INTERCREDITOR AGREEMENT

 

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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. E