Exhibit 2.12
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 (“Secured
Party”); Eastern & Western Hotel
Corporation , whose address is 155 E. Tropicana, Las
Vegas, NV 89109, whose address is (“Grantor”);
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 Grantor 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
11553005 in the name of Grantor
(collectively, the “Securities Account”).
B.
Grantor and Secured Party have entered into a Guarantee and Pledge
Agreement dated March 29, 2005 (as from time to time amended,
modified, supplemented, or restated, the “Security
Agreement”), in which Grantor has granted Secured Party a
security interest in the Securities Account.
C.
Secured Party, Grantor and Securities Intermediary are entering
into this Agreement to provide for the control of the Securities
Account and to perfect the security interest of Secured Party in
the Securities Account as more fully described in the Security
Agreement.
1.
The Securities
Account. Securities Intermediary hereby
represents and warrants to Secured Party and Grantor that
(i) the Securities Account has been established in the name of
Grantor 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 Secured Party and
of Grantor 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 Grantor withdrawing any
financial assets from the Securities Account nor deliver any such
financial assets to Grantor nor pay any free credit balance or
other amount owing from Securities Intermediary to Grantor with
respect to the Securities Account without the specific prior
written consent of Secured Party, and (ii) comply with
entitlement orders originated by Secured Party concerning the
Securities Account without further consent of Grantor.
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 Secured Party in
the Securities Account and recognizes the security interest granted
therein to Secured Party by Grantor. 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
Grantor 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 Secured Party
and Grantor.
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 Grantor, or its
authorized representatives, and comply with entitlement orders
concerning the Securities Account from Grantor, or its authorized
representatives, until such time as Secured Party delivers a
written notice to Securities Intermediary which states that Secured
Party is thereby exercising exclusive control over the Securities
Account. Such notice may be referred to herein as the
“Notice of Exclusive Control”. After Securities
Intermedia
