EXHIBIT 10.1
SIMPSON THACHER & BARTLETT LLP
TO: Dura Operating Corp.
FROM: James Knight
Colette Pollitt
RE: $225,000,000 Second Lien Credit Agreement Collateral Perfection Summary
DATE: August 25, 2006
The following is a summary of a review by Simpson Thacher & Bartlett LLP ("STB")
of the collateral package with respect to the second lien Credit Agreement dated
as of May 3, 2005, as amended by the First Amendment thereto dated as of March
29, 2006 (the "Credit Agreement"), among Dura Operating Corp., as Borrower (the
"Borrower"), the several lenders from time to time parties thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent (the "Administrative Agent"),
Wilmington Trust Company, as Collateral Agent (the "Collateral Agent") and Banc
of America Securities LLC, as Syndication Agent. All capitalized terms not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement. Pursuant to the Intercreditor Agreement between, among others, Bank
of America, N.A., as first lien collateral agent (the "First Lien Collateral
Agent") and the Collateral Agent, the liens created by the Loan Documents
delivered in connection with the Credit Agreement are contractually subordinated
to the liens securing obligations arising in connection with the $175,000,000
first lien Fifth Amended and Restated Credit Agreement.
As part of the review process, STB reviewed the Credit Agreement and the other
Loan Documents, acknowledgement copies of filed UCCs , executed mortgages, title
policies and other relevant documentation. This report is based on our
understanding as of the date hereof.
Pursuant to the Security Agreement among the Loan Parties and the Collateral
Agent, each Loan Party granted to the Collateral Agent for the ratable benefit
of the Lenders, as security for Obligations under the credit documentation, a
security interest in substantially all of its personal property, other than,
among other exceptions, certain Excluded Property (as defined in the Security
Agreement), in each case subject to the Intercreditor Agreement. In addition,
each Loan Party granted to the Collateral Agent mortgages on certain real
property.
In general, a security interest in most types of tangible and intangible
personal property is perfected by filing a UCC financing statement with the
Secretary of State of the jurisdiction of organization in which the Loan Party
is organized. With respect to security interests in the personal property
collateral under the Security Agreement, an initial filing was made on or around
May 2005 in recording offices in the name of "Bank of America, N.A., as
Collateral Agent." Follow-on filings were made in the name of "Wilmington Trust
Company" on or around August 16 and 17, 2006.
With respect to real property collateral and collateral perfected by possession
or control, the requisite mortgages and fixture filings and possession or
control were effected by or on behalf of Wilmington Trust Company in May 2005
(or, if later, the date possessory Collateral was delivered to the First Lien
Collateral Agent on behalf of Wilmington Trust Company).
A. Perfection By Filing
The following is a list of all of the UCC financing statements with "Bank of
America, N.A., as Collateral Agent", as the secured party, the jurisdiction and
date of filing for the Loan Parties:
Date of
Debtor Jurisdiction Filing Secured Party
- ------ ------------ ------- -------------
Adwest Electronics Inc. DE Secretary of State 5/4/05 Bank of America, N.A.
Atwood Automotive, Inc. MI Secretary of State 5/5/05 Bank of America, N.A.
Automotive Aviation Partners, LLC MN Secretary of State 5/5/05 Bank of America, N.A.
Atwood Mobile Products, Inc. IL Secretary of State 5/5/05 Bank of America, N.A.
Creation Group Holdings, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
Creation Group, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
Creation Group Transportation, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
Creation Windows, Inc. PA Secretary of State 5/4/05 Bank of America, N.A.
Creation Windows, LLC DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Aircraft Operating Company, LLC MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Automotive Systems Cable Operations, Inc. DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Automotive Systems, Inc. DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Automotive Systems of Indiana, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
Dura Brake Systems, L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Cables North LLC DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Cables South LLC DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Fremont L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Gladwin L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Global Technologies, Inc. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura G.P. DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Mancelona L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Operating Corp. DE Secretary of State 5/4/05 Bank of America, N.A.
Dura Services L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Shifter L.L.C. MI Secretary of State 5/5/05 Bank of America, N.A.
Dura Spicebright, Inc. MI Secretary of State 5/5/05 Bank of America, N.A.
Kemberly, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
Kemberly, LLC DE Secretary of State 5/4/05 Bank of America, N.A.
Mark I Molded Plastics of Tennessee, Inc. TN Secretary of State 5/5/05 Bank of America, N.A.
Spec-Temp, Inc. OH Secretary of State 5/5/05 Bank of America, N.A.
Trident Automotive, L.L.C. DE Secretary of State 5/4/05 Bank of America, N.A.
Trident Automotive, L.P. DE Secretary of State 5/4/05 Bank of America, N.A.
Universal Tool & Stamping Company, Inc. IN Secretary of State 5/5/05 Bank of America, N.A.
The following is a list of all of the UCC financing statements with "Wilmington
Trust Company", as the secured party, the jurisdiction and date of filing for
the Loan Parties:
Date of
Debtor Jurisdiction Filing Secured Party
- ------ ------------ -------- -------------
Adwest Electronics Inc. DE Secretary of State 8/16/06 Wilmington Trust Company
Atwood Automotive, Inc. MI Secretary of State 8/16/06 Wilmington Trust Company
Automotive Aviation Partners, LLC MN Secretary of State 8/16/06 Wilmington Trust Company
Atwood Mobile Products, Inc. IL Secretary of State 8/17/06 Wilmington Trust Company
Creation Group Holdings, Inc. IN Secretary of State 8/16/06 Wilmington Trust Company
Creation Group, Inc. IN Secretary of State 8/17/06 Wilmington Trust Company
Creation Group Transportation, Inc. IN Secretary of State 8/17/06 Wilmington Trust Company
Creation Windows, Inc. PA Secretary of State 8/16/06 Wilmington Trust Company
Creation Windows, LLC DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Aircraft Operating Company, LLC MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Automotive Systems Cable Operations, Inc. DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Automotive Systems, Inc. DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Automotive Systems of Indiana, Inc. IN Secretary of State 8/16/06 Wilmington Trust Company
Dura Brake Systems, L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Cables North LLC DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Cables South LLC DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Fremont L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Gladwin L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Global Technologies, Inc. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura G.P. MI Secretary of State 8/25/06 Wilmington Trust Company
Dura Mancelona L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Operating Corp. DE Secretary of State 8/16/06 Wilmington Trust Company
Dura Services L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Shifter L.L.C. MI Secretary of State 8/16/06 Wilmington Trust Company
Dura Spicebright, Inc. MI Secretary of State 8/16/06 Wilmington Trust Company
Kemberly, Inc. IN Secretary of State 8/16/06 Wilmington Trust Company
Kemberly, LLC DE Secretary of State 8/16/06 Wilmington Trust Company
Mark I Molded Plastics of Tennessee, Inc. TN Secretary of State Submitted Wilmington Trust Company
8/16/06
Spec-Temp, Inc. OH Secretary of State 8/16/06 Wilmington Trust Company
Trident Automotive, L.L.C. DE Secretary of State 8/16/06 Wilmington Trust Company
Trident Automotive, L.P. DE Secretary of State 8/16/06 Wilmington Trust Company
Universal Tool & Stamping Company, Inc. IN Secretary of State 8/16/06 Wilmington Trust Company
B. Perfection by Possession - Pledged Stock
The Security Agreement provides for the grant of a security interest in each
Loan Party's Investment Property (limited to 65% of the voting stock of first
tier, non-U.S. subsidiaries), subject to the terms of the Intercreditor
Agreement. In addition to perfection by the filings described above, pursuant to
the terms of the Intercreditor Agreement, the First Lien Collateral Agent has
agreed to hold Collateral in its possession or under its control for the benefit
of the Collateral Agent in order to perfect the Collateral Agent's security
interest therein. Our records indicate that the First Lien Collateral Agent has
possession of certificates for the following companies:
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Issued Certificate %
Issuer Pledgor Shares/Interest Number Pledged
- ------ ------- --------------- ----------- -------
Atwood Automotive, Inc. Dura Operating Corp. 2,000 shares 105 100%
Atwood Mobile Products, Inc. Dura Operating Corp. 1,000 shares 3 100%
Creation Group Holdings, Inc. Atwood Mobile Products, 1,000 shares 3 100%
Inc.
Creation Group, Inc. Creation Group Holdings, 100 shares 4 100%
Inc.
Creation Group Transportation, Inc. Creation Group Holdings, 100 shares 2 100%
Inc.
Creation Windows, Inc. Creation Group, Inc. 100 shares 2 100%
Dura Automotive Systems of Indiana, Inc. Dura Operating Corp. 1,000 shares 2 100%
Dura Global Technologies, Inc. Dura Operating Corp. 10,000 shares 2 100%
Dura Operating Corp. Dura Automotive Systems, 1,000 shares 2 100%
Inc.
Kemberly, Inc. Creation Group Holdings, 1,000 shares 3 100%
Inc.
Mark I Molded Plastics of Tennessee, Inc. Dura Operating Corp. 100 shares 2 100%
Spec-Temp, Inc. Creation Group, Inc. 100 shares 3 100%
Autopartes Excel de Mexico S.A. de C.V. Dura Operating Corp. 49,500 (series B) 7B 65%
3,950,000 (series BB)
11,011,000 (series BB 7BB
500 (series B) 8BB
8B
Dura de Mexico SA de CV Dura Operating Corp. 1,199 series "A" 2-A 65%
25,800 series "B" 1-B
C. Perfection in Certain Non-U.S. Jurisdictions
In two countries the additional steps noted below were taken to
perfect the pledge of stock identified below in favor of Wilmington Trust
Company, as Collateral Agent:
Issued %
Pledgor Issuer Shares/Interest Action Taken Pledged
- ------- ------ --------------- ------------ -------
Dura Holding Germany GmbH Dura Operating Corp. 540,000 Euros Pledge agreement 65%
executed
Dura UK Limited Dura Operating Corp. 91,994,565 shares Charge agreement 65%
executed
D. Perfection by Possession - Pledged Notes
Our records indicate that the First Lien Collateral Agent also has possession of
the following intercompany notes for the benefit of itself and the Collateral
Agent with the necessary note powers:
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Obligor Payee Face Amount/Date(1)
- ------------------------------- -------------------------------- -------------------
Atwood Mobile Products, Inc. Dura Operating Corp. USD 58,000,000
May 20, 2005
Autopartes Excel de Mexico S.A. Dura Operating Corp. USD 5,500,000
de C.V. May 20, 2005
Dura Automotive Canada ULC Dura Operating Corp. USD 25,000,000
May 20, 2005
Dura Automotive Canada ULC Dura Operating Corp. USD 30,500,000
May 20, 2005
Dura Automotive Dura Operating Corp. (d/b/a Dura EUR 15,490,768.79
Grundstuckverwaltungs GmbH(2) Automotive Systems, Inc.) January 1, 2002
Dura Holding Germany GmbH Dura Operating Corp. EUR 6,135,502.57
May 17, 2005
Dura Automotive Systems Dura Canada LP CAN 64,258,690
(Canada), Ltd. May 20, 2005
Dura Holdings Germany GmbH Dura Operating Corp. EUR 11,500,00
May 20, 2005
Dura Holdings Germany GmbH Dura Operating Corp. EUR 3,297,624.94
May 17, 2005
Dura Holding Germany GmbH Dura Operating Corp. EUR 15,338,756.44
May 17, 2005
Dura Holding Germany GmbH Dura Operating Corp. EUR 45,000,000
May 17, 2005
Dura Holding Germany GmbH Dura Operating Corp. EUR 5,000,000
May 17, 2005
Dura Holding Germany GmbH Dura Operating Corp. EUR 2,594,576.06
May 17, 2005
Dura Holdings Canada LP Dura Operating Canada LP USD 44,726,215
May 20, 2005
Dura Operating Corp. Dura Spicebright, Inc. USD 107,101,000
February 25, 2005
Trident Lighting L.L.C. Dura Automotive Systems Cable USD 1,966,000
Operations, Inc. June 8, 2004
Nyloncraft, Inc., Nyloncraft of Dura Operating Corp. USD 6,000,000
Michigan, Inc. and Nyloncraft May 23, 2005
Technologies, Inc.
- ----------
(1) Face amount is as listed in the instrument delivered to the First Lien
Collateral Agent in May 2005.
E. Real Property
The following 26 mortgages are in place with respect to owned properties in the
United States. Our records indicate that each mortgage has been properly
recorded. Title insurance was obtained in May 2005, and title date downs were
performed, and amendments to the mortgages recorded, in March 2006 to account
for the additional $75,000,000 of term loans funded under the Credit Agreement
pursuant to an amendment to the Credit Agreement dated as of March 29, 2006.
Property Owner Property Address City State
- ----------------------------------- ---------------------------- ------------ ------
Dura Operating Corp. 9444 Florida Mining Blvd. Jacksonville FL
Dura Operating Corp. 800 Highway 150 S West Union IA
Dura G.P. 301 S. Simmons Street Stockton IL
Dura Operating Corp. 4750 Hiawatha Drive Rockford IL
Universal Tool & Stamping, Inc. 100 Commerce Street Butler IN
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Dura Operating Corp. 1120 N. Main Street Elkhart IN
Dura Operating Corp. 57912 Charlotte Avenue Elkhart IN
Universal Tool & Stamping
Company, Inc. A/K/A Universal
Tool & Stamping, Inc. 322 E. Bridge Street Brownstown IN
Dura Operating Corp. 1775 US Route 20 East LaGrange IN
Dura Operating Corp., f/k/a Dura
Automotive Systems, Inc. 310 Palmer Park Road Mancelona MI
Dura Operating Corp. and Dura G.P. 1016 First Street Gladwin MI
Dura Operating Corp. 502 Connie, P.O. 467 Fremont MI
Dura Operating Corp. 16880 N. 148th Ave. Spring Lake MI
Universal Tool & Stamping, Inc. Division and Ducan Roads Manchester MI
Dura G.P. Caybrook/ 445 E. Helm Street Brookfield MO
Dura G.P. and Dura Operating Corp., Hannicon - 2011 Highway 61
f/k/a Dura Automotive Systems, Inc. South Hannibal North MO
Dura G.P. Rivcon - 5 Industrial Dr Hannibal South MO
Dura Operating Corp. 1855 Robertson Road Moberly MO
Spec-Temp, Inc., f/k/a TG
Specialists, Inc. U.S. Route 24 East Antwerp OH
Creation Group, Inc. A5RD 3, Box 119 Selinsgrove PA
Dura G.P. 132 Ferro Road Pikeville TN
Dura Automotive Systems Cable
Operations, Inc. 5210 Industrial Drive Milan TN
Dura G.P. 2200 Helton Drive Lawrenceburg TN
Dura Operating Corp. 6320 Kelly Willis Rd Greenbrier TN
Dura G.P. 114 Spicer Drive Gordonsville TN
Atwood Mobile Products, Inc. 1874 & 2090 S. Pioneer Salt Lake City UT
F. Intellectual Property
The pledged intellectual property consists of patents, copyrights, trademarks
and other intellectual property owned by the Loan Parties. The UCC filings above
cover intellectual property. In addition, filings with the U.S. Patent and
Trademark Office of the trademark security agreements were made on June 28,
2005, and the patent security agreements were made on June 28, 2005.
G. Aircraft
The Collateral Agent entered into an Aircraft Security Agreement, dated as
of June 29, 2005, with Automotive Aviation Partners, LLC, as Debtor, as such
agreement was recorded by the FAA on July 12, 2005 covering aircraft 1982
Dassault Falcon 50 and 3 engines Garrett model TFE 731-3-1C.
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H. Additional Measures
The Collateral Agent has entered into control agreements with respect to
the following accounts:
Bank Account # Account Of
- ---- --------- ----------
Bank of America, N.A. 81886-00840 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 2779 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 7524 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 2836 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 12909 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 12913 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 12916 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 12920 Dura Automotive Systems, Inc.
Bank of America, N.A. Box 96982 Dura Automotive Systems, Inc.
Bank of America, N.A. 99300 Dura Automotive Systems, Inc.
Banc of America Securities LLC 249-00497 Dura Operating Corp.
Standard Federal Bank N.A. 5410977250 Dura Automotive Systems, Inc.
Standard Federal Bank N.A. 2770720700 Dura Automotive Systems, Inc.
Standard Federal Bank N.A. 5401977250 Dura Automotive Systems, Inc.
Standard Federal Bank N.A. 2770721005 Creation Group Transportation, Inc.
Standard Federal Bank N.A. 2770720981 Atwood Mobile Products, Inc./Elkhart Operations
Standard Federal Bank N.A. 2770721039 Spec Temp, Inc. d/b/a Atwood Mobile Products Antwerp Operations
Standard Federal Bank N.A. 2770721161 Atwood Mobile Products, Inc. Atwood Center
Standard Federal Bank N.A. 2770721021 Kemberly, Inc. d/b/a Awood Mobile Products Elkhart Operations #3
Standard Federal Bank N.A. 2770720973 Atwood Mobile Products, Inc. Salt Lake City Operations
Standard Federal Bank N.A. 2770721013 Creation Windows, Inc. d/b/a Atwood Mobile Products Elkhart Operations #2
Standard Federal Bank N.A. 2770720965 Atwood Mobile Products, Inc. Greenbrier Operations
Standard Federal Bank N.A. 2770720999 Atwood Mobile Products, Inc. La Grange Operations
Standard Federal Bank N.A. 2770721070 Atwood Mobile Products, Inc. West Union Operations
Harris Trust and Savings 1803212 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 71643 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 71979 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 71607 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 71348 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 36725 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 36571 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 36562 Atwood Mobile Products, Inc.
Harris Trust and Savings Lockbox 36550 Atwood Mobile Products, Inc.
Harris Trust and Savings 1803238 Atwood Mobile Products, Inc.
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