LOCKBOX AGREEMENT

This Lockbox Agreement is dated this ______day of ______, by and between ______, a ______corporation (hereafter referred to as “Borrower”) and

(hereafter referred to as “Lender”).

RECITALS:

Lender has required the execution of this Agreement in connection with the financial accommodations evidenced by that of even date herewith executed by Borrower and Lender and all other documents described therein or executed in connection therewith (the “Loan Documents”). Now, therefore, in consideration of the foregoing by the promises herein, Borrower has agreed to the following terms and conditions:

  1. Lockbox. Borrower is currently receiving monies from the sale of inventory and collection of accounts receivable, in which Lender has security interests. Upon execution of this Agreement, Lender shall establish one or more post office boxes for the receipt of payments on accounts receivable of Borrower. Initially, the following post office boxes will be implemented immediately or within 10 days of execution of this Agreement:

A. (Borrower’s Name)

Post Office Box ______

Salt Lake City, UT 84

The foregoing post office boxes, and all additional or substitute post office boxes established pursuant to this Agreement are hereafter referred to collectively as the “Lockbox.”

Borrower shall notify Borrower’s account debtors that payments to Borrower shall hereafter be sent to the Lockbox, by sending each account debtor a notice, in form attached hereto as Exhibit A. Borrower shall provide Lender, within ten (10) days after the date of this Agreement, copies of the notices as mailed to account debtors. Borrower agrees, during the term of this Agreement, to give similar notice and instructions in relation to all accounts receivables generated in the future. Borrower shall make no effort to redirect payments on accounts from deposit into the Lockbox or otherwise to collect any payment outside the Lockbox, except with the prior written consent of Lender. All proceeds and payments on accounts receivable received directly by Borrower at anytime after the Lockbox is established are held in trust to be verified at Lender and must be remitted immediately to Lender for deposit into the Collateral Account (as defined below), and a weekly reconciliation of all deposits shall be given by Borrower to Lender identifying the invoice to which each such payment relates. Notwithstanding the foregoing, Lender consents to the following exceptions to the requirement that Borrower direct all proceeds and payments on accounts receivable to the Lockbox: (a) in connection with an account for which Borrower requires, for credit reasons, that the account debtor provide to Borrower a post-dated check in advance of the due date of the invoice, Borrower may receive such post-dated check outside of the Lockbox, provided that Borrower delivers to Lender a report of such payments and receipts on a monthly basis, or more frequently as requested by Lender, and further provided that Borrower deliver the post-dated check to the Lockbox when the account is due; and (b) in connection with accounts assigned for collection to a collection agency or to an outside attorney, Borrower may allow such collection agency or attorney to collect payments from account debtors provided that Borrower immediately remit to the Lockbox any proceeds received by Borrower from the collection agency or attorney, and further provided that Borrower delivers to Lender a report of such payments and receipts on a monthly basis, or more frequently as requested by Lender.

  1. Processing Contents of Lockbox. Each business day, Lender or its authorized designees shall remove the contents of the Lockbox and process items in the Lockbox as follows:

(a)  Lender may process items payable to Borrower or a reasonable variation thereof, and reserves the right, in its sole discretion, to determine what is a reasonable variation. Lender will make all reasonable efforts to decipher the payee line on all items. However, if the payee line is not legible, as determined by Lender in its sole discretion, Lender may return the item to Borrower.

(b)  Borrower authorizes Lender, in relation to each check received in the Lockbox, as follows:

(i)  In relation to any check that is undated, Lender may date stamp the check and process as if correctly dated.

(ii)  Lender may, in its discretion, process postdated checks or return them to Borrower.

(iii)  In relation to any check whose written and numerical amounts disagree, Lender may compare the check to the invoice or other materials received with the check. Lender, in its discretion, may process the check for the numeric amount or the written amount, or may choose to return the check Borrower.

(iv)  Checks which do not have the drawer’s signature may be stamped with a request for the drawee bank to contact the Drawer for authority to pay and process.

(v)  If a check contains the legend “paid in full” or any other language that is intended to modify Borrower’s contractual rights, or is payable to a payee other than Borrower, Lender may, in its discretion, deliver the check to Borrower. Notwithstanding the foregoing, Lender shall have no liability for processing a check that contains the legend “paid in full” or any other language that is intended to modify Borrower’s contractual rights.

(vi)  Mail that does not contain any checks will be delivered to Borrower.

(vii)  If a check is received without an accompanying invoice, any related correspondence and other material received with such check will be stapled to the envelope in which it is received.

(viii)  Each business day, copies of all deposit tickets, all tape listings, all rejected checks, and all other instruments and papers referred to in this paragraph will be made available for Borrower to obtain from Lender by 1:30 p.m. of each business day.

  1. Depositing Checks to the Collateral Account. For all processed checks, other than those with respect to which Paragraph 2 provides a different procedure, Borrower authorizes Lender to endorse the checks and to deposit them to Account Number ______maintained by and under the exclusive control of Lender (the “Collateral Account”) on the business day of receipt; provided, however, that for this purpose checks received by Lender at its Operations Center after 9:00 a.m. on a business day will be deemed to have been received on the following business day.
  1. Limitation of Liability. Lender’s liability in connection with the performance of the transactions covered by this Agreement shall be strictly limited as follows:

(a)  In performing its duties hereunder, Lender will exercise due care and will act in good faith. Lender will not be accountable for its failure to perform any of its obligations hereunder, except for its gross negligence or willful misconduct, or that of its employees, officers, or agents. If, as a result of such gross negligence or willful misconduct, Lender is liable for mishandling any item, such liability shall be limited to the lesser of the face amount of any check involved or the amount of Borrower’s direct loss as a result of such mishandling. IN NO EVENT SHALL LENDER BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT, NOTWITHSTANDING NOTICE TO LENDER OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

  1. Security Interest. The Lockbox shall be under the exclusive ownership and control of Lender, and Borrower’s rights in the Lockbox are limited to a license, revocable at will by Lender, for the receipt of payments on accounts receivable of Borrower. Borrower hereby grants to Lender a security interest in and to all funds, instruments and other items received in the Lockbox or in the Collateral Account.
  1. Default. If Borrower is in default under the Loan Documents, or in default under this Agreement, Lender shall have the right, without further notice to or demand upon Borrower, to apply the proceeds of any items received in the Lockbox and/or Collateral Account against the obligations owed to Lender under the Loan Documents.
  1. Power of Attorney. Borrower irrevocably appoints Lender (or any person designed by Lender), until such time as all obligations made by Borrower to Lender are paid in full, as Borrower’s true and lawful attorney-in-fact for all purposes necessary to implement the foregoing Lockbox procedures, with full authority to receive, open and deliver mail addressed to Borrower at the Lockbox, to endorse and negotiate checks and other instruments, receipts and invoices in the name of Borrower (or any reasonably equivalent), and in addition, upon default under the Loan Documents, to make collections, give notices and otherwise to act to implement collection of payments made by account debtors.
  1. Current A/R List. Upon execution of this Agreement, and thereafter on a weekly basis, Borrower will provide Lender with a current updated list of its accounts receivable, identifying account debtors, their mailing addresses and amounts owed.
  1. Costs. The cost of $.25 per item deposited into the Collateral Account will be charged by Lender and will include: pickup, opening, deposit, and a local notification. Borrower understands that postal charges incurred from the mailing of its correspondence will be assessed to its account unless Borrower elects, in writing, to pick up the correspondence from a local Lender office. Borrower will be responsible for a photo copy charge of $.05 per check, and other charges as described on Exhibit B hereto.
  1. Effect of Agreement. Notwithstanding any other provision of this Agreement to the contrary, this Agreement is subject to the terms and conditions of the Loan Documents governing certain loans from Lender to Borrower. This Agreement and the Loan Documents constitute the entire agreement between Borrower and Lender concerning the Lockbox, and may not be modified except by a writing signed by Borrower and Lender.

(Borrower’s Name)

By:

Title:

Lender

By:

Title:

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Lockbox Agreement

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