TENTH AMENDMENT TO CREDIT AGREEMENT
TENTH
AMENDMENT TO CREDIT AGREEMENT
This
TENTH AMENDMENT TO CREDIT
AGREEMENT (the “Tenth Amendment”) dated November 29, 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, an Eighth
Amendment dated June 27, 2007, and a Ninth Amendment, dated August 22, 2007
(as
the same may be modified and amended from time to time, including by this Tenth
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) Financial Statements
(Quarterly), for the periods ending June 30, 2007 and September 30, 2007
(collectively, the “Waived Delivery Events”), which deliveries, to the extent
otherwise required, were waived through November 30, 2007, pursuant to the
Ninth
Amendment, and have advised the Banks that they will be unable to deliver such
items in the timeframe set forth in the Ninth 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:
“Tenth
Amendment” means the Tenth Amendment to this Agreement dated November 29,
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 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 Tenth Amendment and any other documents
which the Banks require such Borrower to deliver hereunder (this Tenth Amendment
and any such additional documents delivered in connection with the Tenth
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 Tenth Amendment have
been
adopted and taken and, upon their execution, the Credit Agreement, as amended
by
this Tenth 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 Tenth 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 Tenth Amendment shall be
effective upon the Administrative Agent’s receipt of the following, each in form
and substance reasonably satisfactory to the Banks:
(a) Tenth
Amendment. this Tenth 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 Tenth 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 Tenth 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 February
29,
2008. Except as stated in the preceding sentence, the execution,
delivery and performance of this Tenth 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 Tenth 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 Tenth Amendment. Nothing in this Tenth
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 Tenth Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
7. Governing
Law. This Tenth 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 Tenth Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Tenth
Amendment.
9. Counterparts. This
Tenth 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 Tenth 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 Tenth 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
