INTERCREDITOR AGREEMENT
EXHIBIT
10.69
This Intercreditor Agreement dated as
of March 26, 2008 (this "Agreement") is hereby made by and between GE
Commercial Distribution Finance Corporation ("Lender"), with a place of
business located at 000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000 and
IBM Credit LLC ("IBM
Credit") with a place of business located at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX
00000 and pertains to certain assets of En Pointe Technologies Sales,
Inc ("Customer").
RECITALS
WHEREAS, IBM Credit and Lender
(each a "Party" and collectively, the "Parties") have each filed or intend to
file a financing statement or statements under the applicable Uniform Commercial
Code ("UCC") giving notice of a security interest in all or some of the assets
of Customer.
WHEREAS, Customer has
requested and arranged for separate financing from IBM Credit and from Lender,
each being secured by certain assets of Customer.
WHEREAS, IBM Credit and Lender
desire to agree to the relative priority of their respective security interests
in and to certain of Customer's assets, whether now owned or hereafter acquired,
which are identified in Attachment A hereto as "IBM Credit Collateral" and
"Lender Collateral" respectively, and each party is willing to subordinate its
security interest in accordance with this Agreement. Attachment A is
incorporated herein and may only be revised or amended upon written agreement
between the parties hereto. Only one Attachment A, the one reflecting the most
recent date, shall be in force at any time, with respect to
Customer.
NOW, THEREFORE, in
consideration of the foregoing and mutual covenants contained herein, the
parties hereby agree as follows:
1. Definition.
"Senior Collateral" shall mean (i) with respect to IBM Credit, the IBM Credit
Collateral and (ii) with respect to Lender, the Lender Collateral.
2. This
Agreement shall amend and restate in its entirety all prior agreements between
the parties hereto relating to their relative priorities and security interests
in Customer's assets.
3. Each
Party hereby expressly subordinates to the other Party all of its right, title
and interest which it may presently have or which it may hereafter acquire from
Customer in and to the other Party's Senior Collateral, wherever located,
whether now owned by Customer or hereafter acquired or existing.
4. This
Agreement shall constitute a continuing agreement of subordination, and the
parties may without notice to the other Party provide financing to or on behalf
of Customer on the basis of this Agreement.
5. The
respective priorities of IBM Credit and Lender in the assets of Customer which
are not covered by this Agreement shall be determined in accordance with the
provisions of the applicable UCC or other applicable law.
6. The
subordinations and priorities specified herein are applicable regardless of the
time, manner, or order of attachment or perfection of security interests, or the
time or order of filing of any financing statements, or the giving or failure to
give notice of the acquisition or expected acquisition of any purchase money
security interest or any other security interest; provided, however, if for any
reason, a security interest of a Party to which a security interest of the other
Party is hereby subordinated is not perfected or is avoidable, then the
subordinations and relative priority agreements provided herein shall not be
effective as to the particular collateral which is the subject of the
unperfected or avoidable security interest.
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7. Each
Party agrees to refrain from taking any action against the other Party's Senior
Collateral to recover the Customers obligations unless it shall have obtained
such other Party's prior written consent or the Customer shall have repaid in
full all of the obligations owed to such other Party and the financing
arrangements between the Customer and such other Party shall have been
terminated.
8. This
Agreement may be terminated by either Party upon written notice at least sixty
(60) days prior to the effective date of the requested termination. No
termination shall impair the rights or priorities, or other interests created or
acquired hereunder by either Party with respect to any of either Party's Senior
Collateral for any credit extended or committed prior to the effective date of
termination.
9. This
Agreement may not be amended except by written agreement between IBM Credit and
Lender, and shall be governed by and construed according to the laws of the
State of New York.
10. This
Agreement shall be binding upon, and shall inure to the benefit of, each of the
parties hereto and their respective successors and assigns.
11. This
Agreement is solely for the benefit of IBM Credit and Lender and is not intended
to, nor shall it be considered as benefiting any other person, including without
limitation the Customer.
12. This
Agreement may be executed in one or more counterparts, each of which when so
executed and delivered (whether by facsimile or otherwise) shall be an original
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the duly
authorized representatives of Lender and IBM Credit have executed this
Intercreditor Agreement as of the date first written above.
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IBM
Credit LLC
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GE
Commercial Distribution Finance Corporation
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By:
/s/ Xxxxxx
Xxxxxxxxxxx
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By: /s/ Xxxxx X.
Xxxxx
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Print
Name: Xxxxxx
Xxxxxxxxxxx
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Print
Name: Xxxxx X.
Xxxxx
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Title:
Regional Credit
Officer
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Title:
Vice President
Operations
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of 2
ATTACHMENT
A TO INTERCREDITOR AGREEMENT
This
Attachment A dated as of March 26, 2008 is to that certain Intercreditor
Agreement dated February 26, 2008 by and between GE Commercial Distribution
Finance Corporation ("Lender") and IBM Credit LLC, ("IBM Credit")
pertaining to certain assets of En Pointe Technologies Sales,
Inc.,
("Customer").
This
Attachment A supplements that certain Intercreditor Agreement referred to above,
and supersedes any other Attachment A, dated or undated, to such Intercreditor
Agreement.
PART
1. IBM Credit Collateral
A. All
of the following assets of Customer, whether now owned or hereafter
acquired:
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(a)
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all
inventory and equipment manufactured or sold by or bearing the trademarks
or trade names of the companies listed in subpart B below; and all parts,
accessories, accessions, exchanges, substitutions, replacements, reclaimed
units, returns and repossessions thereof, and all additions and
attachments thereto, and all documents of title arising therefrom and all
cash and insurance proceeds thereof;
and
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(b)
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all
price protection payments, credits, discounts, incentive payments,
rebates, and refunds which at any time are due to Customer with respect to
or in connection with any inventory and equipment described in (a) above;
and
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(c)
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all
of Customer’s current and future accounts, chattel paper, instruments,
documents, general intangibles, letter of credit rights and other
supporting obligations arising from or related to any sale or lease of any
goods or services by Customer to International Business Machines
Corporation and/or IBM Global Services and all proceeds
thereof.
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B. Names
of Companies
International Business Machines
Corporation;
Lenovo (United States)
Inc.;
International Business Machines Global
Services
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ATTACHMENT
A TO INTERCREDITOR AGREEMENT
Customer:
En Pointe Technologies Sales,
Inc.
PART
2. Lender Collateral
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C.
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All
of the assets of Customer, whether now owned or hereafter acquired other
than the IBM Credit Collateral.
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This Attachment may be executed in one
or more counterparts, each of which when so executed and delivered (whether by
facsimile or otherwise) shall be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the duly
authorized representatives of IBM Credit and Lender have executed this
Attachment A as of the date first written above.
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IBM
Credit LLC
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GE
Commercial Distribution Finance Corporation
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By:
/s/ Xxxxxx
Xxxxxxxxxxx
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By:
/s/ Xxxxx X.
Xxxxx
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Print
Name: Xxxxxx
Xxxxxxxxxxx
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Print
Name: Xxxxx X.
Xxxxx
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Title:
Regional Credit
Officer
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Title:
Vice President Operations
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Page 2 of 2
