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.


 


	
  American Trust

  	
  Multi-Party
  Blocked Account Agreement

  
	
  (Requires
  Default Notice)

  



 


1

















 


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


 


2

















 


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
FedWire deposits) are provisional, subject to verification and final
settlement.  Information and data
reported pursuant to any Service may be received prior to final posting and
confirmation and is subject to correction. 
Customer agrees that all such data is for informational purposes and is
not to be construed as final posting information and that the Depositary shall have no liability
for the content of payment-related information. 
If the Depositary does
not receive final settlement for an ACH entry, the Depositary shall be entitled to a refund from the Customer
in the amount of the credit to the Customer’s account and the originator will
not be considered to have paid the amount of the entry to the Customer.  The Rules do not require the Depositary to provide the Customer
with notice that the Depositary
has received an ACH entry.


 


16.           Return
of Deposits.  The Depositary may return or refuse to
accept all or any part of a deposit or credit to Customer’s account at any time
and will not be liable to Customer for doing so even if


 


3

















 


such action causes
outstanding checks to be dishonored and returned or funds transfers to be
rejected.  Refused deposits will be
returned to Customer.


 


17.           Electronic
Presentment.  Customer acknowledges
that its account may be debited on the day an item is presented by electronic
or other means, or at an earlier time based on notification received by the Depositary that an item drawn on
the account has been deposited for collection in another financial
institution.  A determination of the
account balance for purposes of making a decision to dishonor an item for
insufficiency of available funds may be made at any time between the receipt of
such presentment or notice and the time of return of the item, and no more than
one such determination need be made.


 


18.           Notice
of Unauthorized Transaction and Adverse Claims.  Unless the Customer notifies the Depositary in writing of any item
or debit that is unauthorized, altered, erroneous or otherwise unenforceable
against the Customer within twenty-one (21) days after the Depositary sends or makes available to the Customer a
statement or other notice describing the item or debit, the Customer shall be
barred from making any claims against the
Depositary in connection with such item or debit.  Except for the claims and interest of the
Secured Party and the Customer in the Account, the Depositary does not know of any lien on or claim to, or
interest in, the Account as of the date of this Agreement.  If any person asserts any lien, encumbrance
or adverse claim (including any writ, garnishment, judgment, warrant of
attachment, execution or similar process) against the Account, the Depositary will promptly notify
the Secured Party and the Customer thereof.


 


19.           [Intentionally
Omitted]


 


20.           Amendments
and Waivers.  This Agreement may be
amended or waived only in writing signed by the Customer, the Secured Party and
the Depositary.


 


21.           Assignment.  Customer may not assign or transfer any of
its rights or obligations under this Agreement. 
The Depositary may assign
or transfer its rights and obligations to any subsidiary of American Trust and
Savings Bank or any successor thereto. 
This Agreement shall bind the respective successors and assigns of the
parties and shall inure to the benefit of their respective successors and
assigns.


 


22.           Termination.  (a) The Depositary, upon thirty (30) days notice to each of the other
parties, may terminate this Agreement. 
Any claim or cause of action of any party against any other relating to
this Agreement which existed at the time of termination shall survive the
termination.  All mail received after the
date specified in such notice shall be returned by the Depositary to the Secured Party by first class mail or such
other means mutually agreeable to the Secured Party and the Depositary.


 


(b)           Except
as provided in the foregoing paragraph (a), this Agreement shall remain in
effect until receipt by the Depositary
of written notices from the Secured Party in substantially the form of Exhibit A
hereto (a “Notice of Termination”).  The
rights and powers granted to the Secured Party in this Agreement are powers
coupled with an interest and will not be affected by the insolvency or
bankruptcy of Customer nor by the lapse of time.  This Agreement shall terminate as to all
parties upon receipt by the Depositary
of a Notice of Termination signed by the Secured Party.  The termination of this Agreement shall not
terminate the Account or alter the obligations of the Depositary or Customer to each other pursuant to any other
agreement with respect to the Account.


 


23.           Entire
Agreement.  This Agreement
constitutes the entire agreement and understanding, and supersedes all prior
agreements and understandings, between the Customer, the Secured Party and the Depositary relating to the
services provided pursuant to this Agreement as of the date of this Agreement.


 


4

















 


24.           Notices.  Any notices given pursuant to this Agreement
shall be given by any commercially reasonable means and all notices shall be
effective when received.  Each written
notice shall be addressed to the relevant address appearing below or at another
address specified in a written notice by one party to the other.


 


If to Customer:


 


Diamond Jo Worth, LLC

400 E. 3rd Street, Ice Harbor

P.O. Box 1750

Dubuque, IA  52004-1750

Attn: Natalie Schramm, CFO

Telecopier No.: (563) 690-2190


 


 


If to the Secured Party:


 


U.S. Bank National
Association, as Trustee

60 Livingston Avenue

St. Paul, MN  551107-2292

Internal mail EP-MN-WS3C

Attention:  Corporate Trust Department

Telecopier No.:  (651) 495-8097


 


If to the Depositary:


 


American Trust and Savings Bank

895 Town Clock

Dubuque, IA 52001

Attn:  Robert Peacock

Telecopier No.:  (563) 582-1841


 


25.           Counterparts.  This Agreement may be executed by the Secured
Party, the Customer and the Depositary individually or in several separate
counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.


 


[signature pages follow]


 


5

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized officers or representatives as of the date first set forth above.


 


 


	
   

  	
  American Trust and
  Savings Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert I. Peacock

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
						



 


6

















 


	
   

  	
  CUSTOMER:

  
	
   

  	
   

  
	
   

  	
  Diamond Jo Worth, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
					



 


7

















 


	
   

  	
  SECURED PARTY:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  solely in its capacity as Trustee (and not individually)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


8

















 


EXHIBIT A


 


Notice of
Termination


 


[Letterhead of
Secured Party]


 


[Date]


 


[Name and Address of
Financial Institution]


Attention:


 


Re:  Termination of Deposit Account Control
Agreement


 


Reference is hereby made
to the Multi-Party Blocked Account Agreement, dated as of July 20, 2005
(the “Multi-Party Blocked Account Agreement”), among Diamond Jo Worth, LLC (“Customer”),
you, and U.S. BANK NATIONAL ASSOCIATION, as the Secured Party (a copy of which
is attached).  Capitalized terms used
herein and not defined herein, shall have the meanings assigned to such terms
in such Multi-Party Blocked Account Agreement.


 


You are hereby notified
that the Multi-Party Blocked Account Agreement is terminated with respect to
the undersigned and you have no further obligations to the undersigned thereunder.  Notwithstanding any previous instructions to
you, you are hereby instructed to accept all future directions with respect to
the Items and Account from Customer. 
This notice terminates any obligations you may have to the undersigned
with respect to the Collateral; however nothing contained in this notice shall
alter any obligations which you may otherwise owe to Customer pursuant to any
other agreement.


 


You are instructed to
deliver a copy of this notice by facsimile transmission to Customer.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, solely in its

  capacity as Trustee (and not individually),

  as the Secured Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


cc:           Diamond
Jo Worth, LLC