Exhibit 10.2
SUBORDINATION AND INTERCREDITOR AGREEMENT
This SUBORDINATION AND INTERCREDITOR AGREEMENT (the "Agreement") dated
as of February 28, 2002 by and among CM Opportunity Fund, LLC, a Delaware
limited liability company ("Carl Marks"), iNTELEFILM Corporation, a Minnesota
corporation formerly known as the Children's Broadcasting Corporation
("Intelefilm"), Curious Holdings LLC, a Delaware limited liability company (the
"Company"), and Susan Holden, Stephen Oakes, Richard Winkler and David Starr
(the "Senior Management Team"). Capitalized terms not defined herein shall have
the meanings set forth in the Senior Secured Loan and Investment Agreement dated
the date hereof by and among Carl Marks, the Company and the Senior Management
Team ("Senior Loan Agreement").
BACKGROUND
WHEREAS, pursuant to a Merger Agreement dated as of February 28, 2002,
by and among the Company, Curious Pictures Corporation, a New York corporation
("Curious"), DCODE, Inc., a Minnesota corporation ("DCODE"), Furious Pictures
Corporation, a New York corporation and a wholly-owned subsidiary of Curious
("Furious"), Intelefilm and Harmony Holdings, Inc., a Delaware corporation
("Harmony"), Curious and DCODE are merging with and into the Company, with the
Company being the surviving corporation of the merger ("Merger");
WHEREAS, on the date hereof and in connection with the Merger, the
Company is issuing to Carl Marks a $1,500,000 senior secured note in the form of
Exhibit A ("Carl Marks Note") pursuant to the terms and conditions of the Carl
Marks Note and the Senior Loan Agreement;
WHEREAS, on the date hereof and in connection with the Merger, the
Company is issuing to Intelefilm a promissory note in the principal amount of
$500,000 in the form of Exhibit B ("Intelefilm Note");
WHEREAS, the Senior Management Team is lending to the Company an
aggregate of $500,000 divided pro rata among the Senior Management Team members
pursuant to the terms and conditions of one note in the form of Exhibit C
("Senior Management Team Note");and
WHEREAS, the Company, Carl Marks, Intelefilm and the Senior Management
Team are entering into this Agreement to provide for the priority, repayment and
subordination rights among the Company and the parties hereto with respect to
their debt instruments.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. definitions.
1.1 General Terms. For purposes of this Agreement, unless otherwise defined
herein or in the Senior Loan Agreement, the following terms shall have the
following meanings:
"Collateral" shall mean all of the property and interests in property,
tangible or intangible, real or personal, now owned or hereafter acquired by the
Company in or upon which any lenders at any time have a lien, and including,
without limitation, all proceeds and products of such property and interests in
property. The Carl Marks Note and Intelefilm Note contain descriptions of such
Collateral in their security interests' sections.
"Holders of Senior Secured Indebtedness" shall mean Carl Marks and
Intelefilm.
"Holders of Subordinated Indebtedness" shall mean the members of the Senior
Management Team.
"Lenders" shall mean Carl Marks, Intelefilm and the members of the Senior
Management Team, and each of any individuals or entities named in or which
hereafter become a party to this Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including, but
not limited to, easements, rights of way and the like), lien (statutory or
other), security agreement or transfer intended as security, including without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease or any financing lease having
substantially the same economic effect as any of the foregoing.
"Loans" shall mean the loans made by the Company evidenced by the Carl
Marks Note, the Intelefilm Note and the Senior Management Team Note.
"Operating Agreement" means the Company's limited liability company
operating agreement dated the date hereof between the Company, Carl Marks and
the Senior Management Team.
"Person" shall mean an individual, a partnership, a corporation (including
a business trust), a joint stock company, a trust (including a designated
business trust), an unincorporated association, a joint venture, a limited
liability company, a limited liability partnership or other entity or a
government or any agency, instrumentality or political subdivision thereof.
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"Sale, Liquidation or Dissolution Event" shall mean the sale,
liquidation, dissolution or other event constituting a Change of Control of the
Company. "Change in Control" of the Company means (i) a Sale as defined in the
Operating Agreement, (ii) the consummation by the Company of a merger,
reorganization, consolidation or similar transaction to which the Company is a
party unless the individuals and entities who were the beneficial owners (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
("Exchange Act")) of the equity securities of the Company that are entitled to
vote generally in the election of managers or directors (collectively, "Voting
Securities") immediately prior to the effective date of the merger would have
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act)
immediately after the effective date of the merger of more than fifty percent
(50%) of the total combined voting power of the equity securities entitled to
vote generally in the election of managers or directors of the limited liability
company or the corporation resulting from the merger in substantially the same
proportions relative to each other as their ownership of Voting Securities
immediately prior to the effective date of the merger; (ii) the acquisition
(other than directly from the Company) by any person or entity, or group of
associated persons or entities acting in concert of direct or indirect
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the total
combined voting power of the Company's then issued and outstanding securities;
or (iii) the consummation by the Company of the sale of all or substantially all
of the assets of the Company to any person or entity which is not a wholly-owned
subsidiary of the Company.
"Senior Indebtedness" shall mean the obligations of the Company to Carl
Marks and Intelefilm, evidenced by the Carl Marks Note and Intelefilm Note,
respectively, and includes all amendments, substitutions, extensions, increases,
refinancings, and other similar actions taken with respect to such obligations.
Senior Indebtedness shall continue to constitute Senior Indebtedness,
notwithstanding the fact that such Senior Indebtedness or any claim for such
Senior Indebtedness is subordinated, avoided or disallowed under the federal
Bankruptcy Code or other applicable law.
2. Security Interests of Lenders.
(a) Pursuant to the Intelefilm Note, the Company has granted to
Intelefilm a first priority security interest (as to $500,000 plus interest as
provided in the Intelefilm Note) in and to all of its assets as security for the
repayment of the Intelefilm Note. Intelefilm is filing a UCC-1 in the State of
Delaware to evidence its security interest. Intelefilm agrees to file this
Agreement with such UCC-1 filing.
(b) Pursuant to the Carl Marks Note, the Company has granted a second
priority security interest to Carl Marks in and to all of its assets as security
for the repayment of the Carl Marks Note. Carl Marks is filing a UCC-1 in the
State of Delaware to evidence its security interest. Carl Marks agrees to file
this Agreement with such UCC-1 filing.
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(c) Pursuant to the Senior Management Team Note, the Company has
granted a third priority security interest to the Senior Management Team Members
(as to $500,000 plus interest as provided in the Senior Management Team Notes)
in and to all of its assets as security for the repayment of the Senior
Management Team Note. The Senior Management Team Members are filing a UCC-1 in
the State of Delaware to evidence their security interest. The Senior Management
Team Members agree to file this Agreement with such UCC-1 filing.
3. Intercreditor and Subordination Provisions
3.1 Loans; Acknowledgment of Liens. The Company acknowledges that the
Lenders have made their respective Loans to the Company described in the
"BACKGROUND" section of this Agreement. Each Lender hereby agrees and
acknowledges that the other Lenders have been granted a Lien upon the Collateral
pursuant to their respective Notes. Prior to the date hereof, except as provided
in Section 2, no Lender has filed a UCC-1 evidencing the Liens.
3.2 Priority.
(a) Notwithstanding the order of time of attachment, or the order, time
or manner of perfection, or the order or time of filing or recordation of any
document or instrument, or other method of perfecting a lien in favor of each
Lender in any Collateral, and notwithstanding any conflicting terms or
conditions which may be contained in any of the Notes, the Liens granted by the
Company in favor of Intelefilm held by it pursuant to the Intelefilm Note (as to
$500,000 plus interest) have and shall have priority over the Liens of Carl
Marks evidenced by the Carl Marks Note and such Liens of Carl Marks are and
shall be, in all respects, subject and subordinate to the Liens of Intelefilm as
to $500,000 plus interest.
(b) Notwithstanding the order or time of attachment, or the order, time
or manner of perfection, or the order or time of filing or recordation of any
document or instrument, or other method of perfecting a Lien in favor of each
Lender in any Collateral, and notwithstanding any conflicting terms or
conditions which may be contained in any of the Notes, the Liens granted by the
Company in favor of Carl Marks and Intelefilm hereto have and shall have
priority over the Liens of the Senior Management Team granted pursuant to the
Senior Management Team Note and such Liens of the Senior Management Team are and
shall be, in all respects, subject and subordinate to the Liens of the Holders
of the Senior Indebtedness therein to the full extent of the Senior Indebtedness
outstanding from time to time.
(c) Any and all payments by the Company on the Loans, including any
payments by the Company to its creditors upon a Sale, Liquidation or Dissolution
Event, shall be made in the order of priority set forth in this Section 3.2.
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Except as expressly set forth herein, notwithstanding the foregoing, no Lender
shall be required to deliver to any other Lender or to hold in trust as
specified above any amount paid or prepaid by Company (and not obtained by it
through any sale of or other realization upon any Collateral or by enforcement
of its rights under any Note) in accordance with the terms of this Agreement.
3.3 No Alteration of Priority. The Lien priorities provided in Section
3.2 hereof shall not be altered or otherwise affected by any amendment,
modification, supplement, extension, renewal, restatement or refinancing of any
Senior Indebtedness, or any indebtedness payable under the Notes, nor by any
action or inaction which any Holder of Senior Indebtedness or Holder of
Subordinated Indebtedness may take or fail to take in respect of the Collateral.
3.4 Perfection. Each Lender shall be solely responsible for perfecting
and maintaining the perfection of its Lien in and to each item constituting the
Collateral in which such Lender has been granted a Lien. The foregoing
provisions of this Agreement are intended solely to govern the respective Lien
and repayment priorities as between the Lenders and except as expressly
otherwise provided herein, shall not impose on the Holders of Senior
Indebtedness any obligations in respect of the disposition of proceeds of
foreclosure on any Collateral which would conflict with prior perfected claims
therein in favor of any other Person. Each Lender agrees that it will not
contest the validity, perfection, priority or enforceability of the Liens of (a)
the Holders of Senior Indebtedness in the Collateral and that as between the
Holders of Senior Indebtedness and any other Lender, the terms of this Agreement
shall govern even if part or all of the Loans or the Liens of the Holders of
Senior Indebtedness securing payment and performance thereof are avoided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or
otherwise and (b) each Lender in the Collateral and that as among the Lenders,
the terms of this Agreement shall govern even if part or all of the Loans or the
Liens of the Lenders securing payment and performance of the Loans are voided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or
otherwise.
3.5 Other Agreements. (a) Each of the Lenders hereby covenants and
agrees that it (i) will not accept any guaranty of any of the Loans or other
obligations of the Company to such Lender unless such guaranty otherwise
guaranties the payment of all of the Loans in accordance with the terms and
conditions of this Agreement, (ii) will not take any security interest in or
Lien on any assets of Company, or any subsidiary thereof, to secure any of the
Loans unless such security interest or Lien secures the payment of all of the
Loans in accordance with the terms and conditions of this Agreement, and (iii)
will not accept prepayment on its Loan without the written consent of the other
Lenders.
(b) Each Lender agrees that, notwithstanding any provision of this
Agreement or any Note, any sums and amounts received by such Lender in
connection with such Lender's Loan shall be applied to the payment of its Loan
as follows: first, to the payment of all amounts due to such Lender under its
Note, other than principal and interest obligations on such Loan, second, to the
payment of all accrued but unpaid interest owed to such Lender by the Company,
and third, to the payment of all Loans owed to such Lender consisting of
principal.
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(c) Any Lender may purchase Collateral at any public sale of such
Collateral pursuant to its Note and may make payment on account thereof by using
any Loan then due and payable to such Lender by Company as a credit against the
purchase price to the extent, but only to the extent, approved by the other
Lenders, provided that no Lender shall withhold its consent if such amount to be
credited against the purchase price of the Collateral would have been a
permitted payment to such Lender under this Agreement.
(d) No Lender shall amend its respective Loan or Note without first
obtaining the prior written consent of the other Lenders, which consent shall
not be unreasonably withheld, delayed or conditioned, except if such amendment
accelerates the payment of principal or interest, then such consent shall be
solely at the Lender's discretion.
(e) The parties hereto acknowledge and agree that the terms and
conditions of the Senior Loan Agreement are fully incorporated by reference as
if stated herein and shall be used in construing and interpreting this Agreement
and the Carl Marks Note.
3.6 Subordination Provisions. (a) The Senior Management Team Note
("Subordinated Obligations") shall be subordinate and junior in right of payment
and collection to the prior indefeasible payment in full in cash to the Holders
of Senior Indebtedness of the principal, interest (including interest accruing
after the bankruptcy of the Company), fees and all other amounts owing on the
Intelefilm Note and Carl Marks Note ("Senior Obligations"), upon the terms and
to the extent set forth herein. Except as otherwise provided in this Agreement,
until such time that all amounts due in respect of the Senior Obligations have
been indefeasibly paid in full in cash, the Company shall not make, and the
Senior Management Team ("Junior Creditor") shall not receive, accept or retain,
directly or indirectly, any payment in respect of the Subordinated Obligations
or any security therefor, other than scheduled payments of interest.
Notwithstanding the foregoing, provided that no Event of Default shall have
occurred or would occur after giving effect thereto, the Company may make and
the Junior Creditor may receive the payments in accordance with the terms of the
Senior Management Team Note. Following the occurrence of an event of default,
the Company shall not be permitted to make and the Junior Creditor shall not be
permitted to receive any further payments with respect to the Subordinated
Obligations without the express written consent of the holders of Senior
Obligations.
(b) The Junior Creditor does hereby collaterally transfer and assign
all right, title and interest in and to, and grant a security interest in, the
Subordinated Obligations to Carl Marks and Intelefilm (the "Senior Creditor").
The Junior Creditor authorizes the Senior Creditor to file a financing
statement, and any amendments thereto, with respect to any Subordinated
Obligations, if the Senior Creditor deems such a filing is advisable to protect
the rights granted to it hereunder.
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(c) In the event that the Junior Creditor obtains any payment from or
on behalf of the Company with respect to the Subordinated Obligations which it
is not expressly permitted to receive pursuant to Section 3.6(a) hereof, the
Junior Creditor will hold such proceeds in trust for the benefit of the Senior
Creditor, and immediately deliver all such proceeds to the Senior Creditor
without counterclaim, deferral, deduction or setoff.
(d) In the event of any litigation, bankruptcy, collection or any other
similar proceeding with respect to the Company, the priorities set forth in this
Agreement shall continue to be operative and the provisions of this Agreement
shall continue to be applicable in any such proceeding. Upon any distribution of
the assets of the Company, or readjustment of the indebtedness of the Company,
whether by reason of reorganization, liquidation, bankruptcy, dissolution,
assignment for the benefit of creditors or any other action or proceeding
involving the readjustment of any or all of the Subordinated Obligations, or the
application of assets of the Company to the payment or liquidation thereof,
either in whole or in part, the Senior Creditor shall be entitled to receive
payment in full in cash of all of the Senior Obligations prior to the payment of
all or any of the Subordinated Obligations, and in order to enable the Senior
Creditor to assert and enforce its rights hereunder in any such action or
proceeding, or upon the happening of any such event, the Senior Creditor is
hereby irrevocably authorized and empowered, in the Senior Creditor's sole
discretion to make and present, for and on behalf of the Junior Creditor, such
proofs of claims against the Company on account of all or any of the
Subordinated Obligations and to vote the full amount of such claims in any such
proceeding, in each case, as the Senior Creditor may deem advisable, and to
receive and to apply the same on account of the Senior Obligations in such order
and priority as the Senior Creditor may determine. Upon any distribution of
assets to the Junior Creditor in violation of this Section 3.6(d), the Junior
Creditor shall hold such distribution in trust for the benefit of the Senior
Creditor and shall immediately deliver such distribution to the Senior Creditor
without counterclaim, deferral, deduction or setoff.
(e) The Carl Marks Note shall be subordinate and junior in right of
payment and collection to the prior indefeasible payment in full in cash to
Intelefilm of the principal, interest (including interest accruing after the
bankruptcy of the Company), fees and all other amounts owing on the Intelefilm
Note, upon the terms and to the extent set forth herein. Except as otherwise
provided in this Agreement, until such time that all amounts due in respect of
the Intelefilm Note have been indefeasibly paid in full in cash, the Company
shall not make, and Carl Marks shall not receive, accept or retain, directly or
indirectly, any payment in respect of the Carl Marks Note or any security
therefor. Notwithstanding the foregoing, provided that no event of default shall
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have occurred or would occur after giving effect thereto, the Company may make
and Carl Marks may receive the payments in accordance with the terms of the Carl
Marks Note. Following the occurrence of an event of default, the Company shall
not be permitted to make and Carl Marks shall not be permitted to receive any
further payments with respect to the Carl Marks Note without the express written
consent of Intelefilm.
(f) In the event that Carl Marks obtains any payment from or on behalf
of the Company with respect to the Carl Marks Note which it is not expressly
permitted to receive pursuant to Section 3.6(e) hereof, Carl Marks will hold
such proceeds in trust for the benefit of Intelefilm, and immediately deliver
all such proceeds to Intelefilm without counterclaim, deferral, deduction or
setoff.
3.7 Further Assurances. Upon the request of the Senior Creditor from
time to time, the Junior Creditor shall (i) execute whatever assignments,
instruments and/or documents may be required by the Senior Creditor in order to
enable the Senior Creditor to enforce its rights hereunder and to collect any
and all payments or disbursements which may be made in violation of this
Agreement at any time on account of all or any of Subordinated Obligations and
(ii) further execute whatever instruments and/or documents may be required by
the Senior Creditor in order to confirm that any Subordinated Obligations
incurred after the date hereof are confirmed to be subject to the terms of this
Agreement.
3.8 Assignment of Obligations; No Amendments. The Junior Creditor shall
not directly or indirectly sell, transfer, assign, dispose of, encumber or
subordinate at any time while this Agreement remains in effect, any right, claim
or interest of any kind in or to any of the Subordinated Obligations, whether
principal or interest or otherwise, to or in favor of the Company, or to or in
favor of any other Person. The Junior Creditor represents and warrants that
currently and at no times hereafter will the Subordinated Obligations or any
part thereof be represented by any note, other negotiable instruments or other
writings, except notes, other negotiable instruments or other writings endorsed
and delivered to the Senior Creditor. The Junior Creditor agrees that their
books and records shall appropriately indicate that the Subordinated Obligations
are subject to this Agreement. The Junior Creditor shall not amend, waive,
supplement or otherwise modify the terms of any of the Subordinated Obligations
without the prior written consent of the Senior Creditor.
3.9 Carl Marks Appointed Agent for Lenders. Carl Marks is hereby
appointed agent of the Lenders for purposes of this Agreement. Carl Marks agrees
that the terms of the Carl Marks Note and Senior Management Team Note cannot be
amended without the consent of Intelefilm. Upon a default by the Company under
the Intelefilm Note, Carl Marks shall take such actions consistent with
Intelefilm's rights under this Agreement.
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4. Miscellaneous.
4.1 Survival of Rights. The right of each Lender to enforce the
provisions of this Agreement shall not be prejudiced or impaired by any act or
omitted act of the Company, or any other Lender, including forbearance, waiver,
consent, compromise, amendment, extension, renewal, or taking or release of
security in respect of any Loans or noncompliance by the Company with such
provisions, regardless of the actual or imputed knowledge of Lenders.
4.2 Notice of Default and Certain Events. Each Lender and the Company
shall undertake in good faith to notify the other of the occurrence of any of
the following:
(a) the obtaining of actual knowledge of the occurrence of any
default under any Note, Loan or the Senior Loan Agreement;
(b) the acceleration of any Senior Indebtedness or of any of
the indebtedness payable under the Intelefilm Note, the Carl Marks
Note, or the Senior Loan Agreement;
(c) not less than ten (10) days prior written notice from a
Lender of its intention to accelerate any of the indebtedness payable
under the Intelefilm Note, the Carl Marks Note, or the Senior Loan
Agreement or exercise such Lender's rights in connection with a default
by Company under the Intelefilm Note, the Carl Marks Note, or the
Senior Loan Agreement;
(d) the granting by Lenders and/or the holder of any Senior
Indebtedness of any waiver of any event of default under any agreement
evidencing Senior Indebtedness or the granting by Lender of any waiver
of any "default" or "event of default" under the Intelefilm Note, the
Carl Marks Note, or the Senior Loan Agreement;
(e) the payment in full by Company (whether as a result of
refinancing or otherwise) of all Senior Indebtedness; or
(f) the sale or liquidation of, or realization upon, any
Collateral.
The failure of any party to give such notice shall not affect the relative Lien
priorities as provided in this Agreement.
4.3 Notices. Any notice or other communication required or permitted
pursuant to this Agreement shall be deemed given (a) when personally delivered,
(b) on the earlier of actual receipt thereof or three (3) days following posting
thereof by certified or registered mail, postage prepaid, (c) upon actual
receipt thereof when sent by a recognized overnight delivery service or (d) upon
actual receipt thereof when sent by telecopier to the number set forth below
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with electronic confirmation of receipt, in each case addressed to such party at
its address or telecopier number set forth below or at such other address or
telecopier number as has been furnished in writing by a party to the other by
like notice:
(a) if to the Company, at Curious Holdings LLC, 440 Lafayette Street,
6th Floor, New York, New York 10003, Facsimile: (212) ___-____, Attention: Susan
Holden, or such other address and/or fax number as may be furnished to the
Lenders by the Company, with a copy to Wollmuth Maher & Deutsch LLP, 500 Fifth
Avenue, ___Floor, New York, New York 10110, Attention: David A. Wollmuth, Esq.,
Telecopy No: 212-382-0050.
(b) if to the Lenders, to CM Opportunity Management Company, L.P., 135
East 57th Street, 27th Floor, New York, New York 10022, as Lender and agent for
Lenders, Attention: Howard Davidoff, Facsimile No.: 212-980-2630, and a copy to:
Paul, Hastings, Janofsky & Walker LLP, 399 Park Avenue, New York, New York
10022, Attention: Thomas More Griffin, Esq., Telecopy No. (212) 319-4090.
Each party to this Agreement agrees that e-mail notification is not permitted
hereunder and does not constitute notice under this Agreement.
4.4 Binding Effect; Other Matters. This Agreement shall be a continuing
agreement, shall be binding upon and shall inure to the benefit of the parties
hereto from time to time and their respective successors and assigns, shall be
irrevocable and shall remain in full force and effect until the Senior
Indebtedness shall have been satisfied or paid in full, and all other Loans have
been repaid in full, but shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any amount paid
by or on behalf of Company with regard to the Senior Indebtedness or Loans is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of Company, or upon or as
a result of the appointment of a receiver, intervenor or conservator of, or
trustee, custodian, or similar officer, for the Company or any substantial part
of its property, or otherwise, all as though such payments had not been made. No
action which Lenders, Holders of Senior Indebtedness or Company may take or
refrain from taking with respect to the Senior Indebtedness, including any
amendments thereto, shall affect the provisions of this Agreement or the
obligations of Lenders. Any waiver or amendment hereunder must be evidenced by a
signed writing of the party to be bound thereby, and shall only be effective in
the specific instance. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The headings in this
Agreement are for convenience of reference only, and shall not alter or
otherwise affect the meaning hereof.
5. Proceedings. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST ANY
LENDER OR THE COMPANY WITH RESPECT TO THIS AGREEMENT OR ANY RELATED AGREEMENT
MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN STATE OF NEW YORK, NEW
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YORK CITY, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PARTY THERETO
ACCEPTS FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO
BRING PROCEEDINGS AGAINST ANY OTHER LENDER OR THE COMPANY IN ANY COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY LENDER AGAINST THE COMPANY
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT
OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, SHALL
BE BROUGHT ONLY IN A COURT LOCATED IN THE CITY OF NEW YORK, STATE OF NEW YORK.
EACH LENDER AND THE COMPANY WAIVE ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
6. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY LENDER OR THE COMPANY OR ANY OF
THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTS OR
AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND
EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND THAT ANY OF
THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
7. Counterparts; Facsimile. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
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IN WITNESS WHEREOF, the undersigned have entered into this
Subordination and Intercreditor Agreement as of this [28] day of February, 2002.
CURIOUS HOLDINGS LLC
By: /s/ Susan Holden
---------------------------------------
Name: Susan Holden
Title:CFO
CM OPPORTUNITY FUND, LLC
By: CM Opportunity Management Company, L.P.
Its Manager
By: CM Manager I, LLC,
Its General Partner
By: /s/ Robert Davidoff
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Name: Robert Davidoff
Title: Managing Director
iNTELEFILM CORPORATION
By: /s/ Richard A. Wiethorn
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Name: Richard A. Wiethorn
Title: CFO
/s/ Susan Holden
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Susan Holden
/s/ Stephen Oakes
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Stephen Oakes
/s/ Richard Winkler
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Richard Winkler
/s/ David Starr
-------------------------------------------
David Starr