Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 1 of 8 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE ---------------------------------------------------------------x In re GT ADVANCED TECHNOLOGIES INC., et al., Debtors. 2 ---------------------------------------------------------------x Chapter 11 Case No. 14-11916 (HJB) Jointly Administered STIPULATION AND AGREED ORDER UNDER 11 U.S.C. 361 AND 363 BY AND AMONG GT ADVANCED TECHNOLOGIES LTD. AND KERRY LOGISTICS (HONG KONG) LTD. REGARDING ADEQUATE PROTECTION OF ALLEGED SECURITY INTEREST This stipulation and agreed order (the Stipulation ) under sections 361 and 363 of title 11 of the United States Code (the Bankruptcy Code ) is made and entered into by and among GT Advanced Technologies Ltd. ( GT Hong Kong, and together with its affiliated debtors as debtors in possession in the above-captioned cases, GTAT or the Debtors ) and Kerry Logistics (Hong Kong) Ltd. ( Kerry Logistics and, together with GT Hong Kong, the Parties ). The Parties hereby stipulate as follows RECITALS WHEREAS, 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 ). 2 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 03054.
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 2 of 8 WHEREAS, 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 ). WHEREAS, on January 14, 2015, Kerry Logistics filed Proof of Claim No. 590 ( Claim 590 ) against GT Hong Kong asserting a general unsecured claim in the amount of $901,244.29 for charges (the Warehousing Charges ) related to the warehousing of certain of GT Hong Kong s equipment (the Warehoused Goods ) in Kerry Logistic s warehouses. WHEREAS, subsequent to the filing of Claim 590, Kerry Logistics asserted that the Warehousing Charges are secured by liens on the Warehoused Goods. Kerry Logistics has informed GTAT that Kerry Logistics intends to amend Claim 590 to reflect the alleged secured status of that claim. WHEREAS, GT Hong Kong requires access to the Warehoused Goods located in Kerry Logistics warehouses pending a resolution of the Warehousing Charges as claims against the estates. WHEREAS, GTAT disputes, among other things, the validity, extent, and priority of Kerry Logistic s alleged lien in the Warehoused Goods. WHEREAS, the Parties have reached an agreement to provide adequate protection to Kerry Logistics so that GT Hong Kong will have access to the Warehoused Goods for the purposes of removing the Warehoused Goods from the Kerry Logistics warehouses, subject to the terms and conditions set forth in this Stipulation. 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
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 3 of 8 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, 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. As soon as reasonably practicable after the Parties have signed this Stipulation, GT Hong Kong will deposit US$901,244.29 into a newly created, segregated account located in the United States (the Adequate Protection Account ). The funds so deposited into the Adequate Protection Account will remain in the account pending further order from this Court (on reasonable notice and opportunity for a hearing) or agreement by the Parties. 3. Immediately upon signing of this Stipulation, (a) Kerry Logistics releases any and all liens, claims, encumbrances, and interests it may have in the Warehoused Goods, (b) the Warehouse Goods shall be free and clear of any lien, claims, encumbrances, and interests that Kerry Logistics may have to secure the Warehouse Charges or any other claim against GTAT, and (c) Kerry Logistics will provide GT Hong Kong full access to the Warehoused Goods during regular business hours; provided, however that if the Adequate Protection Account is not established and fully funded within 21 days after the execution of this Stipulation by the Parties, the release and related remedies provided in this Paragraph 3 shall be void and of no further force and effect, the replacement lien provided by Paragraph 4 shall be void as of the date first provided and the Parties shall be returned to the status quo ante; provided further, however, that the foregoing 21-day period may be extended by agreement in writing executed by the Parties. 4
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 4 of 8 4. In exchange for foregoing release, GT Hong Kong grants Kerry Logistics a fully perfected replacement lien on the funds deposited in Adequate Protection Account (the Replacement Lien ) to secure GT Hong Kong s obligations in respect of the Warehouse Charges asserted by Kerry Logistics, but solely to the extent that Claim 590 or an amendment to Claim 590 is ultimately allowed by the Bankruptcy Court as a secured claim, and such secured claim is not avoided, declared invalid, or otherwise declared ineffective by the Bankruptcy Court. No further action, conduct, filing, or notice of any kind on the part of Kerry Logistics or any Debtor is required to perfect the Replacement Lien. 5. If Kerry Logistics has not amended Claim 590 to assert a secured claim within thirty days after execution of this Stipulation, the Adequate Protection Account will be closed and Kerry Logistics will be deemed to have released the Replacement Lien without further order of the Court. 6. If Kerry Logistics transfers Claim 590, or any amendment thereto, to a third party, the Adequate Protection Account will be closed and Kerry Logistics will be deemed to have released the Replacement Lien without further order of the Court. Kerry Logistics shall promptly notify GTAT of any transfer of Claim 590, or any amendment thereto, to a third party. 7. No provision of this Stipulation is to be construed as a waiver or extension of the applicable deadlines established by the Bankruptcy Court s Order, Pursuant to Bankruptcy Code Sections 105(a), 501, 502(b)(9), and 503, Bankruptcy Rules 2002(l) and 3003(c)(3), and LBR 3001-1(b), (A) Establishing Bar Date for Filing of Proofs of Claim, (B) Designating Form and Manner of Notice Thereof, and (C) Granting Related Relief [Docket No. 395]. 8. Nothing herein affects Kerry Logistics right to assert a lien or security interest (if any) in goods in its warehouses on account of past-due charges owed by GT Hong Kong arising 5
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 5 of 8 after the Petition Date. Kerry Logistics represents that, as of the date of this Stipulation, GT Hong Kong has paid all post-petition Date charges with respect to goods in Kerry Logistics warehouses. 9. It is hereby expressly agreed and understood that, except as specifically set forth in this Stipulation, (a) each Party reserves all of its rights, claims, liens, security interests, and causes of action, and the other Party reserves its defenses and objections thereto, and (b) nothing in this Stipulation shall constitute any admission, acknowledgement, assumption of a duty, assumption, rejection or assignment of an executory contract, concession, discharge, release, relinquishment, or waiver of liability by either of the Parties. For the avoidance of doubt, GTAT reserves all its rights to object to any claim filed by Kerry Logistics or any of its affiliates (or any amendment to such claims), including any claims and causes of action under any section of Chapter 5 of the Bankruptcy Code against Kerry Logistics and its affiliates. 10. 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. 11. 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. 6
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 6 of 8 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 7
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 7 of 8 18. Kerry Logistics irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court with respect to any claim it may have related to the Warehouse Charges and the Warehoused Goods. 19. 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
Case 14-11916-HJB Doc # 1668 Filed 04/16/15 Desc Main Document Page 8 of 8 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 March 20, 2015 /s/ James T. Grogan Luc A. Despins Andrew V. Tenzer James T. Grogan (BNH07394) PAUL HASTINGS LLP Park Avenue Tower 75 East 55th Street, First Floor New York, New York 10022 Telephone (212) 318-6000 /s/ Frank T. Pepler Frank T. Pepler DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Fransisco, California 94105 Telephone (415) 836-2550 Counsel for Kerry Logistics (Hong Kong) Ltd. Counsel to the Debtors and Debtors in Possession IT IS SO ORDERED April 16 Dated, 2015 Manchester, NH /s/ Henry J. Boroff HONORABLE HENRY J. BOROFF UNITED STATES BANKRUPTCY JUDGE 9