to manage our interest rate risk. As of December 31, 2019, we had four interest rate swap agreements outstanding with a total notional amount of $331.7 million. As of December 31, 2019, we held three interest rate cap contracts with a total notional amount of approximately $913.0 million used to manage risk related to interest rate fluctuations. Both the interest rate cap and interest rate swap instruments are designated as cash flow hedges and are accounted for using hedge accounting.
Our variable interest-bearing debt that is not hedged by derivative financial instruments is subject to the risk of interest rate fluctuations. Significant increases in future interest rates on our variable rate debt could lead to a material decrease in future earnings assuming all other factors remain constant. A hypothetical 50 basis points change in interest rates at December 31, 2019 related to variable rate debt agreements not hedged by derivatives would have a $3.2 million impact on income from continuing operations before income taxes.
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As of December 31, 2019, our outstanding interest rate swap agreements had a fair value liability position of $9.1 million. If the market interest rates increased 50 basis points, the result would have a favorable effect to the interest rate swap’s fair value of $3.0 million. Conversely, if the market interest rates decreased 50 basis points, the result would have an unfavorable effect to the interest rate swap’s fair value of $3.0 million. As of December 31, 2019, our outstanding interest rate cap contracts had a fair value asset position of $2.5 million. If the market interest rates increased 50 basis points, the result would have a favorable effect to the interest rate cap’s fair value of $5.3 million. Conversely, if the market interest rates decreased 50 basis points, the result would have an unfavorable effect to the interest rate cap’s fair value of $1.8 million.
Our analysis and methods used to assess and mitigate the risks discussed above should not be considered projections of future risks.
Item 8—Financial Statements and Supplementary Data
Our consolidated financial statements, the notes thereto and the Report of BDO USA, LLP, our Independent Registered Public Accounting Firm, are included in this Annual Report on Form 10-K on pages F-1 through F-40.
Item 9—Changes in and Disagreements With Accountants on Accounting and Financial Disclosure
None.
Item 9A—Controls and Procedures
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Exchange Act Rule 13a-15(e) and 15d-15(e). Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of the end of the period covered by this Annual Report on Form 10-K, our disclosure controls and procedures are effective at the reasonable assurance level in enabling us to record, process, summarize and report information required to be included in our periodic SEC filings within the required time period.
Management’s Report on Internal Control over Financial Reporting
The Company’s management, including our Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Exchange Act Rule 13a-15(f) and 15d-15(f)) for Encore Capital Group, Inc. and its subsidiaries (the “Company”). The Company’s internal control system was designed to provide reasonable assurance to the Company’s management and Board of Directors regarding the preparation and fair presentation of published consolidated financial statements in accordance with accounting principles generally accepted in the United States of America.
Because of its inherent limitations, a system of internal control over financial reporting can provide only reasonable assurance and may not prevent or detect misstatements. Further, because of changing conditions, effectiveness of internal control over financial reporting may vary over time. The Company’s processes contain self-monitoring mechanisms and actions are taken to correct deficiencies as they are identified.
Management has assessed the effectiveness of Encore’s internal control over financial reporting as of December 31, 2019, based on the criteria for effective internal control described in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on its assessment, management concluded that the Company’s internal control over financial reporting was effective as of December 31, 2019.
BDO USA, LLP, the independent registered public accounting firm that audited the consolidated financial statements included in this Annual Report on Form 10-K, was engaged to attest to and report on the effectiveness of Encore’s internal control over financial reporting as of December 31, 2019, as stated in its report below.
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Report of Independent Registered Public Accounting Firm
Shareholders and Board of Directors
Encore Capital Group, Inc.
San Diego, California
Opinion on Internal Control over Financial Reporting
We have audited Encore Capital Group, Inc.’s (the “Company’s”) internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the “COSO criteria”). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2019, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated statements of financial condition of the Company as of December 31, 2019 and 2018 and the related consolidated statements of operations, comprehensive income, equity, and cash flows for each of the three years in the period ended December 31, 2019, and the related notes and our report dated February 26, 2020 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Item 9A, Management’s Report on Internal Control over Financial Reporting”. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit of internal control over financial reporting in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ BDO USA, LLP
San Diego, California
February 26, 2020
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Changes in Internal Control over Financial Reporting
We implemented certain internal controls related to the adoption of Topic 326, “Financial Instruments – Credit Losses” to ensure we adequately interpreted the guidance and properly assessed the impact of the standard on our financial statements to facilitate its adoption effective January 1, 2020. There were no other changes in our system of internal control over financial reporting (as defined in Rule 13a-15(f) and Rule 15d-15(f) under the Exchange Act) that occurred during the quarter ended December 31, 2019, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
In the course of our ongoing preparations for management’s report on internal control over financial reporting as required by Section 404 of the Sarbanes-Oxley Act of 2002, we have identified areas in need of improvement and have taken remedial actions to strengthen the affected controls as appropriate. We make these and other changes, which do not have a material effect on our overall internal control over financial reporting, to enhance the effectiveness of our internal control over financial reporting.
Item 9B—Other Information
None.
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PART III
Item 10—Directors, Executive Officers and Corporate Governance
The information required by this item is incorporated by reference to our Proxy Statement for our 2020 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2019.
Item 11—Executive Compensation
The information required by this item is incorporated by reference to our Proxy Statement for our 2020 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2019.
Item 12—Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item is incorporated by reference to our Proxy Statement for our 2020 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2019.
Item 13—Certain Relationships and Related Transactions, and Director Independence
The information required by this item is incorporated by reference to our Proxy Statement for our 2020 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2019.
Item 14—Principal Accountant Fees and Services
The information required by this item is incorporated by reference to our Proxy Statement for our 2020 Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2019.
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PART IV
Item 15—Exhibits and Financial Statement Schedules
(a) Financial Statements.
The following consolidated financial statements of Encore Capital Group, Inc. are filed as part of this annual report on Form 10-K:
| Page | |||||
(b) Exhibits.
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 3.1.1 | S-1/A | 333-77483 | 3.1 | 6/14/1999 | ||||||||||||||||||||||||||||||||||
| 3.1.2 | 8-K | 000-26489 | 3.1 | 4/4/2002 | ||||||||||||||||||||||||||||||||||
| 3.1.3 | 10-Q | 000-26489 | 3.1.3 | 8/7/2019 | ||||||||||||||||||||||||||||||||||
| 3.2 | 10-K | 000-26489 | 3.3 | 2/14/2011 | ||||||||||||||||||||||||||||||||||
| 4.1 | S-3 | 333-163876 | 4.7 | 12/21/2009 | ||||||||||||||||||||||||||||||||||
| 4.2 | 8-K | 000-26489 | 10.1 | 8/17/2017 | ||||||||||||||||||||||||||||||||||
| 4.2.1 | 8-K | 000-26489 | 10.2 | 9/3/2019 | ||||||||||||||||||||||||||||||||||
| 4.2.2 | X | |||||||||||||||||||||||||||||||||||||
| 4.3 | 8-K | 000-26489 | 4.1 | 6/24/2013 | ||||||||||||||||||||||||||||||||||
| 4.3.1 | 10-Q | 000-26489 | 4.5 | 11/7/2018 | ||||||||||||||||||||||||||||||||||
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| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 4.6 | 8-K | 000-26489 | 4.1 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 4.6.1 | 10-Q | 000-26489 | 4.6 | 11/7/2018 | ||||||||||||||||||||||||||||||||||
| 4.9 | 8-K | 000-26489 | 4.1 | 10/7/2016 | ||||||||||||||||||||||||||||||||||
| 4.10 | 8-K | 000-26489 | 4.1 | 3/3/2017 | ||||||||||||||||||||||||||||||||||
| 4.11 | 8-K | 000-26489 | 4.1 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 4.11.1 | 8-K | 000-26489 | 4.2 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 4.12 | 8-K | 000-26489 | 4.1 | 6/17/2019 | ||||||||||||||||||||||||||||||||||
| 4.13 | 8-K | 000-26489 | 4.1 | 9/10/2019 | ||||||||||||||||||||||||||||||||||
| 4.14 | X | |||||||||||||||||||||||||||||||||||||
| 10.1+ | 8-K | 000-26489 | 10.1 | 5/4/2006 | ||||||||||||||||||||||||||||||||||
| 10.3+ | 8-K | 000-26489 | 10.1 | 6/15/2009 | ||||||||||||||||||||||||||||||||||
| 10.3.2+ | 10-Q | 000-26489 | 10.3 | 11/1/2012 | ||||||||||||||||||||||||||||||||||
| 10.4+ | Def 14A | 000-26489 | Appendix A | 4/26/2013 | ||||||||||||||||||||||||||||||||||
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| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.4.1+ | 10-K | 000-26489 | 10.84 | 2/25/2014 | ||||||||||||||||||||||||||||||||||
| 10.4.2+ | 10-Q | 000-26489 | 10.5 | 8/8/2013 | ||||||||||||||||||||||||||||||||||
| 10.4.8+ | 10-Q | 000-26489 | 10.11 | 8/8/2013 | ||||||||||||||||||||||||||||||||||
| 10.4.14+ | 10-K | 000-26489 | 10.108 | 2/23/2017 | ||||||||||||||||||||||||||||||||||
| 10.5+ | 10-Q | 000-26489 | 10.2 | 11/6/2014 | ||||||||||||||||||||||||||||||||||
| 10.6+ | 8-K | 000-26489 | 10.1 | 2/26/2015 | ||||||||||||||||||||||||||||||||||
| 10.7+ | 10-Q | 000-26489 | 10.8 | 11/7/2018 | ||||||||||||||||||||||||||||||||||
| 10.8+ | 10-Q | 000-26489 | 10.2 | 8/4/2016 | ||||||||||||||||||||||||||||||||||
| 10.8.1+ | 10-Q | 000-26489 | 10.1 | 11/9/2016 | ||||||||||||||||||||||||||||||||||
| 10.9+ | 8-K | 000-26489 | 10.1 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11+ | 8-K | 000-26489 | 10.3 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11.1+ | 8-K | 000-26489 | 10.4 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11.2+ | 8-K | 000-26489 | 10.5 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11.3+ | 8-K | 000-26489 | 10.6 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11.4+ | 8-K | 000-26489 | 10.7 | 6/20/2017 | ||||||||||||||||||||||||||||||||||
| 10.11.5+ | 8-K | 000-26489 | 10.1 | 3/15/2018 | ||||||||||||||||||||||||||||||||||
| 10.11.6+ | 8-K | 000-26489 | 10.2 | 3/15/2018 | ||||||||||||||||||||||||||||||||||
61
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.11.7+ | 8-K | 000-26489 | 10.3 | 3/15/2018 | ||||||||||||||||||||||||||||||||||
| 10.11.8+ | 8-K | 000-26489 | 10.4 | 3/15/2018 | ||||||||||||||||||||||||||||||||||
| 10.11.9+ | X | |||||||||||||||||||||||||||||||||||||
| 10.12 | 8-K | 000-26489 | 10.1 | 12/27/2016 | ||||||||||||||||||||||||||||||||||
| 10.12.1 | 10-Q | 000-26489 | 10.2 | 5/4/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.2 | 10-Q | 000-26489 | 10.4 | 5/4/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.3 | 10-Q | 000-26489 | 10.1 | 8/3/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.4 | 10-Q | 000-26489 | 10.9 | 8/3/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.5 | 10-Q | 000-26489 | 10.3 | 11/2/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.6 | 10-Q | 000-26489 | 10.5 | 11/2/2017 | ||||||||||||||||||||||||||||||||||
| 10.12.7 | 10-Q | 000-26489 | 10.6 | 11/2/2017 | ||||||||||||||||||||||||||||||||||
62
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.12.8 | 10-K | 000-26489 | 10.12.8 | 2/21/2018 | ||||||||||||||||||||||||||||||||||
| 10.12.9 | 10-Q | 000-26489 | 10.2 | 5/8/2018 | ||||||||||||||||||||||||||||||||||
| 10.12.10 | 10-Q | 000-26489 | 10.3 | 8/8/2018 | ||||||||||||||||||||||||||||||||||
| 10.12.11 | 10-Q | 000-26489 | 10.9 | 11/7/2018 | ||||||||||||||||||||||||||||||||||
| 10.12.12 | 10-Q | 000-26489 | 10.10 | 11/7/2018 | ||||||||||||||||||||||||||||||||||
| 10.12.13 | Amendment No. 3 to Third Amended and Restated Credit Agreement, dated August 30, 2019, by and among Encore Capital Group, Inc., the several banks and other financial institutions and lenders from time to time party thereto and listed on the signature pages thereof, and SunTrust Bank, as administrative agent and collateral agent | 8-K | 000-26489 | 10.1 | 9/3/2019 | |||||||||||||||||||||||||||||||||
| 10.12.14 | X | |||||||||||||||||||||||||||||||||||||
| 10.13 | 8-K | 000-26489 | 10.2 | 11/7/2012 | ||||||||||||||||||||||||||||||||||
| 10.13.1 | 8-K | 000-26489 | 10.1 | 12/27/2016 | ||||||||||||||||||||||||||||||||||
63
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.13.2 | 10-Q | 000-26489 | 10.4 | 11/2/2017 | ||||||||||||||||||||||||||||||||||
| 10.14 | 8-K | 000-26489 | 10.3 | 11/7/2012 | ||||||||||||||||||||||||||||||||||
| 10.14.1 | 10-K | 000-26489 | 10.88 | 2/25/2014 | ||||||||||||||||||||||||||||||||||
| 10.15 | 8-K | 000-26489 | 10.2 | 8/17/2017 | ||||||||||||||||||||||||||||||||||
| 10.16.4 | 8-K | 000-26489 | 10.1 | 5/8/2018 | ||||||||||||||||||||||||||||||||||
| 10.16.5 | 8-K | 000-26489 | 10.2 | 5/8/2018 | ||||||||||||||||||||||||||||||||||
| 10.16.6 | 10-Q | 000-26489 | 10.2.1 | 8/8/2018 | ||||||||||||||||||||||||||||||||||
| 10.17.1 | 8-K | 000-26489 | 10.1 | 6/24/2013 | ||||||||||||||||||||||||||||||||||
| 10.17.2 | 8-K | 000-26489 | 10.2 | 6/24/2013 | ||||||||||||||||||||||||||||||||||
| 10.17.3 | 8-K | 000-26489 | 10.3 | 6/24/2013 | ||||||||||||||||||||||||||||||||||
| 10.17.4 | 8-K | 000-26489 | 10.4 | 6/24/2013 | ||||||||||||||||||||||||||||||||||
64
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.18.1 | 8-K | 000-26489 | 10.1 | 7/23/2013 | ||||||||||||||||||||||||||||||||||
| 10.18.2 | 8-K | 000-26489 | 10.2 | 7/23/2013 | ||||||||||||||||||||||||||||||||||
| 10.18.3 | 8-K | 000-26489 | 10.3 | 7/23/2013 | ||||||||||||||||||||||||||||||||||
| 10.18.4 | 8-K | 000-26489 | 10.4 | 7/23/2013 | ||||||||||||||||||||||||||||||||||
| 10.19 | 8-K | 000-26489 | 10.1 | 11/21/2019 | ||||||||||||||||||||||||||||||||||
| 10.21.1 | 8-K | 000-26489 | 10.1 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.2 | 8-K | 000-26489 | 10.2 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.3 | 8-K | 000-26489 | 10.3 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.4 | 8-K | 000-26489 | 10.4 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.5 | 8-K | 000-26489 | 10.5 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.6 | 8-K | 000-26489 | 10.6 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.7 | 8-K | 000-26489 | 10.7 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
| 10.21.8 | 8-K | 000-26489 | 10.8 | 3/11/2014 | ||||||||||||||||||||||||||||||||||
65
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 10.22 | 8-K | 000-26489 | 10.1 | 2/24/2020 | ||||||||||||||||||||||||||||||||||
| 10.23.1 | 8-K | 000-26489 | 10.1 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.23.2 | 8-K | 000-26489 | 10.2 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.23.3 | 8-K | 000-26489 | 10.3 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.23.4 | 8-K | 000-26489 | 10.4 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.23.5 | 8-K | 000-26489 | 10.5 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.23.6 | 8-K | 000-26489 | 10.6 | 7/20/2018 | ||||||||||||||||||||||||||||||||||
| 10.24+ | 10-Q | 000-26489 | 10.1 | 5/8/2019 | ||||||||||||||||||||||||||||||||||
| 10.24.1+ | 10-Q | 000-26489 | 10.2 | 5/8/2019 | ||||||||||||||||||||||||||||||||||
| 10.25+ | 8-K | 000-26489 | 10.1 | 11/26/2019 | ||||||||||||||||||||||||||||||||||
| 21 | X | |||||||||||||||||||||||||||||||||||||
| 23 | X | |||||||||||||||||||||||||||||||||||||
| 31.1 | X | |||||||||||||||||||||||||||||||||||||
| 31.2 | X | |||||||||||||||||||||||||||||||||||||
66
| Incorporated By Reference | ||||||||||||||||||||||||||||||||||||||
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit | Filing Date | Filed or Furnished Herewith | ||||||||||||||||||||||||||||||||
| 32.1 | X | |||||||||||||||||||||||||||||||||||||
| 101.INS | XBRL Instance Document | X | ||||||||||||||||||||||||||||||||||||
| 101.SCH | XBRL Taxonomy Extension Schema Document | X | ||||||||||||||||||||||||||||||||||||
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | X | ||||||||||||||||||||||||||||||||||||
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | X | ||||||||||||||||||||||||||||||||||||
| 101.LAB | XBRL Taxonomy Extension Label Linkbase Document | X | ||||||||||||||||||||||||||||||||||||
| 101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document | X | ||||||||||||||||||||||||||||||||||||
| + | Management contract or compensatory plan or arrangement. | ||||
Item 16—Form 10-K Summary
None.
67
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ENCORE CAPITAL GROUP, INC., a Delaware corporation | ||||||||
| By: | /s/ ASHISH MASIH | |||||||
| Ashish Masih | ||||||||
| President and Chief Executive Officer | ||||||||
Date: February 26, 2020
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Name and Signature | Title | Date | ||||||||||||
/s/ ASHISH MASIH | President and Chief Executive Officer and Director (Principal Executive Officer) | February 26, 2020 | ||||||||||||
| Ashish Masih | ||||||||||||||
/s/ JONATHAN C. CLARK | Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) | February 26, 2020 | ||||||||||||
| Jonathan C. Clark | ||||||||||||||
/s/ ASHWINI GUPTA | Director | February 26, 2020 | ||||||||||||
| Ashwini Gupta | ||||||||||||||
/s/ WENDY HANNAM | Director | February 26, 2020 | ||||||||||||
| Wendy Hannam | ||||||||||||||
/s/ JEFFREY A. HILZINGER | Director | February 26, 2020 | ||||||||||||
| Jeffrey A. Hilzinger | ||||||||||||||
/s/ ANGELA A. KNIGHT | Director | February 26, 2020 | ||||||||||||
| Angela A. Knight | ||||||||||||||
/s/ MICHAEL P. MONACO | Director | February 26, 2020 | ||||||||||||
| Michael P. Monaco | ||||||||||||||
/s/ LAURA OLLE | Director | February 26, 2020 | ||||||||||||
| Laura Olle | ||||||||||||||
/s/ FRANCIS E. QUINLAN | Director | February 26, 2020 | ||||||||||||
| Francis E. Quinlan | ||||||||||||||
/s/ NORMAN R. SORENSEN | Director | February 26, 2020 | ||||||||||||
| Norman R. Sorensen | ||||||||||||||
/s/ RICHARD J. SREDNICKI | Director | February 26, 2020 | ||||||||||||
| Richard J. Srednicki | ||||||||||||||
/s/ RICHARD P. STOVSKY | Director | February 26, 2020 | ||||||||||||
| Richard P. Stovsky | ||||||||||||||
68
ENCORE CAPITAL GROUP, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
| Page | |||||
Consolidated Statements of Operations for the years ended December 31, 2019, 2018 and 2017 | |||||
Consolidated Statements of Comprehensive Income for the years ended December 31, 2019, 2018 and 2017 | |||||
Consolidated Statements of Equity for the years ended December 31, 2019, 2018 and 2017 | |||||
Consolidated Statements of Cash Flows for the years ended December 31, 2019, 2018 and 2017 | |||||
Report of Independent Registered Public Accounting Firm
Shareholders and Board of Directors
Encore Capital Group, Inc.
San Diego, California
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial condition of Encore Capital Group, Inc. (the “Company”) as of December 31, 2019 and 2018, the related consolidated statements of operations, comprehensive income, equity, and cash flows for each of the three years in the period ended December 31, 2019, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2019, in conformity with accounting principles generally accepted in the United States of America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company's internal control over financial reporting as of December 31, 2019, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and our report dated February 26, 2020 expressed an unqualified opinion thereon.
Change in Accounting Principle
As discussed in Note 1 to the consolidated financial statements, effective January 1, 2019, the Company adopted Accounting Standards Codification Topic 842, Leases (Topic 842).
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the “PCAOB” and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Investment in Receivable Portfolios and Revenue from Receivable Portfolios
As more fully described in Notes 1 and 4 to the consolidated financial statements, the Company’s investment in receivable portfolios balance was approximately $3.3 billion at December 31, 2019. Investment in receivable portfolios are comprised of purchased loans with deteriorated credit quality that are grouped quarterly in the period of purchase based on common risk characteristics (“pool”). Revenue from receivable portfolios is recognized from each pool using the effective interest rate (“EIR”) method unless the pool is recorded on a cost recovery method. Management applies significant judgment to estimate cash flows and to evaluate collection performance for each quarterly pool in order to make decisions about whether to leave a pool’s EIR unchanged, to prospectively increase a pool’s EIR, or to impair a pool.
F-1
We identified the recording of investment in receivable portfolios and revenue from receivable portfolios as a critical audit matter. Specifically, management is required to make significant judgments and assumptions to: (i) estimate cash flows, (ii) evaluate collection performance for each pool, and (iii) reassess the applicable EIR, where appropriate. Auditing these elements involved especially challenging auditor judgment due to the nature and extent of audit effort required to address these matters.
The primary procedures we performed to address this critical audit matter included:
•Testing the design and operating effectiveness of controls over management’s assessment of the reasonableness of: (i) inputs and outputs from the Company’s proprietary statistical and behavioral models, (ii) cash collection performance of pools, and (iii) a pool’s EIR.
•Testing the completeness and accuracy of collection data used by management to calculate investment in receivable portfolios and revenue from receivable portfolios.
•Evaluating the reasonableness of management’s judgments related to the assessment of a pool’s EIR through evaluating the current period forecast to actual performance, recent performance trends and changes to the estimated cash flows.
•Evaluating the reasonableness of management’s estimates of cash flows by comparing to actual cash collections.
Goodwill Impairment Assessment
As more fully described in Notes 1 and 15 to the consolidated financial statements, the Company’s goodwill balance was approximately $884.2 million at December 31, 2019, which was allocated between two reporting units. The Company’s evaluation of goodwill for impairment involves the comparison of the fair value of each reporting unit to its carrying value. For the MCM reporting unit, management performed a qualitative assessment and determined it was not necessary to perform a quantitative test. For the Cabot reporting unit, management performed a quantitative analysis which utilized a combination of the income approach and the market approach.
We identified the goodwill impairment assessment of the Cabot reporting unit as a critical audit matter because of the significant estimates and assumptions management makes as part of the quantitative assessment to estimate the fair value of the reporting unit. The income approach requires significant management assumptions such as assumptions used in the cash flow forecasts, the discount rate, and the terminal value exit multiple. The market approach requires significant management judgment in the selection of the appropriate peer group companies and the valuation multiples. Auditing these significant assumptions and judgments involved a high degree of auditor judgment and an increased extent of effort, including the extent of specialized skill or knowledge needed.
The primary procedures we performed to address this critical audit matter included:
•Testing the design and operating effectiveness of controls over goodwill impairment assessment, including controls over significant management assumptions and judgments used in the income and the market approaches.
•Testing management’s process for developing fair value estimates including testing the completeness, accuracy, and relevance of underlying data and evaluating significant management assumptions by comparing to historical results and market participant data.
•Performing a sensitivity analysis of significant assumptions and evaluating the impact on the fair value of the reporting unit that would result from changes in the assumptions.
•Utilizing personnel with specialized knowledge and skill in valuation to assist in: (i) assessing the appropriateness of the fair value methodology, (ii) evaluating the reasonableness of certain assumptions used including the discount rate and the terminal value exit multiple, and (iii) assessing the reasonableness of the discount rate by developing independent estimates and comparing estimates to those utilized by management.
/s/ BDO USA, LLP
We have served as the Company's auditor since 2001.
San Diego, California
February 26, 2020
F-2
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Financial Condition
(In Thousands, Except Par Value Amounts)
| December 31, 2019 | December 31, 2018 | ||||||||||
| Assets | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Investment in receivable portfolios, net | |||||||||||
| Deferred court costs, net | |||||||||||
| Property and equipment, net | |||||||||||
| Other assets | |||||||||||
| Goodwill | |||||||||||
Total assets | $ | $ | |||||||||
| Liabilities and Equity | |||||||||||
| Liabilities: | |||||||||||
| Accounts payable and accrued liabilities | $ | $ | |||||||||
| Borrowings | |||||||||||
| Other liabilities | |||||||||||
Total liabilities | |||||||||||
Commitments and contingencies (Note 13) | |||||||||||
| Equity: | |||||||||||
Convertible preferred stock, $ | |||||||||||
Common stock, $ | |||||||||||
| Additional paid-in capital | |||||||||||
| Accumulated earnings | |||||||||||
| Accumulated other comprehensive loss | ( | ( | |||||||||
| Total Encore Capital Group, Inc. stockholders’ equity | |||||||||||
| Noncontrolling interest | |||||||||||
| Total equity | |||||||||||
| Total liabilities and equity | $ | $ | |||||||||
The following table presents certain assets and liabilities of consolidated variable interest entities (“VIEs”) included in the consolidated statements of financial condition above. Most assets in the table below include those assets that can only be used to settle obligations of consolidated VIEs. The liabilities exclude amounts where creditors or beneficial interest holders have recourse to the general credit of the Company. See “Note 9: Variable Interest Entities” for additional information on the Company’s VIEs.
| December 31, 2019 | December 31, 2018 | ||||||||||
| Assets | |||||||||||
| Cash and cash equivalents | $ | $ | |||||||||
| Investment in receivable portfolios, net | |||||||||||
| Other assets | |||||||||||
| Liabilities | |||||||||||
| Accounts payable and accrued liabilities | $ | $ | |||||||||
| Borrowings | |||||||||||
| Other liabilities | |||||||||||
See accompanying notes to consolidated financial statements
F-3
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Operations
(In Thousands, Except Per Share Amounts)
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Revenues | |||||||||||||||||
| Revenue from receivable portfolios | $ | $ | $ | ||||||||||||||
| Servicing revenue | |||||||||||||||||
| Other revenues | |||||||||||||||||
| Total revenues | |||||||||||||||||
| (Allowances) allowance reversals on receivable portfolios, net | ( | ||||||||||||||||
| Total revenues, adjusted by net allowances | |||||||||||||||||
| Operating expenses | |||||||||||||||||
| Salaries and employee benefits | |||||||||||||||||
| Cost of legal collections | |||||||||||||||||
| General and administrative expenses | |||||||||||||||||
| Other operating expenses | |||||||||||||||||
| Collection agency commissions | |||||||||||||||||
| Depreciation and amortization | |||||||||||||||||
| Goodwill impairment | |||||||||||||||||
| Total operating expenses | |||||||||||||||||
| Income from operations | |||||||||||||||||
| Other (expense) income | |||||||||||||||||
| Interest expense | ( | ( | ( | ||||||||||||||
| Other (expense) income | ( | ( | |||||||||||||||
| Total other expense | ( | ( | ( | ||||||||||||||
| Income from continuing operations before income taxes | |||||||||||||||||
| Provision for income taxes | ( | ( | ( | ||||||||||||||
| Income from continuing operations | |||||||||||||||||
| Loss from discontinued operations, net of tax | ( | ||||||||||||||||
| Net income | |||||||||||||||||
| Net (income) loss attributable to noncontrolling interest | ( | ||||||||||||||||
| Net income attributable to Encore Capital Group, Inc. stockholders | $ | $ | $ | ||||||||||||||
| Amounts attributable to Encore Capital Group, Inc.: | |||||||||||||||||
| Income from continuing operations | $ | $ | $ | ||||||||||||||
| Loss from discontinued operations, net of tax | ( | ||||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
Earnings per share attributable to Encore Capital Group, Inc.: | |||||||||||||||||
| Basic earnings (loss) per share from: | |||||||||||||||||
| Continuing operations | $ | $ | $ | ||||||||||||||
| Discontinued operations | ( | ||||||||||||||||
| Net basic earnings per share | $ | $ | $ | ||||||||||||||
| Diluted earnings (loss) per share from: | |||||||||||||||||
| Continuing operations | $ | $ | $ | ||||||||||||||
| Discontinued operations | ( | ||||||||||||||||
| Net diluted earnings per share | $ | $ | $ | ||||||||||||||
| Weighted average shares outstanding: | |||||||||||||||||
| Basic | |||||||||||||||||
| Diluted | |||||||||||||||||
See accompanying notes to consolidated financial statements
F-4
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Comprehensive Income
(In Thousands)
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Other comprehensive income, net of tax: | |||||||||||||||||
| Change in unrealized gains/losses on derivative instruments: | |||||||||||||||||
| Unrealized (loss) gain on derivative instruments | ( | ( | |||||||||||||||
| Income tax effect | ( | ||||||||||||||||
| Unrealized (loss) gain on derivative instruments, net of tax | ( | ( | |||||||||||||||
| Change in foreign currency translation: | |||||||||||||||||
| Unrealized gain (loss) on foreign currency translation | ( | ||||||||||||||||
| Removal of other comprehensive loss in connection with divestiture | |||||||||||||||||
| Unrealized gain (loss) on foreign currency translation, net of divestiture | ( | ||||||||||||||||
| Other comprehensive income (loss), net of tax | ( | ||||||||||||||||
| Comprehensive income | |||||||||||||||||
| Comprehensive (income) loss attributable to noncontrolling interest: | |||||||||||||||||
| Net (income) loss | ( | ||||||||||||||||
| Unrealized (income) loss on foreign currency translation | ( | ( | |||||||||||||||
| Comprehensive (income) loss attributable to noncontrolling interest | ( | ||||||||||||||||
Comprehensive income attributable to Encore Capital Group, Inc. stockholders | $ | $ | $ | ||||||||||||||
See accompanying notes to consolidated financial statements
F-5
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Equity
(In Thousands)
| Common Stock | Additional Paid-In Capital | Accumulated Earnings | Accumulated Other Comprehensive (Loss) Income | Noncontrolling Interest | Total Equity | ||||||||||||||||||||||||||||||||||||
| Shares | Par | ||||||||||||||||||||||||||||||||||||||||
| Balance at December 31, 2016 | $ | $ | $ | $ | ( | $ | ( | $ | |||||||||||||||||||||||||||||||||
Net income | — | — | — | — | |||||||||||||||||||||||||||||||||||||
| Other comprehensive income (loss), net of tax | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
Change in fair value of redeemable noncontrolling interest | — | — | ( | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
Purchase of noncontrolling interest | — | — | — | — | ( | ( | |||||||||||||||||||||||||||||||||||
Exercise of stock options and issuance of share-based awards, net of shares withheld for employee taxes | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
Stock-based compensation | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
Issuance of convertible senior notes | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
Settlement and repurchase of convertible senior notes | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
Reclassification of redeemable equity component of convertible senior notes | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
Reclassification of certain income tax effects of items within accumulated other comprehensive income to retained earnings | — | — | — | ( | — | — | ( | ||||||||||||||||||||||||||||||||||
Convertible note hedge transactions | ( | ( | — | — | — | ||||||||||||||||||||||||||||||||||||
Other | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Balance at December 31, 2017 | ( | ( | |||||||||||||||||||||||||||||||||||||||
| Net income (loss) | — | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| Other comprehensive (loss) income, net of tax | — | — | — | — | ( | ( | |||||||||||||||||||||||||||||||||||
| Change in fair value of redeemable noncontrolling interest | — | — | ( | — | — | ||||||||||||||||||||||||||||||||||||
| Purchase of noncontrolling interest | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Exercise of stock options and issuance of share-based awards, net of shares withheld for employee taxes | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock | — | — | — | ||||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuance of exchangeable notes | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Exchangeable notes hedge transactions | — | — | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||
| Net equity adjustment on Cabot Transaction | — | — | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||
| Other | — | — | — | ||||||||||||||||||||||||||||||||||||||
| Balance at December 31, 2018 | ( | ||||||||||||||||||||||||||||||||||||||||
| Net income | — | — | — | — | |||||||||||||||||||||||||||||||||||||
| Other comprehensive income, net of tax | — | — | — | — | |||||||||||||||||||||||||||||||||||||
| Exercise of stock options and issuance of share-based awards, net of shares withheld for employee taxes | ( | — | — | — | ( | ||||||||||||||||||||||||||||||||||||
| Stock-based compensation | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Issuance of exchangeable notes | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Exchangeable notes hedge transactions | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||
| Other | — | — | ( | — | |||||||||||||||||||||||||||||||||||||
| Balance at December 31, 2019 | $ | $ | $ | $ | ( | $ | $ | ||||||||||||||||||||||||||||||||||
See accompanying notes to consolidated financial statements
F-6
ENCORE CAPITAL GROUP, INC.
Consolidated Statements of Cash Flows
(In Thousands)
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Operating activities: | |||||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Adjustments to reconcile net income to net cash provided by operating activities: | |||||||||||||||||
| Loss from discontinued operations, net of income taxes | |||||||||||||||||
| Depreciation and amortization | |||||||||||||||||
| Goodwill impairment | |||||||||||||||||
| Interest expense related to financing | |||||||||||||||||
| Other non-cash interest expense, net | |||||||||||||||||
| Stock-based compensation expense | |||||||||||||||||
| Loss (gain) on derivative instruments, net | ( | ||||||||||||||||
| Deferred income taxes | |||||||||||||||||
| Provision for (reversal of) allowances on receivable portfolios, net | ( | ( | |||||||||||||||
| Other, net | ( | ( | |||||||||||||||
| Changes in operating assets and liabilities | |||||||||||||||||
| Deferred court costs and other assets | ( | ( | |||||||||||||||
| Prepaid income tax and income taxes payable | ( | ( | |||||||||||||||
| Accounts payable, accrued liabilities and other liabilities | ( | ||||||||||||||||
| Net cash provided by operating activities | |||||||||||||||||
| Investing activities: | |||||||||||||||||
| Cash paid for acquisitions, net of cash acquired | ( | ||||||||||||||||
| Purchases of receivable portfolios, net of put-backs | ( | ( | ( | ||||||||||||||
| Collections applied to investment in receivable portfolios, net | |||||||||||||||||
| Purchases of property and equipment | ( | ( | ( | ||||||||||||||
| Proceeds from sale of portfolios | |||||||||||||||||
| Other, net | ( | ||||||||||||||||
| Net cash used in investing activities | ( | ( | ( | ||||||||||||||
| Financing activities: | |||||||||||||||||
| Payment of loan and debt refinancing costs | ( | ( | ( | ||||||||||||||
| Proceeds from credit facilities | |||||||||||||||||
| Repayment of credit facilities | ( | ( | ( | ||||||||||||||
| Proceeds from senior secured notes | |||||||||||||||||
| Repayment of senior secured notes | ( | ( | ( | ||||||||||||||
| Proceeds from issuance of convertible and exchangeable senior notes | |||||||||||||||||
| Repayment of convertible senior notes | ( | ( | |||||||||||||||
| Proceeds from other debt | |||||||||||||||||
| Repayment of other debt | ( | ( | ( | ||||||||||||||
| Payment for the purchase of PECs and noncontrolling interest | ( | ( | |||||||||||||||
| Other, net | ( | ( | |||||||||||||||
| Net cash (used in) provided by financing activities | ( | ||||||||||||||||
| Net increase (decrease) in cash and cash equivalents | ( | ||||||||||||||||
| Effect of exchange rate changes on cash and cash equivalents | ( | ||||||||||||||||
| Cash and cash equivalents, beginning of period | |||||||||||||||||
| Cash and cash equivalents of continuing operations, end of period | $ | $ | $ | ||||||||||||||
| Supplemental disclosures of cash flow information: | |||||||||||||||||
| Cash paid for interest | $ | $ | $ | ||||||||||||||
| Cash paid for income taxes, net of refunds | |||||||||||||||||
| Supplemental schedule of non-cash investing and financing activities: | |||||||||||||||||
| Stock consideration for the Cabot Transaction | $ | $ | $ | ||||||||||||||
| Conversion of convertible senior notes | |||||||||||||||||
| Property and equipment acquired through finance leases | |||||||||||||||||
See accompanying notes to consolidated financial statements
F-7
ENCORE CAPITAL GROUP, INC.
Notes to Consolidated Financial Statements
Note 1: Ownership, Description of Business, and Summary of Significant Accounting Policies
Encore Capital Group, Inc. (“Encore”), through its subsidiaries (collectively with Encore, the “Company”), is an international specialty finance company providing debt recovery solutions and other related services for consumers across a broad range of financial assets. The Company purchases portfolios of defaulted consumer receivables at deep discounts to face value and manages them by working with individuals as they repay their obligations and work toward financial recovery. Defaulted receivables are consumers’ unpaid financial obligations to credit originators, including banks, credit unions, consumer finance companies and commercial retailers. Defaulted receivables may also include receivables subject to bankruptcy proceedings. The Company also provides debt servicing and other portfolio management services to credit originators for non-performing loans.
Through Midland Credit Management, Inc. and its domestic affiliates (collectively, “MCM”), the Company is a market leader in portfolio purchasing and recovery in the United States. Through Cabot Credit Management plc (“CCM”) and its subsidiaries and European affiliates (collectively, “Cabot”) the Company is one of the largest credit management services providers in Europe and a market leader in the United Kingdom and Ireland. These are the Company’s primary operations.
The Company also has investments and operations in Latin America and Asia-Pacific, which the Company refers to as “LAAP.” In August 2019, the Company completed the sale (the “Baycorp Transaction”) of its wholly-owned subsidiary Encore Australia Holdings I PTY LTD (together with its subsidiaries “Baycorp”), which represented the Company’s investments and operations in Australia and New Zealand and was a component of LAAP.
Basis of Consolidation
The consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (“GAAP”) and reflect the accounts and operations of the Company and those of its subsidiaries in which the Company has a controlling financial interest. The Company also consolidates VIEs for which it is the primary beneficiary. The primary beneficiary has both (a) the power to direct the activities of the VIE that most significantly affect the entity’s economic performance and (b) either the obligation to absorb losses or the right to receive benefits. Refer to “Note 9: Variable Interest Entities” for further details. All intercompany transactions and balances have been eliminated in consolidation.
Translation of Foreign Currencies
The financial statements of certain of the Company’s foreign subsidiaries are measured using their local currency as the functional currency. Assets and liabilities of foreign operations are translated into U.S. dollars using period-end exchange rates, and revenues and expenses are translated into U.S. dollars using average exchange rates in effect during each period. The resulting translation adjustments are recorded as a component of other comprehensive income or loss. Equity accounts are translated at historical rates, except for the change in retained earnings during the year which is the result of the income statement translation process. Intercompany transaction gains or losses at each period end arising from subsequent measurement of balances for which settlement is not planned or anticipated in the foreseeable future are included as translation adjustments and recorded within other comprehensive income or loss. Translation gains or losses are the material components of accumulated other comprehensive income or loss and are reclassified to earnings upon the substantial sale or liquidation of investments in foreign operations.
Reclassifications
Certain immaterial reclassifications have been made to the prior years’ consolidated financial statements to conform to current year presentation.
Change in Accounting Principle
As discussed in “Note 12: Leases” to the consolidated financial statements, effective January 1, 2019, the Company adopted Accounting Standard Codification 842 - Leases (“Topic 842”) using the modified retrospective method.
The Company adopted ASU 2017-04, Intangibles - Goodwill and Other (Topic 350) in 2019. The amendments in this update simplify the test for goodwill impairment by eliminating Step 2 from the impairment test, which required the entity to perform procedures to determine the fair value at the impairment testing date of its assets and liabilities following the procedure that would be required in determining the fair value of assets acquired and liabilities assumed in a business combination.
F-8
Recent Accounting Pronouncements
Other than the adoption of the standards discussed in the “Change in Accounting Principle” section above, there have been no new accounting pronouncements made effective during the year ended December 31, 2019 that have significance, or potential significance, to the Company’s consolidated financial statements.
Recent Accounting Pronouncements Not Yet Effective
In June 2016, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments (“ASU 2016-13” or “CECL”). ASU 2016-13 introduces a new impairment approach for credit loss recognition based on current expected lifetime losses rather than incurred losses. ASU 2016-13 applies to all financial assets carried at amortized costs, including the Company’s investment in receivable portfolios, which are defined as purchased credit deteriorated (“PCD”) financial assets under CECL. For PCD financial assets, the unit of account is at individual loan level. Since each loan is deeply delinquent and deemed uncollectible at the individual loan level, the Company will apply its charge-off policy and fully write-off the amortized costs (i.e., face value net of noncredit discount) of the individual receivables immediately after purchasing the portfolio. The Company will then record a negative allowance that represents the present value of expected all future recoveries on the aggregated portfolio level using a discounted approach. Revenue will be recognized over the life of the portfolio at an effective interest rate established at the time of purchase. Subsequent over and under-performance and changes in expected cash flows are recognized in the statements of operations as adjustments to the provision for credit losses. ASU 2016-13, including the effect of ongoing developments and amendments to the guidance, represents a significant change from existing U.S. GAAP and will result in changes to the Company’s accounting for its investment in receivable portfolios. ASU 2016-13 is effective for reporting periods beginning after December 15, 2019. The Company will adopt ASU 2016-13 as of January 1, 2020 using a modified-retrospective approach, by recording a cumulative-effect adjustment to opening retained earnings. Implementation efforts have been substantially completed.
As part of the adoption of CECL, the Company will change its current method of accounting for its court costs spent in its legal collection channel effective January 1, 2020. As of December 31, 2019, the Company capitalizes its upfront court costs spent in its consolidated financial statements (“Deferred Court Costs”) and provides a reserve for those costs that it believes will ultimately be uncollectible. For financial statements for reporting periods subsequent to January 1, 2020, the Company will expense all of its court costs as incurred and will include expected recoveries on these upfront court costs in the measurement of the investment in receivable portfolios at a discounted value. Upon transition, an adjustment will be made to retained earnings to reflect the net change from an undiscounted to discounted value prior to writing-off uncollectible receivables and establishing a balance for discounted value of future recoveries of amounts expected to be collected. The adoption of this new accounting policy will result in the write-off of existing Deferred Court Costs, an increase to investment in receivable portfolios, and a decrease to opening retained earnings estimated to be between $40 and $50 million. The Company expects that, subsequent to the adoption of CECL, revenue from receivable portfolios will be favorably impacted by including expected court costs recoveries in its estimated remaining collections, while expensing all court costs as incurred will result in higher operating expenses in 2020 as compared to prior years.
In April 2019, the FASB issued ASU No. 2019-04, Codification Improvements to Topic 326, Financial Instruments-Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments (“ASU 2019-04”). The amendments in ASU 2019-04 clarify certain aspects of accounting for credit losses, hedging activities, and financial instruments. For clarifications around credit losses, the effective date will be the same as the effective date of ASU 2016-13. For entities that have adopted ASU No. 2017-12, Derivatives and Hedging (Topic 815): Targeted Improvements to Accounting for Hedging Activities, ASU 2019-04 is effective the first annual reporting period beginning after the date of issuance of ASU 2019-04 and may be early adopted. The amendments in ASU 2019-04 that are related to financial instruments are effective for fiscal years beginning after December 15, 2019, and interim periods within those years, with early adoption permitted. The Company's adoption of ASU 2019-04 is not expected to have a material impact on its consolidated financial statements.
With the exception of the updated standards discussed above, there have been no new accounting pronouncements not yet effective as of December 31, 2019 that have significance, or potential significance, to the Company’s consolidated financial statements.
Use of Estimates
The preparation of financial statements, in conformity with GAAP, requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could materially differ from those estimates.
F-9
Investment in Receivable Portfolios
Discrete receivable portfolio purchases during the same fiscal quarter are aggregated into pools based on common risk characteristics. Common risk characteristics include risk ratings (e.g., FICO or similar scores), financial asset type, collateral type, size, interest rate, date of origination, term, and geographic location. The Company’s static pools are typically grouped into credit card, purchased consumer bankruptcy, and mortgage portfolios. The Company further groups these static pools by geographic region or location. Portfolios acquired in business combinations are also grouped into these pools. During any fiscal quarter in which the Company has an acquisition of an entity that has portfolio, the entire historical portfolio of the acquired company is aggregated into the pool groups for that quarter, based on common characteristics, resulting in pools for that quarter that may consist of several different vintages of portfolio. Once a static pool is established, the portfolios are permanently assigned to the pool. The discount (i.e., the difference between the cost of each static pool and the related aggregate contractual receivable balance) is not recorded because the Company expects to collect a relatively small percentage of each static pool’s contractual receivable balance. As a result, receivable portfolios are recorded at cost at the time of acquisition. The purchase cost of the portfolios includes certain fees paid to third parties incurred in connection with the direct acquisition of the receivable portfolios.
The Company accounts for its investment in receivable portfolios using either the interest method or the cost recovery method. The interest method applies an internal rate of return (“IRR”) to the cost basis of the pool, which remains unchanged throughout the life of the pool, unless there is an increase in subsequent expected cash flows. Subsequent increases in expected cash flows are recognized prospectively through an upward adjustment of the pool’s IRR over its remaining life. Subsequent decreases in expected cash flows do not change the IRR, but are recognized as an allowance to the cost basis of the pool, and are reflected in the consolidated statements of operations as an adjustment to revenue, with a corresponding valuation allowance, offsetting the investment in receivable portfolios in the consolidated statements of financial condition. With gross collections being discounted at monthly IRRs, when collections are lower in the near term, even if substantially higher collections are expected later in the collection curve, an allowance charge could result.
The Company accounts for each static pool as a unit for the economic life of the pool (similar to one loan) for recognition of revenue from receivable portfolios, for collections applied to the cost basis of receivable portfolios and for provision for loss or allowance. Revenue from receivable portfolios is accrued based on each pool’s IRR applied to each pool’s adjusted cost basis. The cost basis of each pool is increased by revenue earned and portfolio allowance reversals and decreased by gross collections and portfolio allowances. Once the net book value of a static pool has been fully recovered, it becomes zero basis portfolio (“ZBA”) and all subsequent collections are recognized as ZBA revenue.
If the amount and timing of future cash collections on a pool of receivables are not reasonably estimable, the Company accounts for such portfolios on the cost recovery method as Cost Recovery Portfolios. The accounts in these portfolios have different risk characteristics than those included in other portfolios acquired during the same quarter, or the necessary information was not available to estimate future cash flows and, accordingly, they were not aggregated with other portfolios. Under the cost recovery method of accounting, no revenue is recognized until the carrying value of a Cost Recovery Portfolio has been fully recovered. See “Note 4: Investment in Receivable Portfolios, Net” for further discussion of investment in receivable portfolios.
Transfers of Financial Assets
The Company accounts for transfers of financial assets as sales when it has surrendered control over the related assets. Whether control has been relinquished requires, among other things, an evaluation of relevant legal considerations and an assessment of the nature and extent of the Company’s ongoing involvement with the assets transferred. Gains and losses stemming from transfers reported as sales are included in “Other revenues” in the Company’s consolidated statements of operations. Assets obtained and liabilities incurred in connection with transfers reported as sales are initially recognized in the statements of financial condition at fair value.
F-10
Transfers of financial assets that do not qualify for sale accounting are reported as collateralized borrowings. Accordingly, the related assets remain on the Company’s statements of financial condition and continue to be reported and accounted for as if the transfer had not occurred. Cash proceeds from these transfers are reported as liabilities, with attributable interest expense recognized over the life of the related transactions. To date, the Company has not had any transfers of financial assets that did not qualify for sale accounting.
Servicing Revenue
Goodwill and Other Intangible Assets
Goodwill represents the excess of purchase price over the value assigned to the tangible and identifiable intangible assets, liabilities assumed, and noncontrolling interest of businesses acquired. Acquired intangible assets other than goodwill are amortized over their useful lives unless the lives are determined to be indefinite. Goodwill and other indefinite-lived intangible assets are tested at the reporting unit level annually for impairment and in interim periods if certain events occur indicating the fair value of a reporting unit may be below its carrying value. See “Note 15: Goodwill and Identifiable Intangible Assets” for further discussion of the Company’s goodwill and other intangible assets.
Property and Equipment
Property and equipment are recorded at cost, less accumulated depreciation and amortization. The provision for depreciation and amortization is computed using the straight-line method over the estimated useful lives of the assets as follows:
| Fixed Asset Category | Estimated Useful Life | |||||||
| Leasehold improvements | Lesser of lease term, including periods covered by renewal options, or useful life | |||||||
| Furniture, fixtures and equipment | ||||||||
| Computer hardware and software | ||||||||
Maintenance and repairs are charged to expense in the year incurred. Expenditures for major renewals that extend the useful lives of fixed assets are capitalized and depreciated over the useful lives of such assets.
Deferred Court Costs
The Company pursues legal collections using a network of attorneys that specialize in collection matters and through its internal legal channel. The Company generally pursues collections through legal means only when it believes a consumer has sufficient assets to repay their indebtedness but has, to date, been unwilling to pay. In order to pursue legal collections the Company is required to pay certain upfront costs to the applicable courts that are recoverable from the consumer. The Company capitalizes Deferred Court Costs in its consolidated financial statements and provides a reserve for those costs that it believes will ultimately be uncollectible. The Company determines the reserve based on an estimated court cost recovery rate established based on its analysis of historical court costs recovery data. The Company estimates deferral periods for Deferred Court Costs based on jurisdiction and nature of litigation and writes off any Deferred Court Costs not recovered within the respective deferral period. Collections received from debtors are first applied against related court costs with the balance applied to the debtors’ account balance. See “Note 5: Deferred Court Costs, Net” for further details.
Income Taxes
The Company uses the liability method of accounting for income taxes in accordance with the authoritative guidance for Income Taxes. When the Company prepares its consolidated financial statements, it estimates income taxes based on the various jurisdictions and countries where it conducts business. This requires the Company to estimate current tax exposure and to assess temporary differences that result from differing treatments of certain items for tax and accounting purposes. Deferred income taxes are recognized based on the differences between the financial statement and income tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The Company then assesses the likelihood that deferred tax assets will be realized. Valuation allowances are established, when it is more likely than
F-11
not the deferred tax assets will not be realized. When the Company establishes a valuation allowance or increases this allowance in an accounting period, it records a corresponding tax expense in the consolidated statements of operations. The Company includes interest and penalties related to income taxes within its provision for income taxes. See “Note 11: Income Taxes” for further discussion.
Management must make significant judgments to determine the provision for income taxes, deferred tax assets and liabilities, and any valuation allowance to be recorded against deferred tax assets.
Stock-Based Compensation
The Company determines stock-based compensation expense for all share-based payment awards based on the measurement date fair value. The Company has certain share awards that include market conditions that affect vesting, the fair value of these shares is estimated using a lattice model. Compensation cost is not adjusted if the market condition is not met, as long as the requisite service is provided. For share awards that require service and performance conditions, the Company recognizes compensation cost only for those awards expected to meet the service and performance vesting conditions over the requisite service period of the award. Forfeiture rates are estimated based on the Company’s historical experience. Stock-based compensation expenses are included in “Salaries and Employee Benefits” in the Company’s consolidated statements of operations. See “Note 10: Stock-Based Compensation” for further discussion.
Earnings Per Share
Basic earnings per share is calculated by dividing net earnings attributable to Encore by the weighted average number of shares of common stock outstanding during the period. Diluted earnings per share is calculated on the basis of the weighted average number of shares of common stock plus the effect of dilutive potential common shares outstanding during the period using the treasury stock method. Dilutive potential common shares include outstanding stock options, restricted stock, and the dilutive effect of the convertible and exchangeable senior notes, if applicable.
F-12
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Amounts attributable to Encore Capital Group, Inc.: | |||||||||||||||||
| Income from continuing operations | $ | $ | $ | ||||||||||||||
| Loss from discontinued operations, net of tax | ( | ||||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Total weighted-average basic shares outstanding | |||||||||||||||||
| Dilutive effect of stock-based awards | |||||||||||||||||
| Dilutive effect of convertible and exchangeable senior notes | |||||||||||||||||
| Total weighted-average dilutive shares outstanding | |||||||||||||||||
| Basic earnings (loss) per share from: | |||||||||||||||||
| Continuing operations | $ | $ | $ | ||||||||||||||
| Discontinued operations | ( | ||||||||||||||||
| Net basic earnings per share | $ | $ | $ | ||||||||||||||
| Diluted earnings (loss) per share from: | |||||||||||||||||
| Continuing operations | $ | $ | $ | ||||||||||||||
| Discontinued operations | ( | ||||||||||||||||
| Net diluted earnings per share | $ | $ | $ | ||||||||||||||
Anti-dilutive employee stock options outstanding were approximately 64,000 , 66,000 and 107,000 for the years ended December 31, 2019, 2018, and 2017, respectively.
The Company has the following convertible and exchangeable senior notes outstanding: $89.4 million convertible senior notes due 2020 at a conversion price equivalent to approximately $45.72 per share of the Company’s common stock (the “2020 Convertible Notes”), $161.0 million convertible senior notes due 2021 at a conversion price equivalent to approximately $59.39 per share of the Company’s common stock (the “2021 Convertible Notes”), $150.0 million convertible senior notes due 2022 at a conversion price equivalent to approximately $45.57 per share of the Company’s common stock (the “2022 Convertible Notes”), $172.5 million exchangeable senior notes due 2023 at a conversion price equivalent to approximately $44.62 per share of the Company’s common stock (the “Exchangeable Notes”), and $100.0 million convertible senior notes due 2025 at a conversion price equivalent to approximately $40.00 per share of the Company's common stock (the “2025 Convertible Notes”).
Note 2: Fair Value Measurements
Fair value is defined as the price that would be received upon sale of an asset or the price paid to transfer a liability, in an orderly transaction between market participants at the measurement date ( i.e., the “exit price”). The Company uses a fair value hierarchy that prioritizes the inputs used in valuation techniques to measure fair value into three broad levels. The following is a brief description of each level:
F-13
•Level 2: Inputs other than quoted prices that are observable for the asset or liability, either directly or indirectly. These include quoted prices for similar assets or liabilities in active markets and quoted prices for identical or similar assets or liabilities in markets that are not active.
•Level 3: Unobservable inputs, including inputs that reflect the reporting entity’s own assumptions.
Financial Instruments Required To Be Carried At Fair Value
Financial assets and liabilities measured at fair value on a recurring basis are summarized below (in thousands):
| Fair Value Measurements as of December 31, 2019 | |||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||
| Assets | |||||||||||||||||||||||
| Foreign currency exchange contracts | $ | $ | $ | $ | |||||||||||||||||||
| Interest rate cap contracts | |||||||||||||||||||||||
| Liabilities | |||||||||||||||||||||||
| Interest rate swap agreements | ( | ( | |||||||||||||||||||||
| Contingent consideration | ( | ( | |||||||||||||||||||||
| Fair Value Measurements as of December 31, 2018 | |||||||||||||||||||||||
| Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||||||
| Assets | |||||||||||||||||||||||
| Interest rate cap contracts | $ | $ | $ | $ | |||||||||||||||||||
| Liabilities | |||||||||||||||||||||||
| Foreign currency exchange contracts | ( | ( | |||||||||||||||||||||
| Interest rate swap agreements | ( | ( | |||||||||||||||||||||
| Contingent consideration | ( | ( | |||||||||||||||||||||
Derivative Contracts:
The Company uses derivative instruments to manage its exposure to fluctuations in interest rates and foreign currency exchange rates. Fair values of these derivative instruments are estimated using industry standard valuation models. These models project future cash flows and discount the future amounts to a present value using market-based observable inputs, including interest rate curves, foreign currency exchange rates, and forward and spot prices for currencies.
Contingent Consideration:
The Company carries certain contingent liabilities resulting from its mergers and acquisition activities. Certain sellers of the Company’s acquired entities could earn additional earn-out payments in cash based on the entities’ subsequent operating performance. The Company recorded the acquisition date fair values of these contingent liabilities, based on the likelihood of contingent earn-out payments, as part of the consideration transferred. The earn-out payments are subsequently remeasured to fair value at each reporting date, based on actual and forecasted operating performance.
F-14
The following table provides a roll-forward of the fair value of contingent consideration for the years ended December 31, 2019, 2018 and 2017 (in thousands):
| Amount | |||||
| Balance at December 31, 2016 | $ | ||||
| Issuance of contingent consideration in connection with acquisition | |||||
| Change in fair value of contingent consideration | ( | ||||
| Time value amortization | |||||
| Payment of contingent consideration | ( | ||||
| Effect of foreign currency translation | |||||
| Balance at December 31, 2017 | |||||
| Issuance of contingent consideration in connection with acquisition | |||||
| Change in fair value of contingent consideration | ( | ||||
| Payment of contingent consideration | ( | ||||
| Effect of foreign currency translation | ( | ||||
| Balance at December 31, 2018 | |||||
| Change in fair value of contingent consideration | ( | ||||
| Payment of contingent consideration | ( | ||||
| Effect of foreign currency translation | ( | ||||
| Balance at December 31, 2019 | $ | ||||
Redeemable Noncontrolling Interest:
Some minority shareholders in certain subsidiaries of the Company had the right, at certain times, to require the Company to acquire their ownership interest in those entities at fair value and, in some cases, to force a sale of the subsidiary if the Company chose not to purchase their interests at fair value. In connection with various business transactions, the Company redeemed or deconsolidated all of its redeemable noncontrolling interest during the year ended December 31, 2018 and no longer carried any redeemable noncontrolling interest as of December 31, 2018.
The components of the change in the redeemable noncontrolling interest for the years ended December 31, 2019, 2018 and 2017 are presented in the following table (in thousands):
| Amount | |||||
| Balance at December 31, 2016 | $ | ||||
| Addition to redeemable noncontrolling interest | |||||
| Net loss attributable to redeemable noncontrolling interest | ( | ||||
| Adjustment of the redeemable noncontrolling interest to fair value | |||||
| Effect of foreign currency translation attributable to redeemable noncontrolling interest | |||||
| Balance at December 31, 2017 | |||||
| Redemption of redeemable noncontrolling interest | ( | ||||
| Deconsolidation upon sale of redeemable noncontrolling interest | |||||
| Net loss attributable to redeemable noncontrolling interest | ( | ||||
| Adjustment of the redeemable noncontrolling interest to fair value | ( | ||||
| Effect of foreign currency translation attributable to redeemable noncontrolling interest | ( | ||||
| Balance at December 31, 2018 | |||||
| Balance at December 31, 2019 | $ | ||||
Non-Recurring Fair Value Measurement:
Certain assets are measured at fair value on a nonrecurring basis. These assets include real estate-owned assets classified as held for sale at the lower of their carrying value or fair value less cost to sell. The fair value of the assets held for sale and estimated selling expenses were determined at the time of initial recognition and in each reporting period using Level 3
F-15
measurements. The fair value estimate of the assets held for sale was approximately $46.7 million and $26.7 million as of December 31, 2019 and December 31, 2018, respectively.
Financial Instruments Not Required To Be Carried At Fair Value
The table below summarizes fair value estimates for the Company’s financial instruments that are not required to be carried at fair value. The total of the fair value calculations presented does not represent, and should not be construed to represent, the underlying value of the Company. The carrying amounts in the following table are recorded in the consolidated statements of financial condition at December 31, 2019 and December 31, 2018 (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||||||||||||||
| Carrying Amount | Estimated Fair Value | Carrying Amount | Estimated Fair Value | ||||||||||||||||||||
| Financial Assets | |||||||||||||||||||||||
| Investment in receivable portfolios | $ | $ | $ | $ | |||||||||||||||||||
| Deferred court costs | |||||||||||||||||||||||
| Financial Liabilities | |||||||||||||||||||||||
Encore convertible notes and exchangeable notes(1) | |||||||||||||||||||||||
Cabot senior secured notes(2) | |||||||||||||||||||||||
________________________
(1)Carrying amount represents the portion of the convertible and exchangeable notes classified as debt, while estimated fair value pertains to the face amount of the notes.
(2)Carrying amount represents historical cost, adjusted for any related debt discount or debt premium.
Investment in Receivable Portfolios:
The fair value of investment in receivable portfolios is measured using Level 3 inputs by discounting the estimated future cash flows generated by its proprietary forecasting models. The key inputs include the estimated future gross cash flow, average cost to collect, and discount rate. The Company estimates the average cost to collect and discount rates based on its estimate of what a market participant might use in valuing these portfolios. The determination of such inputs requires significant judgment, including assessing the assumed market participant’s cost structure, its determination of whether to include fixed costs in its valuation, its collection strategies, and determining the appropriate weighted average cost of capital. The Company evaluates the use of these key inputs on an ongoing basis and refines the data as it continues to obtain better information from market participants in the debt recovery and purchasing business.
A 100 basis point increase in the cost to collect and discount rate used would result in a decrease in the fair value of U.S. and European portfolios by approximately $65.6 million and $77.3 million, respectively, as of December 31, 2019. This fair value calculation does not represent, and should not be construed to represent, the underlying value of the Company or the amount which could be realized if its investment in receivable portfolios were sold.
Deferred Court Costs:
The Company capitalizes deferred court costs and provides a reserve for those costs that it believes will ultimately be uncollectible. The carrying value of net deferred court costs was $100.2 million and $95.9 million as of December 31, 2019 and 2018, respectively, and approximated fair value.
Borrowings:
The majority of the Company’s borrowings are carried at historical amounts, adjusted for additional borrowings less principal repayments, which approximate fair value. These borrowings include Encore’s senior secured notes and borrowings under its revolving credit and term loan facilities and Cabot’s borrowings under its revolving credit facility. The carrying value of the Company’s revolving credit and term loan facilities approximates fair value due to the short-term nature of the interest rate periods. The fair value of the Company’s senior secured notes was estimated using widely accepted valuation techniques, including discounted cash flow analyses using available market information on discount and borrowing rates with similar terms, maturities, and credit ratings. Accordingly, the Company used Level 2 inputs for these debt instrument fair value estimates. The Company’s borrowings also include finance lease liabilities for which the carrying value approximates fair value.
Encore’s convertible notes and exchangeable notes and Cabot’s senior secured notes are carried at historical cost, adjusted for the debt discount. The fair value estimate for these convertible and exchangeable notes incorporates quoted market prices using Level 2 inputs.
F-16
Note 3: Derivatives and Hedging Instruments
The Company may periodically enter into derivative financial instruments to manage risks related to interest rates and foreign currency. Certain of the Company’s derivative financial instruments qualify for hedge accounting treatment.
The following table summarizes the fair value of derivative instruments as recorded in the Company’s consolidated statements of financial condition (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||||||||||||||
| Balance Sheet Location | Fair Value | Balance Sheet Location | Fair Value | ||||||||||||||||||||
Derivatives designated as hedging instruments: | |||||||||||||||||||||||
| Interest rate cap contracts | Other assets | $ | Other assets | $ | |||||||||||||||||||
| Foreign currency exchange contracts | Other assets | Other liabilities | ( | ||||||||||||||||||||
| Interest rate swap agreements | Other liabilities | ( | Other liabilities | ( | |||||||||||||||||||
Derivatives not designated as hedging instruments: | |||||||||||||||||||||||
| Foreign currency exchange contracts | Other assets | Other assets | |||||||||||||||||||||
Derivatives Designated as Hedging Instruments
The Company has operations in foreign countries, which expose the Company to foreign currency exchange rate fluctuations due to transactions denominated in foreign currencies. To mitigate a portion of this risk, the Company enters into derivative financial instruments, principally foreign currency forward contracts with financial counterparties. The Company adjusts the level and use of derivatives as soon as practicable after learning that an exposure has changed and reviews all exposures and derivative positions on an ongoing basis.
Certain of the foreign currency forward contracts are designated as cash flow hedging instruments and qualify for hedge accounting treatment. Gains and losses arising from such contracts are recorded as a component of accumulated other comprehensive income (“OCI”) as gains and losses on derivative instruments, net of income taxes. The hedging gains and losses in OCI are subsequently reclassified into earnings in the same period in which the underlying transactions affect the Company’s earnings. If all or a portion of the forecasted transaction is cancelled, the accumulated gains or losses in OCI would be reclassified into earnings.
As of December 31, 2019, the total notional amount of the foreign currency forward contracts that are designated as cash flow hedging instruments was $13.8 million. All of these outstanding contracts qualified for hedge accounting treatment. The Company estimates that approximately $0.4 million of net derivative gain included in OCI will be reclassified into earnings within the next 12 months. No
The Company may periodically enter into interest rate swap agreements to reduce its exposure to fluctuations in interest rates on variable interest rate debt and their impact on earnings and cash flows. Under the swap agreements, the Company receives floating interest rate payments and makes interest payments based on fixed interest rates. The Company designates its interest rate swap instruments as cash flow hedges. As of December 31, 2019, there were four interest rate swap agreements outstanding with a total notional amount of $331.7 million.
As of December 31, 2019, the Company also held three interest rate cap contracts with a notional amount of approximately $913.0 million that are used to manage its risk related to interest rate fluctuations on the Company’s variable interest rate bearing debt. Two of the interest rate cap contracts mature in 2021 (the “2018 Caps”) and one matures in 2024 (the “2019 Cap”). The 2018 Caps have a notional amount of £350.0 million (approximately $464.1 million) and the 2019 Cap has a notional amount of €400.0 million (approximately $448.9 million). The 2018 Caps are structured as a series of European call options (“Caplets”) such that if exercised, the Company will receive a payment equal to 3-months GBP-LIBOR on a notional amount equal to the hedged notional amount net of a fixed strike price. The 2019 Cap is also structured as a series of Caplets such that if exercised, the Company will receive a payment equal to 3-months EURIBOR on a notional amount equal to the hedged notional amount net of a fixed strike price. Each interest rate reset date, the Company will elect to exercise the Caplet or let it expire. The potential cash flows from each Caplet are expected to offset any variability in the cash flows of the interest payments to the extent GBP-LIBOR or EURIBOR exceeds the strike price of the Caplets. The Company expects the hedge relationship to be highly effective and designates the 2018 Caps and 2019 Cap as cash flow hedge instruments.
F-17
The following table summarizes the effects of derivatives in cash flow hedging relationships designated as hedging instruments in the Company’s consolidated financial statements for the years ended December 31, 2019 and 2018 (in thousands):
| Gain (Loss) Recognized in OCI | Location of Gain (Loss) Reclassified from OCI into Income | Gain (Loss) Reclassified from OCI into Income | |||||||||||||||||||||||||||
| 2019 | 2018 | 2019 | 2018 | ||||||||||||||||||||||||||
| Foreign currency exchange contracts | $ | $ | ( | Salaries and employee benefits | $ | $ | |||||||||||||||||||||||
| Foreign currency exchange contracts | ( | ( | General and administrative expenses | ( | |||||||||||||||||||||||||
| Interest rate swap agreements | ( | ( | Interest expense | ( | ( | ||||||||||||||||||||||||
| Interest rate cap contracts | ( | ( | Interest expense | ||||||||||||||||||||||||||
Derivatives Not Designated as Hedging Instruments
The Company enters into currency exchange forward contracts to reduce the effects of currency exchange rate fluctuations between the British Pound and Euro. These derivative contracts generally mature within to months and are not designated as hedge instruments for accounting purposes. The Company continues to monitor the level of exposure of the foreign currency exchange risk and may enter into additional short-term forward contracts on an ongoing basis. The gains or losses on these derivative contracts are recognized in other income or expense based on the changes in fair value.
In May 2018, in anticipation of the completion of the Cabot Transaction, Encore entered into a foreign exchange forward contract with a notional amount of £176.0 million, which was approximately the amount of cash consideration for the Cabot Transaction. The forward contract settled in August 2018 at a total loss of $9.3 million. This loss was substantially offset by a decrease in the final purchase price in U.S. dollars for the Cabot Transaction.
The following table summarizes the effects of derivatives not designated as hedging instruments on the Company’s consolidated statements of operations for the years ended December 31, 2019, 2018 and 2017 (in thousands):
| Derivatives Not Designated as Hedging Instruments | Location of Derivative Gain (Loss) Recognized in Income | Amount of Derivative Gain (Loss) Recognized in Income | ||||||||||||||||||||||||
| 2019 | 2018 | 2017 | ||||||||||||||||||||||||
| Foreign currency exchange contracts | Other (expense) income | $ | ( | $ | ( | $ | ||||||||||||||||||||
| Interest rate cap contracts | Interest expense | ( | ||||||||||||||||||||||||
| Interest rate swap agreements | Interest expense | |||||||||||||||||||||||||
Note 4: Investment in Receivable Portfolios, Net
The following tables summarize the changes in the balance of the investment in receivable portfolios during the following periods (in thousands, except percentages):
F-18
| Year Ended December 31, 2019 | |||||||||||||||||||||||
| Accrual Basis Portfolios | Cost Recovery Portfolios | Zero Basis Portfolios | Total | ||||||||||||||||||||
| Balance, beginning of period | $ | $ | $ | $ | |||||||||||||||||||
| Purchases of receivable portfolios | |||||||||||||||||||||||
Transfer of portfolios(1) | ( | ||||||||||||||||||||||
Deconsolidation of receivable portfolios(2) | ( | ( | |||||||||||||||||||||
| Disposals or transfers to held for sale | ( | ( | ( | ||||||||||||||||||||
Sale of receivable portfolios(3) | (98,636) | — | — | (98,636) | |||||||||||||||||||
Collections on receivable portfolios(4) | ( | ( | ( | ( | |||||||||||||||||||
Put-backs and Recalls(5) | ( | ( | ( | ||||||||||||||||||||
| Foreign currency adjustments | ( | ||||||||||||||||||||||
| Revenue recognized | |||||||||||||||||||||||
| Portfolio (allowance) reversals, net | ( | ( | |||||||||||||||||||||
| Balance, end of period | $ | $ | $ | $ | |||||||||||||||||||
Revenue as a percentage of collections(6) | % | % | % | ||||||||||||||||||||
| Year Ended December 31, 2018 | |||||||||||||||||||||||
| Accrual Basis Portfolios | Cost Recovery Portfolios | Zero Basis Portfolios | Total | ||||||||||||||||||||
| Balance, beginning of period | $ | $ | $ | $ | |||||||||||||||||||
| Purchases of receivable portfolios | |||||||||||||||||||||||
| Disposals or transfers to held for sale | ( | ( | ( | ||||||||||||||||||||
Collections on receivable portfolios(4) | ( | ( | ( | ( | |||||||||||||||||||
Put-backs and Recalls(5) | ( | ( | ( | ||||||||||||||||||||
| Foreign currency adjustments | ( | ( | ( | ||||||||||||||||||||
| Revenue recognized | |||||||||||||||||||||||
| Portfolio allowance reversals, net | |||||||||||||||||||||||
| Reclassification from prior period | ( | ||||||||||||||||||||||
| Balance, end of period | $ | $ | $ | $ | |||||||||||||||||||
Revenue as a percentage of collections(6) | % | % | % | ||||||||||||||||||||
| Year Ended December 31, 2017 | |||||||||||||||||||||||
| Accrual Basis Portfolios | Cost Recovery Portfolios | Zero Basis Portfolios | Total | ||||||||||||||||||||
| Balance, beginning of period | $ | $ | $ | $ | |||||||||||||||||||
| Purchases of receivable portfolios | |||||||||||||||||||||||
| Disposals or transfers to held for sale | ( | ( | ( | ||||||||||||||||||||
Collections on receivable portfolios(4) | ( | ( | ( | ( | |||||||||||||||||||
Put-backs and Recalls(5) | ( | ( | ( | ||||||||||||||||||||
| Foreign currency adjustments | ( | ||||||||||||||||||||||
| Revenue recognized | |||||||||||||||||||||||
| Portfolio allowance reversals, net | |||||||||||||||||||||||
| Balance, end of period | $ | $ | $ | $ | |||||||||||||||||||
Revenue as a percentage of collections(6) | % | % | % | ||||||||||||||||||||
________________________
(1)Represents all portfolios in Mexico, which were transferred from accrual basis portfolios to cost recovery portfolios as the timing of future collections were determined to not be currently reasonably estimable, due to the changing political and economic conditions in Mexico.
F-19
(2)Deconsolidation of receivable portfolios as a result of the Baycorp Transaction.
(3)Represents the sale of certain portfolios in the Company’s European operations under the co-investment framework.
(4)Does not include amounts collected on behalf of others.
(5)Put-backs (“Put-Backs”) and recalls (“Recalls”) represent ineligible accounts that are returned by us or recalled by the seller pursuant to specific guidelines as set forth in the respective purchase agreements.
(6)Revenue as a percentage of collections excludes the effects of net portfolio allowances or net portfolio allowance reversals.
Accretable yield represents the amount of revenue the Company expects to generate over the remaining life of its existing investment in receivable portfolios based on estimated future cash flows. Total accretable yield is the difference between future estimated collections and the current carrying value of a portfolio. All estimated cash flows on portfolios where the cost basis has been fully recovered are classified as zero basis cash flows.
The following table summarizes the Company’s accretable yield and an estimate of zero basis future cash flows at the beginning and end of the period presented (in thousands):
Accretable Yield | Estimate of Zero Basis Cash Flows | Total | |||||||||||||||
| Balance at December 31, 2017 | $ | $ | $ | ||||||||||||||
| Revenue from receivable portfolios | ( | ( | ( | ||||||||||||||
| Allowance reversals on receivable portfolios, net | ( | ( | ( | ||||||||||||||
Net additions on existing portfolios | |||||||||||||||||
Additions for current purchases, net | |||||||||||||||||
Effect of foreign currency translation | ( | ( | ( | ||||||||||||||
| Balance at December 31, 2018 | |||||||||||||||||
| Revenue from receivable portfolios | ( | ( | ( | ||||||||||||||
| Allowance (allowance reversals) on receivable portfolios, net | ( | ||||||||||||||||
Additions (reductions) on existing portfolios, net | ( | ||||||||||||||||
Additions for current purchases, net | |||||||||||||||||
Effect of foreign currency translation | ( | ||||||||||||||||
| Balance at December 31, 2019 | $ | $ | $ | ||||||||||||||
During the year ended December 31, 2019, the Company purchased receivable portfolios with a face value of $11.6 billion for $1.0 billion, or a purchase cost of 8.6 % of face value. The estimated future collections at acquisition for all portfolios purchased during the year amounted to $2.1 billion.
During the year ended December 31, 2018, the Company purchased receivable portfolios with a face value of $8.5 billion for $1.1 billion, or a purchase cost of 13.3 % of face value. The estimated future collections at acquisition for all portfolios purchased during the year amounted to $2.3 billion.
After the net book value of a portfolio has been fully recovered, all collections are recorded as ZBA revenue. During the years ended December 31, 2019, 2018, and 2017, ZBA revenue was approximately $83.6 million, $125.2 million, and $144.1 million, respectively.
F-20
| Valuation Allowance | |||||
| Balance at December 31, 2017 | $ | ||||
| Provision for portfolio allowances | |||||
| Reversal of prior allowances | ( | ||||
| Effect of foreign currency translation | ( | ||||
| Balance at December 31, 2018 | |||||
| Provision for portfolio allowances | |||||
| Reversal of prior allowances | ( | ||||
| Baycorp Transaction | ( | ||||
| Effect of foreign currency translation | |||||
| Balance at December 31, 2019 | $ | ||||
Note 5: Deferred Court Costs, Net
Deferred Court Costs for the deferral period consist of the following as of the dates presented (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Court costs advanced | $ | $ | |||||||||
| Court costs recovered | ( | ( | |||||||||
| Court costs reserve | ( | ( | |||||||||
| Deferred court costs | $ | $ | |||||||||
A roll forward of the Company’s court cost reserve is as follows (in thousands):
| December 31, 2019 | December 31, 2018 | December 31, 2017 | |||||||||||||||
| Balance at beginning of period | $ | ( | $ | ( | $ | ( | |||||||||||
| Provision for court costs | ( | ( | ( | ||||||||||||||
| Charge-offs | |||||||||||||||||
| Effect of foreign currency translation | ( | ( | |||||||||||||||
| Balance at end of period | $ | ( | $ | ( | $ | ( | |||||||||||
Note 6: Property and Equipment, Net
Property and equipment consist of the following, as of the dates presented (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Computer equipment and software | $ | $ | |||||||||
| Leasehold improvements | |||||||||||
| Furniture, fixtures and equipment | |||||||||||
| Telecommunications equipment and other | |||||||||||
| Construction in process | |||||||||||
| Less: accumulated depreciation and amortization | ( | ( | |||||||||
| $ | $ | ||||||||||
Depreciation and amortization expense from continuing operations was $33.3 million, $29.5 million, and $31.1 million for the years ended December 31, 2019, 2018, and 2017, respectively.
F-21
Note 7: Other Assets
Other assets consist of the following (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Operating lease right-of-use assets | $ | $ | — | ||||||||
| Identifiable intangible assets, net | |||||||||||
| Assets held for sale | |||||||||||
| Service fee receivables | |||||||||||
| Deferred tax assets | |||||||||||
| Prepaid expenses | |||||||||||
| Other financial receivables | |||||||||||
| Other | |||||||||||
| Total | $ | $ | |||||||||
Note 8: Borrowings
The Company is in compliance in all material respects with all covenants under its financing arrangements as of December 31, 2019. The components of the Company’s consolidated borrowings were as follows (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Encore revolving credit facility | $ | $ | |||||||||
| Encore term loan facility | |||||||||||
| Encore senior secured notes | |||||||||||
| Encore convertible notes and exchangeable notes | |||||||||||
| Less: debt discount | ( | ( | |||||||||
| Cabot senior secured notes | |||||||||||
| Less: debt discount | ( | ( | |||||||||
| Cabot senior revolving credit facility | |||||||||||
| Cabot securitisation senior facility | |||||||||||
| Other | |||||||||||
| Finance lease liabilities | |||||||||||
| Less: debt issuance costs, net of amortization | ( | ( | |||||||||
| Total | $ | $ | |||||||||
Encore Revolving Credit Facility and Term Loan Facility
The Company has a revolving credit facility (the “Revolving Credit Facility”) and term loan facility (the “Term Loan Facility,” and together with the Revolving Credit Facility, the “Senior Secured Credit Facilities”) pursuant to a Third Amended and Restated Credit Agreement dated December 20, 2016 (as amended, the “Restated Credit Agreement”).
Provisions of the Restated Credit Agreement as of December 31, 2019 include, but are not limited to:
•Revolving Credit Facility commitments of $884.2 million that expire in December 2021 with interest at a floating rate equal to, at the Company’s option, either: (a) reserve adjusted London Interbank Offered Rate (“LIBOR”), plus a spread that ranges from 250 to 300 basis points depending on the cash flow leverage ratio of Encore and its restricted subsidiaries as defined in the Restated Credit Agreement; or (b) alternate base rate, plus a spread that ranges from 150 to 200 basis points, depending on the cash flow leverage ratio of Encore and its restricted subsidiaries. “Alternate base rate,” as defined in the Restated Credit Agreement, means the highest of (i) the per annum rate which the administrative agent publicly announces from time to time as its prime lending rate, (ii) the
F-22
federal funds effective rate from time to time, plus 0.5 % per annum, (iii) reserved adjusted LIBOR determined on a daily basis for a one month interest period, plus 1.0 % per annum and (iv) zero;
•A $194.6 million term loan maturing in December 2021, with interest at a floating rate equal to, at the Company’s option, either: (1) reserve adjusted LIBOR, plus a spread that ranges from 250 to 300 basis points, depending on the cash flow leverage ratio of Encore and its restricted subsidiaries; or (2) alternate base rate, plus a spread that ranges from 150 to 200 basis points, depending on the cash flow leverage ratio of Encore and its restricted subsidiaries. Principal amortizes $15.3
•A borrowing base under the Revolving Credit Facility equal to 35 % of all eligible non-bankruptcy estimated remaining collections plus 55 % of eligible estimated remaining collections for consumer receivables subject to bankruptcy;
•A maximum cash flow leverage ratio permitted of 3.00 :1.00;
•A maximum cash flow first-lien leverage ratio of 2.00 :1.00;
•A minimum interest coverage ratio of 1.75 :1.00;
•The allowance of indebtedness in the form of senior secured notes not to exceed $350.0 million;
•The allowance of additional unsecured or subordinated indebtedness not to exceed $1.1 billion, including junior lien indebtedness not to exceed $400.0 million;
•Restrictions and covenants, which limit the payment of dividends and the incurrence of additional indebtedness and liens, among other limitations;
•Repurchases of up to $150.0 million of Encore’s common stock after July 9, 2015, subject to compliance with certain covenants and available borrowing capacity;
•A change of control definition, that excludes acquisitions of stock by Red Mountain Capital Partners LLC, JCF FPK I, LP and their respective affiliates of up to 50 % of the outstanding shares of Encore’s voting stock;
•Events of default which, upon occurrence, may permit the lenders to terminate the facility and declare all amounts outstanding to be immediately due and payable;
•A pre-approved acquisition limit of $225.0 million per fiscal year;
•A basket to allow for investments not to exceed the greater of (1) 200 % of the consolidated net worth of Encore and its restricted subsidiaries; and (2) an unlimited amount such that after giving effect to the making of any investment, the cash flow leverage ratio is less than 1.25 :1:00;
•A basket to allow for investments in persons organized under the laws of Canada in the amount of $50.0 million;
•Collateralization by all assets of the Company, other than the assets of certain foreign subsidiaries and all unrestricted subsidiaries as defined in the Restated Credit Agreement.
At December 31, 2019, the outstanding balance under the Revolving Credit Facility was $492.0 million, which bore a weighted average interest rate of 5.27 % and 5.01 % for the years ended December 31, 2019 and 2018, respectively. Available capacity under the Revolving Credit Facility, after taking into account borrowing base and applicable debt covenants, was $272.3 million as of December 31, 2019. At December 31, 2019, the outstanding balance under the Term Loan Facility was $171.7 million.
Encore Senior Secured Notes
In August 2017, Encore entered into $325.0 million in senior secured notes with a group of insurance companies (the “Senior Secured Notes”). The Senior Secured Notes bear an annual interest rate of 5.625 %, mature in 2024 and beginning in November 2019, require quarterly principal payments of $16.3 million. As of December 31, 2019, $308.8 million of the Senior Secured Notes remained outstanding.
The Senior Secured Notes are guaranteed in full by certain of Encore’s subsidiaries. The Senior Secured Notes are pari passu with, and are collateralized by the same collateral as the Senior Secured Credit Facilities. The Senior Secured Notes may be accelerated and become automatically and immediately due and payable upon certain events of default, including certain events related to insolvency, bankruptcy, or liquidation. Additionally, any series of the Senior Secured Notes may be
F-23
accelerated at the election of the holder or holders of a majority in principal amount of such series of Senior Secured Notes upon certain events of default by Encore, including the breach of affirmative covenants regarding guarantors, collateral, minimum revolving credit facility commitment or the breach of any negative covenant. Encore may prepay the Senior Secured Notes at any time for any reason. If Encore prepays the Senior Secured Notes, payment will be at the higher of par or the present value of the remaining scheduled payments of principal and interest on the portion being prepaid. The discount rate used to determine the present value is 50 basis points over the then current Treasury Rate corresponding to the remaining average life of the Senior Secured Notes. The covenants and material terms in the purchase agreement for the Senior Secured Notes are substantially similar to those in the Restated Credit Agreement. The holders of the Senior Secured Notes and the administrative agent for the lenders of the Restated Credit Agreement have an intercreditor agreement related to their pro rata rights to the collateral, actionable default, powers and duties and remedies, among other topics.
Encore Convertible Notes and Exchangeable Notes
The following table provides a summary of the principal balance, maturity date and interest rate for the outstanding convertible and exchangeable senior notes ($ in thousands):
| December 31, 2019 | December 31, 2018 | Maturity Date | Interest Rate | ||||||||||||||||||||
| 2020 Convertible Notes | $ | $ | Jul 1, 2020 | % | |||||||||||||||||||
| 2021 Convertible Notes | Mar 15, 2021 | % | |||||||||||||||||||||
| 2022 Convertible Notes | Mar 15, 2022 | % | |||||||||||||||||||||
| Exchangeable Notes | Sep 1, 2023 | % | |||||||||||||||||||||
| 2025 Convertible Notes | Oct 1, 2025 | % | |||||||||||||||||||||
| $ | $ | ||||||||||||||||||||||
In June and July 2013, Encore issued $172.5 million aggregate principal amount of 3.000 % convertible senior notes that mature on July 1, 2020 in private placement transactions (the “2020 Convertible Notes”). In March 2014, Encore issued $161.0 million aggregate principal amount of 2.875 % convertible senior notes that mature on March 15, 2021 in private placement transactions (the “2021 Convertible Notes”). In March 2017, Encore issued $150.0 million aggregate principal amount of 3.250 % convertible senior notes that mature on March 15, 2022 in private placement transactions (the “2022 Convertible Notes”). In September 2019, Encore issued $100.0 million aggregate principal amount of 3.250 % convertible senior notes that mature on October 1, 2025 in private placement transactions (the “2025 Convertible Notes” and together with the 2020 Convertible Notes the 2021 Convertible Notes, and the 2022 Convertible Notes, the “Convertible Notes”). The interest on the Convertible Notes is payable semi-annually.
The Company used a portion of the net proceeds from the issuance of the 2025 Convertible Notes to repurchase, in separate privately negotiated transactions, approximately $83.1 million aggregate principal amount of its 2020 Convertible Notes for approximately $85.0 million, including accrued and unpaid interest. Additionally, the Company received proceeds of $1.8 million from the unwind of the capped call options associated with the repurchased portion of the 2020 Convertible Notes. Based on the fair value allocated to the debt and equity components of the 2020 Convertible Notes at the time of repurchase, the Company recognized a pre-tax loss on the repurchase of approximately $1.7 million, which was recorded to other expense in the consolidated statements of operations during the year ended December 31, 2019. In addition, the Company recognized approximately $0.4 million of interest expense to record the write-off of unamortized debt issuance costs associated with the repurchase of the 2020 Convertible Notes in the consolidated statements of operations during the year ended December 31, 2019. Since the capped call options were determined to be equity instruments, the partial unwind of the capped call options was recorded as an increase in additional paid-in capital in the consolidated statements of financial condition as of December 31, 2019.
In July 2018, Encore Finance (defined below), a 100 % owned finance subsidiary of Encore, issued $172.5 million aggregate principal amount of exchangeable senior notes due 2023 (the “Exchangeable Notes”) which are fully and unconditionally guaranteed by Encore. The Exchangeable Notes mature on September 1, 2023 and bear interest at a rate of 4.500 % per year, payable semi-annually in arrears on March 1 and September 1 of each year, beginning on March 1, 2019.
Unless otherwise indicated in connection with a particular offering of debt securities, Encore will fully and unconditionally guarantee any debt securities issued by Encore Capital Europe Finance Limited (“Encore Finance”), a 100 % owned finance subsidiary of Encore. Amounts related to Encore Finance are included in the consolidated financial statements of Encore subsequent to April 30, 2018, the date of the incorporation of Encore Finance.
Prior to the close of business on the business day immediately preceding their respective conversion or exchange date (listed below), holders may convert or exchange their Convertible Notes or Exchangeable Notes under certain circumstances set
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forth in the applicable indentures. On or after their respective conversion or exchange dates until the close of business on the scheduled trading day immediately preceding their respective maturity date, holders may convert or exchange their notes at any time. Certain key terms related to the convertible and exchangeable features as of December 31, 2019 are listed below:
| 2020 Convertible Notes | 2021 Convertible Notes | 2022 Convertible Notes | 2023 Exchangeable Notes | 2025 Convertible Notes | |||||||||||||||||||||||||
| Initial conversion or exchange price | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Closing stock price at date of issuance | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Closing stock price date | Jun 24, 2013 | Mar 5, 2014 | Feb 27, 2017 | Jul 20, 2018 | Sep 4, 2019 | ||||||||||||||||||||||||
| Conversion or exchange rate (shares per $1,000 principal amount) | 21.8718 | 16.8386 | 21.9467 | 22.4090 | 25.0000 | ||||||||||||||||||||||||
| Conversion or exchange date | Jan 1, 2020 | Sep 15, 2020 | Sep 15, 2021 | Mar 1, 2023 | Jul 1, 2025 | ||||||||||||||||||||||||
In the event of conversion or exchange, holders of the Company’s Convertible Notes or Exchangeable Notes will receive cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock, at the Company’s election. The Company’s current intent is to settle conversions and exchanges through combination settlement (i.e., convertible or exchangeable into cash up to the aggregate principal amount, and shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock, at the Company’s election and subject to certain restrictions contained in each of the indentures governing the Convertible Notes and Exchangeable Notes, for the remainder). As a result, and in accordance with authoritative guidance related to derivatives and hedging and earnings per share, only the conversion or exchange spread is included in the diluted earnings per share calculation, if dilutive. Under such method, the settlement of the conversion or exchange spread has a dilutive effect when, during any quarter, the average share price of the Company’s common stock exceeds the initial conversion or exchange prices listed in the above table.
The Company separately accounts for the liability and equity components in a manner that will reflect the entity’s nonconvertible or nonexchangeable debt borrowing rate when interest cost is recognized in subsequent periods. Additionally, debt issuance costs are allocated in proportion to the allocation of the liability and equity components and accounted for as debt issuance costs and equity issuance costs, respectively.
As discussed above, upon exchange of the Exchangeable Notes, the Company will pay or deliver, as the case may be, cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock, at the Company’s election. The debt and equity components, the issuance costs related to the equity component, the stated interest rate, and the effective interest rate for each of the Convertible Notes and Exchangeable Notes at the time of the original offering are listed below (in thousands, except percentages):
2020 Convertible Notes(1) | 2021 Convertible Notes | 2022 Convertible Notes | 2023 Exchangeable Notes | 2025 Convertible Notes | |||||||||||||||||||||||||
| Debt component | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Equity component | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Equity issuance cost | $ | $ | $ | $ | $ | ||||||||||||||||||||||||
| Stated interest rate | % | % | % | % | % | ||||||||||||||||||||||||
| Effective interest rate | % | % | % | % | % | ||||||||||||||||||||||||
________________________
(1)The Company used a portion of the net proceeds from the issuance of the 2025 Convertible Notes to repurchase approximately $83.1 million aggregate principal amount of its 2020 Convertible Notes. As a result, the remaining principal amount of the 2020 Convertible Notes was $89.4 million as of December 31, 2019.
F-25
The balances of the liability and equity components of all the Convertible Notes and Exchangeable Notes outstanding were as follows (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Liability component—principal amount | $ | $ | |||||||||
| Unamortized debt discount | ( | ( | |||||||||
| Liability component—net carrying amount | $ | $ | |||||||||
| Equity component | $ | $ | |||||||||
The debt discount is being amortized into interest expense over the remaining life of the Convertible Notes and Exchangeable Notes using the effective interest rates. Interest expense related to the Convertible Notes and Exchangeable Notes was as follows (in thousands):
| Year ended December 31, | |||||||||||
| 2019 | 2018 | ||||||||||
| Interest expense—stated coupon rate | $ | $ | |||||||||
| Interest expense—amortization of debt discount | |||||||||||
| Interest expense—Convertible Notes and Exchangeable Notes | $ | $ | |||||||||
Hedge Transactions
In order to reduce the risk related to the potential dilution and/or the potential cash payments the Company may be required to make in the event that the market price of the Company’s common stock becomes greater than the conversion or exchange prices of the Convertible Notes and the Exchangeable Notes, the Company maintains a hedge program that increases the effective conversion or exchange price for the 2020 Convertible Notes, the 2021 Convertible Notes and the Exchangeable Notes. The Company did not hedge the 2022 Convertible Notes or the 2025 Convertible Notes. As discussed above, the Company unwound the capped call options associated with the portion of the 2020 Convertible Notes repurchased by the Company in September 2019.
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The details of the hedge program are listed below (in thousands, except conversion or exchange price):
| 2020 Convertible Notes | 2021 Convertible Notes | 2023 Exchangeable Notes | |||||||||||||||
| Cost of the hedge transaction(s) | $ | $ | $ | ||||||||||||||
| Initial conversion or exchange price | $ | $ | $ | ||||||||||||||
| Effective conversion or exchange price | $ | $ | $ | ||||||||||||||
Cabot Senior Secured Notes
The following table provides a summary of the Cabot senior secured notes ($ in thousands):
| December 31, 2019 | December 31, 2018 | Maturity Date | Interest Rate | ||||||||||||||||||||
| Floating rate senior secured notes due 2024 | $ | $ | Jun 1, 2024 | EURIBOR +6.375% | |||||||||||||||||||
| Floating rate senior secured notes due 2021 | Nov 15, 2021 | EURIBOR +5.875% | |||||||||||||||||||||
| Senior secured notes due 2023 | Oct 1, 2023 | % | |||||||||||||||||||||
| Senior secured notes due 2021 | Apr 1, 2021 | % | |||||||||||||||||||||
| $ | $ | ||||||||||||||||||||||
In June 2019, Cabot Financial (Luxembourg) II S.A. (“Cabot Financial II”), an indirect subsidiary of Encore, issued €400.0 million (approximately $452.0 million) in aggregate principal amount of Senior Secured Floating Rate Notes due 2024 (the “Cabot 2024 Floating Rate Notes”). The Cabot 2024 Floating Rate Notes mature in June 2024 and bear interest at a rate equal to the sum of (i) three-month EURIBOR (subject to a 0% floor) plus (ii) 6.375 %, reset quarterly. Interest is payable quarterly in arrears on January 15, April 15, July 15 and October 15 of each year. The weighted average interest rate was 6.375% for the year ended December 31, 2019.
The proceeds from the issuance of the Cabot 2024 Floating Rate Notes, together with cash on hand, were used to (1) fully redeem existing €310.0 million (approximately $350.3 million) floating rate notes due in November 2021 and pay premium and accrued interest thereon, (2) fully redeem existing £80.0 million (approximately $101.6 million) senior secured notes due in April 2021 and pay accrued interest thereon, and (3) pay commissions, fees and other expenses. The transaction was treated as a debt extinguishment and related fees of approximately $9.0 million were recorded as interest expense in the Company’s consolidated statements of operations during the year ended December 31, 2019. The weighted average interest rate was 5.875% for the years ended December 31, 2019 and 2018.
The Cabot 2024 Floating Rate Notes are fully and unconditionally guaranteed on a senior secured basis by the following indirect subsidiaries of the Company: CCM, Cabot Financial Limited and all material subsidiaries of Cabot Financial Limited (other than Cabot Financial II, Marlin Intermediate Holdings plc, Cabot Securitisation UK Limited and Cabot Securitisation (UK) II Limited). The Cabot 2024 Floating Rate Notes are secured by a first-ranking security interest in all the outstanding shares of Cabot Financial II and the guarantors (other than CCM and Marlin Midway Limited) and substantially all the assets of Cabot Financial II and the guarantors (other than CCM).
Cabot Financial (Luxembourg) S.A. (“Cabot Financial”) has issued £512.9 million (approximately $651.3 million) in aggregate principal amount of 7.500 % Senior Secured Notes due 2023 (the “Cabot 2023 Notes”). The Cabot 2023 Notes mature in October 2023. Interest on the Cabot 2023 Notes is payable semi-annually, in arrears, on April 1 and October 1 of each year. The Cabot 2023 Notes are fully and unconditionally guaranteed on a senior secured basis by the following indirect subsidiaries of the Company: CCM, Cabot Financial Limited, and all material subsidiaries of Cabot Financial Limited (other than Cabot Financial, Marlin Intermediate Holdings plc, Cabot Securitisation UK Limited and Cabot Securitisation (UK) II Limited). The Cabot 2023 Notes are secured by a first ranking security interest in all the outstanding shares of Cabot Financial and the guarantors (other than CCM and Marlin Midway Limited) and substantially all the assets of Cabot Financial and the guarantors (other than CCM). Subject to the Intercreditor Agreement described below under “Cabot Senior Revolving Credit Facility,” the guarantees provided in respect of the Cabot 2023 Notes are pari passu with each such guarantee given in respect of the Cabot 2024 Floating Rate Notes and the Cabot Credit Facility described below.
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Interest expense related to the Cabot senior secured notes was as follows (in thousands):
| Year ended December 31, | |||||||||||
| 2019 | 2018 | ||||||||||
| Interest expense—stated coupon rate | $ | $ | |||||||||
| Interest expense—amortization of debt discount | |||||||||||
| Interest expense—Cabot senior secured notes | $ | $ | |||||||||
Cabot Senior Revolving Credit Facility
Cabot Financial (UK) Limited (“Cabot Financial UK”) has an amended and restated senior secured revolving credit facility agreement (as amended and restated, the “Cabot Credit Facility”). At December 31, 2019, the Cabot Credit Facility provided for a total committed facility of £375.0 million that expires in September 2023 and included the following key provisions:
•Interest at LIBOR (or EURIBOR for any loan drawn in euro) plus 3.00 % per annum;
•A restrictive covenant that limits the loan to value ratio to 0.75 in the event that the Cabot Credit Facility is more than 20% utilized;
•A restrictive covenant that limits the super senior loan (i.e. the Cabot Credit Facility and any super priority hedging liabilities) to value ratio to 0.275 ;
•Additional restrictions and covenants which limit, among other things, the payment of dividends and the incurrence of additional indebtedness and liens; and
•Events of default which, upon occurrence, may permit the lenders to terminate the Cabot Credit Facility and declare all amounts outstanding to be immediately due and payable.
The Cabot Credit Facility is unconditionally guaranteed by the following indirect subsidiaries of the Company: CCM, Cabot Financial Limited, and all material subsidiaries of Cabot Financial Limited. The Cabot Credit Facility is secured by first ranking security interests in all the outstanding shares of Cabot Financial UK and the guarantors (other than CCM) and substantially all the assets of Cabot Financial UK and the guarantors (other than CCM). Pursuant to the terms of intercreditor agreements entered into with respect to the relative positions of the Cabot 2023 Notes, the Cabot 2024 Floating Rate Notes, and the Cabot Credit Facility, any liabilities in respect of obligations under the Cabot Credit Facility that are secured by assets that also secure the Cabot 2023 Notes, the Cabot 2024 Floating Rate Notes will receive priority with respect to any proceeds received upon any enforcement action over any such assets.
At December 31, 2019, the outstanding borrowings under the Cabot Credit Facility were £215.5 million (approximately $285.7 million). The weighted average interest rate was 3.52 % and 3.73 % for the years ended December 31, 2019 and 2018, respectively. Available capacity under the Cabot Credit Facility, after taking into account borrowing base and applicable debt covenants, was £159.5 million (approximately $211.5 million) as of December 31, 2019.
Cabot Securitisation Senior Facility
Cabot’s wholly owned subsidiary Cabot Securitisation UK Ltd (“Cabot Securitisation”) entered into a senior facility agreement (the “Senior Facility Agreement”) for a committed amount of £300.0 million, of which £300.0 million was drawn as of December 31, 2019. The Senior Facility Agreement matures in September 2023. The obligations of Cabot Securitisation under the Senior Facility Agreement are secured by first ranking security interests over all of Cabot Securitisation’s property, assets and rights (including receivables purchased from Cabot Financial UK from time to time), the book value of which was £342.2 million (approximately $453.8 million) as of December 31, 2019. Funds drawn under the Senior Facility Agreement will bear interest at a rate per annum equal to LIBOR plus a margin of 2.85 %.
In November 2018, Cabot’s wholly owned subsidiary Cabot Securitisation UK II Ltd (“Cabot Securitisation II”) entered into a new non-recourse asset backed senior facility of £50.0 million, of which £50.0 million was drawn as of December 31, 2019. The senior facility matures in September 2023. The facility is secured by first ranking security interests over all of Cabot Securitisation II’s property, assets and rights (including receivables purchased from Cabot Financial UK from time to time), the book value of which was £54.1 million (approximately $71.7 million) as of December 31, 2019. Funds drawn under this facility will bear interest at a rate per annum equal to LIBOR plus a margin of 4.075 %.
F-28
At December 31, 2019, the outstanding borrowings under the Cabot Securitisation Senior Facility were £350.0 million (approximately $464.1 million). The weighted average interest rate was 3.74 % and 3.46 % for the year ended December 31, 2019 and 2018.
Cabot Securitisation and Cabot Securitisation II are securitized financing vehicles and are VIEs for consolidation purposes. Refer to “Note 9: Variable Interest Entities” for further details.
Finance Lease Liabilities
The Company has finance lease liabilities primarily for computer equipment. As of December 31, 2019, the Company’s finance lease liabilities were approximately $8.1 million. Refer to “Note 12: Leases” for further details.
Maturity Schedule
The aggregate amounts of the Company’s borrowings, maturing in each of the next five years and thereafter are as follows (in thousands):
| 2020 | $ | ||||
| 2021 | |||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| Thereafter | |||||
| Total | $ | ||||
Note 9: Variable Interest Entities
A VIE is defined as a legal entity whose equity owners do not have sufficient equity at risk, or, as a group, the holders of the equity investment at risk lack any of the following three characteristics: decision-making rights, the obligation to absorb expected losses, or the right to receive expected residual returns of the entity. The primary beneficiary is identified as the variable interest holder that has both the power to direct the activities of the VIE that most significantly affect the entity’s economic performance and the obligation to absorb expected losses or the right to receive benefits from the entity that could potentially be significant to the VIE. The Company consolidates VIEs when it is the primary beneficiary.
The Company evaluates its relationships with its VIEs on an ongoing basis to ensure that it continues to be the primary beneficiary. A reconsideration event is significant if it changes the design of the entity or the entity’s equity investment at risk. Prior to the purchase of all of the outstanding equity of CCM not owned by the Company, CCM’s indirect holding Company Janus Holdings S.a r.l. (“Janus Holdings”) was a VIE. Upon completion of the Cabot Transaction on July 24, 2018 and the subsequent change in organizational structure, Janus Holdings no longer qualified as a VIE and CCM is consolidated via the voting interest model.
As of December 31, 2019, the Company’s VIEs include certain securitized financing vehicles and other immaterial special purpose entities that were created to purchase receivable portfolios in certain geographies. The Company is the primary beneficiary of these VIEs. The Company has the power to direct the activities of the VIEs which includes but is not limited to the ability to exercise discretion in the servicing of the financial assets.
Most assets recognized as a result of consolidating these VIEs do not represent additional assets that could be used to satisfy claims against the Company’s general assets. Conversely, liabilities recognized as a result of consolidating these VIEs do not represent additional claims on the Company’s general assets; rather, they represent claims against the specific assets of the VIE.
Note 10: Stock-Based Compensation
In April 2017, Encore’s Board of Directors (the “Board”) approved the Encore Capital Group, Inc. 2017 Incentive Award Plan (the “2017 Plan”), which was then approved by the Company’s stockholders on June 15, 2017. The 2017 Plan superseded the Company’s 2013 Incentive Compensation Plan (as amended, the “2013 Plan”), which had previously superseded the Company’s 2005 Stock Incentive Plan (“2005 Plan”). Board members, employees, and consultants of Encore and its subsidiaries and affiliates are eligible to receive awards under the 2017 Plan. Subject to certain adjustments, the Company may grant awards for an aggregate of 5,713,571 shares of the Company’s common stock under the 2017 Plan. The aggregate number
F-29
of shares available for issuance under the 2017 Plan will be reduced by 2.12 shares for each share delivered in settlement of any full value award and by one share for each share delivered in settlement of any stock option or stock appreciation right. If an award under the 2017 Plan or the 2013 Plan expires, lapses or is terminated, exchanged for cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, the unused shares covered by such award will again become or again be available for award grants under the 2017 Plan. Shares available under the 2017 Plan will be increased by 2.12 shares for each share subject to a full value award and by one share for each share subject to a stock option or a stock appreciation right, in each case, that become or again be available for issuance pursuant to the foregoing share counting provisions.
The 2017 Plan provides for the grant of incentive stock options, nonqualified stock options, restricted stock, restricted stock units, dividend equivalent rights, stock appreciation rights, cash awards, performance-based awards and any other types of awards not inconsistent with the 2017 Plan.
In accordance with authoritative guidance for stock-based compensation, compensation expense is recognized only for those shares expected to vest, based on the Company’s historical experience and future expectations. The Company has elected a policy of estimating expected forfeitures. Total stock-based compensation expense during the years ended December 31, 2019, 2018, and 2017 was $12.6 million, $13.0 million, and $10.4 million, respectively. The actual tax benefit from stock-based compensation arrangements totaled $1.2 million, $1.3 million, and $3.6 million for the years ended December 31, 2019, 2018, and 2017, respectively. Cash received from option exercise under all share-based payment arrangements for the years ended December 31, 2019, 2018 and 2017, was $0.3 million, $0.7 million and $0.5 million, respectively.
The Company’s stock-based compensation arrangements are described below:
Stock Options
Under the 2005 Plan, option awards were generally granted with an exercise price equal to the market price of the Company’s stock at the date of issuance. They generally vest over three to five years of continuous service, and have ten-year contractual terms. Other than the Performance Options discussed below, no options have been awarded under the 2013 Plan or 2017 Plan.
The Company uses the Black-Scholes option-pricing model to determine the fair-value of stock-based awards. All options are amortized ratably over the requisite service periods of the awards, which are generally the vesting periods. There were no options granted during the years ended December 31, 2019, 2018, or 2017. As of December 31, 2019, all outstanding stock options have been fully vested and all related compensation expense has been fully recognized.
A summary of the Company’s stock option activity as of December 31, 2019, and changes during the year then ended, are presented below:
Number of Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value (in thousands) | ||||||||||||||||||||
| Outstanding at December 31, 2018 | $ | ||||||||||||||||||||||
| Exercised | ( | ||||||||||||||||||||||
| Outstanding at December 31, 2019 | $ | $ | |||||||||||||||||||||
| Exercisable as of December 31, 2019 | $ | $ | |||||||||||||||||||||
The total intrinsic value of options exercised during the years ended December 31, 2019, 2018 and 2017 was $1.0 million, $0.4 million and $0.8 million, respectively.
Performance Stock Options
Under the 2017 Plan and the 2013 Plan, the Company granted performance stock options, with an exercise price equal to the closing price of the Company’s stock at the date of issuance, that vest in equal annual installments over a three year service period but only if, within four years from the date of grant, the 20 trading day average of the closing price of the Company’s stock (subject to dividend-related adjustments) exceeds a target equal to a 25 % increase from the closing price on the date of grant. These performance options have a seven-year contractual life.
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A summary of the Company’s performance stock option activity as of December 31, 2019, and changes during the year then ended, are presented below:
| Number of Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value (in thousands) | ||||||||||||||||||||
| Outstanding at December 31, 2018 | $ | ||||||||||||||||||||||
| Exercised | ( | ||||||||||||||||||||||
| Cancelled/forfeited | ( | ||||||||||||||||||||||
| Expired | ( | ||||||||||||||||||||||
| Outstanding at December 31, 2019 | $ | $ | |||||||||||||||||||||
| Vested and expected to vest as of December 31, 2019 | $ | $ | |||||||||||||||||||||
| Exercisable as of December 31, 2019 | $ | $ | |||||||||||||||||||||
As of December 31, 2019, there was $0.1 million of total unrecognized compensation cost related to non-vested performance stock options which is expected to be recognized over a period of approximately 0.2 years. The weighted average grant date fair value for performance stock options granted during the year ended December 31, 2017 was $31.32. No performance stock options were granted during the years ended December 31, 2019 or 2018.
Non-Vested Shares
The Company’s 2017 Plan (and previously, the 2013 Plan and 2005 Plan), permits restricted stock units, restricted stock awards, performance stock units, and performance stock awards (collectively “stock awards”). The fair value of non-vested shares with a service condition and/or a performance condition that affect vesting is equal to the closing sale price of the Company’s common stock on the grant date. Compensation cost is recognized only for the awards that ultimately vest. The Company has certain share awards that include market conditions that affect vesting. The fair value of these shares is estimated using a lattice model. Compensation cost is not adjusted if the market condition is not met, as long as the requisite service is provided. For the majority of non-vested shares, shares are issued on the vesting dates net of the number of shares needed to satisfy minimal statutory tax withholding requirements. The tax obligations are then paid by the Company on behalf of the employees.
A summary of the status of the Company’s stock awards as of December 31, 2019, and changes during the year then ended, is presented below:
Non-Vested Shares (1) | Weighted Average Grant Date Fair Value | ||||||||||
| Non-vested at December 31, 2018 | $ | ||||||||||
| Awarded | $ | ||||||||||
| Vested | ( | $ | |||||||||
| Cancelled | ( | $ | |||||||||
| Non-vested at December 31, 2019 | $ | ||||||||||
________________________
(1)Certain of the Company’s stock awards have a vesting matrix under which the stock awards can vest at a maximum level that is 200 % of the shares that would vest for achieving the performance goals at target. The number of shares presented is based on achieving the performance goals at target levels as defined in the stock award agreements. As of December 31, 2019 and 2018, the maximum number of non-vested performance shares that could vest under the provisions of the agreements was 1,171,334 and 1,218,359 , respectively.
F-31
Note 11: Income Taxes
Income before provision for income taxes consisted of the following (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| US | $ | $ | $ | ||||||||||||||
| Foreign | |||||||||||||||||
| Total income before provision for income taxes | $ | $ | $ | ||||||||||||||
The income tax provision on earnings from continuing operations consisted of the following (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Current expense (benefit): | |||||||||||||||||
| Federal | $ | ( | $ | $ | |||||||||||||
| State | ( | ( | |||||||||||||||
| Foreign | |||||||||||||||||
| Deferred expense (benefit): | |||||||||||||||||
| Federal | ( | ||||||||||||||||
| State | ( | ||||||||||||||||
| Foreign | ( | ||||||||||||||||
| ( | |||||||||||||||||
| Provision for income taxes | $ | $ | $ | ||||||||||||||
The reconciliation of federal statutory income tax rate to our effective tax rate was as follows:
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
| Federal provision | % | % | % | ||||||||||||||
| State provision | % | % | % | ||||||||||||||
Foreign rate differential(1) | ( | % | ( | % | ( | % | |||||||||||
Transaction costs(2) | % | % | % | ||||||||||||||
Permanent items(3) | % | % | % | ||||||||||||||
Change in valuation allowance(4) | ( | % | % | % | |||||||||||||
IRS settlement(5) | (2.4) | % | — | % | — | % | |||||||||||
| Other | % | % | |||||||||||||||
| Effective rate | % | % | % | ||||||||||||||
________________________
(1)Relates primarily to the lower tax rates on the income or loss attributable to international operations.
(2)In 2018, relates primarily to transaction costs incurred in connection with the Cabot Transaction. In 2017, relates primarily to certain withdrawn IPO costs disallowed for U.K. tax purposes.
(3)Represents a provision for nondeductible items, including nondeductible interest in a foreign subsidiary and certain foreign income taxable in the U.S. under Internal Revenue Code Section 951 (Subpart F) in 2017.
(4)Net decrease in valuation allowance during 2019 is attributable to disposition of certain foreign subsidiaries with cumulative operating losses for tax purposes. In 2017 and 2018, valuation allowance net increase recorded as a result of certain foreign subsidiaries’ cumulative operating losses for tax purposes.
(5)In 2019, includes tax benefit resulting from tax accounting method change.
The Company’s subsidiary in Costa Rica is operating under a 100 % tax holiday through December 31, 2026. The impact of the tax holiday in Costa Rica for the year ended December 31, 2019 was immaterial.
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The Company has not provided for applicable income or withholding taxes on the undistributed earnings from continuing operations for certain of its subsidiaries operating outside of the United States. Undistributed net income of these subsidiaries as of December 31, 2019, was approximately $151.3 million. Such undistributed earnings are considered permanently reinvested. The Company does not provide for deferred taxes on translation adjustments on unremitted earnings under the indefinite reversal exemption. Determination of the amount of unrecognized deferred tax liability related to these earnings is not practicable due to the complexities of a hypothetical calculation. Subsidiaries operating outside of the United States, for which the Company does not consider under the indefinite reversal exemption, have no material undistributed earnings or outside basis differences, and therefore, no U.S. taxes have been provided.
Deferred income taxes reflect the net effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the carrying amounts for income tax purposes. Significant components of the Company's deferred tax assets and liabilities were as follows (in thousands):
| December 31, 2019 | December 31, 2018 | ||||||||||
| Deferred tax assets: | |||||||||||
| Net operating losses | $ | $ | |||||||||
| Financing obligation | — | ||||||||||
| Accrued expenses | |||||||||||
| Difference in basis of bond and loan costs | |||||||||||
| Stock-based compensation | |||||||||||
| State taxes | |||||||||||
| Differences in income recognition related to receivable portfolios | |||||||||||
| Prepaid expenses | |||||||||||
| Other | |||||||||||
| Total deferred tax assets | |||||||||||
| Valuation allowance | ( | ( | |||||||||
| Total deferred tax assets net of valuation allowance | |||||||||||
| Deferred tax liabilities: | |||||||||||
| Deferred court costs | ( | ( | |||||||||
| Right-of-use asset | ( | — | |||||||||
| Difference in basis of depreciable and amortizable assets | ( | ( | |||||||||
| Prepaid expenses | ( | ||||||||||
| Other | ( | ( | |||||||||
| Total deferred tax liabilities | ( | ( | |||||||||
Net deferred tax (liability) asset(1) | $ | ( | $ | ||||||||
________________________
(1)The Company operates in multiple jurisdictions. In accordance with authoritative guidance relating to income taxes, deferred tax assets and liabilities are netted for each tax-paying component of the Company within a particular tax jurisdiction and presented as a single amount in the statement of financial condition.
As of December 31, 2019, certain of the Company’s foreign subsidiaries have net operating loss carry forwards of approximately $238.2 million, which will begin to expire in 2024. Certain of the Company's domestic subsidiaries have state net operating losses of approximately $2.2 million, which will generally begin to expire in 2020.
Valuation allowances are recognized on deferred tax assets if the Company believes that it is more likely than not that some or all of the deferred tax assets will not be realized. As of December 31, 2019, valuation allowances decreased to $36.4 million, as compared to $46.5 million as of December 31, 2018. The decrease was primarily related to the disposition of certain foreign entities with cumulative operating losses for tax purposes during the year ended December 31, 2019.
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A reconciliation of the beginning and ending amounts of unrecognized tax benefit is as follows (in thousands):
| Amount | |||||
| Balance at December 31, 2016 | $ | ||||
| Increases related to current year tax positions | |||||
| Decreases related to current year tax positions | ( | ||||
| Decreases related to settlements with taxing authorities | ( | ||||
| Balance at December 31, 2017 | |||||
| Increases related to prior year tax positions | |||||
| Increases related to current year tax positions | |||||
| Decrease related to expiration of statute of limitations | ( | ||||
| Decreases related to settlements with taxing authorities | ( | ||||
| Balance at December 31, 2018 | |||||
| Decreases related to prior year tax positions | ( | ||||
| Increases related to current year tax positions | |||||
| Decrease related to expiration of statute of limitations | ( | ||||
| Decreases related to settlements with taxing authorities | ( | ||||
| Balance at December 31, 2019 | $ | ||||
The Company had gross unrecognized tax benefits, inclusive of penalties and interest, of $8.2 million, $19.9 million and $22.2 million at December 31, 2019, 2018, and 2017 respectively. At December 31, 2019, 2018 and 2017, there was $7.6 million, $13.0 million and $9.9 million, respectively, of unrecognized tax benefit that if recognized, would result in a net tax benefit. During the year ended December 31, 2019, the decrease in the Company’s gross unrecognized tax benefit was primarily related to decreases in prior year tax positions resulting from exam resolutions. During the year ended December 31, 2018, the decrease in the Company’s gross unrecognized tax benefit was primarily related to expiration of state statute of limitations. During the year ended December 31, 2017, the increase in the Company’s gross unrecognized tax benefit was primarily related to prepaid services to be performed within three and a half months of December 31, 2017.
The Company believes that an adequate provision has been made for any adjustments that may result from tax examinations. However, it is reasonably possible that certain changes may occur within the next 12 months, which could significantly increase or decrease the balance of the Company’s gross unrecognized tax benefits.
The Company recognizes interest and penalties related to unrecognized tax benefits as a component of tax expense. The Company recognized a benefit of approximately $2.7 million, and expense of $0.6 million and $0.8 million in interest and penalties during the years ended December 31, 2019, 2018 and 2017, respectively. Interest and penalties accrued as of December 31, 2019 and 2018 were $0.3 million and $1.4 million, respectively.
The Company files federal, state and non-U.S. income tax returns in jurisdictions with varying statutes of limitations. The Internal Revenue Service has completed examinations of the Company’s U.S. federal income tax returns for tax years 2012 through 2017, and the Company is no longer subject to federal tax examinations for years prior to 2018. For U.S. state tax returns, the Company is generally not subject to tax examinations for years prior to 2012. The Company is subject to the examination of its income tax returns by various taxing authorities, and the timing of the resolution of income tax examinations cannot be predicted with certainty. The Company’s management regularly assesses the likelihood of adverse outcomes resulting from these examinations to determine the adequacy of the Company’s provision for income taxes. If any issues addressed in the Company’s tax examinations are resolved in a manner not consistent with management's expectations, the Company could be required to adjust its provision for income taxes in the period such resolution occurs.
Note 12: Leases
Effective January 1, 2019, the Company adopted Topic 842 using the modified retrospective method. As such, the Company recognized operating lease right-of-use (“ROU”) assets and operating lease liabilities in the consolidated statements of financial condition. Prior period financial statements were not adjusted under the new standard and therefore, those amounts are not presented below. The Company elected not to apply the recognition requirements to short-term leases, not to separate non-lease components from lease components, and elected the transition provisions available for existing contracts, which allowed the Company to carryforward its historical assessments of (1) whether contracts are or contain a lease, (2) lease classification, and (3) initial direct costs.
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ROU assets represent the Company’s right to use an underlying asset during the lease term and lease liabilities represent the Company's obligation to make lease payments arising from the lease. ROU assets and lease liabilities are recognized at commencement date based on the net present value of fixed lease payments over the lease term. The Company’s lease term includes options to extend or terminate the lease when it is reasonably certain that it will exercise that option. ROU assets also include any advance lease payments made and are net of any lease incentives. As most of the Company’s operating leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. The incremental borrowing rate is the rate of interest that the Company would expect to pay to borrow over a similar term, and on a collateralized basis, an amount equal to the lease payments in a similar economic environment.
The majority of the Company’s leases are for corporate offices, various facilities and information technology equipment. The components of lease expense for the year ended December 31, 2019 were as follows (in thousands):
| Year Ended December 31, 2019 | |||||
Operating lease costs(1) | $ | ||||
| Finance lease costs | |||||
| Amortization of right-of-use assets | |||||
| Interest on lease liabilities | |||||
| Total lease costs | $ | ||||
________________________
(1)Operating lease expenses are included in general and administrative expenses in the Company’s consolidated statements of operations. Costs include short-term and variable lease components which were not material for the period.
The following table provides supplemental consolidated statement of financial condition information related to leases as of December 31, 2019 (in thousands):
| Classification | December 31, 2019 | |||||||
| Assets | ||||||||
| Operating lease right-of-use assets | Other assets | $ | ||||||
| Finance lease right-of-use assets | Property and equipment, net | |||||||
| Total lease right-of-use assets | $ | |||||||
| Liabilities | ||||||||
| Operating lease liabilities | Other liabilities | $ | ||||||
| Finance lease liabilities | Borrowings | |||||||
| Total lease liabilities | $ | |||||||
Supplemental lease information is summarized below (in thousands, except rate and lease term):
| Year Ended December 31, 2019 | |||||
| Right-of-use assets obtained in exchange for new operating lease obligations | $ | ||||
| Right-of-use assets obtained in exchange for new finance lease obligations | |||||
| Cash paid for amounts included in the measurement of lease liabilities | |||||
| Operating leases - operating cash flows | |||||
| Finance leases - operating cash flows | |||||
| Finance leases - financing cash flows | |||||
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| December 31, 2019 | |||||
| Weighted-average remaining lease term | |||||
| Operating leases | |||||
| Finance leases | |||||
| Weighted-average discount rate | |||||
Operating leases(1) | % | ||||
| Finance leases | % | ||||
________________________
(1)Upon adoption of the new lease standard, discount rates used for existing operating leases were established at January 1, 2019.
Minimum future payments on noncancelable leases as of December 31, 2019 are summarized as follows (in thousands):
| Finance Leases | Operating Leases | Total | |||||||||||||||
| 2020 | $ | $ | $ | ||||||||||||||
| 2021 | |||||||||||||||||
| 2022 | |||||||||||||||||
| 2023 | |||||||||||||||||
| 2024 | |||||||||||||||||
| Thereafter | |||||||||||||||||
| Total undiscounted lease payments | |||||||||||||||||
| Less: imputed interest | ( | ( | ( | ||||||||||||||
| Lease obligations | $ | $ | $ | ||||||||||||||
As previously disclosed in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018 and under the previous lease accounting standard, minimum future payments on noncancelable leases as of December 31, 2018 are summarized as follows (in thousands):
| Finance Leases | Operating Leases | Total | |||||||||||||||
| 2019 | $ | $ | $ | ||||||||||||||
| 2020 | |||||||||||||||||
| 2021 | |||||||||||||||||
| 2022 | |||||||||||||||||
| 2023 | |||||||||||||||||
| Thereafter | |||||||||||||||||
| Total minimal leases payments | $ | $ | |||||||||||||||
| Less: interest | ( | ||||||||||||||||
| Present value of minimal lease payments | $ | ||||||||||||||||
Note 13: Commitments and Contingencies
Litigation and Regulatory
The Company is involved in disputes, legal actions, regulatory investigations, inquiries, and other actions from time to time in the ordinary course of business. The Company, along with others in its industry, is routinely subject to legal actions based on the Fair Debt Collection Practices Act (“FDCPA”), comparable state statutes, the Telephone Consumer Protection Act (“TCPA”), state and federal unfair competition statutes, and common law causes of action. The violations of law investigated or alleged in these actions often include claims that the Company lacks specified licenses to conduct its business, attempts to collect debts on which the statute of limitations has run, has made inaccurate or unsupported assertions of fact in support of its collection actions and/or has acted improperly in connection with its efforts to contact consumers. Such litigation and regulatory actions could involve potential compensatory or punitive damage claims, fines, sanctions, injunctive relief, or changes in
F-36
business practices. Many continue on for some length of time and involve substantial investigation, litigation, negotiation, and other expense and effort before a result is achieved, and during the process the Company often cannot determine the substance or timing of any eventual outcome. In certain legal proceedings, the Company may have recourse to insurance or third party contractual indemnities to cover all or portions of its litigation expenses, judgments, or settlements.
The Company records loss contingencies in its financial statements only for matters in which losses are probable and can be reasonably estimated. Where a range of loss can be reasonably estimated with no best estimate in the range, the Company records the minimum estimated liability. The Company continuously assesses the potential liability related to its pending litigation and regulatory matters and revises its estimates when additional information becomes available. The Company’s legal costs are recorded to expense as incurred.
As of December 31, 2019, the Company has no material reserves for legal matters.
Purchase Commitments
In the normal course of business, the Company enters into forward flow purchase agreements and other purchase commitment agreements. As of December 31, 2019, the Company had entered into agreements to purchase receivable portfolios with a face value of approximately $2.4 billion for a purchase price of approximately $298.9 million. Most purchase commitments do not extend past year.
Guarantees
Encore’s Certificate of Incorporation and indemnification agreements between the Company and its officers and directors provide that the Company will indemnify and hold harmless its officers and directors for certain events or occurrences arising as a result of the officer or director serving in such capacity. The Company has also agreed to indemnify certain third parties under certain circumstances pursuant to the terms of certain underwriting agreements, registration rights agreements, credit facilities, portfolio purchase and sale agreements, and other agreements entered into by the Company in the ordinary course of business. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited. The Company believes the estimated fair value of these indemnification agreements is minimal and, as of December 31, 2019, has no liabilities recorded for these agreements.
Note 14: Segment Information
The Company conducts business through several operating segments. The Company’s management relies on internal management reporting processes that provide segment revenue, segment operating income, and segment asset information in order to make financial decisions and allocate resources. The Company determined its operating segments meet the aggregation criteria, and therefore, it has one reportable segment, portfolio purchasing and recovery, based on similarities among the operating units including economic characteristics, the nature of the services, the nature of the production process, customer types for their services, the methods used to provide their services and the nature of the regulatory environment.
The following tables present information about geographic areas in which the Company operates (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2019 | 2018 | 2017 | |||||||||||||||
Total revenues, adjusted by net allowances(1): | |||||||||||||||||
| United States | $ | $ | $ | ||||||||||||||
| International | |||||||||||||||||
Europe(2) | |||||||||||||||||
| Other geographies | |||||||||||||||||
| Total | $ | $ | $ | ||||||||||||||
________________________
(1)Revenues are attributed to countries based on consumer location.
(2)Based on the financial information that is used to produce the general-purpose financial statements, providing further geographic information is impracticable.
F-37
| December 31, 2019 | December 31, 2018 | ||||||||||
Long-lived assets(1): | |||||||||||
| United States | $ | $ | |||||||||
| International | |||||||||||
United Kingdom | |||||||||||
Other foreign countries | |||||||||||
| Total | $ | $ | |||||||||
________________________
(1)Long-lived assets consist of property and equipment, net and finance leases.
Note 15: Goodwill and Identifiable Intangible Assets
The Company’s goodwill is attributable to reporting units included in its portfolio purchasing and recovery segment. Goodwill is tested for impairment at the reporting unit level annually and in interim periods if certain events occur that indicate that the fair value of a reporting unit may be below its carrying value. Determining the number of reporting units and the fair value of a reporting unit requires the Company to make judgments and involves the use of significant estimates and assumptions. The Company performs its annual goodwill impairment assessment as of October 1. As of October 1, 2019, the Company had two reporting units, MCM and Cabot, that carried goodwill.
The Company first assesses qualitative factors to determine whether it is necessary to perform the quantitative goodwill impairment test. The qualitative factors include economic environment, business climate, market capitalization, operating performance, competition, and other factors. The Company may proceed directly to the quantitative test without performing the qualitative test. For the goodwill impairment tests performed as of October 1, 2019, the Company performed qualitative analysis for the MCM reporting unit and proceeded directly to the quantitative test for its Cabot reporting unit.
If goodwill is quantitatively assessed for impairment and a reporting unit’s carrying value exceeds its fair value, the difference is recorded as an impairment. The Company applies various valuation techniques to measure the fair value of each reporting unit, including the income approach and the market approach. For goodwill impairment analyses, the Company uses the income approach in determining fair value, specifically the discounted cash flow method, or DCF. In applying the DCF method, an identified level of future cash flow is estimated. Annual estimated cash flows and a terminal value are then discounted to their present value at an appropriate discount rate to obtain an indication of fair value. The discount rate utilized reflects estimates of required rates of return for investments that are seen as similar to an investment in the reporting unit. DCF analyses are based on management’s long-term financial projections and require significant judgments. Therefore, for the Company’s reporting units where the Company has access to reliable market participant data, the market approach is conducted in addition to the income approach in determining the fair value. The Company uses a guideline company method under the market approach to estimate the fair value of equity and the market value of invested capital (“MVIC”). The guideline company approach relies on estimated remaining collections data or the earnings before interest, tax, depreciation and amortization (“EBITDA”) for each of the selected guideline companies, which enables a direct comparison between the reporting unit and the selected peer group. The Company believes that the current methodology used in determining the fair value at its reporting units represent its best estimates. In addition, the Company compares the aggregate fair value of the reporting units to its overall market capitalization.
Based on the annual goodwill impairment tests performed at October 1, 2019, no goodwill impairment existed at these two reporting units.
On August 15, 2019, the Company completed the sale of Baycorp. The Company concluded that the fair value of Baycorp immediately prior to the Baycorp Transaction was less than its recorded book value and, as a result, the entire goodwill balance carried at the Baycorp reporting unit of $10.7 million was impaired. The goodwill impairment is included in operating expenses in the Company’s consolidated statements of operations during the year ended December 31, 2019.
Management continues to evaluate and monitor all key factors impacting the carrying value of the Company’s recorded goodwill and long-lived assets. Further adverse changes in the Company’s actual or expected operating results, market capitalization, business climate, economic factors or other negative events that may be outside the control of management could result in a material non-cash impairment charge in the future.
F-38
In December 2018, the Company completed the sale of all its interests in Refinancia S.A. and its subsidiaries (collectively, “Refinancia”) to the existing minority shareholders of Refinancia. As a result, the Company no longer consolidates Refinancia and the goodwill carried at Refinancia was eliminated from the Company’s consolidated statements of financial position.
The following table summarizes the activity in the Company’s goodwill balance, as follows (in thousands):
| 2019 | 2018 | ||||||||||
| Balance at beginning of period: | $ | $ | |||||||||
| Goodwill adjustment | ( | ||||||||||
| Goodwill eliminated in connection with divestiture | ( | ||||||||||
| Goodwill impairment | ( | ||||||||||
| Effect of foreign currency translation | ( | ||||||||||
| Balance at end of period: | $ | $ | |||||||||
The Company’s acquired intangible assets are summarized as follows (in thousands):
| As of December 31, 2019 | As of December 31, 2018 | ||||||||||||||||||||||||||||||||||
| Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | ||||||||||||||||||||||||||||||
| Customer relationships | $ | $ | ( | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
| Developed technologies | ( | ( | |||||||||||||||||||||||||||||||||
| Trade name and other | ( | ( | |||||||||||||||||||||||||||||||||
| Total intangible assets | $ | $ | ( | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||
The weighted-average useful lives of intangible assets at the time of acquisition were as follows (in years):
| Weighted-Average Useful Lives | |||||
| Customer relationships | |||||
| Developed technologies | |||||
| Trade name and other | |||||
The amortization expense for intangible assets subject to amortization was $7.7 million, $11.7 million, and $8.9 million for the years ended December 31, 2019, 2018, and 2017, respectively. Estimated future amortization expense related to finite-lived intangible assets at December 31, 2019 is as follows ( in thousands):
| 2020 | $ | ||||
| 2021 | |||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| Thereafter | |||||
| Total | $ | ||||
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Note 16: Quarterly Information (Unaudited)
The following table summarizes quarterly financial data for the periods presented (in thousands, except per share amounts):
| Three Months Ended | |||||||||||||||||||||||
| March 31 | June 30 | September 30 | December 31 | ||||||||||||||||||||
| 2019 | |||||||||||||||||||||||
| Gross collections | $ | $ | $ | $ | |||||||||||||||||||
| Total revenues, adjusted by net allowances | |||||||||||||||||||||||
| Total operating expenses | |||||||||||||||||||||||
| Income from continuing operations | |||||||||||||||||||||||
| Net income | |||||||||||||||||||||||
Amounts attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||
| Income from continuing operations | |||||||||||||||||||||||
Net income attributable to Encore Capital Group, Inc. stockholders | |||||||||||||||||||||||
Earnings per share attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||
| Basic earnings per share | $ | $ | $ | $ | |||||||||||||||||||
| Diluted earnings per share | |||||||||||||||||||||||
| 2018 | |||||||||||||||||||||||
| Gross collections | $ | $ | $ | $ | |||||||||||||||||||
| Total revenues, adjusted by net allowances | |||||||||||||||||||||||
| Total operating expenses | |||||||||||||||||||||||
| Income from continuing operations | |||||||||||||||||||||||
| Net income | |||||||||||||||||||||||
Amounts attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||
| Income from continuing operations | |||||||||||||||||||||||
Net income attributable to Encore Capital Group, Inc. stockholders | |||||||||||||||||||||||
Earnings per share attributable to Encore Capital Group, Inc.: | |||||||||||||||||||||||
| Basic earnings per share | $ | $ | $ | $ | |||||||||||||||||||
| Diluted earnings per share | |||||||||||||||||||||||
Note 17: Subsequent Event
On February 18, 2020, Cabot Securitisation amended and restated its Senior Facility Agreement. Pursuant to the amendment and restatement of the Senior Facility Agreement, the total commitment amount was increased by £50.0 million from £300.0 million to £350.0 million, the repayment date was extended from September 15, 2023 to March 15, 2025 and SONIA (sterling overnight index average) replaced LIBOR as the reference rate. Funds drawn under the amended and restated Senior Facility Agreement bear interest at a rate per annum equal to SONIA plus a margin of 3.06 % plus, for periods after March 15, 2023, a step-up margin ranging from zero to 1.00 %. Cabot Securitisation has drawn down the additional £50.0 million and used the proceeds to purchase receivables from Cabot Securitisation II in order to effect the termination of the £50.0 million senior facility of Cabot Securitisation II.
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Exhibit 4.2.2
LIMITED CONSENT AND AMENDMENT NO. 2
Dated as of December 13, 2019
to
THIRD AMENDED AND RESTATED SENIOR SECURED NOTE PURCHASE AGREEMENT
Dated as of August 11, 2017
THIS LIMITED CONSENT AND AMENDMENT NO. 2 (“Consent and Amendment”) is made as of December 13, 2019 by and among Encore Capital Group, Inc. (the “Company”) and the undersigned holders of Notes (the “Noteholders”). Reference is made to that certain Third Amended and Restated Senior Secured Note Purchase Agreement, dated as of August 11, 2017, between the Company, on the one hand, and the Purchasers named therein, on the other hand (as the same has been amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Note Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Note Agreement.
WHEREAS, the Company has notified the Noteholders that, effective January 1, 2020, the Company will adopt FASB Accounting Standards Update No. 2016-13, Financial Instruments—Credit Losses (Topic 326), which will result in a change in the methodology used to calculate Estimated Remaining Collections (the “Specified Accounting Change”);
WHEREAS, the Company has requested that the Noteholders consent to the adoption by the Company of the Specified Accounting Change, and the undersigned Noteholders are willing to so consent subject to the terms and conditions of this Consent and Amendment;
WHEREAS, in addition to the consent requested by the Company, the Noteholders have requested certain amendments to the Note Agreement as set forth herein, and the Company and the undersigned Noteholders have agreed to such amendments, subject to the terms and conditions of this Consent and Amendment; and
WHEREAS, the Credit Agreement is being amended by an amendment thereto and the Lenders are also providing a consent to the Specified Accounting Change (the “Credit Agreement Amendment”).
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 Company and the Noteholders party hereto have agreed to enter into this Consent and Amendment.
1. Limited Consent. Subject to the terms and conditions hereof, on the Effective Date (as defined in Section 3 below) each of the undersigned Noteholders hereby
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consents to the adoption by the Company of the Specified Accounting Change. Each of the Company and the Guarantors acknowledges and agrees that the consent contained in the foregoing sentence is a one-time consent and is limited to the extent specifically set forth herein and, other than as specifically set forth herein, no other terms, covenants or provisions of the Note Agreement or the other Transaction Documents are intended to be affected hereby, all of which remain in full force and effect, and such limited consent shall not hinder, restrict or otherwise modify the rights and remedies of the Collateral Agent or any Noteholder following the occurrence of any Default or Event of Default. The consent provided hereby shall not obligate the Collateral Agent or any Noteholder to otherwise waive or consent to any actions or inactions in the future or to amend the Note Agreement or any other Transaction Document in any manner at any time in the future or to waive future compliance (temporarily or otherwise) with any provision of the Note Agreement or any other Transaction Document.
2. Amendments to Note Agreement. Subject to the terms and conditions hereof, on the Effective Date the Note Agreement is hereby amended, as follows:
(a) Section 9.8 of the Note Agreement is hereby amended by adding the following new paragraph at the end of such Section:
“In the event that any Credit Party divides itself into two or more Persons, any Persons formed as a result of such Division, unless otherwise consented to in writing by the Required Holders, shall have taken each of the actions set forth in Section 9.7 and this Section 9.8, as applicable, in each case subject to the time periods set forth therein (or herein).”
(b) Section 10.2 of the Note Agreement is hereby amended by adding the following new paragraph at the end of such Section:
“Any reference in this Section 10.2 or in Section 10.3 to a combination, merger, consolidation, disposition, dissolution, liquidation or transfer shall be deemed to apply to a Division (or the unwinding of such a Division) as if it were a combination, merger, consolidation, disposition, dissolution, liquidation, transfer or similar term, as applicable, to or with a separate Person.”
(c) Section 21.4 of the Note Agreement is hereby amended by adding the following new paragraph at the end of such Section:
“For all purposes under the Transaction Documents, in connection with any Division or plan of Division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.”
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(d) Schedule B of the Note Agreement is hereby amended by adding the following new defined term in the appropriate alphabetical order therein:
““Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18-217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any applicable law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide,” when capitalized shall have correlative meaning.”
3. Conditions of Effectiveness. The effectiveness of this Consent and Amendment is subject to the following conditions precedent (the date on which each of which has been satisfied or waived in writing being referred to in this Consent and Amendment as the “Effective Date”): (a) the Noteholders shall have received (i) counterparts of this Consent and Amendment, duly executed by the Company and the Required Holders, and the Consent and Reaffirmation attached hereto duly executed by the Guarantors, (ii) a fully executed copy of the Credit Agreement Amendment, which shall be in form and substance reasonably satisfactory to the Required Holders, and (iii) such other instruments and documents as are reasonably requested by the Noteholders on or prior to the date of this Consent and Amendment in connection with this Consent and Amendment; and (b) the Company shall have paid, to the extent invoiced on or prior to the date of this Consent and Amendment, all fees and expenses of the Noteholders (including attorneys’ fees and expenses) in connection with this Consent and Amendment and the other Transaction Documents.
4. Representations and Warranties of the Company. The Company hereby represents and warrants as follows:
(a) The execution, delivery and performance by each Credit Party of this Consent and Amendment are within such Credit Party’s organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member, action. This Consent and Amendment has been duly executed and delivered by each Credit Party. This Consent and Amendment and the Note Agreement as amended hereby constitute legal, valid and binding obligations of the Company and are enforceable against the Company in accordance with their terms.
(b) As of the date hereof and giving effect to the terms of this Consent and Amendment, (i) there exists no Default or Event of Default and (ii) the representations and warranties contained in Section 5 of the Note Agreement (as amended hereby) are true and correct, except for representations and warranties made with reference solely to an earlier date, which are true and correct as of such earlier date.
(c) The execution and delivery of this Consent and Amendment by the Credit Parties, and performance by the Company of this Consent and Amendment and the Note Agreement, as amended hereby (i) do not require any consent or approval of, registration or
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filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, (ii) will not violate any organizational documents of, or any law applicable to, any Credit Party or any judgment, order or ruling of any Governmental Authority, (iii) will not violate or result in a default under the Note Agreement, the Credit Agreement, any other material agreement or other material instrument binding on any Credit Party or any of their assets, or give rise to a right under any of the foregoing agreements (other than the Credit Agreement) to require any payment to be made by any Credit Party, (iv) will not result in the creation or imposition of any Lien on any asset of any Credit Party, except Liens (if any) created under the Transaction Documents and (v) will not result in a material limitation on any licenses, permits or other governmental approvals applicable to the business, operations or properties of the Credit Parties.
(d) No fee or other remuneration is required to be paid to or for the benefit of any party to the Credit Agreement as consideration for the Credit Agreement Amendment.
5. Reference to and Effect on the Note Agreement.
(a) Upon the effectiveness hereof, each reference to the Note Agreement in the Note Agreement or any other Transaction Document shall mean and be a reference to the Note Agreement as amended hereby.
(b) Except as specifically amended above, the Note 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 Consent and Amendment shall not operate as a waiver of any right, power or remedy of the Noteholders, nor constitute a waiver of any provision of the Note Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
(d) This Consent and Amendment shall constitute a “Transaction Document.”
6. Release of Claims. In consideration of the consent and amendments contained herein, each of the Credit Parties hereby waives and releases each of the Noteholders from any and all claims and defenses, known or unknown, existing as of the date hereof with respect to the Note Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby. It is the intention of each of the Company and the Guarantors in providing this release that the same shall be effective as a bar to each and every claim, demand and cause of action specified, and in furtherance of this intention it waives and relinquishes all rights and benefits under Section 1542 of the Civil Code of the State of California (or any comparable provision of any other applicable law), which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
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RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
7. Governing Law. This Consent and Amendment shall be governed by and construed in accordance with the internal laws of the State of New York, excluding choice-of-law principles of the law of such state that would permit the application of the laws of a jurisdiction other than such state.
8. Headings. Section headings in this Consent and Amendment are included herein for convenience of reference only and shall not constitute a part of this Consent and Amendment for any other purpose.
9. Counterparts. This Consent and 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.
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IN WITNESS WHEREOF, this Consent and Amendment has been duly executed as of the day and year first above written.
ENCORE CAPITAL GROUP, INC.
By: /s/ Jonathan Clark
Jonathan Clark, Chief Financial Officer
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: /s/ Jason Richardson Vice President | |||||
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY By: PGIM, Inc., as investment manager By: /s/ Jason Richardson Vice President | |||||
PAR U HARTFORD LIFE & ANNUITY COMFORT TRUST By: Prudential Arizona Reinsurance Universal Company, as Grantor By: PGIM, Inc., as Investment Manager By: /s/ Jason Richardson Vice President | |||||
PICA HARTFORD LIFE & ANNUITY COMFORT TRUST By: The Prudential Insurance Company of America, as Grantor By: /s/ Jason Richardson Vice President | |||||
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PRUDENTIAL ARIZONA REINSURANCE TERM COMPANY By: PGIM, Inc., as investment manager By: /s/ Jason Richardson Vice President | |||||
PRUDENTIAL LEGACY INSURANCE COMPANY OF NEW JERSEY By: PGIM, Inc., as investment manager By: /s/ Jason Richardson Vice President | |||||
PRUCO LIFE INSURANCE COMPANY By: /s/ Jason Richardson Assistant Vice President | |||||
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21st Century Fox America, Inc. Master Trust By: Guggenheim Partners Investment Management, LLC, as Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Midland National Life Insurance Company By: Guggenheim Partners Investment Management, LLC By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Wilshire Institution Master Fund SPC- Guggenheim Alpha Segregated Portfolio By: Guggenheim Partners Investment Management, LLC, as Sub-Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
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Guaranty Income Life Insurance Company By: Guggenheim Partners Investment Management, LLC, as Manager By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Guggenheim Funds Trust – Guggenheim Macro Opportunities Fund By: Guggenheim Partners Investment Management, LLC, as Investment Adviser By: : /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Guggenheim Strategic Opportunities Fund By: Guggenheim Partners Investment Management, LLC, as Sub-Adviser By: : /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
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Guggenheim Partners Opportunistic Investment Grade Securities Master Fund, LTD By: Guggenheim Partners Investment Management, LLC, as Investment Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Horace Mann Life Insurance Company By: Guggenheim Partners Investment Management, LLC By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
North American Company for Life and Health Insurance By: Guggenheim Partners Investment Management, LLC By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
New Fox Master Trust By: Guggenheim Partners Investment Management, LLC, as Manager By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
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South Carolina Retirement Systems Group Trust By: Guggenheim Partners Investment Management, LLC, as Manager By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Verger Capital Fund LLC By: Guggenheim Partners Investment Management, LLC, as Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Wilton Reassurance Life Company of New York By: Guggenheim Partners Investment Management, LLC, as Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
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Texas Life Insurance Company By: Guggenheim Partners Investment Management, LLC, as Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
Wilton Reassurance Company By: Guggenheim Partners Investment Management, LLC, as Advisor By: /s/ Kevin M. Robinson Name: Kevin M. Robinson Title: Attorney-in-Fact | |||||
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ALLSTATE LIFE INSURANCE COMPANY By: /s/ Jerry D. Zinkula Name: Jerry D. Zinkula By: /s/ Allen Dick Name: Allen Dick Authorized Signatories | |||||
ALLSTATE INSURANCE COMPANY By: /s/ Jerry D. Zinkula Name: Jerry D. Zinkula By: /s/ Allen Dick Name: Allen Dick Authorized Signatories | |||||
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ATHENE ANNUITY & LIFE ASSURANCE COMPANY By: Apollo Insurance Solutions Group LLC, its investment adviser By: Apollo Capital Management, L.P., its sub adviser By: Apollo Capital Management GP, LLC, its General Partner By: /s/ Joseph D. Glatt Name: Joseph D. Glatt Title: Vice President | |||||
ATHENE ANNUITY AND LIFE COMPANY By: Apollo Insurance Solutions Group LLC, its investment adviser By: Apollo Capital Management, L.P., its sub adviser By: Apollo Capital Management GP, LLC, its General Partner By: /s/ Joseph D. Glatt Name: Joseph D. Glatt Title: Vice President | |||||
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MINNESOTA LIFE INSURANCE COMPANY SECURIAN LIFE INSURANCE COMPANY AMERICAN REPUBLIC INSURANCE COMPANY By: Securian Asset Management, Inc. (f/k/a Advantus Capital Management, Inc.) By: /s/ Jeremy P. Gogos Name: Jeremy P. Gogos Title: Vice President | |||||
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CONSENT AND REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the foregoing Limited Consent and Amendment No. 2 to the Third Amended and Restated Senior Secured Note Purchase Agreement dated as of August 11, 2017 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Note Agreement”) by and between Encore Capital Group, Inc. (the “Company”) and the holders of Notes party thereto (the “Noteholders”), which Limited Consent and Amendment No. 2 is dated as of December 13, 2019 (the “Consent and Amendment”). Capitalized terms used in this Consent and Reaffirmation and not defined herein shall have the meanings given to them in the Note Agreement. Without in any way establishing a course of dealing by any Noteholder, each of the undersigned consents to the Consent and Amendment and reaffirms the terms and conditions of the Multiparty Guaranty, the Pledge and Security Agreement and any other Transaction Document executed by it and acknowledges and agrees that such agreement and each and every such Transaction Document executed by the undersigned in connection with the Note Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed.
All references to the Note Agreement contained in the above-referenced documents shall be a reference to the Note Agreement as modified by the Consent and Amendment and as each of the same may from time to time hereafter be amended, modified or restated.
Dated: December 13, 2019
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MIDLAND INTERNATIONAL LLC MIDLAND PORTFOLIO SERVICES, INC. MIDLAND FUNDING LLC MRC RECEIVABLES CORPORATION MIDLAND FUNDING NCC-2 CORPORATION ASSET ACCEPTANCE, LLC MIDLAND INDIA LLC By: /s/ Jonathan Clark Jonathan Clark, Vice President | |||||
ASSET ACCEPTANCE CAPITAL CORP. ATLANTIC CREDIT & FINANCE, INC. MIDLAND CREDIT MANAGEMENT, INC. By: /s/ Jonathan Clark Jonathan Clark, Executive Vice President | |||||
ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT III, LLC By: /s/ Ryan Bell Ryan Bell, Executive Vice President | |||||
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Exhibit 4.14
DESCRIPTION OF REGISTRANT’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF
THE SECURITIES EXCHANGE ACT OF 1934
The following is a brief description of the common stock, par value $0.01 per share (“Common Stock”) of Encore Capital Group, Inc. (the “Company”) registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). This description of the terms of the Company’s stock does not purport to be complete and is subject to and qualified in its entirety by reference to the applicable provisions of the Delaware General Corporation Law (“DGCL”), and the full text of the Company’s restated certificate of incorporation, as amended to date (the “Certificate of Incorporation”), and the Company’s amended bylaws (“bylaws”), copies of which are incorporated by reference to this Annual Report on Form 10-K.
General
The Company’s Certificate of Incorporation provides that the Company may issue up to 75,000,000 shares of Common Stock. As of December 31, 2019, there were 31,096,981 shares of Common Stock issued and outstanding.
Common Stock
Voting Rights. The holders of the Company’s Common Stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, including the election of directors, and do not have cumulative voting rights. Accordingly, the holders of a majority of the shares of Common Stock entitled to vote in the election of directors can elect all of the directors standing for election, if they so choose.
Dividends. Subject to preferences that may apply to any shares of preferred stock outstanding at the time, holders of Common Stock are entitled to receive ratably dividends, if any, as may be declared by the Company’s board of directors out of funds legally available therefor.
Other Rights. Upon the Company’s liquidation, dissolution or winding-up, the holders of Common Stock are entitled to share ratably in all assets remaining after payment of all liabilities and the liquidation preferences of any outstanding preferred stock. Holders of Common Stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the Company’s Common Stock.
Certain Provisions of Delaware Law and the Company’s Charter and Bylaws
The provisions of the Company’s Certificate of Incorporation and bylaws described below may have the effect of delaying, deferring or discouraging another party from acquiring control of the Company.
Delaware Law. While the Company is not subject to the provisions of Section 203 of the DGCL regulating corporate takeovers because the Company opted out of those provisions with an express statement in its Certificate of Incorporation, which was filed in 1999 at the time of the
Company’s initial public offering. The Company does have a provision in its Certificate of Incorporation that operates similar to Section 203, as described below.
Charter. The Company’s Certificate of Incorporation precludes an “interested stockholder” (generally a holder of 15% or more of the Company’s Common Stock), from engaging in a merger, asset sale or other business combination with the Company for a period of three years after the date of the transaction in which the person became an interested stockholder, unless one of the following occurs:
•prior to the time the stockholder became an interested stockholder, the board of directors approved either the business combination or the transaction which resulted in the person becoming an interested stockholder;
•the stockholder owned at least 85% of the Company’s outstanding voting stock, excluding shares held by directors who were also officers and shares held in certain employee stock plans, upon consummation of the transaction which resulted in a stockholder becoming an interested stockholder; or
•the business combination was approved by the board of directors and by two-thirds of the Company’s outstanding voting stock, excluding shares held by the interested stockholder.
The Company’s charter defines “business combination” to include the following:
•any merger or consolidation of the corporation with or caused by the interested stockholder;
•any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation or of assets worth 10% or more of the corporation’s outstanding stock to the interested stockholder involving the interested stockholder;
•subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
•any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
•the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, the Company’s charter defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by any of these entities or persons, and certain permitted transferees.
This provision in the Company’s charter could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire the Company.
In addition, the Company’s charter provides that the vote of the holders of at least two-thirds of the shares entitled to vote in the election of directors is required to remove a director, with or without cause. Additionally, the Company’s charter provides that its board of directors is authorized to issue preferred stock without stockholder approval, and that the Company will indemnify officers and directors against losses that they may incur in investigations and legal proceedings resulting from their services to the Company, which may include services in connection with takeover defense measures.
Bylaws. The Company’s bylaws provide that, subject to certain exceptions, any stockholder desiring to propose business or nominate a person to the board of directors at a stockholders meeting must give notice of any proposals or nominations within a specified time frame. In addition, the Company’s bylaws provide that the Company will hold a special meeting of stockholders only if three of its directors or the Chief Executive Officer or the Chairman of the board of directors calls the meeting or if the holders of a majority of the issued and outstanding shares of capital stock entitled to vote at a meeting make a written demand for the meeting.
These provisions may have the effect of precluding a nomination for the election of directors or the conduct of business at a particular annual meeting if the proper procedures are not followed or may discourage or deter a third party from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the Company, even if the conduct of such solicitation or such attempt might be beneficial to the Company and its stockholders. In order to have the Company include a proposal in its annual proxy statement, the proponent and the proposal must also comply with the proxy proposal submission rules of the SEC.
In addition, stockholders can amend or repeal the Company’s bylaws only with the vote of the holders of at least two-thirds of the Company’s outstanding Common Stock.
Exhibit 10.11.9
| ENCORE CAPITAL GROUP, INC. 2017 INCENTIVE AWARD PLAN | ||
PERFORMANCE SHARE UNIT AWARD Grant Notice (ROAE)
Encore Capital Group, Inc. (the “Company”) has granted to the participant listed below (“Participant”) a Performance Share Unit award (the “PSUs” or the “Award”) described in this Performance Share Unit Award Grant Notice (the “Grant Notice”), subject to the terms and conditions of the 2017 Incentive Award Plan (as amended from time to time, the “Plan”) and the Performance Share Unit Award Agreement attached as Exhibit A (the “Agreement”), both of which are incorporated into this Grant Notice by reference. Capitalized terms not specifically defined in this Grant Notice or the Agreement have the meanings given to them in the Plan.
| Participant: | |||||
| Grant Date: | |||||
| End Date: | |||||
| Threshold Number of PSUs: | |||||
Target Number of PSUs: | |||||
| Maximum Number of PSUs: | |||||
| 20 Performance Period: | |||||
| 20 Performance Period: | |||||
| 20 Performance Period: | |||||
| Performance Goals: | Except as otherwise set forth in the Agreement, Participant is eligible to Vest in and receive Shares based upon the Company’s attainment, during the applicable Performance Period, of the applicable Performance Goals set forth below, and satisfaction of continued status as a Service Provider requirements, as set forth in Sections 3.1-3.3 of the Agreement. | ||||
| Performance Vesting: | The number of PSUs that Performance-Vest and become eligible to Vest shall be determined in accordance with the applicable table below based on the ROAE actually attained by the Company during the applicable Performance Period. In the event that the Company’s actual achievement of ROAE with respect to a Performance Period falls between two Performance Goals on the applicable table below, then the number of PSUs that shall Performance-Vest for such Performance Period shall be determined by means of linear interpolation. Any PSUs remaining unearned and/or unvested at the end of the applicable Performance Period following the determination of the ROAE actually attained by the Company during the applicable Performance Period (i.e., the number of PSUs obtained by subtracting (i) the number of PSUs that Performance-Vest from (ii) one-third of the maximum number of PSUs) shall be forfeited immediately. | ||||
ROAE Goals for 20 Performance Period | Number of PSUs that Performance-Vest | ||||
| 1/3 of Threshold Number of PSUs | |||||
| 1/3 of Target Number of PSUs | |||||
| 1/3 of Maximum Number of PSUs | |||||
ROAE Goals for 20 Performance Period | Number of PSUs that Performance-Vest | ||||
| 1/3 of Threshold Number of PSUs | |||||
| 1/3 of Target Number of PSUs | |||||
| 1/3 of Maximum Number of PSUs | |||||
ROAE Goals for 20 Performance Period | Number of PSUs that Performance-Vest | ||||
| 1/3 of Threshold Number of PSUs | |||||
| 1/3 of Target Number of PSUs | |||||
| 1/3 of Maximum Number of PSUs | |||||
Pursuant to Section 5.2(b) of the Agreement the Administrator will adjust the ROAE Goal for a Performance Period upon the completion of any divestiture during that Performance Period that has been approved by the Board. | ||
By accepting (whether in writing, electronically or otherwise) the PSUs, Participant agrees to be bound by the terms of this Grant Notice, the Plan and the Agreement. Participant has reviewed the Plan, this Grant Notice and the Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, this Grant Notice and the Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement.
| ENCORE CAPITAL GROUP, INC. | PARTICIPANT | |||||||||||||
| By: | ||||||||||||||
| Name: | ||||||||||||||
| Title: | ||||||||||||||
Exhibit A
PERFORMANCE SHARE UNIT AWARD AGREEMENT
ARTICLE I.
GENERAL
1.1 Defined Terms. Wherever the following terms are used in this Agreement they shall have the meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and the Grant Notice.
(a) “Average Equity” means the average of the Equity as of the first day of the applicable Performance Period and as of the last day of the applicable Performance Period.
(b) “Cause” has the meaning set forth in the Separation Plan.
(c) “Change in Control” has the meaning set forth in the Separation Plan.
(d) “Disability” has the meaning set forth in the Separation Plan.
(e) “Equity” means the “Total Encore Capital Group, Inc. stockholders’ equity” as reported in the Consolidated Statements of Financial Condition in the Company’s Form 10-K prepared in accordance with accounting principles generally accepted in the United States (“GAAP”); provided that in the event of an acquisition, solely for purposes of calculating Equity for the fiscal year in which such acquisition closes (but for no other year), the impact of shares of Common Stock issued by the Company to fund such acquisition shall be excluded from Equity. Further, to the extent that adjustments are made to Net Income with respect to a Performance Period as described below, corresponding adjustments shall be made to Equity for such Performance Period.
(f) “Good Reason” has the meaning set forth in the Separation Plan.
(g) “Net Income” means, with respect to a Performance Period, “Net income attributable to Encore Capital Group, Inc. stockholders”, as reported in the Consolidated Statements of Operations in the Company’s Form 10-K, prepared in accordance with GAAP and adjusted to exclude:
i.One-time expenses related to any debt refinancing transaction that has been previously approved by the Board;
ii.Gain/losses on any divestiture that has been previously approved by the Board;
iii.Foreign currency exchange gains/losses on the repatriation of cash resulting from any divestiture that has been previously approved by the Board; and
iv.The unbudgeted impact of the following items for which each event individually and incrementally exceeds $ million on a post-tax basis:
A.Acquisition, integration, and restructuring-related expenses (in the aggregate by event);
B.Goodwill and intangible asset impairments, but only with respect to goodwill and intangible assets acquired before the first day of the applicable Performance Period;
C.Impact of litigation settlement, arbitration and/or judgment;
D.Impact of changes in tax laws; and
E.Impact of changes in GAAP (including the adoption of new accounting standards), except ASU No. 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments (“CECL”).
(h) “Performance Goals” means the ROAE goals with respect to the applicable Performance Period, as set forth in the Grant Notice (as may be amended). The Administrator will set the Performance Goals for the 20 Performance Period and the 20 Performance Period in 20 and 20 , respectively. Prior to establishing the Performance Goal for a specific Performance Period the Administrator may provide for additional adjustments and exclusions related to the calculation of Equity and Net Income for that Performance Period.
(i) “Performance Period” means each of the 20 Performance Period, 20 Performance Period and 20 Performance Period set forth in the Grant Notice.
(j) “Performance-Vest” means that, with respect to a PSU, the applicable Performance Goal has been achieved or deemed achieved pursuant to this Agreement.
(k) “Qualifying Termination” means a Termination of Service (i) by the Company without Cause, (ii) by Participant for Good Reason but only to the extent the Participant is a “Tier 1” or “Tier 2” participant in the Separation Plan (or a “Tier 3” participant in the Separation Plan if such Qualifying Termination occurs in connection with a Change in Control), or (iii) due to Participant’s death or Disability.
(l) “Return on Average Equity” or “ROAE” means, with respect to a Performance Period, Net Income for such Performance Period divided by the Average Equity for such Performance Period.
(m) “Separation from Service” means Participant’s “separation from service” from the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code.
(n) “Separation Plan” means the Company’s Executive Separation Plan, as may be amended.
(o) “Vest” or “Vested” means that, with respect to a PSU, both (i) such PSU has Performance-Vested and (ii) the continued service condition has been satisfied.
(p) “Vesting Date” means, with respect to a PSU, the date on which the PSU becomes Vested.
1.2 Incorporation of Terms of Plan. The PSUs are subject to the terms and conditions set forth in this Agreement and the Plan, which is incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan will control.
ARTICLE II.
PSUS AND DIVIDEND EQUIVALENTS
2.1 Grant of PSUs. The Company has granted the PSUs to Participant effective as of the grant date set forth in the Grant Notice (the “Grant Date”). Each PSU represents the right to receive one Share, as set forth in this Agreement. Participant will have no right to the distribution of any Share underlying a PSU until the time (if ever) such PSU has Vested.
2.2 Dividend Equivalents. The Company hereby grants to Participant, with respect to each PSU, a Dividend Equivalent for ordinary cash dividends paid to substantially all holders of outstanding Shares with a record date after the Grant Date and prior to the date the applicable PSU is settled, forfeited or otherwise expires. Each Dividend Equivalent entitles Participant to receive the equivalent value of any such ordinary cash dividends paid on a single Share that becomes Vested in accordance with this Agreement. The Company will establish a separate Dividend Equivalent bookkeeping account (a “Dividend Equivalent Account”) for each Dividend Equivalent and credit the Dividend Equivalent Account (without interest) on the applicable dividend payment date with the amount of any such cash paid. Any Dividend Equivalents granted in connection with the PSUs issued hereunder, and any amounts that may become distributable in respect thereof, shall be treated separately from such PSUs and the rights arising in connection therewith for purposes of the designation of time and form of payments required by Section 409A. Participant shall not be entitled to any Dividend Equivalent payment with respect to any PSU that does not Vest in accordance with this Agreement.
2.3 Unsecured Promise. The PSUs and Dividend Equivalents will at all times prior to settlement represent an unsecured Company obligation payable only from the Company’s general assets.
ARTICLE III.
VESTING, FORFEITURE AND SETTLEMENT
3.1 Performance-Based Right to Payment. The Administrator shall determine the Company’s achievement of the applicable Performance Goals after the end of the applicable Performance Period, but no later than March 9 immediately following the end of the applicable Performance Period (each such March 9, a “Normal Vesting Date”). Subject to Sections 3.2 and 3.3 hereof, the number of PSUs that Performance-Vest with respect to the applicable Performance Period shall be determined as of such determination date, and shall Vest on the applicable Normal Vesting Date subject to Participant’s continued status as a Service Provider through the applicable Normal Vesting Date.
3.2 Change in Control. Notwithstanding Section 3.1 hereof, and subject to Section 3.3 hereof, in the event that a Change in Control occurs at any time prior to the End Date, Participant is a Service Provider as of immediately prior to such Change in Control:
(a) And an Assumption of the PSUs does not occur in connection with such Change in Control, then (i) with respect to any Performance Period that has been completed but with respect to which the applicable PSUs have not yet Vested, a number of PSUs shall Performance-Vest and Vest as of immediately prior to such Change in Control based on the Company’s actual achievement of the Performance Goals during such Performance Period and (ii) with respect to any Performance Period that has not yet been completed, then the Target Number of PSUs subject to such Performance Period shall Performance-Vest and Vest.
(b) And an Assumption of the PSUs occurs in connection with such Change in Control, then (i) with respect to any Performance Period that has been completed but with respect to which the applicable PSUs have not yet Vested, a number of PSUs shall Performance-Vest as of immediately prior to such Change in Control based on the Company’s actual achievement of the Performance Goals during such Performance Period and (ii) with respect to any Performance Period that has not yet been completed, then the Target Number of PSUs subject to such Performance Period shall Performance-Vest and, in each case, thereafter shall remain outstanding and eligible to Vest on the Normal Vesting Date to which such PSU relates (or to which it would have related). The PSUs that remain outstanding from the Change in Control until the applicable Normal Vesting Date are referred to herein as the “Time-Vesting Units”.
3.3 Termination. Notwithstanding Section 3.1 hereof:
(a) In the event that Participant experiences a Qualifying Termination due to Participant’s death or Disability, in either case prior to a Change in Control, then the number of PSUs that Performance-Vest and Vest and become payable hereunder as of the termination date shall equal the Target Number of PSUs with respect to any Performance Period that has not yet completed (and, with respect to any Performance Period that has been completed but with respect to which the applicable PSUs have not yet Vested, a number of PSUs shall Performance-Vest as of immediately prior to such Qualifying Termination based on the Company’s actual achievement of the Performance Goals during such Performance Period). In the event that Participant experiences a Qualifying Termination due to Participant’s death or Disability on or following a Change in Control, then the Time-Vesting Units that remain outstanding as of immediately prior to such Qualifying Termination shall Vest and become payable hereunder as of the termination date.
(b) In the event that Participant experiences a Qualifying Termination due to a termination by the Company without Cause or by Participant for Good Reason, then the PSUs will be subject to vesting and forfeiture in accordance with the terms and conditions in the Separation Plan; provided, however, that notwithstanding anything to the contrary contained in the Separation Plan (which, to the extent of such contradiction, is expressly superseded by this Agreement) if (i) such termination occurs 180 days prior to a Change in Control (but not if such termination occurs more than 180 days prior to a Change in Control, in which case the Award shall be forfeited as of immediately prior to such Change in Control) then a number of PSUs shall Performance-Vest and Vest as of immediately prior to such Change in Control in accordance with Section 3.2(a) above and (ii) if such termination occurs on or within two years following a Change in Control in which an Assumption of the Award occurs, then the Time-Vesting Units that remain outstanding as of immediately prior to such Qualifying Termination shall Vest as of the termination date.
3.4 Forfeiture.
(a) Termination of Service.
(i) In the event that Participant experiences a Termination of Service that is not a Qualifying Termination, all of the PSUs shall thereupon automatically be forfeited by Participant as of the date of termination, and Participant’s rights in any such PSUs, including without limitation any Dividend Equivalents (including any Dividend Equivalent Account balance), shall thereupon lapse and expire.
(ii) Any PSUs that do not become Vested in connection with a Qualifying Termination due to Participant’s death or Disability shall thereupon automatically be forfeited by Participant as of the date of termination, and Participant’s rights in any such PSUs and such portion of the Award, including without limitation any Dividend Equivalents (including any Dividend Equivalent Account balance), shall thereupon lapse and expire. Any PSUs that do not become Vested in connection with a Qualifying Termination due to Participant’s termination by the Company without Cause or by Participant for Good Reason shall be forfeited by Participant in accordance with the forfeiture terms in the Separation Plan, and Participant’s rights in any such PSUs and such portion of the Award, including without limitation any Dividend Equivalents (including any Dividend Equivalent Account balance), shall thereupon lapse and expire.
(b) Failure to Achieve Performance Goals; Change in Control. Except as set forth in Sections 3.2 and 3.3, any outstanding PSUs that do not Performance-Vest due to the failure by the Company to achieve the Performance Goals (in whole or in part), including in connection with a Change in Control, or do not Vest on a Change in Control in which an Assumption of the Award does not occur, shall automatically be forfeited by Participant as of the End Date or Change in Control, as applicable, and Participant’s rights in any such PSUs and such portion of the Award, including without limitation any Dividend Equivalents, shall thereupon lapse and expire.
3.5 Settlement
(a) The PSUs that Vest in accordance with this Agreement will be paid in Shares within 30 days after the applicable Vesting Date; provided, however, that such payment will occur no later than March 15 immediately following the applicable Vesting Date. Dividend Equivalents (including any Dividend Equivalent Account balance) will be paid in Shares or cash (at the Company’s option) as soon as administratively practicable after the Vesting of the applicable underlying PSU, but in no event more than 30 days after such PSU’s Vesting Date (but in no event later than March 15 immediately following the applicable Vesting Date). Notwithstanding anything to the contrary contained herein, the exact payment date of any PSUs and any Dividend Equivalents shall be determined by the Company in its sole discretion (and Participant shall not have a right to designate the time of payment).
(b) Notwithstanding the foregoing, the Company may delay any payment under this Agreement that the Company reasonably determines would violate Applicable Law until the earliest date the Company reasonably determines the making of the payment will not cause such a violation (in accordance with Treasury Regulation Section 1.409A-2(b)(7)(ii)),
provided the Company reasonably believes the delay will not result in the imposition of excise taxes under Section 409A.
(c) If a Dividend Equivalent is paid in Shares, the number of Shares paid with respect to the Dividend Equivalent will equal the quotient, rounded down to the nearest whole Share, of the Dividend Equivalent Account balance divided by the Fair Market Value of a Share on the day immediately preceding the payment date.
ARTICLE IV.
TAXATION AND TAX WITHHOLDING
4.1 Representation. Participant represents to the Company that Participant has reviewed with Participant’s own tax advisors the tax consequences of this Award and the transactions contemplated by the Grant Notice and this Agreement. Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents.
4.2 Tax Withholding.
(a) The Company shall withhold, or cause to be withheld, Shares otherwise vesting or issuable under this Award (including the PSUs or Dividend Equivalents) in satisfaction of any applicable withholding tax obligations. The number of Shares which may be so withheld or surrendered shall be limited to the number of Shares which have a fair market value on the date of withholding no greater than the aggregate amount of such liabilities based on the maximum individual statutory withholding rates in Participant’s applicable jurisdictions for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income. To the extent that any Federal Insurance Contributions Act tax withholding obligations arise in connection with the PSUs or the Dividend Equivalents prior to the applicable vesting or payment date, the Administrator may accelerate the payment of a portion of the award of PSUs sufficient to satisfy (but not in excess of) such tax withholding obligations and any tax withholding obligations associated with any such accelerated payment, and the Administrator shall withhold such amounts in satisfaction of such withholding obligations.
(b) Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the PSUs and the Dividend Equivalents, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the PSUs or Dividend Equivalents. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the PSUs or the Dividend Equivalents or the subsequent sale of Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure the PSUs or Dividend Equivalents to reduce or eliminate Participant’s tax liability.
4.3 Section 409A.
(a) To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A, including without limitation any such regulations or other guidance that may be issued after the effective date of this Agreement. Notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Administrator determines that the PSUs or the Dividend Equivalents (or, in each case, any portion thereof)
may be subject to Section 409A, the Administrator shall have the right in its sole discretion (without any obligation to do so or to indemnify Participant or any other person for failure to do so) to adopt such amendments to the Plan, the Grant Notice or this Agreement, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Administrator determines are necessary or appropriate either for the PSUs and/or Dividend Equivalents to be exempt from the application of Section 409A or to comply with the requirements of Section 409A.
(b) All payments of nonqualified deferred compensation subject to Section 409A to be made upon a termination of employment or service under this Agreement may only be made upon Participant’s Separation from Service.
(c) Notwithstanding anything to the contrary in this Agreement, no amounts shall be paid to Participant under this Agreement during the six-month period following Participant’s Separation from Service to the extent that the Administrator determines that Participant is a “specified employee” (within the meaning of Section 409A) at the time of such Separation from Service and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six-month period (or such earlier date upon which such amount can be paid under Section 409A without being subject to such additional taxes), the Company shall pay to Participant in a lump-sum all amounts that would have otherwise been payable to Participant during such six-month period under this Agreement.
ARTICLE V.
OTHER PROVISIONS
5.1 Administration. The Administrator shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan and this Agreement as are consistent therewith and to interpret, amend or revoke any such rules. Without limiting the generality of the foregoing, all determinations, interpretations and assumptions relating to the calculation and payment of the PSUs (including, without limitation, determinations, interpretations and assumptions with respect to ROAE) shall be made by the Administrator. All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final and binding upon Participant, the Company and all other interested persons.
5.2 Adjustments.
(a) Participant acknowledges that the PSUs, the Shares subject to the PSUs, the Dividend Equivalents and the Performance Goals are subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan. The Administrator shall also have the exclusive authority, in its reasonable discretion, to make proper adjustments and/or modifications to one or more Performance Goals in the event of any extraordinary, unusual or infrequent events or occurrences, or changes in accounting principles or Applicable Laws, affecting a Performance Goal that the Administrator determines have an unintended effect on the calculation of the Performance Goals.
(b) The Performance Goals were established based on the budget established by the Board for (a) Net income attributable to Encore Capital Group, Inc. stockholders and (b) Total Encore Capital Group, Inc. stockholders’ equity. Upon completion of any divestiture during a Performance Period that has been approved by the Board, the Administrator will recalculate the Performance Goals after excluding the budgeted net income for the remainder of the Performance Period subsequent to the divestiture attributable to the portion of the business divested.
5.3 Other Stock or Cash Based Awards. This Award shall constitute an Other Stock or Cash Based Award for purposes of the Plan.
5.4 Notices. Any notice to be given under the terms of this Agreement to the Company must be in writing and addressed to the Company in care of the Company’s Secretary at the Company’s principal office or the Secretary’s then-current email address or facsimile number. Any notice to be given under the terms of this Agreement to Participant must be in writing and addressed to Participant at Participant’s last known mailing address, email address or facsimile number in the Company’s personnel files. By a notice given pursuant to this Section, either party may designate a different address for notices to be given to that party. Any notice will be deemed duly given when actually received, when sent by email, when sent by certified mail (return receipt requested) and deposited with postage prepaid in a post office or branch post office regularly maintained by the United States Postal Service, when delivered by a nationally recognized express shipping company or upon receipt of a facsimile transmission confirmation.
5.5 Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
5.6 Conformity to Securities Laws. Participant acknowledges that the Plan, the Grant Notice and this Agreement are intended to conform to the extent necessary with all Applicable Laws and, to the extent Applicable Laws permit, will be deemed amended as necessary to conform to Applicable Laws.
5.7 Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth in this Agreement or the Plan, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
5.8 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the Grant Notice, this Agreement, the PSUs and the Dividend Equivalents will be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3) that are requirements for the application of such exemptive rule. To the extent Applicable Laws permit, this Agreement will be deemed amended as necessary to conform to such applicable exemptive rule.
5.9 Entire Agreement. The Plan, the Grant Notice and this Agreement (including any exhibit hereto) constitute the entire agreement of the parties and supersede in their entirety all
prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof.
5.10 Agreement Severable. In the event that any provision of the Grant Notice or this Agreement is held illegal or invalid, the provision will be severable from, and the illegality or invalidity of the provision will not be construed to have any effect on, the remaining provisions of the Grant Notice or this Agreement.
5.11 Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and may not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Participant will have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the PSUs and Dividend Equivalents, and rights no greater than the right to receive cash or the Shares as a general unsecured creditor with respect to the PSUs and Dividend Equivalents, as and when settled pursuant to the terms of this Agreement.
5.12 Not a Contract of Employment. Nothing in the Plan, the Grant Notice or this Agreement confers upon Participant any right to continue in the employ or service of the Company or any Subsidiary or interferes with or restricts in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.
5.13 Counterparts. The Grant Notice may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which will be deemed an original and all of which together will constitute one instrument.
Exhibit 10.12.14
LIMITED CONSENT AND AMENDMENT NO. 4 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This LIMITED CONSENT AND AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Consent and Amendment”), dated as of December 13, 2019, is entered into by and among ENCORE CAPITAL GROUP, INC., a Delaware corporation (the “Borrower”), the Guarantors identified on the signature pages hereto, the Lenders party hereto, and TRUIST BANK, successor by merger to SUNTRUST BANK, as Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Swingline Lender and Issuing Bank.
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to that certain Third Amended and Restated Credit Agreement dated as of December 20, 2016 (as the same has been amended, restated, waived, extended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), pursuant to which the Lenders have extended revolving credit and term loan facilities to the Borrower;
WHEREAS, the Borrower has notified Administrative Agent that, effective January 1, 2020, the Borrower will adopt FASB Accounting Standards Update No. 2016-13, Financial Instruments—Credit Losses (Topic 326), which will result in a change in the methodology used to calculate Estimated Remaining Collections (the “Specified Accounting Change”);
WHEREAS, the Borrower has requested that the Lenders consent to the adoption by the Borrower of the Specified Accounting Change and the undersigned Lenders are willing to so consent subject to the terms and conditions of this Consent and Amendment; and
WHEREAS, the Borrower has requested certain amendments to the Credit Agreement as set forth herein, and the Administrative Agent, the Collateral Agent, the Swingline Lender, the Issuing Bank and the undersigned Lenders have agreed to such amendments, subject to the terms and conditions of this Consent and Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to such terms in the Credit Agreement, as amended by this Consent and Amendment.
2. Limited Consent. Subject to the terms and conditions hereof, on the Amendment Effective Date (as defined in Section 5 below), each of the undersigned Lenders hereby consent to the adoption by the Borrower of the Specified Accounting Change. Each of the Borrower and the Guarantors acknowledges and agrees that the consent contained in the foregoing sentence is a one-time consent and is limited to the extent specifically set forth herein and, other than as
LEGAL02/39363931v4
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specifically set forth herein, no other terms, covenants or provisions of the Credit Agreement or the other Loan Documents are intended to be affected hereby, all of which remain in full force and effect, and such limited consent shall not hinder, restrict or otherwise modify the rights and remedies of Administrative Agent, Collateral Agent, or any Lender following the occurrence of any Default or Event of Default under the Credit Agreement or any other Loan Document. The consent set forth herein shall not obligate Administrative Agent, Collateral Agent or any Lender to otherwise waive or consent to any actions or inactions in the future or to amend the Credit Agreement or any other Loan Document in any manner at any time in the future or to waive future compliance (temporarily or otherwise) with any provision of the Credit Agreement or any other Loan Document.
3. Amendments to Credit Agreement. Subject to the terms and conditions hereof, on the Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new defined terms in the appropriate alphabetical order therein:
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Division” shall mean, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons with the dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18-217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any applicable law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide”, when capitalized shall have correlative meaning.
“Screen Rate” shall mean the rate specified in the first sentence of the definition of LIBOR.
(b) The Credit Agreement is hereby further amended by adding the following new Section 1.5 at the end of Article I of the Credit Agreement:
“Section 1.5. Divisions. For all purposes under the Loan Documents, in connection with any Division or plan of Division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.”
(c) Section 2.16 of the Credit Agreement is hereby amended by deleting such Section in its entirety and substituting in lieu thereof the following:
“Section 2.16. Inability to Determine Interest Rates.
(a) If, prior to the commencement of any Interest Period for any Eurodollar Borrowing:
(i) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant interbank market, adequate and reasonable means do not exist for ascertaining LIBOR (including, without limitation, because the Screen Rate is not available or published on a current basis) for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making, funding or maintaining their Eurodollar Loans for such Interest Period,
then the Administrative Agent shall give written notice thereof (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans on the last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one (1) Business Day before the date of any Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing or Notice of Conversion/Continuation has previously been given that it elects not to borrow, continue or convert to a Eurodollar Borrowing on such date, then such Revolving Borrowing shall be made as, continued as or converted into a Base Rate Borrowing.
(b) If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) above have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) above have not arisen but the supervisor for the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Screen Rate that gives
due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 10.2, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.16(b), only to the extent the Screen Rate for the applicable currency and/or such Interest Period is not available or published at such time on a current basis), (x) any Notice of Conversion/Continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (y) if any Notice of Revolving Borrowing or Notice of Swingline Borrowing requests a Eurodollar Borrowing, such Borrowing shall be made as a Base Rate Borrowing; provided, that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.”
(d) Section 5.1 of the Credit Agreement is hereby amended by (1) re-designating clause (k) thereof as clause (l) and (2) adding a new clause (k) thereto as follows:
“(k) Promptly, and in any event no later than three (3) Business Days, after any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) and (d) of such certification; and”
(e) Section 5.11 of the Credit Agreement is hereby amended by adding the following new paragraph at the end of such Section:
“In the event that any Loan Party divides itself into two or more Persons, any Persons formed as a result of such Division, unless otherwise consented to in writing by the Administrative Agent, shall have taken each of the actions set forth in Section 5.10 and this Section 5.11, as applicable, in each case subject to the time periods set forth therein (or herein).”
(f) Section 7.3 of the Credit Agreement is hereby amended by adding the following new paragraph at the end of such Section:
“Any reference in this Section 7.3 or in Section 7.6 to a combination, merger, consolidation, disposition, dissolution, liquidation or transfer shall be
deemed to apply to a Division (or the unwinding of such a Division) as if it were a combination, merger, consolidation, disposition, dissolution, transfer or similar term, as applicable, to or with a separate Person.”
(g) Section 10.15 of the Credit Agreement is hereby amended by deleting such Section in its entirety and substituting in lieu thereof the following:
“Section 10.15. Patriot Act/Beneficial Ownership.
The Administrative Agent and each Lender hereby notifies the Loan Parties that pursuant to (a) the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act and (b) the Beneficial Ownership Regulation, it is required to obtain a Beneficial Ownership Certification. Each Loan Party shall, and shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such information and take such other actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act and the Beneficial Ownership Regulation.”
(h) The Credit Agreement is hereby further amended by adding the following new Section 10.20 at the end of Article X of the Credit Agreement:
“Section 10.20. Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Rate Management Obligations or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such
Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
As used in this Section 10.20, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).”
4. Representations and Warranties. The Borrower and the Guarantors hereby represent and warrant to the Administrative Agent, the Collateral Agent, the Swingline Lender, the Issuing Bank and the Lenders as follows:
(a) As of the date hereof and giving effect to the terms of this Consent and Amendment, no Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by each Loan Party of this Consent and Amendment are within such Loan Party’s organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member, action. This Consent and Amendment has been duly executed and delivered by each Loan Party. Each of this Consent and Amendment and the Credit Agreement, as amended hereby, constitute the valid and binding obligations of the Loan Parties, enforceable against them in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
(c) The execution and delivery of this Consent and Amendment by the Loan Parties, and performance by the Borrower of this Consent and Amendment and the Credit Agreement, as amended hereby (i) do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those as have been obtained or made and are in full force and effect, (ii) will not violate any organizational documents of, or any law applicable to, any Loan Party or any judgment, order or ruling of any Governmental Authority, (iii) will not violate or result in a default under the Credit Agreement, the Prudential Senior Secured Note Agreement, any Material Indebtedness Agreement, any other material agreement or other material instrument binding on any Loan Party or any of their assets or give rise to a right thereunder to require any payment to be made by any Loan Party, (iv) will not result in the creation or imposition of any Lien on any asset of any Loan Party, except Liens (if any) created under the Loan Documents and/or (v) will not result in a material limitation on any licenses, permits or other governmental approvals applicable to the business, operations or properties of the Loan Parties.
(d) The execution, delivery, performance and effectiveness of this Consent and Amendment will not: (i) impair the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all of the applicable Obligations, whether heretofore or hereafter incurred and (ii) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.
(e) Without limiting the foregoing, each Loan Party hereby repeats and reaffirms all representations and warranties made by such Loan Party in the Credit Agreement (as amended hereby) and the other Loan Documents to which it is a party on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Consent and Amendment in full, except to the extent such representations and warranties relate to an earlier date, in which case each Loan Party repeats and reaffirms such representations and warranties as of such date.
(f) As of the Amendment Effective Date, the information included in the Beneficial Ownership Certification (as defined in Section 3 above) is true and correct in all respects.
5. Amendment Effective Date and Effect on Credit Agreement.
(a) This Consent and Amendment will become effective on the first date on which each of the following conditions has been satisfied (the “Amendment Effective Date”) to the satisfaction of the Administrative Agent:
(i) the Administrative Agent shall have received counterparts of this Consent and Amendment duly executed by the Loan Parties and the Supermajority Lenders and the Required Lenders;
(ii) the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day prior to the Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings;
(iii) the Administrative Agent shall have received a copy of a consent to the Specified Accounting Change with respect to the Prudential Senior Secured Note Agreement duly executed by each party thereto, in form and substance acceptable to the Administrative Agent;
(iv) the Administrative Agent shall have received the documentation and other information regarding the Loan Parties that the Administrative Agent shall have reasonably requested and as is mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification; and
(v) the Administrative Agent shall have received such other instruments, documents and certificates as the Administrative Agent shall reasonably request in connection with the execution of this Consent and Amendment.
(b) For purposes of determining compliance with the conditions specified in this Section 5, each Lender that has executed this Consent and Amendment and delivered it to the Administrative Agent shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required under this Section 5 to be consented to or approved by or acceptable or satisfactory to such Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Amendment Effective Date specifying its objection thereto.
(c) From and after the Amendment Effective Date, the consent contained herein and the amendments to the Credit Agreement provided herein will be effective. Except as expressly set forth herein, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Administrative Agent will notify the Borrower and the Lenders of the occurrence of the Amendment Effective Date.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and provisions of the Credit Agreement and each other Loan Document are and shall remain in full force and effect and all references in any Loan Document to the “Credit Agreement” shall henceforth refer to the Credit Agreement as amended by this Consent and Amendment. Nothing in this Consent and Amendment or in any of the transactions contemplated hereby (including, without limitation, the refinancing contemplated hereby) is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations of the Borrower under the Credit Agreement or to modify, affect or impair the perfection, priority or continuation of the security interests in, security titles to or other Liens on any Collateral for the Obligations.
(b) This Consent and Amendment shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns.
(c) THIS CONSENT AND AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 10.6 AND 10.7 OF THE CREDIT AGREEMENT RELATING TO GOVERNING LAW, JURISDICTION AND WAIVER OF RIGHT TO TRIAL BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE INCORPORATED HEREIN IN FULL.
(d) This Consent and Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Consent and Amendment and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Subject to Section 5 above, this Consent and Amendment shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties required to be a party hereto. Delivery of an executed counterpart of a signature page of this Consent and Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Consent and Amendment. This Consent and Amendment may not be amended except in accordance with the provisions of Section 10.2 of the Credit Agreement.
(e) If any provision of this Consent and Amendment or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Consent and Amendment and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents, or constitute a course of conduct or dealing among the parties. The Administrative Agent and the Lenders reserve all rights, privileges and remedies under the Loan Documents.
(f) The Borrower shall reimburse the Administrative Agent upon demand for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Consent and Amendment and the other agreements and documents executed and delivered in connection herewith.
(g) In consideration of the consent and amendments contained herein, each of the Loan Parties hereby waives and releases each of the Lenders, the Administrative Agent and the Collateral Agent from any and all claims and defenses, known or unknown as of the date hereof, with respect to the Credit Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.
(h) This Consent and Amendment shall constitute a “Loan Document” under and as defined in the Credit Agreement.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment to be duly executed as of the date first above written.
ENCORE CAPITAL GROUP, INC.
By: /s/ Jonathan Clark
Name: Jonathan Clark
Title: Chief Financial Officer
TRUIST BANK,
as Administrative Agent, Collateral Agent, Swingline Lender, Issuing Bank and as a Lender
By: /s/ Hays Wood
Name: Hays Wood
Title: Director
BANK OF AMERICA, N.A.,
as Lender
By: /s/ Angel Sutoyo
Name: Angel Sutoyo
Title: Senior Vice President
FIFTH THIRD BANK, as Lender
By: /s/ Peter Samboul
Name: Peter Samboul
Title: Director
ING CAPITAL LLC, as Lender
By: /s/ Mary Forstner
Name: Mary Forstner
Title: Director
By: /s/ Robert Miners
Name: Robert Miners
Title: Director
MORGAN STANLEY BANK, N.A., as Lender
By: /s/ David White
Name: David White
Title: Authorized Signatory
ZB, N.A. d/b/a CALIFORNIA BANK & TRUST, as Lender
By: /s/ Melissa Chang
Name: Melissa Chang
Title: First Vice President
BANK LEUMI USA, as Lender
By: /s/ Paul King
Name: Paul King
Title: FVP / RM
CATHAY BANK, CALIFORNIA BANKING CORPORATION, as Lender
By: /s/ Daniel Ahn
Name: Daniel Ahn
Title: Assistant Vice President
FLAGSTAR BANK, as Lender
By: /s/ Aaron Bates
Name: Aaron Bates
Title: Vice President
MUFG Union Bank, N.A. (formerly known as UNION BANK), as Lender
By: /s/ Meng Zhang
Name: Meng Zhang
Title: Vice President
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Lender
By: /s/ Doreen Barr
Name: Doreen Barr
Title: Authorized Signatory
By: /s/ Andrew Griffin
Name: Andrew Griffin
Title: Authorized Signatory
OPUS BANK, as Lender
By: /s/ Lisa Kaup
Name: Lisa Kaup
Title: Vice President
UMPQUA BANK, as Lender
By: /s/ Emily Brayfield
Name: Emily Brayfield
Title: SVP
WOODFOREST NATIONAL BANK, as Lender
By: /s/ Mai Le Thai
Name: Mai Le Thai
Title: Vice President
CTBC BANK CORP. (USA), as Lender
By: /s/ Eugene Pasechnik
Name: Eugene Pasechnik
Title: VP, Portfolio Manager
REGIONS BANK, as Lender
By: /s/ Andrew Staszesky
Name: Andrew Staszesky
Title: Vice President
DNB CAPITAL, LLC, as Lender
By: /s/ Bret Douglas
Name: Bret Douglas
Title: Senior Vice President
By: /s/ Birgitta Perezic
Name: Birgitta Perezic
Title: First Vice President
BANC OF CALIFORNIA, as Lender
By: /s/ Lana Bolotina
Name: Lana Bolotina
Title: SVP, Underwriting
Each of the undersigned hereby makes the representations and warranties set forth above in this Consent and Amendment, consents to this Consent and Amendment and the terms and provisions hereof and hereby (a) confirms and agrees that notwithstanding the effectiveness of such Consent and Amendment, each Loan Document to which it is a party and their respective payment, performance and observance obligations and liabilities (whether contingent or otherwise) is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Consent and Amendment, each reference in the Loan Documents to the “Credit Agreement, “thereunder”, “thereof or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Consent and Amendment, (b) confirms and agrees that the pledge and security interest in the Collateral granted by it pursuant to the Collateral Documents to which it is a party shall continue in full force and effect, and (c) acknowledges and agrees that such pledge and security interest in the Collateral granted by it pursuant to such Collateral Documents shall continue to secure the Obligations purported to be secured thereby.
ENCORE CAPITAL GROUP, INC.
By: /s/ Jonathan Clark
Name: Jonathan Clark
Title: Chief Financial Officer
MIDLAND INTERNATIONAL LLC
MIDLAND PORTFOLIO SERVICES, INC.
MIDLAND FUNDING LLC
MRC RECEIVABLES CORPORATION
MIDLAND FUNDING NCC-2 CORPORATION
ASSET ACCEPTANCE, LLC
MIDLAND INDIA LLC
By: /s/ Jonathan Clark
Name: Jonathan Clark
Title: Vice President
ASSET ACCEPTANCE CAPITAL CORP.
ATLANTIC CREDIT & FINANCE, INC.
MIDLAND CREDIT MANAGEMENT, INC.
By: /s/ Jonathan Clark
Name: Jonathan Clark
Title: Executive Vice President
ATLANTIC CREDIT & FINANCE SPECIAL
FINANCE UNIT, LLC
ATLANTIC CREDIT & FINANCE SPECIAL
FINANCE UNIT III, LLC
By: /s/ Ryan Bell
Name: Ryan Bell
Title: Executive Vice President
Exhibit 21
Subsidiaries of Encore Capital Group, Inc.
As of December 31, 2019
| Name | Jurisdiction of Incorporation or Formation | ||||
| Asset Acceptance Capital Corp. | Delaware | ||||
| Asset Acceptance, LLC | Delaware | ||||
| Atlantic Credit & Finance Special Finance Unit III, LLC | Virginia | ||||
| Atlantic Credit & Finance Special Finance Unit, LLC | Virginia | ||||
| Atlantic Credit & Finance, Inc. | Virginia | ||||
| Black Tip Capital Holdings Limited | United Kingdom | ||||
| Cabot (Group Holdings) Limited | United Kingdom | ||||
| Cabot Asset Purchases (Ireland) Limited | Ireland | ||||
| Cabot Assets (Spain) S.L. | Spain | ||||
| Cabot Credit Management Group Limited | United Kingdom | ||||
| Cabot Credit Management Limited | United Kingdom | ||||
| Cabot Financial (Europe) Limited | United Kingdom | ||||
| Cabot Financial (International) Limited | United Kingdom | ||||
| Cabot Financial (Ireland) Limited | Ireland | ||||
| Cabot Financial (Luxembourg) S.A. | Luxembourg | ||||
| Cabot Financial (Marlin) Limited | United Kingdom | ||||
| Cabot Financial Spain SA | Spain | ||||
| Cabot Financial (UK) Limited | United Kingdom | ||||
| Cabot Financial Debt Recovery Services Limited | United Kingdom | ||||
| Cabot Financial Holdings Group Limited | United Kingdom | ||||
| Cabot Financial Limited | United Kingdom | ||||
| Cabot Financial Portfolios Limited | United Kingdom | ||||
| Cabot Holdings S.à r.l. | Luxembourg | ||||
| Cabot Securitisation Europe Limited | Ireland | ||||
| Cabot Securitisation (UK) Holdings II Limited | United Kingdom | ||||
| Cabot Securitisation (UK) II Limited | United Kingdom | ||||
| Cabot Securitisation Topco Limited | United Kingdom | ||||
| Cabot Securitisation UK Holdings Limited | United Kingdom | ||||
| Cabot Securitisation UK Limited | United Kingdom | ||||
| Cabot Services (Europe) S.A.S | France | ||||
| Cabot UK Holdco Limited | United Kingdom | ||||
| Carat UK Midco Limited | United Kingdom | ||||
| Dessetec Desarrollo de Sistemas, S.A. de C.V. | Mexico | ||||
| Encore Asset Reconstruction Company Private Limited | India | ||||
| Name | Jurisdiction of Incorporation or Formation | ||||
| Encore Capital Europe Finance Limited | Jersey | ||||
| Encore Capital Group Singapore Pte. Ltd. | Singapore | ||||
| Encore Capital Group UK Limited | United Kingdom | ||||
| Encore Europe Holdings S.à r.l. | Luxembourg | ||||
| Encore Holdings Luxembourg S.à r.l. | Luxembourg | ||||
| Encore Luxembourg Brazil S.à r.l. | Luxembourg | ||||
| Encore Mexico Nominee LLC | Delaware | ||||
| Encoremex Holdings S. de R.L. de C.V. | Mexico | ||||
| GC Encore Euro S.à r.l. | Luxembourg | ||||
| GC Encore GBP S.à r.l. | Luxembourg | ||||
| Grove Capital Management España, S.L.U. | Spain | ||||
| Grove Europe S.à r.l. | Luxembourg | ||||
| Grove Performance Management Limited | United Kingdom | ||||
| Hillesden Securities Limited | United Kingdom | ||||
| Janus Holdings Luxembourg S.à r.l. | Luxembourg | ||||
| LSF7 Silverstone S.à r.l. | Luxembourg | ||||
| Lynx Residential RE Spain, S.L.U. | Spain | ||||
| Marlin Capital Europe Limited | United Kingdom | ||||
| Marlin Europe I Limited | United Kingdom | ||||
| Marlin Europe II Limited | United Kingdom | ||||
| Marlin Europe V Limited | United Kingdom | ||||
| Marlin Europe VI Limited | United Kingdom | ||||
| Marlin Europe IX Limited | United Kingdom | ||||
| Marlin Europe X Limited | United Kingdom | ||||
| Marlin Financial Group Limited | United Kingdom | ||||
| Marlin Financial Intermediate II Limited | United Kingdom | ||||
| Marlin Financial Intermediate Limited | United Kingdom | ||||
| Marlin Intermediate Holdings Plc | United Kingdom | ||||
| Marlin Legal Services Limited | United Kingdom | ||||
| Marlin Midway Limited | United Kingdom | ||||
| Marlin Portfolio Holdings Limited | United Kingdom | ||||
| Marlin Senior Holdings Limited | United Kingdom | ||||
| Marlin Unrestricted Holdings Limited | United Kingdom | ||||
| MCE Portfolio Limited | United Kingdom | ||||
| MCM Midland Management Costa Rica, S.R.L. | Costa Rica | ||||
| MDB Collection Services Limited | United Kingdom | ||||
| ME III Limited | United Kingdom | ||||
| ME IV Limited | United Kingdom | ||||
| Mercantile Data Bureau Limited | United Kingdom | ||||
| Name | Jurisdiction of Incorporation or Formation | ||||
| MFS Portfolio Limited | United Kingdom | ||||
| Midland Credit Management India Private Limited | India | ||||
| Midland Credit Management, Inc. | Kansas | ||||
| Midland Funding LLC | Delaware | ||||
| Midland India LLC | Minnesota | ||||
| Midland International LLC | Delaware | ||||
| Midland Portfolio Services, Inc. | Delaware | ||||
| Molanda Commercial Limited | Ireland | ||||
| Morley Limited | United Kingdom | ||||
| Mortimer Clarke Solicitors Limited | United Kingdom | ||||
| MRC Receivables Corporation | Delaware | ||||
| PD Encore, S. de R.L. de C.V. | Mexico | ||||
| Propiedades Residenciales SLU | Spain | ||||
| RF Encore S.A.S. | Colombia | ||||
| Torrington Commercial Limited | Ireland | ||||
| Wescot Acquisitions Limited | United Kingdom | ||||
| Wescot Credit Services Limited | United Kingdom | ||||
| Wescot Topco Limited | United Kingdom | ||||
The names of certain subsidiaries are omitted pursuant to Item 601(b)(21)(ii) of Regulation S-K.
Exhibit 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Encore Capital Group, Inc.
San Diego, California
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3ASR (Nos. 333-226189 and 333-227542), Form S-3 (No. 333-11551) and Form S-8 (Nos. 333-125340, 333-125341, 333-125342, 333-160042, 333-189860, and 333-218877) of Encore Capital Group, Inc. of our reports dated February 26, 2020, relating to the consolidated financial statements and the effectiveness of Encore Capital Group, Inc.’s internal control over financial reporting for the year ended December 31, 2019, which appear in this Annual Report on Form 10-K.
/s/ BDO USA, LLP
San Diego, California
February 26, 2020
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I, Ashish Masih, certify that:
1.I have reviewed this annual report on Form 10-K of Encore Capital Group, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| By: | /S/ ASHISH MASIH | |||||||
| Ashish Masih President and Chief Executive Officer | ||||||||
Date: February 26, 2020
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I, Jonathan C. Clark, certify that:
1.I have reviewed this annual report on Form 10-K of Encore Capital Group, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| By: | /S/ JONATHAN C. CLARK | |||||||
| Jonathan C. Clark Executive Vice President, Chief Financial Officer and Treasurer | ||||||||
Date: February 26, 2020
Exhibit 32.1
ENCORE CAPITAL GROUP, INC.
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Encore Capital Group, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of his knowledge:
(1)The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)The information contained in the Report fairly presents, in all material respects, the consolidated financial condition and results of operations of the Company.
/s/ ASHISH MASIH | |||||
| Ashish Masih | |||||
| President and Chief Executive Officer | |||||
February 26, 2020
/s/ JONATHAN C. CLARK | |||||
| Jonathan C. Clark | |||||
| Executive Vice President, Chief Financial Officer and Treasurer | |||||
February 26, 2020
This certification accompanies the above described Report and is being furnished pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall be not be deemed filed as part of the Report.