Fill and Sign the Agreement with Lenders Form

Lock Box Agreement as Cash Management System with Lenders This Lock Box Agreement is made as of ______________ (date) by and among ___________________ (Name of Borrower) , a corporation organized and existing under the laws of the state of ______________, hereinafter referred to as the Borrower, _____________________ (Name of Collateral Agent) , a banking corporation organized and existing under the laws of the United States of America, hereinafter referred to as the as collateral agent (in such capacity and together with any successors in such capacity, hereinafter referred to as the Agent) , and _______________________ (Name of Lock Box Bank) , a banking corporation organized and existing under the laws of the United States of America, hereinafter referred to as the Bank . WHEREAS, the Agent, as administrative and collateral agent, Bank, together with any assignees thereof, hereinafter called the Issuing Lender , and the lenders listed in the Line of Credit Agreement, a copy of which is attached hereto as Exhibit A (together with any assignees of such named lenders, the Line of Credit Lenders , have entered into said Line of Credit Letter Agreement dated ________________ (date) , the Letter Agreement , with the Borrower, pursuant to which the Borrower has entered into a Security Agreement of even date therewith (the Security Agreement ) in favor of the Agent, wherein the Borrower has granted the Agent for the benefit of itself, the Issuing Lender and the Line of Credit Lenders, a security interest in its present and future accounts receivable and all proceeds thereof and deposits collected therefrom; and WHEREAS, the Borrower has agreed that all collections and proceeds of such accounts receivable shall be remitted in kind to the Agent; and WHEREAS, in order to provide for a more efficient and faster collection and deposit of said collections and proceeds, the Agent and the Borrower desire to use the lock box service of the Bank; and WHEREAS, the Bank is willing to provide said service for the Borrower and the Agent commencing as of the date hereof. Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Post Office Box Bank will rent Post Office (the Lock Box ) of the post office located at __________ ______________________________________ (street address, city, state, zip code) , in the name of the Borrower. Customers of the Borrower have been, or will be, instructed to mail their remittances to the Lock Box. 2. Access to Mail Bank will have exclusive and unrestricted access to the Lock Box and will have complete and exclusive authority to receive, pick up and open all regular, registered, certified or insured mail addressed to the Lock Box. On written demand of the Agent, the Bank shall cease its processing of said mail, and shall release same, in kind, to the Agent, without the prior consent of the Borrower, and the Agent shall thereafter process said mail promptly in accordance with this Agreement. The Bank shall not inquire into the Agent's right to make such a demand under any agreement among the Agent, the Line of Credit Lenders and/or the Issuing Lender and the Borrower, and shall be forever released of all obligations with respect to said remittances upon release to the Agent. The Borrower shall have no control whatsoever over any mail, checks, money orders, collections or other forms of remittances received in the Lock Box. Appropriate instructions have been, or will be, given by the Bank to the United States Post Office where the Lock Box is maintained, and such instructions shall not be revoked without the prior written consent of the Agent. Any instruction given to the Bank by the Borrower without the prior or concurrent written agreement of the Agent shall be void and of no force or effect. All mail addressed to the Lock Box will be picked up by the Bank according to its regular collection schedule. 3. Remittance Collection On the day received, the Bank will open all mail addressed to the Lock Box and remove and inspect the enclosures. All checks, money orders and other forms or orders for the payment of money and other collection remittances (hereinafter collectively referred to as checks ) shall be processed by the Bank as follows: A. Missing Date All undated checks will be dated by the Bank as of the postmark date and processed as hereafter provided. B. Postdated Checks postdated up, to three days from date of receipt shall be processed on the date indicated on the check. The Bank shall not deposit checks postdated more than three days, but shall notify the Agent by telephone of such checks and follow the Agent's instructions for disposition of such checks. C. Stale Date Checks dated six months or more prior to the date of collection will not be deposited and shall be sent to the Agent. D. Different Amount Where written and numeric amounts differ, a check will be processed by the Bank only if the correct amount can be determined from the accompanying documents, otherwise the check will not be deposited and shall be sent to the Agent. E. Signature Missing Checks which do not bear the drawer's signature and do not indicate the drawer's identity will not be deposited but shall be sent to the Agent. If, as determined by the Bank, the drawer can be identified from the face of the check, the Bank will deposit and process the check by affixing a stamped impression requesting the drawer bank to contact the drawer for authority to pay. F. Alterations and Restrictions Checks with alterations and checks bearing restrictive notations such as Payment in Full will not be deposited, and the Bank shall notify the Agent of such checks by telephone on the day of receipt and will deposit, hold or forward such checks with accompanying written matter, if any, as requested by the Agent. G. Foreign Banks and Currency Checks drawn in foreign currency will be processed in accordance with the Bank's normal procedure for such checks and the Agent will be notified by advice of any such checks on the date received by the Bank. H. Other Items Any items which the Agent has specifically instructed the Bank in writing not to process will not be deposited and shall be sent to the Agent. Notwithstanding anything to the contrary contained in this Agreement the Bank shall have no obligation to perform services on a basis any different than it performs lock box services in the normal course of business, except with respect to receiving instructions from the Agent rather than the Borrower. 4. Processing Acceptable Checks All checks, except those not acceptable for deposit under the terms of this Agreement, shall be deposited on the day of receipt by the Bank to Account No. _______ (the Collection Account ), which is an account owned and controlled exclusively by the Agent, and all such checks shall be endorsed as follows: Credited to Account Number _________, absence of endorsement supplied and guaranteed by __________ _______________________ (Name of Lock Box Bank) . A. Any funds in the Collection Account will be wired on a daily basis with the following instructions: 1. __________________ (Name of Bank) Money Transfer Division, __________________________________________________________ (street address, city, state, zip code) , Account No.___________ for the account of Borrower; provided, however, that no funds shall be required to be wired unless and until the amount of funds in the Collection Account shall be in excess of an aggregate of $__________, unless the Agent shall, in its sole discretion, otherwise instruct the Bank. 2. All remittance advices, envelopes, and written matter (except as expressly, provided herein) received in the Lock Box together with photocopies of all checks shall be sent to the Borrower and, if requested by the Agent, copies of same shall be sent to the Agent. The Bank shall mail both a deposit advice for all deposits to the Collection Account, on a daily basis, and a statement of account, on a monthly basis, to both the Agent and the Borrower and, if no deposit is made on a bank business day, a deposit advice, correctly dated, will be sent to the Agent and the Borrower with the notation “No Deposit” appearing thereon. In addition, the Bank shall indicate by telephone to the Agent on each Bank business day by 2:30 p.m. (New York City time) the amount of each day's deposit total. 5. Returned Checks Checks deposited in the Collection Account which are returned unpaid because of Insufficient Funds, Uncollected Funds , or the like will be re-deposited by the Bank only once, except that if a returned check exceeds $1,000, the Bank shall not redeposit such check but shall telephone the Agent for further instructions on the day such check is received. If redeposit is not warranted for reasons such as account closed or payment stopped or if a check is returned a second time, the Bank will charge the Collection Account and send a debit advice with the item to the Agent with copies of same to the Borrower. 6. Appointment of, and Acceptance as, Bank The Agent hereby appoints the Bank as its agent to act by and on behalf of the Agent in accordance with the terms of this Lock Box Agreement. The Bank hereby accepts its appointment as the agent for the Agent and hereby acknowledges and agrees: (i) that the Lock Box and the Collection Account and all items at any time deposited in the Lock Box and the Collection Account shall be held therein for the benefit of the Agent and shall be subject to the Agent's security interest as provided in the Security Agreement; and (ii) to perform its functions as the Bank provided herein. 7. Acknowledgment of Security Interest and Control. Borrower and the Bank acknowledge and confirm that the Agent holds a security interest in, and has control within the meaning of ______________________________ (citation of applicable State Code) of all funds now or at any time hereafter deposited into the Lock Box or the Collection Account and all of the Borrower's rights with respect to the Lock Box and the Collection Account and that the same constitute part of the Collateral granted to the Agent to secure performance and payment of the Obligations (as such terms are defined in the Security Agreement). 8. Remittance Received by the Borrower Remittances which are sent directly to or received by the Borrower shall be forwarded to the Lock Box or the Collection Account on the day received. 9. Record Maintenance All deposit checks will be microfilmed (on front and back) by the Bank and retained for five years by the Bank prior to destruction. Photocopies of filmed items will be provided to the Agent or the Borrower on request within the five-year period. 10. Bank Charges All charges of the Bank for services rendered pursuant to this Agreement shall be billed to and paid directly by the Borrower. Said charges shall not be charged against remittances nor shall they be debited to the Collection Account. 11. No Offset The Bank hereby agrees that it will treat all remittances received in the Lock Box in accordance with the terms of this Agreement and it will not offset or assert any claim against the Lock Box or the Collection Account or divert such remittances on account of any obligations owed to the Bank by the Borrower or by the party making the remittance, except as provided in Section 5 hereof. 12. Bank Liability In acting under this Agreement the Bank shall not be liable to the Agent, the Line of Credit Lenders, the Issuing Lender or the Borrower for any error of judgment, or for any act done or step taken or omitted by it in good faith, except for its gross negligence or willful misconduct. 13. Term This Agreement shall continue in full force and effect until termination by the Bank on 60 day's prior written notice to all other parties. The Agent may terminate this Agreement at any time which termination shall be effective on receipt of written notice by the Bank and in the event of such termination, the Agent shall at its option have the sole right to remove mail from the Lock Box. The Borrower shall have no right to unilaterally terminate this Agreement. 14. Modification This Agreement may only be modified by a writing signed by all of the parties hereto. 15. Addresses A. All notices, including phone notice, daily deposit advices, monthly statements of account and copies of all checks and the documents which are to be given or sent to the Agent shall be sent to the following address, and, where applicable, given at the following phone number: Attention: ______________________ Phone: ______________________ B. All notices to the Bank shall be sent to: Attention: ______________________ Phone: ______________________ C. All notices and items which are to be sent to the Borrower shall be sent to: Attention: ______________________ Phone: ______________________ 16. Agent Agreement The Agent agrees that it will indemnify and hold the Bank harmless from any and all loss, liability, expense or damage that the Bank may incur in processing lock box items in accordance with this Agreement, including, without limitation, any loss that the Bank experiences as a result of returned items to the extent the balances in the Collection Account referenced in Section 5 are insufficient to cover such losses or in the event the Borrower fails to pay the Bank charges referenced in Section 10 . 17. Limitation on Liability The Agent and the Borrower acknowledge that the Bank undertakes to perform only such duties as are expressly set forth in this Agreement and those which are normally undertaken by the Bank in connection with lock box processing. Notwithstanding any other provision of this Agreement, it is agreed by the parties that the Bank shall not be liable for any action taken by the Bank or any of its directors, officers, agents or employees in accordance with this Agreement, except for the Bank's or such natural person's gross negligence or willful misconduct. In no event shall the Bank be liable for losses or delays resulting from force majeure, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond its reasonable control or for any indirect, special or consequential damages. 18. Counterparts This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. 19. Effectiveness This Agreement shall become effective upon its receipt by the Agent, properly executed by all of the parties hereto. 20. Governing Law THIS AGREEMENT SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF _________ WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. IN WITNESS WHEREOF, the undersigned have caused this Lock Box Agreement to be duly executed and delivered as of the date first written above. ___________________________ (Name of Agent Bank) By: _________________________ __________________________ (P rinted Name & Office in Bank) _________________________ (Signature of Officer) _________________________ (Name of Lock Box Bank) ____________________________ ____________________________ (P rinted Name & Office in Bank) ___________________________ (Signature of Officer) ___________________________ (Name of Borrower) ____________________________ ____________________________ (P rinted Name & Office in Corporation) ____________________________ (Signature of Officer)