**Exhibit 10.45**

 

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 AmericanTrust and Savings Bank (the “Depositary”).

 

The Customer maintains ademand 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 grantedto the Secured Party, pursuant to the Pledge and Security Agreement, dated asof July 19, 2005, among, interalia, the Customer and the SecuredParty, security interests (the “Security Interests”) in the Items and theAccount.  Customer, the Secured Party andthe Depositary are entering into this Agreement to perfect the SecurityInterests in the Items and the Account.  TheDepositary will follow the terms of this Agreement unless it is otherwiseordered by a court order or there is a bankruptcy filing in which the trusteein bankruptcy orders the Depositary to do anything contrary to thisAgreement.  Subject to the terms of thisAgreement, the Depositary recognizes the Security Interests in the Items andthe Account.

 

1.  Account.  As used in this Agreement, “Notice Party”means the Secured Party.  Until such timeas 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 theCustomer may direct.  As used in thisAgreement, “Timely Manner” means receipt of the relevant notice, noticerevocation or instruction at a time and in a manner affording the Depositary areasonable opportunity to act thereon. After the Depositary has received anotice or any instructions originated by the Notice Party directing thedisposition of funds in the Account, and until such time as the Depositary hasreceived contrary notice from the Notice Party:

 

(a)           TheDepositary shall comply with such instructions without further consent byCustomer or any other person.  The NoticeParty shall have the exclusive right to direct and provide instructions to theDepositary as to the disposition of all amounts then or thereafter deposited inthe Account, and the Depositary shall not comply with any instruction from theCustomer in connection with the Account unless consented to in writing by theNotice 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, willtransfer on each banking day all immediately available funds on deposit in theAccount by wire transfer, or other method of transfer mutually agreeable to theDepositary and the Notice Party, as the Notice Party may from time to timedirect the Depositary in accordance with the Depositary’s usual and customaryprocedures for funds transfers; and

 

(c)           TheCustomer agrees it shall not make any attempt to access the Account or fundstherein.

 

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 Depositary may rely upon,the contents of any notice or instructions that the Depositary reasonablybelieves in good faith to be from the Customer or Notice Party, as the case maybe, without any independent investigation. To the extent commercially reasonable and consistent with the Depositary’scurrent practice, the Depositary shall have no duty to inquire into theauthority of the person in giving such notice or instruction.

 
| American Trust               | Multi-Party  Blocked Account Agreement |
|------------------------------|----------------------------------------|
| *(Requires  Default Notice)* |

 

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3.             Information.  The Depositary will from time to time provideto Customer information regarding the Account. For an additional fee, the Depositary will provide certain duplicateinformation as may be reasonably requested by the Secured Party.

 

4.             FinancingDocuments.  The Depositary shall notbe deemed to have any knowledge (imputed or otherwise) of: (a) any of theterms or conditions of any security agreement or any document referred totherein or relating to any financing arrangement between the Customer and theSecured Party, or any breach thereof, or (b) any occurrence or existenceof a default.  The Depositary has noobligation to inform any person of such breach or to take any action inconnection with any of the foregoing, except such actions regarding the Accountas are specified in this Agreement.  TheDepositary is not responsible for the enforceability or validity of theSecurity Interests in the Items and the Account.

 

5.             Set-Off.  The Customer and the Secured Party authorizethe Depositary to debit the Account, from time to time, for: (a) Items,including, without limitation, any automated clearinghouse transactions whichare returned for any reason; and (b) any amount then due from the Customeror the Secured Party to the Depositary under this Agreement or related to theItems, the Account and the services provided hereunder and the Account,provided the Depositary advises the Customer and the Secured Party of theamount thereof in accordance with the Depositary’s then current practice.  Subject to the terms of this Agreement, theDepositary agrees that each of the Security Interests is superior to any rightof set-off, security interest or other lien which the Depositary mightotherwise have in the Items or the Account.

 

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 Depositary is aparty to them (“Rules”).  Funds will bemade available pursuant to the Rules and the Depositary’s applicableavailability policies.

 

7.             RecordingConversations.  Customer, the SecuredParty or the Depositary may record, store and use all telephone conversationsand data transmissions.

 

8.             Chargesand Fees.  The Customer will pay theDepositary’s charges and fees applicable to this service as specified inwriting or as otherwise agreed by the Customer and the Depositary and suchcharges and fees may be charged directly against the Account.

 

9.             Liability.  The Depositary will be liable only for directdamages if it fails to exercise ordinary care. The Depositary shall be deemed to have exercised ordinary care if itsaction or failure to act is in conformity with general banking usages or is otherwisea commercially reasonable practice of the banking industry.  The Depositary shall not be liable for anyspecial, indirect or consequential damages, even if it has been advised of thepossibility of such damages.

 

10.           Indemnification.  The Customer agrees to indemnify the Depositary for, and hold the Depositary harmless from, allclaims, demands, losses, liabilities and expenses, including reasonable legalfees 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 ofthis Agreement; (b) Items, including, without limitation, any automatedclearinghouse transactions, which are returned for any reason, and anyadjustments; and (c) any failure of the Customer to pay any invoice orcharge of the Depositary forservices in respect to this Agreement, the Items, the Account or any amountowing to the Depositary 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 Depositary.  To theextent of

 

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such indemnity, theCustomer and the Secured Party agree that the Depositary shall have set-off rights against theAccount.  The Notice Party agrees toreimburse the Depositary for anyamounts described in subsections (b) and (c) of this Section inthe event and to the extent that there are insufficient funds in the Account tocover any amounts described 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 Depositary 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 Depositarywill be liable for any failure to perform its obligations when the failurearises out of causes beyond its control, including, without limitation, an actof a governmental regulatory/authority, an act of God, accident, equipmentfailure, labor disputes or system failure, provided it has exercised suchdiligence as the circumstances require. As between Customer and Secured Party, if any conflict exists betweenthis Section 11 and any of the security agreements referred to in therecitals hereto, the provisions of such security agreement shall govern.

 

12.           **Governing Law.  The Secured Party, Customer and theDepositary agree that with regard to the specific issues of perfection andpriority of the Security Interests only, the Depositary’s “jurisdiction,” within the meaning of the UniformCommercial 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 paymentof checks and other Items against the Account shall be governed by the laws ofthe State of Iowa.  Except as set forthabove, this Agreement shall be construed in accordance with and governed by thelaws of 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 theDepositary, commits or obligates theDepositary to extend any overdraft or other credit to the Customer orthe Secured Party.

 

14.           Creditfor Deposits.  A receipt or similardocument may be provided or made available upon request for all deposits toCustomer’s account (except for remote deposits, e.g., lockbox, night depositoryservices).  However, the amount on suchreceipt or similar document is based solely on Customer’s deposit ticket.  Credits for all deposits are subject to finalverification and, after review, theDepositary may make adjustments to Customer’s account for any errors,including any errors appearing on Customer’s deposit ticket, but has noobligation to do so for de minimus discrepancies.

 

15.           FinalPosting.  Entries received throughautomated clearing house (“ACH”) may be posted to the Customer’s account.  All credits received for deposit (other thanFedWire deposits) are provisional, subject to verification and finalsettlement.  Information and datareported pursuant to any Service may be received prior to final posting andconfirmation and is subject to correction. Customer agrees that all such data is for informational purposes and isnot to be construed as final posting information and that the Depositary shall have no liabilityfor the content of payment-related information. If the Depositary doesnot receive final settlement for an ACH entry, the Depositary shall be entitled to a refund from the Customerin the amount of the credit to the Customer’s account and the originator willnot be considered to have paid the amount of the entry to the Customer.  The Rules do not require the Depositary to provide the Customerwith notice that the Depositaryhas received an ACH entry.

 

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

 

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such action causesoutstanding checks to be dishonored and returned or funds transfers to berejected.  Refused deposits will bereturned to Customer.

 

17.           ElectronicPresentment.  Customer acknowledgesthat its 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 Depositary that an item drawn onthe account has been deposited for collection in another financialinstitution.  A determination of theaccount balance for purposes of making a decision to dishonor an item forinsufficiency of available funds may be made at any time between the receipt ofsuch presentment or notice and the time of return of the item, and no more thanone such determination need be made.

 

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

 

19.           [IntentionallyOmitted]

 

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

 

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

 

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

 

(b)           Exceptas provided in the foregoing paragraph (a), this Agreement shall remain ineffect until receipt by the Depositaryof written notices from the Secured Party in substantially the form of Exhibit Ahereto (a “Notice of Termination”).  Therights and powers granted to the Secured Party in this Agreement are powerscoupled with an interest and will not be affected by the insolvency orbankruptcy of Customer nor by the lapse of time.  This Agreement shall terminate as to allparties upon receipt by the Depositaryof a Notice of Termination signed by the Secured Party.  The termination of this Agreement shall notterminate the Account or alter the obligations of the Depositary or Customer to each other pursuant to any otheragreement with respect to the Account.

 

23.           EntireAgreement.  This Agreementconstitutes the entire agreement and understanding, and supersedes all prioragreements and understandings, between the Customer, the Secured Party and the Depositary relating to theservices provided pursuant to this Agreement as of the date of this Agreement.

 

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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 Street, Ice HarborP.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

 

If to the Depositary:

 

American Trust and Savings Bank895 Town ClockDubuque, IA 52001Attn:  Robert PeacockTelecopier No.:  (563) 582-1841

 

25.           Counterparts.  This Agreement may be executed by the SecuredParty, the Customer and the Depositary individually or in several separatecounterparts, each of which shall be an original and all of which takentogether 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.

 

 
|   | American Trust and  Savings Bank |
|--------|----------------------------------|
|   |                             |
|   | By:                              | /s/ Robert I. Peacock |   |
|   | Title:                           | Senior Vice President |   |
|        |                                  |  |  |  |  |

 

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

 

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|   | SECURED PARTY:                                                                             |
|--------|--------------------------------------------------------------------------------------------|
|   |                                                                                       |
|   | U.S.  BANK NATIONAL ASSOCIATION,  solely in its capacity as Trustee (and not individually) |
|   |                                                                                       |
|   | By:                                                                                        | /s/ Richard Prokosch |   |
|   | Title:                                                                                     | Vice President |   |
|        |                                                                                            |  |  |  |

 

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EXHIBIT A

 

Notice ofTermination

 

[Letterhead ofSecured Party]

 

[Date]

 

[Name and Address ofFinancial Institution]

Attention:

 

Re:  Termination of Deposit Account ControlAgreement

 

Reference is hereby madeto 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 whichis attached).  Capitalized terms usedherein and not defined herein, shall have the meanings assigned to such termsin such Multi-Party Blocked Account Agreement.

 

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

 

You are instructed todeliver 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:           DiamondJo Worth, LLC

 

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