scc Doc 1170 Filed 04/04/19 Entered 04/04/19 14:38:37 Main Document Pg 1 of 41

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1 Pg 1 of 41 TOGUT, SEGAL & SEGAL LLP One Penn Plaza Suite 3335 New York, New York (212) Frank A. Oswald Brian F. Moore Counsel to the Debtors UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re: : Chapter 11 : TOISA LIMITED, et al., : Case No (SCC) : Debtors. 1 : (Jointly Administered) : x CERTIFICATE OF NO OBJECTION TO NOTICE OF: (I) SELECTION OF SUCCESSFUL BID AND PROPOSED SALE OF TOISA VOYAGER; (II) FILING OF DECLARATION OF JONATHAN MILNE FAWTHROP IN SUPPORT OF THE SALE; (III) FILING OF DECLARATION OF JONATHAN MITCHELL IN SUPPORT OF THE SALE; AND (IV) FILING OF PROPOSED SALE ORDER TO THE HONORABLE SHELLEY C. CHAPMAN, UNITED STATES BANKRUPTCY JUDGE: The undersigned counsel respectfully states: 1. On March 26, 2019, Toisa Limited and certain of its affiliates, the above-captioned debtors (collectively, the Debtors ), by their undersigned counsel, filed and served the Notice of: (I) Selection of Successful Bid and Proposed Sale of Toisa Voyager; (II) Filing of Declaration of Jonathan Milne Fawthrop in Support of the Sale; (III) 1 The Debtors are as follows: Trade Prosperity, Inc.; Toisa Limited; United Courage, Inc.; Trade Vision, Inc.; United Journey, Inc.; United Kalavryta, Inc.; Trade Sky, Inc.; Trade Industrial Development Corporation; United Honor, Inc.; Trade Will, Inc.; United Leadership Inc.; United Seas, Inc.; United Dynamic, Inc.; United Emblem, Inc.; United Ideal Inc.; Trade Unity, Inc.; Trade Quest, Inc.; Trade Spirit, Inc.; Trade Resource, Inc.; United Ambassador, Inc.; Edgewater Offshore Shipping, Ltd.; United Banner, Inc.; Toisa Horizon, Inc.; and Trade and Transport Inc. Final decrees have been entered in each of these chapter 11 cases except Toisa Limited [Docket No. 1158], which case remains open for implementing the Plan and for which Post-Effective Toisa (as defined in the Plan) is the post-confirmation Debtor.

2 Pg 2 of 41 Filing of Declaration of Jonathan Mitchell in Support of the Sale; and (IV) Filing of Proposed Sale Order [Docket No. 1143] (the Sale Notice ) The Sale Notice provided that responses, if any, as it relates to Court consideration and approval of the Sale Notice, were to be filed and served so as to be actually received no later than April 2, 2019 at 4:00 p.m. (prevailing Eastern Time). 3. The undersigned counsel hereby certifies that, as of the date hereof, no objection to the Sale Notice has been received. The undersigned counsel further certifies that he has reviewed the docket in this case and no answer, objection, or other response to the Sale Notice appears thereon. 4. In accordance with Rule of the Local Bankruptcy Rules for the Southern District of New York, this certificate is being filed at least forty-eight (48) hours after expiration of the deadline for parties to file and serve any answer, objection, or response to the Sale Notice. [Concluded on Following Page] 2 Capitalized terms used but not defined herein shall have the meaning ascribed to such term in the Sale Notice. 2

3 Pg 3 of Due to the foregoing, it is respectfully requested that the Court enter the proposed order approving the Sale Notice, a copy of which is attached hereto as Exhibit A, at its earliest convenience. A blackline showing the proposed changes is attached hereto as Exhibit B. Dated: April 4, 2019 New York, New York TOGUT, SEGAL & SEGAL LLP Counsel to the Debtors By: /s/ Brian F. Moore FRANK A. OSWALD BRIAN F. MOORE One Penn Plaza, Suite 3335 New York, New York (212)

4 Pg 4 of 41 EXHIBIT A PROPOSED ORDER

5 Pg 5 of 41 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re: : Chapter 11 : TOISA LIMITED, et al., : Case No (SCC) : Debtors. 1 : (Jointly Administered) : x ORDER AUTHORIZING AND APPROVING SALE OF TOISA VOYAGER FREE AND CLEAR OF LIENS, CLAIMS, AND ENCUMBRANCES IN ACCORDANCE WITH THE SALE PROCEDURES ORDER Upon the Notice of: (I) Selection of Successful Bid and Proposed Sale of Toisa Voyager; (II) Filing of Declaration of Jonathan Milne Fawthrop in Support of the Sale; (III) Filing of Declaration of Jonathan Mitchell in Support of the Sale; and (IV) Filing of Proposed Sale Order providing notice of the Order Authorizing and Approving the Sale of Toisa Voyager Free and Clear of Liens, Claims, and Encumbrances in Accordance with the Sale Procedures Order (the Sale Notice ) and the adjoining Declaration of Jonathan Milne Fawthrop attached to the Sale Notice as Exhibit B (the Fawthrop Declaration ) 2 and the Declaration of Jonathan Mitchell attached to the Sale Notice as Exhibit C (the Mitchell Declaration and, together with the Fawthrop Declaration, the 1 The Debtors in these chapter 11 cases are as follows: Trade Prosperity, Inc.; Toisa Limited; United Courage, Inc.; Trade Vision, Inc.; United Journey, Inc.; United Kalavryta, Inc.; Trade Sky, Inc.; Trade Industrial Development Corporation; United Honor, Inc.; Trade Will, Inc.; United Leadership Inc.; United Seas, Inc.; United Dynamic, Inc.; United Emblem, Inc.; United Ideal Inc.; Trade Unity, Inc.; Trade Quest, Inc.; Trade Spirit, Inc.; Trade Resource, Inc.; United Ambassador, Inc.; Edgewater Offshore Shipping, Ltd.; United Banner, Inc.; Toisa Horizon, Inc.; and Trade and Transport Inc. (collectively, the Debtors ). Final decrees have been entered in each of these chapter 11 cases except Toisa Limited [Docket No. 1158], which case remains open for implementing the Third Amended Joint Plan of Liquidation for Toisa Limited and Certain of its Affiliates Pursuant to Chapter 11 of the Bankruptcy Code, dated March 12, 2019 [Docket No. 1111] (the Plan ) and for which Post-Effective Toisa (as defined in the Plan) is the post-confirmation Debtor. 2 Capitalized terms not otherwise defined herein have the meanings ascribed to them in the applicable Declaration.

6 Pg 6 of 41 Declarations ) in support of entry of an order (this Order ) authorizing the sale (the Sale ) of Toisa Voyager (the Vessel ) to Louis Dreyfus Armateurs SAS or its designee (the Buyer ), pursuant to this Court s Order Approving (A) Procedures Regarding the Solicitation of Offers in Connection with the Sale of Certain of the Debtors Offshore Vessels, Subject to Bankruptcy Court Approval, (B) the Form of Notices Regarding the Sales and (C) the Form of Purchase and Sale Agreement [Docket No. 671] (the Offshore Sale Procedures Order ); and sufficient notice of the Sale having been provided to all parties with an interest in the Vessel in accordance with the Offshore Sale Procedures Order; and the Court having reviewed and considered the Declarations and the purchase and sale agreement attached to this Order as Exhibit 1 (the Purchase Agreement ); and it appearing that the Sale is in the best interests of the Debtors, their estates, their creditors, their stakeholders, and other parties in interest; and after due deliberation thereon; and sufficient cause appearing therefor; IT IS HEREBY FOUND AND DETERMINED THAT: A. This Court has jurisdiction over the Sale pursuant to 28 U.S.C. 157 and This is a core proceeding under 28 U.S.C. 157(b). Venue of these cases and the Sale in this district is proper under 28 U.S.C and B. The legal predicates for the relief sought in the Sale Notice and the Declarations are sections 105(a), 363(b), 363(f), 363(m), and 541(a) of title 11 of the United States Code (the Bankruptcy Code ), Rules 2002, 6004, and 9006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Rule of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), and the Amended Guidelines for the Conduct of Asset Sales for the United States Bankruptcy Court for the Southern District of New York (the Sale Guidelines ). C. This Order constitutes a final order within the meaning of 28 U.S.C. 2

7 Pg 7 of (a). Notwithstanding Bankruptcy Rules 6004(h), 6006(d), and 7062, and to the extent necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, this Court expressly finds that there is no just reason for delay in the implementation of this Order and expressly directs entry of this Order as set forth herein. D. As evidenced by the Fawthrop Declaration (i) proper, timely, adequate, and sufficient notice of the Sale has been provided in accordance with the Offshore Sale Procedures Order to each party entitled to such notice, including but not limited to all persons and entities known to have asserted a lien, claim, encumbrance, or other interest (collectively, Liens ) on the Vessel, (ii) such notice was good, sufficient, and appropriate under the particular circumstances, (iii) such notice provided a fair and reasonable opportunity to object or be heard with respect to the Sale to all parties entitled to notice, and (iv) no other or further notice of the Sale is or shall be required. E. All interested persons and entities have been afforded a reasonable opportunity to object and to be heard with respect to the Sale. F. The Debtors have articulated good and sufficient reasons for this Court to grant the relief requested. The disclosures made by the Debtors in the Declarations and in the motion for entry of the Offshore Sale Procedures Order and at the hearing to consider entry of the Offshore Sale Procedures Order were good, complete and adequate. G. The Debtors have demonstrated both (a) good, sufficient, and sound business purposes and justifications for approving the Purchase Agreement and (b) compelling circumstances for the Sale outside the ordinary course of business, pursuant to section 363(b) of the Bankruptcy Code outside of a chapter 11 plan, in that, among other things, the immediate consummation of the Sale to the Buyer is necessary 3

8 Pg 8 of 41 and appropriate to maximize the value of the Debtors estates, and the Sale will provide the means for the Debtors to maximize distributions to creditors. H. The Debtors have shown that the Sale of the Vessel to the Buyer is a reasonable exercise of the Debtors business judgment and is in the best interests of the Debtors estates, their creditors, their stakeholders, and other parties in interest. Sound business reasons exist for the Sale. I. As set forth in the Declarations, the Debtors and their advisors marketed the Vessel to secure the highest and best offer. J. The Buyer is a good faith purchaser for value and, as such, is entitled to all of the protections afforded under section 363(m) of the Bankruptcy Code and has otherwise acted in good faith in connection with the Sale. Specifically, (i) the Buyer is not an insider of the Debtors, as that term is defined in the Bankruptcy Code; (ii) the Sale was negotiated at arm s-length and in good faith; (iii) the Buyer did not in any way induce or cause the filing of the Chapter 11 Cases; (iv) the consideration provided to the Debtors pursuant to the Sale is fair and reasonable; (v) the Sale is not the result of fraud or collusion; (vi) the Sale constitutes the highest or best offer made for the Vessel; and (vii) the Buyer is not a successor to the Debtors. Neither the Debtors nor the Buyer has engaged in any conduct that would cause or permit the Sale to be avoided or result in the imposition of any costs or damages under section 363(n) of the Bankruptcy Code. The Debtors and the Buyer were represented by their own respective counsel and other advisors during such arms length negotiations in connection with the Purchase Agreement and the Sale. K. No party has objected to the Sale or the Purchase Agreement on the grounds of fraud or collusion. 4

9 Pg 9 of 41 L. The terms and conditions of the Purchase Agreement are fair and reasonable. The consideration provided by the Buyer for the Vessel pursuant to the Purchase Agreement (i) was negotiated at arm s length and is adequate, fair and reasonable, (ii) is the highest or best offer for the Vessel, (iii) will provide a greater recovery for the Debtors creditors than would be provided by any other practical available alternative, and (iv) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and applicable non-bankruptcy law. M. Toisa Limited is the sole and lawful owner of the Vessel. The transfer of the Vessel by the Debtors to the Buyer will be a legal, valid, and effective transfer of the Vessel, and will vest the Buyer with all right, title, and interest of the Debtors in and to the Vessel free and clear of all Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement, with the same force, validity, priority, and effect as they currently exist. After the closing of the Sale under the Purchase Agreement, the Buyer and the Vessel shall have no liability for any claims or Liens asserted against or liabilities of (i) the Debtors or their estates and (ii) the Vessel for any act arising prior to the Buyer taking ownership of the Vessel, except as may be provided for herein. N. The conditions of section 363(f) of the Bankruptcy Code have been satisfied. Therefore, the Debtors may sell the Vessel free and clear of any Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement with the same force, validity, priority, and effect as they currently exist. 5

10 Pg 10 of 41 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: 1. The relief sought by the Debtors in the portion of their motion for entry of the Offshore Sale Procedures Order approving the Sale of the Vessel is hereby granted as set forth herein. All objections to entry of this Order that have not been withdrawn, waived, or settled by announcement to the Court during any hearing or stipulation filed with the Court, including, without limitation, any and all reservations of rights included in such objections or otherwise, are hereby denied and overruled on the merits with prejudice. Entities with an interest in the Vessel and related assets being sold pursuant to the Purchase Agreement that did not object or withdrew their objections to the entry of this Order are deemed to have consented to the Sale pursuant to section 363(f)(2) of the Bankruptcy Code. 2. This Order shall be binding in all respects upon all creditors of and holders of equity interests in the Debtors (whether known or unknown), post-effective date Toisa, agents, trustees and collateral trustees, holders of Liens on the Vessel, or any portion thereof, all counterparties to contracts with the Debtors (whether or not assigned), and all successors and assigns of the Debtors and shall not be subject to rejection or unwinding. Nothing in the chapter 11 plan confirmed in these bankruptcy cases, the order confirming the chapter 11 plan, or otherwise shall conflict with or derogate from the provisions of the Purchase Agreement or this Order. 3. The findings of fact set forth above and conclusions of law set forth herein constitute this Court s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this case pursuant to Bankruptcy Rule To the extent any finding of fact later shall be determined to be a conclusion of law, it shall be so deemed, and to the extent any conclusion of law later shall be determined to be a finding of fact, it shall be so deemed. 6

11 Pg 11 of Except as otherwise provided herein, all parties are enjoined from taking any action against (i) the Buyer and its affiliates, or any agent of the foregoing, or (ii) the Vessel, in each case to recover any Lien or claim which such person or entity has against the Debtors, their estates, or the Vessel for any act arising prior to the Buyer taking ownership of the Vessel. 5. Pursuant to sections 363(b) and 363(f) of the Bankruptcy Code, the Debtors are authorized, empowered, and directed to take any and all actions necessary or appropriate to transfer the Vessel to the Buyer pursuant to the terms and conditions set forth in the Purchase Agreement. The Sale, including all of the terms and conditions and transactions contemplated by the Purchase Agreement and all other ancillary documents, is hereby approved, and the Debtors are authorized and directed to take all actions necessary to consummate the Sale and to perform under the Purchase Agreement; provided, however, that if there is any conflict between the terms of the Purchase Agreement and this Order, this Order shall govern. 6. Upon sale and transfer of the Vessel, all of the Debtors right, title, and interest in the Vessel shall be immediately vested in the Buyer pursuant to sections 105(a), 363(b), and 363(f) of the Bankruptcy Code free and clear of any and all Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement, with the same force, validity, priority, and effect as they currently exist. Such Sale shall constitute a legal, valid, binding, and effective transfer of such Vessel and shall vest the Buyer with good and marketable title to the Vessel. 7. The Debtors are authorized and directed to execute and deliver, and empowered to perform under, consummate, and implement the Purchase Agreement, together with all additional instruments and documents that may be 7

12 Pg 12 of 41 reasonably necessary, convenient, or desirable to implement the Purchase Agreement and consummate the Sale pursuant thereto and effectuate the provisions of this Order and the transactions approved hereby, and to take all other actions as may be necessary for the purpose of assigning, transferring, granting, conveying, and conferring to the Buyer, the Vessel, as may be necessary or appropriate to the performance of the obligations as contemplated by the Purchase Agreement and this Order. 8. The Buyer is a good faith buyer within the meaning of section 363(m) of the Bankruptcy Code and, as such, is entitled to the full protections of section 363(m) of the Bankruptcy Code. The Sale was undertaken by the Buyer without collusion and in good faith, as that term is used in section 363(m) of the Bankruptcy Code and the Buyer is entitled to the full protections under section 363(m) of the Bankruptcy Code. Accordingly, the reversal or modification on appeal of the authorization provided herein to consummate the Sale shall not affect the validity of the Sale, unless such authorization and consummation of the Sale is duly and properly stayed pending such appeal. 9. The cash proceeds generated from the Sale of the Vessel shall be applied first to satisfy payment of the Broker Commission to Clarkson in the amount of $10,000. The remaining cash proceeds (including any cash deposit made by the Buyer) generated from the Sale (the Cash Proceeds ) shall be (i) deposited directly into the Debtors vessel account at Credit Agricole Corporate and Investment Bank ( Credit Agricole ), with account number xxxx7178/7275 (the Vessel Account ) and (ii) used solely in accordance with the Credit Agricole Final Cash Collateral Order [Docket No. 8

13 Pg 13 of 41 91]; provided, however, that notwithstanding the terms of the Credit Agricole Final Cash Collateral Order, Credit Agricole shall apply the Cash Proceeds and any other cash in the Vessel Account to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations (as defined in the Credit Agricole Final Cash Collateral Order) owed to Credit Agricole in accordance with a closing memorandum (the Closing Memorandum ) to be delivered by the Debtors to Credit Agricole as soon as reasonably practicable prior to the expected date of the closing of the Sale (the Closing Date ), but in no event later than five (5) business days prior to the expected Closing Date, and agreed between Credit Agricole and the Debtors (in consultation with the Informal Committee and the Creditors Committee) on or before the Closing Date. In the event that no such agreement regarding the Closing Memorandum is reached prior to the Closing Date, only the portion of the Cash Proceeds relating to disputed payments or reserves (the Disputed Amounts ) shall continue to be held in the Vessel Account in accordance with the Credit Agricole Final Cash Collateral Order, and upon the closing of the Sale the remainder of the Cash Proceeds and any other cash in the Vessel Account shall be applied by Credit Agricole to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations owed to Credit Agricole. If the Debtors and Credit Agricole are unable to resolve their dispute with respect to the payment of, or reserve for, the Disputed Amounts within fourteen (14) days from the Closing Date, the Debtors shall 9

14 Pg 14 of 41 file with this Court and serve upon Credit Agricole a motion, on at least ten (10) days prior written notice to Credit Agricole of any hearing on such motion, requesting authority to pay or reserve for such Disputed Amounts from the Cash Proceeds of the Sale, and no disbursements of the Disputed Amounts from the Vessel Account shall be made without further order of this Court. All of Credit Agricole s rights to object to any such motion are reserved. If the Debtors do not file a motion within fourteen (14) days from the Closing Date, the Disputed Amounts shall be applied by Credit Agricole to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations owed to Credit Agricole. The Debtors shall work in good faith with their advisors to timely prepare the Closing Memorandum prior to the closing of each Sale. 10. Except as otherwise set forth in this Order, nothing in the Notice, the Purchase Agreement, or the Declarations shall be deemed to constitute the postpetition assumption of any agreement under section 365 of the Bankruptcy Code. 11. Notwithstanding Bankruptcy Rules 6004(h), 6006(d), 7062, or 9014 or any other Bankruptcy Rule, Local Rule, or Rule 62(a) of the Federal Rules of Civil Procedure, this Order shall be immediately effective and enforceable upon its entry and there shall be no stay of execution of this Order. 10

15 Pg 15 of The Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated: New York, New York, 2019 HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE 11

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30 Pg 30 of 41 EXHIBIT B BLACKLINE OF PROPOSED ORDER 5

31 Pg 31 of 41 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x : In re: : Chapter 11 : TOISA LIMITED, et al., : Case No (SCC) : Debtors. 1 : (Jointly Administered) : x ORDER AUTHORIZING AND APPROVING SALE OF TOISA VOYAGER FREE AND CLEAR OF LIENS, CLAIMS, AND ENCUMBRANCES IN ACCORDANCE WITH THE SALE PROCEDURES ORDER Upon the Notice of: (I) Selection of Successful Bid and Proposed Sale of Toisa Voyager; (II) Filing of Declaration of Jonathan Milne Fawthrop in Support of the Sale; (III) Filing of Declaration of Jonathan Mitchell in Support of the Sale; and (IV) Filing of Proposed Sale Order providing notice of the Order Authorizing and Approving the Sale of Toisa Voyager Free and Clear of Liens, Claims, and Encumbrances in Accordance with the Sale Procedures Order (the Sale Notice ) and the adjoining Declaration of Jonathan Milne Fawthrop attached to the Sale Notice as Exhibit B (the Fawthrop Declaration ) 2 and the Declaration of Jonathan Mitchell attached to the Sale Notice as Exhibit C (the Mitchell Declaration and, together with the Fawthrop Declaration, the 1 The Debtors in these chapter 11 cases are as follows: Trade Prosperity, Inc.; Toisa Limited; United Courage, Inc.; Trade Vision, Inc.; United Journey, Inc.; United Kalavryta, Inc.; Trade Sky, Inc.; Trade Industrial Development Corporation; United Honor, Inc.; Trade Will, Inc.; United Leadership Inc.; United Seas, Inc.; United Dynamic, Inc.; United Emblem, Inc.; United Ideal Inc.; Trade Unity, Inc.; Trade Quest, Inc.; Trade Spirit, Inc.; Trade Resource, Inc.; United Ambassador, Inc.; Edgewater Offshore Shipping, Ltd.; United Banner, Inc.; Toisa Horizon, Inc.; and Trade and Transport Inc. (collectively, the Debtors ). Final decrees have been entered in each of these chapter 11 cases except Toisa Limited [Docket No. 1158], which case remains open for implementing the Third Amended Joint Plan of Liquidation for Toisa Limited and Certain of its Affiliates Pursuant to Chapter 11 of the Bankruptcy Code, dated March 12, 2019 [Docket No. 1111] (the Plan ) and for which Post-Effective Toisa (as defined in the Plan) is the post-confirmation Debtor. 2 Capitalized terms not otherwise defined herein have the meanings ascribed to them in the applicable Declaration.

32 Pg 32 of 41 Declarations ) in support of entry of an order (this Order ) authorizing the sale (the Sale ) of Toisa Voyager (the Vessel ) to Louis Dreyfus Armateurs SAS or its designee (the Buyer ), pursuant to this Court s Order Approving (A) Procedures Regarding the Solicitation of Offers in Connection with the Sale of Certain of the Debtors Offshore Vessels, Subject to Bankruptcy Court Approval, (B) the Form of Notices Regarding the Sales and (C) the Form of Purchase and Sale Agreement [Docket No. 671] (the Offshore Sale Procedures Order ); and sufficient notice of the Sale having been provided to all parties with an interest in the Vessel in accordance with the Offshore Sale Procedures Order; and the Court having reviewed and considered the Declarations and the purchase and sale agreement attached to this Order as Exhibit 1 (the Purchase Agreement ); and it appearing that the Sale is in the best interests of the Debtors, their estates, their creditors, their stakeholders, and other parties in interest; and after due deliberation thereon; and sufficient cause appearing therefor; IT IS HEREBY FOUND AND DETERMINED THAT: A. This Court has jurisdiction over the Sale pursuant to 28 U.S.C. 157 and This is a core proceeding under 28 U.S.C. 157(b). Venue of these cases and the Sale in this district is proper under 28 U.S.C and B. The legal predicates for the relief sought in the Sale Notice and the Declarations are sections 105(a), 363(b), 363(f), 363(m), and 541(a) of title 11 of the United States Code (the Bankruptcy Code ), Rules 2002, 6004, and 9006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), Rule of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), and the Amended Guidelines for the Conduct of Asset Sales for the United States Bankruptcy Court for the Southern District of New York (the Sale Guidelines ). C. This Order constitutes a final order within the meaning of 28 U.S.C. 2

33 Pg 33 of (a). Notwithstanding Bankruptcy Rules 6004(h), 6006(d), and 7062, and to the extent necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, this Court expressly finds that there is no just reason for delay in the implementation of this Order and expressly directs entry of this Order as set forth herein. D. As evidenced by the Fawthrop Declaration (i) proper, timely, adequate, and sufficient notice of the Sale has been provided in accordance with the Offshore Sale Procedures Order to each party entitled to such notice, including but not limited to all persons and entities known to have asserted a lien, claim, encumbrance, or other interest (collectively, Liens ) on the Vessel, (ii) such notice was good, sufficient, and appropriate under the particular circumstances, (iii) such notice provided a fair and reasonable opportunity to object or be heard with respect to the Sale to all parties entitled to notice, and (iv) no other or further notice of the Sale is or shall be required. E. All interested persons and entities have been afforded a reasonable opportunity to object and to be heard with respect to the Sale. F. The Debtors have articulated good and sufficient reasons for this Court to grant the relief requested. The disclosures made by the Debtors in the Declarations and in the motion for entry of the Offshore Sale Procedures Order and at the hearing to consider entry of the Offshore Sale Procedures Order were good, complete and adequate. G. The Debtors have demonstrated both (a) good, sufficient, and sound business purposes and justifications for approving the Purchase Agreement and (b) compelling circumstances for the Sale outside the ordinary course of business, pursuant to section 363(b) of the Bankruptcy Code outside of a chapter 11 plan, in that, among other things, the immediate consummation of the Sale to the Buyer is necessary 3

34 Pg 34 of 41 and appropriate to maximize the value of the Debtors estates, and the Sale will provide the means for the Debtors to maximize distributions to creditors. H. The Debtors have shown that the Sale of the Vessel to the Buyer is a reasonable exercise of the Debtors business judgment and is in the best interests of the Debtors estates, their creditors, their stakeholders, and other parties in interest. Sound business reasons exist for the Sale. I. As set forth in the Declarations, the Debtors and their advisors marketed the Vessel to secure the highest and best offer. J. The Buyer is a good faith purchaser for value and, as such, is entitled to all of the protections afforded under section 363(m) of the Bankruptcy Code and has otherwise acted in good faith in connection with the Sale. Specifically, (i) the Buyer is not an insider of the Debtors, as that term is defined in the Bankruptcy Code; (ii) the Sale was negotiated at arm s-length and in good faith; (iii) the Buyer did not in any way induce or cause the filing of the Chapter 11 Cases; (iv) the consideration provided to the Debtors pursuant to the Sale is fair and reasonable; (v) the Sale is not the result of fraud or collusion; (vi) the Sale constitutes the highest or best offer made for the Vessel; and (vii) the Buyer is not a successor to the Debtors. Neither the Debtors nor the Buyer has engaged in any conduct that would cause or permit the Sale to be avoided or result in the imposition of any costs or damages under section 363(n) of the Bankruptcy Code. The Debtors and the Buyer were represented by their own respective counsel and other advisors during such arms length negotiations in connection with the Purchase Agreement and the Sale. K. No party has objected to the Sale or the Purchase Agreement on the grounds of fraud or collusion. 4

35 Pg 35 of 41 L. The terms and conditions of the Purchase Agreement are fair and reasonable. The consideration provided by the Buyer for the Vessel pursuant to the Purchase Agreement (i) was negotiated at arm s length and is adequate, fair and reasonable, (ii) is the highest or best offer for the Vessel, (iii) will provide a greater recovery for the Debtors creditors than would be provided by any other practical available alternative, and (iv) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and applicable non-bankruptcy law. M. Toisa Limited is the sole and lawful owner of the Vessel. The transfer of the Vessel by the Debtors to the Buyer will be a legal, valid, and effective transfer of the Vessel, and will vest the Buyer with all right, title, and interest of the Debtors in and to the Vessel free and clear of all Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement, with the same force, validity, priority, and effect as they currently exist. After the closing of the Sale under the Purchase Agreement, the Buyer and the Vessel shall have no liability for any claims or Liens asserted against or liabilities of (i) the Debtors or their estates and (ii) the Vessel for any act arising prior to the Buyer taking ownership of the Vessel, except as may be provided for herein. N. The conditions of section 363(f) of the Bankruptcy Code have been satisfied. Therefore, the Debtors may sell the Vessel free and clear of any Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement with the same force, validity, priority, and effect as they currently exist. 5

36 Pg 36 of 41 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: 1. The relief sought by the Debtors in the portion of their motion for entry of the Offshore Sale Procedures Order approving the Sale of the Vessel is hereby granted as set forth herein. All objections to entry of this Order that have not been withdrawn, waived, or settled by announcement to the Court during any hearing or stipulation filed with the Court, including, without limitation, any and all reservations of rights included in such objections or otherwise, are hereby denied and overruled on the merits with prejudice. Entities with an interest in the Vessel and related assets being sold pursuant to the Purchase Agreement that did not object or withdrew their objections to the entry of this Order are deemed to have consented to the Sale pursuant to section 363(f)(2) of the Bankruptcy Code. 2. This Order shall be binding in all respects upon all creditors of and holders of equity interests in the Debtors (whether known or unknown), post-effective date Toisa, agents, trustees and collateral trustees, holders of Liens on the Vessel, or any portion thereof, all counterparties to contracts with the Debtors (whether or not assigned), and all successors and assigns of the Debtors and shall not be subject to rejection or unwinding. Nothing in the chapter 11 plan confirmed in these bankruptcy cases, the order confirming the chapter 11 plan, or otherwise shall conflict with or derogate from the provisions of the Purchase Agreement or this Order. 3. The findings of fact set forth above and conclusions of law set forth herein constitute this Court s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this case pursuant to Bankruptcy Rule To the extent any finding of fact later shall be determined to be a conclusion of law, it shall be so deemed, and to the extent any conclusion of law later shall be determined to be a finding of fact, it shall be so deemed. 6

37 Pg 37 of Except as otherwise provided herein, all parties are enjoined from taking any action against (i) the Buyer and its affiliates, or any agent of the foregoing, or (ii) the Vessel, in each case to recover any Lien or claim which such person or entity has against the Debtors, their estates, or the Vessel for any act arising prior to the Buyer taking ownership of the Vessel. 5. Pursuant to sections 363(b) and 363(f) of the Bankruptcy Code, the Debtors are authorized, empowered, and directed to take any and all actions necessary or appropriate to transfer the Vessel to the Buyer pursuant to the terms and conditions set forth in the Purchase Agreement. The Sale, including all of the terms and conditions and transactions contemplated by the Purchase Agreement and all other ancillary documents, is hereby approved, and the Debtors are authorized and directed to take all actions necessary to consummate the Sale and to perform under the Purchase Agreement; provided, however, that if there is any conflict between the terms of the Purchase Agreement and this Order, this Order shall govern. 6. Upon sale and transfer of the Vessel, all of the Debtors right, title, and interest in the Vessel shall be immediately vested in the Buyer pursuant to sections 105(a), 363(b), and 363(f) of the Bankruptcy Code free and clear of any and all Liens, and all Liens on or against the Vessel and related assets being sold shall attach to the consideration received by the Debtors under the Purchase Agreement, with the same force, validity, priority, and effect as they currently exist. Such Sale shall constitute a legal, valid, binding, and effective transfer of such Vessel and shall vest the Buyer with good and marketable title to the Vessel. 7. The Debtors are authorized and directed to execute and deliver, and empowered to perform under, consummate, and implement the Purchase Agreement, together with all additional instruments and documents that may be 7

38 Pg 38 of 41 reasonably necessary, convenient, or desirable to implement the Purchase Agreement and consummate the Sale pursuant thereto and effectuate the provisions of this Order and the transactions approved hereby, and to take all other actions as may be necessary for the purpose of assigning, transferring, granting, conveying, and conferring to the Buyer, the Vessel, as may be necessary or appropriate to the performance of the obligations as contemplated by the Purchase Agreement and this Order. 8. The Buyer is a good faith buyer within the meaning of section 363(m) of the Bankruptcy Code and, as such, is entitled to the full protections of section 363(m) of the Bankruptcy Code. The Sale was undertaken by the Buyer without collusion and in good faith, as that term is used in section 363(m) of the Bankruptcy Code and the Buyer is entitled to the full protections under section 363(m) of the Bankruptcy Code. Accordingly, the reversal or modification on appeal of the authorization provided herein to consummate the Sale shall not affect the validity of the Sale, unless such authorization and consummation of the Sale is duly and properly stayed pending such appeal. 9. The cash proceeds generated from the Sale of the Vessel shall be applied first to satisfy payment of the Broker Commission to Clarkson in the amount of $10,000. The remaining cash proceeds (including any cash deposit made by the Buyer) generated from the Sale (the Cash Proceeds ) shall be (i) deposited directly into the Debtors vessel account at Credit Agricole Corporate and Investment Bank ( Credit Agricole ), with account number xxxx7178/7275 (the Vessel Account ) and (ii) used solely in accordance with the Credit Agricole Final Cash Collateral Order [Docket No. 8

39 Pg 39 of 41 91]; provided, however, that notwithstanding the terms of the Credit Agricole Final Cash Collateral Order, Credit Agricole shall apply the Cash Proceeds and any other cash in the Vessel Account to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations (as defined in the Credit Agricole Final Cash Collateral Order) owed to Credit Agricole in accordance with a closing memorandum (the Closing Memorandum ) to be delivered by the Debtors to Credit Agricole as soon as reasonably practicable prior to the expected date of the closing of the Sale (the Closing Date ), but in no event later than five (5) business days prior to the expected Closing Date, and agreed between Credit Agricole and the Debtors (in consultation with the Informal Committee and the Creditors Committee) on or before the Closing Date. In the event that no such agreement regarding the Closing Memorandum is reached prior to the Closing Date, only the portion of the Cash Proceeds relating to disputed payments or reserves (the Disputed Amounts ) shall continue to be held in the Vessel Account in accordance with the Credit Agricole Final Cash Collateral Order, and upon the closing of the Sale the remainder of the Cash Proceeds and any other cash in the Vessel Account shall be applied by Credit Agricole to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations owed to Credit Agricole. If the Debtors and Credit Agricole are unable to resolve their dispute with respect to the payment of, or reserve for, the Disputed Amounts within fourteen (14) days from the Closing Date, the Debtors shall 9

40 Pg 40 of 41 file with this Court and serve upon Credit Agricole a motion, on at least ten (10) days prior written notice to Credit Agricole of any hearing on such motion, requesting authority to pay or reserve for such Disputed Amounts from the Cash Proceeds of the Sale, and no disbursements of the Disputed Amounts from the Vessel Account shall be made without further order of this Court. All of Credit Agricole s rights to object to any such motion are reserved. If the Debtors do not file a motion within fourteen (14) days from the Closing Date, the Disputed Amounts shall be applied by Credit Agricole to permanently reduce the outstanding principal amount of the Offshore Vessel Prepetition Obligations owed to Credit Agricole. The Debtors shall work in good faith with their advisors to timely prepare the Closing Memorandum prior to the closing of each Sale. 10. Except as otherwise set forth in this Order, nothing in the Notice, the Purchase Agreement, or the Declarations shall be deemed to constitute the postpetition assumption of any agreement under section 365 of the Bankruptcy Code. 11. Notwithstanding Bankruptcy Rules 6004(h), 6006(d), 7062, or 9014 or any other Bankruptcy Rule, Local Rule, or Rule 62(a) of the Federal Rules of Civil Procedure, this Order shall be immediately effective and enforceable upon its entry and there shall be no stay of execution of this Order. 10

41 Pg 41 of The Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation of this Order. Dated: New York, New York, 2019 HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE 11