**Exhibit 10.44**

 

Multi-PartyBlocked Account Agreement

 

This Multi-Party BlockedAccount Agreement (this “Agreement”), dated as of July 19, 2005, is madeby and among Diamond Jo Worth, LLC (“Customer”), U.S. Bank NationalAssociation, as Trustee as Secured Party (the “Secured Party”) and U.S. BankNational Association, as securities intermediary (the “Securities Intermediary”).

 

The Customer maintains asecurities 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 asin effect in the State of New York (the “UCC”) may be credited and which forpurposes hereof shall include, without limitation, all cash, checks, securitiesand other assets credited to the Account).

 

The Customer has grantedto the Secured Party, pursuant to the Pledge and Security Agreement, dated asof July 19, 2005, among, interalia, the Customer and theSecured Party, security interests (the “Security Interests”) in the Account andthe financial assets credited thereto. Customer, the Secured Party and the Securities Intermediary are enteringinto this Agreement to perfect the Security Interests in the Account and thefinancial assets credited thereto.  TheSecurities Intermediary will follow the terms of this Agreement unless it isotherwise ordered by a court order or there is a bankruptcy filing in which thetrustee in bankruptcy orders the Securities Intermediary to do anythingcontrary to this Agreement.  Subject tothe terms of this Agreement, the Securities Intermediary recognizes theSecurity 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 timeas the Securities Intermediary shall have received any “entitlement order”(within the meaning of Section 8-102(a)(8) of the UCC) relating tothe Account or any financial asset credited thereto from the Notice Party in aTimely Manner, the Securities Intermediary shall comply with entitlement ordersof the Customer in respect of the Account and any or all financial assetscredited thereto.  As used in thisAgreement, “Timely Manner” means receipt of the relevant entitlement order at atime and in a manner affording the Securities Intermediary a reasonableopportunity to act thereon. After the Securities Intermediary has received anentitlement order originated by the Notice Party directing the disposition offunds in the Account, and until such time as the Securities Intermediary hasreceived a contrary notice from the Notice Party:

 

(a)           TheSecurities Intermediary shall comply with entitlement orders without furtherconsent by Customer or any other person. The Notice Party shall have the exclusive right to provide entitlementorders to the Securities Intermediary as to the disposition of all financialassets then or thereafter credited to the Account, and the SecuritiesIntermediary shall not comply with any entitlement order from the Customer orany other person in connection with the Account unless consented to in writingby the Notice Party and received by the Securities Intermediary in a TimelyManner;

 

(b)           The SecuritiesIntermediary, subject to its applicable availability policy in effect from timeto time, will transfer on each business day all immediately available fundscredited to the Account by wire transfer, or other method of transfer mutuallyagreeable to the Securities Intermediary and the Notice Party, as the NoticeParty may from time to time direct the Securities Intermediary in accordancewith the Securities Intermediary’s usual and customary procedures for fundstransfers; and

 
| U.S. Bank                    | Multi-Party  Blocked Account Agreement |
|------------------------------|----------------------------------------|
| *(Requires  Default Notice)* |

 

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(c)           TheCustomer agrees it shall not make any attempt to access the Account orfinancial assets credited thereto or issue any entitlement order in respectthereof.

 

2.             RelianceUpon Instructions.  The Customer andthe Notice Party, as the case may be, are responsible (severally and notjointly to the extent applicable to it) for, and the Securities Intermediarymay rely upon, the contents of any entitlement order or other notice orinstructions that the Securities Intermediary reasonably believes in good faithto be from the Customer or Notice Party, as the case may be, without anyindependent investigation.  To the extentcommercially reasonable and consistent with the Securities Intermediary’scurrent practice, the Securities Intermediary shall have no duty to inquire intothe authority of the person in giving such entitlement order, notice orinstruction.

 

3.             Information.  The Securities Intermediary will from time totime provide to Customer information regarding the Account.  For an additional fee, the Securities Intermediarywill provide certain duplicate information as may be reasonably requested bythe Secured Party.

 

4.             FinancingDocuments.  The SecuritiesIntermediary shall not be deemed to have any knowledge (imputed or otherwise)of: (a) any of the terms or conditions of any security agreement or anydocument referred to therein or relating to any financing arrangement betweenthe Customer and the Secured Party, or any breach thereof, or (b) anyoccurrence or existence of a default. The Securities Intermediary has no obligation to inform any person ofsuch breach or to take any action in connection with any of the foregoing,except such actions regarding the Account or the financial assets creditedthereto as are specified in this Agreement. The Securities Intermediary is not responsible for the enforceability orvalidity of the Security Interests in the Account and the financial assetscredited thereto.

 

5.             Set-Off.  The Customer and the Secured Party authorizethe Securities Intermediary to debit the Account, from time to time, for: (a) financialassets credited to the Account, including, without limitation, any automatedclearinghouse transactions which are returned for any reason; and (b) anyamount then due from the Customer or the Secured Party to the SecuritiesIntermediary under this Agreement or related to the Account, the financialassets credited thereto and the services provided hereunder and the Account,provided the Securities Intermediary advises the Customer and the Secured Partyof the amount thereof in accordance with the Securities Intermediary’s thencurrent practice.  Subject to the termsof this Agreement, the Securities Intermediary agrees that each of the SecurityInterests is superior to any right of set-off, security interest or other lienwhich the Securities Intermediary might otherwise have in the Account or thefinancial assets credited thereto.

 

6.             Rules.  Use of the services provided pursuant to thisAgreement is subject to all applicable laws, regulations, rules and fundstransfer systems and clearing arrangements, whether or not the SecuritiesIntermediary is a party to them (“Rules”). Funds will be made available pursuant to the Rules and theSecurities Intermediary’s applicable availability policies.

 

7.             RecordingConversations.  Customer, the SecuredParty or the Securities Intermediary may record, store and use all telephoneconversations and data transmissions.

 

8.             Chargesand Fees.  The Customer will pay theSecurities Intermediary’s charges and fees applicable to this service asspecified in writing or as otherwise agreed by the Customer and the SecuritiesIntermediary and such charges and fees may be charged directly against theAccount.

 

9.             Liability.  The Securities Intermediary will be liableonly for direct damages if it fails to exercise ordinary care.  The Securities Intermediary shall be deemedto have exercised ordinary care if its action or failure to act is inconformity with general banking usages or is otherwise a commercially

 

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reasonable practice ofthe banking industry.  The SecuritiesIntermediary shall not be liable for any special, indirect or consequentialdamages, even if it has been advised of the possibility of such damages.

 

10.           Indemnification.  The Customer agrees to indemnify the Securities Intermediary for, andhold the Securities Intermediaryharmless from, all claims, demands, losses, liabilities and expenses, includingreasonable legal fees and expenses, resulting from or with respect to thisAgreement, the Account, the financial assets credited thereto and the servicesprovided hereunder, including, without limitation: (a) any action taken,or not taken, by the SecuritiesIntermediary in regard thereto in accordance with the terms of thisAgreement; (b) financial assets credited to the Account, including,without limitation, any automated clearinghouse transactions, which arereturned for any reason, and any adjustments; and (c) any failure of theCustomer to pay any invoice or charge of theSecurities Intermediary for services in respect to this Agreement, theAccount, the financial assets credited thereto or any amount owing to the Securities Intermediary from theCustomer with respect thereto or to the service provided hereunder, except tothe extent such claims, demands, losses, liabilities and expenses are caused bythe gross negligence or wilful misconduct of the Securities Intermediary. To the extent of such indemnity, the Customer and the Secured Partyagree that the Securities Intermediaryshall have set-off rights against the Account. The Notice Party agrees to reimburse the Securities Intermediary for any amounts described insubsections (b) and (c) of this Section in the event and to theextent that there are insufficient funds in the Account to cover any amountsdescribed in subsections (b) and (c) of this Section afterreceiving notice from the Notice Party pursuant to Section 1, solely tothe extent of the amounts received by the Notice Party from the Account withinten (10) days prior to such notice by Securities Intermediary giving notice.  Any amount due under this indemnity thatremains unpaid for thirty (30) days after notice hereof shall bear interest atthe federal funds rate from the date of the notice to the date of payment.  This indemnity shall survive the terminationof this Agreement.

 

11.           Failureto Perform.  None of the Customer,Secured Party or the SecuritiesIntermediary will be liable for any failure to perform its obligationswhen the failure arises out of causes beyond its control, including, withoutlimitation, an act of a governmental regulatory/authority, an act of God,accident, equipment failure, labor disputes or system failure, provided it hasexercised such diligence as the circumstances require.  As between Customer and Secured Party, if anyconflict exists between this Section 11 and any of the security agreementsreferred to in the recitals hereto, the provisions of such security agreementshall govern.

 

12.           **Governing Law.  The Secured Party, Customer and theSecurities Intermediary agree that with regard to the specific issues ofperfection and priority of the Security Interests only, the Securities Intermediary’s “jurisdiction,” within the meaningof the UCC (including, without limitation, Section 8-110(d) thereof),is the State of New York, while the operations of the Account and the paymentof checks against the Account shall be governed by the laws of the State ofMinnesota.  Except as set forth above,this Agreement shall be construed in accordance with and governed by the lawsof the State of New York and applicable federal laws.**

 

13.           NoExtension of Credit.  Nothing in thisAgreement, unless otherwise agreed in writing, or any course of dealing betweenthe Customer, the Secured Party or theSecurities Intermediary, commits or obligates the Securities Intermediary to extend any overdraft or othercredit to the Customer or the Secured Party.

 

14.           Creditfor Deposits.  A receipt or similardocument may be provided or made available upon request for all financialassets credited to the Account (except for remote deposits, e.g., lockbox,night depository services).  However, theamount on such receipt or similar document is based solely on Customer’sdeposit ticket.  Credits for allfinancial assets credited to the Account are subject to final

 

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verification and, afterreview, the SecuritiesIntermediary may make adjustments to the Account for any errors,including any errors appearing on Customer’s entitlement orders, but has noobligation to do so for deminimus discrepancies.

 

15.           FinalPosting.  Entries received throughautomated clearing house (“ACH”) may be posted to the Account.  All financial assets received for credit tothe Account (other than FedWire deposits) are provisional, subject toverification and final settlement. Information and data reported pursuant to any service may be receivedprior to final posting and confirmation and is subject to correction.  Customer agrees that all such data is forinformational purposes and is not to be construed as final posting informationand that the Securities Intermediaryshall have no liability for the content of payment-related information.  If theSecurities Intermediary does not receive final settlement for an ACHentry, the Securities Intermediaryshall be entitled to a refund from the Customer in the amount of the financialassets that are to be credited to the Account and the originator will not beconsidered to have paid the amount of the entry to the Customer.  The Rules do not require the Securities Intermediary to providethe Customer with notice that theSecurities Intermediary has received an ACH entry.

 

16.           Returnof Deposits.  The Securities Intermediary may returnor refuse to accept all or any part of a financial asset to be credited toCustomer’s account at any time and will not be liable to Customer for doing soeven if such action causes outstanding checks to be dishonored and returned orfunds transfers to be rejected.  Refusedfinancial assets will be returned to Customer.

 

17.           ElectronicPresentment.  Customer acknowledgesthat the Account may be debited on the day an item is presented by electronicor other means, or at an earlier time based on notification received by the Securities Intermediary that anitem drawn on the account has been deposited for collection in anotherfinancial institution.  A determinationof the account balance for purposes of making a decision to dishonor an itemfor insufficiency of available funds may be made at any time between thereceipt of such presentment or notice and the time of return of the item, andno more than one such determination need be made.

 

18.           Noticeof Unauthorized Transaction and Adverse Claims.  Unless the Customer notifies the Securities Intermediary in writingof any item or debit that is unauthorized, altered, erroneous or otherwiseunenforceable against the Customer within twenty-one (21) days after the Securities Intermediary sends ormakes available to the Customer a statement or other notice describing the itemor debit, the Customer shall be barred from making any claims against the Securities Intermediary inconnection with such item or debit. Except for the claims and interest of the Secured Party and the Customerin the Account, the SecuritiesIntermediary 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 (includingany writ, garnishment, judgment, warrant of attachment, execution or similarprocess) against the Account, theSecurities Intermediary will promptly notify the Secured Party and theCustomer thereof.

 

19.           [IntentionallyOmitted]

 

20.           Amendmentsand Waivers.  This Agreement may beamended or waived only in writing signed by the Customer, the Secured Party andthe Securities Intermediary.

 

21.           Assignment.  Customer may not assign or transfer any ofits rights or obligations under this Agreement. The Securities Intermediarymay 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 respectivesuccessors and assigns of the parties and shall inure to the benefit of theirrespective successors and assigns.

 

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22.           Termination.  (a) The Securities Intermediary, upon thirty (30) days notice to eachof the other parties, may terminate this Agreement.  Any claim or cause of action of any partyagainst any other relating to this Agreement which existed at the time oftermination shall survive the termination. All mail received after the date specified in such notice shall bereturned by the Securities Intermediaryto the Secured Party by first class mail or such other means mutually agreeableto the Secured Party and the SecuritiesIntermediary.

 

(b)           Exceptas provided in the foregoing paragraph (a), this Agreement shall remain ineffect until receipt by the SecuritiesIntermediary of written notices from the Secured Party in substantiallythe form of Exhibit A hereto (a “Notice of Termination”).  The rights and powers granted to the SecuredParty in this Agreement are powers coupled with an interest and will not beaffected by the insolvency or bankruptcy of Customer nor by the lapse oftime.  This Agreement shall terminate asto all parties upon receipt by theSecurities Intermediary of a Notice of Termination signed by the SecuredParty.  The termination of this Agreementshall not terminate the Account or alter the obligations of the Securities Intermediary orCustomer to each other pursuant to any other agreement with respect to theAccount.

 

23.           EntireAgreement.  This Agreementconstitutes the entire agreement and understanding, and supersedes all prioragreements and understandings, between the Customer, the Secured Party and the Securities Intermediary relatingto the services provided pursuant to this Agreement as of the date of thisAgreement.

 

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

 

If to Customer:

 

Diamond Jo Worth, LLC400 E. 3rd StreetP.O. Box 1750Dubuque, IA  52004-1750Attn: Natalie Schramm, CFOTelecopier No.: (563) 690-2190

 

 

If to the Secured Party:

 

U.S. Bank NationalAssociation, as Trustee60 Livingston AvenueSt. Paul, MN  551107-2292Internal mail EP-MN-WS3CAttention:  Corporate Trust DepartmentTelecopier No.:  (651) 495-8097

 

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If to the Securities Intermediary:

 

U.S. Bank NationalAssociation, as Securities Intermediary60 Livingston AvenueSt. Paul, MN  551107-2292Internal mail EP-MN-WS3CAttention:  Corporate Trust DepartmentTelecopier No.:  (651) 495-8097

 

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

 

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

 

(b)                                 theAccount is a “securities account” as defined in Section 8-501(a) ofthe UCC; and

 

(c)                                  theSecurities 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 SecuredParty, the Customer and the Securities Intermediary individually or in severalseparate counterparts, each of which shall be an original and all of whichtaken together shall constitute one and the same agreement.

 

[signature pages follow]

 

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IN WITNESS WHEREOF, theparties hereto have caused this Agreement to be executed by their dulyauthorized 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 |   |
|        |                                                                    |  |  |  |

 

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|   | CUSTOMER:             |
|--------|-----------------------|
|   |                  |
|   | Diamond Jo Worth, LLC |
|   |                  |
|   | By:                   | /s/ Natalie Schramm |   |
|   | Title:                | Chief Financial Officer |   |
|        |                       |  |  |  |

 

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