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
