Exhibit 10.2 Securities Account Control Agreement, dated as of November 7, 2001.
SECURITIES ACCOUNT CONTROL AGREEMENT
Securities Account Control Agreement, dated as of November 7, 2001,
among SOURCE MEDIA, INC. (the "Company"), U.S. TRUST COMPANY OF TEXAS, N.A. (the
"Secured Party"), as trustee under the Indenture, dated as of October 30, 1997,
between the Company and the Secured Party, in its capacity as trustee
thereunder, and U.S. TRUST COMPANY OF TEXAS, N.A., as securities intermediary
(the "Securities Intermediary"). Capitalized terms used but not defined herein
shall have the meanings assigned in the Security Agreement, dated as of October
30, 1997 (as heretofore amended or modified, the "Security Agreement"), made by
the Company and the other Grantors listed therein in favor of the Secured Party,
in its capacity as collateral agent for the ratable benefit of the holders of
the 12% Senior Secured Notes due 2004 issued by the Company under the Indenture.
All references herein to the "UCC" shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 1. Establishment of Securities Account. The Company hereby
directs the Securities Intermediary to establish, and the Securities
Intermediary hereby does establish, a securities account to be maintained by the
Securities Intermediary as a securities intermediary in the name of "Source
Media, Inc., Pledge Security Account, subject to the lien of U.S. Trust Company
of Texas, N.A., as Trustee", (such account and any successor account the
"Securities Account"). The Securities Intermediary hereby confirms and agrees
that (i) the Securities Intermediary has established the Securities Account with
account number 0000000, (ii) the Securities Account is an account to which a
financial asset (as such term is defined in Section 8-102(a)(9) of the UCC) is
or may be credited in accordance with this Securities Account Control Agreement
and the Security Agreement, (iii) any item of property (whether U.S. Government
Securities or investment property, financial asset, security, instrument or
cash, as each such term is defined in the UCC) credited to the Securities
Account shall be treated as a financial asset (within the meaning of Section
8-102(a)(9) of the UCC), (iv) all securities or other property underlying any
financial assets credited to the Securities Account shall be registered in the
name of the Securities Intermediary, endorsed to the Securities Intermediary or
in blank or credited to another securities account maintained in the name of the
Securities Intermediary and in no case will any financial asset credited to the
Securities Account be registered in the name of the Company, payable to the
order of the Company or specially endorsed to the Company except to the extent
the foregoing have been specially endorsed to the Securities Intermediary or in
blank, (v) for the purposes hereof "financial assets" shall include uninvested
cash and U.S Government Securities, (vi) the Securities Account is a "securities
account" as such term is defined in Section 8-501(a) of the UCC maintained on
the books of the Securities Intermediary in the name of "Source Media, Inc.,
Pledge Securities Account, subject to the lien of U.S. Trust Company of Texas,
N.A., as Trustee" and all property delivered to the Securities Intermediary
pursuant to this Securities Account Control Agreement or the Security Agreement
will be promptly credited to the Securities Account; (vii) the Company has
deposited 288,200 shares of Common Stock of Liberate Technologies, Inc. (the
"Liberate Stock") and $5,086,718.18 into the Securities Account; (viii) for the
avoidance of doubt, the Securities Account and the financial assets carried
therein including, without limitation, the Liberate Stock and any proceeds
thereof , shall constitute Collateral for all purposes of the Security
Agreement; (ix) the Securities Intermediary shall not change the name or account
number of the Securities Account without the prior written consent of the
Company and the Secured Party; and (x) the Securities Intermediary shall
promptly deliver copies of all statements, confirmations and other
correspondence concerning the Securities Accounts and/or any financial assets
credited thereto simultaneously to each of the Company and the Secured Party at
the address for each set forth in Section 9 of this Securities Account Control
Agreement.
Section 2. Entitlement Orders. For the purposes of this Securities
Account Control Agreement, the Secured Party is an entitlement holder within the
meaning of Section 8-102(a)(7) of the UCC. If at any time the Securities
Intermediary shall receive any "entitlement order" (within the meaning of
Section 8-102(a)(8) of the UCC), instruction or order issued by the Secured
Party and relating to the Securities Account, the Securities Intermediary shall
comply with such entitlement order, instruction or order without further consent
by the Company or any other person. Unless notified to the contrary in writing
by the Secured Party, the Securities Intermediary will not accept or comply with
any entitlement orders, instructions, or orders issued by the Company or any
other persons relating to the Securities Account or any of the financial assets
contained therein, and will not
Securities Account Control Agreement
-1-
distribute to the Company or any other persons any interest or other
distributions on property in the Securities Account; provided, however, the
Securities Intermediary shall accept any orders issued by the Company that
solely direct the Securities Intermediary to sell securities in the Securities
Account provided that the net proceeds of any such sale are immediately
deposited and remain in the Securities Account subject to the terms of this
Securities Account Control Agreement. The Company acknowledges that the
Securities Account and the financial assets and all other property contained
therein are Collateral which secure the Obligations.
Section 3. Choice of Law. Both this Securities Account Control
Agreement and the Securities Account (as well as the security entitlements
related thereto) shall be governed by the laws of the State of New York, without
regard to principles of conflicts of laws. Without limiting the foregoing, the
"Securities Intermediary's jurisdiction" within the meaning of Section 8-110(e)
of the UCC is and shall continue to be the State of New York.
Section 4. Conflict with Other Agreements. There are no other
agreements entered into between the Securities Intermediary, in its capacity as
such, and the Company or the Secured Party with respect to the Securities
Account or any securities entitlements or other financial assets credited
thereto. In the event of any conflict between this Securities Account Control
Agreement (or any portion thereof) and any other control agreement now existing
or hereafter entered into by the Securities Intermediary in respect of the
Securities Account, the terms of this Securities Account Control Agreement shall
prevail. Neither the Securities Intermediary nor the Company will enter into any
other agreement with respect to the Securities Account unless the Secured Party
shall have provided prior written consent thereto. Neither the Securities
Intermediary nor the Company will enter into any other agreement with respect to
creation or perfection of any security interest in, or control of, security
entitlements maintained in the Securities Account without the prior written
approval of the Secured Party.
Section 5. Subordination of Lien; Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in the Securities Account, the
Securities Intermediary hereby agrees that such security interest shall be
subordinate to the security interest in the Securities Account of the Secured
Party. The financial assets and other items deposited to the Securities Account
will not be subject to deduction, set-off, banker's lien, or any other right in
favor of any person other than the Secured Party (except that the Securities
Intermediary may set off (i) all amounts due to the Securities Intermediary in
respect of its customary fees and expenses for the routine maintenance and
operation of the Securities Account, and (ii) the face amount of any checks or
other items which have been credited to the Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
Section 6. Notice of Adverse Claims. Except for the claims and interest
of the Secured Party and of the Company in the Securities Account, neither the
Securities Intermediary nor the Company on the date hereof knows of any claim
to, or security interest in, the Securities Account or in any "financial asset"
(as defined in Section 8-102(a) of the UCC) credited thereto and does not know
of any claim that any Person other than the Secured Party has been given
"control" of the Securities Account or any such financial asset. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process and any claim of
"control") against any of the Securities Account or in any financial asset
carried therein, the Securities Intermediary will promptly notify the Secured
Party and the Company thereof.
Section 7. Amendments. No amendment or modification of this Securities
Account Control Agreement shall be binding on any parties hereto unless it is in
writing and is signed by all of the parties hereto.
Section 8. Successors. The terms of this Securities Account Control
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective corporate successors or heirs and personal
representatives. Neither the Company nor the Securities Intermediary may assign
their rights hereunder without the express written consent of the Secured Party.
Securities Account Control Agreement
-2-
Section 9. Notices. All notices and other communications required or
permitted to be given or made under this Securities Account Control Agreement
shall be in writing and shall be deemed conclusively to have been duly given:
(a) on the day of hand delivery; (b) when transmitted by telecopy with verbal
confirmation of receipt by the telecopy operator to the telecopy number set
forth below; and (c) one Business Day following the day timely delivered to a
next-day air courier addressed as set forth below:
To the Securities Intermediary:
---------------------
---------------------
---------------------
Attention:
To the Secured Party:
U.S. TRUST COMPANY OF TEXAS, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
With a copy to:
XXXXXX & XXXXX, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy: 817-348-2321
To the Company
SOURCE MEDIA, INC.
0000 Xxxxxxxxx Xxxxx,
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
with a copy to:
XXXXXXXXXXXX XXXX & XXXXXXXXX
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
Section 10. Termination. The rights and powers granted herein to the
Secured Party have been granted in order to perfect its security interests in
the Securities Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Company nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interest of the Secured Party in the Securities Account has
been terminated pursuant to the terms of the Security Agreement and the Secured
Party has notified the Securities Intermediary of such termination in writing.
Section 11. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants: (a) the Securities Account has been
established as set forth in this Securities Account Control Agreement and will
be maintained in
Securities Account Control Agreement
-3-
the manner set forth herein until the termination of this Securities Account
Control Agreement; and (b) this Securities Account Control Agreement is the
legal, valid and binding obligation of the Securities Intermediary.
Section 12. Counterparts. This Securities Account Control
Agreement may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this
Securities Account Control Agreement by signing and delivering one or more
counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Securities
Account Control Agreement as of the date first written above.
SOURCE MEDIA, INC.
By:
-------------------------------------
Name:
Title:
U.S. TRUST COMPANY OF TEXAS, N.A., as
Trustee in its capacity as collateral
agent under the Security Agreement
By:
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Acknowledged and Agreed as of the date first
above written:
-----------------------------------,
as Securities Intermediary
By:
----------------------------------
Name:
Title:
Securities Account Control Agreement
-4-
