exhibit101amendedapplese







EXHIBIT 10.1   EXECUTION COPY   IN RE GT ADVANCED TECHNOLOGIES INC. ET AL.    (the “Company” or the “Debtors”)   AMENDED TERMS OF RESOLUTION OF APPLE CLAIMS AND MESA LEASE ISSUES   November 26, 2015    INTRODUCTION   This amended agreement (the “Amended Agreement”) among the Debtor signatories hereto and   Apple Inc. and certain of its affiliates (collectively, “Apple”) supersedes the Terms of Resolution   of Apple Claims and Mesa Lease Issues dated November 2, 2015 and the Amended and Restated   Adequate Protection and Settlement Agreement (the “Settlement Agreement”), subject to the   surviving sections of the Settlement Agreement enumerated in Paragraph 14 of this Agreement,   and amends the Amended and Restated Facility Lease Agreement (the “Mesa Lease”) both dated   as of December 15, 2014, to the extent provided herein.  All capitalized terms used herein and   not otherwise defined will have the meanings ascribed to such terms in the Settlement   Agreement and the Mesa Lease, as applicable.   SETTLEMENT TERMS   1. The Amended Agreement will become effective as of the date on which both (i) the   Amended Agreement is approved by the Bankruptcy Court (the “Effective Date”)   pursuant to an order satisfactory to the parties hereto, and (ii) a waiver and amendment of   the DIP Facility (as defined below) is consummated.   2. The Debtors will conduct an auction of the ASF Furnaces currently located in the Mesa   Facility pursuant to procedures approved by the Debtors, Apple and the DIP Lenders and   approved by the Bankruptcy Court pursuant to Bankruptcy Code section 363 (the “Sale   Auction”).  The Sale Auction shall take place on or prior to December 2, 2015.  The   Debtors shall have no obligation to sell any ASF Furnaces at the Sale Auction.   3. The Debtors shall receive 50% of the Net Proceeds of all ASF Furnaces sold in or before   such Sale Auction (the “Sold Furnaces”), with the remaining 50% of Net Proceeds being   distributed to Apple.  For purposes of this Amended Agreement, “Net Proceeds” means   the proceeds from the sale, lease or other transfer or disposition of ASF Furnaces or parts   thereof to be received by the Debtors or the DIP Lenders (or any other party if such sale   would benefit the Debtors or the DIP Lenders), net of all (a) reasonable costs associated   with conducting the Sale Auction, including any applicable commission payments, (b)   reasonable storage costs, (c) customary installation, logistics, or shipping charges, and (d)   costs of any replacement parts required to be purchased as part of fulfilling the sale, in   each case with respect to the ASF Furnaces sold.  For the avoidance of doubt, Net   Proceeds shall exclude any customary fees for support services, warranties, and post-sale   services (all such fees being consistent with past practices and in amounts not to exceed   those listed on Exhibit 1 hereto) provided by the Debtors to the buyer of ASF Furnaces   and any items that may accompany the sale of ASF Furnaces (such as mezzanines and   start-up kits).  The Sold Furnaces shall be removed from the Mesa Facility by December   31, 2015.     





 







      2            4. The Debtors shall have the option, with the consent of the lenders (the “DIP Lenders”)   under that certain Senior Secured Superpriority Debtor-in-Possession Credit Agreement,   dated as of July 27, 2015, to retain any number of the ASF Furnaces currently located at   the Mesa Facility (the “Retained Furnaces”); provided, however, that the Debtors may   only retain in excess of 364 Retained Furnaces (such excess, the “Surplus Retained   Furnaces”) to the extent (x) the Debtors believe, in good faith, that they will be able to   sell such Surplus Retained Furnaces and (y) have such furnaces removed from the Mesa   Facility, by January 31, 2016. The proceeds, if any, from the scrapping of Retained   Furnaces, net of the costs of such scrapping, shall be distributed 50% to the Debtors and   50% to Apple. For all purposes herein Surplus Retained Furnaces shall be deemed   Retained Furnaces.  The Debtors shall choose which ASF Furnaces are Retained   Furnaces by close of business on December 3, 2015 and shall promptly begin removing   such Retained Furnaces from the Mesa Facility.  If the Debtors or the DIP Lenders (or   any other party if such sale would benefit the Debtors or the DIP Lenders) sell or   otherwise dispose of, on or before December 15, 2018, any Retained Furnaces or any   ASF Furnaces currently in inventory at the Debtors’ other facilities, the Debtors shall   retain 50% of the Net Proceeds of such sale or disposition, with the remaining 50% of   Net Proceeds being distributed to Apple; provided, however, that if GT Advanced   Technologies Limited (“GT HK”) sells any of its ASF Furnaces, GTAT Corporation   (“GTAT Corp.”) shall pay Apple 50% of the Net Proceeds of such sale instead of GT   HK.  For the avoidance of doubt, (i) ASF Furnaces not currently in existence shall not be   subject to the sharing of Net Proceeds in this Paragraph and (ii) GTAT’s obligation under   this Paragraph to make distributions to Apple on account of the sale or disposition of   Retained Furnaces or any ASF Furnaces currently in inventory at the Debtors’ other   facilities terminates on December 15, 2018.  The Debtors agree not to sell any ASF   Furnaces not currently in existence until after all ASF Furnaces currently in the Debtors’   inventory have been sold or scrapped.  The Debtors are not having any current   discussions, negotiations, and have not reached any understandings or agreements with   any existing or prospective customers to sell ASF Furnaces not currently in existence.    The Debtors shall provide to Apple and the Collateral Agent a quarterly report regarding   the sales of any ASF Furnaces, including the number sold and sale prices, and Apple   shall have the right to conduct an audit of such sales and prices.   5. On December 3, 2015, title to any ASF Furnaces located at the Mesa Facility other than   the Sold Furnaces and the Retained Furnaces (such other ASF Furnaces, the “Excess   Furnaces”) shall immediately and automatically for no consideration and without need   for further order of the court transfer to Apple, free and clear of all liens, claims,   encumbrances and interests, including, without limitation, liens granted to secure the DIP   Facility and any Priming Financing.  In the event the Sale Auction does not take place on   or prior to December 2, 2015, all ASF Furnaces located at the Mesa Facility other than   the Retained Furnaces shall be deemed Excess Furnaces and title to such ASF Furnaces   shall immediately and automatically for no consideration and without the need for further     





 







      3            order of the court transfer to Apple, free and clear of any and all liens, claims,   encumbrances and interests, including, without limitation, liens granted to secure the DIP   Facility and any Priming Financing.    6. Apple agrees that it will scrap all of the Excess Furnaces and any other ASF Furnaces to   which it obtains title pursuant to this Amended Agreement at its own cost and expense.    For the avoidance of doubt, Apple shall only be permitted to scrap the Excess Furnaces   and any other furnace to which it obtains title pursuant to this Amended Agreement and   shall not be permitted to use the Excess Furnaces or sell or transfer the Excess Furnaces   except as part of the scrapping process. The proceeds, if any, from the scrapping of   Excess Furnaces, net of the costs of such scrapping, shall be distributed 50% to the   Debtors and 50% to Apple.         7. As of December 3, 2015, the Mesa Lease will be deemed amended without the need for   any further agreement to provide that (a) the Debtors’ obligation to pay Additional Rent   (as defined in the Mesa Lease) and for the cost of security at the Mesa Facility shall   terminate, (b) the Debtors shall have no further obligations to make any other payments   in connection with the Mesa Lease, including without limitation, any obligations to clean,   repair or refurbish the Mesa Facility or make utility payments with respect to the Mesa   Facility, and (c) Apple shall have no obligation to repair any portion of the Mesa Facility   that may have been damaged in the May 26, 2015 fire (the “Mesa Fire”).  For the   avoidance of doubt, the Debtors shall be entitled to any and all insurance proceeds from   insurance the Debtors maintain and for which the Debtors are the beneficiaries.  The   Debtors shall be required to maintain Minimum Insurance Requirements as set forth in   the Mesa Lease until such time as the Debtors have completely vacated the Mesa Facility.   8. If the Debtors sell 400 or more ASF Furnaces, the Debtors (a) shall remove all Sold   Furnaces and Retained Furnaces from the areas of the Mesa Facility marked Mod 1, Mod   2 or “Quick Start,” and Pilot Line on the diagram attached hereto as Exhibit 2 (the   “Excluded Space”) by December 31 2015, (b) may keep such Sold Furnaces and   Retained Furnaces in areas of the Mesa Facility other than the Excluded Space, and (c)   must vacate all of the Mesa Facility by January 31, 2016.   On December 31, 2015, the   Debtors shall completely vacate and remove all property from the Excluded Space and   leave the Excluded Space in broom clean condition.  For the avoidance of doubt, broom   clean condition shall include having all safe off work performed and all mezzanines and   other parts/pieces/equipment out of the Excluded Space.  Any ASF Furnaces remaining   in the Excluded Space on December 31, 2015 or in the Mesa Facility on January 31, 2016   shall be deemed Excess Furnaces and title to such ASF Furnaces shall immediately and   automatically for no consideration and without the need for further order of the court   transfer to Apple, free and clear of any and all liens, claims, encumbrances and interests,   including, without limitation, liens granted to secure the DIP Facility and any Priming   Financing, unless such Sold Furnaces or Retained Furnaces were prevented from removal     





 







      4            because of affirmative action by Apple that materially and demonstrably prevented such   removal.  If the Debtors sell less than 400 ASF Furnaces, they shall vacate all of the   Mesa Facility by December 31, 2015.   9. The Debtors shall cooperate with Apple regarding a logistics plan for the removal of Sold   Furnaces or Retained Furnaces.   10. Except as otherwise provided in this Amended Agreement, all other terms and conditions   of the Mesa Lease will remain unchanged until the Debtors have removed all ASF   Furnaces from the Mesa Facility.  As of the Effective Date, the Warehouse Lease, dated   as of December 15, 2014 (“Warehouse Lease”), will be deemed terminated and the rights   and obligations of each party thereunder shall be null and void.  If the Debtors sell 400 or   more ASF Furnaces, after December 31, 2015 until January 31, 2016, the Debtors shall   have limited rights to access the Mesa Facility to pack and remove the Retained Furnaces   or Sold Furnaces.   11. Apple agrees, as of the Effective Date, that the Sold Furnaces, the Retained Furnaces and   any ASF Furnace not located at the Mesa Facility may be sold for less than the Apple   Repayment Amount, including for scrapping.      12. The Debtors shall have 30 days from the Effective Date to sell or remove Tenant’s   Property (other than ASF Furnaces) from the Mesa Facility.  In the event any Tenant’s   Property (other than ASF Furnaces) remains in the Mesa Facility after such 30-day   period, title to such remaining Tenant’s Property shall immediately and automatically and   without the need for further order of the court transfer to Apple, free and clear of any   liens, claims, encumbrances and interests, including, without limitation, liens granted to   secure the DIP Facility and any Priming Facility in such furnaces and other personal   property.  For the avoidance of doubt, Tenant’s Property shall include, without limitation,   all mezzanines, connections and ancillary equipment supporting the ASF Furnaces   located in the Mesa Facility, meltstock, and the Mesa Equipment, including all Meyer   Burger cutting and other fabrication and inspection equipment.   13. Other than as provided in Paragraphs 3 and 4 hereof, and any provision hereof to which   title to the ASF Furnaces or other property is transferred to Apple, Apple shall not receive   any further distributions from the Debtors’ bankruptcy estates or their successors,   whether under a chapter 11 plan or otherwise, and shall not assert any claims against   GTAT or its successors other than claims arising after the date hereof or based on a   breach of the Agreement.      14. Apple will, as of December 2, 2015, release and discharge any and all liens and security   interests in property of the Debtors’ estates.  For the avoidance of doubt, any rights in   favor of Apple under the Order Pursuant to Bankruptcy Code Sections 105, 361, 362,   363(b), 363(c), 363(e), 364, 503(b), and 507 and Bankruptcy Rules 2002, 4001, 6004(h),     





 







      5            and 9014: (I) Authorizing Debtors to Obtain Postpetition Financing; (II) Granting Liens   and Super-Priority Claims; (III) Authorizing Debtors to Pay Put Option Premium and   Expense Reimbursement; (IV) Approving Information Sharing Obligations and Indemnity   Thereunder; and (V) Granting Related Relief [Docket No. 2122] (the “DIP Order”), or   the “DIP Documents” (as defined in the DIP Order) shall be terminated.     15. Except as otherwise provided herein and with respect to enforcement of this Amended   Agreement, each party shall, as of the Effective Date, release and forever discharge the   other for any and all claims, losses, liabilities, damages and causes of action, whether   known or unknown, relating to the Settlement Agreement, the Mesa Lease, including,   without limitation, the Mesa Fire, the Warehouse Lease, the Apple Contracts and any   other aspect of their business relationship; provided, however, that nothing herein   releases any party hereto from any liability to the other for claims arising after the date   hereof; provided further, however, that sections 1(a), 1(b), 1(c), 4(a), 4(b), 4(d), 4(e), 4(f),   5, 6 and 9 of the Settlement Agreement shall not be affected by the foregoing release, and   all other provisions of the Settlement Agreement will be deemed terminated and shall be   of no force and effect commencing on the Effective Date.     16. After title to the Excess Furnaces passes to Apple, the Debtors may cancel any property   insurance policies related to the Excess Furnaces, after title to any Tenant’s Property   (other than ASF Furnaces) passes to Apple, the Debtors may cancel any property   insurance policies related to any Tenant’s Property (other than ASF Furnaces) that   remains on the Mesa Facility after 30 days after the Effective Date.   17. For the avoidance of doubt, the transfer of title of Excess Furnaces and any other assets to   Apple under this Amended Agreement is to facilitate disposal of such assets and not in   repayment of debt.   18. Apple’s non-recourse claim in the amount of $439 million pursuant to the Settlement   Agreement shall be deemed satisfied and expunged as of the Effective Date in exchange   for the right of Apple, under this Amended Agreement, to receive 50% of the Net   Proceeds from Sold Furnaces and future sales or dispositions of the Retained Furnaces or   any ASF Furnaces currently in inventory at the Debtors’ other facilities.   19. The Amended Agreement shall be binding on any chapter 7 trustee appointed for the   Debtors.   20. 34 of the Retained Furnaces shall be held by the Debtors subject to the contingent interest   granted to Tera Xtal Technology Corp. (“TXT”) in paragraph 13 of the Order Pursuant   to Bankruptcy Code Sections 105, 361, 363(b), 364, and 365 and Bankruptcy Rule 9019   Approving the Terms of and Authorizing Debtors to Enter Into Adequate Protection and   Settlement Agreement with Apple [Docket No. 819].  Therefore, until and unless the   Bankruptcy Court holds that TXT has no interest in such ASF Furnaces, the sale of such     





 







      6            34 ASF Furnaces shall not trigger the application of the sharing formula in Paragraphs 3   and 4 hereof; provided that the Debtors will endeavor to sell such 34 ASF Furnaces after   any ASF Furnace on which TXT does not have a contingent interest.   21. The Debtors will amend the Intercompany Settlement Agreement, dated as of July 20,   2015, by and among GT HK, GTAT Corp., and GT Advanced Equipment Holding LLC,   and the ancillary documents and exhibits related thereto (collectively, the “Intercompany   Settlement Agreement”) to reflect this Amended Agreement prior to the Effective Date of   this Amended Agreement, which amendment shall be in form and substance acceptable   to the Required Lenders as provided under the DIP Documents.    22. The Debtors shall pay to Apple its share of the Net Proceeds from the sale of each ASF   Furnace in accordance with this Amended Agreement within three (3) business days of   the receipt of the proceeds of such sale.  Payments of 50% of the proceeds from the   scrapping of ASF Furnaces (net of the costs of such scrapping), as specified in this   Amended Agreement, shall be made to the party entitled thereto promptly after receipt of   such net proceeds by the party arranging for such scrapping.   23. This Amended Agreement and the rights and obligations of the parties will be governed   and construed and enforced in accordance with the laws of the State of New York,   without regard to conflicts of law principles.   24. This Amended Agreement may not be amended except as agreed to in writing by all   parties.   25. The terms of this Amended Agreement shall be incorporated into a motion and proposed   order to be submitted as soon as possible to the Bankruptcy Court.  Such motion and   proposed order shall be in form and substance satisfactory to the parties to this   Agreement.        





 







      7            IN WITNESS WHEREOF, the parties hereto have caused this Amended Agreement to be duly   executed as of the date first written above.       APPLE INC.    By:  Illegible     Name: Illegible    Title: Illegible        PLATYPUS DEVELOPMENT LLC    By:  /s/Gene Daniel Levoff    Name: Gene Daniel Levoff   Title: Authorized Person       GTAT CORPORATION    By:  /s/Hoil Kim     Name: Hoil Kim    Title: Vice President, Chief               Administrative Officer,               General Counsel and               Secretary       GT ADVANCED TECHNOLOGIES   INC.    By:  /s/Hoil Kim     Name: Hoil Kim    Title: Vice President, Chief               Administrative Officer,               General Counsel and               Secretary        





 







      8                   GT ADVANCED EQUIPMENT   HOLDING LLC    By:  /s/Hoil Kim     Name: Hoil Kim    Title: Manager       GT EQUIPMENT HOLDINGS, INC.    By:  /s/Hoil Kim     Name: Hoil Kim    Title: Vice President and Secretary       LINDBERGH ACQUISITION   CORP    By:  /s/Hoil Kim     Name: Hoil Kim    Title: Vice President and Secretary       GT SAPPHIRE SYSTEMS   HOLDING LLC    By:  /s/Hoil Kim     Name: Hoil Kim   Title: Vice President, General               Counsel and Secretary           





 







      9             GT ADVANCED CZ LLC       By:  /s/Hoil Kim    Name: Hoil Kim    Title: Vice President, General               Counsel and Secretary       GT SAPPHIRE SYSTEMS GROUP   LLC       By:  /s/Hoil Kim     Name: Hoil Kim    Title: Vice President, General               Counsel and Secretary           





 







   Exhibit 1 – Exclusions from Net Proceeds   1)       Installation charges of up to $25,000 per ASF Furnace.   2)       Warranty service charges of up to (a) $20,000 per ASF Furnace currently located in   Mesa, Arizona, and (b) $10,000 per ASF Furnace currently located in the Debtors’ other   facilities.     3)       Shipping charges of up to (a) $10,000 per ASF Furnace currently located in the United   States, and (b) up to $5,000 per ASF Furnace currently located in the Debtors’ other   facilities.   4) Reasonable commissions, if any, to be paid to third parties to facilitate the sale of ASF   Furnaces.           





 







      11            Exhibit 2 – Excluded Space                 





 







10.22.2013      PHASING PLAN   Project No: 478102   CASCADE   P-01   Pilot Line   20 Furnaces   Main Ramp   1901 Furnaces   Future   559 Furnaces   315   Furnaces   559   Furnaces   559   Furnaces   559   Furnaces   468   Furnaces   Mod 1   Semi-permanent   demising wall   Scope limit:   Concrete demo/repour   and floor sealer   Fabrication Area   Current Build | 2,061 Furnaces   Future Capacity | 2,620 Furnaces   Quick Start   140   Furnaces   Mod 2 Mod 3 Mod 4 Mod 5