EXHIBIT 10.26
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INTERCREDITOR AGREEMENT DATED APRIL 8,, 1996 AMONG
THE REGISTRANT, IBM CREDIT CORPORATION, AND
BRANCH BANKING AND TRUST COMPANY
Exhibit 10.26
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INTERCREDITOR AGREEMENT
This Intercreditor Agreement ("Agreement") is hereby made this 8th day of
April, 1996, by and between Branch Banking and Trust Company of South Carolina
("Lender"), with a place of business located at Greenville, South Carolina, and
IBM Credit Corporation ("IBM Credit") with a place of business located at
Atlanta, Georgia, and pertains to certain assets of ScanSource, 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 in 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,
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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.
7. Each Party agrees to refrain from taking any action against the other
Party's Senior Collateral to recover the Customer's 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 South Carolina.
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 which
together shall constitute one document. Each such counterparts shall be deemed
to be an original when so executed and delivered to the other Party to this
Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of Lender and IBM
Credit have executed this Intercreditor Agreement as of the date set forth
above.
IBM CREDIT CORPORATION BRANCH BANKING AND TRUST COMPANY OF
SOUTH CAROLINA
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXX X. XXXX
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Print Name: Xxxxxx X. Xxxxxxx Print Name: Xxxxx X. Xxxx
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Title: AOM-Credit Title: VICE PRESIDENT
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ATTACHMENT A TO INTERCREDITOR AGREEMENT
This is Attachment A to that certain Intercreditor Agreement dated April 8,
1996, by and between Branch Banking and Trust Company of South Carolina
("Lender") and IB Credit Corporation ("IBM Credit") pertaining to certain assets
of ScanSource, 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:
(a) all inventory and equipment manufactured or sold by or bearing the
trademarks or tradenames 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
(b) 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
(c) all cash proceeds (excluding, however, accounts and proceeds of
accounts arising from the sale of the IBM Credit Collateral by the Customer) of
the foregoing and insurance proceeds payable by reason of loss or damage to any
of the foregoing.
B. Names of Companies
International Business Machines Corporation
PART 2. Lender Collateral
C. All of the assets of Customer, including, but not limited to; all
inventory, accounts receivable, equipment, furniture, fixtures, general
intangibles, whether now owned or hereafter acquired including proceeds thereof
and any additions or substitutions therefor, EXCEPT those assets described in
PART 1 of this Attachment.
IN WITNESS WHEREOF, the duly authorized representatives of IBM Credit and
Lender have executed this Attachment A on the date set forth above.
IBM CREDIT CORPORATION BRANCH BANKING AND TRUST COMPANY OF
SOUTH CAROLINA
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXX X. XXXX
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Title: AOM-Credit Title: VICE PRESIDENT
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