Exhibit 10.45
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
American Trust and Savings Bank (the
“Depositary”).
The Customer maintains a demand
deposit account at the Depositary with the following number:
Account No. 201162, ABA No. 073900522 (For Credit To:
Diamond Jo Worth, LLC) (the “Account”) into which
Account checks and other items of payment (“Items”) are
deposited.
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 Items and the
Account. Customer, the Secured Party and the Depositary are
entering into this Agreement to perfect the Security Interests in
the Items and the Account. The Depositary 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 Depositary to do anything contrary to this
Agreement. Subject to the terms of this Agreement, the
Depositary recognizes the Security Interests in the Items and the
Account.
1. Account . As
used in this Agreement, “Notice Party” means the
Secured Party. Until such time as the Depositary shall have
received notice from the Notice Party in a Timely Manner, funds on
deposit from time to time in the Account shall be disbursed as the
Customer may direct. As used in this Agreement, “Timely
Manner” means receipt of the relevant notice, notice
revocation or instruction at a time and in a manner affording the
Depositary a reasonable opportunity to act thereon. After the
Depositary has received a notice or any instructions originated by
the Notice Party directing the disposition of funds in the Account,
and until such time as the Depositary has received contrary notice
from the Notice Party:
(a)
The Depositary shall comply with
such instructions without further consent by Customer or any other
person. The Notice Party shall have the exclusive right to
direct and provide instructions to the Depositary as to the
disposition of all amounts then or thereafter deposited in the
Account, and the Depositary shall not comply with any instruction
from the Customer in connection with the Account unless consented
to in writing by the Notice Party and received by the Depositary in
a Timely Manner;
(b)
The Depositary, subject to its
applicable availability policy in effect from time to time, will
transfer on each banking day all immediately available funds on
deposit in the Account by wire transfer, or other method of
transfer mutually agreeable to the Depositary and the Notice Party,
as the Notice Party may from time to time direct the Depositary in
accordance with the Depositary’s usual and customary
procedures for funds transfers; and
(c)
The Customer agrees it shall not
make any attempt to access the Account or funds therein.
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 Depositary may rely upon, the contents of any notice or
instructions that the Depositary 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 Depositary’s
current practice, the Depositary shall have no duty to inquire into
the authority of the person in giving such notice or
instruction.
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American Trust
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Multi-Party Blocked Account
Agreement
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(Requires Default
Notice)
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3.
Information
. The Depositary will from
time to time provide to Customer information regarding the
Account. For an additional fee, the Depositary will provide
certain duplicate information as may be reasonably requested by the
Secured Party.
4.
Financing Documents
. The Depositary 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 Depositary 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 as are
specified in this Agreement. The Depositary is not
responsible for the enforceability or validity of the Security
Interests in the Items and the Account.
5.
Set-Off . The Customer and the Secured Party
authorize the Depositary to debit the Account, from time to time,
for: (a) Items, 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 Depositary under this Agreement or related to the Items, the
Account and the services provided hereunder and the Account,
provided the Depositary advises the Customer and the Secured Party
of the amount thereof in accordance with the Depositary’s
then current practice. Subject to the terms of this
Agreement, the Depositary agrees that each of the Security
Interests is superior to any right of set-off, security interest or
other lien which the Depositary might otherwise have in the Items
or the Account.
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 Depositary is a party to them
(“Rules”). Funds will be made available pursuant
to the Rules and the Depositary’s applicable
availability policies.
7.
Recording
Conversations .
Customer, the Secured Party or the Depositary may record, store and
use all telephone conversations and data transmissions.
8.
Charges and Fees
. The Customer will pay the
Depositary’s charges and fees applicable to this service as
specified in writing or as otherwise agreed by the Customer and the
Depositary and such charges and fees may be charged directly
against the Account.
9.
Liability . The Depositary will be liable only for
direct damages if it fails to exercise ordinary care. The
Depositary 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 Depositary shall not be liable for any
special, indirect or consequential damages, even if it has been
advised of the possibility of such damages.
10.
Indemnification
. The Customer agrees to
indemnify the Depositary for, and hold the Depositary harmless
from, all claims, demands, losses, liabilities and expenses,
including reasonable legal fees and expenses, resulting from or
with respect to this Agreement, the Items, the Account and the
services provided hereunder, including, without limitation:
(a) any action taken, or not taken, by the Depositary in
regard thereto in accordance with the terms of this Agreement;
(b) Items, including, without limitation, any automated
clearinghouse transactions, which are returned for any reason, and
any adjustments; and (c) any failure of the Customer to pay
any invoice or charge of the Depositary for services in respect to
this Agreement, the Items, the Account or any amount owing to the
Depositary from the Customer with respect thereto or to the service
provided hereunder, except
