Exhibit 2.13
Execution Version
SECURITIES ACCOUNT CONTROL AGREEMENT
March 29, 2005
Wells Fargo
Foothill, Inc. , a California corporation, whose
address is 2450 Colorado Avenue, Suite 3000W, Santa Monica, CA
90404, Attention: Business Finance Division Manager
(“Creditor”); 155 East Tropicana, LLC , whose address
is 115 E. Tropicana, Las Vegas, NV 89109,, whose address is
(“Entitlement Holder”); and Wells Fargo Brokerage Services, LLC
, whose address is 608 2 nd Avenue South, 10
th Floor, MAC- N9303-104, Minneapolis, MN
55402-1916 Attention: John Riutzel, (“Securities
Intermediary”); hereby agree as follows:
A.
Securities Intermediary and Entitlement Holder have entered into a
customer agreement (as from time to time amended, modified,
supplemented, or restated, the “Customer Agreement”),
pursuant to which Securities Intermediary has established its
securities account number
11552783 in the name of Entitlement Holder
(collectively, the “Securities Account”).
B.
Entitlement Holder and Creditor have entered into a Credit
Agreement dated March 29, 2005 and a Security Agreement dated
March 29, 2005 (as from time to time amended, modified,
supplemented, or restated, the “Security Agreement”),
in which Entitlement Holder has granted Creditor a security
interest in the Securities Account.
C.
Creditor, Entitlement Holder and Securities Intermediary are
entering into this Agreement to provide for the control of the
Securities Account and to perfect the security interest of Creditor
in the Securities Account as more fully described in the Security
Agreement.
1.
The Securities
Account. Securities Intermediary hereby
represents and warrants to Creditor and Entitlement Holder that
(i) the Securities Account has been established in the name of
Entitlement Holder as recited above, (ii) the Customer
Agreement, the security entitlements arising out of the financial
assets carried in the Securities Account and any free credit
balances are valid and legally binding obligations of Securities
Intermediary, and (iii) except for the claims and interest of
Creditor and of Entitlement Holder in the Securities Account,
Securities Intermediary does not know of any claim to or interest
in the Securities Account or in any financial asset carried
therein. Securities Intermediary will treat all property held
by it in the Securities Account as financial assets under
Article 8 of the Uniform Commercial Code of New York (the
“State”).
2.
No Withdrawals After Receipt
of Notice of Exclusive Control. After
Securities Intermediary receives a Notice of Exclusive Control (as
such term is defined in Section 4 below), notwithstanding the
provisions of Section 3 below, Securities Intermediary shall
(i) neither accept nor comply with any entitlement order from
Entitlement Holder withdrawing any financial assets from the
Securities Account nor deliver any such financial assets to
Entitlement Holder nor pay any free credit balance or other amount
owing from Securities Intermediary to Entitlement Holder with
respect to the Securities Account without the specific prior
written consent of Creditor, and (ii) comply with entitlement
orders originated by Creditor concerning the Securities Account
without further consent of Entitlement Holder.
3.
Priority of
Lien. Securities Intermediary hereby
acknowledges that it has received notice of the existence of the
Security Agreement and of the security interest of Creditor in the
Securities Account and recognizes the security interest granted
therein to Creditor by Entitlement Holder. Securities
Intermediary hereby confirms that the Securities Account is a cash
Securities Account and that it will not advance any margin or other
credit to Entitlement Holder therein, either directly or by
allowing it to trade in instruments such as options and commodities
contracts that create similar obligations, nor hypothecate any
securities carried in the Securities Account. Securities
Intermediary hereby waives and releases all liens, encumbrances,
claims and rights of setoff it may have against the Securities
Account of any financial asset carried in the Securities Account or
any credit balance in the Securities Account and agrees that,
except for payment of its customary fees and commission pursuant to
the Customer Agreement, it will not assert any such lien,
encumbrance, claim or right against the Securities Account or any
financial asset carried in the Securities Account or any credit
balance in the Securities Account. Securities Intermediary
will not agree with any third party that Securities Intermediary
will comply with entitlement orders concerning the Securities
Account originated by such third party without the prior written
consent of Creditor and Entitlement Holder.
4.
Control.
Except as otherwise provided in Sections 2 and 3 above,
Securities Intermediary shall make trades of financial assets held
in the Securities Account at the instruction of Entitlement Holder,
or its authorized representatives, and comply with entitlement
orders concerning the Securities Account from Entitlement Holder,
or its authorized representatives, until such time as Creditor
delivers a written notice to Securities Intermediary which states
that Creditor is thereby exercising exclusive control over the
