THIS INTERCREDITOR AGREEMENT (this "Intercreditor Agreement" or this
"Agreement") is made as of the _______day of November, 1998, by and among SPATIALIGHT, INC.,
a New York corporation (the "Borrower"), ARGYLE CAPITAL
MANAGEMENT CORPORATION, a Delaware corporation (when acting on its own behalf,
"Argyle"), each of the Persons listed on Schedule A annexed hereto, as now
existing and as hereafter amended from time to time, each of whom has executed a
counterpart of this Intercreditor Agreement (the Lenders listed on Schedule A
are hereinafter sometimes referred to as the "November Lenders"), and each of
the Persons listed on Schedule B annexed hereto, each of whom has executed a
counterpart of this Intercreditor Agreement by and through his or its duly
authorized agent, Argyle (the Lenders listed on Schedule B are hereinafter
sometimes referred to as the "August Lenders").
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement or consent to any departure by Argyle herefrom shall in any event
be effective unless the same shall be in writing and signed by the Senior
Lenders, and then such waiver or consent shall be effective only in the specific
instance and the specific purpose for which given.
SECTION 5.2 Expenses. Argyle agrees to pay, on demand, to the Senior
Lenders the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel, which the Agent or any Senior Lender may incur
in connection with the exercise or enforcement of any of the Senior Lenders'
rights, remedies or interests hereunder against Argyle to the extent Argyle
breaches any of the covenants or provisions contained in this Agreement.
SECTION 5.3 Notices. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by another, or whenever any of the parties desires to give or
serve upon another any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be delivered in person (or by personal delivery,
delivery service or overnight courier service) with receipt acknowledged,
or telecopied with receipt acknowledged, or sent by certified mail, return receipt
requested, postage prepaid, addressed as hereafter set forth, or mailed by
registered mail, return receipt requested, postage prepaid, addressed as
follows:
12
If to the Borrower: Spatialight, Inc.
8-C Commercial Boulevard
Novato, California 94949
Attention: Michael H. Burney
(415) 883-1693
(415) 883-3363 (Fax)
If to Argyle: Argyle Capital Management Corporation
14 East 82nd Street
New York, NY 10028
212-517-7313
212-517-4031 (Fax)
If to any November
Lender: At the address set forth for
such Lender on Schedule A
annexed hereto
If to Agent: Steven F. Tripp
2021 Brook Highland Ridge
Birmingham, AL 35242
205-991-3375
205-991-3376 (Fax)
If to any August
Lender: c/o Argyle Capital Management Corporation
14 East 82nd Street
New York, NY 10028
212-517-7313
212-517-4031 (Fax)
or at such other address or facsimile number as may be substituted by notice
given as herein provided. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice. Every notice,
demand, request, consent, approval, declaration or other communication hereunder
shall be deemed to have been duly given or served on the date on which
personally delivered, in person, by delivery service or by overnight courier
service, with receipt acknowledged, or the date of the telecopy transmission,
with receipt acknowledged or three (3) Business Days after the same shall have
been deposited in the United States mail. Failure or delay in delivering copies
of any notice, demand, request, consent, approval, declaration or other
communication to persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, approval, declaration
or other communication. A copy of any notice sent by telecopier shall be sent by
personal delivery or courier service. Delivery of said notice shall be deemed to
have been made on the earlier of receipt of the telecopy notice or the copy of
said notice sent by personal delivery or courier service.
SECTION 5.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with the internal laws of the State of New York.
13
SECTION 5.5 Invalidity. In the event that any provision hereof shall be
deemed to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision, but only as to such jurisdictions where such law
or interpretation is operative, and the invalidity of such provision shall not
affect the validity of any remaining provision hereof; and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
SECTION 5.6 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY, TO
THE FULLEST EXTENT PERMITTED BY LAW, WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 5.7 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument. Execution and delivery by facsimile shall constitute good and valid
execution and delivery unless and until replaced or substituted by an original
executed instrument.
IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date set forth above.
SPATIALIGHT, INC., a New York corporation
By:
Michael H. Burney
Chief Executive Officer
ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation
By:
Robert A. Olins, President
THE AUGUST LENDERS:
JERRY WHITLOCK, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
Robert A. Olins, President
MANSOUR RASNAVAD, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
Robert A. Olins, President
14
NETWORK FINANCE INCORPORATED,
a _____________________corporation,
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
Robert A. Olins, President
FARHAD AZIMA, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
Robert A. Olins, President
THE NOVEMBER LENDERS:
[Signature lines of Filing Persons omitted]
ACCEPTED AND AGREED TO:
Steven F. Tripp, as Agent
XHIBIT A
Schedule of Lenders
Lender Number of Shares Investment Amount
------ ---------------- -----------------
Ronald A. Weyers 111,110.67 $83,333.00
Jeffrey J. Weyers 111,110.67 $83,333.00
Robert J. Weyers 111,110.67 $83,333.00
Matthew A. King 50,000.00 $37,500.00
Robert O. Rolfe 66,666.67 $50,000.00
John W. Eakin 33,333.33 $25,000.00
Bryan B. Starr, Sr. 33,333.33 $25,000.00
Bryan B. Starr, Jr. 33,333.33 $25,000.00
Robert E. Woods 66,666.67 $50,000.00
Marcia K. Tripp 133,333.33 $100,000.00
Wayne Patrick Tripp Trust 66,666.67 $50,000.00
Lisa Marie Tripp Trust 66,666.67 $50,000.00
Steven Francis Tripp 133,333.33 $100,000.00
FBO Jimmie H. Harvey, M.D. 166,666.67 $125,000.00
Birmingham Hematology & Oncology Associates, SLB Flex Prototype P/S Plan DTD 10-17-85
Jimmie H. Harvey, M.D. 166,666.67 $125,000.00
Hilliard Limited Partnership 200,000.00 $150,000.00
Dan Hilliard 133,333.33 $100,000.00
Wallace J. Hilliard Flint Trust 133,333.33 $100,000.00
Paul Klister 33,333.33 $25,000.00
Jefferson R. Cobb 100,000.00 $75,000.00