Multi-Party Blocked Account AgreementAccount Control Agreement |
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DIAMOND JO, LLC | Diamond Jo Worth, LLC | U.S. Bank National Association | American Trust and Savings Bank. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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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 |
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
to the extent such claims, demands, losses, liabilities and expenses are caused
by the gross negligence or wilful misconduct of the Depositary. To the
extent of
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such
indemnity, the Customer and the Secured Party agree that the Depositary shall
have set-off rights against the Account. The Notice Party agrees to
reimburse the Depositary for any amounts described in subsections (b) and
(c) of this Section in the event and to the extent that there are
insufficient funds in the Account to cover any amounts described in subsections
(b) and (c) of this Section after receiving notice from the
Notice Party pursuant to Section 1, solely to the extent of the amounts
received by the Notice Party from the Account within ten (10) days prior
to such notice by Depositary giving notice. Any amount due under this
indemnity that remains unpaid for thirty (30) days after notice hereof shall
bear interest at the federal funds rate from the date of the notice to the date
of payment. This indemnity shall survive the termination of this
Agreement.
11.
Failure to Perform. None of the Customer, Secured Party or the
Depositary will be liable for any failure to perform its obligations when the
failure arises out of causes beyond its control, including, without limitation,
an act of a governmental regulatory/authority, an act of God, accident,
equipment failure, labor disputes or system failure, provided it has exercised
such diligence as the circumstances require. As between Customer and
Secured Party, if any conflict exists between this Section 11 and any of the
security agreements referred to in the recitals hereto, the provisions of such
security agreement shall govern.
12.
Governing Law. The Secured Party, Customer and the Depositary
agree that with regard to the specific issues of perfection and priority of the
Security Interests only, the Depositary’s “jurisdiction,”
within the meaning of the Uniform Commercial Code of the State of New York
(including, without limitation, Section 9-304(b)(1) thereof), is the
State of New York, while the operations of the Account and the payment of
checks and other Items against the Account shall be governed by the laws of the
State of Iowa. Except as set forth above, this Agreement shall be
construed in accordance with and governed by the laws of the State of New York
and applicable federal laws.
13.
No Extension of Credit. Nothing in this Agreement, unless otherwise
agreed in writing, or any course of dealing between the Customer, the Secured
Party or the Depositary, commits or obligates the Depositary to extend any
overdraft or other credit to the Customer or the Secured Party.
14.
Credit for Deposits. A receipt or similar document may be provided
or made available upon request for all deposits to Customer’s account
(except for remote deposits, e.g., lockbox, night depository services).
However, the amount on such receipt or similar document is based solely on
Customer’s deposit ticket. Credits for all deposits are subject to
final verification and, after review, the Depositary may make adjustments to
Customer’s account for any errors, including any errors appearing on
Customer’s deposit ticket, but has no obligation to do so for de minimus
discrepancies.
15. Final Posting. Entries received through automated clearing house (“ACH”) may be posted to the Customer’s account. All credits received for deposit (other than
