scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 1 of 15

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1 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 1 of 15 TOGUT, SEGAL & SEGAL LLP One Penn Plaza Suite 3335 New York, New York (212) Albert Togut Frank A. Oswald Kyle J. Ortiz Brian F. Moore Counsel to the Debtors and Debtors in Possession Hearing Date: March 29, 2018 at 2:00 p.m. ET Objection Deadline: March 22, 2018 at 4:00 p.m. ET 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 DEBTORS APPLICATION FOR AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF H. CLARKSON & COMPANY AS BROKER FOR THE DEBTORS NUNC PRO TUNC TO FEBRUARY 26, 2018 TO THE HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE: Toisa Limited ( Toisa ), and certain of its affiliates, as debtors and debtors in possession in the above-captioned chapter 11 cases (collectively, the Debtors ), hereby submit this application (the Application ) for entry of an order, pursuant to sections 327(a) and 328(a) of title 11 of the United States Code, 11 U.S.C. 101 et seq. 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.

2 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 2 of 15 (the Bankruptcy Code ), Rule 2014(a) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule of the Local Bankruptcy Rules for the Southern District of New York (the Local Rules ), substantially in the form attached hereto as Exhibit A (the Proposed Order ) authorizing the retention and employment of H. Clarkson & Company Limited ( Clarkson ) as broker for the Debtors nunc pro tunc to February 26, In support of this Application, the Debtors rely upon the Declaration of Philip Harding, a Director of Clarkson, attached hereto as Exhibit B (the Harding Declaration ), which is incorporated herein by reference, and respectfully state: JURISDICTION 1. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and Venue is proper pursuant to 28 U.S.C and This matter is a core proceeding pursuant to 28 U.S.C. 157(b). The statutory predicates for the relief requested herein are sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rule 2014(a) and Local Rule BACKGROUND 2. The Debtors are a diversified shipping business hauling both wet goods with their fleet of tankers and dry goods with their fleet of bulkers. The Debtors also own a fleet of offshore oil support vessels that provide marine transportation, construction and support services to companies in the oil and gas industry that conduct offshore exploration, production, and subsea construction activities. The Debtors have also serviced the subsea fiber optic cable installation market. The Debtors current fleet consists of twenty-six (26) offshore oil service vessels, thirteen (13) tankers, and seven (7) bulkers. Currently, substantially all of the Debtors offshore fleet is laid up in drydock. 2

3 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 3 of On January 29, 2017 (the Petition Date ), the Debtors each commenced a case by filing a petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ). The Debtors chapter 11 cases (the Chapter 11 Cases ) have been consolidated for procedural purposes only and are being jointly administered. 4. The Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to Bankruptcy Code sections 1107 and On May 18, 2017, the United States Trustee for the Southern District of New York appointed the Official Committee of Unsecured Creditors (the Creditors Committee ). No trustee or examiner has been appointed in the Debtors Chapter 11 Cases. 6. An Informal Committee of Secured Lenders (the Informal Committee and each member of the Informal Committee, a Secured Lender ) was formed consisting of the following lenders: BNP Paribas S.A.; Citibank Europe plc UK Branch; 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. 7. Upon the request of the Debtors, the Creditors Committee and the Informal Committee, on September 29, 2017, the Bankruptcy Court entered an Order [Docket No. 318] (the Mediation Order ) scheduling mediation (the Mediation ) to take place in London, England on November 2 and 3, 2017 regarding the Debtors 3

4 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 4 of 15 restructuring plan. Pursuant to the Mediation Order, the Honorable James Peck (ret.) was appointed as mediator (the Mediator ). 8. At the formal Mediation sessions in London (the London Mediation Sessions ), an agreement was reached whereby the chapter 11 plan filed with the Court on August 15, 2017 and sponsored by the ultimate beneficial owner of each of the Debtors, Gregory Callimanopulos (the Shareholder ) would not be pursued and instead the Shareholder would, among other things, resign from the Debtors board and relinquish control over the Debtors. The parties agreed, among other things, to make certain governance changes, including appointing three new independent directors to replace the board of directors of Toisa, and appointing Jonathan Joff Mitchell of Zolfo Cooper Management, LLC ( ZC ) as Chief Restructuring Officer ( CRO ). 9. On December 31, 2017, the Debtors filed a motion seeking approval of a term sheet memorializing the agreements reached at the London Mediation Sessions [Docket No. 416] (the 9019 Motion ). An Order approving the 9019 Motion was entered on January 22, 2018 (the 9019 Order ). See Docket No On January 31, 2018, the Debtors filed a notice confirming that the corporate governance changes pursuant to the 9019 Order had been implemented. See Docket No On March 2, 2018, the Bankruptcy Court entered an Order expanding the scope of ZC s retention to authorize the Debtors to designate John Jason Keyes as the Debtors Chief Financial Officer ( CFO ). 12. In furtherance of the Debtors restructuring efforts, the Debtors, in consultation with the Informal Committee and the Creditors Committee, determined that the sale of their tankers and bulkers (collectively, the Vessels ), as well as the assignment of the contracts for the purchase of six (6) tankers currently under 4

5 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 5 of 15 construction (collectively, the Newbuild Contracts ) are in the best interests of their estates and provides the best chance for maximizing the value of the Vessels and Newbuild Contracts. The Debtors believe that there is substantial equity in some of the Vessels, which will be recovered for the benefit of creditors through a strategic and robust marketing and sale process aided by experienced and internationally known shipping broker, Clarkson. Accordingly, the Debtors filed this Motion seeking to retain Clarkson as their shipbroker to facilitate the Debtors efforts to market and sell the Vessels and assign the Newbuild Contracts, and to maximize the value obtained for same. FACTS SPECIFIC TO RELIEF REQUESTED I. The Debtors Selection of Clarkson as their Shipbroker 13. The Debtors obtained proposals from seven (7) experienced shipbrokers; all well known in the industry. In selecting Clarkson as their proposed broker, the Debtors considered each broker s: (i) estimated timing to sell the Vessels; (ii) recommended scope and procedures for marketing the Vessels; (iii) estimated valuation of the Debtors fleet; (iv) experience providing services in the context of a chapter 11 case; and (v) fee structure. Clarkson provided the Debtors with, in their business judgment, the best proposal including a highly favorable fee. Clarkson began working with the Debtors to, among other things, formulate a marketing and sale process, on February 26, II. Clarkson s Qualifications 14. Clarkson, which has been in the shipping business since 1852, is a leading provider of integrated shipping services, including the new-building, sale and purchase, chartering and financing of all types of vessels. Clarkson has experienced 5

6 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 6 of 15 brokers in 48 offices around the world and has long-standing shipping connections and contacts throughout the world s main shipping companies and shipyards. 15. In addition, Clarkson has experience providing shipbroking services in the chapter 11 context in this district, as well as others. Specifically, Clarkson was retained as a broker in the chapter 11 cases of: In re Primorsk International Shipping Limited, Case No (MG) (Bankr. S.D.N.Y.); In re TMT Procurement Corp., Case No (Bankr. S.D. Tex.). 16. Based on the foregoing, the Debtors believe that Clarkson is wellqualified and able to efficiently provide the requested brokerage services with respect to the Debtors Vessels and Newbuild Contracts. Moreover, the Debtors shared all of the proposals received with the Informal Committee (whose Secured Lenders hold first liens on and security interests in the Vessels and the vessels to be constructed pursuant to the Newbuild Contracts), which supports the Debtors selection of Clarkson. The Creditors Committee likewise supports the engagement of Clarkson. III. Services to be Provided 17. Pursuant to the terms of the proposed engagement letter, substantially in the form attached to the Harding Declaration as Exhibit 1 (the Engagement Letter ) 2 to be entered into between Clarkson and the Debtors following this Court s approval of Clarkson s retention, Clarkson shall render the following professional services, which include but are not limited to: i. identify potential purchasers of the Vessels and the Newbuild Contracts; ii. assist potential purchasers regarding inspections of the Vessels and their records and the ships being constructed pursuant to the Newbuild Contracts; 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Engagement Letter. 6

7 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 7 of 15 iii. assist in negotiating the terms and conditions of each PSA; iv. assist with the provision of documentation for delivery of the Vessels and the Newbuild Contracts and with regard to the closing of the sale of the Vessels and the Newbuild Contracts; v. provide expert testimony, both oral and via declaration, as requested by the Debtors from time to time, regarding the sale of the Vessels and the Newbuild Contracts, as well as prepare expert reports from time to time in connection with same; and vi. create a virtual data room with information for each Vessel and Newbuild Contract that is typically requested in shipping sale and purchase transactions. 18. Clarkson will provide the services described above on an exclusive basis until September 15, 2018 (or such longer period as may be required to complete the services, as requested by the Debtors) (the Period ). 19. Clarkson has begun to work with the Debtors to establish a data room (the Data Room ), which will contain information for each Vessel and Newbuild Contract to assist interested parties in formulating bids, including, among other things, descriptions of the Vessels, Vessel drawings, class survey status, schedule updates, last cargoes and other customary data. 3 Clarkson will grant prospective purchasers access to the Data Room upon, among other things, the prospective purchaser s delivery of a customary non-disclosure agreement regarding the information contained in the Data Room. Additionally, Clarkson has been tracking Vessel itineraries to ascertain the best locations for prospective purchasers to physically inspect each of the Vessels, and it will arrange for third party inspections for each Vessel so prospective purchasers who cannot perform their own inspection will have an independent report on which they can consult in making a bid. 3 Counsel for the Creditors Committee and the Secured Lenders will be provided access to the Data Room. 7

8 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 8 of Once Clarkson s retention is approved, it will begin to place solicitations for offers in appropriate periodicals and trade publications, such as Tradewinds and Lloyd s List. Additionally, Clarkson will transmit bidding information to its vast network of over 500 companies that Clarkson has identified as potentially having an interest in acquiring all or some of the Vessels and/or Newbuild Contracts. Clarkson will track all expressions of interest received and will provide regular updates to, and respond to requests for information by the Debtors, the Informal Committee, the Creditors Committee, and the lender for the owner of the applicable Vessel or Newbuild Contract. IV. Compensation 21. Subject to Bankruptcy Court approval, the Debtors have agreed to pay Clarkson a fee (the Fee ) upon the closing of the sale of each Vessel and assignment of each Newbuild Contract equal to one-half of a percent (0.5%) of the cash purchase price payable by the relevant buyer in accordance with the terms of the relevant PSA for each Vessel and Newbuild Contract; provided, however, that, in the case of a credit bid by an existing Secured Lender, Clarkson will not receive a Fee for such credit bid sale unless the applicable Secured Lender resells the applicable Vessel or Newbuild Contract within three (3) months of closing on its credit bid to a buyer that was (i) introduced by or referred to Clarkson on or before February 28, 2019 or (ii) participated in the sale process for which Clarkson is being engaged herein, in which case, Clarkson will be entitled to a Fee from the relevant credit bidder equal to one half of one percent (0.5%) of the applicable credit bid. 22. Additionally, Clarkson will be entitled to reimbursement by the Debtors for the cost of any advertisements and any other related costs to facilitate the marketing or sale of the Vessels and assignment of the Newbuild Contracts, as agreed 8

9 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 9 of 15 and approved by Toisa, pursuant to a budget to be provided by Clarkson, as well as all relevant travel, hotel and reasonable expenses of any person designated to provide expert testimony or other evidence regarding the performance of Clarkson s services or the implementation of any agreement for the sale of a Vessel or Newbuild Contract. All costs of any inspections of any Vessel or vessel subject to a Newbuild Contract shall be the responsibility of the potential purchaser that requests such inspection. Clarkson will not receive any additional compensation in exchange for providing expert testimony. It will, however, be reimbursed for its relevant expenses, as noted above. 23. As more fully described in the Harding Declaration, because of the commission-based structure of Clarkson s fee, and the nature of the services to be provided by Clarkson, the Debtors request that Clarkson be relieved of the obligation to maintain time records (which it does not maintain in the usual course of its business). Furthermore, the Debtors request that the Proposed Order provide that the Fee shall be paid, with notice to the Office of the United States Trustee for the Southern District of New York (the U.S. Trustee ), the Creditors Committee and each of the Debtors prepetition secured lenders, as an administrative expense without further order of the Bankruptcy Court, which parties will have ten (10) business days to object to payment of any Fee to Clarkson. 24. The Debtors believe that, based on the proposals received, the Fee is less than the commissions generally charged by shipbrokers of similar stature for comparable engagements. 25. The Debtors, with Clarkson s assistance and in consultation with the Informal Committee and the Creditors Committee, are crafting procedures for the sale of the Vessels and assignment of the Newbuild Contracts, which procedures will be 9

10 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 10 of 15 designed to maximize the value obtained expeditiously. The Debtors anticipate that they will file a motion to approve such sale procedures in the near term for consideration at the March 29, 2018 omnibus hearing. V. Disinterestedness 26. To the best of the Debtors knowledge, and as described in the Harding Declaration, Clarkson: (a) is a disinterested person within the meaning of section 101(14) of the Bankruptcy Code; (b) does not represent any person or entity having an interest adverse to the Debtors in connection with these Chapter 11 Cases; (c) does not hold or represent an interest adverse to the Debtors estates with respect to matters on which Clarkson is employed; and (d) has no connection to the Debtors, their creditors or any other party-in-interest, except as disclosed in the Harding Declaration. 27. Clarkson will promptly review its files against any updated list of Interested Parties (as defined in the Harding Declaration) received from the Debtors from time to time during the pendency of these Chapter 11 Cases pursuant to the procedures described in the Harding Declaration. To the extent any new relevant facts or relationships are discovered or arise in the course of such review, Clarkson will promptly make additional disclosure to the Bankruptcy Court as required by Bankruptcy Rule 2014(a). V. Indemnification Provisions 28. As a material part of the consideration for which Clarkson has agreed to provide the services described herein, the Debtors have agreed to the indemnification provisions in sections 10.1 and 10.2 of the Terms and Conditions attached to the Engagement Letter as Exhibit 1. All requests of Clarkson for payment of indemnity pursuant to the Engagement Letter will be made by means of an application (interim or final as the case may be) and served upon each Secured Lender and other 10

11 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 11 of 15 parties in interest; provided, however, that in no event shall Clarkson be indemnified from any liability, loss, costs, or claim that is found by the Bankruptcy Court to be the result of Broker s fraud or fraudulent misrepresentation, knowing or willful violation of law, willful misconduct, breach of fiduciary duty, self-dealing, bad faith or gross negligence. All parties rights to object to any request of Clarkson for payment of indemnity pursuant to the Engagement Letter shall be preserved. 29. Additionally, while the Engagement Letter does not limit Clarkson s liability for direct losses, Clarkson is not liable for indirect or consequential damages. 30. The Debtors and Clarkson submit that the indemnification provisions are customary and reasonable for professional engagements and reflect the qualifications and limitations on indemnification provisions that are customary in this district (including in these cases) and other jurisdictions. See, e.g., In re Pacific Drilling S.A., Case No (MEW) (Feb. 26, 2018); In re Toisa Limited, Case No (SCC) (Apr. 21, 2017); In re Chaparral Energy, Inc., Case No (Bankr. D. Del. June 10, 2016); In re SunEdison, Inc. Case No (SMB) (May 5, 2016); In re Primorsk International Shipping Limited, Case No (MG) (Bankr. S.D.N.Y. Apr. 20, 2016); In re Energy & Exp. Partners, Inc., Case No (Bankr. N.D. Tex. Feb. 8, 2016); In re Energy Future Holdings Corp., Case No (Bankr. D. Del. Sept. 16, 2014); In re FAH Liquidating Corp. (Fisker Automotive), Case No (Bankr. D. Del. March 31, 2014); In re Synagro Technologies, Inc., Case No (Bankr. D. Del. May 23, 2013); In re Ormet Corp., Case No (Bankr. D. Del. Apr. 18, 2013); In re Otelco Inc., Case No (Bankr. D. Del. Apr. 18, 2013); In re RDA Holding Co., Case No (Bankr. S.D.N.Y. Mar. 25, 2013); In re Sbarro, Inc., No (SCC) (Bankr. S.D.N.Y. May 5, 2011); In re Great Atlantic & Pacific Tea Co., No (RDD) 11

12 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 12 of 15 (Bankr. S.D.N.Y. Jan. 13, 2011); In re CIT Group Inc., Case No (Bankr. S.D.N.Y. Nov. 24, 2009); In re General Motors Corp., Case No (Bankr. S.D.N.Y. Oct. 28, 2009); In re Motors Liquidation Co. (f/k/a Gen. Motors Corp.), No (REG) (Bankr. S.D.N.Y. June 25, 2009); In re Lyondell Chem. Co., Case No (Bankr. S.D.N.Y. Feb. 25, 2009); In re Bally Total Fitness of Greater New York, Inc., No (BRL) (Bankr. S.D.N.Y. Jan. 28, 2009). 31. The terms and conditions of the Engagement Letter, including the indemnification provisions, were negotiated by the Debtors and Clarkson at arms length and in good faith. The Debtors respectfully submit that the indemnification provisions reflected in the Engagement Letter are customary and, viewed in conjunction with the other terms of Clarkson s proposed retention, are reasonable terms of consideration for shipbroking services such as those provided by Clarkson. RELIEF REQUESTED 32. By this Application, the Debtors request entry of an order authorizing the Debtors to retain and employ Clarkson as their broker in connection with these Chapter 11 Cases effective nunc pro tunc to February 26, BASIS FOR RELIEF 33. The Debtors seek to retain Clarkson as their broker pursuant to section 327(a) of the Bankruptcy Code, which provides that a debtor, subject to Bankruptcy Court approval: 11 U.S.C. 327(a). [M]ay employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the [debtor] in carrying out the [debtor] s duties under this title. 12

13 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 13 of 15 include: Fed. R. Bankr. P. 2014(a). 34. Bankruptcy Rule 2014(a) requires that an application for retention [S]pecific facts showing the necessity for the employment, the name of the [firm] to be employed, the reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation, and, to the best of the applicant s knowledge, all of the [firm s] connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee. 35. Based on the facts and for the reasons stated herein and in the Harding Declaration, the retention of Clarkson as broker for the Debtors pursuant to this Application is reasonable, necessary and appropriate, and satisfies the requirements of sections 327 and 328 of the Bankruptcy Code and Bankruptcy Rule 2014(a). The Debtors respectfully submit that the relief requested in this Application will facilitate the Debtors restructuring efforts through the efficient sale of the Vessels and assignment of the Newbuild Contracts, is in the best interests of the Debtors and their estates and stakeholders, and should be approved by the Bankruptcy Court. NUNC PRO TUNC RETENTION 36. The Debtors respectfully submit that Clarkson s retention effective nunc pro tunc to February 26, 2018 is warranted so that Clarkson may be compensated for its services performed prior to this Court s entry of an order authorizing Clarkson s retention and employment, such as in connection with formulating a marketing strategy, negotiating the terms of engagement and the like. Such relief is warranted by the circumstances presented by these Chapter 11 Cases and the services that Clarkson is to provide, particularly in light of the Debtors recent decision to employ Clarkson as 13

14 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 14 of 15 broker for the Debtors, and the prompt filing of this Application following the finalization of the engagement terms. NOTICE 37. Notice of this Motion and has been given to (a) the United States Trustee; (b) counsel for the Informal Committee; (c) the Debtors prepetition lenders; (d) counsel for the Creditors Committee; and (e) any other party entitled to notice pursuant to Local Bankruptcy Rule (b) and which has filed a notice of appearance in these Chapter 11 Cases. The Debtors submit that no other or further notice need be provided. NO PRIOR REQUEST 38. No prior application for the relief sought herein has been made to this or any other court. Concluded on Following Page 14

15 scc Doc 506 Filed 03/15/18 Entered 03/15/18 19:33:51 Main Document Pg 15 of 15 CONCLUSION WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that the Bankruptcy Court (a) enter the Proposed Order substantially in the form attached hereto as Exhibit A and (b) grant such other and further relief as is just and proper. DATED: New York, New York March 15, 2018 TOGUT, SEGAL & SEGAL LLP, Counsel to the Debtors and Debtors in Possession TOISA LIMITED, et al., By: /s/frank A. Oswald ALBERT TOGUT FRANK A. OSWALD KYLE J. ORTIZ BRIAN F. MOORE One Penn Plaza, Suite 3335 New York, New York (212)

16 scc Doc Filed 03/15/18 Entered 03/15/18 19:33:51 Exhibit A: Proposed Order Pg 1 of 5 EXHIBIT A Proposed Order

17 scc Doc Filed 03/15/18 Entered 03/15/18 19:33:51 Exhibit A: Proposed Order Pg 2 of 5 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 THE RETENTION AND EMPLOYMENT OF H. CLARKSON & COMPANY AS AS BROKER FOR THE DEBTORS NUNC PRO TUNC TO FEBRUARY 26, 2018 Upon the application of the Debtors (the Application ) 2 for entry of an order (the Order ) pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy Rule 2014(a) and Local Rule authorizing the Debtors to retain and employ H. Clarkson & Company Limited ( Clarkson ) as their broker nunc pro tunc to February 26, 2018; and this Court having jurisdiction to consider the Application pursuant to 28 U.S.C. 157 and 1334; and venue of these Chapter 11 Cases and the Application in this district being proper pursuant to 28 U.S.C and 1409; and this matter being a core proceeding pursuant to 28 U.S.C. 157(b); and this Court having found that proper and adequate notice of the Application and the relief requested therein has been provided in accordance with the Bankruptcy Rules, Local 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. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Application.

18 scc Doc Filed 03/15/18 Entered 03/15/18 19:33:51 Exhibit A: Proposed Order Pg 3 of 5 Rules and any applicable orders entered in these Chapter 11 Cases, and no other or further notice is necessary; and any objections to the Application having been withdrawn or overruled on the merits; and upon the consideration of the Declaration of Philip Harding attached as Exhibit B to the Application (the Harding Declaration ); and this Court being satisfied based on the representations made in the Application and the Harding Declaration that Clarkson does not hold or represent any interest adverse to the Debtors estates, with respect to the matters upon which Clarkson is to be employed, that Clarkson is a disinterested person as that term is defined under section 101(14) of the Bankruptcy Code, and that Clarkson s employment is necessary and is in the best interests of the Debtors and their estates; and after due deliberation and sufficient cause appearing therefor; IT IS HEREBY ORDERED THAT: 1. The Application is GRANTED as set forth herein. 2. In accordance with sections 327(a) and 328(a) of the Bankruptcy Code, the Debtors are hereby authorized to retain and employ Clarkson as their broker on the terms set forth in the Engagement Letter attached hereto as Exhibit 1, effective nunc pro tunc to February 26, Clarkson shall be compensated in the manner described in the Application and the Harding Declaration. 4. The Debtors shall notify the U.S. Trustee, counsel to each of the Debtors prepetition secured lenders, and counsel to the Creditors Committee of their intent to pay any Fee to Clarkson. The U.S. Trustee, the Creditors Committee and each of the Debtors prepetition secured lenders (including the Informal Committee) retain all rights to object to such payments on all grounds including but not limited to the 2

19 scc Doc Filed 03/15/18 Entered 03/15/18 19:33:51 Exhibit A: Proposed Order Pg 4 of 5 reasonableness standard provided for in section 330 of the Bankruptcy Code. If none of these parties objects by 5:00 p.m. (ET) on the tenth (10 ) business day after such th notification, on the eleventh (11 ) business day, the Debtors are authorized to pay such th Fee or reimbursement as an administrative expense without further order of the Court. If a party objects to the Debtors proposed payment, the matter shall be set for a hearing as soon as reasonably practicable thereafter. 5. All requests of Clarkson for payment of indemnity pursuant to the Engagement Letter shall be made by means of an application (interim or final as the case may be) filed with this Court and served upon each of the Debtors secured lenders and all other parties in interest; provided, however, that in no event shall Clarkson be indemnified for any liability, loss, costs, or claim that is found by this Court to be the result of Clarkson s fraud or fraudulent misrepresentation, knowing or willful violation of law, willful misconduct, breach of fiduciary duty, self-dealing, bad faith or gross negligence. All parties rights to object to any request of Clarkson for payment of indemnity pursuant to the Engagement Letter shall be preserved. 6. Clarkson is hereby relieved of the obligation to maintain time records. 7. To the extent the Application or Engagement Letter is inconsistent with this Order, the terms of this Order shall govern. 8. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order. 9. The requirements set forth in Local Rule (b) are satisfied. 3

20 scc Doc Filed 03/15/18 Entered 03/15/18 19:33:51 Exhibit A: Proposed Order Pg 5 of This Court shall retain exclusive jurisdiction with respect to any matters, claims, rights or disputes arising from or related to the Application, the Engagement Letter or the implementation of this Order. DATED: New York, New York March, 2018 HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE 4

21 Harding Declaration Pg 1 of 27 EXHIBIT B Harding Declaration to be filed

22 Harding Declaration Pg 2 of 27 EXHIBIT 1 Engagement Letter

23 Harding Declaration Pg 3 of 27 Brokerage Agreement ( Agreement ) This Agreement is made on this th day of March 2018 by and between: 1. TOISA LIMITED, a company organized and existing under the laws of Bermuda and having its principal place of business at Clarendon House, 2 Church Street, Hamilton, Bermuda ( TOISA ), on behalf of itself, Affiliate Trade & Transport, Inc. and each of TOISA s Affiliates that owns an Asset (as defined below) (each a Debtor Subsidiary and together with TOISA, the Debtors ) with Chapter 11 cases (collectively, the Chapter 11 Cases ) pending in the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court ) (Case No (SCC)); and 2. H. CLARKSON & COMPANY LIMITED, a company organized and existing under the laws of England and having its registered address at Commodity Quay, St Katharine Docks, London, E1W 1BF ( Clarksons ) on behalf of itself and its Affiliates; (together, the Parties ; each a Party ) FOR GOOD AND VALUABLE CONSIDERATION, THE ADEQUACY OF WHICH IS HEREBY CONFIRMED, THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION 1.1 In this Agreement: Affiliate of any person means any other person (individual or body corporate) that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person (together, the Affiliates ); Asset means a Vessel or a Newbuild Contract; Bankruptcy Court means the United States Bankruptcy Court for the Southern District of New York; control (including the terms controls, controlled by and under common control with ) means the possession, direct or indirect, of the power to direct or cause the direction of the management, policies or activities of a person, whether through the ownership of securities, by contract or agency or otherwise; Fee has the meaning given to it in Clause 2.5 below; Newbuild Contract means each and any of the contracts for the construction of the following ships: 1. Contract No. CIS114K-01, the Aframax oil tanker United Mariner built 2018 having IMO number / 7

24 Harding Declaration Pg 4 of Contract No. CIS114K-02, the Aframax oil tanker United Nomad built 2018 having IMO number Contract No. CIS114K-03, the Aframax oil tanker Nikos Kazantzakis built 2018 having IMO number Contract No. CIS158K-01, the Suezmax oil tanker United Oceans built 2018 having IMO number Contract No. CIS158K-02, the Suezmax oil tanker United Paragon built 2018 having IMO number Contract No. CIS158K-03, the Suezmax oil tanker Pericles G.C built 2018 having IMO number Order means an order or judgment of a court of competent jurisdiction. Person means any individual, entity, partnership, limited partnership, firm, trust, body corporate, company, corporation, government, governmental body, agency or instrumentality, unincorporated body of persons or association; Period means the period from the date hereof until September 15, 2018 (or such longer period as may be required to complete the Services, as requested by the Debtors) during which the Services shall be provided on an exclusive basis by Clarksons to the Debtors; PSA means a binding agreement or agreements in relation to the sale of each of the Assets, either on a vessel-by-vessel basis or en bloc (whether all or groupings of Vessels), by TOISA, and/or its relevant Debtor Subsidiary/Subsidiaries on terms and conditions agreed and executed between TOISA, and/or its relevant Debtor Subsidiary/Subsidiaries and a potential buyer or buyers and reasonably acceptable to the applicable Secured Lender; Secured Lender means a lender that provided financing to a Debtor, and such financing (i) is the basis for the secured claim held by such secured lender against a Debtor, and (ii) is secured by collateral including, but not limited to, a Vessel or a Newbuild Contract; Services has the meaning given to in clause 2.2; Terms and Conditions means the Broking Terms of Business attached to this Agreement as Schedule 1; Vessel means each and any of the following ships (together, the Vessels ), to be sold by the relevant Affiliate of TOISA as sellers: 1. the Suezmax oil tanker United Ideal built 2011 having IMO number the Suezmax oil tanker United Dynamic built 2010 having IMO number the Suezmax oil tanker United Emblem built 2010 having IMO number the LR2 product tanker United Fortitude built 2010 having IMO number / 7

25 Harding Declaration Pg 5 of the LR2 product tanker United Grace built 2010 having IMO number the LR2 product tanker United Honor built 2010 having IMO number the LR2 product tanker United Journey built 2010 having IMO number the Aframax oil tanker United Seas built 2008 having IMO number the Panamax oil tanker United Ambassador built 2007 having IMO number the Panamax oil tanker United Banner built 2007 having IMO number the Panamax oil tanker United Carrier built 2007 having IMO number the Suezmax oil tanker United Kalavryta built 2005 having IMO number the Suezmax oil tanker United Leadership built 2005 having IMO number the Kamsarmax bulk carrier Trade Unity built 2016 having IMO number the Kamsarmax bulk carrier Trade Resource built 2016 having IMO number the Kamsarmax bulk carrier Trade Prosperity built 2016 having IMO number the Kamsarmax bulk carrier Trade Quest built 2016 having IMO number the Kamsarmax bulk carrier Trade Spirit built 2016 having IMO number the Kamsarmax bulk carrier Trade Will built 2012 having IMO number the Kamsarmax bulk carrier Trade Vision built 2011 having IMO number SERVICES AND FEES 2.1 In relation to the sale of the Assets, the Debtors shall use the Services of Clarksons exclusively during the Period, unless its Services are terminated in accordance with this Agreement, and shall appoint no other broker or agent world-wide in that regard nor shall any of the Debtors seek to effect any contract of any nature whatsoever relating to the Assets directly or through another of TOISA s Affiliates other than through Clarksons. The Debtors shall also during the Period refer to Clarksons any interested parties, including other brokers, who may make direct or indirect contact with TOISA or TOISA s relevant Affiliates relating to the purchase of the Assets and shall similarly request the Secured Lenders to make like referrals. 2.2 In relation to the intended sale of the Assets, Clarksons shall provide the following Services to TOISA and its relevant Affiliates during the Period: i. identify potential purchasers of the Assets; 3 / 7

26 Harding Declaration Pg 6 of 27 ii. iii. iv. assist potential purchasers regarding inspections of the Vessels and their records and the ships being constructed pursuant to the Newbuild Contracts; assist in negotiating the terms and conditions of each PSA; assist with the provision of documentation for delivery of the Assets and with regard to the closing of the sale of the Assets; and v. provide expert testimony, both oral and via declaration, as requested by the Debtors from time to time, regarding the sale of the Assets, as well as prepare expert reports from time to time in connection with same; and vi. create a virtual data room with information for each Asset that is typically requested in shipping sale and purchase transactions. Clarksons shall use commercially reasonable efforts to (i) assist the Debtors to enter into PSAs in relation to all of the Assets and close the sale of all of the Assets within the Period and (ii) arrange for the preparation and distribution of all relevant marketing materials. Clarksons shall not be entitled to any Fee following termination of this Agreement unless the relevant buyer of one or more of the Assets shall have been introduced by Clarksons or one of its Affiliates, or a Secured Lender or on of its Affiliates, on or before September 15, 2018 and a PSA for the sale of such Asset(s) shall have been entered into on or before February 28, 2019, in which case Clarksons shall be entitled to the relevant Fee from the relevant sale proceeds as set forth in clause 2.5 below in relation to such sale. 2.3 Following any termination, Clarksons shall have no further obligations, other than the obligation to furnish to the Debtors a list of all interested purchasers Clarksons introduced regarding any Asset(s). In particular, without limitation, Clarksons shall not be obliged to inform TOISA and TOISA s relevant Affiliates about any circumstances or events known to them which may be relevant in the context of the intended sale of the Asset by TOISA and its relevant Affiliates to a purchaser introduced by Clarksons or otherwise. Clarksons undertakes to provide the Services during the Period in accordance with the Terms and Conditions solely as an independent contractor and not an agent, partner, coventurer, member or Affiliate of TOISA or its Affiliates (as the case may be) and shall not hold itself out as, or conduct any act or omission that could give rise to a finding under any applicable law that Clarksons is, an agent, partner, coventurer, member or Affiliate of TOISA or its Affiliates. Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership or a joint venture between the Parties and their Affiliates nor, shall it constitute, or be deemed to constitute an agency of any other Party and their Affiliates for any purpose. 2.4 Clarksons shall use reasonable efforts to assist the Debtors with implementation of the PSAs and the Debtors shall fully co-operate with 4 / 7

27 Harding Declaration Pg 7 of 27 Clarksons as regards the conclusion of the sale of the Assets and the implementation of the PSA. 2.5 The Debtors shall procure that Clarksons shall be paid by the relevant Debtor Subsidiary a commission (a Fee ) upon the closing of the sale of the Asset owned by such Debtor Subsidiary of one half of one per cent (0.5%) of the cash purchase price as per the relevant PSA for each Asset; provided, however, that, in the case of a credit bid by a Secured Lender, no fee will be payable on that sale by such Debtor Subsidiary or the applicable Secured Lender. A credit bid shall mean a bid by an existing Secured Lender, or its designee identified in advance of the inspection of the applicable Asset, of all or part of the indebtedness secured by the relevant Asset and related assets in circumstances where such credit bidder does not then resell such Asset within three months following the closing of the sale of the Asset, to a purchaser that (i) was introduced by or referred to Clarksons on or before February 28, 2019 or (ii) participated in the sale process for which Clarksons is being engaged herein, in which case, Clarksons shall be entitled to a Fee from the credit bidder equal to one half of one percent (0.5%) of the applicable credit bid. The Fee shall be payable from the proceeds of the sale of the relevant Asset within ten (10) banking days in London following the satisfaction of each of the following conditions: (i) the closing under the relevant PSA; (ii) the issuance of the relevant Bankruptcy Court Order approving the sale; and (iii) the Debtors receipt of Clarksons respective invoice. 2.6 It is to be understood that the terms and conditions (including contract price) of any sale of an Asset shall be reasonably acceptable to the applicable Secured Lender and considered and accepted by TOISA at its sole discretion on behalf of the other Debtors and the Debtor Subsidiaries and TOISA shall not be obliged to accept to sell any Asset to any particular potential buyer. 3. MISCELLANEOUS 3.1 This Agreement shall become effective upon the date of entry of an Order of the Bankruptcy Court approving its terms. 3.2 TOISA, on behalf of itself and the other Debtors, shall use its reasonable best efforts to keep all information provided by Clarksons pursuant to this Agreement strictly private and confidential, except that the Debtors shall be permitted to disclose information from time to time about the sale of an Asset to the applicable Secured Lender (including its legal and financial advisors) that holds the security interest in the Asset, legal and financial advisors of the Debtors (as the case may be), or as may be required by the Bankruptcy Court or any regulatory body. Clarksons understands a copy of this Agreement (including the Terms) will be annexed to a motion, filed with the Bankruptcy Court, seeking to approve its terms. 3.3 Clarksons, on behalf of itself and its Affiliates, undertakes that all information provided by or on behalf of the Debtors under this Agreement shall be kept strictly private and confidential except if specifically permitted by TOISA to be disclosed to third parties for the purpose of performing the Services; provided, 5 / 7

28 Harding Declaration Pg 8 of 27 however, that Clarksons shall be permitted to disclose information from time to time about the sale of an Asset to the applicable Secured Lender (including its legal and financial advisors) that holds the security interest in the applicable Asset. 3.4 In the event that any request is made for provision of testimony or witness statement or other evidence regarding the performance of the Services or the implementation of any PSA as referred to in paragraph v of clause 2.2 above, the same shall be provided without any personal liability on the part of the persons within Clarksons or its Affiliates providing the same to the extent permitted by applicable law and the Debtors shall be responsible for all relevant travel, hotel and reasonable expenses of the person or persons within Clarksons providing such testimony or witness statement or other evidence and shall procure such further indemnities and disclaimers as Clarksons may reasonably require. For the avoidance of doubt, Clarksons provision during the Period of testimony or witness statement or other evidence regarding the performance of the Services or the implementation of any PSA will not entitle Clarksons to any additional compensation (aside from being reimbursed for expenses incurred in connection therewith, as described herein). 3.5 Any other travel for Clarksons person or persons requested by the Debtors shall be for the expense of the Debtors and allocated to the appropriate Debtor Subsidiary, where applicable, and, where not applicable, will be allocated to all of the Debtors in the same manner as allocations for professional fees and expenses already in place under the cash collateral orders entered in these cases. 3.6 The cost of any advertisements and any other related costs to facilitate the marketing or sale of the Assets, as agreed and approved by TOISA pursuant to a budget to be provided by Clarksons, shall be for the expense of the Debtors and allocated to the appropriate Debtor Subsidiary, where applicable, and, where not applicable, will be allocated to all of the Debtors in the same manner as allocations for professional fees and expenses already in place under the cash collateral orders entered in these cases. All costs of any inspections of any Vessel or vessel subject to a Newbuild Contract shall be the responsibility of the potential purchaser that requests such inspection. 3.7 The Debtors shall use their best efforts to procure the full co-operation and assistance of the Secured Lenders, Marine Management Services, Marine Management Bulk Services Inc., and Toisa and Trade and Transport, London in relation to the performance of the Services. 3.8 This Agreement and any dispute arising out of or in connection herewith shall be governed by and construed in accordance with the laws of New York without giving effect to any conflicts of laws provisions thereof. The Bankruptcy Court shall have exclusive jurisdiction over this Agreement and any disputes that may arise therefrom. 6 / 7

29 Harding Declaration Pg 9 of 27 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate on the date first above written. TOISA LTD on behalf of itself and the Debtor Subsidiaries H. CLARKSON & COMPANY LTD on behalf of itself and its Affiliates By: By: Name: Jonathan Mitchell Name: Philip Harding Title: Chief Restructuring Officer Title: Director 7 / 7

30 Harding Declaration Pg 10 of 27 Schedule A Terms and Conditions 1.1 In these Terms the following definitions apply: Agreement means the contract pursuant to which the Broker agrees to provide Services to the Client in accordance with these Terms, whether such contract is verbal and/or in writing including any contract between the Broker and the Client which is contained in or evidenced by the terms of a separate contract between the Client and a third party. Ancillary Services means the ancillary services set out in Clause 2.4. Affiliate means a company or other legal entity which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another entity; control (including the terms controls, controlled by and under common control with ) means the possession, directly or indirectly, of more than 50% of the equity securities or equity interests in such entity or the power to direct or cause the direction of the management and policies of such entity (whether through ownership of securities, partnership interest or other ownership interests, by contract, or otherwise). Bankruptcy Court means the United States Bankruptcy Court for the Southern District of New York. Broker means the company which is a member of the Group which has been requested by the Client to provide Services or to which the Client has responded in relation to the provision of Services; for the avoidance of doubt, Clarkson PLC acts solely as a holding company and does not trade. Broking Services means the broking services set out in Clause 2.1. Client means the party requesting the Services from the Broker or responding to the Broker in relation to the provision of the Services. Where such party is acting as a Representative, references to the Client shall include the Principal; Group means Clarkson PLC and its Affiliates. Negotiations means exchanges, whether verbal or in writing including via an electronic platform, conducted by or with the Broker in relation to concluding a PSA. Parties means together, the Broker and the Client (each, a Party ). Post PSA Services means the post PSA services set out in Clause 2.2.