Exhibit 10.43
Multi-Party Blocked Account
Agreement
This Multi-Party Blocked Account
Agreement (this “Agreement”), dated as of July 19,
2005, is made by and among Diamond Jo Worth, LLC
(“Customer”), U.S. Bank National Association, as
Trustee as Secured Party (the “Secured Party”) and U.S.
Bank National Association, as securities intermediary (the
“Securities Intermediary”).
The Customer maintains a securities
account at the Securities Intermediary with the following number:
Account No. 790235001 (the “Account”) in which
Account financial assets (as defined in
Section 8-102(a)(9) of the Uniform Commercial Code as in
effect in the State of New York (the “UCC”) may be
credited and which for purposes hereof shall include, without
limitation, all cash, checks, securities and other assets credited
to the Account).
The Customer has granted to the
Secured Party, pursuant to the Pledge and Security Agreement, dated
as of July 19, 2005, among, inter alia , the
Customer and the Secured Party, security interests (the
“Security Interests”) in the Account and the financial
assets credited thereto. Customer, the Secured Party and the
Securities Intermediary are entering into this Agreement to perfect
the Security Interests in the Account and the financial assets
credited thereto. The Securities Intermediary will follow the
terms of this Agreement unless it is otherwise ordered by a court
order or there is a bankruptcy filing in which the trustee in
bankruptcy orders the Securities Intermediary to do anything
contrary to this Agreement. Subject to the terms of this
Agreement, the Securities Intermediary recognizes the Security
Interests in the Account and the financial assets credited
thereto.
1. Account . As
used in this Agreement, “Notice Party” means the
Secured Party. Until such time as the Securities Intermediary
shall have received any “entitlement order” (within the
meaning of Section 8-102(a)(8) of the UCC) relating to
the Account or any financial asset credited thereto from the Notice
Party in a Timely Manner, the Securities Intermediary shall comply
with entitlement orders of the Customer in respect of the Account
and any or all financial assets credited thereto. As used in
this Agreement, “Timely Manner” means receipt of the
relevant entitlement order at a time and in a manner affording the
Securities Intermediary a reasonable opportunity to act thereon.
After the Securities Intermediary has received an entitlement order
originated by the Notice Party directing the disposition of funds
in the Account, and until such time as the Securities Intermediary
has received a contrary notice from the Notice Party:
(a)
The Securities Intermediary shall
comply with entitlement orders without further consent by Customer
or any other person. The Notice Party shall have the
exclusive right to provide entitlement orders to the Securities
Intermediary as to the disposition of all financial assets then or
thereafter credited to the Account, and the Securities Intermediary
shall not comply with any entitlement order from the Customer or
any other person in connection with the Account unless consented to
in writing by the Notice Party and received by the Securities
Intermediary in a Timely Manner;
(b)
The Securities Intermediary, subject
to its applicable availability policy in effect from time to time,
will transfer on each business day all immediately available funds
credited to the Account by wire transfer, or other method of
transfer mutually agreeable to the Securities Intermediary and the
Notice Party, as the Notice Party may from time to time direct the
Securities Intermediary in accordance with the Securities
Intermediary’s usual and customary procedures for funds
transfers; and
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U.S. Bank
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Multi-Party Blocked Account
Agreement
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(Requires Default
Notice)
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(c)
The Customer agrees it shall not
make any attempt to access the Account or financial assets credited
thereto or issue any entitlement order in respect
thereof.
2.
Reliance Upon
Instructions . The
Customer and the Notice Party, as the case may be, are responsible
(severally and not jointly to the extent applicable to it) for, and
the Securities Intermediary may rely upon, the contents of any
entitlement order or other notice or instructions that the
Securities Intermediary reasonably believes in good faith to be
from the Customer or Notice Party, as the case may be, without any
independent investigation. To the extent commercially
reasonable and consistent with the Securities Intermediary’s
current practice, the Securities Intermediary shall have no duty to
inquire into the authority of the person in giving such entitlement
order, notice or instruction.
3.
Information
. The Securities Intermediary
will from time to time provide to Customer information regarding
the Account. For an additional fee, the Securities
Intermediary will provide certain duplicate information as may be
reasonably requested by the Secured Party.
4.
Financing Documents
. The Securities Intermediary
shall not be deemed to have any knowledge (imputed or otherwise)
of: (a) any of the terms or conditions of any security
agreement or any document referred to therein or relating to any
financing arrangement between the Customer and the Secured Party,
or any breach thereof, or (b) any occurrence or existence of a
default. The Securities Intermediary has no obligation to
inform any person of such breach or to take any action in
connection with any of the foregoing, except such actions regarding
the Account or the financial assets credited thereto as are
specified in this Agreement. The Securities Intermediary is
not responsible for the enforceability or validity of the Security
Interests in the Account and the financial assets credited
thereto.
5.
Set-Off . The Customer and the Secured Party
authorize the Securities Intermediary to debit the Account, from
time to time, for: (a) financial assets credited to the
Account, including, without limitation, any automated clearinghouse
transactions which are returned for any reason; and (b) any
amount then due from the Customer or the Secured Party to the
Securities Intermediary under this Agreement or related to the
Account, the financial assets credited thereto and the services
provided hereunder and the Account, provided the Securities
Intermediary advises the Customer and the Secured Party of the
amount thereof in accordance with the Securities
Intermediary’s then current practice. Subject to the
terms of this Agreement, the Securities Intermediary agrees that
each of the Security Interests is superior to any right of set-off,
security interest or other lien which the Securities Intermediary
might otherwise have in the Account or the financial assets
credited thereto.
6.
Rules . Use of the services provided pursuant to
this Agreement is subject to all applicable laws, regulations,
rules and funds transfer systems and clearing arrangements,
whether or not the Securities Intermediary is a party to them
(“Rules”). Funds will be made available pursuant
to the Rules and the Securities Intermediary’s
applicable availability policies.
7.
Recording
Conversations .
Customer, the Secured Party or the Securities Intermediary may
record, store and use all telephone conversations and data
transmissions.
8.
Charges and Fees
. The Customer will pay the
Securities Intermediary’s charges and fees applicable to this
service as specified in writing or as otherwise agreed by the
Customer and the Securities Intermediary and such charges and fees
may be charged directly against the Account.
9.
Liability . The Securities Intermediary will be
liable only for direct damages if it fails to exercise ordinary
care. The Securities Intermediary shall be deemed to have
exercised ordinary care if its action or failure to act is in
conformity with general banking usages or is otherwise a
commercially
reasonable practice of the banking
industry. The Securities Intermediary shall not be liable for
any special, indirect or consequential damages, even if
