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EXHIBIT 10.8.b
INTERCREDITOR AGREEMENT
This Agreement is made this 18th day of May, 1994 by and between AT&T Commercial
Finance Corporation ("AT&T") and The Bank of New York ("Lender")
WITNESSETH:
WHEREAS, AT&T and Lender have extended or intend to extend credit to Manchester
Equipment Co., Inc. having a principal place of business at 00 Xxxxxx Xxxx.,
Xxxxxxxxx, XX 00000 ("Dealer"); and
WHEREAS, in order to secure the repayment of its indebtedness to AT&T and to
Lender, Dealer has granted or has proposed to grant AT&T and Lender liens,
security interests, or other rights (collectively "Security Interests" or a
"Security Interest") with regard to all or certain of Dealer's personal property
(the "Collateral"); and
WHEREAS, AT&T and Lender desire to establish as between themselves the relative
priorities of their respective Security Interests;
NOW, THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, receipt of which is hereby acknowledged,
AT&T and Lender hereby agree as follows:
1. Except as provided in Paragraph 2 herein, any Security Interest in any
and all personal property of Dealer which Lender now has or may
hereafter acquire shall be senior in priority to any Security Interest
in such personal property that AT&T now has or may hereafter acquire.
2.a) Any Security Interest that Lender now has or may hereafter acquire in
inventory, goods, or other personal property of Dealer which was at any
time manufactured, sold, and/or distributed by Compaq, Toshiba or any
of its assignees, successors, parents, subsidiaries, or affiliated
entities or which is part of the Compaq, Toshiba product line or which
bears the trade names, brand names, trade styles, marks or logos of
Compaq, Toshiba or any replacements or substitutions thereof (the "AT&T
Product Line Inventory") shall be subordinate and junior in priority to
any Security Interest that AT&T now has or may hereafter acquire in
such property. For purposes of this agreement, the term "inventory"
shall include all inventory as defined in the Uniform Commercial Code
currently in effect in the State of New Jersey, whether now owned or
hereafter acquired by Dealer and i) all parts, accessories,
attachments, additions, replacements, substitutions, and accessions
thereto or therefor (wherever located and whether or not affixed to
realty), and ii) all proceeds payable or to become payable under any
policy of insurance relating thereto.
b) My Security Interest in Dealer's accounts (as that term is defined in
Section 9-106 of the Uniform Commercial Code currently in effect in the
State of New Jersey) which AT&T now has or may hereafter acquire, shall
be subordinate and junior in priority to any Security Interest of
Lender in such accounts. For purposes of this agreement, an account
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shall be deemed to have arisen when the goods are shipped or when an
invoice for the goods has been transmitted.
3. AT&T and Lender shall each use reasonable efforts to give the other
prompt written notice of any default by Dealer under any agreement with
AT&T or Lender, any notification of default forwarded to Dealer and any
cure waiver, or resolution of any such default. The failure by either
party to give the other party notice pursuant to this paragraph shall
not affect in any manner the relative rights, priorities, or
subordinations set forth in this Agreement.
4. Lender will not seek to enforce its Security Interest in Collateral in
which AT&T holds a senior Security Interest until Lender has been
advised in writing by AT&T that Dealer's indebtedness to AT&T has been
fully paid and satisfied. AT&T will not seek to enforce its Security
Interest in Collateral in which Lender holds a senior Security Interest
until AT&T has been notified in writing by Lender that Dealer's
indebtedness to Lender has been fully paid and satisfied. This
paragraph shall not be applicable if the forbearance contemplated
herein by AT&T or Lender will have the effect of giving a creditor or
other person not a party to this Agreement rights which are superior to
the rights of AT&T or Lender.
5. The subordinations, relative rights and priorities set forth herein
shall be applicable irrespective of the time, manner or perfection of
the Security Interests of AT&T and Lender. Such subordinations relative
rights and priorities shall not be applicable unless all holders of
Security Interests which are senior to Lender's Security Interest but
junior to AT&T's Security Interest subordinate (by way of intercreditor
agreement or otherwise) their Security Interests to that of lender.
Such subordinations, relative rights and priorities shall not apply to
any item of Collateral as to which a Security Interest is invalid,
unperfected or avoidable. Except as specifically provided herein, the
subordinations and establishment of rights herein shall in no way be
deemed to be a waiver of either party's rights under any agreement or
law.
6. This Agreement may be terminated by either party upon sixty (60) days'
prior written notice to the other party. Any such termination shall be
effective on the date following the date that written notice of the
termination is dispatched. No termination of this Agreement shall
affect or impair any of the rights or priorities existing prior to the
effective date of termination with regard to any Collateral.
7. This Agreement is solely for the benefit of AT&T and Lender and shall
be binding upon those parties and their respective successors and
assigns. AT&T and Lender may rely on this Agreement in extending or
continuing to extend credit to Dealer. This Agreement is not intended
to, nor shall it be construed as, benefitting any other party,
including without limitation, Dealer or any guarantor of Dealer's
obligations.
8. No failure or delay by either party to exercise any right or remedy
under this Agreement shall operate as a waiver of any such right or
remedy. The rights and remedies set forth herein shall be cumulative
and not exclusive of any other rights or remedies that AT&T
