NINTH AMENDMENT TO CREDIT AGREEMENT
NINTH
AMENDMENT TO CREDIT AGREEMENT
This
NINTH AMENDMENT TO CREDIT
AGREEMENT (the “Ninth Amendment”) dated August 22, 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, a Fifth Amendment dated November 15, 2006, a Sixth Amendment
dated January 11, 2007, a Seventh Amendment dated March 12, 2007, and an Eighth
Amendment dated June 27, 2007 (as the same may be modified and amended from
time
to time, including by this Ninth 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 (or will not) deliver the following documents as required
by
Section 5.1 of the Credit Agreement: (a) their 2007 annual audited financial
statements required prior to July 31, 2007; and (b)
their “Projections” for 2008, required prior to June 30, 2007; and
(c) Financial Statements (Quarterly), for the periods ending June 30, 2006,
September 30, 2006, December 31, 2006 and June 30, 2007 (collectively, the
“Waived Delivery Events”), which deliveries, to the extent otherwise required,
were waived through June 30, 2007, pursuant to the Eighth Amendment, and have
advised the Banks that they will be unable to deliver such items in the
timeframe set forth in the Eighth Amendment (or the Credit
Agreement).
C. The
Borrowers have requested an extension of the delivery date requirements for
the
Waived Delivery Events, and the waiver, in its entirety, of the required
delivery of the 2007 Projections, 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:
“Ninth
Amendment” means
the Ninth Amendment to this Agreement dated August 22, 2007.
(c) Amended
Definition. The following definition in Article 1 of the Credit
Agreement is hereby amended and restated to read in its entirety as
follows:
“Permitted
Debt” means (a) Debt of Borrowers under this Agreement, including but not
limited to the Notes, (b) Subordinated Debt, (c) nonrecourse Debt incurred
in
connection with an Ordinary Course Sale or Financing, (d) recourse Debt
expressly permitted by this Agreement (including as permitted in connection
with
an Ordinary Course Sale or Financing), and (e) Debt relating to direct or
contingent obligations of the Borrowers arising under letters of credit,
so long
as the aggregate principal amount of such obligations does not exceed $1,000,000
at any time.
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 correct in
all
material respects on and as of the date hereof as if made on and as of the
date
hereof, except to the extent such representation or warranty was made as of
a
specific date;
(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 Ninth Amendment and any other documents
which the Banks require such Borrower to deliver hereunder (this Ninth Amendment
and any such additional documents delivered in connection with the Ninth
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 Ninth Amendment have
been
adopted and taken and, upon their execution, the Credit Agreement, as amended
by
this Ninth 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 Ninth 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 Ninth Amendment shall be
effective upon the Administrative Agent’s receipt of the following, each in form
and substance reasonably satisfactory to the Banks:
(a) Ninth
Amendment. this Ninth 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 Ninth Amendment, if any;
(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 Ninth 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 November
30,
2007. Except as stated in the preceding sentence, the execution,
delivery and performance of this Ninth 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 Ninth 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 Waived Delivery
Event, no Default or Event of Default exists immediately before or immediately
after giving effect to this Ninth Amendment. Nothing in this Ninth
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 Ninth Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
7. Governing
Law. This Ninth 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 Ninth Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Ninth
Amendment.
9. Counterparts. This
Ninth 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 Ninth 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 Ninth 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 (successor in interest by merger to Branch Banking
And
Trust Company of Virginia)
By: /s/ Xxxxx
X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Senior Vice President
