Case: HJB Doc #: 3155 Filed: 02/23/16 Desc: Main Document Page 1 of 9 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE : :

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1 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 1 of 9 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE x In re GT ADVANCED TECHNOLOGIES INC., et al., Debtors x Chapter 11 Case No (HJB) Jointly Administered RE Docket Nos. 1668, 2306 STIPULATION AND AGREED ORDER BY AND AMONG DEBTORS, KERRY FREIGHT (HONG KONG) LIMITED (CLAIM NOS. 588, 1033), AND KERRY LOGISTICS (HONG KONG) LIMITED (CLAIM NOS. 590, 1034) REGARDING ALLOWANCE OF CLAIMS AND RESOLUTION OF DEBTORS FOURTH OMNIBUS OBJECTION TO CLAIMS (LATE-FILED CLAIMS) This stipulation and agreed order (the Stipulation ) is made and entered into by and among GT Advanced Technologies Inc. and its affiliated debtors as debtors in possession in the above-captioned cases (collectively, GTAT or the Debtors ), Kerry Freight (Hong Kong) Limited ( Kerry Freight ), and Kerry Logistics (Hong Kong) Limited ( Kerry Logistics and, together with Kerry Freight, Kerry ). Kerry and GTAT are referred to, collectively, as the Parties. The Parties hereby stipulate and agree as follows RECITALS A. On October 6, 2014 (the Petition Date ), GTAT commenced voluntary cases under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Hampshire (the Court ). 1 The Debtors, along with the last four digits of each debtor s tax identification number, as applicable, are GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126), and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243 Daniel Webster Highway, Merrimack, NH

2 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 2 of 9 B. GTAT continues to operate its business and manage its properties as debtors in possession pursuant to sections 1107(a) and 1108 of title 11 of the United States Code (the Bankruptcy Code ). No request for the appointment of an examiner has been made in these chapter 11 cases. A motion to appoint a trustee has been denied. C. On January 14, 2015, Kerry Freight filed Proof of Claim No. 588 against Debtor GT Advanced Technologies Limited ( GT Hong Kong ) in the amount of $431,206.36, and amended said Proof of Claim by Proof of Claim No filed on April 15, The amendment to Kerry Freight s Proof of Claim No. 588 changed the claim from unsecured to secured and increased the amount claimed to $461, D. On January 14, 2015, Kerry Logistics filed Proof of Claim No. 590 against GT Hong Kong in the amount of $901,244.29, and amended said Proof of Claim by Claim No filed on April 15, The amendment to Kerry Logistics Proof of Claim No. 590 changed the claim from unsecured to secured and increased the amount claimed to $969, Proof of Claim No. 588, as amended, and Proof of Claim No. 590, as amended, are referred to, collectively, as the Kerry Claims. E. On March 20, 2015, the Debtor and Kerry Logistics entered into the Stipulation and Agreed Order Under 11 U.S.C. 361 and 363 By and Among GT Advanced Technologies Lts. And Kerry Logistics (Hong Kong) Ltd. Regarding Adequate Protection of Alleged Security Interest [Docket No. 1495] (the Prior Stipulation ). The Prior Stipulation was approved by order of the Court dated April 16, 2015 [Docket No. 1668]. In accordance with the Prior Stipulation, GT Hong Kong deposited $901, into a newly created, segregated account located in the United States (the Adequate Protection Account ). In exchange for the releases set forth in the Prior Stipulation, GT Hong Kong granted Kerry Logistics a fully perfected 2

3 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 3 of 9 replacement lien on the funds deposited in Adequate Protection Account to secure GT Hong Kong s obligations in respect of the Warehouse Charges (as defined in the Prior Stipulation) asserted by Kerry Logistics, but solely to the extent that Proof of Claim 590 or an amendment to Proof of Claim 590 would ultimately allowed by the Bankruptcy Court as a secured claim, and such secured claim would not be avoided, declared invalid, or otherwise declared ineffective by the Bankruptcy Court. F. On September 16, 2015, the Debtors filed their Fourth Omnibus Objection to Claims (Late Filed Claims) [Docket No. 2306] (the Fourth Omnibus Claims Objection ), objecting to the Proofs of Claim Nos and 1034 filed by Kerry Freight and Kerry Logistics on April 15, 2015 as untimely. The hearing on the Fourth Omnibus Claims Objection was scheduled for February 4, G. Kerry Freight and Kerry Logistics have each been ordered to mandatory mediation pursuant to the Order Approving Procedures for Expedited Adjudication and Resolution of Secured Claims, Administrative Expense Claims, and Other Priority Claims, and mediation of such Claims for Resolution of Objections to Claim [Docket No. 2777] entered by the Court on December 17, The mediation of the Kerry Claims was scheduled for February 3, 2016; however, in light of the resolution reached between the Parties, as set forth in this Stipulation, the mediation was cancelled. H. The Debtors, Kerry Freight, and Kerry Logistics desire to fully and finally resolve the Fourth Omnibus Claims Objection as to the Kerry Claims on the terms set forth below. NOW THEREFORE, THE PARTIES HEREBY STIPULATE AND AGREE, AND UPON THE BANKRUPTCY COURT S APPROVAL, IT SHALL BE ORDERED AND BINDING ON ALL PARTIES IN INTEREST AS FOLLOWS 3

4 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 4 of 9 1. This Stipulation shall become effective as of the date this Stipulation is entered on the docket as so ordered by the Bankruptcy Court. Pending approval of this Stipulation by the Bankruptcy Court, each of the Parties agrees it is and will be bound by this Stipulation and waives any right to object to approval by the Bankruptcy Court. In the event that this Stipulation is not approved by the Bankruptcy Court on or before the date that is 30 days from the date hereof, it will be null and void and have no force or effect whatsoever except as may be otherwise agreed in writing by the Parties. 2. Claim No. 588 filed by Kerry Freight shall be allowed as a non-priority unsecured claim in the amount of $431, against GT Hong Kong. When solicited by the Debtors pursuant to an approved disclosure statement, Kerry Freight shall vote Claim No. 588 to accept the Debtors proposed chapter 11 plan. Claim No. 590 filed by Kerry Logistics shall be allowed as a secured claim in the amount of $675, and a non-priority unsecured claim in the amount of $225, against GT Hong Kong. When solicited by the Debtors pursuant to an approved disclosure statement, Kerry Freight shall vote the unsecured portion of Claim No. 590 to accept the Debtors proposed chapter 11 plan. Claim No. 588 and the unsecured portion of Claim No. 590 shall be classified as general unsecured claims under the Debtors proposed chapter 11 plan and shall be treated consistently with all other general unsecured claims against GT Advanced Technologies Limited. Kerry Freight and Kerry Logistics agree that they will not object to the Debtors chapter 11 plan as long as such chapter 11 plan provides for allowance and treatment of Claim No. 588 and Claim No. 590 as set forth in this Stipulation. 3. The secured portion of Claim No. 590 shall be classified as a secured claim within the meaning of the Debtors proposed chapter 11 plan and shall be treated as follows in full settlement, satisfaction, and discharge of the secured portion of Claim No. 590, not more than 4

5 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 5 of 9 five business days after this Stipulation becomes a final order, the Debtors shall direct the depository of the Adequate Protection Account (as defined in the Prior Stipulation) to disburse from the Adequate Protection Account the sum of $675, to Kerry Logistics pursuant to wiring instructions to be provided by Kerry Logistics to the Debtors before such disbursement. Concurrently with the disbursement to Kerry Logistics as set forth herein, the balance on deposit in the Adequate Protection Account shall be released to the Debtors, and the Debtors are authorized to close the Adequate Protection Account. After receiving its disbursement as provided herein, all secured claims of Kerry Logistics shall be deemed satisfied, paid, and discharged in full, and Kerry Logistics shall have no further secured claim or interest in or against or lien or encumbrance on the Debtors or their estates or any of their respective assets or the Adequate Protection Account but shall retain its allowed unsecured claim as set forth herein. 4. Claim No filed by Kerry Freight shall be disallowed and expunged for all purposes. Claim No filed by Kerry Logistics shall be disallowed and expunged for all purposes. 5. Effective upon this Stipulation becoming a final order, the Debtors waive any rights to seek avoidance of any transfer of an interest of the Debtors in property to Kerry Freight and Kerry Logistics under section 547 of the Bankruptcy Code. 6. Effective upon this Stipulation becoming a final order, except for the respective rights and obligations of Kerry Freight and Kerry Logistics under this Stipulation and any ordinary course obligations arising on or after the Petition Date, each of Kerry Freight and Kerry Logistics hereby remises, releases, and forever discharges each of the Debtors and their estates and each of their respective agents, servants, attorneys, employees, officers, directors, affiliates, subsidiaries, parents, shareholders, investors, principals, advisors, successors, and representatives 5

6 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 6 of 9 of the foregoing, from all debts, claims, demands, actions, causes of action, suits, accounts, promises, doings, omissions, covenants, contracts, agreements, damages, and liabilities whatsoever, in law or in equity, known and unknown, of every name and nature, in law and equity, which such entity may be entitled to assert, existing or hereafter arising, or which Kerry Freight or Kerry Logistics now have, or shall have against any of the Debtors or their estates or their successors and assigns from the beginning of the world to the date hereof to the extent relating to the Debtors, their estates, or any aspect of the Debtors chapter 11 cases; provided, however, that notwithstanding anything to the contrary in this paragraph, Kerry Freight and Kerry Logistics reserve their rights and claims, if any, to defend against any claim or cause of action asserted against Kerry Freight or Kerry Logistics by the Debtors, any successor to the Debtors, or any party asserting a claim or cause of action against Kerry Freight or Kerry Logistics arising from the Debtors relationship with Kerry Freight or Kerry Logistics that form the basis of Claim No. 588 or Claim No. 590; provided, further, that any such rights or claims of Kerry Freight or Kerry Logistics may only be asserted defensively, and neither Kerry Freight nor Kerry Logistics shall be entitled to any affirmative recovery on account of any such rights or claims. 7. Kerry Freight and Kerry Logistics shall execute and deliver such other and further documents as may be reasonably required by the Debtors to give effect to this Stipulation or to implement the provisions hereof. 8. This Stipulation is for the sole benefit of the Parties and nothing expressed or implied in this Stipulation shall give or be construed to give any person or organization other than the Parties a beneficial interest in any legal or equitable rights under this Stipulation; 6

7 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 7 of 9 provided, however, that the terms of this Stipulation are binding on and inure to the benefit of any successors to any of the Parties. 9. The Parties each represent and warrant that the undersigned is fully authorized and empowered to enter into this Stipulation on behalf of, and to bind, each Party as applicable, subject to the Court s approval. This Stipulation shall constitute the entire agreement by and between the Parties regarding the matters addressed herein. No extrinsic or parole evidence may be used to vary any of the terms herein. All representations, warranties, inducements, and/or statements of intention made by the Parties are embodied in this Stipulation, and no Party relied upon, shall be bound by, or shall be liable for any alleged representation, warranty, inducement, or statement of intention that is not expressly set forth in this Stipulation. 10. The Parties each declare that their respective decisions in executing this Stipulation are not predicated on or influenced by any declaration or representation of the other Party, except as otherwise expressly provided herein. The Parties agree that they have carefully read this Stipulation, and that they understand all of its terms and conditions, know its contents, and have signed below as their respective free and voluntary acts. 11. No modification, amendment or waiver of any of the terms or provisions of this Stipulation shall bind any Party unless such modification, amendment or waiver is in writing, has been approved by the Court, and has been executed by a duly authorized representative of the Party against whom such modification, amendment or waiver is sought to be enforced. If any part of this Stipulation is held to be unenforceable by any court of competent jurisdiction, the unenforceable provision shall be deemed amended to the least extent possible to render it enforceable and the remainder of this Stipulation shall remain in full force and effect. 7

8 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 8 of This Stipulation may be executed in one or more counterparts and by facsimile or electronic copy, all of which shall be considered effective as an original signature. 13. The Parties acknowledge that this Stipulation is the joint work product of both of the Parties and that, accordingly, in the event of ambiguities in this Stipulation, no inferences shall be drawn against any Party on the basis of authorship of this Stipulation. 14. This Stipulation contains the entire agreement by and between the Parties, and all prior understandings or agreements with respect thereto, if any, are merged into this Stipulation. 15. This Stipulation shall be governed by and construed in accordance with the Bankruptcy Code and the laws of the State of New Hampshire, without regard to the conflict of laws principles thereof. This Stipulation shall be binding upon and inure to the benefit of the Parties and their respective successors, assignees, agents, attorneys and representatives. 16. The Bankruptcy Court shall retain exclusive jurisdiction over any and all disputes arising out of or otherwise relating to this Stipulation. [SIGNATURE PAGE FOLLOWS] 8

9 Case HJB Doc # 3155 Filed 02/23/16 Desc Main Document Page 9 of 9 IN WITNESS WHEREOF and in agreement herewith, by and through the undersigned, the Parties have executed and delivered this Stipulation as of the date first set forth below. Dated February 9, 2016 /s/ G. Alexander Bongartz Luc A. Despins Andrew V. Tenzer James T. Grogan (BNH07394) G. Alexander Bongartz (BNH07394) PAUL HASTINGS LLP Park Avenue Tower 75 East 55th Street, First Floor New York, New York Telephone (212) Counsel to the Debtors and Debtors in Possession /s/ Frank T. Pepler Frank T. Pepler (CA Bar No ) DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA (415) frank.pepler@dlapiper.com and Lisa Snow Wade ORR RENO, P.A. 45 South Wade St. Concord, NH (603) lwade@orr-reno.com Counsel for Kerry Freight (Hong Kong) Limited and Kerry Logistics (Hong Kong) Limited. IT IS SO ORDERED Dated, February Manchester, NH /s/ Henry J. Boroff HONORABLE HENRY J. BOROFF UNITED STATES BANKRUPTCY JUDGE