SECURITIES ACCOUNT CONTROL AGREEMENTAccount Control Agreement |
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Search Account Control Agreement by:
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 2nd Avenue South,
10th 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 Intermediary receives a Notice
of Exclusive Control, it will immediately cease complying with instructions or
entitlement orders concerning the Securities Account originated by Grantor or
its representatives.
5.
Statements, Confirmations and
Notices of Adverse Claims.
Securities Intermediary will send copies of all statements, confirmations and
other correspondence concerning the Securities Account simultaneously to each
of Grantor and Secured Party at the address set forth in the heading of this
Agreement. If Securities Intermediary acquires knowledge that any
person asserts any lien, encumbrance or adverse claim against the Securities
Account or in any financial asset carried therein, Securities Intermediary will
promptly notify Secured Party and Grantor thereof.
6.
Responsibility of Securities
Intermediary. Except for
permitting a withdrawal or payment in violation of Section 2 above or
advancing margin or other credit to Grantor in violation of Section 3
above, Securities Intermediary shall have no responsibility or liability to
Secured Party for making trades of financial assets held in the Securities
Account at the instruction of Grantor, or its authorized representatives, which
are received by Securities Intermediary before Securities Intermediary receives
a Notice of Exclusive Control. Securities Intermediary shall have no
responsibility or liability to Grantor for complying with a Notice of Exclusive
Control or complying with entitlement orders concerning the Securities Account
originated by Secured Party. Neither this Agreement nor the Security
Agreement imposes or creates any obligation or duty of Securities Intermediary
other than those expressly set forth herein.
