Case Document 463 Filed in TXSB on 03/22/16 Page 1 of 5

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1 Case Document 463 Filed in TXSB on 03/22/16 Page 1 of 5 IN THE UNITD STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISON IN RE: Chapter 11 SHERWIN ALUMINA COMPANY, LLC, et al. Case No Debtors Jointly Administered David R. Jones RESPONSE AND OF OBJECTION OF CATERPILLAR FINANCIAL SERVICES CORPORATION TO THE DEBTORS' NOTICE TO CONTRACT PARTIES TO POTENTIALLY ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED LEASES (doc 458) TO THE HONORABLE DAVID R. JONES CHIEF UNITED STATES BANKRUPTCY JUDGE: Comes now Caterpillar Financial Services Corporation ("Caterpillar Financial") and files this Response and Objection to the Debtor's Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases (doc 458, the "Notice") and respectfully represents: Background Facts 1. On March 16, 2016, the Court entered in this case an Order (A) Approving Bidding Procedures, (B) Approving Contract Assignment Procedures, (C) Approving Bid Protections, (D) Scheduling Bid Deadlines and an Auction and (E) Approving the Form and Manner of Notice Thereof (doc 433, the Order ). This Notice concerns the sale of substantially all of the Debtors assets pursuant to the Debtors proposed Disclosure Statement and Joint Plan of Reorganization (doc 74). Pursuant to the terms of the Notice, Caterpillar Financial objects to the Debtors omission of Caterpillar Financial s unexpired Lease of twenty-five units of leased Response and Objection of Caterpillar Financial Services Corporation to Debtors Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases Page 1

2 Case Document 463 Filed in TXSB on 03/22/16 Page 2 of 5 Caterpillar equipment from the Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases (doc 458), on the following grounds: Caterpillar Financial is the Holder of an Unexpired Lease Of Twenty-five Units of Caterpillar Equipment 2. Caterpillar Financial holds an unexpired lease of twenty-five units of Caterpillar Equipment described as follows (the "Caterpillar Equipment"): 2014 Caterpillar 924K WHEEL LOADER S/N PWR Caterpillar 938K WHEEL LOADER S/N SWL Caterpillar 416FST BACKHOE LOADER S/N KSF Caterpillar 301.4C HYDRAULIC EXCAVATOR S/N LJK Caterpillar 272D SKID STEER LOADER S/N B5W Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 924K WHEEL LOADER S/N PWR Caterpillar 924K WHEEL LOADER S/N PWR Caterpillar 924K WHEEL LOADER S/N PWR Caterpillar 301.4C HYDRAULIC EXCAVATOR S/N LJK Caterpillar 272D SKID STEER LOADER S/N B5W Caterpillar 272D SKID STEER LOADER S/N B5W Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 980K WHEEL LOADER S/N W7K Caterpillar 980K WHEEL LOADER S/N W7K Caterpillar 312EL HYDRAULIC EXCAVATOR S/N MJD Caterpillar 312EL HYDRAULIC EXCAVATOR S/N MJD Caterpillar 312EL HYDRAULIC EXCAVATOR S/N MJD Caterpillar 324EL HYDRAULIC EXCAVATOR S/N PNW Caterpillar 226B3 SKID STEER LOADER S/N MWD Caterpillar 226B3 SKID STEER LOADER S/N MWD On or about December 30, 2013, Caterpillar Financial as Lessor and Sherwin Alumnina Company, LLC as Lessee made and signed a written Lease of the Caterpillar Equipment for a term of 60 months beginning on January 1, 2014 for the agreed monthly rent of $48, per month payable on the last day of each month for the term of the Lease (the "Lease"), a true copy of which is attached hereto, incorporated herein by reference, and marked Response and Objection of Caterpillar Financial Services Corporation to Debtors Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases Page 2

3 Case Document 463 Filed in TXSB on 03/22/16 Page 3 of 5 Caterpillar Exhibit 2. Caterpillar Financial's rights in the Caterpillar Equipment were perfected by filing of UCC-1 Financing Statements with the Secretary of State of Delaware, true copies of which are attached hereto, incorporated herein by reference, and marked Caterpillar Exhibit The Lease is a true lease governed by Article 2A of the Uniform Commercial Code and is not a disguised security agreement. 5. Caterpillar Financial filed its proof of claim in this case in the amount of $2,352, as a holder of an unexpired Lease of the Caterpillar Equipment, claim number 132. No objection has been filed to Caterpillar Financial's proof of claim. 6. The Debtor failed to include Caterpillar Financial or the Lease in the Notice, and failed to state the cure amount. 7. The Debtor paid rent called for by the Lease to Caterpillar Financial through December 31, 2015, and there are no pre-petition arrears. 8. The Debtor did not pay rent called for by the Lease to Caterpillar Financial due on the last day of the month of January 2016 and each month thereafter. As of the assumption date, April 15, 2016, post-petition unpaid rent due to Caterpillar Financial will be: $144, January 31, 2016 $48, February 28, 2016 $48, March 31, 2016 $48, Total Cure Amount $144, The amount required to cure arrears as of April 15, 2016 will be the sum of The Debtor Has Not Provided for Either Assumption of Caterpillar Financial s Lease or Payment of the Cure Amount 10. The Debtor failed to include Caterpillar Financial s unexpired Lease of the Caterpillar Equipment in the Notice, and failed to state the cure amount. Response and Objection of Caterpillar Financial Services Corporation to Debtors Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases Page 3

4 Case Document 463 Filed in TXSB on 03/22/16 Page 4 of 5 Relief Requested 11. Caterpillar Financial objects to any sale or transfer of the Caterpillar Equipment to a buyer of the Debtor's assets unless: The Debtor and/or the buyer assumes the Lease and pays to Caterpillar Financial as the cure amount the accrued rent for lease of the Caterpillar Equipment for the months of January 2016 until the date of assumption. Respectfully submitted, ROSS, BANKS, MAY, CRON & CAVIN, P.C. By: John Mayer Southern District of Texas Number Texas Bar Number San Felipe, Suite 550 Houston, Texas Phone Fax jmayer@rossbanks.com Attorneys for Caterpillar Financial Services Corporation CERTIFICATE OF SERVICE I certify that I served true copies of this document upon all persons who have entered an appearance in this case electronically by means of the Court's CM/ECF system, and also to the following persons and parties by fax and by to the following fax numbers and addresses: Kirkland & Ellis LLP Fax Number Attn: Joshhua A. Sussberg Joshua.sussberg@kirkland.com 601 Lexington Avenue New York, New York Attorneys for Debtors Kirkland & Ellis LLP Fax Number Attn: Gregory F. Pesce gregory.pesce@kirkland.com Attn: James H. M. Sprayregen james.sprayregan@kirkland.com 300 North LaSalle Response and Objection of Caterpillar Financial Services Corporation to Debtors Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases Page 4

5 Case Document 463 Filed in TXSB on 03/22/16 Page 5 of 5 Chicago, Illinois Attorneys for Debtors Zack A. Clement Zack A. Clement PLLC 3753 Drummond Houston, Texas Attorney for Debtors zack.clement@icloud.com Curtis, Mallet-Prevost, Colt & Mosle LLP Fax Number Attn: Steven J. Reisman sreisman@curtis.com 101 Park Avenue New York, New York Attorneys for Prepetition Secured Credit Facility Andrews Kurth LLP Fax Number , Attn: Ashley Gargour ashleygargour@andrewskurty.com Attn: Timothy S. McConn timmcconn@andrewskurth.com Attn: Robin Russell rrussell@andrewskurth.com 600 Travis, Suite 4200 Houston, TX Attorneys for the Official Creditors Committee Jordan Hyden Womble Culbreth & Fax Number Holzer PC Attn: Nathaniel Peter Holzer pholzer@jhwclaw.com Attn: Shelby A. Jordan sjordan@jhwclaw.com 500 N Shoreline Dr., Suite 900 Corpus Christi, TX Attorneys for Glencore, Ltd. and Commodity Funding, LLC United States Trustee Region 7 Fax Number Attn: Stephen Douglas Statham stephen.statham@usdoj.gov 606 North Carancahua Street, Suite 1107 Corpus Christi, Texas Attorney for the U.S. Trustee This service was completed on March 22, John Mayer Response and Objection of Caterpillar Financial Services Corporation to Debtors Notice to Contract Parties to Potentially Assumed Executory Contracts and Unexpired Leases Page 5

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