SIXTH AMENDMENT TO CREDIT AGREEMENT
SIXTH
AMENDMENT TO CREDIT AGREEMENT
This
SIXTH AMENDMENT TO CREDIT AGREEMENT (the “Sixth Amendment”) dated January
11, 2007, is by and among ePlus inc., a Delaware corporation (“ePlus”), the
Subsidiaries of ePlus signatory hereto (including ePlus, each individually
a
“Borrower” and collectively, the “Borrowers”), the Banks signatory hereto (the
“Banks”), and National City Bank, as Administrative Agent for the Banks (the
“Administrative Agent”).
BACKGROUND
A. Pursuant
to that certain Credit Agreement dated
September
23,
2005,
by and
among the Borrowers, the Banks, and the Administrative Agent, as amended by
a
First Amendment to Credit Agreement, dated July 11, 2006, a Second Amendment
dated July 28, 2006, a Third Amendment dated August 30, 2006, a Fourth Amendment
dated September 27, 2006, and a Fifth Amendment dated November
15, 2006 (as the same may be modified and amended from time to time,
including by this Sixth Amendment, the “Credit Agreement”), the Banks agreed,
inter
alia,
to
extend to the Borrowers a revolving credit facility in the maximum aggregate
principal amount of $35,000,000.
B. The
Borrowers did not deliver the following documents as required by Section 5.1
of
the Credit Agreement (a) their annual audited financial statements prior to
May
31, 2006, (b) their “Projections” for 2007 prior to June 30, 2006, and (c)
Financial Statements (Quarterly), for the periods ending June 30, 2006 and
September 30, 2006 (collectively, the “Waived Delivery Event”), which events
were waived through January 15, 2007, pursuant to the Fifth Amendment, and
have advised the Banks that they will be unable to deliver such items in the
timeframe set forth in the Fifth Amendment.
C. The
Borrowers have requested an extension of the delivery date requirements for
the
Waived Delivery Event, to which the Banks are willing to agree, on the terms
and
subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
as follows:
1. Definitions.
(a) General
Rule.
Except
as expressly set forth herein, all capitalized terms used and not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
(b) Additional
Definition.
The
following additional definition shall be added to Article 1 of the Credit
Agreement to read in its entirety as follows:
“Sixth
Amendment”
means
the Sixth Amendment to this Agreement dated January 11, 2007.
2. Representations
and Warranties.
Each
Borrower hereby represents and warrants to the Administrative Agent and each
Bank that, except as to the Waived Delivery Event, as to such
Borrower:
(a) Representations.
each of
the representations and warranties of such Borrower contained in the Credit
Agreement and/or the other Loan Documents are true, accurate and
(b) Power
and Authority.
(i)
such Borrower has the power and authority under the laws of its jurisdiction
of
organization and under its organizational documents to enter into and perform
this Sixth Amendment and any other documents which the Banks require such
Borrower to deliver hereunder (this Sixth Amendment and any such additional
documents delivered in connection with the Sixth Amendment are herein referred
to as the “Amendment Documents”); (ii) such Borrower is in good standing in its
jurisdiction of organization and each additional jurisdiction in which it is
required to be so qualified; and (iii) all actions, corporate or otherwise,
necessary or appropriate for the due execution and full performance by the
Borrower of the Sixth Amendment have been adopted and taken and, upon their
execution, the Credit Agreement, as amended by this Sixth Amendment will
constitute the valid and binding obligations of the Borrower enforceable in
accordance with their respective terms;
(c) No
Violations of Law or Agreements.
the
making and performance of the Sixth Amendment will not violate any provisions
of
any law or regulation, federal, state, local, or foreign, or the organizational
documents of such Borrower, or result in any breach or violation of, or
constitute a default or require the obtaining of any consent under, any
agreement or instrument by which such Borrower or its property may be
bound;
(d) No
Default.
except
as is waived hereby, no Default or Event of Default has occurred and is
continuing; and
(e) No
Material Adverse Effect.
No
Material Adverse Effect has occurred since September 23, 2005.
3. Conditions
to Effectiveness of Amendment.
This
Sixth Amendment shall be effective upon the Administrative Agent’s receipt of
the following, each in form and substance reasonably satisfactory to the
Banks:
(a) Sixth Amendment.
this Sixth Amendment, duly executed by the Borrowers and the Banks;
(b) Consent
and Waivers.
copies
of any consents or waivers necessary in order for the Borrowers to comply with
or perform any of its covenants, agreements or obligations contained in any
agreement, which are required as a result of the Borrowers’ execution of this
Sixth Amendment, if any; and
(c) Other
Documents and Actions.
such
additional agreements, instruments, documents, writings and actions as the
Banks
may reasonably request.
4. Limited
Consent; Ratification.
Subject
to the terms and conditions of this Sixth Amendment, the Banks and
Administrative Agent hereby consent to an extension of the delivery date for
each of the deliveries described in the definition of the Waived Delivery
Event, to a date not later than March 15, 2007. Except as stated in the
preceding sentence, the execution, delivery and performance of this Sixth
Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or the Banks under the Credit Agreement or any Loan
Document, or constitute a waiver of any provision thereof. Except as expressly
modified hereby, all terms, conditions and provisions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed by any Borrower. Nothing contained herein
constitutes an agreement or obligation by the Administrative Agent or any Bank
to grant any further amendments to any of the Loan Documents.
5. Acknowledgments.
To
induce the Banks to enter into this Sixth Amendment, each Borrower acknowledges,
agrees, warrants, and represents that:
(a) Acknowledgment
of Obligations; Collateral; Waiver of Claims.
(i) the
Loan Documents are valid and enforceable against, and all of the terms and
conditions of the Loan Documents are binding on, the Borrowers; (ii) the liens
and security interests granted to the Administrative Agent by the Borrowers
pursuant to the Loan Documents are valid, legal and binding, properly recorded
or filed and first priority perfected liens and security interests; and (iii)
the Borrowers hereby waive any and all defenses, set-offs and counterclaims
which they, whether jointly or severally, may have or claim to have against
the
Administrative Agent or any Bank as of the date hereof.
(b) No
Waiver of Existing Defaults.
Other
than the Delivery Event, no Default or Event of Default exists immediately
before or immediately after giving effect to this Sixth Amendment. Nothing
in
this Sixth Amendment nor any communication between the Administrative Agent,
any
Bank, any Borrower or any of their respective officers, agents, employees or
representatives shall be deemed to constitute a waiver of (i) any Default or
Event of Default arising as a result of the foregoing representation proving
to
be false or incorrect in any material respect; or (ii) any rights or remedies
which the Administrative Agent or any Bank has against any Borrower under the
Credit Agreement or any other Loan Document and/or applicable law, with respect
to any such Default or Event of Default arising as a result of the foregoing
representation proving to be false or incorrect in any material
respect.
6. Binding
Effect.
This
Sixth Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
7. Governing
Law.
This
Sixth Amendment and all rights and obligations of the parties hereunder shall
be
governed by and be construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania without regard to Pennsylvania or federal
principles of conflict of laws.
8. Headings.
The
headings of the sections of this Sixth Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Sixth
Amendment.
9. Counterparts.
This
Sixth Amendment may be executed in any number of counterparts with the same
affect as if all of the signatures on such counterparts appeared on one document
and each counterpart shall be deemed an original.
IN
WITNESS WHEREOF, the Borrowers have caused this Sixth Amendment to Credit
Agreement to be executed under seal by their duly authorized officers, all
as of
the day and year first written above.
ePLUS
inc.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
Senior
Vice President
ePLUS
Group, inc.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
Senior
Vice President
ePLUS
Government, inc.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
Senior
Vice President
ePLUS
Capital, inc.
By:
/s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx
X. Xxxxxxxxx
Title:
President
IN
WITNESS WHEREOF, the Administrative Agent and the Banks have caused
this Sixth Amendment to Credit Agreement to be executed under seal by their
duly
authorized officers, all as of the day and year first written
above.
NATIONAL
CITY BANK
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Title:
Senior
Vice President
BRANCH
BANKING AND TRUST COMPANY OF VIRGINIA
By:
/s/
Xxxxxx Xxxxxxxxxxx
Name:
Xxxxxx
Xxxxxxxxxxx
Title:
Senior
Vice
President
-5-
