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Exhibit 10.6.b
GENERAL LOAN AND SECURITY AGREEMENT
Plainview, New York Dec. 2, 1993
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(Banking Office)
FOR VALUE RECEIVED, and in order to induce THE BANK OF NEW YORK
(hereinafter referred to as the "Bank"), in its discretion, to make loans or
otherwise extend credit at any time, and from time to time to, or at the
request of, the undersigned (hereinafter referred to as "Borrower"), whether
the loans or credit so extended shall be absolute or contingent. Borrower,
jointly and severally, if more than one, hereby grants to the Bank, as security
for all present or future obligations or liabilities of any and all kinds of
Borrower to it, whether incurred by Borrower as maker, endorser, drawer,
acceptor, guarantor, accommodation party or otherwise, matured or unmatured,
secured or unsecured, absolute or contingent, joint or several, and howsoever
or whensoever acquired by the Bank (all of which are hereinafter referred to as
the "Obligations"), a security interest in and a lien upon all personal
property and fixtures of Borrower now or hereafter existing or acquired and
wherever located which are of the type which may be collateral under the
Uniform Commercial Code as in effect in the State of New York (hereinafter
referred to as the "Code") on the date hereof, now or hereafter owned or
acquired by Borrower, or in which Borrower may have an interest, including all
goods (other than household goods as such term is defined in 12 CFR Part 227
unless the proceeds of the Obligation secured pursuant hereto are used to
purchase such goods or such Obligation is incurred for a business purpose or to
purchase real property), money, instruments, accounts, contract rights,
documents, chattel paper and general intangibles of Borrower, including but not
limited to any property specified in Schedule A hereto and also including all
products and proceeds of, all accessions to, and substitutions for, all of the
foregoing (all of which shall be hereinafter collectively referred to as the
"Collateral").
Borrower hereby agrees to deliver to the Bank whenever called for by it
such additional collateral security of a kind and of a market value
satisfactory to the Bank, so that there will, at all times, be with the Bank a
margin of security for the payment of all Obligations which shall be
satisfactory to it. In addition to the Bank's security interest in the
Collateral, it shall have, and Borrower hereby grants to the Bank, a security
interest and a lien for all the Obligations in and upon any personal property
of Borrower or in which Borrower may have an interest which is now or may at
any time hereafter come into the possession or control of the Bank, or of any
third party acting on its behalf, whether for the express purpose of being used
by the Bank as collateral security or for safekeeping or for any other or
different purpose, including such personal property as may be in transit by
mail or carrier for any purpose, or covered or affected by any documents in the
Bank's possession or control, or in the possession or control of any third
party acting on its behalf. Borrower hereby authorizes the Bank in its
discretion, at any time, whether or not the Collateral is deemed by it
adequate, to appropriate and apply upon any of the Obligations, whether or not
due, any of such property of Borrower and to charge any of the Obligations
against any balance of any account standing to the credit of Borrower on the
books of the Bank (said additional personal property is also hereinafter
referred to as the "Collateral").
If any of the following events shall occur with respect to any Obligor
(which term shall include Borrower and any endorser or guarantor of any of the
Obligations): (1) the failure of Borrower to furnish satisfactory additional
Collateral upon demand; (2) the failure of any Obligor in the performance of
any of such Obligor's covenants herein or in any instrument, document or
agreement delivered in connection with any Obligation; (3) the death of the
insured under any life insurance policy held as Collateral, or the non-payment
of any premiums on any such life insurance policy; (4) default by any Obligor
with respect to the payment of any Obligation; (5) the insolvency, general
assignment, receivership, bankruptcy, or dissolution of any Obligor or the
filing of any petition by or against any Obligor with respect to any of the
foregoing; (6) the death, dissolution or incompetence of any Obligor; (7) the
financial condition or credit standing of any Obligor shall be or become
materially impaired in the sole opinion of the Bank or any of its officers; (8)
non-payment when due of any other liability of any Obligor; (9) the
commencement of any proceeding, procedure or other remedy supplemental to the
enforcement of a judgment against any Obligor; (10) any representation in any
financial or other statement of any Obligor delivered to the Bank by or on
behalf of any Obligor is untrue or incomplete; or (11) any Obligor shall fail,
on request, to furnish any financial information or to permit inspection of
such Obligor's books and records; then all Obligations shall become due and
payable forthwith, upon declaration to that effect by the Bank, without notice
to Borrower or any other Obligor, anything contained herein or in any other
document, instrument or agreement to the contrary notwithstanding.
Upon failure of Borrower to pay any Obligation when becoming or made
due, as aforesaid, the Bank shall have, in addition to all other rights and
remedies allowed by law, the rights and remedies of a secured party under the
Code as in effect at that time and, without limiting the generality of the
foregoing, the Bank may immediately, without demand of performance and without
notice of intention to sell or of time or place of sale or of redemption or
other notice or demand whatsoever to Borrower, all of which are hereby
expressly waived, and without advertisement (a) sell at public or private sale,
grant options to purchase or otherwise realize upon, in the State of New York,
or elsewhere, the whole or from time to time any part of the Collateral upon
which the Bank shall have a security interest or lien as aforesaid, or any
interest which Borrower may have therein, and (b) exercise any and all rights,
options, powers, benefits or privileges given to the Bank upon the life
insurance policies, if any, held as Collateral. After deducting from the
proceeds of any such sale or other disposition of the Collateral all expenses
(including all reasonable expenses for legal services of every kind and other
expenses as set forth below), the Bank shall apply the residue of such proceeds
toward the payment of any of the Obligations, in such order as the Bank shall
elect, Borrower remaining liable for any deficiency, plus interest thereon,
remaining unpaid after such application. If notice of any sale or other
disposition is required by law to be given, Borrower hereby agrees that a
notice sent at least two days before the time of any intended public sale or of
the time after which any private sale or other disposition of the Collateral is
to be made, shall be reasonable notice of such sale or other disposition.
Borrower also agrees to assemble the Collateral at such place or places as the
Bank designates by written notice.
At any such sale or other disposition the Bank or any other person
designated by the Bank may itself purchase the whole or any part of the
Collateral sold, free from any right of redemption on the part of Borrower,
which right is hereby waived and released.
The Bank may, without any notice to Borrower, in its discretion,
whether or not any of the Obligations be due, in its name or in the name of
Borrower, demand, xxx for, collect and receive any money or property at any
time due, payable or receivable on or on account of or in exchange for, and may
compromise, settle or extend the time of payment of, any of the demands or
obligations represented by any of the Collateral, and may also exchange any of
the Collateral for other property upon the reorganization, recapitalization or
other readjustment of the issuer, maker or other person who is obligated on or
otherwise has liabilities with respect to the Collateral, and in connection
therewith, may deposit any of the Collateral with any committee or depositary
upon such terms as the Bank may in its discretion deem appropriate, and
Borrower does hereby constitute and appoint the Bank Borrower's true and lawful
attorney to compromise, settle or extend payment of said demands or
obligations and exchange such Collateral as Borrower might or could do
personally; all without liability or responsibility for action herein
authorized and taken or not taken in good faith. The Bank is entitled at any
time in its discretion to notify an account debtor or the obligor on any
instrument to make payment to it, regardless of whether or not Borrower had
been previously making collections on the Collateral, and the Bank may take
control of any proceeds of any of the Collateral.
Borrower agrees that the Collateral secures, and further agrees to pay
on demand, all expenses (including reasonable expenses for legal services of
every kind and cost of any insurance and payment of taxes or other charges) of
or incidental to, the custody, care, sale or collection of, or realization
upon, any of the Collateral or in any way relating to the enforcement or
protection of the rights of the Bank hereunder.
Borrower agrees to xxxx its books and records as the Bank shall request
in order to reflect the rights of the Bank granted herein, and the Bank may, in
its sole discretion, take possession of the Collateral at any time, either
prior to or subsequent to a default under any of the Obligations. Borrower
agrees to maintain such insurance on the Collateral as the Bank may require.
The Bank may, without any notice to Borrower, in its discretion, and for its
own benefit, lend, use, transfer or repledge with any person, firm or
corporation all or any part of the Collateral by itself or mingled with the
property of others, in bulk or otherwise. The Bank may, without any notice to
Borrower, sell, assign or transfer any of the Obligations and the Bank's rights
and duties hereunder, and may deliver the Collateral, or any part thereof, to
the assignee or transferee of any of the Obligations, who shall become vested
with all the rights, remedies, powers, security interests and liens herein
given to the Bank in respect thereto; and the Bank shall thereafter be relieved
and fully discharged from any liability or responsibility in the premises.
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The Bank may, without any notice to Borrower, in its discretion,
transfer, or cause to be transferred, all or any part of the Collateral to its
name, or to the name of its nominee, vote the Collateral so transferred, and
receive income and make or receive collections, including money, thereon and
hold said income and collections as Collateral or apply the said income and
collections to any of the Obligations, the manner and distribution of the
application to be made as the Bank shall elect.
Calls for Collateral, demand for payment or notice to Borrower may be
given by leaving same at the address given below or any other address hereafter
filed with the Bank, or by mailing same to such address with the same effect as
if delivered personally. Such notice given in the manner herein provided shall
be effective whether or not received by Borrower. Borrower agrees not to change
any of its places of business, remove any records of Borrower relating to any
of the Collateral or move any of the Collateral without giving the Bank thirty
days' prior written notice.
With respect to the Collateral, the Bank shall be under no duty to send
notices, perform services, exercise any rights of collection, enforcement,
conversion or exchange, vote, pay for insurance, taxes or other charges or take
any action of any kind in connection with the management thereof and its only
duty with respect thereto shall be to use reasonable care in its custody and
preservation while in its possession, which shall not include any steps
necessary to preserve rights against prior parties.
Borrower hereby authorizes the Bank at Borrower's expense to file one
or more financing statements to perfect the security interests granted herein
without Borrower's signature thereon, and Borrower agrees to do, file, record,
make, execute and deliver all such acts, deeds, things, notices, instruments,
and financing statements as the Bank may request in order to perfect and
enforce the rights of the Bank herein.
If at any time it is necessary in the opinion of counsel to the Bank
that any or all of the securities held as Collateral (the "Pledged Securities")
be registered under the Securities Act of 1933, as amended, or that an
indenture with respect thereto be qualified under the Trust Indenture Act of
1939 in order to permit the sale or other disposition of the Pledged
Securities. Borrower shall at the Bank's request and at the expense of Borrower
use the best efforts of Borrower promptly to cause the registration of the
Pledged Securities and the qualification of such indenture and to continue such
registration and qualification as long as deemed appropriate by the Bank.
Borrower hereby authorizes the Bank to date this agreement as of the
date of the granting of any Obligation secured hereby and to complete any blank
space herein (including any blank space in Schedule A) according to the terms
upon which said Obligation was granted.
No failure on the part of the Bank to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Bank of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power.
Each and every right, remedy and power hereby granted to the Bank or
allowed it by law or other agreement shall be cumulative and not exclusive of
any other, and may be exercised by the Bank from time to time.
Borrower and each endorser or guarantor of any of the Obligations
expressly waives presentment and demand for payment, protest and notice of
protest and of non-payment. Unless the text otherwise requires, all terms used
herein shall have the meanings specified in the Code.
THE BANK AND BORROWER HEREBY WAIVE AND AGREE TO WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM INSTITUTED WITH RESPECT
TO ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
The provisions of this agreement shall be construed and interpreted and
all rights and duties hereunder determined in accordance with the laws of the
State of New York.
Every provision of this agreement is intended to be severable: if any
term or provision of this agreement shall be invalid, illegal or unenforceable
for any reason whatsoever, the validity, legality and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
This agreement restates and amends in its entirety, without a break in
continuity, that certain Security Agreement dated December 12, 1988 between
Manchester Equipment Co., Inc. and Barclays Bank of New York, to whose rights,
the Bank has succeeded.
NAME OF ADDRESS OF
BORROWER Manchester Equipment Co., Inc. BORROWER 00 Xxxxxx Xxxx.
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SIGNATURE
OF BORROWER /s/ X. Xxxxxxxxx Hauppauge, New York 11788
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NAME OF ADDRESS OF
BORROWER BORROWER
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SIGNATURE
OF BORROWER
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SCHEDULE A
Property specifically included as "Collateral" for purposes of the within
General Loan and Security Agreement:
