Delaware
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001-34167
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54-1817218
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(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $.01 par value |
PLUS |
NASDAQ Global Select Market |
10.1 |
Second Amendment, dated as of March 10, 2023, to First Amended and Restated Credit Agreement dated as of October 13, 2021, as amended, by and among ePlus Technology,
inc., ePlus Technology Services, inc., SLAIT Consulting, LLC, certain of the Company’s subsidiaries as guarantors, Wells Fargo Commercial Distribution Finance, LLC as administrative agent, and the Lenders party thereto (filed herewith) *
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99.1 |
Press Release dated March 13, 2023 (filed herewith)
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document).
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ePlus inc.
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By: /s/ Elaine D. Marion
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Elaine D. Marion
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Chief Financial Officer
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(a)
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Each New Lender agrees to be bound by the provisions of the Credit Agreement (as amended by this Amendment) and the other Loan
Documents as a Lender, and agrees that it shall, upon the effectiveness of this Amendment, become a Lender for all purposes of the Credit Agreement and the other Loan Documents to the same extent as if originally a party thereto, with
Floorplan Loan Allocations and Revolving Loan Allocations as set forth on Schedule 2.1(a) – Floorplan Loan Allocations and Schedule 2.1(b) – Revolving Loan Allocations to the Credit Agreement, each as amended by this Amendment. Upon the
effectiveness of this Amendment, each New Lender shall have the rights and obligations of a Lender under the Credit Agreement (as amended by this Amendment) and under the other Loan Documents.
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(b)
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Each New Lender (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after the effective date of this Amendment, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and shall have the obligations of a Lender thereunder, (iii) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis, independent investigation, and decision to enter into
this Amendment, the Credit Agreement, and the other Loan Documents, and to make the Loans under the Credit Agreement, (iv) it has, independently and without reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate (A) made its own credit analysis and independent investigation of the financial and other circumstances surrounding the Credit Parties, the Collateral, the Obligations and all aspects of the
transactions evidenced by or referred to in the Credit Agreement and the other Loan Documents, or has otherwise satisfied itself thereto and (B) made its own decision to enter into this Amendment, the Credit Agreement, and the other Loan
Documents, and to make the Loans under the Credit Agreement, and (vii) if it is a Non-U.S. Lender Party, attached to the Amendment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by each New Lender; (b) agrees that (i) it will, independently and without reliance on the Agent, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by
it as a Lender; and (c) irrevocably appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto.
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(a)
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A duly executed counterpart of this Amendment signed by each of the parties hereto;
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(b)
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Guarantors shall have executed and delivered the Acknowledgement and Agreement of Guarantors;
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(c)
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Resolutions of the board of directors or board of managers, as applicable, of each Borrower and Guarantor, dated as of the
date hereof, which authorize, direct, and empower the authorized officers to make, execute, and deliver this Amendment;
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(d)
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A certificate of secretary for each Credit Party and Guarantor, certifying as to the authority, incumbency and signature of
the officers of such Credit Party executing this Amendment and all other documents, agreements and certificates in connection with this Amendment;
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(e)
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Agent shall have received satisfactory evidence that all corporate and other proceedings that are necessary in connection
with this Amendment have been taken to the Agent’s satisfaction;
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(f)
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Certificates of Good Standing for each Credit Party issued by the state of incorporation or organization of such Credit
Party, all as of a recent date; and
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(g)
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Such other matters as Agent may require.
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(a)
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Each Credit Party has the corporate or limited liability company (as applicable) power and authority to execute and deliver
this Amendment and the Transaction Documents to which it is a party (and perform its respective obligations hereunder and thereunder). This Amendment and the Transaction Documents to which such Credit Party is a party have been duly
authorized by such Credit Party. This Amendment, the Transaction Documents to which such Credit Party is a party, and the Credit Agreement (as amended by this Amendment) each constitute the legal, valid and binding obligation of such
Credit Party, enforceable against such Credit Party in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar law affecting creditor’s rights generally and general
principles of equity;
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(b)
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The execution, delivery and performance by Credit Parties of this Amendment and the Transaction Documents have been duly
authorized by all necessary corporate or limited liability company action and do not (i) require any authorization, consent or approval by any Governmental Authorities, (ii) violate any Requirement of Law, or (iii) result in a breach of or
constitute a default under any indenture or loan or loan agreement or any other agreement, lease or instrument to which any Credit Party is a party or by which they or their properties may be bound or affected.
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(c)
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Each Credit Party’s representations and warranties set forth in the Credit Agreement and in the other Loan Documents are true,
correct and complete in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality, such representation or warranty is true and correct in all respects) on and as of the date
hereof except to the extent that such representations and warranties expressly related solely to an earlier date, in which case such representations were true, correct and complete in all material respects (or, if any such representation or
warranty is by its terms qualified by concepts of materiality, such representation or warranty is true and correct in all respects) (on and as of such earlier date;
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(d)
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No Default or Event of Default has occurred or is continuing as of the date hereof or shall occur immediately after giving
effect to this Amendment;
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(e)
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Each Credit Party’s Organization Documents continue in full force and effect and have not been amended or otherwise modified
since October 13, 2021;
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(f)
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All Obligations now due or payable by Borrowers to Lenders or Agent are unconditionally owing by Borrowers to Lenders and
Agent, without offset, defense or counterclaim of any kind, nature or description whatsoever; and
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(g)
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Since September 30, 2022, there has not occurred any Material Adverse Effect.
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(a)
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In further consideration of the execution of this Amendment by Agent and Lenders, each Credit Party (on behalf of itself and
its shareholders, directors, members, managers, partners, officers, affiliates, successors and assigns) hereby unconditionally, absolutely and irrevocably forever remises, releases, acquits, satisfies and forever discharges Agent and
Lenders and their respective successors, assigns, affiliates, parent entities, officers, employees, directors, shareholders, agents and attorneys (collectively, the “Releasees”) from any and all claims, demands, liabilities, disputes, damages, suits, controversies, penalties, fees, costs, expenses, actions and causes of action (whether at law or in
equity) and obligations of every nature whatsoever, whether liquidated or unliquidated, known or unknown, matured or unmatured, fixed or contingent (all of the foregoing, “Claims”), that such Credit Party (or any of its respective shareholders, directors, members, managers, partners, officers, affiliates, successors or assigns) occurring on or before the
date hereof, from any or all of the Releasees, which arise from or relate to any actions, omissions, conditions, events, or any other circumstances whatsoever on or prior to the date hereof, including, without limitation, with respect to
the Obligations, any Collateral, the Credit Agreement, the transactions relating thereto or hereto, and any other Loan Document, other than for the gross negligence or willful misconduct of Agent as finally determined in a non-appealable
order of a court of competent jurisdiction.
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(b)
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Each Credit Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and
complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release. Each Credit Party agrees that no fact,
event, circumstance, evidence or transaction that could now be asserted or that may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
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(c)
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Each Credit Party hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that such Credit Party will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by such Credit Party pursuant to the foregoing in this
Section 5.
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(a)
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References. Upon the effectiveness
of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Credit Agreement, as amended hereby. The term “Loan Documents” as
defined in Section 1.1 of the Credit Agreement shall include (in addition to the Loan Documents described in the Credit Agreement) this Amendment
and the other Transaction Documents.
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(b)
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No Waiver. The failure of Agent
(or, as applicable, Lenders), at any time or times hereafter, to require strict performance by Credit Parties of any provision or term of the Credit Agreement, this Amendment or the other Loan Documents shall not waive, affect or diminish
any right of Agent (or, as applicable, Lenders) hereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver by Agent or Lenders of a breach of this Amendment or any Event of Default under the
Credit Agreement shall not, except as expressly set forth in a writing signed by Agent, suspend, waive or affect any other breach of this Amendment or any Event of Default under the Credit Agreement, whether the same is prior or subsequent
thereto and whether of the same or of a different kind or character. None of the undertakings, agreements, warranties, covenants and representations of the Credit Parties contained in this Amendment, shall be deemed to have been suspended
or waived by Agent or Lenders unless such suspension or waiver is (i) in writing and signed by Agent and (ii) delivered to the Credit Parties. In no event shall Agent’s and Lenders’ execution and delivery of this Amendment establish a
course of dealing among Agent, Lenders, Credit Parties or any other obligor, or in any other way obligate Agent or Lenders to hereafter provide any amendments or waivers with respect to the Credit Agreement. The terms and provisions of
this Amendment shall be limited precisely as written and shall not be deemed (x) to be a consent to any amendment or modification of any other term or condition of the Credit Agreement or of any of the Loan Documents (except as expressly
provided herein); or (y) to prejudice any right or remedy which Agent or Lender may now have under or in connection with the Credit Agreement or any of the Loan Documents.
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BORROWERS:
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EPLUS TECHNOLOGY, INC.
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By:
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/s/ Elaine D. Marion
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Print Name:
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Elaine D. Marion
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Title:
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Chief Financial Officer
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EPLUS TECHNOLOGY SERVICES, INC.
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By:
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/s/ Elaine D. Marion
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Print Name:
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Elaine D. Marion
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Title:
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Chief Financial Officer
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SLAIT CONSULTING, LLC
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By:
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/s/ Elaine D. Marion
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Print Name:
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Elaine D. Marion
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Title:
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Chief Financial Officer
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WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC,
as Agent, Swingline Lender and as a Lender
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By:
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/s/ Fahad Haroon
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Name:
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Fahad Haroon |
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Title:
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Its Duly Authorized Signatory
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REGIONS BANK, as a Lender
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By:
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/s/ Alberto Casasus
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Name:
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Alberto Casasus
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Title:
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Director
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TRUIST BANK, as a Lender
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By:
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/s/ Cathleen Marston
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Name:
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Cathleen Marston
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Title:
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Vice President
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CITIZENS BANK, N.A., as a Lender
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By:
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/s/ Sarah Becker
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Name:
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Sarah Becker |
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Title:
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Vice President |
COMERICA BANK, as a Lender
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By:
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/s/ Robert Wilson
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Name:
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Robert Wilson |
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Title:
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Senior Vice President |
EPLUS GROUP, INC.
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By:
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/s/ Elaine D. Marion
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Print Name:
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Elaine D. Marion
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Title:
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Chief Financial Officer
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EPLUS INC.
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By:
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/s/ Elaine D. Marion
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Print Name:
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Elaine D. Marion
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Title:
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Chief Financial Officer
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