Exhibit 10.44


 


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. 790235002 (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


 


	
  U.S. Bank

  	
  Multi-Party
  Blocked Account Agreement

  
	
  (Requires
  Default Notice)

  



 

















 


(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 it has been advised of the possibility of such damages.


 


10.           Indemnification.  The Customer agrees to indemnify the Securities Intermediary for, and
hold the Securities Intermediary
harmless from, all claims, demands, losses, liabilities and expenses, including
reasonable legal fees and expenses, resulting from or with respect to this
Agreement, the Account, the financial assets credited thereto and the services
provided hereunder, including, without limitation: (a) any action taken,
or not taken, by the Securities
Intermediary in regard thereto in accordance with the terms of this
Agreement; (b) financial assets credited to the Account, 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
Securities Intermediary for services in respect to this Agreement, the
Account, the financial assets credited thereto or any amount owing to the Securities Intermediary 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 Securities Intermediary. 
To the extent of such indemnity, the Customer and the Secured Party
agree that the Securities Intermediary
shall have set-off rights against the Account. 
The Notice Party agrees to reimburse the Securities Intermediary 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 Securities Intermediary 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 Securities
Intermediary 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
Securities Intermediary agree that with regard to the specific issues of
perfection and priority of the Security Interests only, the Securities Intermediary’s “jurisdiction,” within the meaning
of the UCC (including, without limitation, Section 8-110(d) thereof),
is the State of New York, while the operations of the Account and the payment
of checks against the Account shall be governed by the laws of the State of
Minnesota.  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
Securities Intermediary, commits or obligates the Securities Intermediary 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 financial
assets credited to the 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
financial assets credited to the Account are subject to final


 

















 


verification and, after
review, the Securities
Intermediary may make adjustments to the Account for any errors,
including any errors appearing on Customer’s entitlement orders, 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 Account.  All financial assets received for credit to
the Account (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 Securities Intermediary
shall have no liability for the content of payment-related information.  If the
Securities Intermediary does not receive final settlement for an ACH
entry, the Securities Intermediary
shall be entitled to a refund from the Customer in the amount of the financial
assets that are to be credited to the 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 Securities Intermediary to provide
the Customer with notice that the
Securities Intermediary has received an ACH entry.


 


16.           Return
of Deposits.  The Securities Intermediary may return
or refuse to accept all or any part of a financial asset to be credited to
Customer’s account at any time and will not be liable to Customer for doing so
even if such action causes outstanding checks to be dishonored and returned or
funds transfers to be rejected.  Refused
financial assets will be returned to Customer.


 


17.           Electronic
Presentment.  Customer acknowledges
that the 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 Securities Intermediary 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 Securities Intermediary 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 Securities Intermediary 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 Securities Intermediary in
connection with such item or debit. 
Except for the claims and interest of the Secured Party and the Customer
in the Account, the Securities
Intermediary 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
Securities Intermediary 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 Securities Intermediary.


 


21.           Assignment.  Customer may not assign or transfer any of
its rights or obligations under this Agreement. 
The Securities Intermediary
may assign or transfer its rights and obligations to any subsidiary of U.S.
Bank National Association 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 Securities Intermediary, 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 Securities Intermediary
to the Secured Party by first class mail or such other means mutually agreeable
to the Secured Party and the Securities
Intermediary.


 


(b)           Except
as provided in the foregoing paragraph (a), this Agreement shall remain in
effect until receipt by the Securities
Intermediary 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
Securities Intermediary 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 Securities Intermediary 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 Securities Intermediary relating
to the services provided pursuant to this Agreement as of the date of this
Agreement.


 


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

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 Securities Intermediary:


 


U.S. Bank National
Association, as Securities Intermediary

60 Livingston Avenue

St. Paul, MN  551107-2292

Internal mail EP-MN-WS3C

Attention:  Corporate Trust Department

Telecopier No.:  (651) 495-8097


 


25.           The
Securities Intermediary represents and warrants to the Secured Party that:


 


(a)           the
Securities Intermediary maintains the Account for the Customer;


 


(b)                                 the
Account is a “securities account” as defined in Section 8-501(a) of
the UCC; and


 


(c)                                  the
Securities Intermediary is a “securities intermediary” (as defined in Section 8-102(a)(14)
of the UCC) and is acting as such capacity in respect of the Account.


 


26.           Counterparts.  This Agreement may be executed by the Secured
Party, the Customer and the Securities Intermediary 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]


 

















 


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.


 


 


	
   

  	
  SECURITIES
  INTERMEDIARY:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
  in its capacity as
  Securities Intermediary (and not individually)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
  SECURED PARTY:

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
  in its capacity as
  Trustee (and not individually)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 

















 


	
   

  	
  CUSTOMER:

  
	
   

  	
   

  
	
   

  	
  Diamond Jo Worth, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer