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EXHIBIT 10.12
ACCOUNT CONTROL AGREEMENT
Xxxxxxx Xxxxx Xxxxxx Inc. Account Number
TO: Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx Xxxxxx"), Security Intermediary
DATE:
Gentlemen:
The undersigned R. XXX XXXXXXXX, XX. (hereinafter "Pledgor") and AIRNET
COMMUNICATIONS CORP. (hereinafter "Secured Party") entered into a promissory
note dated 11/9/00 ("Note") pursuant to which a security interest in all present
and future assets (hereinafter defined) in the Account (hereinafter defined) of
the Pledgor is granted by the Pledgor to the Secured Party (The "Security
Interest"). In connection therewith, the Pledgor hereby instructs you to:
1. establish a cash securities account, which is to be known as
"AIRNET COMMUNICATIONS CORP. Secured Party, f/b/o R. XXX
XXXXXXXX, XX." (the "Account");
2. place the assets, including all financial assets, securities,
entitlements and all other assets now or hereinafter received
in such Account, (together the "Assets") including without
limitation those assets listed in Exhibit A attached hereto
and made a part hereof, into the Account. The Assets are
pledged according to the terms of the Security Agreement. As
long as the Assets are pledged to Secured Party, Xxxxxxx Xxxxx
Barney will not invade the Assets to cover margin debits or
calls in any other accounts of the Pledgor; Xxxxxxx Xxxxx
Barney agrees that, except for liens resulting from
commissions, fees, or charges based upon transactions in the
Account pursuant to its Client Agreement with Pledgor, it
subordinates in favor of Secured Party any security interest,
lien or right of setoff Xxxxxxx Xxxxx Xxxxxx may have,
acknowledges that neither it, its subsidiaries or its
affiliates has or will assert a lien on the Assets, and
acknowledges that it has not received notice of any other
security interest in such Assets. In the event any such notice
is received, Xxxxxxx Xxxxx Barney will promptly notify Secured
Party. Pledgor herein represents that the Assets are free and
clear of any lien or encumbrances, and agrees that, with the
exception of the security interest herein, no further or
additional liens or encumbrances will be placed on the Assets
without the express written consent of both Secured Party and
Xxxxxxx Xxxxx Xxxxxx;
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3. maintain the Assets pledged as described in Exhibit A attached
hereto, the proceeds from the sale of any such Assets, and any
income derived therefrom, in the Account. Secured Party and
Pledgor acknowledge and agree that Xxxxxxx Xxxxx Barney shall
not be held responsible for any decline in the market value of
the Assets or to notify Secured Party or Pledgor of any such
decline in the market value of the Assets, or to take any
action with regard to such Assets except upon the specific
written directions stated herein;
4. provide to Secured Party, so long as this agreement remains in
effect, with a duplicate copy to Pledgor, a monthly statement
of Assets and a confirmation statement of each transaction
effected in the Account after such transaction is effected.
The Pledgor and Secured Party consent and agree that the only entitlement orders
that shall be given to Xxxxxxx Xxxxx Xxxxxx in regard to or in connection with
the Account shall be given by and Authorized Officer of Secured Party, except
that the Pledgor may give instructions to enter into purchase or sale
transactions in the Account. Pledgor shall not instruct Xxxxxxx Xxxxx Barney to
deliver and, except as may be required by law or by court order, Xxxxxxx Xxxxx
Xxxxxx shall not deliver cash and/or securities, or proceeds from the sale of ,
or distributions on, such securities out of the Account to the Pledgor or to any
other person or entity. Upon written notice by an Authorized Officer of Secured
Party, Xxxxxxx Xxxxx Barney shall comply with the entitlement orders and
instructions of Secured Party without the consent of Pledgor or any other person
(it being understood and agreed that Xxxxxxx Xxxxx Xxxxxx shall have no duty or
obligation whatsoever of any kind or character to have knowledge of the terms of
the Security Agreement or to determine whether or not an event of default
exists). Pledgor hereby agrees to indemnify and hold harmless Xxxxxxx Xxxxx
Barney, its affiliates officers and employees from and against any and all
claims, actions, liabilities, lawsuits, losses damages, costs or expenses
including reasonable attorney's fees, arising out of or related to this
Agreement or any transactions hereunder. The Secured Party hereby agrees to
indemnify and hold harmless Xxxxxxx Xxxxx Xxxxxx from and against any and all
claims, actions, liabilities, lawsuits, losses, damages, costs are expenses
including reasonable attorney's fees that may result by reason of Xxxxxxx Xxxxx
Barney complying with the instructions or entitlement orders of Secured Party.
In the event that Xxxxxxx Xxxxx Xxxxxx is sued or becomes involved in
litigations as a result of complying with the above stated written instructions,
Pledgor and Secured Party agree that Xxxxxxx Xxxxx Barney shall be entitled to
charge all the costs and fees it incurs in connection with such litigation to
the Assets in the Account and to withdraw such sums as the costs and charges
accrue.
For the purpose of this Agreement, the term "Authorized Officer of Pledgor"
shall refer in the singular to R. XXX XXXXXXXX, XX. (who is, on the date hereof,
the Pledgor) and "Authorized Officer of Secured Party" shall refer in the
singular to Xxxx Xxxxxx (who is, on the date hereof, Chief Financial Officer of
the Secured Party). If the Pledgor or Secured Party is a natural person then
such term shall mean the Pledgor or Secured Party respectively and, if more than
one natural person is the Pledgor or Secured Party, such
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natural persons may act severally. In the event that either Pledgor or Secured
Party shall find it advisable to designate a replacement of any of its
Authorized Officers, written notice of any such replacement shall be given to
Xxxxxxx Xxxxx Xxxxxx.
Except with respect to the obligations and duties as set forth herein, this
Agreement shall not impose or create any obligations or duties upon Xxxxxxx
Xxxxx Barney greater than or in addition to the customary and usual obligations
and duties of Xxxxxxx Xxxxx Xxxxxx to Pledgor.
The Agreement shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the respective parties hereto and shall be construed
in accordance with the laws of the State of New York without regard to its
conflict of law principles and the rights and remedies of the parties shall be
determined in accordance with such laws.
Xxxxxxx Xxxxx Barney will treat all property at any time held by Xxxxxxx Xxxxx
Xxxxxx in the Account as financial assets. Xxxxxxx Xxxxx Barney acknowledges
that this Agreement constitutes written notification to Xxxxxxx Xxxxx Xxxxxx,
pursuant to Articles 8 and 9 of the Uniform Commercial Code of the State of New
York and any applicable federal regulations for the Federal Reserve Book Entry
System, of the Secured Party's security interest in the Assets. The Pledgor,
Secured Party and Xxxxxxx Xxxxx Barney also are entering into this Agreement to
provide for the Secured Party's control of the Assets and to perfect, and
confirm the first and exclusive priority of the Secured Party's security
interest in the Assets. Xxxxxxx Xxxxx Xxxxxx agrees to promptly make and
thereafter maintain all necessary entries or notations in it books and records
to reflect the Secured Party's security interest in the Assets.
If any term or provision of this of this Agreement is determined to be invalid
or unenforceable, the remainder of this Agreement shall be construed in all
respects as if the invalid or unenforceable term or provision were omitted. This
Agreement may not be altered or amended in any manner without the express
written consent of Pledgor, Secured Party and Xxxxxxx Xxxxx Barney. This
Agreement may be executed in any number of counterparts, all of which shall
constitute one original agreement.
This Agreement may be terminated by Xxxxxxx Xxxxx Xxxxxx upon 30 days written
notice to Pledgor and Secured Party. Upon expiration of such 30 day period,
Xxxxxxx Xxxxx Barney shall be under no further obligation except to hold the
pledged Assets in accordance with the terms of the Agreement, pending receipt of
written instructions from Secured Party regarding the further disposition of the
pledged Assets.
The Pledgor and Secured Party acknowledge that this Agreement supplements the
Pledgor's existing Client Agreement(s) with Xxxxxxx Xxxxx Xxxxxx and, except as
expressly provided herein, in no way is this Agreement intended to abridge any
rights that Xxxxxxx Xxxxx Barney might otherwise have. In the event of a
conflict between the terms of the Client Agreement and this Agreement, the terms
of the agreement will control.
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IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to be
executed by their duly authorized officers all as of the day first above
written.
PLEDGOR
R. XXX XXXXXXXX, XX.
Signature /s/ R. Xxx Xxxxxxxx, Xx.
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Date 10-9-00
SECURED PARTY
AIRNET COMMUNICATIONS CORP.
By Xxxx Xxxxxx
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Title Chief Financial Officer
---------------------------------
Signature /s/ Xxxx Xxxxxx
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Date 10-2-00
XXXXXXX XXXXX XXXXXX INC.
By /s/ Xxxx Xxxxxxx Date 2/12/01
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(Resident Vice President)
By _______________________________ Date ___________________
(Regional Director)
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EXHIBIT A
PLEDGED COLLATERAL ACCOUNT NUMBER: xxx-xxxxx-x-x-xxx (Intentionally Redacted)
ASSETS
113,274 Shares of AirNet Common Stock
