Case 16-20012 Document 496 Filed in TXSB on 04/04/16 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION In re: Chapter 11 SHERWIN ALUMINA COMPANY, LLC, et al., 1 Case No. 16-20012 Debtors. (Jointly Administered) David R. Jones NOTICE OF FILING OF AGREED STIPULATION AND CONSENT ORDER BETWEEN SHERWIN ALUMINA COMPANY, LLC AND CYTEC INDUSTRIES INC. PLEASE TAKE NOTICE THAT, the above captioned debtors and debtors in possession (collectively, the Debtors ), hereby file the Stipulation and Consent Order Between Sherwin Alumina Company, LLC and Cytec Industries, Inc., attached hereto as Exhibit A (the Proposed Order ). The Proposed Order is acceptable to the Debtors, the Official Committee of Unsecured Creditors, Commodity Funding, LLC, and Cytec Industries Inc. and resolves the Motion of Cytec Industries Inc. for Reclamation of Goods, or in the Alternative, Allowance and Immediate Payment of Administrative Claim [Docket No. 194]. PLEASE TAKE FURTHER NOTICE that copies of all documents filed in these chapter 11 cases are available free of charge by visiting the case website maintained by Kurtzman Carson Consultants LLC, the notice and balloting agent for these chapter 11 cases, available at http://www.kccllc.net/sherwin or by calling (866) 927-7091. You may also obtain copies of any pleadings by visiting the Court s website at www.txs.uscourts.gov in accordance with the procedures and fees set forth therein. 1 The debtors in these chapter 11 cases, along with the last four digits of each debtor s federal tax identification number, are: Sherwin Alumina Company, LLC (2376); and Sherwin Pipeline, Inc. (9047). The debtors service address is: 4633 Highway 361, Gregory, Texas 78359.
Case 16-20012 Document 496 Filed in TXSB on 04/04/16 Page 2 of 3 Respectfully Submitted, Dated: April 4, 2016 /s/ Joshua A. Sussberg Joshua A. Sussberg, P.C. (admitted pro hac vice) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Email: joshua.sussberg@kirkland.com - and - James H.M. Sprayregen, P.C. (admitted pro hac vice) Gregory F. Pesce (admitted pro hac vice) KIRKLAND & ELLIS LLP KIRKLAND & ELLIS INTERNATIONAL LLP 300 North LaSalle Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Email: james.sprayregen@kirkland.com gregory.pesce@kirkland.com - and - Zack A. Clement (TX Bar No. 04361550) ZACK A. CLEMENT PLLC 3753 Drummond Houston, Texas 77025 Telephone: (832) 274-7629 Email: zack.clement@icloud.com Counsel for the Debtors and Debtors in Possession 2
Case 16-20012 Document 496 Filed in TXSB on 04/04/16 Page 3 of 3 Certificate of Service I certify that on April 4, 2016, I caused a copy of the foregoing document to be served by the Electronic Case Filing System for the United States Bankruptcy Court for the Southern District of Texas. /s/ Joshua A. Sussberg
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 1 of 9 Exhibit A
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 2 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION In re: SHERWIN ALUMINA COMPANY, LLC, et al., 1 Debtors. Chapter 11 Case No. 16-20012 (David R. Jones) (Jointly Administered) STIPULATION AND CONSENT ORDER BETWEEN SHERWIN ALUMINA COMPANY, LLC AND CYTEC INDUSTRIES, INC. Sherwin Alumina Company, LLC ( Sherwin ), one of the above-captioned debtors and debtors in possession (collectively, the Debtors ), and Cytec Industries, Inc. ( Cytec ), hereby enter into this stipulation and agreed order (this Stipulation and Order ). WHEREAS, on January 11, 2016 (the Petition Date ) each Debtor filed a voluntary petition with the United States Bankruptcy Court for the Southern District of Texas (the Court ) for relief under title 11 of the United States Code (the Bankruptcy Code ) and these chapter 11 cases are being jointly administered under the lead case In re Sherwin Alumina Company, LLC [Case No. 16-20012]; WHEREAS, the Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to section 1107(a) and 1108 of the Bankruptcy Code; WHEREAS, the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, this matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2), and venue is proper pursuant to 28 U.S.C. 1408 and 1409; 1 The debtors in these chapter 11 cases, along with the last four digits of each debtor s federal tax identification number, are: Sherwin Alumina Company, LLC (2376) and Sherwin Pipeline, Inc. (9047). The debtors service address is: 4633 Highway 361, Gregory, Texas 78359. KE 40427626
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 3 of 9 WHEREAS, Sherwin and Cytec entered into that certain requirements contract (as amended, including appendices and exhibits, the Cytec Contract ) pursuant to which Cytec agreed to sell to Sherwin CYFLOC HX 2000 Flocculant in accordance with certain specifications for the period commencing October 1, 2011, through September 30, 2013, and pursuant to which Cytec provides 100% of Sherwin s HX flocculant requirements at Sherwin s Gregory, Texas plant; WHEREAS, Cytec and Sherwin subsequently entered into certain amendments to the Cytec Contract that, among other things, extended the Cytec Contract term through September 30, 2017; WHEREAS, Sherwin and Cytec (together, the Parties ) desire to memorialize certain understandings and agreements with respect to their rights and obligations under the Cytec Contract and certain other matters regarding these chapter 11 cases; and WHEREAS, the Debtors have determined that the compromise set forth herein is fair and reasonable, and in the best interests of the Debtors, the Debtors estates, and their creditors; and NOW, THEREFORE, IT IS STIPULATED BY THE PARTIES AND HEREBY ORDERED THAT: 1. The foregoing recitals are hereby incorporated by reference into this Stipulation and Order. 2. This Stipulation and Order shall not be effective unless and until it has been entered by the Court. 3. Notwithstanding anything to the contrary in the Cytec Contract, all goods delivered and sold to Sherwin by Cytec pursuant to the Cytec Contract will be delivered to Sherwin in a manner consistent with past historic practice subject to the credit limits stated herein and Sherwin shall pay for any such goods each Friday by wire transfer; provided that 2
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 4 of 9 Cytec may refuse to continue to supply goods to Sherwin pursuant to the Cytec Contract if the outstanding balance payable to Cytec on account of goods delivered postpetition is not satisfied by 5:00 p.m., prevailing Central Time each Friday; provided, further, that Cytec will use reasonable efforts to deliver goods ordered by Sherwin pursuant to the Cytec Contract when and as needed to permit Sherwin to operate its facility in the ordinary course of business subject to the terms herein. For the avoidance of doubt, Sherwin shall wire transfer payment each Friday by Sherwin to Cytec, in full, for all deliveries received by Sherwin from Cytec that same day and during the immediately preceding six (6) days, and in no event shall Cytec be required to deliver goods to Sherwin to the extent that such delivery would result in a then outstanding balance in excess of $75,000.00 owing to Cytec. The Parties agree that other than the Cytec Contract relating to Sherwin s requirements for HX flocculant, there are no other goods that are currently the subject of a contract between the Parties; rather, all other goods sold by Cytec to Sherwin are sold on an order by order basis and subject to Cytec s order acknowledgement. To the extent that Sherwin orders from Cytec, and Cytec sells to Sherwin, goods other than HX flocculant pursuant to the Cytec Contract, such sales shall be subject to the payment terms set forth above. 4. Sherwin agrees to purchase all of its requirements for HX flocculant from Cytec, and Cytec agrees to fill all such orders with CYFLOC HX 2000, in accordance with the Cytec Contract or as otherwise specified herein; provided however that both Sherwin and Cytec reserve their respective rights under the Bankruptcy Code or applicable non-bankruptcy law regarding assumption, assumption and assignment, and/or rejection of the Cytec Contract. 5. To the extent that Sherwin fails to pay any undisputed amounts properly invoiced by Cytec in accordance with the terms of paragraph 3 of this Stipulation and Order, Cytec may without further order of the Court (i) cease further shipment to Sherwin until payment is made in full of then outstanding amounts owed on account of postpetition shipments and (ii) require cash- 3
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 5 of 9 in-advance for any future shipments; provided that the foregoing is without prejudice to Sherwin s right to dispute any Cytec invoices or right to reject the Cytec Contract, and any and all such rights are hereby expressly preserved and reserved. 6. Sherwin shall promptly pay any postpetition amounts payable to Cytec at the time of entry of this Stipulation and Order; provided that any postpetition amounts that are not yet payable in accordance with paragraph 3 of this Stipulation and Order shall be paid in no event later than the first Friday following entry of this Stipulation and Order. 7. The Debtors agree that Cytec holds, on account of goods delivered prepetition, (i) an allowed prepetition general unsecured claim against Sherwin in the amount of $121,912.08 that is not subject to setoff or recoupment (the Cytec General Unsecured Claim ), and (ii) an allowed administrative priority claim against Sherwin the amount of $74,080 pursuant to Section 503(b)(9) of the Bankruptcy Code that is not subject to setoff or recoupment (the Cytec 503(b)(9) Administrative Priority Claim ). 8. Upon entry of this Stipulation and Order, Cytec shall be deemed to have: (a) waived any and all reclamation rights that it may have with respect to the Cytec General Unsecured Claim or the Cytec 503(b)(9) Administrative Priority Claim; (b) waived any right to demand immediate payment of the Cytec 503(b)(9) Administrative Priority Claim; and (c) withdrawn the Notice of Reclamation Demand of Cytec Industries Inc., dated January 29, 2016 [Docket No. 172] and the Motion of Cytec Industries Inc. for Reclamation of Goods, or in the Alternative, Allowance and Immediate Payment of Administrative Claim, dated February 4, 2016 [Docket No. 194]. 9. Unless otherwise agreed to in this Stipulation and Order, the Parties are not waiving and will not be deemed to have waived any of their other respective available rights, claims, or potential causes of action against each other, including at law, equity, or otherwise 4
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 6 of 9 arising under or related to the Cytec Contract, the Bankruptcy Code, or any other applicable law. Except as otherwise set forth herein, nothing in this Stipulation and Order is intended or shall be construed to modify the terms of the Cytec Contract or alter the respective rights and obligations of Sherwin and Cytec thereunder. Without limiting the foregoing, nothing in this Stipulation and Order shall constitute or be deemed: (a) an admission as to the validity, amount, type, or priority of any particular claim against any party hereto other than claims specifically addressed in this Stipulation and Order; (b) with respect to any claim, a change in the priority level existing in the absence of this Stipulation and Order; (c) a promise or requirement to pay any particular claim other than those specifically agreed to in this Stipulation and Order; or (d) a request or authorization to assume or reject the Cytec Contract, or any other agreement under section 365 of the Bankruptcy Code. 10. Neither this Stipulation and Order nor any negotiations and writings in connection with this Stipulation and Order will in any way be construed as or deemed to be evidence of or an admission on behalf of any Party hereto regarding any claim or right that such Party may have against the other Party unless such claim or right is specifically addressed in this Stipulation and Order. That is, only claims and rights specifically provided for in this Stipulation and Order are resolved as stated herein, and by way of example, Cytec s exercise of its rights pursuant to Paragraph 5 of this Stipulation and Order shall not be deemed subject to, or a violation of, the automatic stay. 11. This Stipulation and Order has been reviewed by the Parties hereto and their counsel, and each of the Parties enters into this Stipulation and Order voluntarily and without duress. There shall be no construction of any provision against Sherwin or the Debtors because this Stipulation and Order was drafted by Sherwin or the Debtors, and the parties hereto waive any statute or rule to such effect. 5
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 7 of 9 12. The Parties are authorized to take all actions necessary to effectuate the relief granted pursuant to this Stipulation and Order. 13. The Court shall retain exclusive jurisdiction to resolve any dispute arising from or related to the interpretation or enforcement of this Stipulation and Order. 14. Cytec and, subject to the Court s approval of this Stipulation and Order, Sherwin, represent that they possess full power and authority to execute, deliver, and perform their respective obligations under this Stipulation and Order and that the persons executing this Stipulation and Order on their behalf are duly authorized to execute and deliver this Stipulation and Order. 15. This Stipulation and Order may be executed in identical counterparts, including by facsimile and/or electronic mail, each of which shall be deemed an original, but all of which together constitute one and the same instrument. [Remainder of Page Intentionally Left Blank] 6
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 8 of 9 IN WITNESS WHEREOF, the Parties, by their authorized counsel, have set their hands in agreement as of the date written below. Dated: April 4, 2016 SHERWIN ALUMINA COMPANY, LLC /s/ Joshua A. Sussberg, P.C. Joshua A. Sussberg, P.C. joshua.sussberg@kirkland.com KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 Dated: April 4, 2016 CYTEC INDUSTRIES, INC. /s/ Robert M. Schecter Robert M. Schechter (pro hac vice) rmschechter@pbnlaw.com PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway P.O. Box 1997 Morristown, New Jersey 07962 Telephone: (973) 538-4006 Facsimile: (973) 538-5146 Counsel to Cytec Industries Inc. -and- William Hotze State Bar No. 24087754 whotze@diamondmccarthy.com DIAMOND MCCARTHY LLP 909 Fannin Street, 15 th Floor Two Houston Center Houston, Texas 77010 Telephone: (713) 333-5100 Facsimile: (713) 333-5195 Counsel to Cytec Industries Inc. 7
Case 16-20012 Document 496-1 Filed in TXSB on 04/04/16 Page 9 of 9 IT IS SO ORDERED. Date: THE HONORABLE DAVID R. JONES UNITED STATES BANKRUPTCY JUDGE