Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 1 of 14

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1 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 1 of 14 UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re O.W. Bunker Holding North America Inc., et al., 1 Debtors. : : : : : : : Chapter 11 Case No Jointly Administered MOTION FOR ENTRY OF ORDER (A) APPROVING SETTLEMENT AGREEMENT BETWEEN THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUSTAR ENERGY SERVICES, INC., NUSTAR SUPPLY & TRADING LLC AND NUSTAR TERMINALS MARINE SERVICES N.V. RELATING TO (I) THE JOINT MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR THE TRANSFER OF VENUE OF CASES TO UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C AND RULE 1014(A)(1) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE [DOCKET NO. 229]; (II) CLAIMS FILED BY EACH OF THE NUSTAR ENTITIES LISTED; (III) ADVERSARY PROCEEDING NO ; (IV) ASSIGNMENT AND SALE OF DEBTORS RIGHTS, TITLE AND INTERESTS AGAINST CERTAIN VESSELS AND VESSEL OWNERS PURSUANT TO 11 U.S.C. 363(F); (V) SECURITY OR RECOVERIES RECEIVED BY NUSTAR ENERGY SERVICES INC. FROM ARRESTING VESSELS; AND (VI) CERTAIN RELATED ISSUES AND CONTESTED MATTERS, AND (B) TRANSFERRING THE DEBTORS CHAPTER 11 CASES TO THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK The Debtors hereby move for entry of an order, substantially in the form attached hereto, pursuant to Rule 9019 (the 9019 Motion ) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), approving the agreement (the Settlement Agreement ) by and between the Debtors and the Official Committee of Unsecured Creditors of O.W. Bunker Holding North America Inc., et al. (the Committee ), NuStar Energy Services, Inc. ( NuStar Services ), 1 The last four digits of the Debtors taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474), O.W. Bunker North America Inc. (7158) and O.W. Bunker USA Inc. (3556). The Debtors address is 281 Tresser Blvd., 2 Stamford Plaza, 15th Floor, Stamford, CT v1

2 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 2 of 14 NuStar Supply & Trading LLC ( NuStar Supply ), and NuStar Terminals Marine Services N.V. ( NuStar Terminals ) 2, arising from and resolving NuStar s objection to the Joint Motion of the Debtors and the Official Committee of Unsecured Creditors for Transfer of Venue of Cases to the United States Bankruptcy Court for the Southern District of New York Pursuant to 28 U.S.C and Rule 1014(a)(1) of the Federal Rules of Bankruptcy Procedure [Docket No. 229] (the Transfer Motion ), and resolving other litigation and disputes between the Debtors and NuStar. Specifically, the Debtors seek approval of the terms and provisions of the Settlement Agreement by which such disputes, subject to Court approval, have been settled and resolved and, concurrently therewith, entry of an order granting the Transfer Motion. The Debtors and NuStar have executed the Settlement Agreement, and the Committee s counsel has indicated that upon affirmative vote by the Committee, which is expected, the Committee will execute it as well. In further support of the Motion, the Debtors, by and through their undersigned counsel, respectfully state as follows: JURISDICTION 1. This Court has jurisdiction to consider this Motion under 28 U.S.C. 157 and This is a core proceeding under 28 U.S.C. 157(b). Venue of these cases and this Motion in this district is proper under 28 U.S.C and The relief requested herein is warranted pursuant to Bankruptcy Rule BACKGROUND Procedural Background 2. On November 13, 2014 (the Petition Date ), each of the Debtors commenced a voluntary case in this Court (the Chapter 11 Cases ) under chapter 11 of the Bankruptcy Code. 2 NuStar Services, NuStar Supply and NuStar Terminals are collectively referred to herein as NuStar v3-2-

3 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 3 of 14 The Debtors are authorized to continue to operate their business and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On November 19, 2014, this Court ordered that the Debtors cases be jointly administered for procedural purposes pursuant to Bankruptcy Rule 1015(b) and D. Conn. LBR The factual background regarding the Debtors, including their business operations, their capital and debt structures, and the events leading to the filing of the Chapter 11 Cases, is set forth in detail in the Declaration of Adrian Tolson, General Manager of O.W. Bunker North America Inc., in Support of Chapter 11 Petitions and First Day Pleadings [Docket No. 15] (the Tolson Declaration ). 4. On November 26, 2014, the United States Trustee appointed the Committee. No trustee or examiner has been appointed in the Debtors Chapter 11 Cases. Background Regarding the Transfer Motion 5. Between the Petition Date and the filing of the Transfer Motion on December 24, 2014, several of the Debtors customers filed multiple interpleader actions in several different district courts. These include more than ten actions involving deposits with the Court of more than $24 million, more than 25 vessels and more than 40 parties -- in the United States District Court for the Southern District of New York (the Southern District of New York ). Such interpleaders generally seek to make payment and an adjudication of claims relating to the Debtors and their affiliates transactions in marine fuel oil under principles of maritime law. Those district courts outside the District of Connecticut handling the interpleader actions, and various other proceedings, cannot lawfully or constitutionally exercise bankruptcy jurisdiction because this Court has exclusive bankruptcy jurisdiction based upon the pendency of the Chapter 11 Cases. The separation of maritime and bankruptcy jurisdiction in different districts prevented v3-3-

4 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 4 of 14 these courts from affording complete relief to the parties or resolving all claims in one court. This is a particular problem since many of the interpleaders raise bankruptcy issues that are subject to the exclusive jurisdiction of the Bankruptcy Court handling the Chapter 11 Cases. 6. In turn, the division of maritime and bankruptcy jurisdiction in multiple districts, and the burden and expense of seeking the transfer of all of these proceedings to the District of Connecticut, created the very real prospect of enormous added costs and uncertainties for all parties in interest, including the Debtors. In addition, while the Southern District of New York can exercise personal jurisdiction over a number of foreign parties to the interpleaders based on such entities contractual consent to such jurisdiction, there were concerns that the District of Connecticut might not be able to exercise personal jurisdiction over such parties (or that they would wage a long and expensive fight over that issue in Connecticut). Accordingly, the Debtors and the Committee jointly filed the Transfer Motion. 7. At the January 7, 2015 initial hearing on the Transfer Motion, this Court recognized that the Debtors and the Committee s rationale underlying the Transfer Motion was that: There is more expense that will be incurred because of having at least two courts working on the same problem, or similar problems or overlapping problems, and there is a good likelihood that with one jurisdiction, that being the Southern District of New York a lot of the issues could be resolved in [the Southern District of New York] that couldn t be resolved in a bankruptcy court in Connecticut. It seems to me that there is merit to that argument.. See 1/7/2015 Hr g Tr. 98: Indeed, District Judge Caproni, who is presiding over the interpleader actions in the Southern District of New York, observed that this division between the bankruptcy court and Connecticut and [this Court] sitting as an admiralty court should not continue because this is v3-4-

5 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 5 of 14 not an efficient way of resolving the complicated issues of maritime and bankruptcy jurisdiction arising in the Chapter 11 Cases. See 12/18/2014 Hr g Tr. 74:6-12, Clearlake Shipping Pte. Ltd. v. O.W. Bunker (Switzerland) SA, et al., Case No. 14-cv-9286 (VEC) (S.D.N.Y.) 9. On December 24, 2014, and in recognition of Judge Caproni s observation, the Debtors and the Committee jointly filed the Transfer Motion. 10. On January 2, 2015, NuStar filed an objection to the Transfer Motion [Docket No. 255] (the NuStar Objection ). On January 14, 2015, this Court entered a Pre-Trial Order [Docket No. 331] setting forth the limitations on and time for discovery and scheduling an evidentiary hearing on the Transfer Motion for February 18, This Court heard opening statements and initial evidence on the Transfer Motion on February 18, 2015, and continued the evidentiary hearing to March 9, Between February 18, 2015 and March 9, 2015, NuStar, the Committee and the Debtors engaged in expert-related discovery while concurrently attempting to reach a comprehensive resolution of the NuStar Objection and certain related issues. The Settlement Agreement 12. The Parties engaged in extensive, arms-length negotiations with respect to resolution of the NuStar Objection to the Transfer Motion and other matters related to the pending bankruptcy cases. These discussions culminated in the attached settlement agreement resolving numerous issues with NuStar, including the NuStar Objection to the Transfer Motion, and paving the way for the entry of an order granting the 9019 Motion and transferring the Chapter 11 Cases to the Southern District of New York so that the Chapter 11 Cases and the Southern District of New York interpleader cases will be before one court. With the transfer, the Southern District of New York will be able to exercise the full panoply of federal maritime and v3-5-

6 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 6 of 14 bankruptcy jurisdiction and will be able to comprehensively address the overlapping and complicated issues pending concurrently in the interpleaders in the Southern District of New York and in the Chapter 11 Cases. 13. A copy of the Settlement Agreement is attached hereto as Exhibit A and is incorporated herein in its entirety by reference. The following summary of the salient terms of the Settlement Agreement provides the basic framework of its terms to the Court and other parties in interest in the Chapter 11 Cases. However, nothing in the summary should be construed as supplanting or supplementing the detailed terms set forth in the Settlement Agreement. Any conflict between the terms of the Settlement Agreement and the summary should be resolved in favor of the Settlement Agreement. In summary, the Settlement Agreement provides that: a. The Debtors and NuStar have agreed to resolve the adversary proceeding captioned NuStar Supply & Trading LLC v. O.W. Bunker North America Inc., Adv. Proc. No , pending before this Court (the NuStar Adversary Proceeding ), and other outstanding reclamation-related issues regarding oil onboard the Eva Schulte and the Elisalex Schulte. This settlement will provide a $3,454, reduction to NuStar Supply s Section 503(b)(9) (and parallel unsecured) claim, which NuStar Supply asserts is $6,772,447.58; this results in an allowed claim of $3,317, The settlement also confirms NuStar Supply s rights to certain oil that was reclaimed from such vessels, and provides that NuStar shall voluntarily dismiss the NuStar Adversary Proceeding with prejudice within five (5) days after the entry of a final, non-appealable order approving the settlement. Settlement Agreement 1-12, 62. b. The Debtors have agreed to assign to NuStar all of the Debtors rights in certain vessel arrest proceedings where the Debtors were an intermediary supplier (i.e., not a contract supplier or physical supplier) for a $151,000 payment (the Cash Payment, which goes into a segregated account to which all liens, claims and encumbrances [if any] shall attach). Settlement Agreement 13-35, In addition, the Debtors are assigning their lien rights in certain pending cases where they are the contract supplier (i.e., the Global Leader and the Norwegian Jewel). Settlement Agreement 15, 20. In furtherance of the agreement to assign such rights, the Debtors have agreed to provide certain assistance, support and v3-6-

7 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 7 of 14 documentary evidence to NuStar (in part at NuStar s expense) in such proceedings. 3 In addition to the Cash Payment, the Debtors also receive a reduction of NuStar Supply s and NuStar Terminal s Section 503(b)(9) and other claims for the recoveries obtained by them in such proceedings. Settlement Agreement As to the potential size and value of that claims reduction to the Debtors, pursuant to disclosures filed by NuStar in this Court [at Docket No. 16 in the NuStar Adversary Proceeding], over $12.8 million in security had been deposited or posted in those arrest proceedings as of February 16, c. NuStar has agreed to support the transfer of venue of the Chapter 11 Cases to the Southern District of New York, and the proposed Order granting the 9019 Motion contains express language transferring the Chapter 11 Cases to the Southern District of New York pursuant to 28 U.S.C in the interest of justice and for the convenience of the parties, and the Debtors agreement to the terms of the Settlement Agreement is conditioned upon transfer. Settlement Agreement 23, 54. d. NuStar has agreed, subject to certain conditions, to venue in the Southern District of New York for six vessels currently subject to interpleader proceedings: Venus Glory, Hellas Glory, LNG Finima, Ocean Friend, Rigel Leader, and Waregem (the Southern District of New York Interpleaders ). With regard to three of these vessels (Ocean Friend, Rigel Leader, and Waregem), one of the Debtors is a contract supplier and the relative lien rights of NuStar and the Debtors will be decided in those cases in New York. Settlement Agreement e. The Parties agree that neither the Debtors nor the Committee will take any action to remove, transfer or consolidate certain NuStar vessel arrest proceedings that are currently pending in other jurisdictions (mostly in the United States District Court for the Southern District of Texas). Id., 17. f. NuStar has agreed not to arrest any vessel not already set forth in the Settlement Agreement except in coordination with the Debtors. Id., 80. g. NuStar consents to the Debtors motion to extend the Debtors exclusive periods to file and solicit a plan of liquidation for 120 days, each, and will not move to convert the Chapter 11 Cases during these 120-day periods. Id., h. The Settlement Agreement is expressly conditioned on the Court s approval of the Transfer Motion and ordering a transfer of venue of the Chapter 11 Cases to the Southern District of New York. Id., The Debtors continue to analyze the feasibility of transferring interpleader actions pending outside the Southern District of New York, not including the Texas and Panama Proceedings, to the Southern District of New York v3-7-

8 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 8 of 14 RELIEF REQUESTED 14. The Debtors request that, pursuant to Bankruptcy Rule 9019, the Court enter an order, substantially in the form attached hereto as Exhibit B, approving the Settlement Agreement and transferring the Chapter 11 Cases to the Southern District of New York. Legal Standard BASIS FOR RELIEF REQUESTED 15. Bankruptcy Rule 9019(a) governs the approval of compromises and settlements and provides that [o]n motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. In approving a compromise and settlement, the Court is required to make an informed and independent judgment as to whether the compromise and settlement is fair and equitable based on an: [e]ducated estimate of the complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Basic to this process in every instance, of course, is the need to compare the terms of the compromise with the likely rewards of litigation. Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, (1968). 16. The Court has discretion to approve a compromise. Fischer v. Pereira (In re Charles Street, Inc.), 209 B.R. 618 (S.D.N.Y. 1997). In doing so, the Court must make an informed judgment whether the settlement is fair and equitable and in the best interests of the estate. In re Drexel Burnham Lambert Group, Inc., 134 B.R. 493, 496 (Bankr. S.D.N.Y. 1991). The Court is required to review the reasonableness of the proposed settlement, In re Drexel Burnham Lambert Group, Inc., 138 B.R. 723, 758 (Bankr. S.D.N.Y. 1992), but does not decide questions of law and fact. Instead, the Court determines, whether the settlement falls below the v3-8-

9 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 9 of 14 lowest point in the range of reasonableness. In re: W.T. Grant, Co., 699 F.2d 599, 608 (2d Cir. 1983). 17. Courts in the Second Circuit examine several factors to determine whether to accept a settlement. 1. the balance between the litigation's possibility of success and the settlement's future benefits; 2. the likelihood of complex and protracted litigation, with its attendant expense, inconvenience, and delay, including the difficulty in collecting on the judgment; 3. the paramount interests of the creditors, including each affected class's relative benefits and the degree to which creditors either do not object to or affirmatively support the proposed settlement; 4. whether other parties in interest support the settlement; 5. the competency and experience of counsel supporting, and the experience and knowledge of the bankruptcy court judge reviewing, the settlement; 6. the nature and breadth of releases to be obtained by officers and directors; 7. the extent to which the settlement is the product of arm s length bargaining. In re: Iridium Operating, LLC, 478 F.3d 452, 462 (2d Cir. 2007) (citing In re: WorldCom, Inc., 347 B.R. 123, 137 (Bankr. S.D.N.Y. 2006) (internal citation omitted))(the Iridium Factors ); see also TMT Trailer Ferry, 390 U.S. at 424. The Settlement Agreement Satisfies the Second Circuit s Iridium Factors 18. The Debtors filed the Transfer Motion in the exercise of their fiduciary obligations to minimize the expenses incurred from proceeding in multiple jurisdictions on overlapping questions of maritime law and bankruptcy law. The Debtors goal in filing the Transfer Motion was to get the Chapter 11 Cases before one court that could address all of the issues including bankruptcy issues such as preferences -- as they relate to maritime v3-9-

10 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 10 of 14 interpleaders and vessel arrest proceedings. While the Debtors believe that they have satisfied their burden of proof regarding the Transfer Motion, and that the transfer of the Chapter 11 Cases to the Southern District of New York is in the interest of justice and for the convenience of the parties, NuStar s request for an evidentiary hearing increased the uncertainty that the Transfer Motion would be approved expeditiously. Additionally, the Court has indicated that it would request post-trial briefing and schedule a subsequent date for closing arguments after briefing is concluded. 19. The Settlement Agreement and 9019 Motion pave the way for a consolidated bankruptcy and maritime proceeding in the Southern District of New York that will significantly increase the chances of filing a plan that provides a meaningful distribution to the Debtors unsecured creditors. The Settlement Agreement resolves the NuStar Objection insofar as NuStar shall agree to the transfer of the Chapter 11 Cases to the Southern District of New York if all aspects of the Settlement Agreement are approved and the attached Order granting the 9019 Motion is entered. 4 The Settlement Agreement also provides that NuStar will consent to the jurisdiction and venue of the Southern District of New York Interpleaders (in the case of the Ocean Friend, Rigel Leader, and Waregem actions, such consent is conditioned on a stipulation involving the vessel owners). The Settlement Agreement also resolves several contested matters and the NuStar Adversary Proceeding, which ultimately will benefit the Debtors unsecured creditors by reducing litigation costs and reducing NuStar s claims. 20. The Settlement Agreement also provides an additional benefit to the Debtors in that they will not need to appear and litigate their mark-up on the transactions being litigated in the Texas and Panama Proceedings and certain others, but rather they receive the Cash Payment 4 For removal of doubt, the Settlement Agreement is ineffective without the Court s agreement to transfer the Chapter 11 Cases to the Southern District of New York v3-10-

11 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 11 of 14 without having to engage in that litigation. The Chapter 11 Cases are already subject to complex, multi-district litigation which address a multitude a questions regarding domestic and international maritime law and the effect the Bankruptcy Code has on vessel arrest proceedings and maritime interpleader actions. The Settlement Agreement eliminates some of the complexity and expense associated with enforcing the Debtors maritime lien rights. Not only does the Settlement Agreement have the benefit of a consensual transfer of these cases to the Southern District of New York (subject to this Court s approval), but it also has the substantial benefit of eliminating or limiting venue and jurisdictional litigation related to Southern District of New York Interpleaders. For these reasons, the Settlement Agreement satisfies the first and second of the Second Circuit s Iridium Factors. 21. The Committee supports the Settlement Agreement. 5 This fact alone should satisfy the third Iridium Factor. The third Iridium Factor is likewise satisfied because the Settlement Agreement provides substantial benefits to the Debtors unsecured creditors. With regard to the resolution of the reclamation matters (Settlement Agreement 1-12), it resolves the NuStar Adversary Proceeding and results in a multi-million dollar reduction of NuStar Supply s claim (including its Section 503(b)(9) claim). These reductions will ultimately increase the available pool of money for the unsecured creditors in the Chapter 11 Cases. With regard to the resolution of the vessel arrest matters (Settlement Agreement 13-53), in addition to the $151,000 Cash Payment, any amounts recovered by NuStar from the prosecution of the Texas and Panama Proceedings and certain other such proceedings will also benefit the unsecured creditors by providing a dollar for dollar reduction in NuStar Services claim (including its 5 As noted at the initial January 7, 2015 hearing on the Transfer Motion, NuStar is a member of the Committee. Committee counsel has represented to the Debtors that: (1) NuStar did not participate in the discussions or deliberations that culminated in the Committee s decision to support the settlement and 9019 Motion; and (2) the non-nustar Committee members unanimously voted to support the settlement terms v3-11-

12 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 12 of 14 Section 503(b)(9) claim). As noted above, NuStar has filed reports with the Court indicating that over $12.8 million had been deposited or posted as security in those proceedings as of mid- February. Reducing NuStar s claims in the Chapter 11 Cases will ultimately increase the pool of money available for distribution to the Debtors remaining unsecured creditors. Finally, the Settlement Agreement resolves litigation between the Debtors and NuStar relating to the Transfer Motion. 22. The fourth Iridium Factor also weighs in favor of approving the Settlement Agreement. The plaintiffs in the Southern District of New York Interpleaders who are customers of the Debtors and owe the Debtors estates payments for product delivered are parties in interest in the Chapter 11 Cases and clearly benefit from the Chapter 11 Cases and the Southern New York Interpleaders being venued in the same district. The Debtors believe that certain plaintiff vessel owners in Southern District of New York Interpleaders support approval of the Settlement Agreement and the transfer of the Chapter 11 Cases to the Southern District of New York. 23. In addition, the fifth through seventh Iridium Factors support the Court s approval of the Settlement Agreement. The Debtors submit that the Settlement Agreement was the result of extensive, arms-length negotiations conducted by experienced counsel for the Debtors, NuStar, and the Committee. Additionally, this Court has a plethora of experience in approving settlement agreements that are similar in scope and complexity to the instant Settlement Agreement. 24. In conclusion, the Settlement Agreement satisfies the Second Circuit s Iridium Factors, provides significant benefits to the Debtors estates and their unsecured creditors, exceeds the lowest point in the range of reasonableness, and should be approved by this Court v3-12-

13 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 13 of 14 Indeed, approval of the Settlement Agreement and the transfer of the Chapter 11 Cases to the Southern District of New York would significantly increase the chances of a meaningful distribution to the Debtors creditor body. Accordingly, the Debtors respectfully request that the Court grant this 9019 Motion, approve the Settlement Agreement in its entirety, and transfer the Chapter 11 Cases to the Southern District of New York. NOTICE 25. Notice of this Motion will be given to (a) the United States Trustee for the District of Connecticut; (b) counsel to the Committee; (c) counsel to NuStar; (d) counsel to ING Bank, N.V.; (e) all creditors; and (f) other parties in interest requesting notice in the Chapter 11 Cases pursuant to Bankruptcy Rule The Debtors submit that, under the circumstances, no other or further notice is required. NO PRIOR REQUEST 26. No previous motion for the relief requested herein has been made to this or any other court. CONCLUSION WHEREFORE, the Debtors respectfully request the Court to enter an order, substantially in the form attached hereto as Exhibit B, granting the relief requested in the Motion v3-13-

14 Case Doc 542 Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Main Document Page 14 of 14 and such other and further relief as may be just and proper. Dated: Hartford, Connecticut March 19, 2015 Respectfully submitted, /s/patrick M. Birney Michael R. Enright, Esq. (ct10286) Patrick M. Birney, Esq. (ct19875) ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT Telephone: (860) Facsimile: (860) and - Natalie D. Ramsey, Esq. (NY # ) (admitted pro hac vice) Richard G. Placey, Esq. (PA #37713) (admitted pro hac vice) Joseph O Neil, Esq. (NY # ) (admitted pro hac vice) Davis Lee Wright, Esq. (NY # ) (admitted pro hac vice) MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 437 Madison Avenue, 29th Floor New York, NY Telephone: (212) Facsimile: (212) nramsey@mmwr.com rplacey@mmwr.com jo neil@mmwr.com dwright@mmwr.com Counsel for the Debtors and Debtors in Possession v3-14-

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62 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 1 of 7 EXHIBIT B (Proposed Order)

63 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 2 of 7 UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION In re O.W. Bunker Holding North America Inc., et al., 1 Debtors. : : : : : : : Chapter 11 Case No Jointly Administered [PROPOSED ORDER DOCKET NO. ] ORDER GRANTING MOTION FOR ENTRY OF ORDER (A) APPROVING SETTLEMENT AGREEMENT BETWEEN THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUSTAR ENERGY SERVICES, INC., NUSTAR SUPPLY & TRADING LLC AND NUSTAR TERMINALS MARINE SERVICES N.V. RELATING TO (I) THE JOINT MOTION OF THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR THE TRANSFER OF VENUE OF CASES TO UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C AND RULE 1014(A)(1) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE (D.I. No. 229); (II) CLAIMS FILED BY EACH OF THE NUSTAR ENTITIES LISTED; (III) ADVERSARY PROCEEDING NO , (IV) ASSIGNMENT AND SALE OF DEBTORS RIGHTS, TITLE AND INTERESTS AGAINST CERTAIN VESSELS AND VESSEL OWNERS PURSUANT TO 11 U.S.C. 363(F), AND (V) SECURITY OR RECOVERIES RECEIVED BY NUSTAR ENERGY SERVICES INC. FROM ARRESTING VESSELS AND (VI) CERTAIN RELATED ISSUES AND CONTESTED MATTERS AND (B) TRANSFERRING THE DEBTORS CHAPTER 11 CASES TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK This matter coming before the Court on the Motion For Entry of Order (A) Approving Settlement Agreement Between the Debtors and the Official Committee of Unsecured Creditors, NuStar Energy Services, Inc., NuStar Supply & Trading LLC and NuStar Terminals Marine Services N.V. Relating to (I) The Joint Motion of the Debtors and the Official Committee of Unsecured Creditors for the Transfer of Venue of Cases to United States Bankruptcy Court for the Southern District of New York Pursuant to 28 U.S.C and Rule 1014(A)(1) of the 1 The last four digits of the Debtors taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474), O.W. Bunker North America Inc. (7158) and O.W. Bunker USA Inc. (3556). The Debtors address is 281 Tresser Blvd., 2 Stamford Plaza, 15th Floor, Stamford, CT

64 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 3 of 7 Federal Rules of Bankruptcy Procedure (D.I. No. 229); (II) Claims Filed by Each of the NuStar Entities Listed; (III) Adversary Proceeding No , (IV) Assignment and Sale of Debtors Rights, Title and Interests Against Certain Vessels and Vessel Owners Pursuant to 11 U.S.C. 363(f), and (V) Security or Recoveries Received By NuStar Energy Services Inc. from Arresting Vessels and (VI) Certain Related Issues and Contested Matters and (B) Transferring the Debtors Chapter 11 Cases to the United States District Court for the Southern District of New York (the 9019 Motion ); the Court having reviewed the 9019 Motion; the Court finding that (a) it has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, (b) this is a core matter pursuant to 28 U.S.C. 157(b)(2)(A); and (c) notice of the 9019 Motion was sufficient under the circumstances; the Court having determined that the legal and factual bases set forth in the 9019 Motion establish just cause for the relief granted herein. This Court further finds and concludes that, considering the probability of success in the litigation; the complexity of the litigation involved; the expense, inconvenience and delay necessarily attending such litigation; and the interest of the creditors and a proper deference to their reasonable views, the settlement is fair, equitable, and reasonable and in the best interests of the estate and should be approved under the standards of Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S. Ct. 1157, 20 L. Ed. 2d 1 (1968) and In re Iridium Operating, LLC, 478 F.3d 452, 462 (2d Cir. 2007). Accordingly, and after due deliberation and sufficient cause appearing therefor: IT IS HEREBY ORDERED THAT: 1. The 9019 Motion is GRANTED. 2. The Settlement Agreement, a copy of which is attached hereto as Exhibit 1, is approved in all respects and the Debtors are authorized to consummate the compromise and settlement embodied in the Settlement Agreement subject to the terms and conditions thereof. -2-

65 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 4 of 7 3. In accordance with such Settlement Agreement: a. NuStar Supply & Trading LLC is vested with all right, title and interest in the Reclaimed Fuel (as defined in such Settlement Agreement) free and clear of any other liens, claims, encumbrances or interests, and NuStar Supply shall irrevocably retain the NuStar Reclaimed Fuel Proceeds (as defined in such Settlement Agreement) free and clear of all liens, claims, encumbrances or other interests. b. NuStar Supply & Trading LLC is vested with all right, title and interest in the Other Fuel (as defined in such Settlement Agreement) free and clear of any other liens, claims, encumbrances or interests, and shall irrevocably retain free and clear of all liens, claims, encumbrances or other interests the $421, in sales proceeds from the Other Fuel free and clear of all liens, claims encumbrances or other interests. c. NuStar Supply and Trading LLC is hereby allowed a claim against North America in the amount of $3,317,509.55, which shall be a general unsecured claim all of which shall be entitled to administrative expense priority under 11 U.S.C. 503(b)(9). For avoidance of doubt, NuStar Supply retains the right pursuant to the Settlement Agreement to an increase in its claim in the event that, despite this order, it is nevertheless compelled to disgorge some or all of the proceeds of the Other Fuel or make payments to third parties asserting claims to the Other Fuel. d. In exchange for the cash payment set forth in the Settlement Agreement (which shall be placed in a segregated account and to which all liens, claims and encumbrances [including those of ING Bank N.V.], if any, shall attach to the same extent, and with the same validity and priority, if any, as the security interest asserted in the rights and interests being transferred to NuStar pursuant to this Settlement), NuStar Energy Services, Inc. is vested with all of O.W. Bunker USA Inc., O.W. Bunker North America Inc., and O.W. Bunker North America Holdings, Inc. s (collectively Debtors ) right, title and interest (including any receivable) as they may exist and without warranty and -3-

66 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 5 of 7 free and clear of all liens, claims, encumbrances or other interests, including but not limited any liens, claims, encumbrances or interests asserted by ING Bank, N.V., arising out of or related to the subject bunker transactions and against any party to such transaction (and specifically including any current defendant in the litigation listed in the footnote below) for the following vessels: Longavi, Freemantle Express, Montevideo Express, Canberra Express, Buenos Aires Express, HS DeBussy, Columba, Serena P, Navegantes Express, Wellington Express, Cosco Aucklan, DF (formerly Tian Bao He), Cosco Venice, Cosco Haifa, Elka Delos, Elka Sirius, Elka Angelique, Jo Ilex, Azure Bulker, Azurit, Venus Glory, Hellas Glory, Umgeni, and Oste. 2 e. In exchange for the cash payment set forth in the Settlement Agreement (which shall be placed in a segregated account and to which all liens, claims and encumbrances [including those of ING Bank N.V.], if any, shall attach to the same extent, and with the same validity and priority, if any, as the security interest asserted in the rights and interests being transferred to NuStar pursuant to this Settlement), NuStar Terminals 2 For avoidance of doubt, such subject Bunker transactions are the subject of the following litigations or, where litigation has not been commenced, is the transaction on the delivery date listed: Longavi (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas ; Fremantle Express (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Montevideo Express (Hapag Lloyd); 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Canberra Express (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Buenos Aires Express (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; HS Debussy (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Columba (Hapag Lloyd); No. 4:14-cv-03350, NuStar Energy Services, Inc. v. M/V Columba, Southern District of Texas; Serena P (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Navegantes Express (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Wellington Express (Hapag Lloyd); No. 4:14-cv-03294, NuStar Energy Services, Inc. v. M/V Canberra Express, Southern District of Texas; Cosco Auckland (COSCO); No. 4:14-cv-03648, NuStar Energy Services, Inc. v. M/V COSCO AUCKLAND, et al., Southern District of Texas; DF (formerly Tian Bao He) (COSCO); No. 4:14-cv-03648, NuStar Energy Services, Inc. v. M/V COSCO AUCKLAND, et al., Southern District of Texas; Cosco Venice (COSCO); No. 4:14-cv-03648, NuStar Energy Services, Inc. v. M/V COSCO AUCKLAND, et al., Southern District of Texas; Cosco Haifa (COSCO); No. 4:14-cv-03648, NuStar Energy Services, Inc. v. M/V COSCO AUCKLAND, et al., Southern District of Texas; Elka Delos (European Product Carriers Ltd. (ELKA)); No. 4:14-cv-03686, NuStar Energy Services, Inc. v. ELKA ANGELIQUE, ELKA DELOS, and ELKA SIRIUS, Southern District of Texas; Elka Sirius (European Product Carriers Ltd. (ELKA)); No. 4:14- cv-03686, NuStar Energy Services, Inc. v. ELKA ANGELIQUE, ELKA DELOS, and ELKA SIRIUS, Southern District of Texas ;Elka Angelique (European Product Carriers Ltd. (ELKA)); No. 4:14-cv-03686, NuStar Energy Services, Inc. v. ELKA ANGELIQUE, ELKA DELOS, and ELKA SIRIUS, Southern District of Texas; Jo Ilex (Jo Tankers AS); No. 4:14-cv-03310, JO TANKERS, AS v BERGEN BUNKERS, AS, et al., Southern District of Texas; Azure Bulker (fuel delivered on October 21, 2014 in Houston, Texas); arrest not yet commenced; Azurit (fuel delivered on October 21, 2014 in Houston, Texas); arrest not yet commenced; Venus Glory, (Clearlake Shipping Pte. Ltd.); No. 4:14-cv-09287, Clearlake Shipping Pte. Ltd. v. O.W. Bunker (Switzerland) SA, et al., Southern District of New York; Hellas Glory; (Clearlake Shipping Pte. Ltd.); No. 4:14-cv-09287, Clearlake Shipping Pte. Ltd. v. O.W. Bunker (Switzerland) SA, et al., Southern District of New York; Umgeni (Unicorn Shipping); Action initiated in Belize and dismissed after payment of $53, to NuStar by Unicorn Shipping; Oste (Waverly Shipping OPCO LLC); AR 71224/2014, Waverley Shipping OPCO LLC and Caribe Tankers LTD/NuStar Energy Services INC, Court in First Instance of Curacao (Dutch Caribbean) ( Summary Proceeding ) and (Waverly Shipping OPCO LLC); AR 72467/2015, Waverley Shipping OPCO LLC and Caribe Tankers LTD/NuStar Energy Services INC, Court in First Instance of Curacao (Dutch Caribbean) ( Trial Proceeding ). -4-

67 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 6 of 7 Marine Services N.V. is vested with all of O.W. Bunker USA Inc., O.W. Bunker North America Inc., and O.W. Bunker North America Holdings, Inc. s (collectively Debtors ) right, title and interest (including any receivable) as they may exist and without warranty and free and clear of all liens, claims, encumbrances or other interests, including but not limited to any liens, claims, encumbrances or interests asserted by ING Bank, N.V., arising out of or related to the subject bunker transaction and against any party to such transaction (and specifically including any current defendant in the litigation listed in the footnote below) for the LNG Finima. 3 f. NuStar Energy Services, Inc. is vested with all of the Debtors right, title and interest in any maritime liens, vessel arrest rights or similar security, as they may exist and without warranty, free and clear of all liens, claims, encumbrances or other interests, including but not limited to any liens, claims, encumbrances or interests asserted by ING Bank, N.V., arising out of or related to the subject bunker transaction and against any party to such transaction (and specifically including any current defendant in the litigation listed in the footnote below) for the Global Leader and Norwegian Jewel The Chapter 11 Cases are hereby transferred to the United States District Court for the Southern District of New York pursuant to 28 U.S.C and Rule 1014(a)(1) of the Federal Rules of Bankruptcy Procedure in the interest of justice and for the convenience of the parties. 5. This Order shall not modify or otherwise impact the priorities of allowed claims as they otherwise exist under the Bankruptcy Code and applicable law. 3 For avoidance of doubt, such subject Bunker transactions are the subject of the following litigations : LNG Finima (Nigeria LNG Ltd.); No. 4:14-cv-09542, Bonny Gas Transport Limited v. O.W. Bunker Germany GmbH, et al., Southern District of New York 4 For avoidance of doubt, such subject Bunker transactions are the subject of the following litigations : Norwegian Jewel (Norwegian Cruise Lines); No. 4:14-cv NuStar Energy Services, Inc. v. M/V NORWEGIAN JEWEL, IMO NO , Southern District of Texas; GLOBAL LEADER (Nippon Yusin Kaisha Line (NYK); Nustar Energy Services, Inc. v. M/V GLOBAL LEADER, in the Second Maritime Court of Panama, case number

68 Case Doc Filed 03/19/15 Entered 03/19/15 19:03:32 Desc Exhibit Proposed Order Page 7 of 7 6. The Clerk of the Court shall take whatever steps are necessary to expeditiously effect the transfer of the Chapter 11 Cases directly to the United States District Court for the Southern District of New York. 7. The Bankruptcy Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation and/or enforcement of the Settlement Agreement and this Order. Dated: Hon. Alan H.W. Shiff United States Bankruptcy Judge -6-