port bid on sherwin alumina land

8/18/2019 Port Bid on Sherwin Alumina Land

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From: Strawbridge, Sean

Sent: Monday, April 18, 2016 3:51 PM

To: '[email protected]'; Pesce, Gregory F.; 'Geoffrey Frankel';

'[email protected]'; '[email protected]'; '[email protected]'

Cc: [email protected]; LaRue, John; Zahn, Charles; [email protected];

[email protected]

Subject: Project Sandy Binding Bid Submission - Port of Corpus Christi Authority

Dear Ladies & Gentlemen:

On behalf of the Port of Corpus Christi Authority (PCCA), attached please find the attached Bid

Submissions and associated Exhibits. Per the conditions of Transaction approval, PCCA Staff will be

requesting PCCA Commission approvals of the attached effective tomorrow. We will also seek authority

to participate in the Asset Sale Auction, scheduled for 11:00 Eastern Time at the Kirkland & Ellis New York,

New York offices. Three representatives from PCCA (Commission, Staff, Legal), will be in New York for the

Auction.

PLEASE CONFIRM RECEIPT IN GOOD ORDER. Wire confirmation of Good Faith Deposit has been received.

Should you have any question, please advise to all on copy.

Thanks,

Sean C. Strawbridge

Chief Operating Officer

Port of Corpus Christi Authority

222 Power Street

Corpus Christi, Texas 78401

361.885.6133 Direct

361.730.8174 Mobile

361.882.7110 Fax

[email protected]

www.portofcc.com

EXHIBIT A

Case 16-20012 Document 556-1 Filed in TXSB on 04/18/16 Page 1 of 71

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]://www.portofcc.com/http://www.portofcc.com/http://www.portofcc.com/mailto:[email protected]:[email protected]:[email protected]:[email protected]


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April 18, 2016

KIRKLAND & ELLIS LLP601 Lexington Avenue New York, New York 10022Attn: Joshua A. Sussberg, P.C.

KIRKLAND & ELLIS LLP300 North LaSalleChicago, Illinois 60654Attn: Gregory F. Pesce

HURON CONSULTING SERVICES LLC2000 Auburn Drive, Suite 200Beachwood, Ohio 44122Attn: Mr. Geoffrey Frankel

ANDREWS KURTH LLP600 Travis Street, Suite 4200Houston, Texas 77002Attn: Robin Russell

CURTIS, MALLET-PREVOST, COLT &MOSLE LLP101 Park Avenue New York, New York 100178-0061Attn: Steven J. Reisman & Shaya Rochester

Re: Qualified Bid(s) for Purchase of Sherwin Alumina Real Property & Equipment

Dear Sirs / Madams:

The Port of Corpus Christi Authority ("PCCA") is pleased to submit two Qualified Bids (“Bids”),

for all assets located in the Sherwin Alumina ("Sherwin" or the "Company") marine port operations(“Port Area”) located in Gregory, Texas. These Assets include the uplands and submerged lands(“Lands”), the docks and piers, bauxite storage shed, marine building, and other improvements("Improvements"), the cargo handling equipment ("Equipment"), as outlined in Exhibits A andExhibit B hereto, and which are collectively referred to as the “Port Assets” or “Assets” as definedin Exhibits A1 – A4 and Exhibit B of the attached Asset Purchase Agreements (“Agreements”).Either of the bids (but not both) may be considered binding by Sherwin and/or the United StatesBankruptcy Court for the Southern District of Texas Corpus Christi Division (the "Court") on theterms and conditions specified in the Agreements for the acquisition of 100% of the Sherwin PortAssets, including the Land, the Improvements, and the material handling Equipment (collectivelythe "Transaction").

With approximately $435 million in assets and over 100 million tons per year of goods movingthrough its facilities, PCCA is a regional economic engine for South Texas. The PCCA core valuesare to facilitate maritime commerce through development and stewardship of port assets. Thus theSherwin Port Area is a natural fit for the PCCA portfolio.

While neither of the PCCA bids are predicated on the facility’s continued operations, the PCCAviews its Bid as a “white knight” option based not only on its fair price offer, but PCCA’s further

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2Sherwin Alumina Port Assets Bid Cover Letter

commitment to remedy certain environmental conditions at the facility, to invest significantadditional capital in the Port Area, and to work with the Company (or Alternate Operator), shouldexisting operations continue, to formulate an operating lease structure which accounts for currentmarket conditions in an effort to support the long-term viability of the Non-Port Assets andoperations.

Bid Offer & Consideration

The PCCA and its Agents conducted a fairly intensive review of the materials the Company madeavailable in the “data room”, as well as conducted site visits and inspections of the land,improvements, and equipment. However, as requested access to the Port Area to conduct requisitesoil and ground water sampling was not granted to PCCA or its Agents, nor were relevantenvironmental conditional reports or documentation more recent than 2001 provided, PCCA istherefore offering two separate but Qualified Bids.

The first Bid (“Conditional Bid) offers an all cash purchase price of Twenty-Million Dollars(US$20,000,000) payable in cash at the conditional closing of the Transaction. The closingconditions are outlined in Section 3 of the Conditional Asset Purchase Agreement, and includeamong other conditions an environmental remediation escrow amount not to exceed Three-MillionThree-Hundred Thousand Dollars (US$3,300,000), subject to the terms and conditions of theEnvironmental Escrow Agreement in Exhibit C. The Company will allow PCCA to conductfurther environmental due diligence for a period not to exceed 90 days from Bid acceptance.

The second Bid (“Unconditional Bid”) is unconditional to the extent described in Section 3 of theUnconditional Asset Purchase Agreement, and offers an all cash purchase price of Twelve-Million

Nine-Hundred Thousand Dollars (US$12,900,000) payable in cash at the closing of theTransaction.

Also, in both the Conditional and Unconditional Bids, the PCCA is prepared to make an additionalThirteen-Million Dollars (US$13,000,000) in Capital, Deferred Maintenance, and EnvironmentalImprovements in the Port Area if the Company (or Alternate Operator) continues to operate thenon-Port Assets in the production of alumina, as per Section 2.4 of the Agreement.

The Transaction assumes Company obtains all requisite approvals by the Court, and all relevantState and Federal Regulatory Agencies prior to or upon Closing.

Good Faith Deposit and FundingPer the bidding procedures, PCCA has made a Good Faith Deposit of Two-Million Dollars(US$2,000,000) with the Debtor’s claims and noticing agent KCC c/o Bank of America, in theaccount of Computershare Inc. AFF Sherwin Sale Funding Account (Fed/SWIFT confirmation0418I1B7032R010426). Upon acceptance of PCCA Bid and all closing requirements, PCCA willdeliver the remaining cash balance from its internal cash resources. The Bids are not subject to anyfinancing contingency or lender approval requirements.

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Necessary Approvals

The Bids and attached Asset Purchase Agreements are subject to PCCA Commission approval,

scheduled for vote on Tuesday, April 19th, 2016. At that time, PCCA Staff shall also seekauthorization and approvals to participate in the Asset Auction scheduled (if necessary) scheduled

for April 20th at 11:00 a.m. Eastern Time in the offices of Kirkland & Ellis, located at 601

Lexington Avenue, New York, New York 10022. Notification of PCCA Commission approval or

rejection will be sent in writing by 5 p.m. Eastern Time, on Tuesday, April 19th, 2016.

Conditions to Closing

Conditions to Closing shall, in addition to those outlined in each Agreement, also include aneasement in perpetuity granted to PCCA for unrestricted access to the Port Area via the La QuintaRoad as outlined in the attached Exhibit A-4 of the Agreement.

Contact Information

If there are any questions regarding our proposal, please do not hesitate to contact directly:

Port of Corpus Christi Authority222 Power StreetCorpus Christi, Texas, U.S.A.Attn: Sean C. Strawbridge,Chief Operating OfficerOffice: 361-885-6133 | Cell: 361-730-8174Email: [email protected]

Counsel: Port of Corpus Christi Authority800 Shoreline Blvd, Suite 300NCorpus Christi, Texas, 78401Attn: Jimmy WelderOffice: 361-561-8002Email: [email protected]

Conclusion

These binding Bids reflect certain Terms and Conditions upon which the PCCA is prepared to pursue in the acquisition of a 100% interest in the Port Assets of the Company as well as makesignificant capital improvements in the dock structures and the environmental conditions of thePort Area. PCCA believes these Bids may serve as an opportunity for the Company (or Alternate),its Creditors, Employees, and Regulators to be satisfied with the credibility of PCCA as an ownerof the Port Area and associated Port Assets.

Based on the conditions described in the Agreement(s) and the mutual interest in a successfulclosing, we intend to make every effort to advance the proposed Transaction in a timely andexpeditious manner.

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Cordially,PORT OF CORPUS CHRISTI AUTHORITY

John P. LaRueExecutive Director

cc: POCCA CommissionSean Strawbridge – Chief Operating Officer, POCCAJarl Pedersen – Chief Commercial Officer, POCCAJimmy Welder – General Counsel, Welder Leshin LLPDarrin Aldrich – Director of Real Estate, POCCA

Debra Baker – Baker Wotring, LLPJohn Muir – Baker Wotring, LLPLynn Butler – Husch Blackwell, LLP

Attachments: Conditional Asset Purchase AgreementUnconditional Asset Purchase AgreementExhibit A-1 – Overview of Port AreaExhibit A-2 – Tract A Plat MapExhibit A-3 – Metes & Bounds DescriptionsExhibit A-4 – Overview of Requisite Access / Egress EasementExhibit B – Description of Equipment / Improvements

Exhibit C – Environmental Escrow AgreementExhibit D – Environmental Due Diligence, Scope of Workand Estimated Time Line

Exhibit D-1 – Due Diligence Sampling and Analysis PlanExhibit D-2 – Monitor Well and Sample Location MapExhibit E -- Consent to Evaluate, Investigate and Survey Permit

JPL/scs

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CONDITIONAL ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”) is made and entered as of the ___ dayof April, 2016, by and between SHERWIN ALUMINA COMPANY, LLC, a Delaware limitedliability company (“Seller ”) and the PORT OF CORPUS CHRISTI AUTHORITY OF NUECESCOUNTY, TEXAS, a navigation district and political subdivision of the State of Texas (the“Buyer ”). Seller and Buyer are sometimes referred to herein, collectively, as the “Parties” and,individually, as a “Party”.

RECITALS:

WHEREAS, Seller and various affiliates commenced cases under chapter 11 of title 11 ofthe United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for theSouthern District of Texas, Corpus Christi Division (the “Bankruptcy Court”); and

WHEREAS, in Case No. 16-20012, In re: Sherwin Alumina Company, LLC, et al, Debtors,the Bankruptcy Court has entered a Bidding Procedures Order setting forth the process by which

the debtors, including Seller, are authorized to conduct one or more sale transactions and an auctionof all or substantially all of their assets (the “Bidding Procedures”); and

WHEREAS, Buyer desires to purchase, and Seller desires to sell, the submerged land in Nueces County, Texas, and the fast land in San Patricio County, Texas, depicted and described onExhibits A-1, A-2 and A-3 attached hereto, together with the all rights, title and interest of Sellerin and to the rights, benefits, privileges, easements, and appurtenances thereon or in anywiseappertaining thereto (collectively, the “Land”); and

WHEREAS, Buyer desires to purchase, and Seller desires to sell, the Port Area located inGregory, Texas, including the land (“Land”) as outlined and described on Exhibits A-1, A-2 and

A-3, the docks, piers, mooring structures, bauxite storage barn, and other improvements as(collectively, the “Improvements”), and the cranes, loaders, material handling equipment and otherassets as described in Exhibit B hereto (collectively, the “Equipment”) and, together with the Landand Improvements, are collectively referred to as the Acquired Port Assets (“Acquired Assets”) pursuant to the terms and conditions of this Agreement; and

WHEREAS, subject to the receipt of any required approvals and orders from theBankruptcy Court, the Parties hereto have agreed that Seller will sell and Buyer will acquire theAcquired Assets free and clear of any liens under Section 363 of the Bankruptcy Code.

NOW, THEREFORE, for and in consideration of the foregoing and of the mutualagreements herein contained Seller and Buyer hereby agree as follows.

1. Sale and Transfer of Assets.

1.1 Pursuant to Section 363 of the Bankruptcy Code, for the consideration hereinafterset forth and subject to the terms and conditions of this Agreement and the SaleOrder, Buyer agrees to purchase from Seller and Seller agrees to sell, transfer andassign to Buyer, all of Seller’s right, title and interests in, to and under the AcquiredAssets as of the Closing free and clear of all liens and encumbrances.

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1.2 “Sale Order ” means an order of the Bankruptcy Court approving: (a) the execution,delivery and performance by Seller of this Agreement, and (b) the sale of theAcquired Assets to Buyer hereunder.

2. Payment and Other Consideration. The consideration for the sale, transfer andassignment of the Acquired Assets by Seller to Buyer is Buyer’s payment of cash to Sellerin the amount of Twenty Million Dollars ($20,000,000) (the “Purchase Price”). ThePurchase Price shall be paid by Buyer to Seller as follows:

2.1 Not later than 4:00 P.M. CST on April 18, 2016, Buyer shall deliver by wire transferof immediately available funds a down payment in the amount of Two MillionDollars ($2,000,000) of the Purchase Price (the “Earnest Money”) to an account oraccounts designated by Seller in accordance with Section V1(n) of the BiddingProcedures (as defined in the Recitals of this Agreement). At the Closing the EarnestMoney will be credited to the Purchase Price as provided in Section XIV of theBidding Procedures. Except as provided in Sections 3.7 and 3.9, if Buyer is theSuccessful Bidder (as defined in the Bidding Procedures) and the conditions set forth

in Sections 3.8 and 3.10 are met and Buyer fails to close the purchase through nofault of Seller, then the Earnest Money shall be forfeited to, and retained irrevocably by, Seller. Except as provided in Section 3.7, if Buyer is not the Successful Bidder,the Earnest Money shall be returned to Buyer (with any interest earned on theEarnest Money) within ten (10) business days after consummation of any Sale (asdefined in the Bidding Procedures) or upon permanent withdrawal of the proposedSale.

2.2 At the Closing, Buyer shall deliver by wire transfer of immediately available fundsThree Million Three Hundred Thousand Dollars ($3,300,000) of the Purchase Price(the “Environmental Escrow Payment”) to the Environmental Escrow Administrator

(as defined in Section 6.7), and the Environmental Escrow Payment shall beadministered in accordance with the Environmental Escrow Agreement in the formattached hereto as Exhibit C.

2.3 At the Closing, Buyer shall deliver to Seller by wire transfer of immediatelyavailable funds the balance of the purchase price, Fourteen Million Seven HundredThousand Dollars ($14,700,000) (the “Closing Cash Payment”); that is, the PurchasePrice minus the Good Faith Deposit, minus the Environmental Escrow Payment.

2.4 Should Seller (or Alternate Operator of the Non-Port Assets) continue operations ofthe Non-Port Assets, Buyer agrees that, upon reaching mutually agreeable Lease

Terms and Conditions with Seller or Alternate Operator, it will make a minimum ofThirteen-Million Dollars ($13,000,000) in Capital, Deferred Maintenance, andEnvironmental improvements to the Buyer’s Acquired Assets.

3. Closing; Termination. The closing of the transactions described herein contemplated bythis Agreement (the “Closing”) shall take place as follows.

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3.1 The Closing shall take place by electronic exchange of documents as soon as possible after the Sale Order is issued by the Bankruptcy Court, and the provisionsin Section 3.8 are satisfied, but in no event later than five (5) business days aftersuch order is issued or the date on which Seller notifies Buyer of such order, if later.

3.2 At the Closing, Buyer shall deliver the Environmental Escrow Payment to theEnvironmental Escrow Administrator as provided in Section 2.2 and shall pay bywire transfer the Closing Cash Payment into an account designated by the Seller atleast 48 hours prior to the Closing.

3.3 At the Closing, the Parties shall execute and deliver such instruments as arenecessary to effect the transfer of the Acquired Assets to Buyer.

3.4 If the Sale Order has not been entered within thirty (30) days following the datehereof, either Party may terminate this Agreement upon written notice to the otherParty, and upon such termination, neither Party shall have any obligation or liabilityto the other Party (except pursuant to any confidentiality agreement between the

Parties).

3.5 In the event that Buyer has not consummated the Closing within the time framecontemplated by Section 3.1, from and after the expiration of such time frame, Sellermay terminate this Agreement upon written notice to Buyer; provided that suchtermination will not relieve Buyer of any liability for breach of this Agreement infailing to so consummate.

3.6 This Agreement may be terminated by Seller, upon written notice to Buyer, if it orits governing body determines, in consultation with outside legal counsel, that proceeding with the transaction contemplated hereby or failing to terminate this

Agreement would be inconsistent with its fiduciary duties.

3.7 This Agreement shall be terminated by Buyer, upon written notice to Seller, if thegoverning body of Buyer does not approve this Agreement at its meeting on April19, 2016. Notwithstanding anything to the contrary contained in this Agreement, ifBuyer terminates this Agreement pursuant to this Section 3.7, the Earnest Moneyshall be returned to Buyer on or before 3:00 p.m. CST on April 20, 2016

3.8 Closing is conditioned upon the Office of the Attorney General of Texas (the “AG”),in its representation of the Texas Commission on Environmental Quality (the“TCEQ”), issuing a letter to Buyer stating that the AG and TCEQ consent to the partition of the Land from the remainder of the Debtor’s real property and that the

Buyer obtains the protections and benefits of an Innocent Owner/OperatorCertificate (“IOC”) under Texas Health & Safety Code sections 361.751-361.754with respect to the Land. Alternatively, this requirement to Closing may be satisfied by the AG and TCEQ agreeing to covenant not to sue or assert civil or criminalclaims or causes of action against Buyer arising out of the Land for any events orenvironmental contamination occurring prior to the acquisition of the Land pursuantto Sections 106, 107 of CERCLA, 42 U.S.C. §§ 9606, 9607; RCRA §§ 3008, 7002,

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7003, 42 U.S.C. §§ 6928, 6972, 6973; and any similar state law, including but notlimited to Texas Health & Safety Code Chapter 361 and Texas Water Code Chapter26.

3.9 Immediately after Closing, the Buyer shall commence its work to determine thecondition of the subsurface soil and groundwater of the Land (the "EnvironmentalDue Diligence"), as set forth in the Environmental Due Diligence, Scope of Workand Estimated Time Line attached hereto as Exhibit D. After completion of theEnvironmental Due Diligence, Buyer will establish an appropriate remediation costestimate for soil and/or groundwater conditions of the Land. Buyer shall provideSeller with a Statement of Funds Used during remediation and any remainingEnvironmental Escrow Funds not expended in the remediation process shall bereleased to Seller at the completion of remediation per the Terms of theEnvironmental Escrow Agreement in Exhibit C, of which release shall not exceedtwenty-four (24) months after Closing.

3.10 The Sale Order shall provide Buyer with an access easement to the Land from State

Hwy 361 over Seller’s private roadway known as La Quinta Road as depicted onExhibit A-4 attached hereto and made a part hereof, situated in San Patricio County,Texas, if Buyer has been unable to obtain such an easement before the Closing.

3.11 Seller agrees to grant Buyer access to the Land and Improvements from the date ofthis Agreement to Closing for purposes of Buyer’s Environmental Due Diligence,inspecting and investigating the Land, under the terms set forth in the AccessAgreement attached hereto as Exhibit E.

3.12 If, between the date of this Agreement and Closing, all or a material portion of theAcquired Assets are damaged or destroyed as a result of natural occurring events,

and not through fault or negligence of Seller or Seller’s agents, Buyer shallnevertheless consummate the transactions contemplated hereby, provided thatSeller’s right to all insurance proceeds resulting from such damage or destructionshall be assigned to Buyer at the Closing and shall be retained by Buyer without areduction in the Purchase Price, and Seller shall have no further obligation to Buyerwith regard to such damage or destruction provided Seller has maintained adequate property insurance on the Improvements.

4. Taxes. Buyer shall pay or cause to be paid all excise taxes (including, but not limited to,sales and use, gross receipts, transfer, transaction, conveyance fees and stamp taxes)imposed by any government authority on or with respect to this transaction but shall not be

obligated to pay any taxes previously levied against the Acquired Assets that apply to periods prior to, or unrelated to, this transaction. If Seller is required to remit or pay taxesthat are the responsibility of Buyer, Buyer shall promptly reimburse Seller for any suchtaxes. If Buyer is entitled to an exemption from such taxes, Buyer shall furnish Seller withan exemption certificate.

5. As-Is Transfer.

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5.1 (I) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS,STATUTORY OR IMPLIED AND (II) SELLER EXPRESSLY DISCLAIMS,AND BUYER HEREBY WAIVES, ALL LIABILITY AND RESPONSIBILITYFOR, AND BUYER IS NOT RELYING ON, ANY REPRESENTATION,WARRANTY, STATEMENT OR INFORMATION MADE OR

COMMUNICATED (ORALLY OR IN WRITING) TO BUYER OR ANY OF ITSAFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS ORREPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION,PROJECTION OR ADVICE THAT MAY HAVE BEEN PROVIDED TO BUYERBY SELLER OR ANY OFFICER, DIRECTOR, SUPERVISOR, EMPLOYEE,AGENT, CONSULTANT, REPRESENTATIVE OR ADVISOR OF SELLER ORANY OF ITS RESPECTIVE AFFILIATES).

5.2 SELLER EXPRESSLY DISCLAIMS AND NEGATES, AND BUYER IS NOTRELYING ON AND HEREBY EXPRESSLY WAIVES (I) ANY IMPLIED OREXPRESS WARRANTY OF MERCHANTABILITY, (II) ANY IMPLIED OREXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (III)ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELSOR SAMPLES OF MATERIALS, (IV) ANY RIGHTS OF PURCHASERSUNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OFCONSIDERATION, (V) ANY CLAIMS BY BUYER FOR DAMAGESBECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN AS OF THEDATE OF THIS AGREEMENT OR THE CLOSING DATE, AND (VI) ANY ANDALL IMPLIED WARRANTIES EXISTING UNDER APPLICABLE LAW; ITBEING THE EXPRESS INTENTION OF BOTH BUYER AND SELLER THATTHE ASSETS SHALL BE CONVEYED TO BUYER IN THEIR PRESENTCONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH ALLFAULTS, AND THAT BUYER HAS MADE OR SHALL MAKE PRIOR TOCLOSING SUCH INSPECTIONS AS BUYER DEEMS APPROPRIATE.

6. Definitions. The following terms shall have the meanings set forth below for all purposesof this Agreement and corresponding Exhibits.

6.1 “Acceptable Environmental Standard” is Texas Risk Reduction Program RemedyStandard A commercial/industrial land use standards for all exposure pathways inaccordance with 30 Texas Administrative Code §350.32.

6.2 "Authority" means any state, federal and local governmental entity, agency oragencies having jurisdiction over the Port Real Property.

6.3 “COC” means a Certificate of Completion letter from the TCEQ under the Texas

Voluntary Cleanup Program (“VCP”), or the equivalent, showing that no furtherwork is required to meet the Acceptable Environmental Standard.

6.4 “Contamination” means the presence at, on, under, originating from or migratingto the Land of any chemical, compound, material, substance or other matter that (i)is a flammable, corrosive, explosive, hazardous, toxic or regulated material,

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substance or waste, or other injurious or potentially injurious material, whetherinjurious or potentially injurious by itself or in combination with other materials;(ii) is controlled, designated in or governed by any Environmental Law (as hereindefined); and (iii) gives rise to any requirements or obligations (including but notlimited to reporting, notice or publication requirements or response, removal or

remediation) under any applicable Environmental Law.

6.5 "Covered Contamination" for the Land, means Contamination that (a) existed at,on or under, or originated from the Land prior to the Closing Date, or (b) migratedonto the Land from any property currently or previously owned or operated by theSeller or Seller’s Affiliates and (b) is required to be remediated toindustrial/commercial standards by any Authority pursuant to Environmental Laws.For purposes of this Agreement, it is presumed that Contamination first identifiedin the NEI Phase II Environmental Site Assessment conducted in 2001 and finalreport dated March 1, 2001, and subsequent sampling conducted during DueDiligence period, is “Covered Contamination” unless it is proven that theContamination was caused solely by the actions of the Buyer or another person orentity not related to the Buyer after the date of the Closing.

6.6 “Environmental Escrow Account” means the account with the funds set aside fromthe Closing Cash Payment to be held by a third party escrow agent intended for use by the Buyer to cover any and all Remediation Costs of Covered Contamination onthe Land following Closing.

6.7 “Environmental Escrow Administrator ” means a third party administrator of the

Environmental Escrow mutually acceptable to Buyer and Seller.

6.8 “Environmental Law” or “Environmental Laws” means any and all federal, state,

county or local laws, ordinances, rules, decrees, orders or regulations relating tohazardous substances, hazardous materials, hazardous waste, toxic substances, pollutants or words of similar import, or environmental conditions on, under orabout the Properties, or soil and groundwater conditions, including, but not limitedto, the Comprehensive Environmental Response, Compensation and Liability Actof 1980, as amended, 42 U.S.C. §9601, et seq., the Resource Conservation andRecovery Act, 42 U.S.C. §6901, et seq., any amendments to the foregoing, and anysimilar federal, state or local laws, ordinances, rules, decrees, orders or regulations.

6.9 "Remediation Activities" means any investigation (including without limitation,any site investigation), study, assessment, testing, monitoring, containment,

removal, disposal, closure, corrective action, remediation (whether active or passive), natural attenuation, bioremediation, response, cleanup or abatement,whether on-site or off-site, of Covered Contamination to industrial/commercialstandards as required by Environmental Laws in effect at such time.

6.10 "Remediation Costs" means all costs incurred for or in connection withRemediation Activities at or relating to the Properties to attain anindustrial/commercial standard necessary to achieve the Acceptable Environmental

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Standard and obtain a COC for the Covered Contamination at the Land.Remediation Costs include, without limitation, investigation and evaluation costs,sampling and analysis costs, reporting costs, planning and design costs, consultantand contractor costs, labor costs, equipment costs, construction costs, access costs,disposal costs, transportation costs, legal fees and expenses, permit fees and costs,

TCEQ Voluntary Cleanup Costs or any other Agency costs, monitoring costs, andoversight costs incurred after the Closing Date by an Authority. Remediation Costsalso include, but are not limited to, costs related to any liability for off-site disposalof material containing Covered Contamination that is removed from a Land anddisposed off-site as part of the Remediation of Covered Contamination within thescope of this Agreement.

7. Environmental Escrow Agreement

7.1 At least one business day prior to Closing, Buyer and Seller will enter into anEnvironmental Escrow Agreement (Exhibit C) with the Environmental EscrowAdministrator selected by the Parties.

7.2 At the time of the Closing, Buyer will deliver to the Environmental EscrowAdministrator the sum of Three Million Three Hundred Thousand U.S. Dollars($3,300,000) (the “Environmental Escrow Payment”) to be held by theEnvironmental Escrow Administrator under the terms of the Environmental EscrowAgreement. The Environmental Escrow Payment and all interest earned thereonshall be disbursed under the conditions set forth the Environmental EscrowAgreement.

7.3 Buyer will have a period of twenty-four (24) months after Closing to conductRemediation Activities to determine if the Land meets the Acceptable

Environmental Standard. If Buyer discovers during the Environmental DueDiligence period that Covered Contamination exists which exceeds reportingstandards under the Environmental Law or that the Land does not meet theAcceptable Environmental Standard, Buyer will provide notice to the Seller and theTCEQ, or other applicable Authority.

7.4 If, Remediation Activities or notice to the TCEQ, or other applicable Authority, isrequired to meet the Acceptable Environmental Standard and obtain a COC, Buyerwill first seek to place the Land into the Texas VCP and proceed with theRemediation Activities. Buyer shall have the right to instruct the EnvironmentalEscrow Administrator to disburse funds from the Environmental Escrow Account

under the terms of the Environmental Escrow Agreement.

7.5 Upon receipt of a final COC, or a determination by the TCEQ, or other applicableAuthority that no further Remediation Activity is required to meet the AcceptableEnvironmental Standard, Buyer shall instruct the Environmental EscrowAdministrator to release any remaining funds in the Environmental EscrowAccount, pursuant to the terms of the Environmental Escrow Agreement, and closethe Environmental Escrow Account.

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8. Miscellaneous.

8.1 Non-Compensatory Damages. Neither Buyer nor Seller shall be entitled to recover

from the other, or its respective affiliates, any indirect, special, consequential, punitive or exemplary damages, or damages for lost profits of any kind or loss of business opportunity, arising under or in connection with this Agreement or thetransactions contemplated hereby. Subject to the preceding sentence, Buyer, on behalf of itself and each of its affiliates, and Seller, on behalf of itself and itsaffiliates, waive any right to recover any indirect, special, consequential, punitive orexemplary damages, or damages for lost profits of any kind or loss of businessopportunity, arising in connection with or with respect to this Agreement or thetransactions contemplated hereby.

8.2 Specific Performance. Each of the Parties agrees that irreparable damage wouldoccur and that the Parties would not have any adequate remedy at law in the eventthat any of the provisions of this Agreement were not performed in accordance withtheir specific terms or were otherwise breached. It is accordingly agreed that each

of the Parties shall be entitled to an injunction or injunctions to prevent breaches ofthis Agreement and to enforce specifically the terms and provisions of thisAgreement without proof of damages or posting of any bond or other security, this being in addition to any other remedy to which it is entitled at law or in equity.

8.3 Entire Agreement. This Agreement, the documents to be executed pursuant heretoand all exhibits attached hereto constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements,understandings, negotiations and discussions, whether oral or written, of the Parties pertaining to the subject matter hereof.

8.4

Publicity. Each Party shall consult with the other Parties prior to making any publicrelease concerning this Agreement, and, except as required by applicable Law or byany Governmental Authority or stock exchange (including the Bankruptcy Court inconnection with the Bankruptcy Cases) (in which case the Party required to makesuch release shall allow the other Parties reasonable time to comment on such releasein advance of such issuance), no Party shall issue any such release without the priorwritten consent of the other Party, which consent shall not be unreasonably withheldor delayed.

8.5 Governing Law. THIS AGREEMENT AND THE LEGAL RELATIONSAMONG THE PARTIES SHALL BE GOVERNED AND CONSTRUED IN

ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS EXCLUDINGANY CONFLICTS OF LAW, RULE OR PRINCIPLE THAT MIGHT REFERCONSTRUCTION OF SUCH PROVISIONS TO THE LAWS OF ANOTHERJURISDICTION, AND THE APPLICABLE PROVISIONS OF THEBANKRUPTCY CODE.

8.6 Exclusive Jurisdiction; Waiver of Jury Trial. ALL ACTIONS ANDPROCEEDINGS WITH RESPECT TO, ARISING DIRECTLY OR INDIRECTLY

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IN CONNECTION WITH, OUT OF, RELATED TO, OR FROM THISAGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBYSHALL BE EXCLUSIVELY LITIGATED, HEARD AND DETERMINED INTHE BANKRUPTCY COURT, AND THE PARTIES HEREBYUNCONDITIONALLY AND IRREVOCABLY SUBMIT TO THE EXCLUSIVE

JURISDICTION AND AUTHORITY OF THE BANKRUPTCY COURT TOHEAR AND DETERMINE ANY SUCH ACTION OR PROCEEDING;PROVIDED, HOWEVER, THAT IF THE BANKRUPTCY CASES ARE CLOSEDOR THE BANKRUPTCY COURT IS UNWILLING OR UNABLE TO HEARANY SUCH DISPUTE, THE PARTIES HEREBY UNCONDITIONALLY ANDIRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THESTATE OF TEXAS OR OF THE UNITED STATES OF AMERICA FOR THESOUTHERN DISTRICT OF TEXAS. EACH PARTY HERETO WAIVES, TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHTIT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUITOR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT

OR THE TRANSACTIONS CONTEMPLATED HEREBY.

8.7 Approval of the Bankruptcy Court. Notwithstanding anything herein to thecontrary, any and all obligations under this Agreement are subject to entry of theSale Order.

8.8 Severability. If any term or other provision of this Agreement is invalid, illegal orincapable of being enforced by any rule of Law or public policy, all other terms and provision of this Agreement shall nevertheless remain in full force and effect; provided, however, that in such case the Parties hereto shall use their reasonable bestefforts to achieve the purpose of the invalid term or provision.

8.9

Counterparts. This Agreement may be executed in any number of counterparts,and each counterpart hereof shall be deemed to be an original instrument, but allsuch counterparts shall constitute but one instrument. Any signature heretodelivered by a Party by facsimile or electronic transmission shall be deemed anoriginal signature hereto.

8.10 Expenses. Whether or not the transactions contemplated herein are consummated,except as set forth in Section 4, each of the Parties shall be responsible for the payment of its own respective costs and expenses incurred in connection with thisAgreement, including the fees of any attorneys, accountants, brokers or advisorsemployed or retained by or on behalf of such party.

[The remainder of this page is left intentionally blank.]

EXHIBIT A



15/71

SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the datefirst written above.

SELLER:

SHERWIN ALUMINA COMPANY, LLC

By:

Its:

BUYER:

PORT OF CORPUS CHRISTI AUTHORITY OF

NUECES COUNTY. TEXAS

By: John P. LaRue

Its: Executive Director

EXHIBIT A



16/71

EXHIBIT A

To Asset Purchase Agreement

DESCRIPTION OF PORT AREA

EXHIBIT A



17/71

EXHIBIT A-1

Sherwin Alumina Option 4 +/- 79.5 Acres

EXHIBIT A



18/71

EXHIB


EXHIBIT A-2


19/71

Tract A

METES & BOUNDS DESCRIPTION

79.5 ACRES April 2016

STATE OF TEXAS COUNTY OFNUECES AND SAN PATRICIO

Being a tract of 79.5 acres of land, more or less, with submerged portion in Corpus Christi Bay, Nuec

County, Texas within the limits of the submerged land conveyed by the State of Texas to Nueces CouNavigation District (now known as Port of Corpus Christi Authority) by Patent 106 dated July 31, 195recorded in V. 522, pages 201-203 in Nueces County Deed Records. Upland portion of said Tract is situain San Patricio County, Texas, all within the property owned by Sherwin Alumina. Said Tract A furtdescribed as follows:

BEGINNING at a point (P.O.B.) on the south boundary of Sherwin Alumina submerged Tract 1-Parcel Said P.O.B. also being on the Port of Corpus Christi Authority (PCCA) bulkhead line.

THENCE, North 77° 31' 20" West along said bulkhead line at approximately 1,519’ to a point on thenortheast corner of a mooring-turning structure easement designated as Tract B (see attached plat) in a

for a distance of 2,159’ to a point on the southwest corner of Sherwin Alumina submerged Tract 1-Parce5,

THENCE, North 1° 10' 31" West along a common boundary between said Sherwin Alumina Parcel 5 aCheniere Energy to a corner for a distance of 767’,

THENCE, along said common boundary, North 17° 32' 43" West for a distance of approximately 1,465the northwest corner of this Tract,

THENCE, East along north boundary of this Tract to a point between south edge of road and the conveybuilding’s retaining wall for a distance of approximately 1,190’,

THENCE, South along said retaining wall to a point on the Southerly limit of conveyor building for distance of approximately 1,283’,

THENCE, East for a distance of approximately 357’ to an interior corner,

THENCE, South to a point marking the location of a fence line shown per Reynolds Metals Co. plant pplan-drawing #300-L-3014, for a distance of approximately 112’,

THENCE, East along said fence line for a distance of approximately 525’ to a fence corner,

THENCE, South, passing an existing conveyor at approximately 300’, in all for a distance of approximat340’ to an interior corner,

THENCE, East for a distance of approximately 684’ to a point being on the east property line of Sherw Alumina,

THENCE, South along said east property line for a distance of approximately 514’ to a point on the Ecorner of the aforementioned Sherwin Alumina Tract 1-Parcel 4,

THENCE, South 25° 59' 40" West along east boundary of said Parcel 4 and property line for a distance411.83’ to the point of beginning (P.O.B.).

Containing approximately 79.5 Acres of land, more or less…….Tract B-See attached plat.EXHIBIT A


EXHIBIT A-3


20/71

Exhibit “A-4” Access along the LaQuinta Road

EXHIBIT A



21/71

EXHIBIT B


DESCRIPTION OF EQUIPMENTS/IMPROVEMENTS

EXHIBIT A



22/71

Facility

Plant Plot Plan #

300-L-3014 (R19)

Description of Improvements and Equipment

(Including but Not Limited to the Following)

5 5 5 Dock Pier 739' long X 60' wide (Bauxite Unloading Dock)

5 5-C-2 Conveyor belt 1,997' long X 4' wide (Dock Conveyor)

5 2 E-Cranes and accessories (Spares, Buckets, etc.)

5 2 Receiving Hoppers and accessories (Spares, Environmental Controls, etc.)

14A Sample Building (Bauxite)

14B Transfer Building (Bauxite)

14-1 S.H.

15 15C-8 14 Cross Conveyor

15 15A Bauxite Storage Building 1200' long X 100' wide

15 15A-C-1 15A Conveyor Belt (Overhead/Tripper)

15 15A-C-2 15A South Reclaim Conveyor

15 15A-C-3 15A North Reclaim Conveyor 15 15B Bauxite Storage Building 1200' long X 100' wide

15 15B-C-1 15B Conveyor Belt (Overhead/Tripper)

15 15B-C-2 15B South Reclaim Conveyor

15 15B-C-3 15B North Reclaim Conveyor

15 15C-30 DLA Reclaim Conveyor (Bauxite Stockpile Area)

15 15-T-9 DLA Truck Dump Hopper (Bauxite Stockpile Area)

90 90 90 Dock Pier 668' long X 40' wide (Alumina Loading Dock)

90 Alumina Loading Tower and accessories

90 90-C-57 Shuttle Conveyor (Alumina Loading Dock)

90 90-C-32 90 Dock Belt Conveyor

90 90-1 S.H.

90 Unloading Building (Rail)

90 90-T-1 1 Silo (Alumina Storage) 110' diameter X 64' high

90 90-C-16 1 Silo to Belt Airslide

90 90-C-15 1 Silo Chamber Blower

90 90-C-51 Elevator to 1 Silo Airslide

90 90-T-2 2 Silo (Alumina Storage) 160' diameter X 74' high

90 90-C-48 2 Silo Belt Conveyor Airslide

90 90-C-54 Elevator to 2 Silo Airslide

90 90-T-3 3 Silo (Alumina Storage) 230' Diameter X 64' High

90 90-C-47 3 Silo to Belt Airslide90 90-C-49 Elevator to 3 Silo Airslide

90 No Number Parts Storage Building (East of Alumina Silos)

130 Operations & Maintenance Building- Area 1 & 2

No Number Maintenance Building (Adjacent to Building 130)

No Number Maintenance Building (Adjacent to Storage Pad)

No Number Guard Building (no building number on plans)

51A-C-78 3 51/90 Alumina Conveyor

DESCRIPTION OF IMPROVEMENTS AND EQUIPMENT

EXHIBIT B


EXHIBIT A



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1

EXHIBIT C


ENVIRONMENTAL ESCROW AGREEMENT

THIS ENVIRONMENTAL ESCROW AGREEMENT (“Agreement”) is made andentered into as of this ____ day of ______________, 2016, between SHERWIN ALUMINACOMPANY, LLC, a Delaware limited liability company (“Seller ”) and the PORT OF CORPUSCHRISTI AUTHORITY OF NUECES COUNTY, TEXAS, a navigation district and politicalsubdivision of the State of Texas (the “Buyer ”), and ________________ (“Environmental EscrowAdministrator” or “Administrator”) (collectively, the “Parties.”)

R E C I T A L S

WHEREAS, Seller and Buyer have executed an Asset Purchase Agreement (“Purchase

Agreement”), dated _____________, 2016, in connection with the transfer of certain Land,Improvements and Equipment collectively the Acquired Assets (all as defined in the PurchaseAgreement) and identified in Attachment One, attached hereto;

WHEREAS, under the terms of the Purchase Agreement, Buyer has agreed to deposit withthe Administrator funds in the amount of $3,300,000 of the purchase price in U.S. Dollars (the“Environmental Escrow Payment”) to be held in an Environmental Escrow Account (“Escrow

Account”) and the parties are entering into this Environmental Escrow Agreement (“EscrowAgreement”) to set forth the terms and conditions pursuant to which the Environmental EscrowPayment will be escrowed, held and disbursed.

NOW, THEREFORE, in consideration of the agreements set forth in the PurchaseAgreement and the mutual covenants set forth in this Agreement, the parties agree as follows:

1. Establishment of Account. Prior to Closing, Seller and Buyer shall mutually agree uponand appoint a person or entity to serve as Administrator pursuant to the Agreement. Prior toClosing, Seller, Buyer and Administrator shall establish a money market interest-bearing EscrowAccount with a federally insured bank with a net worth no less than $1,000,000,000.00 that ismutually acceptable to Buyer and Seller and set up for the benefit of Buyer and Seller. At Closing,Buyer shall make the Environmental Escrow Payment to Administrator for deposit into the EscrowAccount. The Administrator shall promptly, upon written directions from Buyer, invest the fundsaccording to guidelines included in Attachment Two, and shall provide Seller and Buyer with prompt written notice of all fund investments and reinvestments. If no written instructions fromthe Buyer’s Representatives are received by the Administrator, then the Administrator shall invest

all available funds in _____________. Interest will accrue to the benefit of the Escrow Accountand will be disbursed to Buyer for the payment of Remediation Costs only after the EnvironmentalEscrow Payment has been exhausted, otherwise interest will be released to Seller with the releaseof any remaining funds at the closure of the Escrow Account.

EXHIBIT A



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2

2. Performance of Remediation Activities. Buyer agrees to undertake and perform, in goodfaith and with due diligence, the initial Remediation Activities to determine the environmentalcondition of the Land. If Buyer discovers during the period that Covered Contamination existswhich exceeds reporting standards under the Environmental Law or that the Land does not meetthe Acceptable Environmental Standard (as defined in the Purchase Agreement), Buyer will

provide notice to the Seller and the TCEQ, or other applicable Authority.

3. Purpose for Environmental Escrow Payment. The Environmental Escrow Payment will be held in the Escrow Account for use by the Buyer to pay for any and all Remediation Costs orRemediation Activities associated with the Land needed to obtain a Final Certificate of Closureletter (“COC”) from the TCEQ or the equivalent from any other applicable Authority with jurisdiction over the environmental condition of the Land, demonstrating that the RemediationActivities for the Land has been completed.

4. Disbursement of Environmental Escrow Payment. After commencement of theRemediation Activities, Buyer may periodically instruct the Administrator to disburse funds for

Remediation Costs required to meet the Acceptable Environmental Standard and obtain a COC, asBuyer sees fit for the Remediation Activities.

5. Release of Environmental Escrow Payment. If after Buyer’s receipt of the COC letterdemonstrating that the Remediation Activities for the Land has been completed, any funds remain,including interest, after disbursement to cover all Remediation Activities, Buyer shall instruct theAdministrator to release any remaining funds to Seller. The Parties understand and agree that theAccount is established for the sole purpose of ensuring that Remediation Activities are completedand paid for and in no event shall Seller be allowed to withdraw any funds from or close out thisAccount without the written authorization and approval of Buyer.

6. Duties of the Administrator. The Administrator shall have no liability or responsibilityhereunder other than to hold and disburse funds from the Escrow Account in accordance with thisAgreement. The Administrator shall be obligated only for the good faith performance of suchduties as are specifically set forth in this Agreement, using the customary degree of care and skillordinarily exercised by similar professionals, and shall be obligated to act only in accordance withwritten instructions received by it from Buyer, or Buyer’s designated representative, as providedin this Agreement. It is agreed that Administrator’s duties hereunder are ministerial in nature andthat Administrator shall incur no liability in connection with the performance of its duties underthis Agreement, except for damages, losses or expenses caused by the gross negligence, willfulmisconduct or bad faith of the Administrator.

7. Records and Accounting. The Administrator shall maintain a record of all deposits,income, disbursements and other transactions concerning the Account and shall provide to Buyerand Seller a written accounting of all transactions every six (6) months. Upon request, Buyer andSeller shall have the right to inspect, at reasonable times, all Records and Accounting describedherein, of the Administrator concerning the Account. Buyer or Seller may also make a request forcopies of such Records and Accounting and Administrator shall such copy shall be made to a Partywithin thirty (30) calendar days of a request.

EXHIBIT A



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3

8. Compensation of Administrator. The Administrator shall be entitled to compensationfor its services from the funds in the Escrow Account (as well as reimbursement of its reasonableand necessary fees and expenses) under this Agreement in accordance with the fee schedule setforth in attached Attachment Three.

9. Resignation, Removal, and Successor Administrator. If the Administrator is unable orunwilling to continue to act as Administrator for this Agreement, it may resign upon giving of atleast ten (10) business days’ notice to Seller and Buyer. The Administrator may also be removedat any time by written notice signed by the Seller and Buyer and delivered to Administrator. If atany time the Administrator resigns, is removed, is dissolved or otherwise becomes incapable ofserving as Administrator, the Seller and Buyer shall promptly agree upon and designate a successorAdministrator.

10. Dispute Resolution. The Parties agree that all controversies, claims or disputes betweenthem arising out of this Agreement (including but not limited to all contractual, tortious, commonlaw, statutory, legal or equitable claims or any other claims or disputes concerning the terms,

meaning of implementation of the Agreement (collectively “Disputes”) shall be resolved inaccordance with the following provisions:

(a) After written notice of such Dispute, the Parties shall in good faith use commerciallyreasonable efforts to resolve the Dispute by meeting and conferring;

(b) In the event that the Parties are unable to resolve any Dispute by negotiation pursuantto paragraph (a) above within twenty (20) business days after receipt of written noticeof Dispute, the Parties shall engage in a binding arbitration with a mutually agreed-upon person. Any fees and costs of the mediation shall be shared equally between theSeller and Buyer. The Parties shall make commercially reasonable efforts and take allsteps necessary to successfully resolve their Dispute by arbitration within ninety (90) business days from the submission of the Dispute to the arbitrator.

11. Notification. Any notice, request, consent, waiver or other communication required or permitted to be given throughout this Agreement shall be effective only if in writing and shall bedeemed sufficient only if delivered in person, via Federal Express or other recognized overnightcourier, or by certified or registered mail, postage prepaid, return receipt requested, addressed asfollows:

To Seller: _______________________ _______________________ _______________________ _______________________

To Buyer: _______________________ _______________________ _______________________ _______________________

EXHIBIT A



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4

To Administrator: _______________________ _______________________

_______________________ _______________________

12. Choice of Law. This Agreement shall be construed according to the laws of the State ofTexas without regard to its application of its conflicts of laws rules.

13. Non-assignment. All rights and obligations given herein to or imposed upon the Partieshereto shall extend to and bind the respective successors and assigns, heirs, executors andadministrators of said Parties; however, Seller and Administrator may not transfer, convey orassign their rights and obligations under this Agreement without the prior written consent of Buyer,which consent shall not be unreasonably withheld.

14. Multiple Counterparts. This Agreement may be executed in any number of counterparts,each of which shall constitute an original, and all counterparts shall constitute on Agreement.

15. Severability. To the extent that any provision of this Agreement is prohibited by or heldinvalid under applicable law, such provision shall be ineffective to the extent of such prohibitionor invalidity, without invalidating the remainder of such provision or the remaining provisions inthe Agreement.

16. Tax Matters: Form 1099 for interest earned on the Escrow Funds shall be furnished byAdministrator to Seller and any tax owing thereon shall be the obligation of Seller, except if theinterest earned is disbursed to cover Remediation Costs, in which case it will be furnished to Buyerand any tax owing thereon shall be the obligation of the Buyer.

IN WITNESS WHEREOF, the Parties have executed this Agreement effective on the latest dateexecuted below:

BY SELLER [insert fu ll corporate name ]:

BY ITS DULY AUTHORIZED REPRESENTATIVE:SIGNATURE:___________________________________PRINTED NAME:_______________________________TITLE:________________________________________DATE:________________________________________

EXHIBIT A



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BY BUYER [insert fu ll corporate name ]:

BY ITS DULY AUTHORIZED REPRESENTATIVE:SIGNATURE:___________________________________PRINTED NAME:_______________________________

TITLE:________________________________________DATE:________________________________________

BY ADMINISTRATOR [insert fu ll corporate name ]

BY ITS DULY AUTHORIZED REPRESENTATIVE:SIGNATURE:___________________________________PRINTED NAME:_______________________________TITLE:________________________________________DATE:________________________________________

EXHIBIT A



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Escrow Agreement Attachment One

Description of Property and Equipment/Improvements

(Same as Exhibits A & B of Conditional Asset Purchase Agreement)

EXHIBIT A



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7

Escrow Agreement Attachment Two

Investment Guidelines

These guidelines cover the investment of funds held in the Escrow Account.

The classes of obligations listed below refer to conventional, interest bearing or discountedsecurities and/or deposits. Investments in derivatives, structured securities (excluding asset- backed commercial paper) or structured deposits, including but not limited to inverse-floating ratenotes, range notes, indexed notes, yield curve notes, equity-linked notes, commodity-linked notes,currency-linked notes, collateralized thrift and mortgage obligations, mortgage-backed interestonly/principal only notes or any derivative notes of any kind, are prohibited regardless of whethersuch investments meet the credit criteria set forth below.

Approved Investments list

Maximum Term

1. U.S. Government - Direct Obligations 12 months(e.g. US Treasury bills)

2. Bank Time Deposits (TD), Commercial Paper (CP) 3 monthsAnd Other Corporate Obligations

- Investments in obligations unconditionally and irrevocably guaranteed by aqualified institution are to be treated as obligations of the guaranteeing institution.The obligor or guarantor, if applicable, must have minimum book equity of $1 billion.- The obligor or guarantor's long term unsecured debt must be rated AA- or higher by S&P and Fitch, or Aa3 by Moody's

3. Institutional Investment Funds Redemption OnDemand

General -- All funds must have a(n):- Long-term credit rating of "Aaa" or "AAA" by Moody's or S&P,respectively.- Minimum daily net asset value of $1 billion- Derivatives guideline consistent with Rule 2a-7 of the 1940 Act- Investment portfolio with a weighted average maturity of 120 days or less.

EXHIBIT A



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Escrow Agreement Attachment Three

Escrow Administrators’ Fees

EXHIBIT A



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EXHIBIT D


ENVIRONMENTAL DUE DILIGENCE, SCOPE OF WORK

AND ESTIMATED TIME LINE

1. Complete activities related to Phase I Environmental Site Assessment including All Appropriate Inquiries in accordance with ASTM 1527-13.

a. Obtain and review records from reasonably ascertainable sources that will helpidentify recognized environmental conditions in connection with the Land.

b. Conduct visual and physical observations of the Land and all Equipment Assets for purposes of identifying recognized environmental conditions in connection with theLand.

c.

Conduct interviews with past and present owners and occupants to identifyrecognized environmental conditions in connection with the Land.

d.

Conduct interviews with State and Local Governments to identify recognizedenvironmental conditions in connection with the Land.

Activity Start – Third party reports and interviews are scheduled to start promptly upon startof Due Diligence period. Physical survey of the Land are scheduled to start withinapproximately 2 days of notice of start of Due Diligence period.

Estimated Activity Completion – Activities under this first task are scheduled to be completedwithin approximately 10 days of the start of the Due Diligence period.

2. Complete activities related to Phase II Environmental Site Assessment includingsubsurface investigation and testing in accordance with ASTM 1903-11.

a. Advance soil borings to a depth of 20-feet below ground surface in 20 locationsapproximately identified on the attached Exhibit D-1. The locations of the soils borings could be modified based on the results of the Phase I Environmental SiteAssessment. Samples will be collected from the vadose zone on two (2) feetintervals and screened using photo-ionization detector (PID) equipment and from

the capillary fringe. The soil samples exhibiting the highest PID reading from eachsoil boring and the soil samples collected from the capillary fringe of each soil boring will be submitted to a laboratory for analyses of Total Metals including Nickel, Copper, Aluminum, and Thallium by EPA Method 200.8; Benzene,Toluene, Ethyl-Benzene, and Xylenes and Poly-Aromatic Hydrocarbons by EPAMethod 8260; Total Petroleum Hydrocarbons by Texas Method 1005; Poly-chlorinated Biphenyls by EPA Method 608; Flouride by EPA Method 300; Cyanide by Method SM 4500; and analyses for normally occurring radioactive materials

EXHIBIT A



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using industry-recognized and agency approved test methods. A total of 40 soilssamples will be collected for analyses.

b. Collect groundwater samples from all existing monitoring wells (MW-1 throughMW-25) as identified on the attached Exhibit D-2. All existing monitor wells will

be purged using a pump prior to groundwater sample collection. Groundwatersamples (25) will be submitted to a laboratory for analyses of Total DissolvedSolids by Method SM2540C; Total Metals including Nickel, Copper, Aluminum,and Thallium by EPA Method 200.8; Benzene, Toluene, Ethyl-Benzene, andXylenes and Poly-Aromatic Hydrocarbons by EPA Method 8260; Total PetroleumHydrocarbons by Texas Method 1005; Poly-chlorinated Biphenyls by EPA Method608; Flouride by EPA Method 300; Cyanide by Method SM 4500; and analyses fornormally occurring radioactive materials using industry recognized and agencyapproved test methods.

c. Four (4) 2-inch groundwater monitoring wells will be installed to a total depth of

approximately 30-feet below ground surface in the approximate locations identifiedin Exhibit D-1. The locations of the new groundwater monitoring wells could bemodified based on the results of the Phase I Environmental Site Assessment. Duringinstallation, soil samples will be collected from the vadose zone on two (2) feetintervals and screened using photo-ionization detector (PID) equipment, from thecapillary fringe, and from the total depth of each monitoring well location. The soilsamples exhibiting the highest PID reading from each monitoring well location, thesoil samples collected from the capillary fringe of each monitoring well location,and the soil sample collected from the total depth of each monitoring well locationwill be submitted to a laboratory for analyses of Total Metals including Nickel,Copper, Aluminum, and Thallium by EPA Method 200.8; Benzene, Toluene,Ethyl-Benzene, and Xylenes and Poly-Aromatic Hydrocarbons by EPA Method8260; Total Petroleum Hydrocarbons by Texas Method 1005; Poly-chlorinatedBiphenyls by EPA Method 608; Flouride by EPA Method 300; Cyanide by MethodSM 4500; and analyses for normally occurring radioactive materials using industry-recognized and agency approved test methods. A total of 12 soils samples will becollected for analyses. The four monitoring wells will be completed with PVCcasing with slotted screen from five feet above the capillary fringe to 30-feet belowground surface and a concrete surface completion. Following installation, the newmonitor wells will be developed and purged using a pump. Groundwater sampleswill then be collected from the new monitoring wells and groundwater samples (4)will be submitted to a laboratory for analyses of Total Dissolved Solids by MethodSM2540C; Total Metals including Nickel, Copper, Aluminum, and Thallium byEPA Method 200.8; Benzene, Toluene, Ethyl-Benzene, and Xylenes and Poly-Aromatic Hydrocarbons by EPA Method 8260; Total Petroleum Hydrocarbons byTexas Method 1005; Poly-chlorinated Biphenyls by EPA Method 608; Flouride byEPA Method 300; Cyanide by Method SM 4500; and analyses for normallyoccurring radioactive materials using industry recognized and agency approved testmethods.

EXHIBIT A



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Activity Start – Well development and sampling of existing monitor wells are scheduled to be started within approximately 10 days of notice of the start of the Due Diligence period.Advancement of soil borings and installation of four new groundwater monitoring wells onthe Land are scheduled to be started within approximately 15 days of notice of the start ofDue Diligence period.

Estimated Activity Completion – Activities under this second task are scheduled to becompleted within approximately 25 days of the start of the Due Diligence period.

3. Upon receipt of final laboratory reports, a final report summarizing data collectedduring Phase I and Phase II activities will be prepared.

Activity Start – Upon completion of fieldwork identified under task 1 and 2 and receipt of finallaboratory data, a report summarizing the results will be started within approximately 30 daysafter the notice of the start of Due Diligence period.

Estimated Activity Completion – Activities under this task are scheduled to be completedwithin approximately 60 days of the start of the Due Diligence period.

4. Conduct thorough review and analysis of summary report and develop detailedremediation scope, schedule, and estimated costs.

Activity Start – Upon completion of the final report, analysis and evaluation of all the datawill be used to develop the remediation scope for the Land and is scheduled to start withinapproximately 60 days after the notice of the start of Due Diligence period.

Estimated Activity Completion – Activities under this task are scheduled to be completedwithin approximately 90 days of the start of the Due Diligence period.

EXHIBIT A



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EXHIBIT D-1


EXHIBIT A



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SB1

SB2

SB3

SB4

SB5

SB6

SB7

SB8

SB9

SB10

SB11

SB12

SB13

SB14 SB15 SB16

SB17

SB18

SB19

SB20

MWA

MWB

MWC

SB4

MWA

Soil Boring Location

Monitoring Well Loc

Soil Borings = 20+ 3 monitoring wells2 Samples per boring (highest PID + Capillary Interface) 46 total samples:Total Metals + Ni, Tl, Cu, AlBTEXPAHTPHPCBFluorideCyanideNORM

Groundwater Samples = 25 existing MW + 3 new MW 28 total samples:Same analyses as soil samples + TDS

ampling and Analysis Plan

Total Analysis Cost: $43,724Soil: $23,644Groundwater: $20080

Legend

xhibit D1

EXHIB



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EXHIBIT D-2


EXHIBIT A



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Exhibit D-2

Case 16-20012 Document 556-1 Filed in TXSB on 04/18/16


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EXHIBIT E


CONSENT TO EVALUATE, INVESTIGATE AND SURVEY PERMIT

THIS CONSENT TO EVALUATE, INVESTIGATE AND SURVEY PERMIT (THE“AGREEMENT”) IS MADE THIS _______ DAY OF APRIL 2016 (THE “EFFECTIVE DATE”)BY AND BETWEEN THE PORT OF CORPUS CHRISTI AUTHORITY OF NUECESCOUNTY, TEXAS, A POLITICAL SUBDIVISION OF THE STATE OF TEXAS, WITHOFFICES AT 222 POWER STREET, CORPUS CHRISTI, TEXAS 78401 (THE“AUTHORITY”) AND SHERWIN ALUMINA COMPANY, LLC, A DELAWARE

LIMITED LIABILITY COMPANY, HAVING AN ADDRESS AT 4633 HIGHWAY 361,GREGORY, TX 78359 (“SHERWIN”).

The Authority has requested the consent of Sherwin to enter upon the lands of Sherwin as

depicted on the attached Exhibit E-1 (the “Land”) located in San Patricio County, Texas for the purpose of inspecting and performing other necessary evaluation including the collection of soilsamples, collection of groundwater samples from existing groundwater monitoring wells, theinstallation and sampling of groundwater monitoring wells and other necessary studies or activitiesto be conducted in connection with the Authority’s proposed environmental due diligenceinvestigation on the Land.

Sherwin is willing to grant such consent under the following terms and conditions:

a. The Authority agrees to indemnify, protect, and hold Sherwin harmless from andagainst any liability, damage, cost or reasonable expenses incurred by Sherwin in

connection with the Authority’s activities on the Land.

b. The consent granted pursuant to this agreement is subject to pipeline and utilityrights of way and other encumbrances, whether of record or not, and shall not beconstrued as any promise or offer of Sherwin to grant the Authority an easement,Lease or any other rights to use the Land for any purpose other than expressly provided for herein.

c. The Authority shall adhere to all applicable State and Federal rules and regulationsin carrying out the activities permitted hereunder.

d. Upon the completion of survey and sampling activities, the Authority shall restorethe surface of any areas disturbed by the Authority to the same condition, as nearlyas practicable, to the condition existing prior to the Authority’s entry upon the Land.

e. The Authority shall furnish Sherwin with complete copies of all reports, including but not necessarily limited to, any surveys, wetland delineations, analytical results,

EXHIBIT A



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laboratory results or other such reports generated in connection with the activities permitted under this Agreement.

f. In the event the Authority fails to commence the activities permittedhereunder within 30 days of the effective date of this agreement, the consent

granted herein shall expire and the rights granted hereby shall be of no furtherforce and effect.

g. The Authority shall contact Sherwin’s designated contact at ___________ prior toentry upon the Land and shall comply with any request or demand by Sherwin orits security personnel to vacate the Land for safety reasons and the Authority shall promptly notify Sherwin’s designated contact provided herein of such event.

Sherwin contact name: __________________ Phone:Authority contact name: ____ ______ Phone:

So agreed and acknowledged this _____ day of April 2016.

GRANTOR GRANTEE

Sherwin Alumina Company, LLC Port of Corpus Christi Authority

By: By:

(Title) (Title)

EXHIBIT A



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Exhibit E-1

EXHIB



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April 18, 2016

KIRKLAND & ELLIS LLP601 Lexington Avenue New York, New York 10022Attn: Joshua A. Sussberg, P.C.

KIRKLAND & ELLIS LLP300 North LaSalleChicago, Illinois 60654Attn: Gregory F. Pesce

HURON CONSULTING SERVICES LLC2000 Auburn Drive, Suite 200Beachwood, Ohio 44122Attn: Mr. Geoffrey Frankel

ANDREWS KURTH LLP600 Travis Street, Suite 4200Houston, Texas 77002Attn: Robin Russell

CURTIS, MALLET-PREVOST, COLT &MOSLE LLP101 Park Avenue New York, New York 100178-0061Attn: Steven J. Reisman & Shaya Rochester

Re: Qualified Bid(s) for Purchase of Sherwin Alumina Real Property & Equipment

Dear Sirs / Madams:

The Port of Corpus Christi Authority ("PCCA") is pleased to submit two Qualified Bids (“Bids”),

for all assets located in the Sherwin Alumina ("Sherwin" or the "Company") marine port operations(“Port Area”) located in Gregory, Texas. These Assets include the uplands and submerged lands(“Lands”), the docks and piers, bauxite storage shed, marine building, and other improvements("Improvements"), the cargo handling equipment ("Equipment"), as outlined in Exhibits A andExhibit B hereto, and which are collectively referred to as the “Port Assets” or “Assets” as definedin Exhibits A1 – A4 and Exhibit B of the attached Asset Purchase Agreements (“Agreements”).Either of the bids (but not both) may be considered binding by Sherwin and/or the United StatesBankruptcy Court for the Southern District of Texas Corpus Christi Division (the "Court") on theterms and conditions specified in the Agreements for the acquisition of 100% of the Sherwin PortAssets, including the Land, the Improvements, and the material handling Equipment (collectivelythe "Transaction").

With approximately $435 million in assets and over 100 million tons per year of goods movingthrough its facilities, PCCA is a regional economic engine for South Texas. The PCCA core valuesare to facilitate maritime commerce through development and stewardship of port assets. Thus theSherwin Port Area is a natural fit for the PCCA portfolio.

While neither of the PCCA bids are predicated on the facility’s continued operations, the PCCAviews its Bid as a “white knight” option based not only on its fair price offer, but PCCA’s further

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commitment to remedy certain environmental conditions at the facility, to invest significantadditional capital in the Port Area, and to work with the Company (or Alternate Operator), shouldexisting operations continue, to formulate an operating lease structure which accounts for currentmarket conditions in an effort to support the long-term viability of the Non-Port Assets andoperations.

Bid Offer & Consideration

The PCCA and its Agents conducted a fairly intensive review of the materials the Company madeavailable in the “data room”, as well as conducted site visits and inspections of the land,improvements, and equipment. However, as requested access to the Port Area to conduct requisitesoil and ground water sampling was not granted to PCCA or its Agents, nor were relevantenvironmental conditional reports or documentation more recent than 2001 provided, PCCA istherefore offering two separate but Qualified Bids.

The first Bid (“Conditional Bid) offers an all cash purchase price of Twenty-Million Dollars(US$20,000,000) payable in cash at the conditional closing of the Transaction. The closingconditions are outlined in Section 3 of the Conditional Asset Purchase Agreement, and includeamong other conditions an environmental remediation escrow amount not to exceed Three-MillionThree-Hundred Thousand Dollars (US$3,300,000), subject to the terms and conditions of theEnvironmental Escrow Agreement in Exhibit C. The Company will allow PCCA to conductfurther environmental due diligence for a period not to exceed 90 days from Bid acceptance.

The second Bid (“Unconditional Bid”) is unconditional to the extent described in Section 3 of theUnconditional Asset Purchase Agreement, and offers an all cash purchase price of Twelve-Million

Nine-Hundred Thousand Dollars (US$12,900,000) payable in cash at the closing of theTransaction.

Also, in both the Conditional and Unconditional Bids, the PCCA is prepared to make an additionalThirteen-Million Dollars (US$13,000,000) in Capital, Deferred Maintenance, and EnvironmentalImprovements in the Port Area if the Company (or Alternate Operator) continues to operate thenon-Port Assets in the production of alumina, as per Section 2.4 of the Agreement.

The Transaction assumes Company obtains all requisite approvals by the Court, and all relevantState and Federal Regulatory Agencies prior to or upon Closing.

Good Faith Deposit and FundingPer the bidding procedures, PCCA has made a Good Faith Deposit of Two-Million Dollars(US$2,000,000) with the Debtor’s claims and noticing agent KCC c/o Bank of America, in theaccount of Computershare Inc. AFF Sherwin Sale Funding Account (Fed/SWIFT confirmation0418I1B7032R010426). Upon acceptance of PCCA Bid and all closing requirements, PCCA willdeliver the remaining cash balance from its internal cash resources. The Bids are not subject to anyfinancing contingency or lender approval requirements.

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Necessary Approvals

The Bids and attached Asset Purchase Agreements are subject to PCCA Commission approval,

scheduled for vote on Tuesday, April 19th, 2016. At that time, PCCA Staff shall also seekauthorization and approvals to participate in the Asset Auction scheduled (if necessary) scheduled

for April 20th at 11:00 a.m. Eastern Time in the offices of Kirkland & Ellis, located at 601

Lexington Avenue, New York, New York 10022. Notification of PCCA Commission approval or

rejection will be sent in writing by 5 p.m. Eastern Time, on Tuesday, April 19th, 2016.

Conditions to Closing

Conditions to Closing shall, in addition to those outlined in each Agreement, also include aneasement in perpetuity granted to PCCA for unrestricted access to the Port Area via the La QuintaRoad as outlined in the attached Exhibit A-4 of the Agreement.

Contact Information

If there are any questions regarding our proposal, please do not hesitate to contact directly:

Port of Corpus Christi Authority222 Power StreetCorpus Christi, Texas, U.S.A.Attn: Sean C. Strawbridge,Chief Operating OfficerOffice: 361-885-6133 | Cell: 361-730-8174Email: [email protected]

Counsel: Port of Corpus Christi Authority800 Shoreline Blvd, Suite 300NCorpus Christi, Texas, 78401Attn: Jimmy WelderOffice: 361-561-8002Email: [email protected]

Conclusion

These binding Bids reflect certain Terms and Conditions upon which the PCCA is prepared to pursue in the acquisition of a 100% interest in the Port Assets of the Company as well as makesignificant capital improvements in the dock structures and the environmental conditions of thePort Area. PCCA believes these Bids may serve as an opportunity for the Company (or Alternate),its Creditors, Employees, and Regulators to be satisfied with the credibility of PCCA as an ownerof the Port Area and associated Port Assets.

Based on the conditions described in the Agreement(s) and the mutual interest in a successfulclosing, we intend to make every effort to advance the proposed Transaction in a timely andexpeditious manner.

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Cordially,PORT OF CORPUS CHRISTI AUTHORITY

John P. LaRueExecutive Director

cc: POCCA CommissionSean Strawbridge – Chief Operating Officer, POCCAJarl Pedersen – Chief Commercial Officer, POCCAJimmy Welder – General Counsel, Welder Leshin LLPDarrin Aldrich – Director of Real Estate, POCCA

Debra Baker – Baker Wotring, LLPJohn Muir – Baker Wotring, LLPLynn Butler – Husch Blackwell, LLP

Attachments: Conditional Asset Purchase AgreementUnconditional Asset Purchase AgreementExhibit A-1 – Overview of Port AreaExhibit A-2 – Tract A Plat MapExhibit A-3 – Metes & Bounds DescriptionsExhibit A-4 – Overview of Requisite Access / Egress EasementExhibit B – Description of Equipment / Improvements

Exhibit C – Environmental Escrow AgreementExhibit D – Environmental Due Diligence, Scope of Workand Estimated Time Line

Exhibit D-1 – Due Diligence Sampling and Analysis PlanExhibit D-2 – Monitor Well and Sample Location MapExhibit E -- Consent to Evaluate, Investigate and Survey Permit

JPL/scs

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2

1.2 “Sale Order ” means an order of the Bankruptcy Court approving: (a) the execution,delivery and performance by Seller of this Agreement, and (b) the sale of theAcquired Assets to Buyer hereunder.

2. Payment and Other Consideration. The consideration for the sale, transfer andassignment of the Acquired Assets by Seller to Buyer is Buyer’s payment of cash to Sellerin the amount of Twelve Million Nine Hundred Thousand Dollars ($12,900,000) (the“Purchase Price”). The Purchase Price shall be paid by Buyer to Seller as follows:

2.1 Not later than 4:00 P.M. CST on April 18, 2016, Buyer shall deliver by wire transferof immediately available funds a down payment in the amount of Two MillionDollars ($2,000,000) of the Purchase Price (the “Earnest Money”) to an account oraccounts designated by Seller in accordance with Section V1(n) of the BiddingProcedures (as defined in the Recitals of this Agreement). At the Closing the EarnestMoney will be credited to the Purchase Price as provided in Section XIV of theBidding Procedures. Except as provided in Sections 3.7, if Buyer is the SuccessfulBidder (as defined in the Bidding Procedures) and the conditions set forth in Sections

3.8 and 3.9 are met and Buyer fails to close the purchase through no fault of Seller,then the Earnest Money shall be forfeited to, and retained irrevocably by, Seller.Except as provided in Section 3.7, if Buyer is not the Successful Bidder, the EarnestMoney shall be returned to Buyer (with any interest earned on the Earnest Money)within ten (10) business days after consummation of any Sale (as defined in theBidding Procedures) or upon permanent withdrawal of the proposed Sale.

2.2

At the Closing, Buyer shall deliver to Seller by wire transfer of immediatelyavailable funds the balance of the Purchase Price, calculated as the Purchase Priceminus the Good Faith Deposit (the “Closing Cash Payment”).

2.3

Should Seller (or Alternate Operator of the Non-Port Assets) continue operations ofthe Non-Port Assets, Buyer agrees that, upon reaching mutually agreeable LeaseTerms and Conditions with Seller or Alternate Operator, it will make a minimum ofThirteen-Million Dollars ($13,000,000) in Capital, Deferred Maintenance, andEnvironmental improvements to the Buyer’s Acquired Assets.

3. Closing; Termination. The closing of the transactions described herein contemplated bythis Agreement (the “Closing”) shall take place as follows.

3.1 The Closing shall take place by electronic exchange of documents as soon as possible after the Sale Order is issued by the Bankruptcy Court, and the provisions

in Section 3.8 are satisfied, but in no event later than five (5) business days aftersuch order is issued or the date on which Seller notifies Buyer of such order, if later.

3.2 At the Closing, Buyer shall pay by wire transfer the Closing Cash Payment anaccount designated by the Seller at least 48 hours prior to the Closing.

3.3 At the Closing, the Parties shall execute and deliver such instruments as arenecessary to effect the transfer of the Acquired Assets to Buyer.

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3

3.4 If the Sale Order has not been entered within thirty (30) days following the datehereof, either Party may terminate this Agreement upon written notice to the otherParty, and upon such termination, neither Party shall have any obligation or liabilityto the other Party (except pursuant to any confidentiality agreement between theParties).

3.5

In the event that Buyer has not consummated the Closing within the time framecontemplated by Section 3.1, from and after the expiration of such time frame, Sellermay terminate this Agreement upon written notice to Buyer; provided that suchtermination will not relieve Buyer of any liability for breach of this Agreement infailing to so consummate.

3.6 This Agreement may be terminated by Seller, upon written notice to Buyer, if it orits governing body determines, in consultation with outside legal counsel, that proceedi

port bid on sherwin alumina land

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