exv10w1








Exhibit 10.1




EXECUTION COPY




EXCHANGE AGREEMENT




     THIS EXCHANGE AGREEMENT (this “Agreement”) is made and entered into as of August 4,
2009 by and among Commercial Vehicle Group, Inc., a Delaware corporation (the “Company”),
the Guarantors (as defined below) and Evergreen Investment Management Company, LLC
(“Evergreen”) and T. Rowe Price Associates, Inc. (“TRP”) (together with Evergreen,
the “Holders”) of the Company’s 8% Senior Notes due 2013 (the “Notes”), which were
issued pursuant to an Indenture (the “Notes Indenture”), dated as of July 6, 2005, between
the Company, certain of the Company’s domestic subsidiaries, as guarantors (collectively, the
“Guarantors”) and U.S. Bank National Association, as trustee.



RECITALS




     WHEREAS, the Company has issued and outstanding $150.0 million aggregate principal amount of
Notes pursuant to the Notes Indenture;



     WHEREAS, the Company and the Holders have reached an agreement for the exchange of $52,190,000
aggregate principal amount of Notes held by the Holders (or certain funds and/or accounts for which
a Holder acts as investment advisor) (the “Exchanged Notes”) for units (the
“Units”) consisting of (i) $42,124,000 aggregate principal amount of 11%/13% Third Lien
Senior Secured Notes due 2013 of the Company (the “Third Lien Notes”) and (ii) 745,000
warrants (the “Warrants”) to purchase shares of the Company’s common stock, par value $0.01
per share (the “Common Stock”) with an exercise price of $0.35 per share;



     WHEREAS, the Company, as issuer, the Guarantors and U.S. Bank National Association, as trustee
(the “Trustee”) and as third lien collateral agent (the “Third Lien Collateral
Agent”), are entering into a new indenture which shall govern the Third Lien Notes, a copy of
which is attached hereto as Exhibit A (the “Third Lien Notes Indenture”), and
related collateral documents (the “Third Lien Collateral Documents”), including the related
security agreement, a copy of which is attached hereto as Exhibit B;



     WHEREAS, the Company, as issuer, and U.S. Bank National Association, as warrant agent and unit
agent, are entering into a warrant and unit agreement which shall govern the Warrants, a copy of
which is attached hereto as Exhibit C (the “Warrant and Unit Agreement”);



     WHEREAS, certain of the Holders (or certain funds and/or accounts for which a Holder acts as
investment advisor) have also agreed to lend through assignments $13.1 million in gross proceeds to
the Company in the form of a new $16.8 million principal amount second lien term loan, which will
be guaranteed by the Guarantors (the “Second Lien Term Loan”);



     WHEREAS, the Company, as borrower, the Guarantors, and Credit Suisse, as second lien
collateral agent (the “Second Lien Agent”) and lender, are entering into a new second lien
loan and security agreement which shall govern the Second Lien Term Loan, a copy of which is
attached hereto as Exhibit D (the “Second Lien Term Loan Agreement”), and related
collateral documents (the “Second Lien Collateral Documents”);



     WHEREAS, concurrently with the execution of the Second Lien Term Loan Agreement and the Third
Lien Notes Indenture, the Company, the Guarantors and Bank of America, N.A



 









 




(“Bank of America”) are entering into Amendment No. 2 (the “Credit Agreement
Amendment”) to the Loan and Security Agreement, dated as of January 7, 2009 (as amended,
modified or supplemented, the “Credit Agreement”), a copy of which is attached hereto as
Exhibit E;




     WHEREAS, concurrently with the execution of the Second Lien Term Loan Agreement and the Third
Lien Notes Indenture, Bank of America, N.A (“Bank of America”), as Agent under the Credit
Agreement and as First Lien Agent, the Second Lien Agent named therein, the Third Lien Agent named
therein and the borrowers and obligors named therein are entering into an intercreditor agreement
(the “BofA Intercreditor Agreement”), a copy of which is attached hereto as Exhibit
F; and



     WHEREAS, concurrently with the execution of the Second Lien Term Loan Agreement and the Third
Lien Notes Indenture, the Second Lien Agent named therein, the Third Lien Agent named therein and
the borrowers and obligors named therein are entering into an intercreditor agreement (the
“Junior Intercreditor Agreement” and, together with the BofA Intercreditor Agreement, the
“Intercreditor Agreements”), a copy of which is attached hereto as Exhibit G.



     NOW, THEREFORE, in consideration of the premises and the representations, warranties,
covenants and agreements herein contained and intending to be legally bound hereby, the Company and
the Holders hereby agree as follows:



ARTICLE I

EXCHANGE OF NOTES AND RELATED MATTERS




     Section 1.1 Exchange of Exchanged Notes. Subject to the terms and conditions
set forth in this Agreement, each Holder hereby agrees, on its behalf and on behalf of certain
funds and/or accounts for which such Holder acts as investment advisor, to exchange (the
“Exchange”) at the Closing (as defined below) the principal amount of the Exchanged Notes
held by such Holder (or certain funds and/or accounts for which such Holder acts as investment
advisor), as set forth opposite such Holder’s name on Schedule I hereto, for Units
consisting of (i) the principal amount of Third Lien Notes set forth opposite such Holder’s name on
Schedule I hereto and (ii) the number of Warrants set forth opposite such Holder’s name on
Schedule I hereto. Upon the surrender of the Exchanged Notes in exchange for the Units,
all then outstanding principal amount of such Exchanged Notes, together with all interest accrued
thereon up to and including the Closing Date (as defined below), shall be deemed satisfied and such
Exchanged Notes shall be cancelled. Each Holder waives all rights to receive the interest payment
scheduled for January 1, 2010 on its Exchanged Notes. Following the Closing, the Exchanged Notes
exchanged pursuant to this Agreement shall cease to accrue interest. The principal amount of the
Third Lien Notes to be issued shall be rounded to the nearest $1,000. The Units, the Third Lien
Notes and the Warrants that are issued to Holders in exchange for the Exchanged Notes are
collectively referred to herein as the “New Securities.”



     Section 1.2 Second Lien Term Loan. As a condition to participating in the
Exchange, each Holder hereby agrees to fund the Second Lien Term Loan in the amounts set forth
opposite such Holder’s name on Schedule I hereto. The Second Lien Term Loan shall be
completed pursuant to the Second Lien Term Loan Agreement.



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ARTICLE II

CLOSING DATE; DELIVERY




     Section 2.1 Closing. The closing of the Exchange described in Section
1.1 shall take place at the offices of Kirkland & Ellis LLP, 300 North LaSalle, Chicago, IL
60654 at 10:00 a.m., Chicago time, as soon as practicable after the satisfaction or waiver of the
conditions set forth in Articles V and VI hereof, or at such other time and place as the Company
and the Holders mutually agree upon orally or in writing (which time and place are designated as
the “Closing” and which day is referred to herein as the “Closing Date”).



     Section 2.2 Delivery. At the Closing, (a) the Company shall deliver to The
Depository Trust Company (“DTC”) or its custodian one or more global certificates
representing the Units, the Third Lien Notes and the Warrants being issued in the Exchange, and (b)
each Holder shall effect by book entry, in accordance with the applicable procedures of DTC and the
terms of the indenture governing the Notes, the delivery to the Company (or to its designee which
may be the Trustee for the benefit of the Company), the Exchanged Notes held by such Holder (or
certain funds and/or accounts for which such Holder acts as investment advisor) as set forth
opposite such Holder’s name on Schedule I and such Exchanged Notes shall be cancelled or
the amount outstanding under global certificates representing the Notes shall be decreased by the
respective amounts of Exchanged Notes delivered.



     Section 2.3 Consummation of Closing. All acts, deliveries and confirmations
comprising the Closing, regardless of chronological sequence, shall be deemed to occur
contemporaneously and simultaneously upon the occurrence of the last act, delivery or confirmation
of the Closing and none of such acts, deliveries or confirmations shall be effective unless and
until the last of same shall have occurred.



     Section 2.4 No Transfer of Exchange Notes Prior to the Closing. Each Holder
agrees that during the term of this Agreement, it shall not sell, assign, pledge transfer or
otherwise dispose of, nor permit the sale, assignment pledge, transfer or other disposition (each,
a “Transfer”), of any beneficial ownership interest in the Exchanged Notes it beneficially
owns other than to exchange them pursuant to the Exchange; provided, however, that Holders may
Transfer Exchanged Notes to any of its affiliates that agrees in writing prior to such Transfer to
be bound by the obligations of such Holder under this Agreement.



     Section 2.5 No Transfer of Exchanged Notes After the Closing; No Further Ownership
Rights in the Exchanged Notes. Upon consummation of the Closing, all Exchanged Notes (or
interests therein) exchanged pursuant to this Agreement shall cease to be transferable and there
shall be no further registration of any transfer of any such Exchanged Notes or interests therein.
From and after the Closing, the Holders shall cease to have any rights with respect to such
Exchanged Notes, including any payments of accrued and unpaid interest, except as otherwise
provided for herein or by applicable law.



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ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     The Company and the Guarantors, jointly and severally, represent and warrant to each of the
Holders as follows:



     Section 3.1 Organization and Standing of the Company. The Company is a
corporation duly organized, validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own and operate its
properties, and to enter into this Agreement and perform its obligations hereunder. The Company is
duly qualified to do business and is in good standing in all jurisdictions wherein such
qualification is necessary and where failure so to qualify would have a material adverse effect on
the business, properties, operations, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a “Material Adverse Effect”).



     Section 3.2 Organization and Standing of the Guarantors. Each of the
Guarantors is a corporation or limited liability company duly organized or formed, validly existing
and in good standing under the laws of its state of incorporation and has all requisite corporate
or limited liability company power and authority to own and operate its properties, and to enter
into this Agreement and perform its obligations hereunder. Each of the Guarantors is duly
qualified to do business and is in good standing in all jurisdictions wherein such qualification is
necessary and where failure so to qualify would have a Material Adverse Effect.



     Section 3.3 Exchange Agreement and Other Transaction Documents. This
Agreement, the Third Lien Notes Indenture, the Warrant and Unit Agreement, the Intercreditor
Agreements and the Third Lien Collateral Documents and the other agreements and instruments
contemplated hereby and thereby have been duly and validly authorized by the Company and the
Guarantors (to the extent a party thereto), this Agreement has been duly executed and delivered by
the Company and the Guarantors and this Agreement is, and the Third Lien Notes Indenture, the
Warrant and Unit Agreement, the Intercreditor Agreements and the Third Lien Collateral Documents,
when executed and delivered by the Company and the Guarantors (to the extent a party thereto), will
be, valid and binding obligations of the Company and the Guarantors (to the extent a party
thereto), enforceable in accordance with their respective terms, subject as to enforceability to
general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors’ rights generally, and except that the enforceability of any
indemnification or contribution provisions thereof may be limited under applicable securities laws
or the public policies underlying such laws.



     Section 3.4 Third Lien Notes, Guarantees and Warrants. The Third Lien Notes
have been duly and validly authorized by the Company, and when the Third Lien Notes are executed by
the Company and authenticated and delivered in exchange for Exchanged Notes pursuant to this
Agreement and the Third Lien Notes Indenture at the Closing, the Third Lien Notes will be valid and
binding obligations of the Company, enforceable in accordance with their terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency, moratorium and other
similar laws affecting the enforcement of creditors’ rights generally. The guarantees of the Third
Lien Notes (the “Guarantees”) by each of the Guarantors have been duly and validly
authorized by each Guarantor, and when the Third Lien Notes are issued and



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executed by the Company and authenticated and delivered in exchange for Exchanged Notes
pursuant to this Agreement and the Third Lien Notes Indenture at the Closing, the Guarantee of each
Guarantor with respect to the Third Lien Notes will be a valid and binding obligation of such
Guarantor, enforceable in accordance with its terms, subject as to enforceability to general
principles of equity and to bankruptcy, insolvency, moratorium and other similar laws affecting the
enforcement of creditors’ rights generally. The Warrants have been duly and validly authorized by
the Company, and when the Warrants are executed by the Company and countersigned and delivered in
exchange for Exchanged Notes pursuant to this Agreement and the Warrant and Unit Agreement at the
Closing, the Warrants will be, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors’
rights generally.



     Section 3.5 Title to Properties; Priority of Liens. The Company and each
Guarantor has good and marketable title to (or valid leasehold interests in) all of its material
real estate and all of its material personal property, in each case free of Liens except Permitted
Liens (as such terms are defined in the Third Lien Notes Indenture) and minor defects in title that
do not interfere with its ability to conduct its business as currently conducted or to utilize such
property for its intended purposes. To the extent required by the Third Lien Notes Indenture and
the Third Lien Collateral Documents and except for post-closing liens to the extent expressly
permitted to be obtained after the Closing Date as identified in a schedule to the Second Lien Term
Loan and the Third Lien Collateral Documents, all Liens of Third Lien Collateral Agent in the
Collateral will be duly perfected, valid and enforceable third priority Liens, subject only to
Permitted Liens and minor defects in title that do not interfere with the ability of each of the
Company and the Guarantors to conduct its business as currently conducted or to utilize such
property for its intended purposes; provided, however, that for registered United States
trademarks, United States trademark applications, United States patents, United States patent
applications, and registered United States copyrights, the security interest will be perfected upon
filing, to the extent perfection of a security interest can be accomplished by such a filing, of
the Trademark Security Agreement with the United States Patent and Trademark Office, the Patent
Security Agreement with the United States Patent and Trademark Office, or the Copyright Security
Agreement with the United States Copyright Office, and such perfected security interest is
enforceable as such against any and all creditors of and purchasers from Obligors in the United
States.



     Section 3.6 Guarantors. On and as of the Closing, all of the Company’s
subsidiaries that have guaranteed the Credit Agreement and the Second Lien Term Loan will execute
the Third Lien Note Indenture as guarantors.



     Section 3.7 Non-Contravention. The execution and delivery by the Company of
this Agreement and the other documents contemplated by this Agreement and the other transactions
contemplated by this Agreement, the Third Lien Notes Indenture, the Warrant and Unit Agreement, the
Intercreditor Agreements and the Third Lien Collateral Documents and each other agreement
contemplated hereby to which the Holders are a party, do not and will not (i) result in any
violation of any terms of the charter or by-laws of the Company; (ii) (assuming completion of the
Credit Agreement Amendment) conflict with or result in a breach by the Company or any of the terms
or provisions of, or constitute a default under, any indenture,



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mortgage, deed of trust or other material agreement or instrument to which the Company is a
party or by which the Company or any of its properties or assets is bound or affected or (iii)
violate or contravene any applicable law, rule or regulation or any applicable decree, judgment or
order of any government or political subdivision thereof, whether federal, state, local or foreign,
or any agency or instrumentality of any such government or political subdivision thereof (a
“Governmental Body”) or court having jurisdiction over the Company or any of its properties
or assets, except, in the case of (ii) and (iii), as would not have a Material Adverse Effect.



     Section 3.8 Consents. No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement, the Third Lien Notes Indenture, the Warrant and Unit
Agreement, the Intercreditor Agreements and the Third Lien Collateral Documents in connection with
the issuance and sale of the Third Lien Notes by the Company or the issuance of the Guarantees by
the Guarantors, except for (i) as have been obtained, (ii) as may be necessary to perfect security
interests granted pursuant to the Third Lien Collateral Documents or (iii) as may be required under
applicable state securities laws.



     Section 3.9 Capitalization. The authorized capital stock of the Company is
(a) 30,000,000 shares of Common Stock and (b) 5,000,000 shares of preferred stock, par value $0.01
per share (the “Preferred Stock”). All of the outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and nonassessable. As of July 23, 2009,
there were: (a) 21,746,681 shares of Common Stock outstanding and (b) there were no shares of
Preferred Stock outstanding. As of July 23, 2009, the Company had outstanding options entitling
the holders to purchase or acquire 686,209 shares of Common Stock and 1,270,209 shares of Common
Stock reserved for future grants under the Company’s equity incentive plan. The Company has no
shares of Common Stock reserved for issuance except for the shares of Common Stock referenced in
the preceding sentence and the Warrant Shares (as defined below). Each of the Company and the
Guarantors has good title to the capital stock of its subsidiaries, subject to liens granted under
the Credit Agreement, the Second Lien Term Loan Agreement, the Second Lien Collateral Documents and
the Third Lien Collateral Documents and other liens permitted under the Credit Agreement, the
Second Lien Term Loan Agreement and the Third Lien Notes Indenture, and all such capital stock is
duly issued, fully paid and non-assessable, to the extent applicable.



     Section 3.10 Warrant Shares. A sufficient number of shares of Common Stock
(the “Warrant Shares”) have been duly authorized and reserved for issuance upon exercise of
the Warrants. Upon exercise in accordance with the Warrants, the Warrant Shares will be validly
issued, fully paid and nonassessable.



     Section 3.11 Financial Statements. The consolidated balance sheets, and
related statements of income, cash flow and shareholder’s equity, included in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2008, are prepared in accordance with
generally accepted accounting principles in effect in the United States from time to time, and
fairly present in all material respects the financial positions and results of operations of the
Company and its subsidiaries at the dates and for the periods indicated. Since December 31, 2008,
there has been no change in the condition (financial or otherwise) of the Company and its



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subsidiaries, taken as a whole, that could reasonably be expected to have a Material Adverse
Effect.



     Section 3.12 Exchange Act Reports. The Company’s annual report on Form 10-K
for the fiscal year ended December 31, 2008, and all other reports filed pursuant to Section 13(a)
or 15(d) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”),
since the end of such fiscal year, when they were filed with the Securities and Exchange Commission
(the “Commission”) conformed in all material respects to the requirements of the Exchange
Act, and none of such documents contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.



     Section 3.13 Intellectual Property. Each of the Company and the Guarantors
owns or has the lawful right to use all intellectual property necessary for the conduct of its
business to the knowledge of the Company without infringing or misappropriating any intellectual
property rights of others except to the extent that such failure to own or have such rights to use
or any conflict would not reasonably be expected to result in a Material Adverse Effect. There is
no pending or, to the Company’s knowledge, threatened, claim or assertion (whether in writing, by
suit or otherwise) that the Company’s or any Guarantor’s ownership, use, marketing, sale or
distribution of any inventory, equipment, intellectual property or other property violates another
Person’s intellectual property with respect to any of the Company or the Guarantors or any of their
property (including any intellectual property that could reasonably be expected to have a Material
Adverse Effect).



     Section 3.14 Governmental Approvals. Each of the Company and the Guarantors
has, is in compliance with, and is in good standing with respect to, all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and required reports to, all
Governmental Bodies (“Governmental Approvals”) necessary to conduct its business and to
own, lease and operate its properties except to the extent the failure to have such Governmental
Approval would not reasonably be expected to result in a Material Adverse Effect.



     Section 3.15 Compliance with Environmental Laws. Neither the Company nor any
Guarantor has received any Environmental Notice which would reasonably be expected to result in a
material liability to the Company or the Guarantors. Neither the Company nor any guarantor has any
contingent liability with respect to any Environmental Release, environmental pollution or
hazardous material on any real estate now or previously owned, leased or operated by it where such
liability could reasonably be expected to result in a Material Adverse Effect. As used in this
section, “Environmental Notice” means a notice from any Governmental Authority or other
Person of any possible noncompliance with, investigation of a possible violation of, litigation
relating to, or potential fine or liability under any Environmental Law, or with respect to any
Environmental Release, environmental pollution or hazardous materials, including any complaint,
summons, citation, order, claim, demand or request for correction, remediation or otherwise. As
used in this section, “Environmental Laws” means all Applicable Laws (including all
programs, local policies, permits and guidance promulgated by regulatory agencies), relating to
public health (with respect to exposure to hazardous substances or wastes, but excluding
occupational safety and health, to the extent regulated by the Occupational Safety and Health Act
of 1970) or the protection or pollution of the environment, including the Comprehensive



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Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et
seq.) (“CERCLA”), the Resource Conservation and Recovery Act (42 U.S.C. §§
6991-6991i) and the Clean Water Act (33 U.S.C. §§ 1251 et seq.) or to the
conditions of the workplace, or any emission or substance capable of causing harm to any living
organism or the environment. As used in this section, “Environmental Release” means a
release as defined in CERCLA or under any other Environmental Law.



     Section 3.16 Litigation. There are no proceedings or investigations pending
or, to the Company’s knowledge, threatened against the Company or any Guarantor, or any of their
businesses, operations, properties, prospects or conditions, that (a) relate to the Third Lien
Notes Indenture or transactions contemplated thereby, or (b) could reasonably be expected to have a
Material Adverse Effect if determined adversely to the Company or any Guarantor.



     Section 3.17 Labor Relations. There are no material grievances, disputes or
controversies with any union or other organization of any of the Company’s employees, or, to the
Company’s knowledge, any asserted or threatened strikes, work stoppages or demands for collective
bargaining.



     Section 3.18 Not an Investment Company. Neither the Company nor any Guarantor
is an “investment company” or a “person directly or indirectly controlled by or acting on behalf of
an investment company” within the meaning of the Investment Company Act of 1940.



     Section 3.19 Margin Stock. None of the Company nor any Guarantor is engaged,
principally or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System). No proceeds from the sale of the Third Lien Notes will
be used by Company to purchase or carry, or to reduce or refinance any debt incurred to purchase or
carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board
of Governors of the Federal Reserve System.



     Section 3.20 Assuming the accuracy of the representations and warranties of the
Holders contained in Article IV and their compliance with their agreements set forth
therein, the issuance and sale of the Units, the Third Lien Notes and the Warrants by the Company
to the Holders in the manner contemplated by this Agreement will be exempt from the registration
requirements of the U.S. Securities Act of 1933, as amended (the “Securities Act”) by
reason of Section 4(2) thereof, and it is not necessary to qualify an indenture in respect of the
Third Lien Notes under the United States Trust Indenture Act of 1939, as amended.



     Section 3.21 No securities of the same class (within the meaning of Rule 144A(d)(3)
under the Securities Act) as the Units, Third Lien Notes and Warrants are listed on any national
securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.



     Section 3.22 There is and has been no failure on the part of the Company and any of
the Company’s directors or officers, in their capacities as such, to comply with any provision of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith,



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including Section 402 related to loans and Sections 302 and 906 related to certifications, to
the extent such sections are applicable.



     Section 3.23 Neither the Company, nor any of its affiliates, nor, to the knowledge of
the Company, any person acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Securities Act) the Units, Third Lien Notes and Warrants, or any
security of the same class or series as the Units, Third Lien Notes and Warrants or (ii) has
offered or will offer or sell the Third Lien Notes and Warrants in the United States by means of
any form of general solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act.



     Section 3.24 No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act (i) has imposed (or has informed
the Company or any Guarantor that it is considering imposing) any condition (financial or
otherwise) on the Company’s or any Guarantor’s retaining any rating assigned to the Company or any
Guarantor, any securities of the Company or any Guarantor or (ii) has indicated to the Company or
any Guarantor that it is considering (a) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction of the possible change in, any
rating so assigned or (b) any change in the outlook for any rating of the Company, any Guarantor or
any securities of the Company or any Guarantor.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE HOLDER




     Each Holder represents and warrants, severally and not jointly, to the Company as follows:



     Section 4.1 Organization and Standing of the Holder. The Holder is duly
organized, validly existing and in good standing under the laws of its jurisdiction of its
incorporation or formation and has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and to enter into this Agreement and perform
its obligations hereunder.



     Section 4.2 Exchange Agreement and Other Transaction Documents. This
Agreement and each other agreement contemplated hereby to which the Holder is a party have been
duly and validly authorized by the Holder. This Agreement has been duly executed and delivered by
the Holder, and this Agreement is a valid and binding obligation of the Holder enforceable in
accordance with its terms, subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors’
rights generally, and except that the enforceability of any indemnification or contribution
provisions thereof may be limited under applicable securities laws or the public policies
underlying such laws.



     Section 4.3 Non-Contravention. The execution and delivery by the Holder of
this Agreement and the other documents contemplated by this Agreement and the other transactions
contemplated by this Agreement and each other agreement contemplated hereby to which the



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Holder is a party, do not and will not (i) result in any violation of any terms of the charter
documents of the Holder; (ii) conflict with or result in a breach by the Holder or any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Holder is a party or by which the Holder or any of
its properties or assets is bound or affected or (iii) violate or contravene any applicable law,
rule or regulation or any applicable decree, judgment or order of any Governmental Body or court
having jurisdiction over the Holder or any of its properties or assets, except, in the case of (ii)
and (iii), as would not have a material adverse effect on the business, properties, operations,
financial condition or results of operations of the Holder and its subsidiaries, taken as a whole.



     Section 4.4 Ownership. The Holder is (i) the sole beneficial owner and/or the
investment advisor, authorized representative or manager for the beneficial owners of the Exchanged
Notes the principal amount of which is set forth on its signature page attached hereto, having the
power to vote and dispose of such Exchanged Notes on behalf of such beneficial owners and (ii)
entitled (for its own account or for the account of certain funds and/or accounts for which it acts
as investment advisor) to all of the rights and economic benefits of such Exchanged Notes. There
are no outstanding agreements, arrangements or understandings under which such Holder, its nominee
or the beneficial owners of the Exchanged Notes for which such Holder acts as investment advisor
may be obligated to transfer any of the Exchanged Notes, other than this Agreement. The Holder has
full power and authority to enter into this Agreement, make the representations and warranties set
forth herein and transfer Exchange Notes in accordance with the terms hereof on behalf of the
beneficial owners of the Exchanged Notes the principal amount of which is set forth on its
signature page hereto.



     Section 4.5 Transfers. Such Holder (and the beneficial owners of the
Exchanged Notes for which such Holder acts as investment advisor) has made no prior assignment,
sale, participation, grant, conveyance, or other transfer of, and has not entered into any other
agreement to assign, sell, participate, grant, or otherwise transfer, in whole or in part, any
portion of its right, title, or interests in the Exchanged Notes it beneficially owns, subject to
this Agreement, that is inconsistent with the representations and warranties made in Section
4.4 above or that would render such Holder (and the beneficial owners of the Exchanged Notes
for which such Holder acts as investment advisor) otherwise unable to comply with its obligations
under this Agreement.



     Section 4.6 Liens. The Exchanged Notes held by such Holder (or the beneficial
owners of the Exchanged Notes for which such Holder acts as investment advisor, as the case may be)
are not subject to any lien, pledge, mortgage, security interest, charge, option or other
encumbrance of adverse claim of any kind (a “Lien”). The execution and delivery of, and
the performance by such Holder of its obligations under, this Agreement, will not result in the
creation of any Lien upon the Exchanged Notes held by such Holder (or the beneficial owners of the
Exchanged Notes for which such Holder acts as investment advisor, as the case may be). Upon the
consummation of the Exchange, the Company will acquire the Exchanged Notes to be exchanged by such
Holder (or the beneficial owners of the Exchanged Notes for which such Holder acts as investment
advisor, as the case may be) free and clear of any Lien.



     Section 4.7 Investment Experience. The Holder has such knowledge and
experience in financial and business affairs that such Holder is capable of evaluating the merits
and risks of



10









 







an investment in the Units, the Third Lien Notes and the Warrants. The Holder (and each
beneficial owner of the Exchanged Notes for which such Holder acts as investment advisor) is an
“accredited investor,” within the meaning of Rule 501 promulgated by the Commission under the
Securities Act, and a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act. The Holder (and each beneficial owner of the Exchanged Notes for which such Holder acts as
investment advisor) will acquire the Units, the Third Lien Notes and the Warrants for its own
account (or for the account of certain funds and/or accounts for which such Holder acts as
investment advisor), for investment, and not with a view to or for sale in connection with any
distribution thereof in violation of the registration provisions of the Securities Act or the rules
and regulations promulgated thereunder. The Holder (and each beneficial owner of the Exchanged
Notes for which such Holder acts as investment advisor) understands that the Units, the Third Lien
Notes and the Warrants, are being issued to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and that the Company
is relying upon the truth and accuracy of, and the Holder’s compliance (and the compliance of each
beneficial owner of the Exchanged Notes for which such Holder acts as investment advisor) with, the
representations, warranties, agreements, acknowledgments and understandings of the Holder (on its
own behalf and on behalf of each beneficial owner of the Exchanged Notes for which such Holder acts
as investment advisor) set forth herein in order to determine the availability of such exemptions
and the eligibility of the Holder (and each beneficial owner of the Exchanged Notes for which such
Holder acts as investment advisor) to acquire the Units, the Third Lien Notes and the Warrants.
Such Holder (and each beneficial owner of the Exchanged Notes for which such Holder acts as
investment advisor) acknowledges that no representations, express or implied, are being made with
respect to the Company, the Units, the Third Lien Notes and the Warrants, or otherwise, other than
those expressly set forth herein. In making its decision to invest in the Units, the Third Lien
Notes and Warrants, hereunder, such Holder has relied upon independent investigations made by such
Holder and, to the extent believed by such Holder to be appropriate, such Holder’s representatives,
including such Holder’s own professional, tax and other advisors. Such Holder and its
representatives have been given the opportunity to ask questions of, and to receive answers from,
the Company and its representatives concerning the terms and conditions of the investment in the
Units, the Third Lien Notes and the Warrants. Such Holder has reviewed, or has had the opportunity
to review, all information it deems necessary and appropriate for such Holder to evaluate the
financial risks inherent in an investment in the Units, the Third Lien Notes and the Warrants.
Such Holder (and each beneficial owner of the Exchanged Notes for which such Holder acts as
investment advisor) understands that its investment in the Units, the Third Lien Notes and the
Warrants involves a high degree of risk and that no Governmental Body has passed on or made any
recommendation or endorsement of the Units, the Third Lien Notes and the Warrants.



     Section 4.8 Restricted Securities. The Holder has been advised by the Company
that (i) the offer and sale of the New Securities has not been registered under the Securities Act;
(ii) the offer and sale of the New Securities is intended to be exempt from registration under the
Securities Act pursuant to Section 4(2) under the Securities Act; and (iii) there is no established
market for the Units, the Third Lien Notes and the Warrants, and it is not anticipated that there
will be any active public market for the Units, the Third Lien Notes and the Warrants in the
foreseeable future. The Holder is familiar with Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. The Holder (and each beneficial owner of



11









 







the Exchanged Notes for which such Holder acts as investment advisor) will only sell or
otherwise transfer the Units, the Third Lien Notes and the Warrants in accordance with the Warrant
and Unit Agreement and the Third Lien Notes Indenture, as applicable.



ARTICLE V

CONDITIONS PRECEDENT TO HOLDER’S OBLIGATION




     The obligation of each Holder to exchange the Exchanged Notes for the Units consisting of the
Third Lien Notes and the Warrants is subject to the following conditions (any or all of which may
be waived by the Holder in its sole discretion):



     Section 5.1 Representations and Warranties. Each of the representations and
warranties of the Company set forth in this Agreement shall be true and correct on the Closing
Date.



     Section 5.2 Performance; No Default. The Company shall have performed and
complied in all material respects with all agreements and conditions contained in this Agreement
required to be performed or complied with by the Company prior to or at the Closing.



     Section 5.3 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to the Holder, and the Holder shall
have received all such counterpart originals or certified or other copies of such documents as it
may reasonably request.



     Section 5.4 No Actions. No action, suit or legal, administrative or arbitral
proceeding or investigation (as “Action”) shall have been instituted (and be pending) by or
before any Governmental Body to restrain or prohibit this Agreement or the consummation of the
transactions contemplated by this Agreement. No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction preventing consummation of this
Agreement shall be in effect.



     Section 5.5 Execution of Credit Agreement Amendment. The Company, the
Guarantors and Bank of America shall have entered into the Credit Agreement Amendment.



     Section 5.6 Consummation of Second Lien Term Loan. The Company, the
Guarantors and the Second Lien Agent and any lenders party thereto shall have entered into the
Second Lien Term Loan Agreement and the Second Lien Collateral Documents, and the funding of the
Second Lien Term Loan Agreement shall have been consummated or shall be consummated
contemporaneously with the consummation of the Exchange.



     Section 5.7 Opinion of Counsel. Kirkland & Ellis LLP, counsel for the
Company, shall have delivered to the Holders an opinion, dated as of the Closing, in form and
substance satisfactory to the Holders.



     Section 5.8 Officers’ Certificate. The Holders shall have received a
certificate, dated as of the Closing, of the President or any Vice President and the Chief
Financial Officer of the



12









 







Company in which such officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company in this Agreement are true and
correct in the case of representations and warranties which are qualified as to materiality, and
true and correct in all material respects in the case of representations and warranties that are
not so qualified, that the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing, and that, subsequent to March 31, 2009, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the condition (financial
or other), business, properties or results of operations of the Company and its subsidiaries taken
as a whole except as described in such certificate.



     Section 5.9 DTC. The Units, the Third Lien Notes and the Warrants shall have
been declared eligible for clearance and settlement through DTC.



     Section 5.10 Costs. The Company shall have paid all costs and expenses
invoiced to the Company prior to the Closing in connection with the preparation, execution and
delivery of this Agreement and the issuance of the Units, the Third Lien Notes and the Warrants,
including the costs and expenses of Akin Gump Strauss Hauer & Feld LLP, counsel to the Holders.



ARTICLE VI

CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATION




     The obligation of the Company to exchange the Exchanged Notes for the Units consisting of the
Third Lien Notes and the Warrants is subject to the following conditions (any or all of which may
be waived by the Company in its sole discretion):



     Section 6.1 Representations and Warranties. Each of the representations and
warranties of each Holder set forth in this Agreement shall be true and correct in all material
respects on the Closing Date.



     Section 6.2 Performance; No Default. The Holders shall have performed and
complied in all material respects with all agreements and conditions contained in this Agreement
required to be performed or complied with by the Holders prior to or at the Closing.



     Section 6.3 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated by this Agreement and all documents and instruments
incident to such transactions shall be reasonably satisfactory to the Company, and the Company
shall have received all such counterpart originals or certified or other copies of such documents
as it may reasonably request.



     Section 6.4 No Actions. No Action shall have been instituted (and be pending)
by or before any Governmental Body to restrain or prohibit this Agreement or the consummation of
the transactions contemplated by this Agreement. No preliminary or permanent injunction or other
order issued by any federal or state court of competent jurisdiction preventing consummation of
this Agreement shall be in effect.



13









 





     Section 6.5 Execution of Credit Agreement Amendment. The Company, the
Guarantors and Bank of America shall have entered into the Credit Agreement Amendment.



     Section 6.6 Consummation of Second Lien Term Loan. The Company, the
Guarantors and the Second Lien Agent and any lenders party thereto shall have entered into the
Second Lien Term Loan Agreement and the Second Lien Collateral Documents, and the funding of the
Second Lien Term Loan Agreement shall have been consummated or shall be consummated
contemporaneously with the consummation of the Exchange.



     Section 6.7 DTC. The Units, the Third Lien Notes and the Warrants shall have
been declared eligible for clearance and settlement through DTC.



     Section 6.8 Exchanged Notes Returned. The Holder shall have instructed each
of its custodians for those accounts holding the Exchanged Notes to recall any of its Exchanged
Notes that such custodian may have loaned under any securities lending arrangement, and any such
Exchanged Notes shall have been returned.



     Section 6.9 Required Holders. Holders holding not less than $52,190,000 of
the principal amount outstanding of the Exchanged Notes shall have executed this Agreement and
shall have delivered such principal amount of Exchanged Notes through the book-entry facilities of
DTC to the Company (or its designee which may be the Trustee for the benefit of the Company) in
accordance with Section 2.2 hereof. The Company may, in its sole discretion, waive the
condition set forth in this Section 6.9 if (a) the Holders have delivered $45,690,000 in
principal amount of Exchanged Notes through the book-entry facilities of the DTC to the Company (or
its designee which may be the Trustee for the benefit of the Company), and (b) TRP has instructed
the custodians for those accounts holding the remaining $6,500,000 in principal amount of Exchanged
Notes to deliver such Exchanged Notes through the book-entry facilities of DTC to the Company (or
its designee which may be the Trustee for the benefit of the Company) as soon as practicable. The
foregoing waiver shall not relieve TRP (and the funds and/or accounts for which TRP acts as
investment advisor) of their obligations to deliver the entire principal amount of Exchanged Notes
set forth opposite TRP’s name on Schedule I hereto in accordance with the terms of this
Agreement.



ARTICLE VII

CERTAIN COVENANTS AND AGREEMENTS OF THE PARTIES




     Section 7.1 Legends. Each certificate issued at the Closing representing
Units shall be endorsed with a legend in substantially the form as provided in the Warrant and Unit
Agreement. Each certificate issued at the Closing representing Third Lien Notes shall be endorsed
with a legend in substantially the form as provided in the Third Lien Notes Indenture. Each
certificate issued at the Closing representing Warrants shall be endorsed with a legend in
substantially the form as provided in the Warrant and Unit Agreement.



     Section 7.2 Further Actions by Holder. The Holders shall, at the written
request of the Company, at any time and from time to time following the Closing execute and deliver
to the Company all such further instruments and take all such further action as may be reasonably
necessary or appropriate in order to confirm or carry out its obligations under this Agreement.



14









 





     Section 7.3 Further Action by the Company. The Company shall, at the written
request of any Holder, at any time and from time to time following the Closing execute and deliver
to such Holder all such further instruments and take all such further action as may be reasonably
necessary or appropriate in order to confirm or carry out its obligations under this Agreement.



     Section 7.4 Best Efforts. The Company and the Holders shall use their
respective best efforts (subject to standards of commercial reasonableness) to consummate the
transactions contemplated to be performed by it under this Agreement.



     Section 7.5 Publicity. Neither the Company nor the Holder shall issue or
cause the publication of any press release or make any other public statement, filing or
announcement with respect to this Agreement and the transactions contemplated hereby without the
prior approval of the other party; provided, however, that the Company shall be
entitled, without the prior approval of the Holder, to make any press release or other public
disclosure with respect to such transactions as is required by applicable law or regulation,
including the rules of the Securities and Exchange Commission, or the Nasdaq. The Company and the
Holder shall cooperate in issuing press releases or otherwise making public statements with respect
to this Agreement and the transactions contemplated hereby, which cooperation shall include first
consulting the other party hereto concerning the requirement for, and timing and content of, such
public announcement.



     Section 7.6 Expenses. The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Third Lien Notes Indenture and the Third
Lien Collateral Documents, including (i) the fees and expenses of the Trustee and its professional
advisors; (ii) all expenses in connection with the execution, issue, authentication, and initial
delivery of the New Securities, the preparation of this Agreement, the Third Lien Notes Indenture
and the Third Lien Collateral Documents, and any other document relating to the issuance, sale and
delivery of the New Securities and (iii) the costs and expenses of Akin Gump Strauss Hauer & Feld
LLP, counsel to the Holders.



ARTICLE VIII

TERMINATION




     Section 8.1 Termination. Notwithstanding anything in this Agreement to the
contrary, this Agreement may be terminated and the transactions contemplated by this Agreement
abandoned at any time prior to the Closing by any party if the transactions contemplated by this
Agreement are not consummated in accordance with their terms within 15 days after the date hereof;
provided, however, that a party hereto shall not have the right to terminate this
Agreement if the failure to consummate the transactions contemplated by this Agreement shall be
primarily attributable to such party’s failure to satisfy its obligations hereunder; provided
further that the provisions of Sections 7.6, 9.1 and 9.2 shall survive any
such termination of this Agreement.



15









 





ARTICLE IX

INDEMNIFICATION




     Section 9.1 Indemnification.



     (a) The Company agrees to indemnify and hold harmless each Holder and its affiliates, each
beneficial owner of the Exchanged Notes for which such Holder acts as investment advisor, and in
each case, their respective officers, directors, employees, controlling persons (within the meaning
of the Securities Act or the Exchange Act) and agents (each, an “Indemnified Holder”),
against any loss, claim, damage, liability or out-of-pocket expense (including reasonable
attorneys’ fees), as incurred, if any (collectively, “Losses”), arising out of or relating
to this Agreement and the transactions contemplated hereby, other than Losses resulting from the
bad faith, gross negligence or willful misconduct of such Indemnified Holder, from a willful and
material breach by a Holder of its obligations under this Agreement or from a claim solely among
the Indemnified Holders.



     (b) Promptly after receipt by an Indemnified Holder under this Section 9.1 of notice
of the commencement of any action, such Indemnified Holder will, if a claim in respect thereof is
to be made against the Company under this Section 9.1, notify the Company in writing of the
commencement thereof, but the failure to notify the Company will not relieve it from liability
under paragraph (a) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the Company of substantial rights and defenses. In case
any such action is brought against any Indemnified Holder and such Indemnified Holder seeks or
intends to seek indemnity from the Company, the Company will be entitled to participate in, and, to
the extent that it shall elect, by written notice delivered to the Indemnified Holder promptly
after receiving the aforesaid notice from such Indemnified Holder, to assume the defense thereof
with counsel satisfactory to such Indemnified Holder; provided, however, if the defendants in any
such action include both the Indemnified Holder and the Company and the Company shall have
reasonably concluded that a conflict may arise between the positions of the Company and the
Indemnified Holder in conducting the defense of any such action or that there may be legal defenses
available to it and/or other Indemnified Holders that are different from or additional to those
available to the Company, the Indemnified Holder or Holders shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Holder or Holders. Upon receipt of notice from the Company to such
Indemnified Holder of the Company’s election so to assume the defense of such action and approval
by the Indemnified Holder of counsel, the Company will not be liable to such Indemnified Holder for
any legal or other expenses subsequently incurred by such Indemnified Holder in connection with the
defense thereof unless (i) the Indemnified Holder shall have employed separate counsel in
accordance with the proviso to the preceding sentence (it being understood, however, that in
connection with any such action the Company shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) representing the Indemnified Holders who are
parties to such action) or (ii) the Company shall not have employed counsel reasonably satisfactory
to the Indemnified Holder to represent the Indemnified Holder within a reasonable time after notice
of commencement of the action.



     (c) The Company shall not be liable for any settlement of any proceeding effected without its
written consent, which shall not be withheld unreasonably, but if settled with such



16









 








consent or if there is a final judgment for the plaintiff, the Company agrees to indemnify the
Indemnified Holder against any Loss by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Holder shall have requested that the Company
reimburse the Indemnified Holder for fees and expenses of counsel as contemplated by this
Section 9.1, the Company shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the the Company of such request and (ii) the Company shall not have reimbursed the Indemnified
Holder in accordance with such request prior to the date of such settlement. The Company shall
not, without the prior written consent of the Indemnified Holder, effect any settlement in any
pending or threatened action, suit or proceeding in respect of which any Indemnified Holder is or
could have been a party and indemnity was or could have been sought hereunder by such Indemnified
Holder, unless such settlement, compromise or consent (x) includes an unconditional release of such
Indemnified Holder from all liability on claims that are the subject matter of such action, suit or
proceeding and (y) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any Indemnified Holder.



     (d) If the indemnification provided for in this Section 9.1 is for any reason
unavailable to or otherwise insufficient to hold harmless the Indemnified Holder in respect of any
Loss referred to therein, then the Company shall contribute to the aggregate amount paid or payable
by such Indemnified Holder, as incurred, as a result of any Loss referred to therein:




     (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Holders, on the other hand, pursuant to this
Agreement, or




     (ii) if the allocation provided by Section 9.1(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in Section 9.1(d)(i) above but also the relative fault of the
Company, on the one hand, and the Holders, on the other hand, as well as any other relevant
equitable considerations.



The Company and the Holders agree that it would not be just and equitable if contribution pursuant
to this Section 9.1(d) were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 9.1. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this Section
9.1(d) are several and not joint.



     (e) The provisions of this Section 9.1 will survive the Closing.



ARTICLE X

MISCELLANEOUS




     Section 10.1 Termination of Lock-Up Period. The Lock-Up Period, as defined in
paragraph 5 of the confidentiality agreement, dated as of June 26, 2009, between the Company



17









 







and
Evergreen and paragraph 5 of the confidentiality agreement, dated as of June 26, 2009,
between the Company and TRP, shall end automatically upon a public announcement by the Company
of the execution and delivery of this Agreement by means of a filing of a Current Report on Form
8-K or other periodic report under the Exchange Act with the Securities and Exchange Commission or
otherwise.



     Section 10.2 Survival of Representations. The representations, warranties,
covenants and agreements of the Holders and the Company contained in this Agreement or in any
certificate furnished hereunder shall survive the Closing.



     Section 10.3 Prior Agreements. This Agreement and the confidentiality
agreements referred to in Section 9.1 hereof constitute the entire agreement between the
parties concerning the subject matter hereof and supersedes any prior representations,
understandings or agreements. There are no representations, warranties, agreements, conditions or
covenants, of any nature whatsoever (whether express or implied, written or oral) between the
parties hereto with respect to such subject matter except as expressly set forth herein.



     Section 10.4  Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any other provision or
the validity and enforceability of this Agreement in any other jurisdiction.



     Section 10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CHOICE OF LAW RULES.



     Section 10.6 Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of, or affect the interpretation
of, this Agreement.



     Section 10.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and either
of the parties hereto may execute this Agreement by signing any such counterpart. A facsimile
transmission of this Agreement bearing a signature on behalf of a party hereto shall be legal and
binding on such party.



     Section 10.8 Assignment; Binding Effect. The Holders shall not convey, assign
or otherwise transfer any of their rights or obligations under this Agreement without the express
written consent of the Company, and the Company shall not convey, assign or otherwise transfer any
of its rights and obligations under this Agreement without the express written consent of the
initial Holders. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.



     Section 10.9 Waiver; Remedies. No delay on the part of any Holder or the
Company in exercising any right, power or privilege under this Agreement shall operate as a wavier
thereof, nor shall any waiver on the part of any Holder or the Company of any right, power or
privilege under this Agreement operate as a waiver of any other right, power or privilege of such
party under this Agreement, nor shall any single or partial exercise of any right, power or
privilege



18









 







under this Agreement preclude any other or further exercise thereof or the exercise of
any other right, power or privilege under this Agreement.



     Section 10.10 Amendment. This Agreement may be modified or amended only by
written agreement of the parties to this Agreement.



     Section 10.11 Notice. Any notice or communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or by registered or certified
first-class mail, telecopier or courier service, to the following addresses, or such other
addresses as may be furnished hereafter by notice in writing, as follows:




if to the Company or any Subsidiary Guarantor:




Commercial Vehicle Group, Inc.

7800 Walton Parkway

New Albany, OH 43054

Attention: Chief Financial Officer

Facsimile: (614) 289-5360




if to the Holders:




Evergreen Investment Management Company, LLC

200 Berkeley Street

Boston, MA 02116

Attention: Michael Brown

Facsimile: (617) 954-0991




- and -




T. Rowe Price Associates, Inc.

100 East Pratt Street

Baltimore, MD 21202

Attention: Jonathan D. Siegel, Vice President & Senior Legal Counsel

Facsimile: (410) 345-2777



19









 





     IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this
Agreement to be executed by their respective duly authorized officers, as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	COMMERCIAL VEHICLE GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chad M. Utrup	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Chad M. Utrup	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	CABARRUS PLASTICS, INC.

CVG CS LLC

CVG MANAGEMENT CORPORATION

CVG LOGISTICS, LLC

CVG EUROPEAN HOLDINGS, LLC

CVG OREGON, LLC

CVS HOLDINGS, INC.

MAYFLOWER VEHICLE SYSTEMS, LLC

MONONA CORPORATION

MONONA WIRE CORPORATION

MONONA (MEXICO) HOLDINGS LLC

NATIONAL SEATING COMPANY

SPRAGUE DEVICES, INC.

TRIM SYSTEMS, INC.

TRIM SYSTEMS OPERATING CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chad M. Utrup	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Chad M. Utrup	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






Signature Page to Exchange Agreement




 









 





	 	 	 	 	 	 	 
	 	 	NAME OF HOLDER:	 	 
	 
	 	 	 	 	 	 
	Date: August 4, 2009	 	EVERGREEN INVESTMENT MANAGEMENT COMPANY, LLC
(investment advisor for various funds and accounts
which are beneficial owners of the Exchanged Notes)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew P. Cestone	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Andrew P. Cestone	 	 
	 

	 	Title:
	 	SVP Head of Global High Yield	 	 
	 
	 	 	 	 	 	 
	 	 	Aggregate Principal Amount of 8% Senior Notes due 2013 to be
Exchanged (for its own account or for the account of funds
and/or accounts for which it acts as investment advisor):	 	 
	 
	 	 	 	 	 	 
	 	 	$28,090,000	 	 






Signature Page to Exchange Agreement




 









 








	 	 	 	 	 	 	 
	 	 	NAME OF HOLDER:	 	 
	 
	 	 	 	 	 	 
	Date: August 4, 2009	 	T. ROWE PRICE ASSOCIATES, INC. (investment advisor
for various funds and accounts which are beneficial
owners of the Exchanged Notes)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Vaselkiv	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark Vaselkiv	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Aggregate Principal Amount of 8% Senior Notes due 2013 to be
Exchanged (for its own account or for the account of funds
and/or accounts for which it acts as investment advisor):	 	 
	 
	 	 	 	 	 	 
	 	 	$24,100,000	 	 






Signature Page to Exchange Agreement




 









 








Schedule I




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Units Consisting of:	 	 
	 	 	 	 	 	 	 	 	 	 	Total	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Third Lien	 	 	 	 	 	 
	 	 	Principal	 	 	 	 	 	Notes	 	 	 	 	 	 
	 	 	Amount of	 	 	 	 	 	Exchanged for	 	 	 	 	 	Total Amount
	 	 	and	 	 	 	 	 	Exchanged	 	 	 	 	 	(Gross
	 	 	Accrued	 	 	 	 	 	Notes and	 	Total Number	 	Proceeds) of
	 	 	and Unpaid	 	 	 	 	 	Accrued and	 	of Shares of	 	Second Lien
	 	 	Interest on	 	 	 	 	 	Unpaid	 	Common	 	Term Loan
	 	 	Exchanged	 	 	 	 	 	Interest on	 	Stock	 	Funded
	 	 	Notes	 	Number	 	Exchanged	 	Underlying	 	through
	Holder	 	Exchanged	 	of Units	 	Notes	 	Warrants	 	Assignments
	Evergreen
Investment
Management Company,
LLC
	 	$	28,090,000	 	 	 	22,672	 	 	$	22,672,000	 	 	 	400,974.26645	 	 	$	7,111,473.60	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	T. Rowe Price
Associates, Inc.
	 	$	24,100,000	 	 	 	19,452	 	 	$	19,452,000	 	 	 	344,025.73355	 	 	$	6,009,326.40	 






 









 





Exhibit A




[Third Lien Notes Indenture]





[Filed as Exhibit 4.1 to this Current Report on Form 8-K]



 









 





Exhibit B




[Security Agreement]





[Filed as Exhibit 4.2 to this Current Report on Form 8-K]



 









 





Exhibit C




[Warrant and Unit Agreement]





[Filed as Exhibit 4.3 to this Current Report on Form 8-K]



 









 





Exhibit D




[Second Lien Term Loan Agreement]





[Filed as Exhibit 10.3 to this Current Report on Form 8-K]



 









 





Exhibit E




[First Lien Credit Agreement Amendment]





[Filed as Exhibit 10.2 to this Current Report on Form 8-K]



 









 





Exhibit F




[BofA Intercreditor Agreement]





[Filed as Exhibit 10.4 to this Current Report on Form 8-K]



 









 





Exhibit G




[Junior Intercreditor Agreement]





[Filed as Exhibit 10.5 to this Current Report on Form 8-K]