Pg 1 of 7 Craig A. Wolfe Jason R. Alderson SHEPPARD MULLIN RICHTER & HAMPTON, LLP 30 Rockefeller Plaza New York, NY 10112 Tel: (212) 653-8700 Fax: (212) 653-8701 Counsel for Official Committee of Unsecured Creditors of Toisa Limited, et al. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: TOISA LIMITED, et. al., Debtors. 1 Chapter 11 Case No. 17-10184 (SCC) Jointly Administered TWELFTH AMENDED STIPULATION AND AGREED ORDER EXTENDING CHALLENGE PERIOD FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS UNDER INFORMAL COMMITTEE CASH COLLATERAL ORDER This twelfth amended stipulation (the Stipulation ) is made as of August 7, 2018, by and among the Official Committee of Unsecured Creditors (the Committee ) of Toisa Limited and certain of its affiliates in the above-captioned chapter 11 cases, as debtors and debtors in possession (collectively, the Debtors ), and the Informal Committee of Secured Lenders 2 (the Informal Committee, and together with the Committee, the Parties ) under that certain Final 1 The Debtors in these chapter 11 cases, are as follows: Edgewater Offshore Shipping, Ltd.; Toisa Horizon, Inc.; Toisa Limited; Trade And Transport Inc.; Trade Industrial Development Corporation; Trade Prosperity, Inc.; Trade Quest, Inc.; Trade Resource, Inc.; Trade Sky, Inc.; Trade Spirit, Inc.; Trade Unity, Inc.; Trade Vision, Inc.; Trade Will, Inc.; United Ambassador, Inc.; United Banner, Inc.; United Courage, Inc.; United Dynamic, Inc.; United Emblem, Inc.; United Honor, Inc.; United Ideal, Inc.; United Journey, Inc.; United Kalavryta, Inc.; United Leadership, Inc.; United Seas, Inc. 2 The members of the Informal Committee are: BNP Paribas S.A., Citibank Europe, plc UK Branch, Citibank International plc, Citibank N.A. London Branch. Commerzbank AG, Commonwealth Bank of Australia, Credit Agricole Corporate and Investment Bank, Danish Ship Finance A/S, DNB (UK) Limited, DVB Bank America N.V., Export-Import Bank of China, HSH Nordbank AG, ING Bank N.V., London Branch, National Bank of Greece S.A., Royal Bank of Scotland plc, and Unicredit Bank AG. SMRH:227871299.2 -- 1 --
Pg 2 of 7 Order, Upon Consent of the Debtors and the Informal Committee of Secured Lenders (I) Authorizing the Debtors Limited Use of Cash Collateral, (II) Granting Adequate Protection, (III) Modifying the Automatic Stay, and (IV) Granting Related Relief [Dkt. No. 246] (the Final Cash Collateral Order ). 3 RECITALS 4 WHEREAS, on January 29, 2017, the Debtors each filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the Court ); WHEREAS, on April 28, 2017, the Debtors filed a Motion for Entry of Interim and Final Orders, Upon Consent of the Debtors and the Informal Committee of Secured Lenders (I) Authorizing the Debtors Limited Use of Cash Collateral, (II) Granting Adequate Protection to Secured Parties, (III) Modifying the Automatic Stay, (IV) Scheduling a Final Hearing, and (V) Granting Related Relief [Dkt. No. 126] (the Motion ); WHEREAS, on May 18, 2017, the United States Trustee for the Southern District of New York (the U.S. Trustee ) appointed a two-member Committee [Dkt. No. 161], and on August 8, 2017, the U.S. Trustee amended the composition of the Committee by adding a third member [Dkt. No. 272]; WHEREAS, on July 18, 2017, the Bankruptcy Court entered the Final Cash Collateral Order approving the Motion on a final basis; 5 3 The Informal Committee enters into this Stipulation only on behalf of the members of the Informal Committee identified as Secured Lenders in their capacity as lenders under the facilities listed on Exhibit 1 to the Final Cash Collateral Order. For the avoidance of doubt, the members of the Informal Committee that are not identified on Exhibit 1 to the Final Cash Collateral Order are not bound by the terms of this Stipulation. 4 Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Final Cash Collateral Order. 5 The Court entered an order granting the Motion on (i) an interim basis on May 4, 2017 [Dkt. No. 137] and (ii) a second interim basis on May 22, 2017 [Dkt. No. 173]. SMRH:227871299.2 -- 2 --
Pg 3 of 7 WHEREAS, paragraph 10 of the Final Cash Collateral Order provides that the Stipulations and Releases contained in Paragraphs C and D therein shall be binding on all parties in interest, including the Committee, unless, in pertinent part: (emphasis added). (a) the Committee or any other party in interest with requisite standing (subject in all respects to any agreement or applicable law which may limit or affect such entity s right or ability to do so) has properly filed an adversary proceeding or contested matter on or before August 22, 2017 (or such later date as has been (i) agreed to, in writing, by the applicable Secured Parties, in their sole discretion, or (ii) ordered by the Court for cause shown) challenging or otherwise objecting to any of the Stipulations and Releases, including the amount, validity, enforceability, perfection or priority of the Prepetition Obligations, the Prepetition Facility Documents, or the Prepetition Liens in respect thereof, or otherwise asserting any claims or causes of action against the Secured Parties (the Investigation Period ). WHEREAS, on August 22, 2017, the Court entered that certain Stipulation and Agreed Order Extending the Challenge Period for the Official Committee of Unsecured Creditors Under Informal Cash Collateral Order [Dkt. No. 289], which extended the Committee s Investigation Period from August 22, 2017 through and including September 30, 2017; WHEREAS, the Court has entered a series of additional so-ordered stipulations between the Informal Committee and the Committee that have collectively extended the Investigation Period through and including August 7, 2018; 6 WHEREAS, the Parties have narrowed the scope of potential issues subject to the Investigation Period, and the Committee has determined solely as to the Vessels and the 6 Dkt. Nos. 334, 364, 396, 432, 454, 472, 488, 549, 563, 629 and 687. SMRH:227871299.2 -- 3 --
Pg 4 of 7 Newbuild Assigned Property 7 that it does not dispute the validity, enforceability, perfection or priority of the respective Secured Parties mortgages on such Vessels and assignment and security interests in the Newbuild Assigned Property; and WHEREAS, the Parties have agreed to a further extension of the Committee s Investigation Period on the terms and conditions set forth herein (such extension, the Extension ). NOW, THEREFORE, it is stipulated and agreed by and between the Parties as follows: 1. The Parties hereby agree that the Investigation Period, solely as it applies to the Committee, shall be extended through and including September 20, 2018 solely with respect to the terms and conditions set forth in Paragraph 2 hereof. The Investigation Period, as it applies to all other parties in interest, expired on August 22, 2017 as set forth in the Final Cash Collateral Order. 2. The Committee acknowledges and agrees that solely with respect to the security interests and liens asserted by the respective Secured Parties on the Vessels and the Newbuild Assigned Property that serve as collateral under the relevant Prepetition Facility, such liens constitute legal, valid, binding, properly perfected and enforceable first priority liens on and security interests in such Vessels and Newbuild Assigned Property that are not subject to avoidance or subordination pursuant to the Bankruptcy Code or applicable non-bankruptcy law, and as a result such liens (including, for the avoidance of doubt, the validity, enforceability, perfection, and priority of such liens) shall no longer be subject to (i) the Investigation Period 7 Newbuild Assigned Property shall mean the Assigned Property as defined in the six separate First Pre- Delivery Security Assignments dated June 17, 2016 relating to Hull No. CIS114K-01, CIS114K-02, CIS114K-03, CIS158K-01, CIS158K-02 and CIS158K-03 respectively, entered into in connection with and that serves as collateral under the Facilities Agreement dated June 14, 2016 between Toisa Limited as Borrower and Citibank, N.A., London Branch and The Export-Import Bank of China as Mandated Lead Arrangers and Lenders for a loan facility up to $215,740,000 related to the construction of six newbuild tankers. SMRH:227871299.2 -- 4 --
Pg 5 of 7 and (ii) any adversary proceeding or contested matter filed by the Committee in connection with such Investigation Period (collectively, the Valid Liens ). Notwithstanding the preceding sentence, (a) the validity, enforceability, perfection or priority of security interests in and liens on any other property of the Debtors including, without limitation, cash collateral, as alleged by the Secured Parties in the Final Cash Collateral Order, and (b) claims or causes of action otherwise subject to the releases in Paragraph D of the Final Cash Collateral Order that are unrelated to the Valid Liens, shall in each case of (a) and (b) remain subject to the Investigation Period and any potential adversary proceeding or contested matter that may be initiated by the Committee thereunder. Further, nothing in this Stipulation shall be deemed to be a waiver of (i) potential claims or causes of action held by the Debtors (if any) arising from the conduct of the Secured Parties after the commencement of these Chapter 11 Cases, and (ii) any rights held by the respective Secured Parties to oppose or defend against the same. 3. This Stipulation is without prejudice to the Committee s ability to request a further extension of the Investigation Period pursuant to and in accordance with the terms of paragraph 10 of the Final Cash Collateral Order and this Stipulation. The Informal Committee and each of the Secured Parties reserve all rights to oppose any requests by the Committee for a further extension of the Investigation Period. 4. Nothing in this Stipulation amends or modifies any other provision of the Final Cash Collateral Order or the rights of the Parties thereunder except as specifically provided herein. 5. This Stipulation may not be modified other than by a signed writing executed by the Parties hereto. SMRH:227871299.2 -- 5 --
Pg 6 of 7 6. The undersigned Parties further represent and warrant that (a) they are properly and fully empowered to enter into and execute this Stipulation, (b) they know of no contractual commitment or legal limitation of, impediment to, or prohibition against their entry into this Stipulation, and (c) the Stipulation is legal, valid and binding upon the Parties. 7. This Stipulation may be signed in counterpart originals as if signed in one original document. 8. Any controversies or disputes arising from, relating to, or concerning this Stipulation shall be heard by the Court. The Court shall retain jurisdiction over the Parties with respect to this Stipulation including, but not limited to, for the purposes of interpreting, implementing and enforcing its terms. IN WITNESS WHEREOF, each of the Parties has voluntarily and with knowledge of its rights executed this Stipulation by its duly authorized representative. DATED: August 7, 2018 SHEPPARD MULLIN RICHTER & HAMPTON LLP CADWALADER, WICKERSHAM & TAFT LLP /s/ Craig A. Wolfe Craig A. Wolfe Jason Alderson 30 Rockefeller Plaza New York, New York 10112 Tel: (212) 653-8700 E-mail: cwolfe@sheppardmullin.com jalderson@sheppardmullin.com Counsel for Official Committee of Unsecured Creditors of Toisa Limited, et al /s/ Michele Maman Gregory M. Petrick Michele Maman Andrew Greenberg 200 Liberty Street New York, NY 10281 Tel: (212) 504-6000 Email: gregory.petrick@cwt.com michele.maman@cwt.com andrew.greenberg@cwt.com Counsel to the Informal Committee of Secured Lenders SMRH:227871299.2 -- 6 --
Pg 7 of 7 IT IS SO ORDERED New York, New York Date: August 8, 2018 /S/ Shelley C. Chapman Hon. Shelley C. Chapman United States Bankruptcy Judge SMRH:227871299.2 -- 7 --