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Exhibit 10.5
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Agreement") made and entered
into
as of April 21, 2004, by and between
MARQUETTE COMMERCIAL FINANCE, INC.
(hereinafter "MCF"), and BENDES INVESTMENT
LTD., (hereinafter "Creditor").
WHEREAS, Creditor and AESP, Inc., a Florida corporation ("AESP")
are
parties to that certain Loan Agreement (the
"BENDES LOAN AGREEMENT") dated April
16, 2004; and AESP's obligations to
Creditor are secured by AESP's grant of a
security interest in all of AESP's assets
as described in that certain Security
Agreement dated April 16, 2004 (the "BENDES
SECURITY AGREEMENT"); and
WHEREAS, MCF (formerly
known as KBK Financial, Inc.) and AESP have
entered into an account transfer and
purchase agreement (the "PURCHASE
AGREEMENT") under the terms of which MCF,
from time to time, may purchase
accounts receivable of AESP which are
evidenced by invoices dated on or after
July 1, 2003 (each account now or hereafter
purchased under the Purchase
Agreement to be known herein as the
("PURCHASED ACCOUNTS"); and
WHEREAS, to secure all present and future indebtedness obligations
and
liabilities of AESP to MCF, including,
without limitation, any such
indebtedness, obligations arising under the
Purchase Agreement (collectively,
the "MCF OBLIGATIONS"), AESP has granted to
MCF a security interest in all
present and future personal property of
AESP; PROVIDED, HOWEVER, the MCF
Obligations are primarily secured by the
following: (a) all of AESP's accounts
(including the Purchased Accounts) other
than (i) all accounts which are
evidenced by invoices dated before July 1,
2003, (ii) all present and future
accounts owing by foreign account debtors
which are not purchased by MCF under
the Purchase Agreement, and (iii) all
present and future accounts owing by
entities affiliated with Creditor (the
accounts described in clauses (i), (ii)
and (iii) shall be known collectively
herein as the "MCF SUBORDINATED
ACCOUNTS"); (b) all returned goods with
respect to AESP's present and future
accounts (other than the MCF Subordinated
Accounts); (c) all of AESP's present
and future general intangibles, documents,
instruments and chattel paper; and; (
d) all proceeds of inventory sold by AESP
which constitute accounts (other than
the MCF Subordinated Accounts), chattel
paper or general intangibles (all of
which will hereafter collectively be
referred to herein as the "MCF PRIMARY
COLLATERAL"); and
WHEREAS, the parties hereto desires to establish the relative
priorities and manner of enforcing of their
respective security interests in,
and rights with respect to, the property of
AESP; and
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1. SUBORDINATION OF CREDITOR'S SECURITY
INTEREST IN MCF PRIMARY COLLATERAL.
Creditor hereby subordinates its security
interest in all MCF Primary Collateral
to the security interest of MCF in the MCF
Primary Collateral and Creditor
agrees that its security interest, whenever
granted and/or perfected in the MCF
Primary Collateral, will be inferior,
junior and secondary to the security
interests held by MCF in the MCF Primary
Collateral.
2. SUBORDINATION OF MCF'S SECURITY INTEREST
IN CREDITOR PRIMARY COLLATERAL. MCF
hereby subordinates its security interest
in all Creditor Primary Collateral (as
defined below) to the security interest of
Creditor in the Creditor Primary
Collateral and MCF agrees that its security
interest, whenever granted and/or
perfected in the Creditor Primary
Collateral, will be inferior, junior and
secondary to the security interests held by
Creditor in the Creditor Primary
Collateral. As used herein, the term
"CREDITOR PRIMARY COLLATERAL" shall mean
(a) all accounts of AESP which are
evidenced by invoices dated before July 1,
2003, (b) all accounts owing by foreign
account debtors which are not purchased
by MCF under the Purchase Agreement, (c)
all accounts owing by entities
affiliated with Creditor, and (d) all of
AESP's present and future equipment and
inventory; PROVIDED, HOWEVER, inventory
proceeds and returned goods of accounts
(other than MCF Subordinated Accounts)
shall also constitute MCF Primary
Collateral.
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3. DELIVERY OF ACCOUNT PAYMENTS. Creditor
agrees that Creditor shall remit to
MCF at the following address all proceeds
constituting MCF Primary Collateral
(including, without limitation, all MCF
Purchased Accounts) which may now or
hereafter be delivered to or otherwise
received by Creditor from time to time
within 3 business days after receipt
thereof by Creditor:
AESP, Inc.
OR
AESP, Inc.
c/o MCF
c/o MCF
Dept 1267, Lockbox 62600
Bank One
New Orleans, LA
5401 Jefferson Hwy
70162-2600
Harahan, LA 70123
MCF agrees that MCF shall remit to Creditor
at the following address all
proceeds constituting Creditor Primary
Collateral which may now or hereafter be
delivered to or otherwise received by MCF
from time to time within 3 business
days after receipt thereof by MCF:
AESP, Inc.
c/o Bendes Investment Ltd.
1523 Prince's Building
10 Chater Road
Hong Kong, SAR
Attn: Dr. Matthias W. Rickenbach
4. TIME OF PERFECTION. The priorities
specified herein are applicable
irrespective of the time or order of
attachment or perfection of any 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 the expected acquisition
of any purchase money or other security
interest. Except as herein otherwise
specifically provided, priority of the
respective security interests of Creditor
and MCF shall be determined in accordance
with the Uniform Commercial Code.
5. EFFECT OF BANKRUPTCY. This Agreement
shall remain in full force and effect
notwithstanding the filing or a petition
for relief by or against AESP under the
Bankruptcy Code and shall apply with full
force and effect with respect to all
collateral acquired by AESP, or obligations
incurred by AESP to Creditor or MCF,
subsequent to the date of said bankruptcy
petition.
6. NO DUTV TO LEND. Nothing contained
herein, or in any prior agreement or
understanding shall be deemed to create any
duty on the part of Creditor or MCF
to extend or continue to extend financial
accommodations to AESP.
7. FINANCIAL CONDITION OF CLIENT. Each
party
