LOCKBOX AND ACCOUNT CONTROL AGREEMENT
THIS LOCKBOX AND ACCOUNT CONTROL
AGREEMENT (this “Agreement”) is made as of January 21, 2011, by and among Lightyear Network Solutions,
LLC (the “Depositor”), Fifth Third Bank, an Ohio
banking corporation (the “Bank”), and First Savings Bank, F.S.B.
(the “Factor”).
RECITALS
WHEREAS, the Factor has made financial
accommodations to the Depositor, which are secured by, among other things, the
proceeds of the Depositor’s accounts receivable; and
WHEREAS,
the Factor and the Depositor have advised the Bank that the Factor is making or
has made financial accommodations to Lightyear Network Solutions,
Inc., a Nevada corporation (hereinafter referred to as the “Borrower”),
which financial accommodations are of direct or indirect benefit to the
Depositor, and which financial accommodations are secured by, among other
things, the proceeds of the Depositor’s accounts receivable; and
WHEREAS, at the Factor’s request the
Depositor has established a special account at the Bank (as described below, the
“Limited Access Lockbox Account”); and
WHEREAS, the Factor and the Depositor
have agreed that the transfer of funds out of the Limited Access Lockbox Account
shall be restricted as set forth below.
NOW, THEREFORE, in consideration of the
foregoing premises and for other valuable consideration the receipt of which is
hereby acknowledged, the parties agree as follows:
AGREEMENT
1.
The
Limited Access Lockbox Account. The Limited
Access Lockbox Account is Account No. XXXXXX4745 and the title of the Limited
Access Lockbox Account shall be: “Lightyear Network Solutions, LLC
for the Benefit of First Savings Bank, F.S.B., as Factor, Lockbox
Account.”
The Depositor and the Factor agree to
promptly provide the Bank with any documents, resolutions, and/or instructions
needed to establish or maintain the Limited Access Lockbox Account and the
Lockbox (as such term is defined below). The Depositor hereby agrees
to abide by and be bound by the terms of the Lockbox Terms and Conditions as set
forth in the Fifth Third Treasury Management Terms and Conditions as established
by the Bank from time to time and incorporated herein by reference (“Lockbox
Agreement”).
2.
Accounts;
Payment of Account Charges and Service Charges. The Depositor
shall open and maintain, or has opened and maintained, at the Bank an account,
titled in its own name bearing Account No. XXXXXX4950 (the “Operating Account”)
that the Bank may debit for any fees, charges or expenses owed to the Bank
(collectively, the “Account Charges”) and from which the Bank may obtain
reimbursement for any deposit items that are posted or transferred in error or
returned to the Limited Access Lockbox Account or the Operating Account, for any
overdrafts created on the Limited Access Lockbox Account or the Operating
Account, and for any reversals or cancellations of payment orders and other
electronic funds transfers arising in the Limited Access Lockbox Account or the
Operating Account (collectively, the “Adjustments”).
The Depositor and Factor acknowledge
that in order for the Bank to provide the services contemplated in this
Agreement, the Bank may, from time to time, use other internal Bank services and
products (collectively, the “Other Services”). The Factor and the
Depositor agree that the Depositor may be required to purchase such Other
Services and pay to the Bank the Bank’s customary charges for the Other
Services.
At all time, the Depositor shall keep
no less than $50,000 in funds in the Operating Account to pay the Account
Charges and Adjustments (the “Minimum Funding Balance”).
3.
Lockbox. For the purpose
of receipt of funds into the Limited Access Lockbox Account, the Depositor has
established a lockbox, under the Lockbox Agreement, into which the Bank will
accept remittances, such lockbox commonly known as the “Lockbox”.
4. Notices;
Delivery of Statements; Authorization. Any notices
required under this Agreement shall be directed as set forth below and
effective: (a) when received if delivered via U.S. Mail, postage
prepaid, or overnight courier; and (b) when confirmed received by the
recipient if delivered via facsimile transmission.
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If
to the Bank:
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Fifth
Third Bank
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5050
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OR
Depositor Services
Fax:
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AND
Fifth
Third Bank
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AND
Fifth Third Bank
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Fax:
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If
to Depositor:
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Lightyear
Network Solutions, LLC
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If
to the Factor:
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First
Savings Bank, F.S.B.
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Attn: ▇▇▇
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The Depositor authorizes the Bank to
release any and all information about the Limited Access Lockbox Account and the
Lockbox to the Factor upon the Factor’s request. The Depositor and
the Factor instruct the Bank to send an original or a copy of the periodic
account statement related to the Limited Access Lockbox Account to the notice
addresses for Factor and Depositor set forth in this paragraph. Bank
shall provide Factor with such information relating to the Restricted Access
Lockbox Account as Factor shall reasonably request, including, without
limitation, the ability to access such information online.
5.
Restrictions
on Depositor. Without further
consent from the Depositor, the Depositor irrevocably authorizes and instructs
the Bank to comply with the Factor’s instructions to transfer funds from the
Limited Access Lockbox Account to Factor or an account maintained by Factor, as
directed by Factor in its sole discretion. The Depositor waives its
authority to transfer, withdraw, or otherwise disburse funds from the Limited
Access Lockbox Account and acknowledges that the Factor shall have exclusive
control of funds credited to the Limited Access Lockbox Account. The
Depositor waives its authority to modify or terminate this Agreement, the
Limited Access Lockbox Account or the Lockbox Agreement, documents, resolutions,
and account instructions, without the Factor’s express written
permission.
6.
Security Interest;
Control. Depositor hereby grants a security interest and lien
to, and control in favor of, Factor in the Limited Access Lockbox Account and
Lockbox. This Agreement constitutes notice to Bank of Factor’s
security interest and lien in (a) the Lockbox and the Limited Access Lockbox
Account; (b) all contract rights and claims in respect of the Lockbox and the
Limited Access Lockbox Account; and, (c) all cash, checks, money orders and
other items of value payable to Depositor now or hereafter paid, deposited,
credited, held (whether for collection, provisionally or otherwise) or otherwise
in the possession or under the control of Bank or any agent, bailee or custodian
of Bank, including, without limitation, contained or deposited into the Lockbox
or the Limited Access Lockbox Account, and all proceeds of the foregoing
(collectively, “Receipts”). Without limiting the forgoing, but
subject to Section 7, as collateral security for the payment of all obligations
and liabilities of Depositor to Factor, Depositor hereby assigns, pledges and
transfers to and grants exclusive control over to Factor all of Depositor’s
rights, title and interest in and to the Limited Access Lockbox Account and the
Lockbox, and all sums now or hereafter on deposit in or payable or withdrawable
from the Limited Access Lockbox Account, and/or the Lockbox, and any interest
accrued or payable thereon, and grants to Factor a security interest
therein. Bank acknowledges that this Agreement constitutes notice of
Factor’s security interest in the Limited Access Lockbox Account, the Lockbox
and the Receipts and the proceeds thereof and that this Agreement is a control
agreement for the purpose of perfecting Factor’s security interest in the
Limited Access Lockbox Account. Subject to Section 7, Depositor
hereby agrees that Bank, on behalf of Factor, shall be entitled to exercise,
upon the written instructions of Factor, any and all rights that Factor may have
under its loan documents with Depositor or under applicable law with respect to
the Lockbox, the Limited Access Lockbox Account, and all Receipts and the
proceeds thereof. Subject to Section 7, Depositor hereby authorizes
and irrevocably appoints Factor as Depositor’s
attorney-in-fact. Subject to Section 7, Factor may take any action
which Factor deems necessary or appropriate to preserve or protect Factor’s
assignment of, pledge of, and security interest in and control of the Limited
Access Lockbox Account and the Lockbox, including, without limitation, the
transfer of the Limited Access Lockbox Account and/or the Lockbox to Factor’s
own name or the name of any designee. Subject to Section 7, Depositor
agrees that Factor shall have exclusive possession and control of the Limited
Access Lockbox Account and, at its option by providing written notice to the
Bank, exclusive control over the Lockbox. Subject to Section 7,
Depositor hereby agrees with Factor and Bank that only payments to Factor’s
order may be drawn under the Limited Access Lockbox Account. Subject
to Section 7, without further consent by the Depositor, only Factor shall have
the right, power and authority (which right, power and authority is
irrevocable), to demand, collect, withdraw, receipt for or ▇▇▇ for all amounts
that enter any of the Limited Access Lockbox Account and Lockbox, and the
Limited Access Lockbox Account and the Lockbox shall each be deemed to be
blocked in favor of and controlled by Factor and the Lockbox and the Limited
Access Lockbox Account shall be under the sole dominion and control of
Factor. Subject to Section 7, Depositor shall not have any control
over the use of or any right to withdraw any amount from the Limited Access
Lockbox Account or the Lockbox.
7.
Trigger
Events. Notwithstanding any provision of this Agreement to the
contrary (including without limitation, Sections 5 and 6), unless and until the
Factor has notified the Bank in writing (including by e-mail or fax) that an
“Event of Default” has occurred under any agreement between the Factor and the
Borrower or the Factor and the Depositor, (a) the Depositor shall have the right
(without any consent from the Factor) to access, transfer, withdraw or otherwise
disburse funds from the Limited Access Lockbox Account and the Lockbox, and (b)
the Factor shall not exercise its right to exercise exclusive control over the
Limited Access Lockbox Account or the Lockbox.
8.
Bank’s
Setoff Waiver. The Bank waives
any right of setoff that it may have with respect to funds credited to, deposit
it or otherwise contained in the Limited Access Lockbox Account or the
Lockbox. The parties agree that this setoff waiver will not affect
the Bank’s rights or ability to debit the Operating Account for any Account
Charges and Adjustments and to maintain the Minimum Funding
Balance.
9.
Duty to
Inspect. The Factor and
the Depositor will use their respective commercially reasonable efforts to
inspect all Limited Access Lockbox Account statements and reports when received,
and immediately notify the Bank of any errors. The Factor or the
Depositor must notify the Bank within sixty (60) calendar days after receipt of
the statement or report containing or reflecting an error. Except to
the extent required by law or except for manifest errors, the failure by the
Factor or the Depositor to notify the Bank of errors within this time limit will
relieve the Bank of any and all liability with respect to such an
error.
10. Deposit
Account Terms. The Depositor
agrees to comply with the terms applicable to the Other Services and the deposit
accounts described herein as established by the Bank from time to
time. If there is any inconsistency between the terms of this
Agreement and the agreements applicable to the deposit accounts and Other
Services or the Lockbox Agreement, the terms of this Agreement shall
prevail.
11. Force
Majeure. The Bank shall
not be responsible for actions or omissions caused by events beyond its control,
including without limitation fire, casualty, breakdown in equipment or failure
of telecommunications or data processing services, lockout, strike, unavoidable
accidents, acts of God, riot, war, or the issuance or operation of any adverse
governmental law, ruling, regulation, order or decree, or an emergency that
prevents the Bank from operating normally.
12. Indemnification
of the Bank. Provided the Bank
has not engaged in willful misconduct or been grossly negligent, the Depositor
agrees to indemnify and hold the Bank harmless from and against any and all
claims, demands, losses, liabilities, actions, causes of action and expenses
(including without limitation attorneys fees (which may include the allocable
cost of the Bank’s Legal Department) and court costs), incurred by the Bank in
connection with the Limited Access Lockbox Account, the Operating Account, and
this Agreement. This indemnity shall survive the termination of this
Agreement.
13. Limits on
the Bank’s Liability to the Factor. The Factor agrees
that the Bank’s liability to Factor for failing to perform in accordance with
the terms of this Agreement for a single claim shall be limited to the actual,
direct damages, proximately caused by the Bank’s error or
omission. The Bank shall not be liable in any event to the Factor for
any special, incidental or consequential damages which the Factor may incur or
suffer in connection with this Agreement, regardless of whether the Bank knew of
the likelihood of such loss or damage, and regardless of the basis, theory, or
nature of the delays resulting from computer malfunction, systems failures,
interruption of communications facilities, or other causes not reasonably within
the Bank’s control. This paragraph shall survive the termination of
this Agreement.
14. Termination
of Agreement. Except as
otherwise stated, the parties agree that this Agreement, the Factor’s authority
to control the Limited Access Lockbox Account and the Lockbox, and the Bank’s
obligations to the Factor and the Depositor pursuant to this Agreement, will
only terminate: (a) after the Bank receives the Factor’s
instructions (as provided in paragraph 4) to terminate this Agreement and turn
control of the Limited Access Lockbox Account to the Factor; (b) upon
thirty (30) calendar days notice by the Bank (as provided in paragraph 4) to the Depositor and the Factor; or
(c) twenty (20) calendar days following notice from Bank to Factor and
Depositor that Factor and/or Depositor are in default or breach of the terms of
this Agreement or any other agreement with the Bank and such default has not
been cured within such twenty (20) calendar day period. Upon
termination of this Agreement for any reason, the Limited Access Lockbox Account
shall be transferred into Factor’s name, and disbursement of the remaining
Limited Access Lockbox Account funds shall be made to the Factor, and Bank
agrees to continue for sixty (60) calendar days to forward all collections in
the Lockbox to Factor. The Depositor may not unilaterally instruct
the Bank to terminate this Agreement or close the Limited Access Lockbox Account
or the Lockbox.
15. Headings;
Severability. The headings of
the paragraphs of this Agreement are for convenience only and shall not be
construed as adding meaning to the provisions. If a court determines
that any part of this Agreement is unenforceable, the parties agree that only
the portion of this Agreement that is so determined to be unenforceable and
shall be stricken and that the remaining parts shall be unaffected.
16. Choice of
Law; Venue. The parties agree
that: (a) this Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of Ohio (the “Governing State”); and
(b) that the venue for any action related to this Agreement shall be; State
Court - Any state or local court of the Governing State, Federal
Court - United States District Court for the District of the Governing
State, or at the option of the Bank, any court in which the Bank shall initiate
legal or equitable proceedings and which has subject matter jurisdiction over
the matter in controversy, shall have exclusive jurisdiction to hear and
determine any claims or disputes among the parties pertaining directly or
indirectly to this Agreement or to any matter arising in connection with this
Agreement.
17. Independent
Contractor. The Factor and
the Depositor agree that in performing the services under this Agreement, the
Bank will be acting as an independent contractor and not as an employer,
employee, partner, or agent of the Factor or the Depositor.
18. Financial
Information. Depositor agree
to promptly furnish to the Bank, from time to time financial statements and such
other information regarding its operations, assets, business affairs, and
financial condition, as Bank may reasonably request.
19. Rights in
Limited Access Lockbox Account. (a) Subject to Section
7, Depositor cannot, and will not, withdraw any monies from the Limited Access
Lockbox Account and Lockbox until such time as Factor advises Bank in writing
that Factor no longer claims any interest in the Limited Access Lockbox Account
and the Lockbox and the monies deposited and to be deposited in the Limited
Access Lockbox Account; and (b) Depositor will not permit the Limited Access
Lockbox Account or the Lockbox to become subject to any other pledge,
assignment, lien, charge or encumbrance of any kind, nature or description,
other than Factor’s security interest referred to herein.
20. Representations. Depositor
represents, warrants and covenants that (i) at no time shall either the Limited
Access Lockbox Account or the Lockbox be pledged or assigned to or control given
to any person or entity other than the Factor, and (ii) it has not assigned or
granted a security interest in or control of the Limited Access Lockbox Account
or the Lockbox or any funds now or hereafter deposited in the Limited Access
Lockbox Account or the Lockbox to any person or entity other than the Factor,
excepting that certain Lockbox and Account Control Agreement dated as of March
17, 2010, by and between the Depositor, the Bank, and the Factor.
21. Bank
Acknowledgements. Bank agrees that the Limited Access Lockbox Account and
the Lockbox is held in the name of the Depositor and that, to the best of its
knowledge, no other person or entity is shown by its records to have an interest
in the Limited Access Lockbox Account or the Lockbox. To the best of
its knowledge, Bank has not executed any document or otherwise agreed to block
the Limited Access Lockbox Account or the Lockbox in favor of any person other
than Factor, or acknowledge a lien or security interest of or control by any
person other than Factor in the Limited Access Lockbox Account and the
Lockbox. Bank agrees that it will not execute any document or
otherwise agree to block the Limited Access Lockbox Account or the Lockbox in
favor of any person other than Factor, or acknowledge a lien or security
interest of or control by any person other than Factor in the Limited Access
Lockbox Account or the Lockbox.
22. Miscellaneous. This
Agreement may be amended only by a writing signed by Depositor, Factor and
Bank. This Agreement may be executed in counterparts; all such
counterparts shall constitute but one and the same agreement. This
Agreement controls in the event of any conflict between this Agreement and any
other document or written or oral statement. This Agreement
supersedes all prior understandings, writings, proposals, representations and
communications, oral or written, of any party relating to the subject matter
hereof. To the extent that the terms of any agreement governing the
Account or the Lockbox are inconsistent with the terms and provisions of this
Agreement, the terms and provisions of this Agreement shall be deemed to be
controlling. The Recitals to this Agreement to this Agreement are
incorporated herein and a part of this Agreement.
23. WAIVER OF JURY
TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE
WAIVED, EACH PARTY HERETO HEREBY ABSOLUTELY, IRREVOCABLY AND UNCONDITIONALLY
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO
THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH
THE OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS
AGREEMENT, THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY TO
THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
SIGNATURE
PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have
executed this Agreement to be executed, as a sealed instrument, on the date set
forth above.
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LIGHTYEAR
NETWORK SOLUTIONS, LLC
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By:
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/S/
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, III
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Name:
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J.
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Title:
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CEO
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FIFTH
THIRD BANK
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By:
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/S/
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Name:
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Title:
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AVP/TMO
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FIRST
SAVINGS BANK, F.S.B.
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By:
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/S/
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▇▇▇
▇▇▇▇▇, Vice President
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