ELEVENTH AMENDMENT TO CREDIT AGREEMENT
ELEVENTH
AMENDMENT TO CREDIT AGREEMENT
This
ELEVENTH AMENDMENT TO CREDIT
AGREEMENT (the “Eleventh Amendment”) dated February 29, 2008, 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, a Ninth Amendment, dated August 22, 2007 and
a
Tenth Amendment, dated November 29, 2007 (as the same may be modified and
amended from time to time, including by this Eleventh 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 their Financial Statements (Quarterly),
for
the periods ending June 30, 2007, September 30, 2007, December 31, 2007
(collectively, the “Waived Delivery Events”), which deliveries, to the extent
otherwise required, were waived through February 29, 2008, pursuant to the
Tenth
Amendment, and have advised the Banks that they will be unable to deliver such
items in the timeframe set forth in the Tenth Amendment (or the Credit
Agreement).
C. The
Borrowers have requested an extension of the delivery date requirements for
the
Waived Delivery Events, 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:
“Eleventh
Amendment”
means the Eleventh Amendment to this Agreement dated February 29,
2008.
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 Eleventh Amendment and any other
documents which the Banks require such Borrower to deliver hereunder (this
Eleventh Amendment and any such additional documents delivered in connection
with the Eleventh 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
Eleventh Amendment have been adopted and taken and, upon their execution, the
Credit Agreement, as amended by this Eleventh 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 Eleventh
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 Eleventh Amendment shall be effective upon
the Administrative Agent’s receipt of the following, each in form and substance
reasonably satisfactory to the Banks:
(a) Eleventh
Amendment. this Eleventh 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 Eleventh 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 Eleventh 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,
2008. Except as stated in the preceding sentence, the execution,
delivery and performance of this Eleventh 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 Eleventh 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 Eleventh Amendment. Nothing in this Eleventh 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 Eleventh Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and
assigns.
7. Governing
Law. This Eleventh 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 Eleventh Amendment are inserted for convenience
only and shall not be deemed to constitute a part of this Eleventh
Amendment.
9. Counterparts. This
Eleventh 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 Eleventh 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 Eleventh 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
