Exhibit 10.5
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "AGREEMENT") made and entered into
as of October 31, 2003, by and between KBK FINANCIAL, INC. (hereinafter "KBK"),
and COMMERCEBANK, N.A., (hereinafter "CREDITOR").
WHEREAS, Creditor and AESP, Inc., a Florida corporation ("AESP") are
parties to that certain Loan Agreement (the "COMMERCEBANK LOAN AGREEMENT") dated
September 23, 1999, as amended; 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 September 23, 1999, as amended (the
"COMMERCEBANK SECURITY AGREEMENT"); and
WHEREAS, KBK and AESP have entered into an account transfer and
purchase agreement (the "PURCHASE AGREEMENT") under the terms of which KBK, 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 KBK, including, without limitation, any such
indebtedness, obligations arising under the Purchase Agreement (collectively,
the "KBK OBLIGATIONS"), AESP has granted to KBK a security interest in all
present and future personal property of AESP; PROVIDED, HOWEVER, the KBK
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 KBK 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 "KBK SUBORDINATED
ACCOUNTS"); (b) all returned goods with respect to AESP's present and future
accounts (other than the KBK 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 KBK Subordinated Accounts), chattel paper or general intangibles (all of
which will hereafter collectively be referred to herein as the "KBK 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. RELEASE OF CREDITOR'S SECURITY INTERESTS. Creditor hereby waives, releases
and discharges any security interest and all other claims or interest that
Creditor may have in all Purchased Accounts, regardless of (a) when KBK's
security interest in the Purchased Accounts became perfected, (b) when the
Purchased Accounts were purchased, (c) the value of the Purchased Accounts, (d)
the consideration given or promised for the Purchased Accounts, or (e) the
amount Creditor is owed by AESP. Creditor also waives any right it might have,
by law or otherwise, to receive notice, or any obligation on the part of KBK to
give notice, of any kind, at any time, of the purchase by KBK of any or all of
the Purchased Accounts.
2. SUBORDINATION OF CREDITOR'S SECURITY INTEREST IN KBK PRIMARY COLLATERAL.
Without limiting or altering the validity or effectiveness of the provisions in
SECTION 1 hereof pertaining to the release and waiver of security interests in
Purchased Accounts, Creditor hereby subordinates its security interest in all
KBK Primary Collateral to the security interest of KBK in the KBK Primary
Collateral and Creditor agrees that its security interest, whenever granted
and/or perfected in the KBK Primary Collateral, will be inferior, junior and
secondary to the security interests held by KBK in the KBK Primary Collateral.
3. SUBORDINATION OF KBK'S SECURITY INTEREST IN CREDITOR PRIMARY COLLATERAL. KBK
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 KBK 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 KBK 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 KBK Subordinated Accounts) shall also constitute KBK Primary
Collateral.
4. DELIVERY OF ACCOUNT PAYMENTS. Creditor agrees that Creditor shall remit to
KBK at the following address all proceeds of accounts constituting KBK Primary
Collateral (including, without limitation, all KBK 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.
c/o KBK Financial, Inc.
X.X. Xxx 000000
Xxxxx, Xxxxxxx 00000-0000
KBK agrees that KBK shall remit to Creditor at the following address all
proceeds of accounts constituting Creditor Primary Collateral which may now or
hereafter be delivered to or otherwise received by KBK from time to time within
3 business days after receipt thereof by KBK:
AESP, Inc.
c/o CommerceBank, N.A.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
5. 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 KBK shall be determined in accordance with the Uniform Commercial Code.
6. 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
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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 KBK,
subsequent to the date of said bankruptcy petition.
7. NO DUTY 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 KBK
to extend or continue to extend financial accommodations to AESP.
8. FINANCIAL CONDITION OF CLIENT. Each party hereto has adequate means to obtain
from AESP on a continuing basis information concerning the financial condition
of AESP and each party hereto is not relying on the other party to provide such
information now or in the future. Each party hereto acknowledges and agrees that
each party hereto is not obligated to keep the other party informed of AESP's
financial condition.
9. RELIANCE. This Agreement is an irrevocable and continuing agreement and KBK
and Creditor may continue to rely upon same in providing financing and other
financial accommodations to or for the benefit of AESP. In connection therewith,
each party may without notice to or consent from the other party hereto and
without impairing the rights and obligations of the parties under this Agreement
(a) release any person or entity now or hereafter liable upon any of the
indebtedness and obligations owing to such party by AESP, (b) renew, extend or
modify the terms of any document or instrument evidencing, governing, securing
or guaranteeing any of the indebtedness and obligations owing to such party by
AESP, and/or (c) provide additional financing to AESP after the date hereof.
10. ENFORCEMENT OF REMEDIES AND NOTICE.
(a) Until termination of this Agreement, Creditor agrees not to (i) take any
action to foreclose, repossess, xxxxxxxx, control or exercise any remedies with
respect to any property included within the KBK Primary Collateral, (ii) not to
join in any petition for bankruptcy or assignment for the benefit of creditors
agreement affecting AESP or any of its assets, or seek to appoint a receiver for
all or any portion of AESP's assets, or (iii) make any contact or
communications, directly or indirectly, (including without limitation
notification or confirmation) with any account debtor or obligor with respect to
any accounts, chattel paper, instruments or general intangibles of AESP other
than solely with respect to accounts not constituting KBK Primary Collateral.
(b) Until termination of this Agreement, KBK agrees not to (i) take any action
to foreclose, repossess, xxxxxxxx, control or exercise any remedies with respect
to any property included within the Creditor Primary Collateral, or (ii) not to
join in any petition for bankruptcy or assignment for the benefit of creditors
agreement affecting AESP or any of its assets, or seek to appoint a receiver for
all or any portion of AESP's assets, or (iii) make any contact or
communications, directly or indirectly, (including without limitation
notification or confirmation) with any account debtor or obligor with respect to
any accounts of AESP other than solely with respect to accounts constituting KBK
Primary Collateral.
(c) Creditor agrees to deliver to KBK, to be recorded, UCC amendments with
respect to any UCC financing statements on file between Creditor and Client in
order to reference that Creditor's security interest in the subject collateral
is subject to the terms and provisions of this Agreement.
(d) KBK agrees to provide Creditor notice (either written or oral) on or before
the day KBK commences exercising its remedies under the Purchase Agreement
against the KBK Primary Collateral. Creditor agrees to provide KBK notice
(either written or oral) on or before the day Creditor commences exercising its
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remedies under the Commercebank Loan Agreement against any Creditor Primary
Collateral. Except as required by the terms of this Agreement, each party hereto
waives its right to receive notification from the other party before the
disposition of collateral under the Uniform Commercial Code.
11. PERFECTION OF SECURITY INTERESTS. The priorities set forth in this Agreement
between each parties collateral shall govern with respect to the parties
notwithstanding if the security interest to which another security interest is
subordinate is voidable for any reason. Each party covenants and agrees not to
take any action to seek to seek to rescind, modify, or circumvent the provisions
of this Agreement in the absence of fraud by the other party directly related to
the transactions described herein.
12. NOTICES. Except as set forth in PARAGRAPH 10 herein, all notices, requests
and other written communications hereunder must be in writing and shall be
deemed to have been properly given (i) upon personal delivery, (ii) on the third
Business Day following the day sent, if sent by registered or certified mail,
provided such is received by the intended party, but if such is not received
because of such party's refusal to accept such delivery, then such shall be
deemed to be received on the date of first refusal, (iii) on the next Business
Day following the day sent, if sent by overnight express courier, provided such
is received by the intended party, but if such is not received because of such
party refusal to accept such delivery, then such shall be deemed to be received
on the date of first refusal, or (iv) on the day sent or if such day is not a
Business Day on the next Business Day after the day sent, if sent by telecopy
providing the receiving party has acknowledged receipt by return telecopy, in
each case, at the following address and/or telecopy number or at such other
address and/or telecopy number as either party may designate for such purpose in
a written notice given to the other party:
If to KBK:
KBK Financial, Inc.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxx, 00000
Attention: Legal Department
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Creditor:
CommerceBank, N.A.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Hills
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
13. RESERVATION OF RIGHTS. No third-party beneficiary rights are or are intended
to be created hereunder, and all understandings, agreements, representations,
and warranties contained herein are solely for the benefit of the parties hereto
and for the benefit of no other parties (including but not limited to AESP). In
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connection therewith, AESP shall not be entitled for any purpose or under any
circumstances to rely upon the failure of KBK or Creditor to comply with the
terms hereof and nothing herein contained shall be deemed to authorize AESP to
take any action not permitted under any agreement between AESP and KBK or
Creditor. Nothing herein is intended to affect or limit in any way the interest
of Creditor or KBK in any or all of the assets of AESP insofar as the rights of
AESP or third parties are involved. The parties hereto specifically reserve all
of their respective rights as against AESP and any third parties.
14. AMENDMENTS AND WAIVERS. No waiver, amendment or other variation of the
terms, conditions, or provisions of this Agreement shall be valid unless in
writing and then only to the extent specifically set forth in such writing.
15. GOVERNING LAW; JURY WAIVER. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
16. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such separate
counterparts shall together constitute but one and the same agreement.
17. SUCCESSORS AND ASSIGNS. Unless otherwise herein provided, this Agreement
shall be binding upon and inure to the benefit of all successors and assigns,
including, without limitation, such transferee of any of the obligations of AESP
to KBK or to Creditor under any agreement or by law. Any transferee of the
obligations or indebtedness owed by Client to Creditor or any part thereof,
shall take such obligations or indebtedness or any part thereof subject to the
provisions of this Agreement.
18. ENTIRE AGREEMENT. This Agreement constitutes the complete and integrated
agreement of both KBK and Creditor with respect to the subject matter hereof,
supersedes all prior or contemporaneous oral agreements, discussions or
negotiations, and may not be orally modified or supplemented by parol or
extrinsic evidence.
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IN WITNESS WHEREOF, the parties hereto by their authorized
agents or officers have caused this Agreement to be executed as of the day and
year first above written.
KBK:
KBK Financial, Inc.
By: /s/
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Name:
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Title:
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Creditor:
Commercebank, N.A.
By: /s/ Xxxx X. Hills
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Name: Xxxx X. Hills
Title: Vice president
ACKNOWLEDGMENT BY AESP
The undersigned, hereby (i) accepts and consents to this Agreement,
(ii) agrees to be bound by all of the provisions thereof, (iii) agrees to
recognize all of the priorities and other rights granted thereby, (iv)
acknowledges and agrees that such agreement may be amended, altered, modified by
KBK and Creditor without notice to or the consent of AESP, and (v) instructs and
authorizes the Creditor and KBK to remit proceeds of accounts which may be
delivered or otherwise received by Creditor and KBK from time to time pursuant
to the terms of Section 3 of the foregoing Agreement.
AESP, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President
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Date: 10/31/03
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