SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH
AMENDMENT TO CREDIT AGREEMENT
This
SEVENTH AMENDMENT TO CREDIT AGREEMENT (the “Seventh Amendment”) dated March 12,
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 and a Sixth
Amendment dated January 11, 2007 (as the same may be modified and amended from
time to time, including by this Seventh 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 March 15, 2007, pursuant to the Sixth Amendment, and have
advised the Banks that they will be unable to deliver such items in the
timeframe set forth in the Sixth 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:
“Seventh
Amendment”
means
the Seventh Amendment to this Agreement dated March 12, 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 Seventh Amendment and any other documents which the Banks require such Borrower to deliver hereunder (this Seventh Amendment and any such additional documents delivered in connection with the Seventh 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 Seventh Amendment have been adopted and taken and, upon their execution, the Credit Agreement, as amended by this Seventh Amendment will constitute the valid and binding obligations of the Borrower enforceable in accordance with their respective terms;
(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 Seventh Amendment and any other documents which the Banks require such Borrower to deliver hereunder (this Seventh Amendment and any such additional documents delivered in connection with the Seventh 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 Seventh Amendment have been adopted and taken and, upon their execution, the Credit Agreement, as amended by this Seventh 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 Seventh 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
Seventh Amendment shall be effective upon the Administrative Agent’s receipt of
the following, each in form and substance reasonably satisfactory to the
Banks:
(a) Seventh
Amendment.
this
Seventh 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
Seventh 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 Seventh 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 June 30, 2007. Except as stated in the preceding
sentence, the execution, delivery and performance of this Seventh 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 Seventh Amendment, each Borrower acknowledges, agrees, warrants, and represents that:
5. Acknowledgments. To induce the Banks to enter into this Seventh 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 Seventh Amendment. Nothing
in
this Seventh 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
Seventh Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
7. Governing
Law.
This
Seventh 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 Seventh Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Seventh
Amendment.
9. Counterparts.
This
Seventh 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 Seventh 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 Seventh
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 X. Xxxxxxxxxxx
Name:
Xxx
Xxxxxxxxxxx
Title:
Senior
Vice President
