exv10w5







Exhibit 10.5




INTERCREDITOR AGREEMENT




     Intercreditor Agreement (this “Agreement”), dated as of August 4, 2009, among Credit Suisse,
as Second Lien Collateral Agent (in such capacity, and as more specifically defined below, the
“Second Priority Representative”) for the Second Priority Secured Parties (as defined below), U.S.
Bank National Association, as Third Lien Collateral Agent (in such capacity, and as more
specifically defined below, the “Third Priority Representative”) for the Third Priority Secured
Parties (as defined below), COMMERCIAL VEHICLE GROUP, INC., a Delaware corporation (the “Company”)
and the other Loan Parties (as defined below).



     WHEREAS, the Company, the Second Priority Representative, the Second Priority Administrative
Agent and certain financial institutions and the other entities party thereto are entering into a
Second Lien Term Loan Agreement, dated as of the date hereof (the “Existing Second Priority
Agreement”), pursuant to which such financial institutions and other entities have agreed to make
loans to the Company;



     WHEREAS, the Company, the subsidiary guarantors party thereto and the Third Priority
Representative are parties to a Third Lien Indenture, dated as of the date hereof (the “Existing
Third Priority Agreement”), pursuant to which the Company has issued to certain holders 11%/13%
Third Lien Senior Secured Notes due 2013;



     WHEREAS, the Company and the other Loan Parties propose to grant to the Second Priority
Representative security interests in the Common Collateral to secure the payment and performance of
the Second Priority Obligations;



     WHEREAS, the Company and the other Loan Parties propose to grant to the Third Priority
Representative security interests in the Common Collateral to secure the payment and performance of
the Third Priority Obligations; and



     WHEREAS, the parties hereto have agreed to execute and deliver this Agreement for the purpose
of setting forth the relative priority of the Liens created by the Second Priority Security
Documents and the Third Priority Security Documents (as such terms are hereinafter defined) in
respect of the exercise of the rights and remedies in respect of the Common Collateral and the
application of proceeds thereof;



     NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which is expressly
recognized by all of the parties hereto, the parties agree as follows:



     SECTION 1. DEFINITIONS.



     1.1.
Defined Terms. The following terms, as used herein, have the following meanings:



     “Additional Debt” has the meaning as set forth in Section 9.3(b).



     “Additional Second Priority Agreement” means any agreement approved for designation as such by
the Second Priority Administrative Agent, the Second Priority Representative and the Company.



     “Additional Third Priority Agreement” means any agreement approved for designation as such by
the Second Priority Administrative Agent, the Second Priority Representative, the Third Party
Representative and the Company.



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     “Agreement” has the meaning set forth in the introductory paragraph hereof.



     “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended
from time to time.



     “Common Collateral” means all assets that are both Second Priority Collateral and Third
Priority Collateral.



     “Company” has the meaning set forth in the introductory paragraph hereof.



     “Comparable Third Priority Security Document” means, in relation to any Common Collateral
subject to any Second Priority Security Document, the Third Priority Security Document that creates
a security interest in the same Common Collateral, granted by the same Loan Party, as applicable.



     “DIP Financing” has the meaning set forth in Section 5.2.



     “Enforcement Action” means, with respect to the Second Priority Obligations or the Third
Priority Obligations, the exercise of any rights and remedies with respect to any Common Collateral
securing such obligations or the commencement or prosecution of enforcement of any of the rights
and remedies under, as applicable, the Second Priority Documents or the Third Priority Documents,
or applicable law, including without limitation the exercise of any rights of set-off or
recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform
Commercial Code of any applicable jurisdiction or under the Bankruptcy Code.



     “Enforcement Notice” has the meaning set forth in Section 3.7(a).



     “Existing Second Priority Agreement” has the meaning set forth in the second WHEREAS clause of
this Agreement.



     “Existing Third Priority Agreement” has the meaning set forth in the third WHEREAS clause of
this Agreement.



     “First Lien Intercreditor Agreement” the Intercreditor Agreement, dated on the date hereof, by
and among the Company, the Subsidiary Guarantors party thereto from time to time, the First
Priority Representative, Second Priority Representative and the Third Priority Representative.



     “Insolvency Proceeding” means any proceeding in respect of bankruptcy, insolvency, winding up,
receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing
events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy,
insolvency, reorganization, receivership or similar law.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, deed to secure debt,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and
(b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic effect as
any of the foregoing) relating to such asset.



     “Loan Party” means the Company and its Subsidiaries that are now or hereafter become parties
to any Second Priority Document or Third Priority Document. All references in this Agreement to
any Loan Party shall include such Loan Party as a debtor-in-possession and any receiver or trustee
for such Loan Party in any Insolvency Proceeding.



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     “Person” means any person, individual, sole proprietorship, partnership, joint venture,
corporation, limited liability company, unincorporated organization, association, institution,
entity, party, including any government and any political subdivision, agency or instrumentality
thereof.



     “Post-Petition Interest” means any interest or entitlement to fees or expenses or other
charges that accrues after the commencement of any Insolvency Proceeding, whether or not allowed or
allowable in any such Insolvency Proceeding.



     “Recovery” has the meaning as set forth in Section 5.5.



     “Second Priority Administrative Agent” means Credit Suisse, as the administrative agent and
collateral agent for the Second Priority Secured Parties under the Second Priority Agreement,
together with any of its successors and assigns.



     “Second Priority Agreement” means the collective reference to (a) the Existing Second Priority
Agreement, (b) any Additional Second Priority Agreement and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture, or other agreement or instrument evidencing
or governing the terms of any indebtedness or other financial accommodation that has been incurred
to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations
outstanding under the Existing Second Priority Agreement, any Additional Second Priority Agreement
or any other agreement or instrument referred to in this clause (c). Any reference to the Second
Priority Agreement hereunder shall be deemed a reference to any Second Priority Agreement then
extant.



     “Second Priority Collateral” means all assets, whether now owned or hereafter acquired by the
Company or any other Loan Party, in which a Lien is granted or purported to be granted to any
Second Priority Secured Party as security for any Second Priority Obligation.



     “Second Priority Creditors” means the “Lenders” as defined in the Second Priority Agreement,
or any Persons that are designated under the Second Priority Agreement as the “Second Priority
Creditors” for purposes of this Agreement.



     “Second Priority Documents” means each Second Priority Agreement, each Second Priority
Security Document and each Second Priority Guarantee.



     “Second Priority Guarantee” means any guarantee by any Loan Party of any or all of the Second
Priority Obligations.



     “Second Priority Lien” means any Lien created by the Second Priority Security Documents.



     “Second Priority Obligations” means (a) all principal of and interest (including without
limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Second
Priority Agreement, and (b) all guarantee obligations, fees, expenses (including fees and expenses
of counsel to the Second Priority Administrative Agent and the Second Priority Representative) and
other amounts payable (including any indemnity for Claims (as defined in the Second Priority
Agreement)) from time to time pursuant to the Second Priority Documents, in each case whether or
not allowed or allowable in an Insolvency Proceeding.



     “Second Priority Obligations Payment Date” means the first date on which (a) the Second
Priority Obligations (other than those that constitute Unasserted Contingent Obligations) have been
paid in cash in full, (b) all commitments to extend credit under the Second Priority Documents have
been terminated, and (c) the Second Priority Representative has delivered a written notice to the
Third Priority Representatives stating that the events described in clauses (a) and (b) have
occurred to the satisfaction of the Second Priority Secured Parties.



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     “Second Priority Representative” has the meaning set forth in the introductory paragraph
hereof, but shall also include any Person identified as a “Second Priority Representative” in any
Second Priority Agreement other than the Existing Second Priority Agreement.



     “Second Priority Secured Parties” means the Second Priority Representative, the Second
Priority Creditors and any other holders of the Second Priority Obligations.



     “Second Priority Security Documents” means the “Security Documents” as defined in the Second
Priority Agreement and any documents that are designated under the Second Priority Agreement as
“Second Priority Security Documents” for purposes of this Agreement.



     “Secured Parties” means the Second Priority Secured Parties and the Third Priority Secured
Parties.



     “Standstill Period” has the meaning as set forth in Section 3.2.



     “Surviving Obligations” has the meaning set forth in Section 3.7(b).



     “Third Priority Agreement” means the collective reference to (a) the Existing Third Priority
Agreement, (b) any Additional Third Priority Agreement and (c) any other credit agreement, loan
agreement, note agreement, promissory note, indenture, or other agreement or instrument evidencing
or governing the terms of any indebtedness or other financial accommodation that has been incurred
to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations
outstanding under the Existing Third Priority Agreement, any Additional Third Priority Agreement or
any other agreement or instrument referred to in this clause (c). Any reference to the Third
Priority Agreement hereunder shall be deemed a reference to any Third Priority Agreement then
extant.



     “Third Priority Collateral” means all assets, whether now owned or hereafter acquired by the
Company or any other Loan Party, in which a Lien is granted or purported to be granted to any Third
Priority Secured Party as security for any Third Priority Obligation.



     “Third Priority Creditors” means the “Holders” as defined in the Third Priority Agreement, or
any Persons that are designated under the Third Priority Agreement as the “Third Priority
Creditors” for purposes of this Agreement.



     “Third Priority Documents” means each Third Priority Agreement, each Third Priority Security
Document and each Third Priority Guarantee.



     “Third Priority Guarantee” means any guarantee by any Loan Party of any or all of the Third
Priority Obligations.



     “Third Priority Lien” means any Lien created by the Third Priority Security Documents.



     “Third Priority Obligations” means (a) all principal of and interest (including without
limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Third
Priority Agreement, (b) the obligations of the Loan Parties to the Third Priority Representative
under Section 7.07 of the Third Priority Agreement and (c) all guarantee obligations, fees,
expenses (including fees and expenses of counsel to the Third Priority Representative) and other
amounts payable from time to time pursuant to the Third Priority Documents.



     “Third Priority Representative” has the meaning set forth in the introductory paragraph
hereof, but shall also include any Person identified as a “Third Priority Representative” in any
Third Priority Agreement other than the Existing Third Priority Agreement.



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     “Third Priority Secured Parties” means the Third Priority Representative, the Third Priority
Creditors and any other holders of the Third Priority Obligations.



     “Third Priority Security Documents” means the “Security Documents” as defined in the Third
Priority Agreement and any documents that are designated under the Third Priority Agreement as
“Third Priority Security Documents” for purposes of this Agreement.



     “Unasserted Contingent Obligations” means, at any time, Second Priority Obligations for taxes,
costs, indemnifications, reimbursements, damages and other liabilities (excluding the principal of,
and interest and premium (if any) on, and fees and expenses relating to, any Second Priority
Obligation) in respect of which no assertion of liability (whether oral or written) and no claim or
demand for payment (whether oral or written) has been made (and, in the case of Second Priority
Obligations for indemnification, no notice for indemnification has been issued by the indemnitee)
at such time.



     “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in
the applicable jurisdiction.



     1.2 Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, amended and restated, restated, supplemented or otherwise modified,
renewed, extended Refinanced or replaced (ii) any reference herein to any Person shall be construed
to include such Person’s successors or permitted assigns, (iii) any reference herein to any Loan
Party shall be construed to include such Loan Party as debtor and debtor-in-possession and any
receiver or trustee for such Loan Party in any Insolvency Proceeding, (iv) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (v) all references herein to
Sections shall be construed to refer to Exhibits or Sections of this Agreement, (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights, and (vii) references to laws or statutes include all related rules, regulations,
interpretations, amendments and successor provisions.



     SECTION 2. LIEN PRIORITIES.



     2.1 Subordination of Liens. (a) Any and all Liens now existing or hereafter created
or arising in favor of any Third Priority Secured Party securing the Third Priority Obligations,
regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise
are expressly junior in priority, operation and effect to any and all Liens now existing or
hereafter created or arising in favor of the Second Priority Secured Parties securing the Second
Priority Obligations, notwithstanding (i) anything to the contrary contained in any agreement or
filing to which any Second Priority Secured Party may now or hereafter be a party, and regardless
of the time, order or method of grant, attachment, recording or perfection of any financing
statements or other security interests, pledges, deeds, mortgages and other liens, charges or
encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing,
(ii) any provision of the Uniform Commercial Code or any applicable law or any Second Priority
Document or Third Priority Document or any other circumstance whatsoever and (iii) the fact that
any such Liens in favor of any Second Priority Secured Party securing any of the Second Priority
Obligations are (x) subordinated to any Lien securing any obligation of any Loan Party other than
the Third Priority Obligations or (y) otherwise subordinated, voided, avoided, invalidated or
lapsed.



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     (b) No Third Priority Secured Party shall object to or contest, or support any other Person
in contesting or objecting to, in any proceeding (including without limitation, any Insolvency
Proceeding), the validity, extent, perfection, priority (as set forth herein) or enforceability of
any security interest in the Common Collateral granted to the Second Priority Secured Parties;
provided that nothing in this Agreement shall be construed to prevent or impair the rights of the
Second Priority Representative or the Second Priority Secured Parties to enforce this Agreement,
including the priority of the Liens as provided in this Agreement. Notwithstanding any failure by
any Second Priority Secured Party to perfect its security interests in the Common Collateral or any
avoidance, invalidation or subordination by any third party or court of competent jurisdiction of
the security interests in the Common Collateral granted to the Second Priority Secured Parties, the
priority and rights as between the Second Priority Secured Parties and the Third Priority Secured
Parties with respect to the Common Collateral shall be as set forth herein.



     2.2 Nature of Second Priority Obligations. Each Third Priority Representative, on
behalf of itself and the other Third Priority Secured Parties it represents, acknowledges that the
amount of Second Priority Obligations that may be outstanding at any time or from time to time may
be increased or reduced, and that the terms of the Second Priority Obligations may be modified,
extended or amended from time to time, and that the aggregate amount of the Second Priority
Obligations may be increased, replaced or refinanced, in each event, without notice to or consent
by the Third Priority Secured Parties and without affecting the provisions hereof, whether or not
such obligations are permitted to be incurred pursuant to the Third Priority Documents. The lien
priorities provided in Section 2.1 shall not be altered or otherwise affected by any such
amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement,
renewal, restatement or refinancing of either the Second Priority Obligations or the Third Priority
Obligations, or any portion thereof.



     2.3 Agreements Regarding Actions to Perfect Liens. (a) Each Third Priority
Representative, on behalf of itself and the other Third Priority Secured Parties it represents,
agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or
recordings filed or recorded on behalf of the Third Priority Secured Parties shall be in form
reasonably satisfactory to the Second Priority Representative.



     (b) Each Third Priority Representative, on behalf of itself and the other Third Priority
Secured Parties it represents, agrees that all mortgages, deeds of trust, deeds and similar
instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of
and for the benefit of the Third Secured Parties shall be in form satisfactory to the Second
Priority Representative and shall contain the following notation (or such other notation acceptable
to the Second Priority Representative): “The lien created by this mortgage on the property
described herein is junior and subordinate to the lien on such property created by any mortgage,
deed of trust or similar instrument now or hereafter granted to the Second Priority Representative,
and its successors and assigns, in such property, in accordance with the provisions of that certain
Intercreditor Agreement dated as of August 4, 2009 among Credit Suisse, as Second Priority
Representative, U.S. Bank National Association, as Third Priority Representative and the Loan
Parties referred to therein, as amended, modified or supplemented from time to time.”



     (c) The Second Priority Representative hereby acknowledges that, to the extent that it holds,
or a third party holds on its behalf, physical possession of or “control” (as defined in the
Uniform Commercial Code) over Common Collateral pursuant to the Second Priority Security Documents,
such possession or control is also for the benefit of the Third Priority Representatives and the
other Third Priority Secured Parties solely to the extent required to perfect their security
interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose
any duty on the Second Priority Representative (or any third party acting on its behalf) with
respect to such Common Collateral or provide the Third Priority Representatives or any other Third
Priority Secured Party with any rights with respect to such Common Collateral beyond those
specified in this Agreement and the Third Priority Security Documents, provided that
promptly subsequent to the occurrence of the Second Priority Obligations Payment Date, the Second
Priority Representative shall (i) deliver to the applicable Third Priority Representative, at the
direction of



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the Second Priority Representative and the Third Priority Representative as is determined
between them in accordance with the this Agreement, at the Loan Parties’ sole cost and expense, the
Common Collateral in its possession or control together with any necessary endorsements to the
extent required by the Third Priority Documents or (ii) direct and deliver such Common Collateral
as a court of competent jurisdiction otherwise directs, and provided, further, that
the provisions of this Agreement are intended solely to govern the respective Lien priorities as
between the Second Priority Secured Parties and the Third Priority Secured Parties and shall not
impose on the Second Priority Secured Parties any obligations in respect of the disposition of any
Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any
claims thereon in favor of any other Person that is not a Secured Party.



     2.4 No New Liens. So long as the Second Priority Obligations Payment Date has not
occurred, the parties hereto agree that (a) no Loan Party shall create or grant, nor shall any
Third Priority Secured Party have any right to require the creation of any Lien, on any assets of
any Loan Party securing any Third Priority Obligation if these same assets are not subject to, and
do not become subject to, a Lien securing the Second Priority Obligations and (b) if any Third
Priority Secured Party shall acquire or hold any Lien on any assets of any Loan Party securing any
Third Priority Obligation which assets are not also subject to the Second Priority Lien of the
Second Priority Representative under the Second Priority Documents, then such Third Priority
Representative, upon demand by the Second Priority Representative, will without the need for any
further consent of any other Third Priority Secured Party, notwithstanding anything to the contrary
in any other Third Priority Document either (i) release such Lien or (ii) assign it to the Second
Priority Representative as security for the Second Priority Obligations (in which case such Third
Priority Representative may retain a Third Priority Lien on such assets subject to the terms
hereof). To the extent that the foregoing provisions are not complied with for any reason, without
limiting any other rights and remedies available to the Second Priority Secured Parties, the Third
Priority Representatives and the other Third Priority Secured Parties agree that any amounts
received by or distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.4 shall be subject to Section 4.1.



     SECTION 3. ENFORCEMENT RIGHTS.



     3.1 Exclusive Enforcement. Until the Second Priority Obligations Payment Date has
occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party,
the Second Priority Secured Parties shall have the exclusive right to take and continue any
Enforcement Action with respect to the Common Collateral, without any consultation with or consent
of any Third Priority Secured Party, but subject to the provisos set forth in Sections 3.2 and 5.1.
Upon the occurrence and during the continuance of a Default or an Event of Default under (and
defined in) the Second Priority Documents, the Second Priority Representative and the other Second
Priority Secured Parties may take and continue any Enforcement Action with respect to the Second
Priority Obligations and the Common Collateral in accordance with the terms of the Second Priority
Documents in such order and manner as they may determine in their sole discretion.



     3.2 Standstill and Waivers. Each Third Priority Representative, on behalf of itself
and the other Third Priority Secured Parties it represents, agrees that, until the Second Priority
Obligations Payment Date has occurred, subject to the proviso set forth in Section 5.1:




     (a) they will not take or cause to be taken any Enforcement Action;




     (b) they will not take or cause to be taken any action, the purpose or effect of which
is to make any Lien in respect of any Third Priority Obligation pari passu with or senior
to, or to give any Third Priority Secured Party any preference or priority relative to, the
Liens with respect to the Second Priority Obligations or the Second Priority Secured Parties
with respect to any of the Common Collateral;



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     (c) they will not contest, oppose, object to, interfere with, hinder or delay, in any
manner, whether by judicial proceedings (including without limitation the filing of an
Insolvency Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or
other disposition of the Common Collateral by any Second Priority Secured Party or any other
Enforcement Action taken (or any forbearance from taking any Enforcement Action) by or on
behalf of any Second Priority Secured Party;




     (d) they have no right to (i) direct either the Second Priority Representative or any
other Second Priority Secured Party to exercise any right, remedy or power with respect to
the Common Collateral or pursuant to the Second Priority Security Documents or (ii) consent
or object to the exercise by the Second Priority Representative or any other Second Priority
Secured Party of any right, remedy or power with respect to the Common Collateral or
pursuant to the Second Priority Security Documents or to the timing or manner in which any
such right is exercised or not exercised (or, to the extent they may have any such right
described in this clause (c), whether as a Third lien creditor or otherwise, they hereby
irrevocably waive such right);




     (e) they will not institute any suit or other proceeding or assert in any suit,
Insolvency Proceeding or other proceeding any claim against any Second Priority Secured
Party seeking damages from or other relief by way of specific performance, instructions or
otherwise, with respect to, and no Second Priority Secured Party shall be liable for, any
action taken or omitted to be taken by any Second Priority Secured Party with respect to the
Common Collateral or pursuant to the Second Priority Documents;




     (f) they will not make any judicial or nonjudicial claim or demand or commence any
judicial or non-judicial proceedings against any Loan Party or any of its subsidiaries or
affiliates under or with respect to any Third Priority Security Document seeking payment or
damages from or other relief by way of specific performance, instructions or otherwise under
or with respect to any Third Priority Security Document (other than filing a proof of claim)
or exercise any right, remedy or power under or with respect to, or otherwise take any
action to enforce, other than filing a proof of claim, any Third Priority Security Document;




     (g) they will not commence judicial or nonjudicial foreclosure proceedings with
respect to, seek to have a trustee, receiver, liquidator or similar official appointed for
or over, attempt any action to take possession of any Common Collateral, exercise any right,
remedy or power with respect to, or otherwise take any action to enforce their interest in
or realize upon, the Common Collateral or pursuant to the Third Priority Security Documents;
and




     (h) they will not seek, and hereby waive any right, to have the Common Collateral or
any part thereof marshaled upon any foreclosure or other disposition of the Common
Collateral.


provided that, notwithstanding the foregoing, any Third Priority Secured Party may exercise
its rights and remedies in respect of the Common Collateral under and to the extent provided for in
the Third Priority Security Documents or applicable law (and any recovery therefrom shall be for
the benefit of the Second Priority Secured Parties) after the passage of a period of 270 days (the
“Standstill Period”) from the date of delivery of a notice in writing to the Second Priority
Representative of its intention to exercise such rights and remedies, which notice may only be
delivered following the occurrence of and during the continuation of an “Event of Default” under
and as defined in the Third Priority Agreements; provided, further, however, that,
notwithstanding the foregoing, in no event shall any Third Priority Secured Party exercise or
continue to exercise any such rights or remedies if, notwithstanding the expiration of the
Standstill Period, (i) any Second Priority Secured Party shall have commenced and be diligently
pursuing the exercise of any of its rights and remedies with respect to any of the Common
Collateral (prompt notice of such exercise to be given to the Third Priority Representatives) or
(ii) an Insolvency Proceeding in respect of any Loan Party shall have been commenced; and
provided, further, that in any Insolvency


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Proceeding commenced by or against any Loan Party, the Third Priority Representatives and the Third
Priority Secured Parties may take only such actions as are expressly permitted by Section 5.




     3.3 Judgment Creditors. In the event that any Third Priority Secured Party becomes a
judgment lien creditor in respect of Common Collateral as a result of its enforcement of its rights
as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for
all purposes (including in relation to the Second Priority Liens and the Second Priority
Obligations) to the same extent as all other Liens securing the Third Priority Obligations are
subject to the terms of this Agreement.



     3.4 Cooperation. Each Third Priority Representative, on behalf of itself and the
other Third Priority Secured Parties it represents, agrees that each of them shall take such
actions as the Second Priority Representative shall reasonably request in connection with the
exercise by the Second Priority Secured Parties of their rights set forth herein.



     3.5 [Reserved].



     3.6 Actions Upon Breach. (a) If any Third Priority Secured Party, contrary to this
Agreement, commences or participates in any action or proceeding against any Loan Party or the
Common Collateral, such Loan Party, with the prior written consent of the Second Priority Secured
Representative, may interpose as a defense or dilatory plea the making of this Agreement, and any
Second Priority Secured Party may intervene and interpose such defense or plea in its or their name
or in the name of such Loan Party.



     (b) Should any Third Priority Secured Party, contrary to this Agreement, in any way take,
attempt to or threaten in writing to take any action with respect to the Common Collateral
(including, without limitation, any attempt to realize upon or enforce any remedy with respect to
this Agreement), or fail to take any action required by this Agreement, any Second Priority Secured
Party (in its own name or in the name of the relevant Loan Party) or the relevant Loan Party may
obtain relief against such Third Priority Secured Party by injunction, specific performance and/or
other appropriate equitable relief, it being understood and agreed by the Third Priority
Representatives on behalf of each Third Priority Secured Party it represents that (i) the Second
Priority Secured Parties’ damages from its actions may at that time be difficult to ascertain and
may be irreparable, and (ii) each Third Priority Secured Party waives any defense that the Loan
Parties and/or the Second Priority Secured Parties cannot demonstrate damage and/or be made whole
by the awarding of damages.



     SECTION 4. APPLICATION OF PROCEEDS OF COMMON COLLATERAL; DISPOSITIONS AND RELEASES OF COMMON
COLLATERAL; INSPECTION AND INSURANCE.



     4.1 Application of Proceeds; Turnover Provisions. All proceeds of Common Collateral
(including without limitation any interest earned thereon) resulting from the sale, collection or
other disposition of Common Collateral in connection with an Enforcement Action, whether or not
pursuant to an Insolvency Proceeding, shall be distributed as follows: first to the Second
Priority Representative for application to the Second Priority Obligations in accordance with the
terms of the Second Priority Documents, until the Second Priority Obligations Payment Date has
occurred and thereafter, to the Third Priority Representatives for application in
accordance with the Third Priority Documents. Until the occurrence of the Second Priority
Obligations Payment Date, any Common Collateral, including without limitation any such Common
Collateral constituting proceeds, that may be received by any Third Priority Secured Party in
violation of this Agreement shall be segregated and held in trust and promptly paid over to the
Second Priority Representative, for the benefit of the Second Priority Secured Parties, in the same
form as received, with any necessary endorsements, and each Third Priority Secured Party hereby
authorizes the Second Priority Representative to make any such endorsements as agent for the Third
Priority Representatives (which authorization, being coupled with an interest, is irrevocable).



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     4.2 Releases of Third Priority Lien. (a) Upon any release, sale or disposition of
Common Collateral permitted by the Second Priority Documents or consented to by the Second Priority
Secured Parties (or any requisite percentage of them) that results in the release of the Second
Priority Lien on any Common Collateral, the Third Priority Liens on such Common Collateral
(excluding any portion of the proceeds of such Common Collateral remaining after the Second
Priority Obligations Payment Date occurs) shall be automatically and unconditionally released with
no further consent or action of any Person.



     (b) The Third Priority Representatives shall promptly execute and deliver such release
documents and instruments and shall take such further actions as the Second Priority Representative
(or, with the consent of the Second Priority Representative, the Company) shall request to evidence
any release of the Third Priority Liens described in paragraph (a). The Third Priority
Representatives hereby appoints the Second Priority Representative and any officer or duly
authorized person of the Second Priority Representative, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of
the Third Priority Representatives and in the name of the applicable Third Priority
Representative’s or in the Second Priority Representative’s own name, from time to time, in the
Second Priority Representative’s sole discretion, for the purposes of carrying out the terms of
this Section 4.2, to take any and all appropriate action and to execute and deliver any and all
documents and instruments as may be necessary or desirable to accomplish the purposes of this
Section 4.2, including, without limitation, any financing statements, endorsements, assignments,
releases or other documents or instruments of transfer (which appointment, being coupled with an
interest, is irrevocable).



     4.3 Inspection Rights and Insurance. (a) Any Second Priority Secured Party and its
representatives and invitees may at any time inspect, repossess, remove and otherwise deal with the
Common Collateral in accordance with the terms of the Second Priority Documents, and the Second
Priority Representative may advertise and conduct public auctions or private sales of the Common
Collateral, in each case without notice to, the involvement of or interference by any Third
Priority Secured Party or liability to any Third Priority Secured Party.



     (b) Until the Second Priority Obligations Payment Date has occurred, the Second Priority
Representative will subject to the terms and provisions in the First Lien Intercreditor Agreement,
have the sole and exclusive right (i) to be named as additional insured and loss payee under any
insurance policies maintained from time to time by any Loan Party (except that the Third Priority
Representative shall have the right to be named as additional insured and loss payee so long as its
second or third lien status, as applicable, is identified in a manner reasonably satisfactory to
the Second Priority Representative); (ii) to adjust or settle any insurance policy or claim
covering the Common Collateral in the event of any loss thereunder in accordance with the terms of
the Second Priority Documents and (iii) to approve any award granted in any condemnation or similar
proceeding affecting the Common Collateral in accordance with the terms of the Second Priority
Documents.



     SECTION 5. INSOLVENCY PROCEEDINGS.



     5.1 Filing of Motions. Until the Second Priority Obligations Payment Date has
occurred, each Third Priority Representative, on behalf of itself and the other Third Priority
Secured Parties it represents, agrees that no Third Priority Secured Party shall, in or in
connection with any Insolvency Proceeding involving any Loan Party, file any pleadings or motions,
take any position at any hearing or proceeding of any nature, or otherwise take any action
whatsoever, in each case that (a) violates, or is prohibited by, this Section 5 (or, in the absence
of an Insolvency Proceeding, otherwise would violate or be prohibited by this Agreement), (b)
asserts any right, benefit or privilege that arises in favor of the Third Priority Representatives
or Third Priority Secured Parties, in whole or in part, as a result of their interest in the Common
Collateral or in the Third Priority Liens (unless the assertion of such right is expressly
permitted by this Agreement) or (c) challenges the validity, priority, enforceability or
voidability of any Liens or claims held by the Second Priority Representative or any other Second
Priority Secured Party, or



10









 







the extent to which the Second Priority Obligations constitute secured claims under Section
506(a) of the Bankruptcy Code or otherwise; provided that the Third Priority
Representatives may file a proofs of claim in an Insolvency Proceeding involving any Loan Party,
subject to the limitations contained in this Agreement and only if consistent with the terms and
the limitations on the Third Priority Representatives imposed hereby.



     5.2 Financing Matters. If any Loan Party becomes subject to any Insolvency
Proceeding, and if the Second Priority Representative or any of the other Second Priority Secured
Parties desire to consent (or not object) to the use of cash collateral under the Bankruptcy Code
or to provide financing to any Loan Party under the Bankruptcy Code or to consent (or not object)
to the provision of such financing to any Loan Party by any third party (any such financing, “DIP
Financing”), then each Third Priority Representative agrees, on behalf of itself and the other
Third Priority Secured Parties it represents, that each Third Priority Secured Party (a) will be
deemed to have consented to, will raise no objection to, nor support any other Person objecting to,
the use of such cash collateral or to such DIP Financing, (b) will not request or accept adequate
protection or any other relief in connection with the use of such cash collateral or such DIP
Financing except as set forth in paragraph 5.4 below and (c) will subordinate (and will be deemed
hereunder to have subordinated) the Third Priority Liens (i) to such DIP Financing on the same
terms as the Second Priority Liens are subordinated thereto (and such subordination will not alter
in any manner the terms of this Agreement), (ii) to any adequate protection provided to the Second
Priority Secured Parties and (iii) to any “carve-out” agreed to by the Second Priority
Representative or the other Second Priority Secured Parties, and (d) agrees that notice received
two calendar days prior to the entry of an order approving such usage of cash collateral or
approving such financing shall be adequate notice.



     5.3 Relief From the Automatic Stay. Each Third Priority Representative, on behalf of
itself and the other Third Priority Secured Parties it represents, agrees that none of them will
seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any
action in derogation thereof, in each case in respect of any Common Collateral, without the prior
written consent of the Second Priority Representative.



     5.4 Adequate Protection. Each Third Priority Representative, on behalf of itself and
the other Third Priority Secured Parties it represents, agrees that none of them shall object,
contest, or support any other Person objecting to or contesting, (a) any request by the Second
Priority Representative or the other Second Priority Secured Parties for adequate protection or any
adequate protection provided to the Second Priority Representative or the other Second Priority
Secured Parties or (b) any objection by the Second Priority Representative or any other Second
Priority Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of
adequate protection or (c) the payment of interest, fees, expenses or other amounts to the Second
Priority Representative or any other Second Priority Secured Party under Section 506(b) or 506(c)
of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this Section and in
Section 5.2(b) (but subject to all other provisions of this Agreement, including, without
limitation, Sections 5.2(a) and 5.3), in any Insolvency Proceeding, (i) if the Second Priority
Secured Parties (or any subset thereof) are granted adequate protection consisting of additional
collateral (with replacement liens on such additional collateral) and superpriority claims in
connection with any DIP Financing or use of cash collateral, and the Second Priority Secured
Parties do not object to the adequate protection being provided to them, then in connection with
any such DIP Financing or use of cash collateral each Third Priority Representative, on behalf of
itself and any of the Third Priority Secured Parties it represents, may seek or accept adequate
protection consisting solely of (x) a replacement Lien on the same additional collateral,
subordinated to the Liens securing the Second Priority Obligations and such DIP Financing on the
same basis as the other Liens securing the Third Priority Obligations are so subordinated to the
Second Priority Obligations under this Agreement and (y) superpriority claims junior in all
respects to the superpriority claims granted to the Second Priority Secured Parties,
provided, however, that each Third Priority Representatives shall have irrevocably
agreed, pursuant to Section 1129(a)(9) of the Bankruptcy Code, on behalf of itself and the Third
Priority Secured Parties it represents, in any stipulation and/or order granting such adequate
protection, that such



11









 







junior superpriority claims may be paid under any plan of reorganization in any combination of
cash, debt, equity or other property having a value on the effective date of such plan equal to the
allowed amount of such claims and (ii) in the event either Third Priority Representative, on behalf
of itself and the Third Priority Secured Parties it represents, seeks or accepts adequate
protection in accordance with clause (i) above and such adequate protection is granted in the form
of additional collateral, then each Third Priority Representative, on behalf of itself and the
other Third Priority Secured Parties it represents, agrees that the Second Priority Representative
shall also be granted a senior Lien on such additional collateral as security for the Second
Priority Obligations and any such DIP Financing and that any Lien on such additional collateral
securing the Third Priority Obligations shall be subordinated to the Liens on such collateral
securing the Second Priority Obligations and any such DIP Financing (and all Obligations relating
thereto) and any other Liens granted to the Second Priority Secured Parties as adequate protection,
with such subordination to be on the same terms that the other Liens securing the Third Priority
Obligations are subordinated to such Second Priority Obligations under this Agreement. Each Third
Priority Representative, on behalf of itself and the other Third Priority Secured Parties it
represents agrees that except as expressly set forth in this Section none of them shall seek or
accept adequate protection without the prior written consent of the Second Priority Representative.



     5.5 Avoidance Issues. If any Second Priority Secured Party is required in any
Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any
Loan Party, because such amount was avoided or ordered to be paid or disgorged for any reason,
including without limitation because it was found to be a fraudulent or preferential transfer, any
amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of
set-off or otherwise, then the Second Priority Obligations shall be reinstated to the extent of
such Recovery and deemed to be outstanding as if such payment had not occurred and the Second
Priority Obligations Payment Date shall be deemed not to have occurred. If this Agreement shall
have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and
effect, and such prior termination shall not diminish, release, discharge, impair or otherwise
affect the obligations of the parties hereto. The Third Priority Secured Parties agree that none
of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to
any distribution or allocation made in accordance with this Agreement, whether by preference or
otherwise, it being understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in accordance with the
priorities set forth in this Agreement.



     5.6 Asset Dispositions in an Insolvency Proceeding. No Third Priority Representative
nor any other Third Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose
any sale or disposition of any assets of any Loan Party that is supported by any of the Second
Priority Secured Parties, and the Third Priority Representatives and each other Third Priority
Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code (and
otherwise) to any sale supported by any of the Second Priority Secured Parties and to have released
their Liens on such assets.



     5.7 Separate Grants of Security and Separate Classification. Each Third Priority
Secured Party acknowledges and agrees that (a) the grants of Liens pursuant to the Second Priority
Security Documents and the Third Priority Security Documents constitute two separate and distinct
grants of Liens and (b) because of, among other things, their differing rights in the Common
Collateral, the Third Priority Obligations are fundamentally different from the Second Priority
Obligations and must be separately classified in any plan of reorganization proposed or adopted in
an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the
immediately preceding sentence, if it is held that the claims of the Second Priority Secured
Parties and Third Priority Secured Parties in respect of the Common Collateral constitute only one
secured claim (rather than separate classes of senior and Third secured claims), then the Third
Priority Secured Parties hereby acknowledge and agree that all distributions shall be made as if
there were separate classes of senior and junior secured claims against the Loan Parties in respect
of the Common Collateral, with the effect being that, to the extent that the aggregate value of the
Common Collateral is sufficient (for this purpose ignoring all claims held by the



12









 







Third Priority Secured Parties), the Second Priority Secured Parties shall be entitled to
receive, in addition to amounts distributed to them in respect of principal, pre-petition interest
and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is
made in respect of the claims held by the Third Secured Priority Secured Parties. The Third
Priority Secured Parties hereby acknowledge and agree to turn over to the Second Priority Secured
Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the
intent of the preceding sentence, even if such turnover has the effect of reducing the claim or
recovery of the Third Priority Secured Parties.



     5.8 No Waivers of Rights of Second Priority Secured Parties. Except as set forth in
the proviso in Section 5.1, nothing contained herein shall prohibit or in any way limit the Second
Priority Representative or any other Second Priority Secured Party from objecting in any Insolvency
Proceeding or otherwise to any action taken by any Third Priority Secured Party, including the
seeking by any Third Priority Secured Party of adequate protection (except as provided in Section
5.4) or the asserting by any Third Priority Secured Party of any of its rights and remedies under
the Third Priority Documents or otherwise.



     5.9 Plans of Reorganization. No Third Priority Secured Party shall support or vote in
favor of any plan of reorganization (and each shall be deemed to have voted to reject any plan of
reorganization) unless such plan (a) pays off, in cash in full, all Second Priority Obligations or
(b) is accepted by the class of holders of Second Priority Obligations voting thereon and is
supported by the Second Priority Representative.



     5.10 Other Matters. To the extent that a Third Priority Representative or any Third
Priority Secured Party has or acquires rights under Section 363 or Section 364 of the Bankruptcy
Code with respect to any of the Common Collateral, each Third Priority Representative, on behalf of
itself and the other Third Priority Secured Parties it represents, agrees not to assert any of such
rights without the prior written consent of the Second Priority Representative unless expressly
permitted to do so hereunder; provided that if requested by the Second Priority
Representative, the Third Priority Representatives shall timely exercise such rights in the manner
requested by the Second Priority Representative, including any rights to payments in respect of
such rights.



     5.11 Effectiveness in Insolvency Proceedings. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under section 510(a) of the Bankruptcy
Code, shall be effective before, during and after the commencement of an Insolvency Proceeding.



     SECTION 6. THIRD PRIORITY DOCUMENTS AND SECOND PRIORITY DOCUMENTS.



     (a) Each Loan Party and each Third Priority Representative, on behalf of itself and the Third
Priority Secured Parties, agrees that it shall not at any time execute or deliver any amendment or
other modification to any of the Third Priority Documents that would conflict with or violate this
Agreement.



     (b) Each Loan Party and the Second Priority Representative, on behalf of itself and the
Second Priority Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the Second Priority Documents that would conflict with or
violate this Agreement.



     (c) In the event the Second Priority Representative enters into any amendment, waiver or
consent in respect of any of the Second Priority Security Documents for the purpose of adding to,
or deleting from, or waiving or consenting to any departures from any provisions of, any Second
Priority Security Document or changing in any manner the rights of any parties thereunder, then
such amendment, waiver or consent shall apply automatically to any comparable provision of the
Comparable Third Priority Security Document without the consent of or action by any Third Priority
Secured Party (with all such amendments, waivers and modifications subject to the terms hereof);
provided that (other than with



13









 







respect to amendments, modifications or waivers that secure additional extensions of credit
and add additional secured creditors and do not violate the express provisions of the Third
Priority Agreements), (a) no such amendment, waiver or consent shall have the effect of removing
assets subject to the Lien of any Third Priority Security Document, except to the extent that a
release of such Lien is permitted by Section 4.2 and provided there is a corresponding release of
the Lien securing the Second Priority Obligations, (b) any such amendment, waiver or consent that
materially and adversely affects the rights of the Third Priority Secured Parties and does not
affect the Second Priority Secured Parties in a like or similar manner shall not apply to the Third
Priority Security Documents without the consent of the Third Priority Representatives and (c)
notice of such amendment, waiver or consent shall be given to the Third Priority Representatives no
later than 30 days after its effectiveness, provided that the failure to give such notice shall not
affect the effectiveness and validity thereof.



     SECTION 7. RELIANCE; WAIVERS; ETC.



     7.1 Reliance. The Second Priority Documents are deemed to have been executed and
delivered, and all extensions of credit thereunder are deemed to have been made or incurred, in
reliance upon this Agreement. Each Third Priority Representative, on behalf of itself and the
other Third Priority Secured Parties it represents, expressly waives all notice of the acceptance
of and reliance on this Agreement by the Second Priority Secured Parties. The Third Priority
Documents are deemed to have been executed and delivered and all extensions of credit thereunder
are deemed to have been made or incurred, in reliance upon this Agreement. The Second Priority
Representative expressly waives all notices of the acceptance of and reliance by the Third Priority
Representatives and the other Third Priority Secured Parties.



     7.2 No Warranties or Liability. The Third Priority Representatives and the Second
Priority Representative acknowledge and agree that none has made any representation or warranty
with respect to the execution, validity, legality, completeness, collectibility or enforceability
of any other Second Priority Document or any Third Priority Document. Except as otherwise provided
in this Agreement, the Third Priority Representatives and the Second Priority Representative will
be entitled to manage and supervise their respective extensions of credit to any Loan Party in
accordance with law and their usual practices, modified from time to time as they deem appropriate.



     7.3 No Waivers. No right or benefit of any party hereunder shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such party or any other
party hereto or by any noncompliance by any Loan Party with the terms and conditions of any of the
Second Priority Documents or the Third Priority Documents.



     SECTION 8. OBLIGATIONS UNCONDITIONAL.



     8.1 Second Priority Obligations Unconditional. All rights and interests of the Second
Priority Secured Parties hereunder, and all agreements and obligations of the Third Priority
Secured Parties (and, to the extent applicable, the Loan Parties) hereunder, shall remain in full
force and effect irrespective of:




     (a) any lack of validity or enforceability of any Second Priority Document or any
Second Priority Liens;




     (b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the Second Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any Second Priority Document;



14









 






     (c) prior to the Second Priority Obligations Payment Date, any exchange, release,
voiding, avoidance or non-perfection of any security interest in any Common Collateral or
any other collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of
all or any portion of the Second Priority Obligations or any guarantee or guaranty thereof;
or




     (d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Loan Party in respect of the Second Priority Obligations, or of any of
the Third Priority Representatives, or any Loan Party, to the extent applicable, in respect
of this Agreement (other than payment in full).



     8.2 Third Priority Obligations Unconditional. All rights and interests of the Third
Priority Secured Parties hereunder, and all agreements and obligations of the Second Priority
Secured Parties (and, to the extent applicable, the Loan Parties) hereunder, shall remain in full
force and effect irrespective of:




     (a) any lack of validity or enforceability of any Third Priority Document or any Third
Priority Liens;




     (b) any change in the time, place or manner of payment of, or in any other term of,
all or any portion of the Third Priority Obligations, or any amendment, waiver or other
modification, whether by course of conduct or otherwise, or any refinancing, replacement,
refunding or restatement of any Third Priority Document;




     (c) any exchange, release, voiding, avoidance or non-perfection of any security
interest in any Common Collateral or any other collateral, or any release, amendment, waiver
or other modification, whether by course of conduct or otherwise, or any refinancing,
replacement, refunding or restatement of all or any portion of the Third Priority
Obligations or any guarantee or guaranty thereof; or




     (d) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, any Loan Party in respect of the Third Priority Obligations or any Second
Priority Secured Party in respect of this Agreement (other than payment in full).



     SECTION 9. MISCELLANEOUS.



     9.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of any Second Priority Document or any Third Priority Document, the provisions
of this Agreement shall govern.



     9.2 Continuing Nature of Provisions. This Agreement shall continue to be effective,
and shall not be revocable by any party hereto, until the Second Priority Obligation Payment Date
shall have occurred. This is a continuing agreement and the Second Priority Secured Parties and
the Third Priority Secured Parties may continue, at any time and without notice to the other
parties hereto, to extend credit and other financial accommodations, lend monies and provide
indebtedness to, or for the benefit of, Borrower or any other Loan Party on the faith hereof.



     9.3 Amendments; Waivers. (a) No amendment or modification of any of the provisions
of this Agreement shall be effective unless the same shall be in writing and signed by the Second
Priority Representative, the Third Priority Representatives and the Borrowers.



     (b) It is understood that the Second Priority Representative, the Second Priority
Representative and the Third Priority Representative, without the consent of any other Second
Priority Secured Party or



15









 







Third Priority Secured Party, may in their discretion determine that a supplemental agreement
(which make take the form of an amendment and restatement of this Agreement) is necessary or
appropriate to facilitate having additional indebtedness or other obligations (“Additional Debt”)
of any of the Loan Parties become Second Priority Obligations or Third Priority Obligations, as the
case may be, under this Agreement, which supplemental agreement shall specify whether such
Additional Debt constitutes Second Priority Obligations or Third Priority Obligations,
provided, that such Additional Debt is permitted to be incurred by the Second Priority
Agreement, the Second Priority Agreement and the Third Priority Agreement then extant, and is
permitted by said Agreements to be subject to the provisions of this Agreement as Second Priority
Obligations or Third Priority Obligations, as applicable.



     9.4 Information Concerning Financial Condition of the Company and the other Loan
Parties. Each of the Third Priority Representatives and the Second Priority Representative
hereby assumes responsibility for keeping itself informed of the financial condition of the Company
and each of the other Loan Parties and all other circumstances bearing upon the risk of nonpayment
of the Second Priority Obligations or the Third Priority Obligations. The Third Priority
Representatives and the Second Priority Representative hereby agree that no party shall have any
duty to advise any other party of information known to it regarding such condition or any such
circumstances. In the event the Third Priority Representatives or the Second Priority
Representative, in their sole discretion, undertake at any time or from time to time to provide any
information to any other party to this Agreement, it shall be under no obligation (a) to provide
any such information to such other party or any other party on any subsequent occasion, (b) to
undertake any investigation not a part of its regular business routine, or (c) to disclose any
other information.



     9.5 Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York, except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws of any jurisdiction other than the
State of New York are governed by the laws of such jurisdiction.



     9.6 Submission to Jurisdiction. (a) Each Second Priority Secured Party, each Third
Priority Secured Party and each Loan Party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any federal or state court sitting in
or with jurisdiction over the State of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each such party hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined in the State of
New York or, to the extent permitted by law, in such Federal court. Each such party agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the any Second Priority Secured Party or Third Priority
Secured Party may otherwise have to bring any action or proceeding against any Loan Party or its
properties in the courts of any jurisdiction.



     (b) Each Second Priority Secured Party, each Third Priority Secured Party and each Loan Party
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a)
of this Section and (ii) the defense of an inconvenient forum to the maintenance of such action or
proceeding.



     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.7. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     9.7 Notices. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and may be personally
served,



16









 







telecopied, or sent by overnight express courier service or United States mail and shall be
deemed to have been given when delivered in person or by courier service, upon receipt of a
telecopy or five days after deposit in the United States mail (certified, with postage prepaid and
properly addressed). For the purposes hereof, the addresses of the parties hereto (until notice of
a change thereof is delivered as provided in this Section) shall be as set forth below each party’s
name on the signature pages hereof, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties.



     9.8 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and each of the Second Priority Secured Parties and Third
Priority Secured Parties and their respective successors and assigns, and nothing herein is
intended, or shall be construed to give, any other Person any right, remedy or claim under, to or
in respect of this Agreement or any Common Collateral.



     9.9 Headings. Section headings used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be taken into consideration
in interpreting, this Agreement.



     9.10 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     9.11 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall
become effective when it shall have been executed by each party hereto.



     9.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.



     9.13 Additional Loan Parties. Each Person that becomes a Loan Party after the date
hereof shall become a party to this Agreement upon execution and delivery by such Person of a Loan
Party Joinder Agreement in the form of Exhibit D to the Second Priority Agreement.



     9.14 Capacity as Representative. For the avoidance of doubt it is understood and
agreed that the Third Priority Representative is not a party to any Second Priority Documents other
than this Agreement, and except as provided in this Agreement, is not bound by any of their terms
nor has any obligations (express or implied) under any such documents, is not deemed to have any
knowledge related thereto and will not be required to refer to any such agreements for any reason
whatsoever.



17









 







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



	 	 	 	 	 
	 	Credit Suisse, Cayman Islands
Branch,


as Second Priority Representative for and on behalf

of the Second Priority Secured Parties

 	 
	 	By:  	/s/ Karim Blasetti
 	 
	 	 	Name:  	Karim Blasetti 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                                              /s/ Mikhail Faybusovich
 	 
	 	 	Name:  	Mikhail Faybusovich 	 
	 	 	Title:  	Vice President 	 



Address for Notices:




One Madison Avenue

New York, NY 10010

Attention: Agency Manager

Telecopy: (212) 322-2291




[Signature Page to the Intercreditor Agreement — Second Lien]




 









 








	 	 	 	 	 
	 	U.S. Bank National Association,

as Third Priority Representative for and on behalf of

the Third Priority Secured Parties

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



Address for Notices:




EP-MN-WS3C

60 Livingston Avenue

St. Paul, MN 55107

Attn: Commercial Vehicle Administrator

Telecopy: (651) 495-8097




[Signature Page to the Intercreditor Agreement — Second Lien]




 









 










	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 
	 	 	COMMERCIAL VEHICLE GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Chad M. Utrup
 

Chad M. Utrup
	 	 
	 

	 	Title:

Address:
	 	Chief Financial Officer	 	 
	 

	 	 	 	7800 Walton Parkway 


New Albany, OH 43054


Attn: Chief Financial Officer


Telecopy: (614) 289-5365	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL SEATING COMPANY


CVG CS LLC


MONONA CORPORATION


MONONA WIRE CORPORATION


MONONA (MEXICO) HOLDINGS LLC


TRIM SYSTEMS, INC.


TRIM SYSTEMS OPERATING CORP.


CABARRUS PLASTICS, INC.

CVG OREGON, LLC



CVS HOLDINGS, INC.


SPRAGUE DEVICES, INC.


MAYFLOWER VEHICLE SYSTEMS, LLC


CVG MANAGEMENT CORPORATION


CVG EUROPEAN HOLDINGS, LLC


CVG LOGISTICS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Chad M. Utrup
 

Chad M. Utrup
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






[Signature Page to the Intercreditor Agreement — Second Lien]