SECURITIES ACCOUNT CONTROL AGREEMENTAccount Control Agreement |
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Search Account Control Agreement by:
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 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 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 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 Entitlement Holder 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 Entitlement Holder and
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