EX-4.4



 





EXHIBIT 4.4
EXECUTION COPY




 





INTERCREDITOR AGREEMENT




Dated as of May 31,2007




among




IPC SYSTEMS, INC.,

and

TSW NETHERLANDS HOLDINGS C.V.,

as Borrowers,




TRADER ACQUISITION CORP,

as Holdings,




JPMORGAN CHASE BANK, N.A.,

as First Lien Collateral Agent,




and




GOLDMAN SACHS CREDIT PARTNERS L.P.

as Second Lien Collateral Agent




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. Definitions
	 	 	2	 
	1.1 Defined Terms
	 	 	2	 
	1.2 Terms Generally
	 	 	8	 
	 
	 	 	 	 
	SECTION 2. Lien Priorities
	 	 	9	 
	2.1 Relative Priorities
	 	 	9	 
	2.2 Prohibition on Contesting Liens
	 	 	10	 
	2.3 No New Liens
	 	 	10	 
	2.4 Similar Liens and Agreements
	 	 	10	 
	 
	 	 	 	 
	SECTIONS 3. Enforcement
	 	 	11	 
	3.1 Exercise of Remedies
	 	 	11	 
	 
	 	 	 	 
	SECTION 4. Payments
	 	 	14	 
	4.1 Application of Proceeds
	 	 	14	 
	4.2 Payments Over in Violation of Agreement
	 	 	14	 
	 
	 	 	 	 
	SECTIONS 5. Other Agreements
	 	 	15	 
	5.1 Releases
	 	 	15	 
	5.2 Insurance
	 	 	16	 
	5.3 Amendments to First Lien Loan Documents and Second Lien Loan
Documents
	 	 	17	 
	5.4 Bailee for Perfection
	 	 	19	 
	5.5 When Discharge of First Lien Obligations Deemed to Not Have
Occurred
	 	 	20	 
	5.6 Purchase Right
	 	 	20	 
	 
	 	 	 	 
	SECTION 6. Insolvency or Liquidation Proceedings
	 	 	21	 
	6.1 Finance and Sale Issues
	 	 	21	 
	6.2 Relief from the Automatic Stay
	 	 	21	 
	6.3 Adequate Protection
	 	 	21	 
	6.4 No Waiver by First Lien Claimholders
	 	 	22	 
	6.5 Reinstatement
	 	 	22	 
	6.6 Reorganization Securities
	 	 	23	 
	6.7 Post-Petition Interest
	 	 	23	 
	6.8 Waiver Related to Elections Under Section 1111
	 	 	23	 
	6.9 Separate Grants of Security and Separate Classification
	 	 	23	 
	 
	 	 	 	 
	SECTION 7. Reliance; Waivers; Etc
	 	 	24	 
	7.1 Reliance
	 	 	24	 
	7.2 No Warranties or Liability
	 	 	24	 
	7.3 First Lien Claimholders Freedom to Act
	 	 	25	 
	7.4 Second Lien Waiver of Valuation Rights
	 	 	27	 
	7.5 Obligations Unconditional
	 	 	27	 






 









 






	 	 	 	 	 
	 	 	Page
	SECTIONS 8. Miscellaneous
	 	 	28	 
	8.1 Conflicts
	 	 	28	 
	8.2 Effectiveness; Continuing Nature of this
Agreement; Severability
	 	 	28	 
	8.3 Amendments; Waivers
	 	 	28	 
	8.4 Information Concerning Financial Condition
of the Borrowers and their Subsidiaries
	 	 	29	 
	8.5 Subrogation
	 	 	29	 
	8.6 Application of Payments
	 	 	29	 
	8.7 SUBMISSION TO JURISDICTION; WAIVERS
	 	 	30	 
	8.8 Notices
	 	 	30	 
	8.9 Further Assurances
	 	 	31	 
	8.10 APPLICABLE LAW
	 	 	31	 
	8.11 Binding on Successors and Assigns
	 	 	31	 
	8.12 Specific Performance
	 	 	31	 
	8.13 Headings
	 	 	31	 
	8.14 Counterparts
	 	 	31	 
	8.15 Authorization
	 	 	31	 
	8.16 No Third Party Beneficiaries
	 	 	31	 
	8.17 Provisions Solely to Define Relative Rights
	 	 	32	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule 8.8 - Addresses for Notices
	 	 	 	 






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     This INTERCREDITOR AGREEMENT (this “Agreement”), is dated as
of May 31, 2007 and is entered into by and among IPC SYSTEMS, INC., a
Delaware corporation, (the “U.S. Borrower”), TSW NETHERLANDS
HOLDINGS C.V. (the “Dutch Borrower” and, together with the U.S.
Borrower, the “Borrowers”), TRADER ACQUISITION CORP
(“Holdings”). JPMORGAN CHASE BANK, N.A., (“JPMorgan”), in
its capacity as collateral agent with respect to the First Lien Obligations
(as defined below) (including its successors and assigns from time to time,
the “First Lien Collateral Agent”), and GOLDMAN SACHS CREDIT
PARTNERS L.P. (“GSCP”), in its capacity as collateral agent with
respect to the Second Lien Obligations (as defined below) (including its
successors and assigns from time to time, the “Second Lien Collateral
Agent”).



RECITALS




          The Borrowers, Holdings, the lenders party thereto, JPMorgan, as Administrative Agent and
Collateral Agent, GSCP and UBS Securities LLC (“UBS”), as Co-Syndication Agents, and CIT
Lending Services Corporation and Fortis Capital Corp., as Co-Documentation Agents, have entered
into that certain First Lien Credit Agreement dated as of the date hereof providing for a revolving
credit facility and term loans (as amended, restated, supplemented, modified, replaced or
refinanced from time to time, the “First Lien Credit Agreement”).




          The U.S. Borrower, Holdings, the lenders party thereto, GSCP, as Administrative Agent and
Collateral Agent, JPMorgan and UBS, as Co-Syndication Agents, and CIT Lending Services Corporation
and Fortis Capital Corp., as Co-Documentation Agents, have entered into that certain Second Lien
Credit Agreement dated as of the date hereof providing for term loans (as amended, restated,
supplemented, modified, replaced or refinanced from time to time, the “Second Lien Credit
Agreement”).




          Pursuant to the First Lien Credit Agreement, Holdings has agreed to guarantee the First Lien
Obligations (the “First Lien Holdings Guarantee”), the U.S. Borrower has agreed to
guarantee the First Lien Obligations of the Dutch Borrower (the “Foreign Guarantee”) and
Holdings and the U.S. Borrower have agreed to cause certain of their current and future
Subsidiaries (such current and future Subsidiaries, the “Subsidiary Guarantors”) to
guarantee the First Lien Obligations (the “First Lien Subsidiary Guarantee”). Pursuant to
the Second Lien Credit Agreement, Holdings has agreed to guarantee the Second Lien Obligations (the
“Second Lien Holdings Guarantee”) and Holdings and the U.S. Borrower have agreed to cause
the Subsidiary Guarantors to guarantee the Second Lien Obligations (the “Second Lien Subsidiary
Guarantee”).




          The obligations of the Borrowers under the First Lien Credit Agreement, any Hedge Agreements
and in connection with certain cash management services, the obligations of Holdings under the
First Lien Holdings Guarantee, the obligations of the U.S. Borrower under the Foreign Guarantee and
the obligations of the Subsidiary Guarantors under the First Lien Subsidiary Guarantee will be
secured on a first priority basis by liens on substantially all the



 









 






assets of the U.S. Borrower, Holdings and the Subsidiary Guarantors, respectively, pursuant to
the terms of the First Lien Collateral Documents.




          The obligations of the U.S. Borrower under the Second Lien Credit Agreement, the obligations
of Holdings under the Second Lien Holdings Guarantee and the obligations of the Subsidiary
Guarantors under the Second Lien Subsidiary Guarantee will be secured on a second priority basis by
liens on substantially all the assets of the U.S. Borrower, Holdings and the Subsidiary Guarantors,
respectively, pursuant to the terms of the Second Lien Collateral Documents.




          The First Lien Loan Documents and the Second Lien Loan Documents provide, among other things,
that the parties thereto shall set forth in this Agreement their respective rights and remedies
with respect to the Collateral.




          In order to induce the First Lien Collateral Agent and the First Lien Claimholders to consent
to the Grantors incurring the Second Lien Obligations and to induce the First Lien Claimholders to
extend credit and other financial accommodations and lend monies to or for the benefit of the
Borrowers or any other Grantor, the Second Lien Collateral Agent, on behalf of the Second Lien
Claimholders, has agreed to the intercreditor and other provisions set forth in this Agreement.




AGREEMENT




          In consideration of the foregoing, the mutual covenants and obligations herein set forth and
for other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:




SECTION 1.




Definitions.




          1.1 Defined Terms. As used in the Agreement, the following terms shall have the
following meanings:




          “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such Person. A Person
shall be deemed to control a corporation if such Person possesses, directly or indirectly, the
power (a) to vote 10% or more of the securities having ordinary voting power for the election of
directors of such corporation or (b) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting securities, by contract or
otherwise.




          “Agreement” means this Intercreditor Agreement, as amended, restated, renewed,
extended, supplemented or otherwise modified from time to time.




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          “Bankruptcy Code” means Title 11 of the United States Code entitled
“Bankruptcy,” as now and hereafter in effect, or any successor statute.




          “Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign
law for the relief of debtors.




          “Borrowers” has the meaning assigned to that term in the Preamble to this
Agreement.




          “Business Day” means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close.




          “Cap Amount” means $1,115,000,000.




          “Cash Collateral” has the meaning assigned to that term in Section 6.1.




          “Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, constituting both First Lien Collateral and Second Lien Collateral.




          “Comparable Second Lien Collateral Document” means, in relation to any Collateral
subject to any Lien created under any First Lien Collateral Document, the Second Lien Loan Document
which creates a Lien on the same Collateral, granted by the same Grantor.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement,
futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of
which is for the purpose of hedging the foreign currency risk associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.




          “DIP Financing” has the meaning assigned to that term in Section 6.1.




          “Discharge of First Lien Obligations” means, except to the extent otherwise
expressly provided in Section 5.5:





     (a) payment in full in cash of the principal of and interest (including interest
accruing on or after the commencement of any Insolvency or Liquidation Proceeding, whether
or not such interest would be allowed in such Insolvency or Liquidation Proceeding) on all
Indebtedness outstanding under the First Lien Loan Documents and constituting First Lien
Obligations;




     (b) payment in full in cash of all other First Lien Obligations that are due and
payable or otherwise accrued and owing at or prior to the time such principal and interest
are paid;




     (c) termination or expiration of all commitments, if any, to extend credit that would
constitute First Lien Obligations; and




     (d) termination or cash collateralization (in an amount and manner reasonably
satisfactory to the First Lien Collateral Agent, but in no event greater than 105% of the



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aggregate undrawn face amount) of all letters of credit issued under the First Lien Loan
Documents and constituting First Lien Obligations.



          “Disposition” has the meaning assigned to that term in Section 5.1.




          “Dutch Borrower” has the meaning assigned to such term in the Preamble to this
Agreement.




          “Excluded Incremental Indebtedness” means all loans and letters of credit under the
First Lien Credit Agreement that are made or issued pursuant to New Loan Commitments (as defined in
the First Lien Credit Agreement) that became effective through satisfaction of Section
2.14(a)(iii)(B) of the First Lien Credit Agreement.




          “First Lien Claimholders” means, at any relevant time, the holders of First Lien
Obligations at that time, including the First Lien Lenders, the Lender Counterparties and the
agents under the First Lien Loan Documents.




          “First Lien Collateral Agent” has the meaning assigned to that term in the
Preamble to this Agreement.




          “First Lien Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security for any First Lien
Obligations.




          “First Lien Collateral Documents” means the Security Documents (as defined in the
First Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a
Lien is granted securing any First Lien Obligations or under which rights or remedies with respect
to such Liens are governed.




          “First Lien Credit Agreement” has the meaning assigned to that term in the Recitals
to this Agreement.




          “First Lien Holdings Guarantee” has the meaning assigned to that term in the Recitals
to this Agreement.




          “First Lien Lenders” means the “Lenders” under and as defined in the First Lien Loan
Documents.




          “First Lien Loan Documents” means the First Lien Credit Agreement and the other Credit
Documents (as defined in the First Lien Credit Agreement) and any Hedge Agreement that (a) is in
effect on the Closing Date with a counterparty that is a First Lien Lender or an Affiliate of a
First Lien Lender as of the Closing Date or (b) is entered into after the Closing Date with any
counterparty that is a First Lien Lender or an Affiliate of a First Lien Lender at the time such
Hedge Agreement is entered into, and each of the other agreements, documents and instruments
providing for or evidencing any other First Lien Obligation, and any other document or instrument executed or delivered at any
time in connection with any First Lien Obligations, including any intercreditor or joinder
agreement among holders of First Lien Obligations, to the extent such are effective at the relevant
time, as each may be amended,




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restated, supplemented, modified, renewed or extended from time to time in accordance with the
provisions of this Agreement.




          “First Lien Obligations” means, subject to the next sentence, all Obligations (a)
outstanding under the First Lien Credit Agreement and the other First Lien Loan Documents
(including Hedge Agreements constituting First Lien Loan Documents) or (b) with respect to cash
management services (including obligations in respect of overdrafts, commercial card or purchasing
card services (which such obligations in respect of commercial card or purchasing card services
shall not exceed $4,000,000 at any time) and any automated clearing house transfers of funds
services). “First Lien Obligations” shall include all interest accrued or accruing (or
which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after
commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in
the relevant First Lien Loan Document whether or not the claim for such interest is allowed as a
claim in such Insolvency or Liquidation Proceeding. Notwithstanding the foregoing, if the sum of
(1) Indebtedness for borrowed money constituting principal outstanding under the First Lien Credit
Agreement and the other First Lien Loan Documents, other than Excluded Incremental Indebtedness,
plus (2) the aggregate face amount of any letters of credit issued but not reimbursed under the
First Lien Credit Agreement, other than letters of credit constituting Excluded Incremental
Indebtedness, is in excess of the Cap Amount, then only that portion of such Indebtedness and such
aggregate face amount of letters of credit equal to the Cap Amount, plus all Excluded Incremental
Indebtedness, shall be included in First Lien Obligations and interest and reimbursement
obligations with respect to such Indebtedness and letters of credit (and Excluded Incremental
Indebtedness) shall only constitute First Lien Obligations to the extent related to Indebtedness
and face amounts of letters of credit included in the First Lien Obligations.




          “First Lien Subsidiary Guarantee” has the meaning assigned to that term in the
Recitals to this Agreement.




          “Foreign Guarantee” has the meaning assigned to such term in the Recitals to this
Agreement.




          “Governmental Authority” means any nation, sovereign or government, any state,
province, territory or other political subdivision thereof, and any entity or authority exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to
government, including a central bank or stock exchange.




          “Grantors” means the Borrowers, Holdings, each of the Subsidiary Guarantors and each
other Person that has or may from time to time hereafter execute and deliver a First Lien
Collateral Document or a Second Lien Collateral Document as a “Grantor” (or the equivalent
thereof).




          “Hedge Agreements” means an Interest Rate Agreement or a Currency Agreement entered into in order to satisfy the requirements of the First Lien Credit Agreement or
otherwise in the ordinary course of Holdings’ or any of its Subsidiaries’ businesses.




          “Holdings” has the meaning set forth in the Recitals to this Agreement.




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          “Indebtedness” means and includes all Obligations that constitute “Indebtedness”
within the meaning of the First Lien Credit Agreement or the Second Lien Credit Agreement, as
applicable.




          “Insolvency or Liquidation Proceeding” means:





     (a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any
other Bankruptcy Law with respect to any Grantor;




     (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization or other similar case
or proceeding with respect to any Grantor or with respect to a material portion of its
assets;




     (c) any liquidation, dissolution, reorganization or winding up of any Grantor whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy; or




     (d) any assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Grantor.



          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or other similar
agreement or arrangement each of which is for the purpose of hedging the interest rate exposure
associated with Holdings’ and its Subsidiaries’ operations and not for speculative purposes.




          “Lender Counterparty” means each First Lien Lender or any Affiliate of a First Lien
Lender counterparty to a Hedge Agreement the obligations under which constitute Obligations
(including any Person that ceases to be a First Lien Lender (or any Affiliate thereof),
provided that such Person was a First Lien Lender (or an Affiliate thereof) as of the date
such Hedge Agreement was entered into).




          “Lien” means any mortgage, pledge, security interest, hypothecation, assignment, lien
(statutory or other) or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease in the nature thereof).




          “New Agent” has the meaning assigned to that term in Section 5.5.




          “Obligations” means all obligations of every nature of each Borrower, Holdings and
each other Grantor from time to time owed to any agent, trustee, First Lien Lender, Second Lien
Lender, Lender Counterparty or any of them or any of their respective Affiliates, in each case
under (a) the First Lien Loan Documents (including any Hedge Agreements constituting First Lien
Loan Documents), (b) the Second Lien Loan Documents or (c) in respect of cash management services (including obligations in respect
of overdrafts, commercial card or purchasing card services (which such obligations in respect of
commercial card or purchasing card services shall not exceed $4,000,000 at any time) and any
automated clearing house transfers of funds services), in each case, whether for principal,
interest, payments for early




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termination of Hedge Agreements, fees, expenses, indemnification or otherwise and all
guarantees of any of the foregoing.




          “Person” means any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any Governmental Authority.




          “Pledged Collateral” has the meaning set forth in Section 5.4.




          “Recovery” has the meaning set forth in Section 6.5.




          “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew,
defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other
indebtedness, in exchange or replacement for, such Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.




          “Second Lien Claimholders” means, at any relevant time, the holders of Second Lien
Obligations at that time, including the Second Lien Lenders and the agents under the Second Lien
Loan Documents.




          “Second Lien Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security for any Second Lien
Obligations.




          “Second Lien Collateral Agent” has the meaning assigned to that term in the Preamble
of this Agreement.




          “Second Lien Collateral Documents” means the Security Documents (as defined in the
Second Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a
Lien is granted securing any Second Lien Obligations or under which rights or remedies with respect
to such Liens are governed.




          “Second Lien Credit Agreement” has the meaning assigned to that term in the Recitals
to this Agreement.




          “Second Lien Holdings Guarantee” has the meaning assigned to that term in the Recitals
to this Agreement.




          “Second Lien Incremental Indebtedness” means all loans under the Second Lien Credit
Agreement that are made pursuant to New Term Loan Commitments (as defined in the Second Lien Credit
Agreement) that became effective through satisfaction of Section 2.14(a)(iii) of the Second Lien
Credit Agreement.




          “Second Lien Lenders” means the “Lenders” under and as defined in the Second Lien
Credit Agreement.




          “Second Lien Loan Documents” means the Second Lien Credit Agreement and the other
Credit Documents (as defined in the Second Lien Credit Agreement) and each of the other agreements,
documents and instruments providing for or evidencing any other Second Lien




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Obligation, and any other document or instrument executed or delivered at any time in connection
with any Second Lien Obligations, including any intercreditor or joinder agreement among holders of
Second Lien Obligations to the extent such are effective at the relevant time, as each may be
amended, restated, supplemented, modified, renewed or extended from time to time in accordance
with the provisions of this Agreement.




          “Second Lien Mortgages” means a collective reference to each mortgage, deed of trust
and any other document or instrument under which any Lien on real property owned or leased by any
Grantor is granted to secure any Second Lien Obligations or under which rights or remedies with
respect to any such Liens are governed.




          “Second Lien Obligations” means all Obligations outstanding under the Second Lien
Credit Agreement and the other Second Lien Loan Documents. “Second Lien Obligations” shall
include all interest accrued or accruing (or which would, absent commencement of an Insolvency or
Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in
accordance with the rate specified in the relevant Second Lien Loan Document whether or not the
claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.




          “Second Lien Subsidiary Guarantee” has the meaning assigned to that term in the
Recitals to this Agreement.




          “Standstill Period” has the meaning set forth in Section 3.1.




          “Subsidiary” means, with respect to any Person, (a) any corporation more than 50% of
whose capital stock of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective of whether or not at the time
capital stock of any class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (b) any partnership, association, joint venture or other entity
in which such Person directly or indirectly through Subsidiaries has more than a 50% equity or
partnership interest at the time.




          “Subsidiary Guarantors” has the meaning assigned to such term in the Recitals to this
Agreement.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation)
as in effect in any applicable jurisdiction.




          “U.S. Borrower” has the meaning assigned to such term in the Preamble to this
Agreement.




          1.2 Terms Generally. The definitions of terms in this Agreement shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise:




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     (a) any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented, modified, renewed or extended;




     (b) any reference herein to any Person shall be construed to include such Person’s
permitted successors and assigns;




     (c) the words “herein,” “hereof and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision
hereof;




     (d) all references herein to Sections shall be construed to refer to Sections of this
Agreement; and




     (e) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.



SECTION 2.




Lien Priorities.




          2.1 Relative Priorities. Notwithstanding the date, time, method, manner or order of
grant, attachment or perfection of any Liens securing the Second Lien Obligations granted on the
Collateral or of any Liens securing the First Lien Obligations granted on the Collateral and
notwithstanding any provision of the UCC, or any other applicable law or the Second Lien Loan
Documents or any defect or deficiencies in, or failure to perfect, the Liens securing the First
Lien Obligations or any other circumstance whatsoever, the Second Lien Collateral Agent, on behalf
of itself and the Second Lien Claimholders, hereby agrees that:





     (a) any Lien on the Collateral securing any First Lien Obligations now or hereafter
held by or on behalf of the First Lien Collateral Agent or any First Lien Claimholders or
any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to any Lien on the Collateral securing any Second Lien Obligations; and




     (b) any Lien on the Collateral securing any Second Lien Obligations now or hereafter
held by or on behalf of the Second Lien Collateral Agent, any Second Lien Claimholders or
any agent or trustee therefor regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all
respects to all Liens on the Collateral securing any First Lien Obligations. All Liens on
the Collateral securing any First Lien Obligations shall be and remain senior in all respects and prior to all Liens on
the Collateral securing any Second Lien Obligations for all purposes, whether or not such
Liens securing any First Lien



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Obligations are subordinated to any Lien securing any other obligation of the Borrowers,
any other Grantor or any other Person.



          2.2 Prohibition on Contesting Liens. Each of the Second Lien Collateral Agent, for
itself and on behalf of each Second Lien Claimholder, and the First Lien Collateral Agent, for
itself and on behalf of each First Lien Claimholder, agrees that it will not (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a
Lien held by or on behalf of any of the First Lien Claimholders in the First Lien Collateral or by
or on behalf of any of the Second Lien Claimholders in the Second Lien Collateral, as the case may
be, or the provisions of this Agreement; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of the First Lien Collateral Agent or any First Lien
Claimholder to enforce this Agreement, including the provisions of this Agreement relating to the
priority of the Liens securing the First Lien Obligations as provided in Sections 2.1 and 3.1.




          2.3 No New Liens. So long as the Discharge of First Lien Obligations has not occurred,
whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any
Borrower or any other Grantor, the parties hereto agree that the Borrowers shall not, and shall not
permit any other Grantor to:





     (a) grant or permit any additional Liens on any asset or property to secure any Second
Lien Obligation unless it has granted or concurrently grants a Lien on such asset or
property to secure the First Lien Obligations; or




     (b) grant or permit any additional Liens on any asset or property to secure any First
Lien Obligations unless it has granted or concurrently grants a Lien on such asset or
property to secure the Second Lien Obligations.


To the extent that the foregoing provisions are not complied with for any reason, without limiting
any other rights and remedies available to the First Lien Collateral Agent and/or the First Lien
Claimholders, the Second Lien Collateral Agent, on behalf of Second Lien Claimholders, agrees that
any amounts received by or distributed to it or any of them pursuant to or as a result of Liens
granted in contravention of this Section 2.3 shall be subject to Section 4.2.




          2.4 Similar Liens and Agreements. The parties hereto agree that it is their intention
that the First Lien Collateral and the Second Lien Collateral be identical. In furtherance of the
foregoing and of Section 8.9, the parties hereto agree, subject to the other provisions of this
Agreement:





     (a) upon request by the First Lien Collateral Agent or the Second Lien Collateral
Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith)
from time to time in order to determine the specific items included in the First Lien Collateral and the Second Lien Collateral and the steps
taken to perfect their respective Liens thereon and the identity of the respective parties
obligated under the First Lien Loan Documents and the Second Lien Loan Documents; and




     (b) that the documents and agreements creating or evidencing the First Lien Collateral
and the Second Lien Collateral and guarantees of the First Lien Obligations



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and the Second Lien Obligations, subject to Section 5.3(d), shall be in all material
respects the same forms of documents other than with respect to the first lien and the
second lien nature of the Obligations thereunder.



SECTION 3.




Enforcement.




          3.1 Exercise of Remedies.




          (a) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency
or Liquidation Proceeding has been commenced by or against any Borrower or any other Grantor, the
Second Lien Collateral Agent and the Second Lien Claimholders:





     (1) are prohibited from exercising, and will not exercise or seek to exercise,
any rights or remedies with respect to any Collateral (including the exercise of
any right of setoff or any right under any lockbox agreement, account control
agreement, landlord waiver or bailee’s letter or similar agreement or arrangement
to which the Second Lien Collateral Agent or any Second Lien Claimholder is a
party) or institute any action or proceeding with respect to such rights or
remedies (including any action of foreclosure); provided, however, that the Second
Lien Collateral Agent may exercise any or all such rights or remedies after the
passage of a period of at least 180 days has elapsed since the later of: (A) the
date on which the Second Lien Collateral Agent declares the existence of any Event
of Default under any Second Lien Loan Documents and demands the repayment of all
the principal amount of any Second Lien Obligations; and (B) the date on which the
First Lien Collateral Agent receives notice from the Second Lien Collateral Agent
of such declaration of an Event of Default, (the “Standstill Period”); provided,
further, however, that notwithstanding anything herein to the contrary, in no event
shall the Second Lien Collateral Agent or any Second Lien Claimholder exercise any
rights or remedies with respect to the Collateral if, notwithstanding the
expiration of the Standstill Period, the First Lien Collateral Agent or First Lien
Claimholders shall have commenced and be diligently pursuing the exercise of their
rights or remedies with respect to all or any material portion of the Collateral
(prompt notice of such exercise to be given to the Second Lien Collateral Agent);




     (2) are prohibited from contesting, protesting or objecting, and will not
contest, protest or object, to any foreclosure proceeding or action brought by the
First Lien Collateral Agent or any First Lien Claimholder or any other exercise by
the First Lien Collateral Agent or any First Lien Claimholder of any rights and
remedies relating to the Collateral under the First Lien Loan Documents or otherwise; and




     (3) subject to their rights under clause (1) above and except as may be
permitted in Section 3.1(c), will not object to the forbearance by the First Lien




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Collateral Agent or the First Lien Claimholders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies
relating to the Collateral;


provided,
that, in the case of clauses (1), (2) and (3) above, the Liens granted to secure the
Second Lien Obligations of the Second Lien Claimholders shall attach to any proceeds resulting from
actions taken by the First Lien Collateral Agent or any First Lien Claimholder in accordance with
this Agreement after application of such proceeds to the extent necessary to meet the requirements
of a Discharge of First Lien Obligations.




          (b) Until the Discharge of First Lien Obligations has occurred, whether or not any Insolvency
or Liquidation Proceeding has been commenced by or against any Borrower or any other Grantor,
subject to Section 3.1(a)(l), the First Lien Collateral Agent and the First Lien Claimholders shall
have the right to enforce rights, exercise remedies (including set-off and the right to credit bid
their debt) and make determinations regarding the release, disposition, or restrictions with
respect to the Collateral without any consultation with or the consent of the Second Lien
Collateral Agent or any Second Lien Claimholder; provided, that the Lien securing the Second Lien
Obligations shall remain on the proceeds of such Collateral released or disposed of subject to the
relative priorities described in Section 2. In exercising rights and remedies with respect to the
Collateral, the First Lien Collateral Agent and the First Lien Claimholders may enforce the
provisions of the First Lien Loan Documents and exercise remedies thereunder, all in such order and
in such manner as they may determine in the exercise of their sole discretion. Such exercise and
enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of
Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to
exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor
under Bankruptcy Laws of any applicable jurisdiction.




          (c) Notwithstanding the foregoing, the Second Lien Collateral Agent and any Second Lien
Claimholder may:





     (1) file a claim or statement of interest with respect to the Second Lien
Obligations; provided that an Insolvency or Liquidation Proceeding has been
commenced by or against any Borrower or any other Grantor;




     (2) take any action (not adverse to the priority status of the Liens on the
Collateral securing the First Lien Obligations, or the rights of any First Lien
Collateral Agent or the First Lien Claimholders to exercise remedies in respect
thereof) in order to create, perfect, preserve or protect its Lien on the
Collateral;




     (3) file any necessary responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleading made by any person objecting
to or otherwise seeking the disallowance of the claims of the Second Lien
Claimholders, including any claims secured by the Collateral, if any, in each case
in accordance with the terms of this Agreement;




     (4) file any pleadings, objections, motions or agreements which assert rights
or interests available to unsecured creditors of the Grantors arising under



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either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law,
in each case not inconsistent with the terms of this Agreement;




     (5) vote on any plan of reorganization, file any proof of claim, make other
filings and make any arguments and motions that are, in each case, in accordance
with the terms of this Agreement, with respect to the Second Lien Obligations and
the Collateral; and




     (6) exercise any of its rights or remedies with respect to the Collateral
after the termination of the Standstill Period to the extent
permitted by Section 3.1(a)(1).


The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, agrees that
it will not take or receive any Collateral or any proceeds of Collateral in connection with the
exercise of any right or remedy (including set-off) with respect to any Collateral in its capacity
as a creditor in violation of this Agreement. Without limiting the generality of the foregoing,
unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided
in Sections 3.1(a), 6.3(b) and this Section 3.1(c), the sole right of the Second Lien Collateral
Agent and the Second Lien Claimholders with respect to the Collateral is to hold a Lien on the
Collateral pursuant to the Second Lien Collateral Documents for the period and to the extent
granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of
First Lien Obligations has occurred.





(d) Subject to Sections 3.1 (a) and (c) and Section 6.3(b):




     (1) the Second Lien Collateral Agent, for itself and on behalf of the Second
Lien Claimholders, agrees that it and the Second Lien Claimholders will not take
any action that would hinder any exercise of remedies under the First Lien Loan
Documents or that is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the Collateral, whether by foreclosure
or otherwise;




     (2) the Second Lien Collateral Agent, for itself and on behalf of the Second
Lien Claimholders, hereby waives any and all rights it or the Second Lien
Claimholders may have as a junior lien creditor or otherwise to object to the
manner in which the First Lien Collateral Agent or the First Lien Claimholders seek
to enforce or collect the First Lien Obligations or the Liens securing the First
Lien Obligations granted in any of the First Lien Collateral undertaken in
accordance with this Agreement, regardless of whether any action or failure to act
by or on behalf of the First Lien Collateral Agent or First Lien Claimholders is
adverse to the interest of the Second Lien Claimholders; and




     (3) the Second Lien Collateral Agent hereby acknowledges and agrees that no
covenant, agreement or restriction contained in the Second Lien Collateral
Documents or any other Second Lien Loan Document (other than this Agreement) shall
be deemed to restrict in any way the rights and remedies of the First Lien



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Collateral Agent or the First Lien Claimholders with respect to the Collateral as
set forth in this Agreement and the First Lien Credit Documents.



          (e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Second Lien
Collateral Agent and the Second Lien Claimholders may exercise rights and remedies as unsecured
creditors against the Borrowers or any other Grantor that has guaranteed or granted Liens to secure
the Second Lien Obligations in accordance with the terms of the Second Lien Loan Documents and
applicable law; provided that in the event that any Second Lien Claimholder becomes a judgment Lien
creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured
creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the
terms of this Agreement for all purposes (including in relation to the First Lien Obligations) as
the other Liens securing the Second Lien Obligations are subject to this Agreement.




          (f) Nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral Agent
or any Second Lien Claimholders of the required payments of interest, principal and other amounts
owed in respect of the Second Lien Obligations so long as such receipt is not the direct or
indirect result of the exercise by the Second Lien Collateral Agent or any Second Lien Claimholders
of rights or remedies as a secured creditor (including set-off) or enforcement in contravention of
this Agreement of any Lien held by any of them. Nothing in this Agreement impairs or otherwise
adversely affects any rights or remedies the First Lien Collateral Agent or the First Lien
Claimholders may have with respect to the First Lien Collateral.




SECTION 4.




Payments.




          4.1 Application of Proceeds. So long as the Discharge of First Lien Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
any Borrower or any other Grantor, Collateral or proceeds thereof received in connection with the
sale or other disposition of, or collection on, such Collateral upon the exercise of remedies by
the First Lien Collateral Agent or First Lien Claimholders, shall be applied by the First Lien
Collateral Agent to the First Lien Obligations in such order as specified in the relevant First
Lien Loan Documents. Upon the Discharge of First Lien Obligations, the First Lien Collateral Agent
shall deliver to the Second Lien Collateral Agent any Collateral and proceeds of Collateral held by
it in the same form as received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct to be applied by the Second Lien Collateral Agent to the Second
Lien Obligations in such order as specified in the Second Lien Collateral Documents.




          4.2 Payments Over in Violation of Agreement. So long as the Discharge of First Lien
Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Borrower or any other Grantor, any Collateral or proceeds thereof
(including assets or proceeds subject to Liens referred to in the final sentence of Section 2.3)
received by the Second Lien Collateral Agent or any Second Lien Claimholders in



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connection with the exercise of any right or remedy (including set-off) relating to the
Collateral in contravention of this Agreement shall be segregated and held in trust and forthwith
paid over to the First Lien Collateral Agent for the benefit of the First Lien Claimholders in the
same form as received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. The First Lien Collateral Agent is hereby authorized to make any such
endorsements as agent for the Second Lien Collateral Agent or any such Second Lien Claimholders.
This authorization is coupled with an interest and is irrevocable until the Discharge of First Lien
Obligations.




SECTION 5.




Other Agreements.





5.1 Releases.



          (a) If in connection with the exercise of the First Lien Collateral Agent’s remedies in
respect of the Collateral provided for in Section 3.1, the First Lien Collateral Agent, for itself
or on behalf of any of the First Lien Claimholders, releases any of its Liens on any part of the
Collateral or releases any Grantor from its portion of the First Lien Obligations in connection
with the sale of the stock, or substantially all the assets, of such Grantor, then the Liens, if
any, of the Second Lien Collateral Agent, for itself or for the benefit of the Second Lien
Claimholders, on such Collateral, and such Grantor’s portion of the Second Lien Obligations, shall
be automatically, unconditionally and simultaneously released. The Second Lien Collateral Agent,
for itself or on behalf of any such Second Lien Claimholders, promptly shall execute and deliver to
the First Lien Collateral Agent or such Grantor such termination statements, releases and other
documents as the First Lien Collateral Agent or such Grantor may request to effectively confirm
such release.




          (b) If in connection with any sale, lease, exchange, transfer or other disposition of any
Collateral (collectively, a “Disposition”) permitted under the terms of both the First Lien
Loan Documents and the Second Lien Loan Documents (other than in connection with the exercise of
the First Lien Collateral Agent’s remedies in respect of the Collateral provided for in Section
3.1), the First Lien Collateral Agent, for itself or on behalf of any of the First Lien
Claimholders, releases any of its Liens on any part of the Collateral, or releases any Grantor from
its portion of the First Lien Obligations in connection with the sale of the stock, or
substantially all the assets, of such Grantor, in each case other than (1) in connection with the
Discharge of First Lien Obligations or (2) after the occurrence and during the continuance of any
Event of Default under the Second Lien Credit Agreement, then the Liens, if any, of the Second Lien
Collateral Agent, for itself or for the benefit of the Second Lien Claimholders, on such
Collateral, and such Grantor’s portion of the Second Lien Obligations, shall be automatically,
unconditionally and simultaneously released. The Second Lien Collateral Agent, for itself or on
behalf of any such Second Lien Claimholders, promptly shall execute and deliver to the First Lien
Collateral Agent or such Grantor such termination statements, releases and other documents as the
First Lien Collateral Agent or such Grantor may request to effectively confirm such release.




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          (c) Until the Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent,
for itself and on behalf of the Second Lien Claimholders, hereby irrevocably constitutes and
appoints the First Lien Collateral Agent and any officer or agent of the First Lien Collateral
Agent, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Second Lien Collateral Agent or such
holder or in the First Lien Collateral Agent’s own name, from time to time in the First Lien
Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary to accomplish the purposes of this Section 5.1, including any endorsements or other
instruments of transfer or release.




          (d) Until the Discharge of First Lien Obligations occurs, to the extent that the First Lien
Collateral Agent or the First Lien Claimholders (1) have released any Lien on Collateral or any
Grantor from its portion of the First Lien Obligations and any such Liens or obligations are later
reinstated or (2) obtain any new Liens or additional obligations from any Grantor, then the Second
Lien Collateral Agent, for itself and for the Second Lien Claimholders, shall be granted a Lien on
any such Collateral, subject to the lien subordination provisions of this Agreement, and shall
obtain such additional obligations, as the case may be.




          (e) In
the event that the principal amount of funded First Lien Obligations plus the aggregate
face amount of letters of credit, if any, issued under the First Lien Credit Agreement plus the
aggregate principal amount of unfunded commitments under the First Lien Credit Agreement
(collectively, the “First Lien Obligations Amount”), at any date of determination no longer
constitute at least 15% of the sum of (i) the First Lien Obligations Amount and (ii) the principal
amount of funded Second Lien Obligations (collectively, the “Second Lien Obligations
Amount”), then any agreement provided for in Section 5.1 (a) and (b) above (except for releases
given in connection with a Disposition permitted under the First Lien Loan Documents and the Second
Lien Loan Documents) shall require the consent of First Lien Claimholders and Second Lien
Claimholders representing in the aggregate more than 50% of the sum of (i) the First Lien
Obligations Amount and (ii) the Second Lien Obligations Amount.




          5.2 Insurance. Unless and until the Discharge of First Lien Obligations has occurred,
subject to the terms of, and the rights of the Grantors under, the First Lien Loan Documents, the
First Lien Collateral Agent and the First Lien Claimholders shall have the sole and exclusive right
to adjust settlement for any insurance policy covering the Collateral in the event of any loss
thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed
in lieu of condemnation) affecting the Collateral. Unless and until the Discharge of First Lien
Obligations has occurred, and subject to the rights of the Grantors under the First Lien Loan
Documents, all proceeds of any such policy and any such award (or any payments with respect to a
deed in lieu of condemnation) if in respect to the Collateral and to the extent required by the
First Lien Loan Documents shall be paid to the First Lien Collateral Agent for the benefit of the
First Lien Claimholders pursuant to the terms of the First Lien Credit Documents (including,
without limitation, for purposes of cash collateralization of letters of credit) and thereafter, to
the extent no First Lien Obligations are outstanding, and subject to the
rights of the Grantors under the Second Lien Collateral Documents, to the Second Lien
Collateral Agent for the benefit of the Second Lien Claimholders to the extent required under the
Second Lien Collateral Documents and then, to the extent no Second Lien Obligations are




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outstanding, to the owner of the subject property, such other Person as may be entitled
thereto or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First
Lien Obligations has occurred, if the Second Lien Collateral Agent or any Second Lien Claimholder
shall, at any time, receive any proceeds of any such insurance policy or any such award or payment
in contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such
proceeds over to the First Lien Collateral Agent in accordance with the terms of Section 4.2.




          5.3
Amendments to First Lien Loan Documents and Second Lien Loan Documents. (a) The
First Lien Loan Documents may be amended, supplemented or otherwise modified in accordance with
their terms and the First Lien Credit Agreement may be Refinanced, in each case, without notice to,
or the consent of the Second Lien Collateral Agent or the Second Lien Claimholders, all without
affecting the lien subordination or other provisions of this Agreement; provided,
however, that the holders of such Refinancing debt bind themselves in a writing addressed
to the Second Lien Collateral Agent and the Second Lien Claimholders to the terms of this Agreement
and any such amendment, supplement, modification or Refinancing shall not, without the consent of
the Second Lien Collateral Agent:





     (1) result in the aggregate principal amount of loans and commitments of First
Lien Lenders to make loans or issue letters of credit under the First Lien Credit
Agreement, in each case, other than loans constituting or commitments to make loans
or issue letters of credit that would constitute Excluded Incremental Indebtedness,
to exceed the Cap Amount;




     (2) make any amendment to or other modification of
Section 2.14(a)(iii)(B) of the First Lien Credit Agreement or the related
definitions, the direct or indirect effect of which would be to increase the
possible amount of Excluded Incremental Indebtedness that could be incurred
thereunder; or




     (3) contravene the provisions of this Agreement.



          (b) Without the prior written consent of the First Lien Collateral Agent, no Second Lien Loan
Document may be Refinanced, amended, supplemented or otherwise modified or entered into to the
extent such Refinancing, amendment, supplement or modification, or the terms of any new Second Lien
Loan Document, would:





     (1) contravene the provisions of this Agreement, or




     (2) make any amendment to or other modification of Section 2.14(a)(iii) of the
Second Lien Credit Agreement or the related definitions, the direct or indirect
effect of which would be to increase the possible amount of Second Lien Incremental
Indebtedness that could be incurred thereunder.



          (c) The Borrowers and the Second Lien Collateral Agent, on behalf of the Second Lien
Claimholders, agree that each Second Lien Collateral Document shall
include the following language (or language to similar effect approved by the First Lien
Collateral Agent):




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“Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Second Lien Collateral Agent pursuant
to this Agreement and the exercise of any right or remedy by the Second
Lien Collateral Agent hereunder are subject to the provisions of the
Intercreditor Agreement, dated as of May 31, 2007 (as amended,
restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among IPC Systems, Inc., TSW
Netherlands Holdings C.V., Trader Acquisition Corp, JPMorgan Chase
Bank, N.A., as First Lien Collateral Agent, and Goldman Sachs Credit
Partners L.P., as Second Lien Collateral Agent and certain other
persons party or that may become party thereto from time to time. In
the event of any conflict between the terms of the Intercreditor
Agreement and this Agreement, the terms of the Intercreditor Agreement
shall govern and control.”


In addition, the Borrowers and the Second Lien Collateral Agent, on behalf of the Second Lien
Claimholders, agree that each Second Lien Mortgage covering any Collateral shall contain such other
language as the First Lien Collateral Agent may reasonably request to reflect the lien
subordination of such Second Lien Mortgage to the First Lien Collateral Document covering such
Collateral.




          (d) In the event the First Lien Collateral Agent or the First Lien Claimholders and the
relevant Grantor enter into any amendment, waiver or consent in respect of any of the First Lien
Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to
any departures from any provisions of, any First Lien Collateral Document or changing in any manner
the rights of the First Lien Collateral Agent, such First Lien Claimholders, the Borrowers or any
other Grantor thereunder, then such amendment, waiver or consent shall apply automatically to any
comparable provision of the Comparable Second Lien Collateral Document without the consent of the
Second Lien Collateral Agent or the Second Lien Claimholders and without any action by the Second
Lien Collateral Agent, the Borrowers or any other Grantor,
provided, that:





     (1) no such amendment, waiver or consent shall have the effect of:




     (A) removing or releasing assets subject to the Lien of the Second
Lien Collateral Documents, except to the extent that a release of such Lien
i s permitted or required by Section 5.1 of this Agreement and provided
that there is a corresponding release of the Liens securing the First Lien
Obligations;




     (B) imposing duties on the Second Lien Collateral Agent without its
consent;




     (C)
permitting other Liens on the Collateral not permitted under the
terms of the Second Lien Loan Documents or Section 6; or



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     (D) being prejudicial to the interests of the Second Lien
Claimholders to a greater extent than the First Lien Claimholders; and




     (2) notice of such amendment, waiver or consent shall have been given to the
Second Lien Collateral Agent within ten (10) Business Days after the effective date
of such amendment, waiver or consent.



          5.4 Bailee for Perfection, (a) The First Lien Collateral Agent agrees to hold that
part of the Collateral that is in its possession or control (or in the possession or control of its
agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien
thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent
for the First Lien Claimholders and as bailee for the Second Lien Collateral Agent (such bailment
being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and
9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest
granted under the First Lien Loan Documents and the Second Lien Loan Documents, respectively,
subject to the terms and conditions of this Section 5.4.




          (b) The First Lien Collateral Agent shall have no obligation whatsoever to the First Lien
Claimholders, the Second Lien Collateral Agent or any Second Lien Claimholder to ensure that the
Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of
any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the
First Lien Collateral Agent under this Section 5.4 shall be limited solely to holding the Pledged
Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged Collateral upon
a Discharge of First Lien Obligations as provided in paragraph (d) below.




          (c) The First Lien Collateral Agent acting pursuant to this Section 5.4 shall not have by
reason of the First Lien Collateral Documents, the Second Lien Collateral Documents, this Agreement
or any other document a fiduciary relationship in respect of the First Lien Claimholders, the
Second Lien Collateral Agent or any Second Lien Claimholder.




          (d) Upon the Discharge of First Lien Obligations, the First Lien Collateral Agent shall
deliver the remaining Pledged Collateral (if any) together with any necessary endorsements, first,
to the Second Lien Collateral Agent to the extent Second Lien Obligations remain outstanding, and
second, to the U.S. Borrower to the extent no First Lien Obligations or Second Lien Obligations
remain outstanding (in each case, so as to allow such Person to obtain possession or control of
such Pledged Collateral). Upon the Discharge of the First Lien Obligations, the First Lien
Collateral Agent further agrees to take all other action reasonably requested by the Second Lien
Collateral Agent in connection with the Second Lien Collateral Agent obtaining a first-priority
interest in the Collateral or as a court of competent jurisdiction may otherwise direct.




          (e) Subject to the terms of this Agreement, so long as the Discharge of First Lien Obligations
has not occurred, the First Lien Collateral Agent shall be entitled to deal with the Pledged
Collateral or other Collateral within its “control” in accordance with the terms of this Agreement
and other First Lien Credit Documents as if the Liens of the Second Lien Collateral Agent and
Second Lien Claimholders did not exist.




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          5.5 When Discharge of First Lien Obligations Deemed to Not Have Occurred. If
concurrently with the Discharge of First Lien Obligations, any Borrower thereafter enters into any
Refinancing of any First Lien Loan Document evidencing a First Lien Obligation which Refinancing is
permitted by the Second Lien Loan Documents, then such Discharge of First Lien Obligations shall
automatically be deemed not to have occurred for all purposes of this Agreement (other than with
respect to any actions taken as a result of the occurrence of such first Discharge of First Lien
Obligations), and, from and after the date on which the New First Lien Debt Notice (as defined
below) is delivered to the Second Lien Collateral Agent in accordance with the next sentence, the
obligations under such Refinancing of such First Lien Loan Document shall automatically be treated
as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien
priorities and rights in respect of Collateral set forth herein, and the First Lien Collateral
Agent under such First Lien Loan Document shall be the First Lien Collateral Agent for all purposes
of this Agreement. Upon receipt of a notice (the “New First Lien Debt Notice”) stating that
any Borrower has entered into a new First Lien Loan Document (which notice shall include the
identity of the new first lien collateral agent; such agent, the “New Agent”), the Second
Lien Collateral Agent shall promptly (a) enter into such documents and agreements (including
amendments or supplements to this Agreement) as the applicable Borrower or such New Agent shall
reasonably request in order to provide to the New Agent the rights contemplated hereby, in each
case consistent in all material respects with the terms of this Agreement and (b) deliver to the
New Agent any Pledged Collateral held by it together with any necessary endorsements (or otherwise
allow the New Agent to obtain control of such Pledged Collateral). The New Agent shall agree in a
writing addressed to the Second Lien Collateral Agent and the Second Lien Claimholders to be bound
by the terms of this Agreement. If the new First Lien Obligations under the new First Lien Loan
Documents are secured by assets of the Grantors constituting Collateral that do not also secure the
Second Lien Obligations, then the Second Lien Obligations shall be secured at such time by a second
priority Lien on such assets to the same extent provided in the Second Lien Collateral Documents
and this Agreement.




          5.6 Purchase Right. Without prejudice to the enforcement of the First Lien
Claimholders’ remedies, the First Lien Claimholders agree that at any time following an
acceleration of the First Lien Obligations in accordance with the terms of the First Lien Credit
Agreement, the First Lien Claimholders will offer the Second Lien Claimholders the option to
purchase the entire aggregate amount of outstanding First Lien Obligations (including unfunded
commitments under the First Lien Credit Agreement) at par plus accrued interest (without regard to
any prepayment penalty or premium), without warranty or representation or recourse, on a pro rata
basis across all First Lien Claimholders. The Second Lien Claimholders shall irrevocably accept or
reject such offer within ten (10) Business Days of the receipt thereof and the parties shall
endeavor to close promptly thereafter. If the Second Lien Claimholders accept such offer, ti shall
be exercised pursuant to documentation mutually acceptable to each of the First Lien Collateral
Agent and the Second Lien Collateral Agent. If the Second Lien Claimholders reject such offer (or
do not so irrevocably accept such offer within the required timeframe), the First Lien Claimholders
shall have no further obligations pursuant to this
Section 5.6 and may take any further actions in their sole discretion in accordance with the
First Lien Loan Documents and this Agreement.




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SECTION 6.




Insolvency or Liquidation Proceedings.




          6.1 Finance and Sale Issues. Until the Discharge of First Lien Obligations has
occurred, if any Borrower or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the First Lien Collateral Agent shall desire to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the Bankruptcy Code) on which the First Lien
Collateral Agent or any other creditor has a Lien or to permit the applicable Borrower or any other
Grantor to obtain financing, whether from the First Lien Claimholders or any other Person, under
Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (a “DIP Financing”) then
the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, agrees that
it will raise no objection to such Cash Collateral use or DIP Financing; provided, that (a) the
Second Lien Collateral Agent and the Second Lien Claimholders retain the right to object to any
ancillary agreements or arrangements regarding such Cash Collateral use or such DIP Financing that
are materially prejudicial to their interests, (b) such DIP Financing does not compel the
applicable Borrower to seek confirmation of a specific plan of reorganization for which all or
substantially all of the material terms are set forth in the DIP Financing documentation or a
related document and (c) the documentation for such DIP Financing or Cash Collateral use does not
expressly require the liquidation of the Collateral prior to a default under such documentation. To
the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with a
DIP Financing which meets the requirements of clauses (a) through (c) above, the Second Lien
Collateral Agent will subordinate its Liens in the Collateral to the Liens securing such DIP
Financing (and all obligations relating thereto) and will not request adequate protection or any
other relief in connection therewith (except, as expressly agreed by the First Lien Collateral
Agent or to the extent permitted by Section 6.3).




          6.2 Relief from the Automatic Stay. Until the Discharge of First Lien Obligations has
occurred, the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
agrees that none of them shall seek (or support any other Person seeking) relief from the automatic
stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral,
without the prior written consent of the First Lien Collateral Agent, unless a motion for adequate
protection permitted under Section 6.3 has been denied by the Bankruptcy Court.




          6.3 Adequate Protection.




          (a) The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
agrees that none of them shall contest (or support any other Person contesting):





     (1) any request by the First Lien Collateral Agent or the First Lien
Claimholders for adequate protection; or




     (2) any objection by the First Lien Collateral Agent or the First Lien
Claimholders to any motion, relief, action or proceeding based on the First Lien
Collateral Agent or the First Lien Claimholders claiming a lack of adequate
protection.



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          (b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or
LiquidationProceeding:





     (1) if the First Lien Claimholders (or any subset thereof) are granted
adequate protection in the form of additional collateral in connection with any
Cash Collateral use or DIP Financing, then the Second Lien Collateral Agent, on
behalf of itself or any of the Second Lien Claimholders, may seek or request
adequate protection in the form of a Lien on such additional collateral, which Lien
will be subordinated to the Liens securing the First Lien Obligations and such Cash
Collateral use or DIP Financing (and all obligations relating thereto) on the same
basis as the other Liens securing the Second Lien Obligations are so subordinated
to the First Lien Obligations under this Agreement; and




     (2) in the event the Second Lien Collateral Agent, on behalf of itself or any
of the Second Lien Claimholders, seeks or requests adequate protection in respect
of Second Lien Obligations and such adequate protection is granted in the form of
additional collateral, then the Second Lien Collateral Agent, on behalf of itself
or any of the Second Lien Claimholders, agrees that the First Lien Collateral Agent
shall also be granted a senior Lien on such additional collateral as security for
the First Lien Obligations and for any Cash Collateral use or DIP Financing
provided by the First Lien Claimholders and that any Lien on such additional
collateral securing the Second Lien Obligations shall be subordinated to the Lien
on such collateral securing the First Lien Obligations and any such DIP Financing
provided by the First Lien Claimholders (and all obligations relating thereto) and
t o any other Liens granted to the First Lien Claimholders as adequate protection
on the same basis as the other Liens securing the Second Lien Obligations are so
subordinated to such First Lien Obligations under this Agreement. Except as
otherwise expressly set forth in Section 6.1 or in connection with the exercise of
remedies with respect to the Collateral, nothing herein shall limit the rights of
the Second Lien Collateral Agent or the Second Lien Claimholders from seeking
adequate protection with respect to their rights in the Collateral in any
Insolvency or LiquidationProceeding (including adequate protection in the form of a
cash payment, periodic cash payments or otherwise).



          6.4 No Waiver by First Lien Claimholders. Subject to Sections 3.1(a) and (d), nothing
contained herein shall prohibit or in any way limit the First Lien Collateral Agent or any First
Lien Claimholder from objecting in any Insolvency or Liquidation Proceeding or otherwise to any
action taken by the Second Lien Collateral Agent or any of the Second Lien Claimholders, including
the seeking by the Second Lien Collateral Agent or any Second Lien Claimholders of adequate
protection or the asserting by the Second Lien Collateral Agent or any Second Lien Claimholders of
any of its rights and remedies under the Second Lien Loan Documents or otherwise.




          6.5 Reinstatement. If any First Lien Claimholder is required in any Insolvency or
Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of any Borrower or
any other Grantor any amount paid in respect of First Lien
Obligations (a “Recovery”), then such First Lien Claimholders shall be entitled to a
reinstatement of First Lien Obligations with




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respect to all such recovered amounts. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties
hereto from such date of reinstatement.




          6.6 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the
extent the debt obligations distributed on account of the First Lien Obligations and on account of
the Second Lien Obligations are secured by Liens upon the same property, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to such plan and will
apply with like effect to the Liens securing such debt obligations.




          6.7 Post-Petition Interest. (a) Neither the Second Lien Collateral Agent nor any
Second Lien Claimholder shall oppose or seek to challenge any claim by the First Lien Collateral
Agent or any First Lien Claimholder for allowance in any Insolvency or Liquidation Proceeding of
First Lien Obligations consisting of post-petition interest, fees or expenses, without regard to
the existence of the Lien of the Second Lien Collateral Agent on behalf of the Second Lien
Claimholders on the Collateral.




          (b) Neither the First Lien Collateral Agent nor any other First Lien Claimholder shall oppose
or seek to challenge any claim by the Second Lien Collateral Agent or any Second Lien Claimholder
for allowance in any Insolvency or Liquidation Proceeding of Second Lien Obligations consisting of
post-petition interest, fees or expenses to the extent of the value of the Lien of the Second Lien
Collateral Agent on behalf of the Second Lien Claimholders on the Collateral (after taking into
account the First Lien Collateral).




          6.8 Waiver Related to Elections Under Section 1111. The Second Lien Collateral Agent,
for itself and on behalf of the Second Lien Claimholders, waives any claim it may hereafter have
against any First Lien Claimholder arising out of the election of any First Lien Claimholder of the
application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or
financing arrangement or out of any grant of a security interest in connection with the Collateral
in any Insolvency or Liquidation Proceeding.




          6.9 Separate Grants of Security and Separate Classification. The Second Lien
Collateral Agent, for itself and on behalf of the Second Lien Claimholders, and the First Lien
Collateral Agent for itself and on behalf of the First Lien Claimholders, acknowledges and agrees
that:





     (a) the grants of Liens pursuant to the First Lien Collateral Documents and the Second
Lien Collateral Documents constitute two separate and distinct grants of Liens; and




     (b) because of, among other things, their differing rights in the Collateral, the
Second Lien Obligations are fundamentally different from the First Lien Obligations and



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must be separately classified in any plan of reorganization proposed or adopted in an
Insolvency or Liquidation Proceeding.


To further effectuate the intent of the parties as provided in the immediately preceding
sentence, if it is held that the claims of the First Lien Claimholders and the Second Lien
Claimholders in respect of the Collateral constitute only one secured claim (rather than separate
classes of senior and junior secured claims), then each of the parties hereto hereby acknowledges
and agrees that, subject to Sections 2.1 and 4.1, all distributions shall be made as if there were
separate classes of senior and junior secured claims against the Grantors in respect of the
Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is
sufficient (for this purpose ignoring all claims held by the Second Lien Claimholders), the First
Lien Claimholders shall be entitled to receive (and the Second Lien Collateral Agent and the Second
Lien Claimholders shall not object to such entitlement), in addition to amounts otherwise
distributed to them in respect of principal, pre-petition interest and other claims, all amounts
owing in respect of post-petition interest, including any additional interest payable pursuant to
the First Lien Credit Agreement, arising from or related to a default, which is disallowed as a
claim in any Insolvency or Liquidation Proceeding, before any distribution is made in respect of
the claims held by the Second Lien Claimholders with respect to the Collateral). The Second Lien
Collateral Agent, for itself and on behalf of the Second Lien Claimholders, hereby acknowledges and
agrees to turn over to the First Lien Collateral Agent, for itself and on behalf of the First Lien
Claimholders, amounts otherwise received or receivable by them to the extent necessary to
effectuate the intent of the foregoing sentence (including with respect to the payment of
post-petition interest), even if such turnover has the effect of reducing the claim or recovery of
the Second Lien Claimholders.




SECTION 7.




Reliance; Waivers; Etc.




          7.1 Reliance. Other than any reliance on the terms of this Agreement, the First Lien
Collateral Agent, on behalf of itself and the First Lien Claimholders, acknowledges that it and
such First Lien Claimholders have, independently and without reliance on the Second Lien Collateral
Agent or any Second Lien Claimholders, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into such First Lien Loan
Documents and be bound by the terms of this Agreement and they will continue to make their own
credit decision in taking or not taking any action under the First Lien Credit Agreement or this
Agreement. The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
acknowledges that it and the Second Lien Claimholders have, independently and without reliance on
the First Lien Collateral Agent or any First Lien Claimholder, and based on documents and
information deemed by them appropriate, made their own credit analysis and decision to enter into
each of the Second Lien Loan Documents and be bound by the terms of this Agreement and they will
continue to make their own credit decision in taking or not taking any action under the Second Lien
Loan Documents or this Agreement.




          7.2 No Warranties or Liability. The First Lien Collateral Agent, on behalf of itself
and the First Lien Claimholders, acknowledges and agrees that each of the Second Lien




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Collateral Agent and the Second Lien Claimholders have made no express or implied
representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Second Lien Loan Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise
provided herein, the Second Lien Claimholders will be entitled to manage and supervise their
respective loans and extensions of credit under the Second Lien Loan Documents in accordance with
law and as they may otherwise, in their sole discretion, deem appropriate. Except as otherwise
provided herein, the Second Lien Collateral Agent, on behalf of itself and the Second Lien
Obligations, acknowledges and agrees that the First Lien Collateral Agent and the First Lien
Claimholders have made no express or implied representation or warranty, including with respect to
the execution, validity, legality, completeness, collectibility or enforceability of any of the
First Lien Loan Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. Except as otherwise provided herein, the First Lien Claimholders will be entitled to
manage and supervise their respective loans and extensions of credit under their respective First
Lien Loan Documents in accordance with law and as they may otherwise, in their sole discretion,
deem appropriate. The Second Lien Collateral Agent and the Second Lien Claimholders shall have no
duty to the First Lien Collateral Agent or any of the First Lien Claimholders, and the First Lien
Collateral Agent and the First Lien Claimholders shall have no duty to the Second Lien Collateral
Agent or any of the Second Lien Claimholders, to act or refrain from acting in a manner which
allows, or results in, the occurrence or continuance of an event of default or default under any
agreements with any Borrower or any other Grantor (including the First Lien Loan Documents and the
Second Lien Loan Documents), regardless of any knowledge thereof which they may have or be charged
with.




          7.3 First Lien Claimholders Freedom to Act. (a) No right of the First Lien
Claimholders, the First Lien Collateral Agent or any of them to enforce any provision of this
Agreement or any First Lien Loan Document shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Borrower or any other Grantor or by any act or failure
to act by any First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by
any Person with the terms, provisions and covenants of this Agreement, any of the First Lien Loan
Documents or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the
First Lien Collateral Agent or the First Lien Claimholders, or any of them, may have or be
otherwise charged with.




          (b) Without in any way limiting the generality of the foregoing paragraph (but subject to the
rights of the Borrowers and the other Grantors under the First Lien Loan Documents and subject to
the provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and
any of them may, at any time and from time to time in accordance with the First Lien Loan Documents
and/or applicable law, without the consent of, or notice to, the Second Lien Collateral Agent or
any Second Lien Claimholders, without incurring any liabilities to the Second Lien Collateral Agent
or any Second Lien Claimholders and without impairing or releasing the Lien priorities and other
benefits provided in this Agreement (even if any right of subrogation or other
right or remedy of the Second Lien Collateral Agent or any Second Lien Claimholders is
affected, impaired or extinguished thereby) do any one or more of the following:




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     (1) change the manner, place or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase or alter, the terms of any of
the First Lien Obligations or any Lien on any First Lien Collateral or any
liability of any Borrower or any other Grantor, or any liability incurred directly
or indirectly in respect thereof (including any increase in or extension of the
First Lien Obligations, without any restriction as to the tenor or terms of any
such increase or extension) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any Liens held by the First Lien Collateral Agent or any
of the First Lien Claimholders, the First Lien Obligations or any of the First Lien
Loan Documents; provided, that any increase in the First Lien Obligations
shall not result in the aggregate principal amount of loans and commitments of
First Lien Lenders to make loans or issue letters of credit under the First Lien
Credit Agreement, in each case, other than loans constituting or commitments to
make loans or issue letters of credit that would constitute Excluded Incremental
Indebtedness, to exceed the Cap Amount;




     (2) sell, exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and in any order any part of the First Lien Collateral or
any liability of any Borrower or any other Grantor to the First Lien Claimholders
or the First Lien Collateral Agent, or any liability incurred directly or
indirectly in respect thereof;




     (3) settle or compromise any First Lien Obligation or any other liability of
any Borrower or any other Grantor or any security therefor or any liability
incurred directly or indirectly in respect thereof and apply any sums by whomsoever
paid and however realized to any liability (including the First Lien Obligations)
in any manner or order;




     (4) exercise or delay in or refrain from exercising any right or remedy
against any Borrower, any other Grantor or any other Person, or any security, or
elect to take or to delay in or refrain from taking any remedy; and




     (5) otherwise deal freely with each Borrower, each other Grantor, the First
Lien Collateral, any other security and any other guarantor, and any liability of
any Borrower or any other Grantor to the First Lien Claimholders, or any other
liability incurred directly or indirectly in respect thereof.



          (c) Except as otherwise provided herein, the Second Lien Collateral Agent, on behalf of itself
and the Second Lien Claimholders, also agrees that the First Lien Claimholders and the First Lien
Collateral Agent shall have no liability to the Second Lien Collateral Agent or any Second Lien
Claimholders, and the Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, hereby waives any claim against any First Lien Claimholder or the First Lien
Collateral Agent, arising out of any and all actions which the First Lien Claimholders or the First
Lien Collateral Agent may take or permit or omit to take with respect to:





     (1) the First Lien Loan Documents (other than this Agreement);



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     (2) the collection of the First Lien Obligations; or




     (3) the foreclosure upon, or sale, liquidation or other disposition of, any
First Lien Collateral.


The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, agrees
that the First Lien Claimholders and the First Lien Collateral Agent have no duty to them in
respect of the maintenance or preservation of the First Lien Collateral, the First Lien Obligations
or otherwise.




          7.4 Second Lien Waiver of Valuation Rights. Until the Discharge of First Lien
Obligations, the Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, agrees not to assert and hereby waives, to the fullest extent permitted by law, any
right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available under
applicable law with respect to the Collateral or any other similar rights a junior secured creditor
may have under applicable law.




          7.5 Obligations Unconditional. All rights, interests, agreements and obligations of
the First Lien Collateral Agent and the First Lien Claimholders and the Second Lien Collateral
Agent and the Second Lien Claimholders, respectively, hereunder shall remain in full force and
effect irrespective of:





     (a) any lack of validity or enforceability of any First Lien Loan Documents or any
Second Lien Loan Documents;




     (b) except as otherwise expressly set forth in this Agreement, any change in the time,
manner or place of payment of, or in any other terms of, all or any of the First Lien
Obligations or Second Lien Obligations, or any amendment or waiver or other modification,
including any increase in the amount thereof, whether by course of conduct or otherwise, of
the terms of any First Lien Loan Document or any Second Lien Loan Document;




     (c) except as otherwise expressly set forth in this Agreement, any exchange of any
security interest in any Collateral or any other collateral, or any amendment, waiver or
other modification, whether in writing or by course of conduct or otherwise, of all or any
of the First Lien Obligations or Second Lien Obligations or any guarantee thereof;




     (d) the commencement of any Insolvency or Liquidation Proceeding in respect of any
Borrower or any other Grantor; or




     (e) any other circumstances which otherwise might constitute a defense available to,
or a discharge of, any Borrower or any other Grantor in respect of the Obligations or this
Agreement, or the First Lien Collateral Agent, any First Lien Claimholder, the Second Lien
Collateral Agent or any Second Lien Claimholder in respect of this Agreement.



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SECTION 8.




Miscellaneous.




          8.1 Conflicts. In the event of any conflict between the provisions of this Agreement and
the provisions of the First Lien Loan Documents or the Second Lien Loan Documents, the
provisions of this Agreement shall govern and control.




          8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination and the First Lien Claimholders may continue, at any time and
without notice to the Second Lien Collateral Agent or any Second Lien Claimholder, to extend credit
and other financial accommodations and lend monies to or for the benefit of any Borrower or any
Grantor constituting First Lien Obligations in reliance hereof. The Second Lien Collateral Agent,
on behalf of itself and the Second Lien Claimholders, hereby waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of
this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to any Borrower or any other Grantor shall include such
Borrower or Grantor as debtor and debtor-in-possession and any receiver or trustee for any Borrower
or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding. This
Agreement shall terminate and be of no further force and effect:





     (a) with respect to the First Lien Collateral Agent, the First Lien Claimholders and
the First Lien Obligations, on the date of Discharge of First Lien Obligations, subject to
the rights of the First Lien Claimholders under Section 6.5; and




     (b) with respect to the Second Lien Collateral Agent, the Second Lien
Claimholders and the Second Lien Obligations, upon the later of (1) the date upon
which the obligations under the Second Lien Credit Agreement terminate and (2) the date
upon which all Second Lien Obligations terminate.



          8.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions
of this Agreement by the Second Lien Collateral Agent or the First Lien Collateral Agent shall be
deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its
authorized agent and each waiver, if any, shall be a waiver only with respect to the specific
instance involved and shall in no way impair the rights of the parties making such waiver or the
obligations of the parties to such waiver in any other respect or at any other time.
Notwithstanding the foregoing, the Borrowers shall not have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent their
rights are directly affected (which includes, but is not limited to any amendment to the Grantors’
ability to cause additional obligations to constitute First Lien Obligations or Second Lien
Obligations as the Borrowers may designate).




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          8.4 Information Concerning Financial Condition of the Borrowers and their
Subsidiaries. The First Lien Collateral Agent and the First Lien Claimholders, on the one hand,
and the Second Lien Claimholders and the Second Lien Collateral Agent, on the other hand, shall
each be responsible for keeping themselves informed of (a) the financial condition of the Borrowers
and their Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations or the
Second Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the
First Lien Obligations or the Second Lien Obligations. The First Lien Collateral Agent and the
First Lien Claimholders shall have no duty to advise the Second Lien Collateral Agent or any Second
Lien Claimholder of information known to it or them regarding such condition or any such
circumstances or otherwise. In the event the First Lien Collateral Agent or any of the First Lien
Claimholders, in its or their sole discretion, undertakes at any time or from time to time to
provide any such information to the Second Lien Collateral Agent or any Second Lien Claimholder, it
or they shall be under no obligation:





     (1) to make, and the First Lien Collateral Agent and the First Lien Claimholders shall
not make, any express or implied representation or warranty, including with respect to the
accuracy, completeness, truthfulness or validity of any such information so provided;




     (2) to provide any additional information or to provide any such information on any
subsequent occasion;




     (3) to undertake any investigation; or




     (4) to disclose any information, which pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential or is otherwise required to
maintain confidential.



          8.5 Subrogation. With respect to the value of any payments or distributions in cash,
property or other assets that any of the Second Lien Claimholders or the Second Lien Collateral
Agent pays over to the First Lien Collateral Agent or the First Lien Claimholders under the terms
of this Agreement, the Second Lien Claimholders and the Second Lien Collateral Agent shall be
subrogated to the rights of the First Lien Collateral Agent and the First Lien Claimholders;
provided that, the Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, hereby agrees not to assert or enforce any such rights of subrogation it may acquire
as a result of any payment hereunder until the Discharge of First Lien Obligations has occurred.
The Borrowers acknowledge and agree that the value of any payments or distributions in cash,
property or other assets received by the Second Lien Collateral Agent or the Second Lien
Claimholders that are paid over to the First Lien Collateral Agent or the First Lien Claimholders
pursuant to this Agreement shall not reduce any of the Second Lien Obligations.




          8.6 Application of Payments. All payments received by the First Lien Collateral Agent
or the First Lien Claimholders may be applied, reversed and reapplied, in whole or in part, to
such part of the First Lien Obligations provided for in the First Lien Loan Documents. The Second
Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, assents to any
extension or postponement of the time of payment, subject to Section 5.3(d), of the First Lien
Obligations or any part thereof and to any other indulgence with respect thereto, to any




-29-









 




substitution, exchange or release of any security which may at any time secure any part of the
First Lien Obligations and to the addition or release of any other Person primarily or secondarily
liable therefor.




          8.7 SUBMISSION TO JURISDICTION; WAIVERS. (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:





     (1) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION
AND VENUE OF SUCH COURTS;




     (2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;




     (3) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.8; AND




     (4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN
ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT.



          (b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.7.




          8.8 Notices. All notices to the Second Lien Claimholders and the First Lien
Claimholders permitted or required under this Agreement shall also be sent to the Second Lien
Collateral Agent and the First Lien Collateral Agent, respectively. Unless otherwise specifically
provided herein, any notice hereunder shall be in writing and may be personally served, telexed or
sent by telefacsimile or United States mail or courier service and shall be deemed to have been
given when delivered in person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in the United States




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mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of
the parties hereto shall be as set forth on Schedule 8.8 hereto, or, as to each party, at such
other address as may be designated by such party in a written notice to all of the other parties.




          8.9 Further Assurances. The First Lien Collateral Agent, on behalf of itself and the
First Lien Claimholders under the First Lien Loan Documents, and the Second Lien Collateral Agent,
on behalf of itself and the Second Lien Claimholders under the Second Lien Loan Documents, and the
Borrowers, agree that each of them shall take such further action and shall execute and deliver
such additional documents and instruments (in recordable form, if requested) as the First Lien
Collateral Agent or the Second Lien Collateral Agent may reasonably request to effectuate the terms
of and the Lien priorities contemplated by this Agreement.




          8.10 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          8.11 Binding on Successors and Assigns. This Agreement shall be binding upon the
Borrowers, the First Lien Collateral Agent, the First Lien Claimholders, the Second Lien Collateral
Agent, the Second Lien Claimholders and their respective successors and assigns.




          8.12 Specific Performance. Each of the First Lien Collateral Agent and the Second Lien
Collateral Agent may demand specific performance of this Agreement. The First Lien Collateral
Agent, on behalf of itself and the First Lien Claimholders, and the Second Lien Collateral Agent,
on behalf of itself and the Second Lien Claimholders, hereby irrevocably waive any defense based on
the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of
specific performance in any action which may be brought by the First Lien Collateral Agent or the
First Lien Claimholders or the Second Lien Collateral Agent or the Second Lien Claimholders, as the
case may be.




          8.13 Headings. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose or be
given any substantive effect.




          8.14 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopy or other electronic image scan shall be effective as delivery of a manually
executed counterpart of this Agreement or such other document or instrument, as applicable.




          8.15 Authorization. By its signature, each Person executing this Agreement on behalf
of a party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement.




          8.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of each of the parties hereto and its respective successors and




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assigns and shall inure to the benefit of each of the First Lien Claimholders and the Second Lien
Claimholders. Nothing in this Agreement shall impair, as between the Borrowers and the other
Grantors and the First Lien Collateral Agent and the First Lien Claimholders, or as between the
Borrowers and the other Grantors and the Second Lien Collateral Agent and the Second Lien
Claimholders, the obligations of the Borrowers and the other Grantors to pay principal, interest,
fees and other amounts as provided in the First Lien Loan Documents and the Second Lien Loan
Documents, respectively.




          8.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement are
and are intended solely for the purpose of defining the relative rights of the First Lien
Collateral Agent and the First Lien Claimholders on the one hand and the Second Lien Collateral
Agent and the Second Lien Claimholders on the other hand. None of the Borrowers, any other Grantor
or any other creditor thereof shall have any rights hereunder and neither the Borrowers nor any
Grantor may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the
obligations of the Borrowers or any other Grantor, which are absolute and unconditional, to pay the
First Lien Obligations and the Second Lien Obligations as and when the same shall become due and
payable in accordance with their terms.




[remainder of page intentionally blank; signature page is next page]




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          IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor Agreement
as of the date first written above.




	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as First

Lien Collateral Agent,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Thomas H. Kozlark	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: THOMAS H. KOZLARK	 	 
	 

	 	 	 	Title: EXECUTIVE DIRECTOR	 	 






[Signature Page to IPC Intercreditor Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS

L.P., as Second Lion Collateral Agent,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 





[Signature Page to IPC Intercreditor Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	TRADER ACQUISITION CORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	IPC SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	TSW NETHERLANDS HOLDINGS C.V.	 	 
	 
	 	 	 	 	 	 
	 	 	By: IPC Systems, Inc., its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






[Signature Page to IPC Intercreditor Agreement]