CONTROL AGREEMENTAccount Control Agreement |
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155 EAST TROPICANA FINANCE CORP. | WELLS FARGO FOOTHILL, INC | FLORIDA HOOTERS LLC | EW COMMON LLC | 155 EAST TROPICANA, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 2.27
Execution Version
CONTROL AGREEMENT
(Investment Property)
This CONTROL AGREEMENT (this “Agreement”) is entered into as of March 29, 2005, among WELLS FARGO FOOTHILL, INC., a California corporation, as the arranger and administrative agent for certain lenders (in such capacity, together with its successor and assigns, if any, in such capacity, the “Agent”), FLORIDA HOOTERS LLC, a Nevada limited liability company (“Florida Hooters”), EW COMMON LLC, a Nevada limited liability company (“EW Common”; Florida Hooters and EW Common collectively, jointly and severally, “Pledgors” and each individually, “Pledgor”), and 155 EAST TROPICANA, LLC, a Nevada limited liability company (“Issuer”).
RECITALS
A.
Pursuant to that certain Parent Pledge
Agreement (the “Pledge Agreement”), dated as of
March 29, 2005, among Pledgors and Agent, Pledgors granted to Agent, for
the benefit of the Lender Group, a security interest in, among other things,
each Pledgor’s right, title and interest in and to all of the Stock of
Issuer, whether now or hereafter owned by such Pledgor and regardless of class
or designation (the “Pledged Interests”). All
capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Pledge Agreement.
B.
The parties are entering into this
Agreement to give Agent control over the Pledged Interests and to specify
certain rights and duties of the parties with respect to the Pledged Interests.
AGREEMENT
1.
The Pledged Interests
Issuer represents and warrants to Agent that:
(a)
The Pledgors are the registered owners of
the Pledged Interests. The Pledged Interests consist of
“uncertificated securities” (as defined in
Section 104.8102(a)(1)(r) of the Nevada Uniform Commercial Code (the
“Code”; provided, however, that in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection, priority, or remedies with respect to Agent’s security
interest in the Pledged Interests is governed by the Uniform Commercial Code as
enacted and in effect in a jurisdiction other than the State of Nevada, the
term “Code” shall mean the Uniform Commercial Code as enacted and
in effect in such other jurisdiction solely for purposes of the provisions
thereof relating to such attachment, perfection, priority, or remedies).
(b)
Other than (i) the Trustee Liens,
and (ii) the claims and interests of the parties referred to in this
Agreement, Issuer does not know of any claim to or interest in the Pledged
Interests.
2.
Control by Agent; Priority
(a)
Issuer unconditionally and irrevocably
agrees that it will comply with instructions originated by Agent regarding the
Pledged Interests without further consent by the Pledgors.
Issuer agrees that Agent shall at all times have “control” (as
defined in Section 104.8106 of the Code) over the Pledged Interests.
(b)
Issuer will not agree with any third
party that it will comply with instructions originated by such third party
regarding the Pledged Interests.
(c)
By executing this Agreement, Issuer
acknowledges Agent’s security interest in the Pledged Interests.
(d)
By executing this Agreement, each Pledgor
consents to (i) Agent having “control” (as defined in Section 104.8106
of the Code) over the Pledged Interests, and (ii) Issuer’s execution
and delivery of this Agreement.
3.
The Pledged Interests Shall Remain
Uncertificated
Each Pledgor and Issuer agree to cause the Pledged Interests to at all times remain “uncertificated securities” (as defined in Section 104.8102(a)(1)(r) of the Code).
4.
Termination
(a)
Agent may terminate this Agreement by
written notice to Pledgors and Issuer. Pledgors and Issuer may not
terminate this Agreement without the prior written consent of Agent.
(b)
If Agent notifies Issuer that
Agent’s security interest in the Pledged Interests has terminated, this
Agreement will immediately terminate.
(c)
Upon payment in full in cash of the
Obligations in accordance with the provisions of the Credit Agreement, and the
expiration or termination of the Commitments, this Agreement shall terminate,
and all rights to the Pledged Interests shall revert to Pledgors or any other
Person entitled thereto.
5.
Governing Law
This Agreement will be governed by the laws of the State of New York.
6.
Amendments
No amendment of, or waiver of a right under, this Agreement will be binding unless it is in writing and signed by the party to be charged.
7.
Severability
To the extent a provision of this Agreement is unenforceable, this Agreement will be construed as if the unenforceable provision were omitted.
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8.
Successors and Assigns
A successor to or assignee of Agent’s rights and obligations under the Loan Agreement will succeed to Agent’s rights and obligations under this Agreement.
9.
Miscellaneous
(a) This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart
