EX-10.98






EXHIBIT 10.98



INTERCREDITOR AND SUBORDINATION AGREEMENT




THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this Agreement), dated as of October 26, 2005,



BETWEEN:




	 	(1)	 	WARP TECHNOLOGY HOLDINGS, INC., a Nevada corporation (the Borrower);






	 	(2)	 	THE SUBSIDIARIES OF THE BORROWER listed in Part 1 of Schedule 1 (the Subsidiaries and
collectively with the Borrower, the Credit Parties);






	 	(3)	 	THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (the Senior Lenders);






	 	(4)	 	THE HOLDERS OF SUBORDINATED NOTES listed in Part 3 of Schedule 1 (the Subordinated Noteholder
and together with the Senior Lenders, the Lenders); and






	 	(5)	 	FORTRESS CREDIT CORP. as collateral agent (the Collateral Agent) for the Senior Lenders
pursuant to a Collateral Agency Agreement dated as of August 2, 2005 (the Collateral Agency
Agreement).





WHEREAS:




	 	(A)	 	the Borrower, the Subsidiaries and the Senior Lenders have entered into a US$50,000,000
credit agreement dated August 2, 2005 (as amended, modified or supplemented, the Senior Credit
Agreement);






	 	(B)	 	as collateral security for the payment and performance of the Borrower’s obligations under
the Finance Documents (as defined in the Credit Agreement) (i) the Borrower has granted to the
Collateral Agent, for the benefit of the Senior Lenders, a security interest in certain
Collateral (as defined below) pursuant to the terms and conditions of that certain Security
Agreement and certain Pledge Agreements (as defined in the Senior Credit Agreement) entered
into (or to be entered into) between the Borrower and the Collateral Agent (the Company
Security Agreements) and (ii) each Subsidiary has executed or is executing a guaranty of the
Borrower’s obligations under the Finance Documents and granting to the Collateral Agent, for
the benefit of the Senior Lenders, a security interest in certain Collateral pursuant to the
terms and conditions of those certain Security Documents (as defined in the Senior Credit
Agreement) entered into (or to be entered into) between each Subsidiary and the Collateral
Agent (the Senior Subsidiary Security Agreements and, collectively with the Company Security
Agreements, the Senior Security Agreements); and






	 	(C)	 	the Borrower, the Subordinated Noteholder and others have entered into a merger agreement
dated as of September 11, 2005 (the Subordinated Merger Agreement) and in connection with the
Subordinated Merger Agreement, in that certain promissory note dated October 26, 2005 (the
Subordinated Promissory Note) the Borrower has agreed to pay the Subordinated Noteholder the
aggregate principal sum of US$1,750,000 together with accrued interest.





NOW, THEREFORE, the parties hereto agree as follows:



The parties hereto hereby agree as follows:




	 	1.	 	DEFINITIONS






	 	(a)	 	Unless otherwise defined herein, terms defined in the Senior Credit Agreement and used herein
shall have the meanings given to them in the Senior Credit Agreement.






	 	(b)	 	The following terms shall have the following meanings:






Agreement: this Intercreditor and Subordination Agreement.




Collateral: any and all property from time to time subject to security interests to
secure payment or performance of the Senior Obligations including all “Collateral” or
“Pledged Collateral” as defined in the Senior Security Agreements.




Collection Action: shall mean (a) to demand, sue for, take or receive from or on behalf
of any Credit Party or any guarantor of the Subordinated Obligations, by set-off or in any
other manner, the whole or any part of any moneys which may now or hereafter be owing by any
Credit Party with respect to the Subordinated Obligations, (b) to initiate or participate
with others in any suit, action or proceeding against any Credit Party to (i) enforce
payment of or to collect the whole or any part of the Subordinated Obligations or (ii)
commence judicial enforcement of any of the rights and remedies under the Subordinated
Transaction Documents or applicable law with respect to the Subordinated Obligations or the
Subordinated Transaction Documents, (c) to accelerate any Subordinated Obligations, or (d)
to exercise any put option or to cause any Credit Party to honor any redemption or mandatory
prepayment obligation under any Subordinated Transaction Document; provided, that,
notwithstanding the foregoing, in the case of the Subordinated Noteholder, “Collection
Action” shall not mean the exercise by a Subordinated Noteholder of its right to exercise
any warrants as provided under the Subordinated Transaction Documents.




Collateral Enforcement Action: shall mean any action by the Subordinated Noteholder to
(a) exercise or seek to exercise any rights or exercise any remedies with respect to any
Collateral, (b) institute any action or proceeding with respect to such rights or remedies,
including, any action of foreclosure or (c) contest, protest or object to any foreclosure
proceeding, postpetition financing, use of cash collateral or action brought by the
Collateral Agent or any Senior Noteholder or to any other exercise by the Collateral Agent
or any Senior Noteholder of any rights and remedies under any Senior Transaction Documents.




Insolvency Event: (a) any Credit Party commences any case, proceeding or other action
(i) under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it
or for all or any substantial part of its assets, or any Credit Party making a general
assignment for the benefit of its creditors; or (b) there being commenced against any Credit
Party any case, proceeding or other action of a nature referred to in clause (a) above which
(i) results in the entry of an order for relief or any such adjudication or appointment or
(ii) remains undismissed, undischarged or unbonded for a period of 60 days; or (c) there
being commenced against any Credit Party or any of its subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (d) any Credit Party taking any
action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clause (a), (b) or (c) above; or (e) any Credit Party generally not
paying, or being unable to pay, or admitting in writing its inability to pay, its debts as
they become due.




Senior Event of Default: any “Event of Default” under any Finance Document.




Senior Obligations: each obligation and liability whether:




(a) present or future, actual, contingent or unliquidated; or




(b) owed jointly or severally (or in any other capacity whatsoever),




of any Obligor to any Finance Party under or in connection with any Finance Document is
a Senior Obligation.




Senior Security Documents: all documents and instruments, now existing or hereafter
arising, which create or purport to create a security interest in property to secure payment
or performance of the Senior Obligations including the Senior Security Agreements.




Subordinated Obligations: each obligation and liability whether:




(a) present or future, actual, contingent or unliquidated; or




(b) owed jointly or severally (or in any other capacity whatsoever),




of any Credit Party to the Subordinated Noteholder under or in connection with any
Subordinated Transaction Document is a Subordinated Obligation.




Subordinated Transaction Documents: the Subordinated Promissory Note and all other
documents that from time to time evidence the Subordinated Obligations or secure payment or
performance thereof.




	 	(c)	 	The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement unless otherwise
specified.






	 	(d)	 	The meanings given to terms defined herein shall be equally applicable to both the singular
and plural forms of such terms.






	 	(e)	 	The words (i)“includes” and “including” are not limiting; (ii) “or” is not exclusive; (iii)
“all” includes “any” and “any” includes “all” and means “any one or more”; (iv) references to
any instrument, document, mortgage, assignment or agreement of any kind includes any
amendments, restatements or modifications; (v) headings are for convenience only, and do not
affect the meaning of any provision; and (vi) references to the consent, satisfaction,
acceptance, discretion, judgment, option, requirement or approval (or variations of those
terms) of Collateral Agent or any Senior Noteholder are, unless otherwise specifically
indicated, to be interpreted as if followed by the phrase “in its absolute discretion”.






	 	2.	 	SUBORDINATION






	 	(a)	 	Each Credit Party and the Subordinated Noteholder agrees, for itself and each future holder
of the Subordinated Obligations, that the Subordinated Obligations are expressly “subordinate
and junior in right of payment” (as that phrase is defined in paragraph 2(b)) to all Senior
Obligations.






	 	(b)	 	“Subordinate and junior in right of payment” means, for purposes of paragraph 2(a), that (i)
no part of the Subordinated Obligations shall have any claim to the assets of any Credit Party
on a parity with or prior to the claim of the Senior Obligations; and (ii) unless and until
the Senior Obligations have been paid in full, then, without the express prior written consent
of the Collateral Agent, no Subordinated Noteholder will take, demand or receive from any
Credit Party, and no Credit Party will make, give or permit, directly or indirectly, by
setoff, redemption, purchase or in any other manner, any payment of (of whatever kind or
nature, whether in cash, property, securities or otherwise) the Subordinated Obligations
provided, however, that so long as an Event of Default has not occurred and is continuing, (i)
the Borrower may make, and the Subordinated Noteholder may receive, regularly scheduled
payments (not prepayments) of interest on the Subordinated Promissory Note in accordance with
the terms thereof determined on a non-accelerated basis (without giving effect to any default
rate of interest thereunder) and (ii) the Borrower may prepay the Subordinated Obligations in
full out of the proceeds of any new equity contributions made in the Borrower which were not
intended to be used in connection with the financing of an Acquisition to the extent such
equity contributions are sufficient to prepay the Subordinated Obligations and may partially
prepay the Subordinated Obligations if such proceeds are not sufficient to pay the
Subordinated Obligations in full.






	 	(c)	 	The expressions “prior payment in full,” “payment in full,” “paid in full” and any other
similar terms or phrases when used in this Agreement shall mean the irrevocable and
indefeasible payment in full, in immediately available funds, of all of the Senior
Obligations. The phrase “equity contributions” shall mean any capital raise that is not a
Senior Obligation or required as a condition to any Advance under the Senior Credit Agreement.






	 	3.	 	ADDITIONAL PROVISIONS CONCERNING SUBORDINATION






	 	(a)	 	The Subordinated Noteholder and each Credit Party agree that upon the occurrence of any
Insolvency Event:






	 	(i)	 	all Senior Obligations shall be paid in full before any payment or distribution
of whatever kind or nature is made with respect to the Subordinated Obligations; and






	 	(ii)	 	any payment or distribution of assets of any Credit Party, whether in cash,
property or securities (other than as permitted under clause (a)(1) of this Section 3),
to which the Subordinated Noteholder would be entitled except for the provisions
hereof, shall be paid or delivered by such Credit Party, or any receiver, trustee in
bankruptcy, liquidating trustee, disbursing agent or other Person making such payment
or distribution, directly to the Collateral Agent, to the extent necessary to pay in
full all Senior Obligations, before any payment or distribution of any kind or nature
shall be made to the Subordinated Noteholder.






	 	(b)	 	Upon the occurrence of any Insolvency Event:






	 	(i)	 	the Subordinated Noteholder irrevocably authorizes and empowers the Collateral
Agent (A) to demand, sue for, collect and receive every payment or distribution on
account of the Subordinated Obligations payable or deliverable in connection with such
event or proceeding and give acquittance therefor, (B) to file claims and proofs of
claim in any statutory or non-statutory proceeding if the Subordinated Noteholder has
not demonstrated to the satisfaction of the Collateral Agent, no later than 30 days
prior to the applicable bar date, that such Subordinated Noteholder has filed an
appropriate claim or proof of claim, and (C) to take such other actions, in its own
name as Collateral Agent, or in the name of the Subordinated Noteholder or otherwise,
as the Collateral Agent may deem necessary or advisable for the enforcement of the
provisions of this Agreement; provided, however, that the foregoing authorization and
empowerment imposes no obligation on the Collateral Agent to take any such action;






	 	(ii)	 	the Subordinated Noteholder shall take such action, duly and promptly, as the
Collateral Agent may request from time to time (A) to collect the Subordinated
Obligations for the account of the Collateral Agent and (B) to file appropriate proofs
of claim in respect of the Subordinated Obligations; and






	 	(iii)	 	the Subordinated Noteholder shall execute and deliver such powers of attorney,
assignments or proofs of claim or other instruments as the Collateral Agent may request
to enable the Collateral Agent to enforce any and all claims in respect of the
Subordinated Obligations and to collect and receive any and all payments and
distributions which may be payable or deliverable at any time upon or in respect of the
Subordinated Obligations.






	 	(c)	 	If any payment or distribution, whether consisting of money, property or securities, shall be
collected or received by the Subordinated Noteholder in respect of the Subordinated
Obligations, except payments permitted to be made at the time of payment as provided in
paragraph 2(b), such Subordinated Noteholder shall forthwith deliver the same to the
Collateral Agent, in the form received, duly indorsed to the Collateral Agent, if required, to
be applied to the payment or prepayment of the Senior Obligations until the Senior Obligations
are paid in full. Until so delivered, such payment or distribution shall be held in trust by
such Subordinated Noteholder as the property of the Collateral Agent, segregated from other
funds and property held by the Subordinated Noteholder. Following payment in full of the
Senior Obligations, Collateral Agent will remit to the Subordinated Noteholder as promptly as
practicable, to the extent of the Subordinated Noteholder’s interest therein, all payments or
distributions paid (by the Subordinated Noteholder) to and held by Collateral Agent in excess
of the Senior Obligations as provided in Section 4(e) of this Agreement.






	 	(d)	 	Until the Senior Obligations are paid in full, the Subordinated Noteholder shall not take any
Collection Action or Collateral Enforcement Action with respect to the Subordinated
Obligations.






	 	4.	 	RIGHTS IN COLLATERAL






	 	(a)	 	Notwithstanding anything to the contrary contained in any Finance Document or any
Subordinated Transaction Document and irrespective of:






	 	(i)	 	the time, order or method of attachment or perfection of the security interests
created by any Senior Security Document;






	 	(ii)	 	the time or order of filing or recording of financing statements or other
documents filed or recorded to perfect security interests in any Collateral;






	 	(iii)	 	anything contained in any filing or agreement to which the Collateral Agent or
the Subordinated Noteholder now or hereafter may be a party; and






	 	(iv)	 	the rules for determining perfection or priority under the Uniform Commercial
Code or any other law governing the relative priorities of secured creditors;






any security interest in any Collateral pursuant to any Senior Security Document has and
shall have priority, to the extent of any unpaid Senior Obligations, over any security
interest in such Collateral pursuant to any Subordinated Transaction Document.




	 	(b)	 	So long as the Senior Obligations have not been paid in full and any Senior Security Document
remains in effect, whether or not any Insolvency Event has occurred,






	 	(i)	 	the Subordinated Noteholder will not take any Collateral Enforcement Action;
and






	 	(ii)	 	the Collateral Agent (or behalf of the Senior Lenders) and, subject to the
Collateral Agency Agreement, any Senior Lenders shall have the exclusive right to
enforce rights and exercise remedies with respect to the Collateral and Collateral
Agent shall not be required to marshal any Collateral.






	 	(c)	 	In exercising rights and remedies with respect to the Collateral, the Collateral Agent (on
behalf of the Senior Lenders) and, subject to the Collateral Agency Agreement, the Senior
Lenders may enforce the provisions of the Senior Security Documents and exercise remedies
thereunder and under any other Finance Documents, all in such order and in such manner as it
or they may determine in the exercise of its or their sole business judgment. Such exercise
and enforcement shall include the rights to sell or otherwise dispose of Collateral, to incur
expenses in connection with such sale or disposition and to exercise all the rights and
remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction.
In conducting any public or private sale under the Uniform Commercial Code, the Collateral
Agent shall give the Subordinated Noteholder such notice of such sale as may be required by
the applicable Uniform Commercial Code; provided, however, that 10 days’ notice shall be
deemed to be commercially reasonable notice.






	 	(d)	 	When all Senior Obligations have been paid in full and the Senior Security Documents no
longer are in effect, subject to the requirements of the Collateral Agency Agreement, the
Subordinated Noteholder shall have the right to enforce the provisions of the Subordinated
Promissory Note and exercise remedies thereunder.






	 	(e)	 	Any money, property or securities realized upon the sale, disposition or other realization by
the Collateral Agent upon all or any part of the Collateral, or otherwise received by
Collateral Agent under any provision of this Agreement shall be applied by the Collateral
Agent in the following order:






	 	(i)	 	first, to the payment of any and all expenses incurred by the Collateral Agent
on and after the date of this Agreement in connection with the performance of its
duties under this Agreement for which reimbursement has not been made by the Company;






	 	(ii)	 	second, to the Senior Lenders in an amount equal to each such Lender’s pro-rata
share of accrued but unpaid interest on the Senior Obligations;






	 	(iii)	 	third, to the Senior Lenders in an amount equal to each such Lender’s pro-rata
share of the unpaid principal balance of the Senior Obligations and any other unpaid
Senior Obligations;






	 	(iv)	 	fourth, to each Senior Lender in an amount equal to all other amounts then
owing to each such Senior Lender under any Finance Document; and






	 	(v)	 	fifth, any sums remaining after such applications and disbursements shall be
paid to such Persons entitled thereto or as a court of competent jurisdiction shall
direct.






	 	(f)	 	The Collateral Agent’s rights with respect to the Collateral include the right to release any
or all of the Collateral from the liens under any Senior Security Document in connection with
any sale of all or any portion of the Collateral notwithstanding that the net proceeds of any
such sale may not be used to permanently prepay any Senior Obligations or Subordinated
Obligations. The Subordinated Noteholder is hereby deemed to have consented to such sale(s).
The Subordinated Noteholder hereby irrevocably constitutes and appoints the Collateral Agent
and any officer of the 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 Subordinated Noteholder and in the name of the Subordinated Noteholder or in the
Collateral Agent’s own name, from time to time in the Collateral Agent’s discretion, for the
purpose of carrying out the terms of this paragraph, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this paragraph. The Subordinated Noteholder hereby ratifies all
that said attorneys shall lawfully do or cause to be done pursuant to the power of attorney
granted in this paragraph. No person to whom this power of attorney is presented, as
authority for Collateral Agent to take any action or actions contemplated hereby, shall be
required to inquire into or seek confirmation from the Subordinated Noteholder as to the
authority of Collateral Agent to take any action described herein, or as to the existence of
or fulfillment of any condition to this power of attorney, which is intended to grant to
Collateral Agent unconditionally the authority to take and perform the actions contemplated
herein. The Subordinated Noteholder irrevocably waives any right to commence any suit or
action, in law or equity, against any person or entity which acts in reliance upon or
acknowledges the authority granted under this power of attorney.






	 	5.	 	CONSENT OF SUBORDINATED NOTEHOLDER






	 	(a)	 	The Subordinated Noteholder consents that, without the necessity of any reservation of rights
against the Subordinated Noteholder, and without notice to or further assent by the
Subordinated Noteholder:






	 	(i)	 	any demand for payment of any Senior Obligations made by the Collateral Agent
or any Senior Lender may be rescinded in whole or in part by the Collateral Agent or
such Senior Lender, and any Senior Obligations may be continued, and the Senior
Obligations, or the liability of any Credit Party or any other party upon or for any
part thereof, or any collateral security or guarantee therefor or right of offset with
respect thereto, or any obligation or liability of any Credit Party or any other party
under any Finance Document or any other agreement, may, from time to time, in whole or
in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered,
or released by the Collateral Agent; and






	 	(ii)	 	the Finance Documents may be amended, modified, extended, supplemented,
restated, refinanced, refunded, restructured or terminated, in whole or in part, as the
Collateral Agent and Senior Lenders may deem advisable from time to time, and any
collateral security at any time held by the Collateral Agent or any Senior Lender for
the payment of any of the Senior Obligations may be sold, exchanged, waived,
surrendered or released.






	 	(b)	 	The Subordinated Noteholder waives any and all notice of the creation, renewal, extension or
accrual of any of the Senior Obligations and notice of or proof of reliance by the Collateral
Agent upon this Agreement. The Senior Obligations, and any of them, shall be deemed
conclusively to have been created, contracted or incurred in reliance upon this Agreement, and
all dealings between any Credit Party, on one hand, and the Collateral Agent or any Senior
Lender, on the other hand, shall be deemed to have been consummated in reliance upon this
Agreement. The Subordinated Noteholder acknowledges and agrees that the Senior Lenders and
the Collateral Agent have relied upon the subordination provided for herein in entering into
the Senior Credit Agreement and in making funds available to any Borrower thereunder. The
Subordinated Noteholder waives notice of or proof of reliance on this Agreement and protest,
demand for payment and notice of default.






	 	6.	 	NEGATIVE COVENANTS OF THE SUBORDINATED NOTEHOLDER






So long as any of the Senior Obligations shall remain outstanding, the Subordinated
Noteholder shall not, without the prior written consent of the Collateral Agent and the
Senior Lenders:




	 	(a)	 	sell, assign, or otherwise transfer, in whole or in part, the Subordinated
Obligations or any interest therein to any other Person (a “Transferee”) or create,
incur or suffer to exist any security interest, lien, charge or other encumbrance
whatsoever upon the Subordinated Obligations in favor of any Transferee unless (i) such
action is made expressly subject to this Agreement and (ii) the Transferee expressly
acknowledges to the Collateral Agent and the Senior Lenders, by a writing in form and
substance reasonably satisfactory to the Collateral Agent and the Senior Lenders, the
subordination provided for herein and agrees to be bound by all of the terms hereof;






	 	(b)	 	permit any of the Subordinated Transaction Documents to be amended, modified or
otherwise supplemented (including by way of changes to definitions) in any manner which
would have the effect of (i) increasing the maximum principal amount of the
Subordinated Obligations or rate of interest on any of the Subordinated Obligations or
fees payable in respect thereof, (ii) changing or adding or tightening any event of
default or any covenant with respect to the Subordinated Obligations, (iii) changing
any redemption or prepayment provisions of the Subordinated Obligations, (iv) altering
the subordination provisions with respect to the Subordinated Obligations, including
subordinating the Subordinated Obligations to any other debt, (v) shortening the dates
upon which payments of principal or interest are due on any of the Subordinated
Obligations, or (vi) changing or amending any other term of the Subordinated
Transaction Documents if such change or amendment would increase the obligations of any
Credit Party or confer additional rights on the Subordinated Noteholder or any other
holder of the Subordinated Obligations in a manner adverse (in the judgment of the
Collateral Agent) to any Credit Party or the Collateral Agent or the Senior Lenders,
and the parties hereto agree that any such amendment shall be null and void ab initio
and without legal force and effect;






	 	(c)	 	commence, or join with any creditors other than the Collateral Agent and the
Senior Lenders in commencing any case or proceeding referred to in the definition of
Insolvency Event.






	 	7.	 	SENIOR OBLIGATIONS UNCONDITIONAL






All rights and interests of the Collateral Agent and the Senior Lenders hereunder, and
all agreements and obligations of the Subordinated Noteholder and the Credit Parties
hereunder, shall remain in full force and effect irrespective of:




	 	(a)	 	any lack of validity or enforceability of any of the terms of any Finance
Document or Subordinated Transaction Documents;






	 	(b)	 	subject to paragraph 5(a), any change in the time, manner or place of payment
of, or in any other term of, all or any of the Senior Obligations, or any amendment or
waiver or other modification, whether by course of conduct or otherwise, of any of the
terms of any Finance Document;






	 	(c)	 	any exchange, release or non-perfection of any security interest in any
Collateral, or any release, amendment, waiver or other modification, whether in writing
or by course of conduct or otherwise, of all or any of the Senior Obligations or any
guarantee thereof; or






	 	(d)	 	any other circumstances which otherwise might constitute a defense available
to, or a discharge of, any Credit Party in respect of the Senior Obligations, or of the
Subordinated Noteholder or any Credit Party in respect of this Agreement.






	 	8.	 	NO REPRESENTATION BY COLLATERAL AGENT OR SENIOR LENDERS






The Senior Lenders and the Collateral Agent have not made and do not hereby or
otherwise make to the Subordinated Noteholder, any representations or warranties, express,
or implied. Neither the Senior Lenders nor the Collateral Agent assume any liability to the
Subordinated Noteholder with respect to: (a) the financial or other condition of obligors
under any instruments of guarantee with respect to the Senior Obligations, (b) the
enforceability, validity, value or collectibility of the Senior Obligations or the
Subordinated Obligations, any collateral therefor, or any guarantee or security which may
have been granted in connection with any of the Senior Obligations or the Subordinated
Obligations or (c) any Credit Party’s title or right to transfer any collateral or security.




	 	9.	 	WAIVER OF CLAIMS






To the maximum extent permitted by law, the Subordinated Noteholder waives any claim it
might have against the Collateral Agent or the Senior Lenders with respect to, or arising
out of, any action or failure to act or any error of judgment, negligence, or mistake or
oversight whatsoever on the part of the Collateral Agent or any Senior Lender or their
respective directors, officers, employees or agents with respect to any exercise of rights
or remedies under the Finance Documents or any transaction relating to the Collateral.
Neither the Collateral Agent nor any Senior Lender, nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or realize upon
any of the Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Credit Party or the
Subordinated Noteholder or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof.




	 	10.	 	PROVISIONS APPLICABLE AFTER BANKRUPTCY






The provisions of this Agreement shall continue in full force and effect
notwithstanding the occurrence of any Insolvency Event. To the extent that the Subordinated
Noteholder has or acquires any rights under Section 362, 363 or 364 of the Bankruptcy Code
with respect to the Collateral, the Subordinated Noteholder hereby agrees not to assert such
rights without the prior written consent of the Collateral Agent; provided, that if
requested by the Collateral Agent, the Subordinated Noteholder shall seek to exercise such
rights in the manner requested by the Collateral Agent, including the rights in payments in
respect of such rights. Without limiting the generality of the foregoing sentence, to the
extent that Collateral Agent or Senior Lenders consent to any Credit Party’s use of cash
collection under Section 363 of the Bankruptcy Code or Collateral Agent or any Senior Lender
agrees to provide financing to any Borrower under Section 364 of the Bankruptcy Code, the
Subordinated Noteholder hereby agrees not to impede, object to (on grounds of lack of
adequate protection, or otherwise), or otherwise interfere with such use of cash collateral
or financing. The Subordinated Noteholder specifically agrees that the Collateral Agent and
the Senior Lenders may consent to any Credit Party’s use of cash collateral or provide
financing to any Credit Party on such terms and conditions and in such amounts as the
Collateral Agent and the Senior Lenders, in their sole discretion, may decide and that, in
connection with such cash collateral usage or such financing, any Credit Party (or a trustee
appointed for the estate of such Credit Party) may grant to the Collateral Agent and/or
Senior Lenders liens and security interests upon all or any part of the assets of any
Borrower or other Credit Party, which liens and security interests: (i) shall secure
payments of all Senior Obligations (whether such Senior Obligations arose prior to the
filing of the bankruptcy petition or thereafter); and (ii) shall be superior in priority to
the liens on and security interests in the assets of any Borrower or other Credit Party held
by the Subordinated Noteholder. The Subordinated Noteholder (both in its capacity as a
Subordinated Noteholder and in its capacity (if any) as a party which may be obligated to
any Credit Party or any Credit Party’s Affiliates with respect to contracts which are part
of the Collateral Agent’s or any Senior Lender’s Collateral) agrees not to initiate or
prosecute or encourage any other Person to initiate or prosecute any claim, action,
objection or other proceeding (A) challenging the enforceability of the claim of Collateral
Agent or any Senior Lender, (B) challenging the enforceability of any liens or security
interests in any assets securing the Senior Obligations, or (C) asserting any claims which
any Credit Party may hold with respect to Collateral Agent or any Senior Lender. All
allocations of payments among the Collateral Agent, Senior Lenders and the Subordinated
Noteholder shall, subject to any court order, continue to be made after the filing of a
petition under the United States Bankruptcy Code, as amended (the “Bankruptcy Code”), or any
similar proceeding, on the same basis that the payments were to be allocated prior to the
date of such filing. The Subordinated Noteholder agrees that it will not object to or oppose
a sale or other disposition of any assets securing the Senior Obligations (or any portion
thereof) free and clear of its security interests, liens or other claims under Section 363
of the Bankruptcy Code or any other provision of the Bankruptcy Code if the Collateral Agent
or Senior Lenders have consented to such sale or disposition of such assets. The
Subordinated Noteholder agrees not to assert any right it may have to “adequate protection”
of its interest in the Collateral in any bankruptcy proceeding and agrees that it will not
seek to have the automatic stay lifted with respect to such security, without the prior
written consent of the Collateral Agent and Senior Lenders. The Subordinated Noteholder
waives any claim it may now or hereafter have against the Collateral Agent or any Senior
Lender arising out of the election of Collateral Agent or any Senior Lender, in any case
instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code, and/or out of any cash collateral arrangement, or financing arrangement, or
out of any grant of a security interest, under Section 363 or 364 of the Bankruptcy Code,
with or by any Credit Party, as debtor in possession (or with or by any trustee for any
Credit Party). The Subordinated Noteholder agrees that it will not, in its capacity as a
secured creditor: (a) propose, vote to accept, or otherwise support confirmation of, a plan
of reorganization opposed by the Collateral Agent or Senior Lender, or (b) vote to reject,
object to confirmation of, or otherwise oppose confirmation of, a plan of reorganization
supported by the Collateral Agent. The subordination and other provisions of this Agreement
shall be enforceable under Section 510(a) of the Bankruptcy Code.




	 	11.	 	FURTHER ASSURANCES






The Subordinated Noteholder and the Credit Parties, at the Credit Parties’ expense and
at any time from time to time, upon the written request of the Collateral Agent or any
Senior Lender, will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Collateral Agent or any Senior Lender
reasonably may request for the purposes of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted.




	 	12.	 	EXPENSES






	 	(a)	 	Each Credit Party will pay or reimburse the Collateral Agent, the Senior Lenders and the
Subordinated Noteholder, upon demand, for all of their respective costs and expenses in
connection with the enforcement or preservation of any rights under this Agreement, including
fees and disbursements of counsel to the Collateral Agent, Senior Lenders and the Subordinated
Noteholder.






	 	(b)	 	Each Credit Party will pay, indemnify, and hold the Collateral Agent, the Senior Lenders and
the Subordinated Noteholder harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions (whether sounding in contract, tort or on any
other ground), judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of, or in any other way arising out of or relating to this Agreement or any
action taken or omitted to be taken by the Collateral Agent, any Senior Lender or Subordinated
Noteholder with respect to any of the foregoing.






	 	(c)	 	Notwithstanding anything contained in this paragraph 12, all amounts owed by any Credit Party
to the Subordinated Noteholder pursuant to this paragraph 12 shall be Subordinated Obligations
under this Agreement and shall be paid only in accordance with the terms and provisions of
this Agreement.






	 	13.	 	PROVISIONS DEFINE RELATIVE RIGHTS






This Agreement is intended solely for the purpose of defining the relative rights of
the Collateral Agent (on behalf of the Senior Lenders) and the Senior Lenders on the one
hand and the Subordinated Noteholder on the other, and no other Person shall have any right,
benefit or other interest under this Agreement. Except as expressly set forth in this
Agreement, nothing herein shall: (a) impair, as between any Credit Party and the Senior
Lenders and any Credit Party and the Subordinated Noteholder, the obligation of such Credit
Party, which is absolute and unconditional, to pay principal of, interest on and all other
portions of the Senior Obligations, and the Subordinated Obligations, respectively, and all
other obligations of such Credit Party, to any Senior Lender or the Subordinated Noteholder,
under the Finance Documents or the Subordinated Transaction Documents, as the case may be,
in each case in accordance with their respective terms; or (b) affect the relative rights of
the Senior Lenders or the Subordinated Noteholder with respect to any other creditors of any
Credit Party.




	 	14.	 	SUBROGATION






Subject to the indefeasible payment in full of all Senior Obligations, the Subordinated
Noteholder shall with respect to the Subordinated Obligations be subrogated to the rights of
the Senior Lenders to receive payments or distributions of assets of any Credit Party
applicable to the Senior Obligations until the principal of, and interest and premium, if
any, on, and all other amounts payable in respect of the Senior Obligations shall be paid in
full. For purposes of such subrogation, no payment or distribution to the Senior Lenders
under the provisions hereof to which the Subordinated Noteholder would have been entitled
but for the provisions of this Agreement, and no payment pursuant to the provisions of this
Agreement to the Senior Lenders by the Subordinated Noteholder, as among any Credit Party
and its creditors other than the Senior Lenders, shall be deemed to be a payment by such
Credit Party to or on account of the Senior Obligations.




	 	15.	 	LEGEND






The Subordinated Noteholder and each Credit Party will cause the Subordinated
Promissory Note to bear a legend referring to this Agreement and indicating that such
documents are subordinated as provided herein, all in form and substance satisfactory to the
Collateral Agent.




	 	16.	 	POWERS COUPLED WITH AN INTEREST






All powers, authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until the Senior Obligations are paid in full.




	 	17.	 	NOTICES






All notices, requests and demands to or upon the Collateral Agent or any Credit Party
or the Subordinated Noteholder to be effective shall be in writing (or by telex, fax or
similar electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (1) when delivered by hand or (2) if given by mail, when deposited in the
mails by certified mail, return receipt requested, or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as follows:




If to the Collateral Agent:




Fortress Credit Corp.


1251 Avenue of the Americas


New York, NY 10020




Attention: John King


Telecopier No.: 212-798-6099


Telephone No.: 212-515-4608




with copies to:




Northlight Financial LLC


1330 Avenue of the Americas


40th Floor


New York, NY 10019




Attention: Mark Hirschhorn


Telecopier No.: 212-247-0002


Telephone No.: 212-247-1777




If to the Credit Parties:




c/o Warp Technology Holdings, Inc.




151 Railroad Avenue


Greenwich, Connecticut 06830


Attention: Ernest Mysogland


Telecopier No.: 203-422-5329


Telephone No.: 203-422-2950




The Collateral Agent, the Credit Parties and the Subordinated Noteholder may change
their respective addresses and transmission numbers for notices by notice in the manner
provided in this paragraph.




	 	18.	 	DEFAULT NOTICES






The Subordinated Noteholder shall provide the Collateral Agent with written notice of
any event of default with respect to, or acceleration of, all or any part of the
Subordinated Obligations concurrently with the sending thereof to any Credit Party and
promptly shall notify the Collateral Agent in the event a default which is the subject of
such a notice is cured or waived.




	 	19.	 	COUNTERPARTS






This Agreement may be executed by one or more of the parties on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the counterparts of this Agreement signed by all the
parties shall be lodged with the Collateral Agent.




	 	20.	 	SEVERABILITY






Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating 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.




	 	21.	 	INTEGRATION






This Agreement represents the agreement of the Collateral Agent, the Senior Lenders,
the Subordinated Noteholder and each Credit Party with respect to the subject matter hereof
and there are no promises or representations by the Collateral Agent, the Senior Lenders or
the Subordinated Noteholder relative to the subject matter hereof not reflected herein.




	 	22.	 	AMENDMENTS IN WRITING; NO WAIVER: CUMULATIVE REMEDIES






	 	(a)	 	None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Collateral Agent, each
Senior Lender, each Credit Party and the Subordinated Noteholder; provided that any provision
of this Agreement in favor of Collateral Agent may be waived by the Collateral Agent in a
letter or agreement executed by the Collateral Agent or by telex or facsimile transmission
from the Collateral Agent.






	 	(b)	 	No failure to exercise, nor any delay in exercising, on the part of the Collateral Agent or
any Senior Lender, any right, power or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or privilege.






	 	(c)	 	The rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by law.






	 	23.	 	SECTION HEADINGS






The section headings used in this Agreement are for convenience of reference only and
are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.




	 	24.	 	SUCCESSORS AND ASSIGNS






	 	(a)	 	This Agreement shall be binding upon and shall inure to the benefit of the Collateral Agent,
each Senior Lender, the Subordinated Noteholder, each Credit Party and each of their
respective heirs, administrators, executors, successors and assigns.






	 	(b)	 	Upon a successor Collateral Agent becoming the Collateral Agent under the Finance Documents,
such successor Collateral Agent shall automatically be entitled to all the rights and powers
of the Collateral Agent hereunder without the need for any further action on the part of any
party hereto.






	 	25.	 	INVALIDATED PAYMENTS






To the extent that the Collateral Agent receives payments on, or proceeds of Collateral
for, the Senior Obligations which are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to any Credit Party, a trustee,
receiver or any other party under any bankruptcy law, state or federal law, common law, or
equitable cause, then to the extent of such payment or proceeds received, the Senior
Obligations, or part thereof, intended to be satisfied shall be revived (and no longer be
deemed to be paid in full) and continue in full force and effect as if such payments or
proceeds had not been received by the Collateral Agent.




	 	26.	 	SPECIFIC PERFORMANCE






The Collateral Agent is hereby authorized to demand specific performance of this
Agreement at any time when the Subordinated Noteholder shall have failed to comply with any
of the provisions of this Agreement applicable to the Subordinated Noteholder whether or not
the Credit Parties shall have complied with any of the provisions hereof applicable to any
Credit Party, and the Subordinated Noteholder hereby irrevocably waives any defense based on
the adequacy of a remedy at law which might be asserted as a bar to such remedy of specific
performance.




	 	27.	 	GOVERNING LAW: CONSENT TO JURISDICTION AND VENUE






	 	27.1	 	Governing Law






This Agreement, the relationship between the Parties and any claim or dispute (whether
sounding in contract, tort, statute or otherwise) relating to this Agreement or that
relationship shall be governed by and construed in accordance with law of the State of New
York including section 5-1401 of the New York General Obligations Law but excluding any
other conflict of law rules that would lead to the application of the law of another
jurisdiction.




	 	27.2	 	Jurisdiction






(a) Each party irrevocably submits to the exclusive jurisdiction of any New York State
or U.S. Federal court sitting in the City and County of New York for the settlement of any
dispute in connection with any Finance Document.




(b) The New York courts are the most appropriate and convenient courts to settle any
such dispute and each party waives objection to those courts on the grounds of inconvenient
forum or otherwise in relation to proceedings in connection with any Finance Document.




	 	27.3	 	Service of process






	 	(a)	 	The parties consent to the service of process relating to any proceedings by a notice given
in accordance with Clause 17 (Notices).






	 	(b)	 	This Clause does not affect any other method of service allowed by law.





	 	 	 
	27.4	 	Waiver of immunity
	
 
	 	Each party irrevocably and unconditionally:







	 	(a)	 	agrees not to claim any immunity from proceedings brought by a Senior Lender against it in
relation to a Finance Document and to ensure that no such claim is made on its behalf;






	 	(b)	 	consents generally to the giving of any relief or the issue of any process in connection with
those proceedings; and






	 	(c)	 	waives all rights of immunity in respect of it or its assets.






	 	28.	 	MUTUAL WAIVER OF JURY TRIAL.






THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN
THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY THE TRANSACTIONS RELATED
HERETO.




	 	29.	 	TERMINATION






Subject to the provisions of paragraph 26, this Agreement shall terminate upon the
indefeasible payment in full of the Senior Obligations and the Subordinated Obligations and
the termination of all commitments to lend by the Senior Lenders under the Credit Agreement.




	 	30.	 	NO STRICT CONSTRUCTION






The parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.



SIGNATORY




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year first above written.



FORTRESS CREDIT CORP.,



as Collateral Agent




By: /s/ Marc K. Furstein

Name: Marc K. Furstein

Title: Chief Operating Officer




FORTRESS CREDIT OPPORTUNITIES I LP,



as Lender




By: /s/ Marc K. Furstein

Name: Marc K. Furstein

Title: Chief Operating Officer




WARP TECHNOLOGY HOLDINGS, INC.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland


An authorized officer



WARP SOLUTIONS, INC.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



WARP SOLUTIONS, LTD.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



6043577 CANADA, INC.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



SPIDER SOFTWARE, INC.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



KENOSIA CORPORATION



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



GUPTA TECHNOLOGIES, LLC



By: /s/ Ernest C. Mysogland



Name: Ernest C. Mysogland



An authorized officer



GUPTA TECHNOLOGIES GmbH



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



GUPTA TECHNOLOGIES LTD.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



DAVID CORPORATION



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



FORESIGHT SOFTWARE, INC.



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



PROCESS SOFTWARE, LLC



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



PROFITKEY INTERNATIONAL, LLC



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



TAC/HALO, LLC



By: /s/ Ernest C. Mysogland


Name: Ernest C. Mysogland



An authorized officer



SIGNATORY




Execution




SUBORDINATED NOTEHOLDER SIGNATURE PAGE




INTERCREDITOR AND SUBORDINATION AGREEMENT




IN WITNESS WHEREOF, the undersigned has executed this Intercreditor And Subordination
Agreement or caused its duly authorized officers to execute this Intercreditor And Subordination
Agreement as of the date first above written.



	 	 	 
	Date:      

	 	

	 
	 	 
	IF AN INDIVIDUAL:

	 	IF A CORPORATION, PARTNERSHIP,

TRUST, ESTATE OR OTHER ENTITY:
	     

(Signature)

     

(Printed Name)

	 	PLATINUM EQUITY, LLC

By: /s/ Eva Kalawski

Name: Eva Kalawski

An authorized officer
	 
	 	 
	Address:

	 	

	 
	 	 
	     

     

	 	

Address:
	     

     

	 	360 N. Crescent Drive, South Building

Beverly Hills, California 90210






This Noteholder holds the Subordinated Promissory Note



1



SCHEDULE 1



PARTIES



PART 1




SUBSIDIARIES




	 	 	 	 	 
	NAME OF SUBSIDIARY

	 







	 
	David Corporation

	 

	 

	Foresight Software, Inc.

	 

	 

	Gupta Technologies, LLC

	 

	 

	Gupta Technologies GmbH

	 

	 

	Gupta Technologies Ltd.

	 

	 

	Process Software, Inc.

	 

	 

	ProfitKey International, LLC

	 

	 

	TAC/Halo, LLC

	 

	 

	Warp Solutions, Inc.

	 

	 

	Warp Solutions, Ltd.

	 

	 

	6043577 Canada, Inc.

	 

	 

	Spider Software, Inc.

	 







PART 2




LENDERS




	 	 	 	 	 
	NAME OF LENDER

	 







	 
	Fortress Credit Corp.

	 







PART 3




SUBORDINATED NOTEHOLDER




	 	 	 	 	 
	NAME OF SUBORDINATED NOTEHOLDER

	 







	 
	Platinum Equity, LLC

	 

	 








2