Exhibit 2.1

  

 

EXECUTION VERSION

 


 

 

 

 

JOINT VENTURE CONTRIBUTION AND FORMATION AGREEMENT

 

BY AND BETWEEN

 

SEACOR LB Holdings LLC

 

AND

 

Montco Offshore, Inc.

 

August 10, 2017

 

 

 


 

 
 

 

 

Table of Contents

 

  Page
   

ARTICLE I DEFINITIONS  

1

   

Section 1.1

Definitions

1

Section 1.2

Interpretations

28

     

ARTICLE II FORMATION OF VENTURE; CLOSING; RELATED TRANSACTIONS

29
   

Section 2.1

Formation of Company; Certain Transactions Prior to Closing

29

Section 2.2

Contribution of Assets

30

Section 2.3

Assumption of Liabilities

30

Section 2.4

Closing

30

Section 2.5

Closing Payments and Deliveries

31

Section 2.6

Issuance of Common Units

34

Section 2.7

Post-Closing Adjustment

35

     

ARTICLE III MOI’s REPRESENTATIONS AND WARRANTIES

  37
   

Section 3.1

Organization of MOI; Good Standing

37

Section 3.2

Authorization of Transaction

37

Section 3.3

Noncontravention; Government Filings

38

Section 3.4

Title; Sufficiency; Capitalization

38

Section 3.5

Litigation; Decrees

39

Section 3.6

Labor Relations

39

Section 3.7

Brokers’ Fees

39

Section 3.8

Taxes

39

Section 3.9

Tangible Personal Property

40

Section 3.10

Transferred Contracts; Contributed Vessels

41

Section 3.11

MOI Employee Benefits

41

Section 3.12

Compliance with Laws; Permits

42

Section 3.13

Environmental Matters

43

Section 3.14

Insurance

43

Section 3.15

Intellectual Property

43

Section 3.16

Financial Statements

44

Section 3.17

MGL

44

Section 3.18

No Other Representations or Warranties

45

     

ARTICLE IV SLH’S REPRESENTATIONS AND WARRANTIES

  45
   

Section 4.1

Organization of SLH; Good Standing

45

Section 4.2

Authorization of Transaction

45

Section 4.3

Noncontravention; Government Filings

46

Section 4.4

Title; Sufficiency; Capitalization

46

Section 4.5

Litigation; Decrees

47

Section 4.6

Brokers’ Fees

47

Section 4.7

Taxes

47

Section 4.8

Tangible Personal Property

48

Section 4.9

Transferred Contracts; Contributed Vessels

48

Section 4.10

SLH Employee Benefits

49

Section 4.11

Compliance with Laws; Permits

49

  

 

 

 

Table of Contents
(continued)

 

    Page
     

Section 4.12

Environmental Matters

50

Section 4.13

Insurance

50

Section 4.14

Intellectual Property

51

Section 4.15

Financial Statements

51

Section 4.16

Sufficient Funds; Adequate Assurances

51

Section 4.17

SLBO

51

Section 4.18

C-Lift

52

Section 4.19

No Other Representations or Warranties

53

     

ARTICLE V PRE-CLOSING COVENANTS

  53
   

Section 5.1

Efforts; Cooperation; Permits

53

Section 5.2

Covenants Pending The Closing

54

Section 5.3

Consents; Regulatory Approvals

56

Section 5.4

Bankruptcy Court Matters

58

Section 5.5

Notice of Developments

60

Section 5.6

Access; No Contact

60

Section 5.7

Bulk Transfer Laws

61

Section 5.8

Assumption and Assignment of Transferred Contracts; Cure Costs

62

Section 5.9

Financing Arrangements

64

     

ARTICLE VI OTHER COVENANTS

  64
   

Section 6.1

Further Assurances

64

Section 6.2

Access; Enforcement; Record Retention

64

Section 6.3

Covered Employees

64

Section 6.4

Certain Tax Matters

68

Section 6.5

Insurance Matters

69

Section 6.6

Acknowledgements

69

Section 6.7

Press Releases and Public Announcements

70

Section 6.8

Excluded Marks

70

Section 6.9

Release

70

Section 6.10

Confidentiality

71

     

ARTICLE VII CONDITIONS TO OBLIGATION TO CLOSE

  71
     

Section 7.1

Conditions to SLH’s Obligations to Effect the Closing

71

Section 7.2

Conditions to MOI’s Obligations to Effect the Closing

72

Section 7.3

No Frustration of Closing Conditions

73

     

ARTICLE VIII TERMINATION RIGHTS

 73
   

Section 8.1

Termination of Agreement

73

Section 8.2

Effect of Termination

75

Section 8.3

Casualty Events

75

Section 8.4

Remedies

77

     

ARTICLE IX MISCELLANEOUS

 77
   

Section 9.1

Survival; Claims

77

Section 9.2

Expenses

77

  

 
ii 

 

 

Table of Contents
(continued)

 

    Page
     

Section 9.3

Entire Agreement

77

Section 9.4

Incorporation of Exhibits and Disclosure Schedules

78

Section 9.5

Amendments and Waivers

78

Section 9.6

Succession and Assignment

78

Section 9.7

Notices

78

Section 9.8

Governing Law

79

Section 9.9

Submission to Jurisdiction; Service of Process

79

Section 9.10

Waiver of Jury Trial

80

Section 9.11

Specific Performance

80

Section 9.12

Severability

80

Section 9.13

No Third Party Beneficiaries

80

Section 9.14

Non-Recourse

80

Section 9.15

Mutual Drafting

81

Section 9.16

Privileged Communications

81

Section 9.17

Disclosure Schedules

81

Section 9.18

Headings; Table of Contents

82

Section 9.19

Counterparts; Facsimile and Electronic Signatures

82

Section 9.20

Time of Essence

82

 

 

 

 

ANNEXES

 

Annex A – The Vessels

 

EXHIBITS

 

Exhibit A – Form of Administrative Services Agreement
Exhibit B – Form of Company LLC Agreement

Exhibit C – Form of Guarantee Fee Agreement

Exhibit D – Form of Headquarters Lease

Exhibit E – Form of Transition Ship Management Agreement

Exhibit F – Form of Bills of Sale

Exhibit G – Form of Assignment and Assumption Agreement

Exhibit H – Form of Contribution Agreement

Exhibit I – Form of License Agreement

 

 
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Joint Venture Contribution and Formation Agreement

 

This Joint Venture Contribution and Formation Agreement (this “Agreement”) is entered into as of August 10, 2017 by and between (a) SEACOR LB Holdings LLC, a Delaware limited liability company (“SLH”), and (b) Montco Offshore, Inc., a Louisiana corporation (“MOI”). SLH and MOI are each referred to herein as a “Party” and collectively as the “Parties”.

 

WITNESSETH

 

WHEREAS, MOI and its wholly-owned Subsidiary, Montco Oilfield Contractors, LLC (“MOC” and, together with MOI, the “Debtors”), has each filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on March 17, 2017 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the “Bankruptcy Court”), which bankruptcy cases are jointly administered as In re Montco Offshore, Inc., et al., Case No. 17-31646 (the “Bankruptcy Cases”);

 

WHEREAS, SLH owns, directly or indirectly through one or more Affiliates, the eleven (11) liftboat vessels set forth on Annex A under the heading “SLH Contributed Vessels” (collectively, the “SLH Contributed Vessels”), and MOI owns the six (6) liftboat vessels set forth on Annex A under the heading “MOI Contributed Vessels” (collectively, the “MOI Contributed Vessels”);

 

WHEREAS, Falcon Global LLC, a Marshall Islands limited liability company (“FGL”), is owned (a) fifty percent (50%) by SEACOR LB Offshore (MI) LLC, a Marshall Islands limited liability company (“SLBO”), which is a wholly-owned Subsidiary of SLH, and (b) fifty percent (50%) by Montco Global, LLC, a Marshall Islands limited liability company (“MGL”), which is a wholly-owned subsidiary of Montco International, LLC, a Louisiana limited liability company and an Affiliate of MOI (“MIL”);

 

WHEREAS, FGL owns (through its wholly-owned subsidiaries) the two (2) liftboat vessels set forth on Annex A under the heading “FGL Vessels” (collectively with the MOI Contributed Vessels and the SLH Contributed Vessels, the “Vessels”); and

 

WHEREAS, the Parties desire to contribute their respective Contributed Assets to a Delaware limited liability company to be formed pursuant to, and in accordance with, the terms and conditions of this Agreement (such entity and any successor thereof, the “Company”).

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.1     Definitions. For purposes of this Agreement:

 

 
 

 

 

Administrative Services Agreement” means that certain Administrative Services Agreement to be entered into on the Closing Date by and between SEACOR Marine and the Company or its applicable Subsidiary designee, substantially in the form attached hereto as Exhibit A.

 

Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person, where “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of another Person, whether through the ownership of voting securities, by Contract, or otherwise.

 

Aggregate Contributed Value” means an amount equal to the sum of (a) the MOI Contributed Value plus (b) the SLH Contributed Value.

 

Agreement” has the meaning set forth in the preamble.

 

Alternative Transaction” has the meaning set forth in Section 5.4(b)(iv).

 

Antitrust Law” means the Sherman Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the HSR Act, the Federal Trade Commission Act of 1914, as amended, and all other Laws and Decrees that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition, whether in the United States or elsewhere.

 

Approvals” has the meaning set forth in Section 5.3(a).

 

Assignment and Assumption Agreement” has the meaning set forth in Section 2.5(a)(iv).

 

Assumption Notice” means a notice of assumption identifying all Contracts of MOI related to the MOI Contributed Assets that MOI believe may be assumed and assigned in connection with the sale of the MOI Contributed Assets and setting forth a good faith estimate of the amount of the Cure Costs applicable to each such Contract (and if no Cure Cost is estimated to be applicable with respect to any particular Contract, the amount of such Cure Cost designated for such Contract shall be “$0.00”).

 

Auction” has the meaning set forth in Section 5.4(b).

 

Back-up Bidder” has the meaning given to such term in the Bidding Procedures Order.

 

Back-up Termination Date” means the date that is one (1) Business Day after the closing of the Plan Transaction (as such term is defined in the Bidding Procedures Order) with the Winning Bidder.

 

Bankruptcy and Equity Exception” has the meaning set forth in Section 3.2.

 

Bankruptcy Cases” has the meaning set forth in the recitals.

 

Bankruptcy Code” has the meaning set forth in the recitals.

 

 
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Bankruptcy Court” has the meaning set forth in the recitals.

 

Bidding Procedures Order” means that certain order of the Bankruptcy Court, dated and entered as of August 10, 2017, Docket No. 394, in connection with the Bankruptcy Cases, that, among other things, (a) approves the payment of the Termination Payment on the terms and conditions set forth in Section 5.4(d) and (b) establishes (i) a date by which proposals for Competing Transactions must be submitted by bidders and (ii) procedures for the auction process, and which, in any case, is in form and substance reasonably acceptable to MOI and SLH.

 

Bills of Sale” has the meaning set forth in Section 2.5(a)(iii).

 

Break-up Fee” has the meaning set forth in Section 5.4(d)(i).

 

Business” means, collectively, the MOI Business, the SLH Business and the FGL Business.

 

Business Day” means any day, other than a Saturday, Sunday or any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in the State of New York are authorized or required by Law or other governmental action to close.

 

Capital Spares” means marine equipment and vessel components which may or may not be associated with a particular vessel, or class of vessel, and could be, in the Ordinary Course of Business, allocated to and utilized in a specific vessel and capitalized subject to amortization for accounting purposes, including marine engines, leg and pad sections and materials, compressors, crane winch and jacking system components.

 

Cash Equivalents” means cash, checks, money orders, funds in time and demand deposits or similar accounts, marketable securities, short-term investments, and other cash equivalents and liquid investments.

 

Casualty Election” has the meaning set forth in Section 8.3(a).

 

Casualty Event” has the meaning set forth in Section 8.3(a).

 

CCF” means, with respect to any Person, any Capital Construction Fund (and any and all cash in such Capital Construction Fund) administered by the U.S. Department of Transportation’s Maritime Administration for the benefit of such Person or available for the use, maintenance or refurbishment of any Vessel owned or operated by such Person.

 

Certificate of Formation” means a Certificate of Formation of the Company (or one or more wholly-owned Subsidiaries thereof, to be filed prior to Closing with the Secretary of State of the State of Delaware in order to create the Company (or one or more wholly-owned Subsidiaries thereof), in form and substance reasonably acceptable in form and substance to each of MOI and SLH.

 

Claiming Party” has the meaning set forth in Section 9.1.

 

Closing” has the meaning set forth in Section 2.4.

 

 
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Closing Assets” means (without duplication) all current assets primarily related to a Contributed Vessel, (a) including (i) all commercial accounts receivable attributable to the period from and after the date of the Confirmation Order, (ii) all Elected Accounts Receivable, if any, (iii) other prepaid expenses; (iv) other current receivables, (v) Capital Spares and (vi) parts and other inventory; and (b) expressly excluding (i) all Cash Equivalents and intercompany accounts receivable, (ii) any prepaid insurance or other prepaid items for which the Company and its Subsidiaries will not receive benefits after Closing, and (iii) Tax refunds.

 

Closing Common Units” has the meaning set forth in Section 2.7(c).

 

Closing Date” has the meaning set forth in Section 2.4.

 

Closing Indebtedness” means, as of the Reference Date, (a) with respect to SLH, the SLH Eagle/Hawk Indebtedness, and (b) with respect to MOI, the Pre-Petition Facility Indebtedness and the DIP Financing Indebtedness.

 

Closing Liabilities” means (without duplication) all current liabilities primarily related to a Contributed Vessel, (a) including (i) all commercial accounts payable attributable to the period from and after the date of the Confirmation Order, (ii) all Elected Accounts Payable, if any, (iii) other accrued expenses, (iv) other current payables, (v) other current Liabilities (other than any indebtedness which is discharged at Closing); (vi) adequate reserves for Taxes or other governmental charges and assessments not yet due and payable (or being contested in good faith by appropriate proceedings), and current deferred lease incentives; and (b) expressly excluding all intercompany accounts payable.

 

Closing Net Working Capital” means (without duplication), as of the Reference Date, the amount (expressed as a positive or negative number) equal to (a) with respect to MOI, (i) those Closing Assets that are included as MOI Contributed Assets minus (ii) those Closing Liabilities (excluding for the purposes hereof the Closing Indebtedness) that are included as Contributed MOI Liabilities, and (b) with respect to SLH, (i) those Closing Assets that are included as SLH Contributed Assets minus (ii) those Closing Liabilities (excluding for the purposes hereof the Closing Indebtedness) that are included as Contributed SLH Liabilities, in each case, subject to adjustment in accordance with Section 2.7 and calculated in accordance with the policies and procedures related to Closing Net Working Capital as set forth in the Example Statement and determined in accordance with GAAP.

 

C-Lift” means C-Lift LLC, a Delaware limited liability company.

 

C-Lift Vessels” means, collectively, (a) the SLH Contributed Vessel owned directly by SEACOR Eagle as set forth opposite its name on Annex A and (b) the SLH Contributed Vessel owned directly by SEACOR Hawk as set forth opposite its name on Annex A.

 

COBRA” has the meaning set forth in Section 6.3(e).

 

Common Units” has the meaning set forth in Section 2.6(a).

 

Company” has the meaning set forth in the recitals.

 

 
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Company LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of the Company, substantially in the form attached hereto as Exhibit B, to be entered into on the Closing Date pursuant to Section 2.5 hereof.

 

Company Secondee” has the meaning set forth in Section 6.3(a).

 

Competing Transaction” means any “Competing Transaction” as defined in the Bidding Procedures Order (including any proposal (other than the Transactions or the Plan) from or by a Person or group of Persons (other than SLH or any of its Subsidiaries or Affiliates) with respect to (a) a merger, acquisition, consolidation, dissolution, equitization, equity investment, liquidation, tender offer, recapitalization, plan or reorganization, share exchange, business combination or similar transaction involving MOI and/or one or more of its Subsidiaries, (b) any other transaction (regardless of the form of transaction) involving MOI and/or one or more of its Subsidiaries on a consolidated basis, which would result in the direct or indirect acquisition or disposition of all or any part of the MOI Contributed Assets and Contributed MOI Liabilities (whether in combination with other assets and liabilities of MOI or its Affiliates or otherwise), (c) a direct or indirect credit bid transaction with respect to all or any portion of the MOI Contributed Assets or (d) issuance, sale, transfer or other disposition by MOI or any of its Subsidiaries, directly or indirectly, of any class of equity securities, ownership interests, securities, options, warrants, calls, rights or Contracts convertible into, exchangeable for or evidencing the right to subscribe for or purchase equity securities, ownership interests or voting securities of MOI).

 

Confirmation Order” means an order or orders of the Bankruptcy Court that is consistent with this Agreement, and otherwise acceptable to SLH and MOI, and confirms the Plan and approves this Agreement, the Transactions and the execution, delivery and performance by MOI of this Agreement and the other instruments and agreements contemplated hereby.

 

Consent” means any consent, waiver, approval, exemption, order or authorization of, or registration, declaration or filing with or notice to, any Person.

 

Consolidated Facility” means a single consolidated credit facility for borrowed money, which consolidates and renews or otherwise refinances the Pre-Petition Facility and the DIP Financing.

 

Contract” means any agreement, contract, arrangement, commitment, promise, obligation, right, instrument, document, sales order, purchase order or other similar understanding that is binding on any Person or any part of its property under Law (including commitments to enter into any of such), in each case, whether written or oral.

 

Contracting Parties” has the meaning set forth in Section 9.14.

 

Contributed Assets” means, collectively, the MOI Contributed Assets and the SLH Contributed Assets.

 

Contributed Liabilities” means, collectively, the Contributed MOI Liabilities and the Contributed SLH Liabilities.

 

 
5

 

 

Contributed MOI Liabilities” means, subject to the terms and conditions set forth in this Agreement, and provided that the following shall not include any Excluded MOI Liabilities, effective as of the Closing, the following obligations of MOI or its Subsidiaries or Affiliates related to the MOI Contributed Assets, and no others shall be contributed to the Company:

 

(a)     all Liabilities relating to MOI’s or any of its Subsidiary’s or Affiliate’s ownership, maintenance or operation of the MOI Contributed Assets, to the extent arising from events, facts or circumstances that occur from and after the Closing, but excluding any Liabilities to the extent relating to MOI’s or any of its Subsidiary’s or Affiliate’s ownership, maintenance or operation of the MOI Contributed Assets prior to the Closing or relating to any services that were sold or provided prior to the Closing;

 

(b)     all Liabilities of MOI or its applicable Subsidiaries under the MOI Transferred Contracts (including all Cure Costs associated therewith), in each case, to the extent arising and relating solely to the period from and after the Closing;

 

(c)     all Closing Liabilities attributable to, or in respect of, the MOI Contributed Assets;

 

(d)     the Pre-Petition Facility Indebtedness and the DIP Financing Indebtedness; and

 

(e)     all Transfer Taxes and property and ad valorem Taxes allocated to MOI pursuant to Section 6.4, in each case, in respect of the MOI Contributed Assets and Contributed MOI Liabilities.

 

Notwithstanding the foregoing or any other provisions of this Agreement, the Company shall not assume hereunder, and “Contributed MOI Liabilities” shall not include, Liabilities under any Contract to the extent such Liabilities arise as a result of a breach or failure of such Contract occurring prior to, as of, or as a result of, the Closing (including Cure Costs).

 

Contributed SLH Liabilities” means, subject to the terms and conditions set forth in this Agreement, and provided that the following shall not include any Excluded SLH Liabilities, effective as of the Closing, the following obligations of SLH or its Subsidiaries or Affiliates related to the SLH Contributed Assets, and no others shall be contributed to the Company:

 

(a)     all Liabilities relating to SLH’s or any of its Subsidiary’s or Affiliate’s ownership, maintenance or operation of the SLH Contributed Assets, to the extent arising from events, facts or circumstances that occur from and after the Closing, but excluding any Liabilities to the extent relating to SLH’s or any of its Subsidiary’s or Affiliate’s ownership, maintenance or operation of the SLH Contributed Assets prior to the Closing or relating to any services that were sold or provided prior to the Closing;

 

(b)     all Liabilities of SLH or its applicable Subsidiaries under the SLH Transferred Contracts (including all Cure Costs associated therewith), in each case, to the extent arising and relating solely to the period from and after the Closing;

 

(c)     all Closing Liabilities attributable to, or in respect of, the SLH Contributed Assets;

 

 
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(d)     all redelivery obligations under the Sub-Bareboat Charters, subject to the terms and conditions of the Sub-Bareboat Charters and the SLH Bareboat Charters, so long as SEACOR Offshore, as of the date of this Agreement, in compliance, in all material respects, with the SLH Bareboat Charters;

 

(e)     the SLH Eagle/Hawk Indebtedness;

 

(f)     all Transfer Taxes and property and ad valorem Taxes allocated to SLH pursuant to Section 6.4, in each case, in respect of the SLH Contributed Assets and the Contributed SLH Liabilities; and

 

(g)    the Secondment Liabilities.

 

Notwithstanding the foregoing or any other provisions of this Agreement, the Company shall not assume hereunder, and “Contributed SLH Liabilities” shall not include, Liabilities under any Contract to the extent such Liabilities arise as a result of a breach or failure of such Contract occurring prior to, as of, or as a result of, the Closing (including Cure Costs).

 

Contributed Vessels” means, collectively, the MOI Contributed Vessels and the SLH Contributed Vessels.

 

Contribution Agreement” shall have the meaning set forth in Section 2.5(a)(v).

 

Covered Employee” means an employee of MOI or any of its Subsidiaries, whose duties relate primarily to the operation of the MOI Contributed Vessels.

 

Cure Costs” means any and all amounts, costs or expenses that must be paid pursuant to section 365(b)(1) of the Bankruptcy Code to effectuate, pursuant to section 365(a) of the Bankruptcy Code, the assumption by MOI and assignment to the Company of the MOI Transferred Contracts, as agreed to by SLH, MOI and the non-MOI counterparty to the applicable Transferred Contract or otherwise determined by the Bankruptcy Court.

 

Damaged Vessel” has the meaning set forth in Section 8.3(a).

 

Debtors” has the meaning set forth in the recitals.

 

Decree” means any judgment, decree, ruling, injunction, assessment, attachment, undertaking, award, charge, writ, executive order, administrative order, or any other order of any Governmental Authority.

 

Delayed Transfer Employee” has the meaning set forth in Section 6.3(m).

 

DIP Financing” means that certain Senior Secured Superpriority Debtor-in-Possession Credit Agreement, dated as of May 5, 2017, by and among the Debtors, as borrowers, the lenders and guarantors party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation.

 

 
7

 

 

DIP Financing Indebtedness” means, as of the Reference Date, the amount of aggregate indebtedness outstanding under the DIP Financing, including the principal and accrued but unpaid interest, fees and any other amounts actually due and payable under the DIP Financing.

 

Disclosure Schedules” means, collectively, the MOI Disclosure Schedule and SLH Disclosure Schedule.

 

Disclosure Statement” means the disclosure statement with respect to the Plan.

 

Elected Accounts Payable” has the meaning set forth in Section 2.1(c).

 

Elected Accounts Receivable” has the meaning set forth in Section 2.1(c).

 

Electing Party” has the meaning set forth in Section 8.3(a).

 

Environmental Law” means any applicable foreign, federal, state or local Law relating to pollution, the protection of the environment, natural resources, or human health and safety with regard to Hazardous Materials.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Affiliate” means any Person with whom MOI or any of its Subsidiaries is or was at any time within the past six (6) years treated as a single employer under section 414 of the IRC.

 

Estimated Common Units” has the meaning set forth in Section 2.7(c).

 

Example Statement” has the meaning set forth in Section 2.6(b).

 

Excluded Assets” means, collectively, the Excluded MOI Assets and the Excluded SLH Assets.

 

Excluded Liabilities” means, collectively, the Excluded MOI Liabilities and the Excluded SLH Liabilities.

 

Excluded Marks” means all Marks that are not a Contributed Asset under this Agreement.

 

Excluded MOI Assets” means all assets of MOI or its Affiliates in and to the following:

 

(a)     any tangible or intangible asset of MOI or its Affiliates that is not primarily related to the ownership and operation of the MOI Business or any of the MOI Contributed Assets;

 

(b)    except as otherwise included as part of the MOI Contributed Assets, (i) organizational documents, qualifications to conduct business as a foreign entity, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, stock certificates, and other documents relating to MOI’s or its Subsidiaries’ organization, maintenance, existence, and operation (except for any such Subsidiary included in the MOI Contributed Assets); (ii) Files and Records related to (A) Taxes paid or payable by MOI or (B) any Liabilities not included in the Contributed MOI Liabilities; (iii) except as otherwise provided in this Agreement, any Tax refund, deposit, prepayment, credit, attribute, or other Tax asset of or with respect to MOI or any of its Subsidiaries or Affiliates; (iv) any other Files and Records that are not primarily related to any SLH Contributed Asset; and (v) any Files and Records or other information to the extent they include any Privileged Communications;

 

 
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(c)     all capital stock or ownership interests of MOI or any of its Subsidiaries (except in connection with the MOI Contributed Equity Interests);

 

(d)     all Cash Equivalents (except as otherwise included as part of the Contributed Assets as provided herein) and intercompany accounts receivable;

 

(e)     all Permits that are not part of the MOI Contributed Assets as provided herein;

 

(f)     all insurance policies and binders and, except to the extent otherwise included as part of the MOI Contributed Assets or set forth in Section 8.3, all claims, refunds and credits from insurance policies or binders due or to become due with respect to such policies or binders;

 

(g)     all of MOI’s rights under this Agreement or any Related Agreement;

 

(h)     all MOI Causes of Action arising out of or related to the Excluded MOI Assets;

 

(i)     all Intellectual Property owned, used, or held for use by MOI or any of its Subsidiaries or Affiliates that is not that is specifically associated with any MOI Contributed Vessel or otherwise included in the MOI Contributed Assets;

 

(j)     all Contracts other than the MOI Transferred Contracts;

 

(k)     all rights and interests in MOI Employee Benefit Plans;

 

(l)     all of MOI’s and its Subsidiaries’ rights, title and interest in and to any real property (including easements, rights-of-way and water rights) together with all buildings, other improvements, fixtures and appurtenances, and all other rights, privileges and entitlements thereunto belonging or appertaining;

 

(m)    any CCF for the benefit of MOI or any its Subsidiaries or Affiliates or otherwise available for the use, maintenance or refurbishment of any Vessel owned or operated by MOI or any of its Subsidiaries or Affiliates;

 

(n)     all of MOI’s commercial accounts receivable other than (i) Elected Accounts Receivable and (ii) accounts receivable attributable to the period from and after the date of the Confirmation Order; and

 

(o)     those items set forth on Section 1.1-EA of the MOI Disclosure Schedule (as amended or supplemented from time to time pursuant to Section 5.8 or Section 8.3, as the case may be, or otherwise in accordance with this Agreement).

 

Excluded MOI Liabilities” means any Liabilities of MOI or any predecessor or any Subsidiary or Affiliate of MOI, of any nature whatsoever, existing before or on the Closing Date or arising thereafter, other than the Contributed MOI Liabilities. All of the Liabilities of MOI or any predecessor or any Subsidiary or Affiliate of MOI (including as described in the preceding sentence) not specifically and expressly contributed to the Company pursuant to this Agreement shall be referred to herein collectively as the “Excluded MOI Liabilities.” For the avoidance of doubt, and without limiting the foregoing, the Company shall not be obligated to assume, and it shall not assume, and MOI shall not be obligated to contribute, and shall not contribute, any of the following Liabilities of MOI or of any predecessor or Subsidiary or Affiliate of MOI other than the Contributed MOI Liabilities (and any such Liabilities shall be considered Excluded Liabilities for all purposes of this Agreement):

 

 
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(a)     any Liability arising out of, under or in connection with the Excluded MOI Assets;

 

(b)     any Liability of MOI or any of its Affiliates for Taxes (except as expressly provided for in Section 6.4);

 

(c)     all Closing Liabilities not included as a Contributed MOI Liability;

 

(d)     all Liabilities of MOI under this Agreement or any Related Agreement and the Transactions or thereby;

 

(e)     all Liabilities regarding any vacation days, sick days or other paid time off or any bonus amounts accrued for services through and including the Closing with respect to employees, agents, consultants or other service providers (including Covered Employees) of MOI or its Subsidiaries or Affiliates;

 

(f)     all Liabilities of MOI or any of its Subsidiaries, Affiliates or equity owners relating to, or arising out of, any threatened or pending Litigation;

 

(g)    all Liabilities of MOI or any of its Subsidiaries or Affiliates (excluding, for the purposes hereof, FGL and its Subsidiaries) to, with respect to, or in respect of, any employee, agent, consultant or other service provider (including any Covered Employee), including under any MOI Employee Benefit Plan or any other Contract, or pursuant to Law;

 

(h)     all Liabilities relating to or in connection with each of the MIL-MOI Loan and the Shareholder-MOI Loan, or resulting from the MOI Reorganization;

 

(i)     all Liabilities in connection with, or relating to, MOI’s or any of its Affiliates’ occupancy, use, lease or sublease of the Headquarters on or prior to the Closing Date;

 

(j)     all of MOI’s commercial accounts payable other than (i) Elected Accounts Payable and (ii) commercial accounts payable attributable to the period from and after the date of the Confirmation Order; and

 

(k)    any other Liability that is not a Contributed MOI Liability.

 

 
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Excluded SLH Assets” means all assets of SLH or any of its Affiliates in and to the following:

 

(a)     any tangible or intangible asset of SLH or its Affiliates that is not primarily related to the ownership or operation of the SLH Business or any of the SLH Contributed Assets;

 

(b)     except as otherwise included as part of the SLH Contributed Assets, (i) organizational documents, qualifications to conduct business as a foreign entity, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, ownership interest transfer books, ownership interest certificates, and other documents relating to SLH’s or its Subsidiaries’ organization, maintenance, existence, and operation (except for any such Subsidiary included in the MOI Contributed Assets); (ii) Files and Records related to (A) Taxes paid or payable by SLH or (B) any Liabilities not included in the Contributed SLH Liabilities; (iii) except as otherwise provided in this Agreement, any Tax refund, deposit, prepayment, credit, attribute, or other Tax asset of or with respect to SLH or any of its Subsidiaries or Affiliates; (iv) any other Files and Records that are not primarily related to any SLH Contributed Asset; and (v) any Files and Records or other information to the extent they include any Privileged Communications;

 

(c)     all capital stock or ownership interests of SLH or any of its Subsidiaries (except in connection with the SLH Contributed Equity Interests);

 

(d)     all Cash Equivalents (except as otherwise included as part of the Contributed Assets as provided herein) and intercompany accounts receivable;

 

(e)     all Permits that are not part of the SLH Contributed Assets as provided herein;

 

(f)      all insurance policies and binders and, except to the extent otherwise included as part of the SLH Contributed Assets or set forth in Section 8.3, all claims, refunds and credits from insurance policies or binders due or to become due with respect to such policies or binders;

 

(g)     all of SLH’s rights under this Agreement or any Related Agreement;

 

(h)     all SLH Causes of Action arising out of or related to the Excluded SLH Assets;

 

(i)     all Intellectual Property owned, used, or held for use by SLH or any of its Subsidiaries or Affiliates that is not that is specifically associated with any SLH Contributed Vessel or otherwise included in the SLH Contributed Assets;

 

(j)     all Contracts other than the SLH Transferred Contracts;

 

(k)    all rights and interests in employee benefit plans, programs, policies, funds, practices, agreements or arrangements of SLH or its Subsidiaries or Affiliates;

 

(l)     all of SLH’s and its Subsidiaries’ rights, title and interest in and to any real property (including easements, rights-of-way and water rights) together with all buildings, other improvements, fixtures and appurtenances, and all other rights, privileges and entitlements thereunto belonging or appertaining;

 

 
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(m)   any CCF for the benefit of SLH or any its Subsidiaries or Affiliates or otherwise available for the use, maintenance or refurbishment of any Vessel owned or operated by SLH or any of its Subsidiaries or Affiliates;

 

(n)    all of SLH’s commercial accounts receivable other than (i) Elected Accounts Receivable and (ii) accounts receivable attributable to the period from and after the date of the Confirmation Order; and

 

(o)    those items set forth on Section 1.1-EA of the SLH Disclosure Schedule (as amended or supplemented from time to time pursuant to Section 5.8 or Section 8.3, as the case may be, or otherwise in accordance with this Agreement).

 

Excluded SLH Liabilities” means any Liabilities of SLH or any predecessor or any Subsidiary or Affiliate of SLH, of any nature whatsoever, existing before or on the Closing Date or arising thereafter, other than the Contributed SLH Liabilities. All of the Liabilities of SLH or any predecessor or any Subsidiary or Affiliate of SLH (including as described in the preceding sentence) not specifically and expressly contributed to the Company pursuant to this Agreement shall be referred to herein collectively as the “Excluded SLH Liabilities.” For the avoidance of doubt, and without limiting the foregoing, the Company shall not be obligated to assume, and it shall not assume, and SLH shall not be obligated to contribute, and shall not contribute, all of the following Liabilities of SLH or of any predecessor or Subsidiary or Affiliate of SLH other than the Contributed SLH Liabilities (and any such Liabilities shall be considered Excluded Liabilities for all purposes of this Agreement):

 

(a)     any Liability arising out of, under or in connection with the Excluded SLH Assets;

 

(b)     any Liability of SLH or any of its Affiliates for Taxes (except as expressly provided for in Section 6.4);

 

(c)     all Closing Liabilities not included as a Contributed SLH Liability;

 

(d)     all Liabilities of SLH under this Agreement or any Related Agreement and the Transactions or thereby;

 

(e)     all Liabilities regarding any vacation days, sick days or other paid time off or any bonus amounts accrued for services through and including the Closing with respect to employees, agents, consultants or other service providers of SLH or its Subsidiaries or Affiliates;

 

(f)     all Liabilities of SLH or any of its Subsidiaries, Affiliates or equity owners relating to, or arising out of, any threatened or pending Litigation;

 

(g)    except for the Secondment Liabilities, all Liabilities of SLH or any of its Subsidiaries or Affiliates (excluding, for the purposes hereof, FGL and its Subsidiaries) to, with respect to, or in respect of, any employee, agent, consultant or other service provider, including under any employee benefit plan or any other Contract, or pursuant to Law;

 

(h)    all Liabilities resulting from the SLH Reorganization;

 

 
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(i)     all of SLH’s commercial accounts payable other than (i) Elected Accounts Payable and (ii) commercial accounts payable attributable to the period from and after the date of the Confirmation Order; and

 

(j)     any other Liability that is not a Contributed SLH Liability.

 

FGL” has the meaning set forth in the recitals.

 

FGL Business” means the ownership, maintenance and operation of the two liftboat vessels set forth opposite FGL’s name on Annex A.

 

FGL Contribution Value” means an aggregate amount equal to $18,300,000, which is the deemed value of each of MOI’s and SLH’s equity interest in FGL, as of December 31, 2016.

 

FGL Impairment Charges” means the aggregate amount of any and all impairment charges with respect to FGL’s or any of its Subsidiaries assets for the period from and after December 31, 2016 until the Closing Date, subject to adjustment in accordance with Section 2.7.

 

FGL LLC Agreement” means that certain Limited Liability Company Agreement of FGL, dated and effective as of September 24, 2014, as amended, restated or modified from time to time in accordance with its terms.

 

FGL Term Loan” means that certain Loan Agreement, dated as of August 3, 2015, providing for a Senior Secured Term Loan, by and between (a) FGL, Falcon Pearl LLC and Falcon Diamond LLC, as joint and several borrowers, (b) DNB Markets, Inc. Clifford Capital Pte. Ltd. and NIBC Bank N.V., as mandated lead arrangers, (c) DNB Markets, Inc., as book runner, (d) DNB Bank ASA, New York Branch, as facility agent and security trustee, and (e) the lenders party thereto, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation.

 

Files and Records” means all files, documents, data, instruments, papers, computer files, information and records and all other books and records in any form or media (including any backup documentation and work papers), including construction drawings, reports, all records relating to assets, Liabilities, inspections, environmental reports and assessments, fixture plans, personnel records, ledgers, journals, studies, reports, budgets, forecasts, projections and competitive or capital spending analysis, information relating to Taxes, Tax Returns, sales literature, promotional literature, marketing materials, transactions and transaction histories, customer records, customer lists and prospective customer lists, customer information, price lists, mailing lists, distribution lists, policies, procedures, correspondence files and similar materials.

 

Financing Arrangements” has the meaning set forth in Section 5.9.

 

GAAP” means United States generally accepted accounting principles consistently applied.

 

Governmental Authority” means any federal, state, local, or foreign government or governmental or regulatory authority, agency, board, bureau, commission, court, department, or other governmental entity.

 

 
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Guarantee Fee Agreement” means that certain Guarantee Fee Agreement to be entered into on the Closing Date by and between SEACOR Parent, the Company and MOI, substantially in the form attached hereto as Exhibit C.

 

Hardware” means any and all computer and computer-related hardware, including, but not limited to, computers, file servers, facsimile servers, scanners, color printers, laser printers and networks.

 

Hazardous Materials” means (a) any petroleum, petroleum-derived substances, by-products or other hydrocarbons, flammable explosives, radioactive materials, radon, asbestos, or polychlorinated biphenyls and (b) any chemicals, wastes, materials or substances which are regulated, classified or defined as “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “pollutant” or “contaminant” or any similar denomination under any Environmental Law.

 

Headquarters” means the corporate office of MOI located at 17751 Highway 3235, Galliano, Louisiana.

 

Headquarters Lease” means that certain Lease Agreement for the Headquarters to be entered into on the Closing Date by and between the Company and Orgeron Real Estate, substantially in the form attached hereto as Exhibit D.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

 

Independent Accountants” has the meaning set forth in Section 2.7(b).

 

Independent Accountants Fees” has the meaning set forth in Section 2.7(b).

 

Intellectual Property” means (a) all issued patents and patent applications, together with all reissuances, continuations, continuations-in-part, divisionals, extensions and reexaminations thereof; (b) all Marks; (c) all copyrights, together with all registrations and applications for registration therefor and renewals in connection therewith; (d) all trade secrets, know-how, technology, improvements, drawings and inventions; and (e) all computer software (including data and databases).

 

IRC” means the Internal Revenue Code of 1986, as amended.

 

IRS” means the Internal Revenue Service.

 

Jones Act” means the Laws contained, in and promulgated under or in connection with, 46 U.S.C. § 50501, as amended or revised from time to time and any successor or replacement Laws, relating to the ownership and operation of vessels in the U.S. coastwise trade.

 

Knowledge” of MOI (and other words of similar import) means the actual knowledge, without inquiry, of those persons set forth on Section 1.1-K of the MOI Disclosure Schedule. “Knowledge” of SLH (and other words of similar import) means the actual knowledge, without inquiry, of those persons set forth on Section 1.1-K of the SLH Disclosure Schedule.

 

 
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Law” means any federal, state, local or foreign law (including any common law), constitution, treaty, statute, ordinance, rule, regulation, legal requirement, judgment, order, writ, injunction or decree of any Governmental Authority, which is applicable to the Transactions or the context in which the word Law is used in this Agreement, as the case may be.

 

Liability” means all indebtedness, losses, claims (including “claims” as defined in section 101(5) of the Bankruptcy Code), damages, expenses, fines or other penalties, costs, royalties, proceedings, deficiencies, duties, obligations and other liabilities (including those arising out of any Litigation, such as any settlement or compromise thereof or judgment or award therein) of a Person (whether absolute, accrued, contingent, fixed, liquidated or unliquidated, or otherwise, or whether known or unknown, or whether due or to become due, and whether in Contract, tort, strict liability or otherwise, and whether or not resulting from third-party claims).

 

License Agreement” has the meaning set forth in Section 2.5(a)(xiii).

 

Lien” means any mortgage, pledge, lien, charge, security interest, option, right of first refusal, right of first offer, servitude, easement, hypothecation, restrictive covenant, encroachment, security agreement, equitable interest, earn-out, conditional sale or other title retention device or arrangement, deed of trust, or other similar encumbrance or restriction of any kind, in each case whether contingent, fixed or otherwise or whether relating to any property or right or the income or profits therefrom; provided, however, that “Lien” shall not be deemed to include any license of Intellectual Property.

 

Litigation” means any action, cause of action, arbitration, suit, claim, investigation, audit, hearing or proceeding, whether civil, criminal, administrative, investigative or arbitral, whether at Law or in equity and whether before any Governmental Authority.

 

Marks” means, collectively, all trademarks, service marks, trade dress, logos, trade names, and Internet domain names, or other indicia of origin that includes, relates to or derives from any such marks, logos or dress or names, and any related abbreviations, acronyms or other formatives based thereon (whether alone or in combination with any other words, phrases or designs, and whether registered or not), together with all goodwill associated therewith (and any name or trademark, service mark, trade name, logo, Internet domain name, or other indicia of origin that is confusingly similar thereto or derived therefrom), and all common law rights, applications, registrations, and renewals in connection therewith.

 

Material MOI Contract” means a MOI Contract requiring payments to or from MOI or any of its Affiliates in excess of $250,000 per annum, or which is otherwise material to the MOI Business.

 

MGL” has the meaning set forth in the recitals.

 

MIL” has the meaning set forth in the recitals.

 

MIL-MOI Loan” means the amount of outstanding principal and accrued but unpaid interest, fees and other amounts payable by MIL to MOI pursuant to that certain Promissory Note, dated November 1, 2014, which amount as of the date of this Agreement is approximately $18,161,282.

 

 
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MOC” has the meaning set forth in the recitals.

 

MOI” has the meaning set forth in the preamble.

 

MOI Balance Sheet” has the meaning set forth in Section 3.16.

 

MOI Balance Sheet Date” has the meaning set forth in Section 3.16.

 

MOI Business” means the ownership, maintenance and operation of the MOI Contributed Assets (including the MOI Contributed Vessels and the MOI Contributed Equity Interests).

 

MOI Causes of Action” means, collectively, any rights, demands, claims, causes of action, prepayments, refunds, rights of recovery, credits, allowances, rebates, or rights of setoff or subrogation and other claims of MOI or its Subsidiaries or Affiliates against any Person (other than MOI or any of its Subsidiaries or Affiliates, or SLH or any of its Subsidiaries or Affiliates).

 

MOI Contract” means any Contract of MOI or any of its Affiliates primarily relating to the MOI Business.

 

MOI Contributed Assets” means (a) the MOI Contributed Equity Interests, (b) the MOI Contributed Vessels, and (c) all of MOI’s (or its Subsidiaries’ or Affiliates’) right, title, and interests in, to and under all of the business, assets, personal properties, contractual rights, goodwill, going concern value, rights and claims primarily related, and reasonably necessary, to the ownership and operation of the MOI Business, wherever situated and of whatever kind and nature, tangible or intangible, whether or not reflected on the books and records of MOI or any of its Subsidiaries or Affiliates (other than the MOI Excluded Assets) to be acquired at the Closing. Without limiting the foregoing, the MOI Contributed Assets include (without duplication) all of MOI’s (or its Subsidiaries’ or Affiliates’, as the case may be) rights, title and interests in, to and under each of the following assets:

 

(i)       each MOI Contributed Vessel’s engines, component parts, tackle, winches, cordage, general outfit, electronic and navigation equipment, radio installations, appurtenances, appliances, inventory, spare parts, stores, tools, supplies and provisions, whether on board or ashore;

 

(ii)      to the maximum extent permitted by the Bankruptcy Code, all MOI Transferred Contracts and the rights and benefits accruing thereunder, including each charter or other Contract with customers in effect at Closing for the utilization or deployment of each MOI Contributed Vessel;

 

(iii)     to the extent assignable to the Company under Law and to the maximum extent permitted by the Bankruptcy Code, each Permit held, used or intended to be used by MOI or any of its Affiliates in connection with or related to the MOI Business (including all such Permits set forth on Section 3.12(b) of the MOI Disclosure Schedule), and all of the rights and benefits accruing thereunder (for the avoidance of doubt, solely to the extent that the applicable Governmental Authority Consents to or otherwise approves the assignment or transfer of the applicable Permit but only to the extent such Consent or approval is required by the terms of such Permit);

 

 
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(iv)     all technical or regulatory documentation in any form or media pertaining to each MOI Contributed Vessel that MOI or any of its Subsidiaries or Affiliates have in their respective possession or which is physically aboard a MOI Contributed Vessel, including class certificates, loadline certificates, radio licenses, operating manuals, preventative maintenance manuals and other similar certificates, licenses, manuals and documentation;

 

(v)      all Files and Records of MOI or any of its Subsidiaries or Affiliates primarily relating to any MOI Contributed Asset;

 

(vi)      to the extent transferable, all rights of MOI or any of its Affiliates under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors to the extent primarily relating to the MOI Contributed Vessels or any of the MOI Contributed Assets (including, in each case, any of their respective component parts), or any services provided to MOI or any of its Affiliates primarily in connection with the MOI Contributed Vessels or the MOI Contributed Assets (including, in each case, any of their respective component parts), or to the extent otherwise primarily affecting any MOI Contributed Vessels or any MOI Contributed Assets (including, in each case, any of their respective component parts), other than any warranties, representations and guarantees pertaining exclusively to any MOI Excluded Assets;

 

(vii)     all Intellectual Property owned, used, or held for use by MOI or its Subsidiaries or Affiliates (and the right to use certain Marks that are described on Section 1.1-IP of the MOI Disclosure Schedule on the terms and conditions set forth in the License Agreement) and that is specifically associated with any MOI Contributed Vessel, including (A) all Intellectual Property (or the right to use certain Marks, as applicable) set forth on Section 1.1-IP of the MOI Disclosure Schedule and (B) the exclusive design rights and Intellectual Property related to, or in connection with, any 235 and 335 Class Vessels;

 

(viii)    all deposits, credits, advanced payments, security deposits, prepaid items and all prepaid or deferred charges and expenses primarily relating to any MOI Contributed Asset previously paid by MOI or any of its Subsidiaries or Affiliates (not including any amounts paid in connection with any Contract with any MOI employee or any agent or consultant related to the MOI Contributed Vessels, none of which amounts, if any, shall be deemed a reimbursable expense to MOI under this Agreement);

 

(ix)      all furniture, fixtures, trade fixtures, shelving, furnishings, equipment, vehicles, leasehold improvements, and other tangible personal property owned by MOI or any of its Affiliates or required for the MOI Business (including all artwork, desks, chairs, tables, Hardware, data processing equipment, information technology (other than such information technology used by MOI or any of its Subsidiaries pursuant to licenses that prohibit the sublicense or transfer thereof), copiers, telephone lines and numbers, facsimile machines and other telecommunication equipment, cubicles and miscellaneous office furnishings and supplies) that is located at the Headquarters;

 

(x)     subject to Section 8.3, all insurance proceeds received by MOI or any of its Subsidiaries or Affiliates in respect of any damage or loss to, or casualty affecting, any MOI Contributed Vessel as a result of events or circumstances occurring prior to the Closing Date, to the extent such damage, loss or casualty has not been fully repaired or restored at the time of the Closing;

 

 
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(xi)       all rights to refunds of any Taxes to the extent such Taxes constitute Contributed MOI Liabilities;

 

(xii)      all MOI Causes of Action arising out of or relating to any of the MOI Contributed Assets, including any rights against third parties under Transferred Contracts;

 

(xiii)     all Closing Assets attributable to, or in respect of, the MOI Contributed Assets;

 

(xiv)     all customer accounts of the MOI Contributed Vessels and the customer relationships and goodwill relating thereto;

 

(xv)      all rights, title and interest of MOI or any of its Subsidiaries or Affiliates in and to any property subject to a MOI Personal Property Lease that is used in or held for use in connection with the MOI Business, to the extent any such MOI Personal Property Lease is a Transferred Contract; and

 

(xvi)     without limiting the foregoing, all other business, assets, rights or properties used exclusively in connection with the ownership or operation of the MOI Business and not specifically set forth herein.

 

MOI Contributed Equity Interests” means, following completion of the MOI Reorganization, all of the equity interests, directly or indirectly, owned by MOI in MGL.

 

MOI Contributed Value” means an amount equal to (a) the MOI Contributed Vessels Value, minus (b) the aggregate amount of the Pre-Petition Facility Indebtedness, minus (c) the aggregate amount of the DIP Financing Indebtedness, plus (d) MOI’s Transaction Costs, plus (e) the amount of Closing Net Working Capital contributed by MOI to the Company, subject to adjustment pursuant to Section 2.7, plus (f) an amount equal to the FGL Contribution Value; minus (g) an amount equal to the product of (i) 0.50 multiplied by (ii) the aggregate amount of FGL Impairment Charges.

 

MOI Contributed Vessels” has the meaning set forth in the recitals.

 

MOI Contributed Vessels Value” means $163,359,700.

 

MOI Disclosure Schedule” has the meaning set forth in Article III.

 

MOI Employee Benefit Plans” has the meaning set forth in Section 3.11(a).

 

MOI Financial Statements” has the meaning set forth in Section 3.16.

 

MOI Insurance Policies” has the meaning set forth in Section 3.14.

 

 
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MOI Material Adverse Effect” means any effect, change, condition, circumstance, development or event that, individually or in the aggregate with all other effects, changes, conditions, circumstances, developments or events has had, or would reasonably be expected to have, a material adverse effect on the business, assets, operation, condition (financial or otherwise) or results of operation of the MOI Business or the MOI Contributed Assets (excluding the Excluded Assets and the Excluded Liabilities), taken as a whole, other than any effect, change, condition, circumstance, development or event arising from or related to: (a) general business or economic conditions in any of the geographical areas in which the MOI Contributed Vessels operate; (b) any condition or occurrence affecting the liftboat vessel industry generally; (c) national or international political or social conditions, including the engagement by any country in hostilities, whether commenced before or after the date hereof and whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack; (d) financial, banking, or securities markets (including any disruption thereof or any decline in the price of securities generally or any market or index); (e) the occurrence of any act of God or natural disaster, including any fire, flood, hurricane, tornado, or other weather event; (f) changes in Law or accounting rules; (g) the taking of any action expressly contemplated by this Agreement or any Related Agreement or taken with the prior written Consent of SLH; (h) the operations of the MOI Business in connection with the Bankruptcy Cases; (i) the sale of any Excluded MOI Assets to any third parties by MOI or any of its Affiliates; (j) any effects or changes arising from or related to the breach of this Agreement by SLH; and (k) the filing of the Bankruptcy Cases; provided, however, that in the case of the foregoing clauses (a) through (f), such effects, changes, conditions, circumstances, developments or events shall be taken into account in determining whether any material adverse effect has occurred to the extent that any such effects, changes, conditions, circumstances, developments or events have, or would reasonably be expected to have, a disproportionate effect on the Business (excluding the Excluded Assets and the Excluded Liabilities) or the Contributed Assets relative to other participants operating in the liftboat vessel industry.

 

MOI Personal Property Leases” has the meaning set forth in Section 3.9.

 

MOI Reorganization” means that certain internal reorganization involving MGL pursuant to which MIL will transfer to MOI all of the equity interests, directly or indirectly, owned by MIL in MGL, the consummation of such transfer to be in full payment and satisfaction of each of the MIL-MOI Loan and the Shareholder-MOI Loan.

 

MOI Transferred Contracts” has the meaning set forth in Section 5.8(a).

 

Non-Material MOI Contract” means a MOI Contract that is not a Material MOI Contract.

 

Non-Party Affiliates” has the meaning set forth in Section 9.14.

 

Ordinary Course of Business” means the ordinary and usual course of normal day to day operations of the Business through the date hereof consistent with past practice.

 

Orgeron Real Estate” means Orgeron Real Estate L.L.C., a Louisiana limited liability company.

 

Outside Date” has the meaning set forth in Section 8.1(b)(ii).

 

Party” and “Parties” have the meaning set forth in the preamble.

 

 
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Permit” means any franchise, approval, authorization, consent, clearance, permit, license, order, registration, certificate, variance or similar right issued, granted by, given by or under the authority of a Governmental Authority or pursuant to any Law.

 

Permitted Lien” means (a) Liens for Taxes not yet delinquent; (b) mechanic’s, workmen’s, repairmen’s, warehousemen’s, carrier’s or other similar Liens, including all statutory liens, arising or incurred in the Ordinary Course of Business, that in each case have been bonded over or otherwise secured (and with respect to any such Liens of MOI, such bond or security shall be in a manner acceptable to SLH in SLH’s reasonable discretion); (c) Liens for crew wages (including wages of the master of the applicable Vessel) incurred in the Ordinary Course of Business and that are not yet due and payable or that are being contested in good faith by appropriate proceeds; (d) Liens for general average or salvage (including contract salvage) and liens for wages of stevedores employed by or on behalf of the applicable Party or the operator, agent or master of the applicable Vessel, which in each case, that are not yet due and payable or that are being contested in good faith by appropriate proceedings; (e) Liens for necessaries provided to a Vessel incurred in the Ordinary Course of Business that are not yet due and payable; (f) other liens arising by operation of Law in the Ordinary Course of Business in connection with operating, maintaining or repairing a Vessel that are (1) not yet due and payable and (2) would not and will not materially detract from the value of such Vessel or materially interfere with the use of any such Vessel as currently used or contemplated to be used; (g) any other Liens affecting, with respect to MOI, the MOI Contributed Assets, or, with respect to SLH, the SLH Contributed Assets, as applicable, that the other Party has expressly stated are acceptable to such Party in a writing delivered to MOI or SLH, as applicable; (h) Liens under the Financing Arrangements of the Company and its Subsidiaries from and after the Closing; and (i) Liens that, individually and in the aggregate with all other Permitted Liens, do not and will not materially detract from the value of any of the Contributed Assets or materially interfere with the use of any of the Contributed Assets as currently used or contemplated to be used.

 

Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or any other entity, including any Governmental Authority or any group of any of the foregoing.

 

Plan” means the chapter 11 plan of reorganization of the Debtor MOI, which provides for the Transactions, including all exhibits and supplements thereto, and that is consistent with this Agreement and acceptable to SLH and MOI, as confirmed by the Confirmation Order.

 

Pre-Petition Facility” means that certain Second Amended and Restated Credit Agreement, dated as of January 29, 2016, by and among MOI, a non-Debtor affiliate of MOI and Orgeron Real Estate, as borrowers, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation.

 

Pre-Petition Facility Indebtedness” means, as of the Reference Date, the aggregate amount of indebtedness outstanding under the Pre-Petition Facility, including the principal and accrued but unpaid interest, fees and any other amounts actually due and payable under the Pre-Petition Facility.

 

 
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Privilege” has the meaning set forth in Section 5.6(c).

 

Privileged Communications” means any files, work product or other communications which are protected by Privilege arising under Law from a Party’s engagement of its legal counsel in connection with the Transactions or any matters related thereto (including, in the case of MOI, the Bankruptcy Cases).

 

Procedures Motion” means the motion or motions of MOI, in form and substance reasonably acceptable to SLH, seeking approval and entry of the Bidding Procedures Order, including that certain Motion for Approval filed by MOI on June 23, 2017, Docket No. 302.

 

Proration Period” has the meaning set forth in Section 6.4(b).

 

Qualified Bid” has the meaning given to such term in the Bidding Procedures Order.

 

Qualified Firm” has the meaning set forth in Section 8.3(a).

 

Reference Date” has the meaning set forth in Section 2.4.

 

Related Agreements” means the Company LLC Agreement, the Transition Ship Management Agreement, the Bills of Sale delivered pursuant to Section 2.5, the Guarantee Fee Agreement, the Assignment and Assumption Agreement, the Contribution Agreement, the Headquarters Lease, the Administrative Services Agreement and the License Agreement.

 

Release” means any release, spilling, emitting, leaking, pumping, pouring, emptying, injecting, depositing, disposing, discharging, dispersing, leaching or migrating into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Materials).

 

Removed Contract” has the meaning set forth in Section 5.8(e).

 

Representative” means, when used with respect to a Person, the Person’s controlled Affiliates (including Subsidiaries) and such Person’s and any of the foregoing Persons’ respective officers, directors, managers, members, shareholders, partners, employees, agents, representatives, advisors (including financial advisors, bankers, consultants, legal counsel, and accountants), and financing sources.

 

Restoration Cost” has the meaning set forth in Section 8.3(a).

 

SEACOR Acadian” means SEACOR Acadian Companies Inc., a Delaware corporation.

 

SEACOR Eagle” means SEACOR Eagle, LLC, a Delaware limited liability company.

 

SEACOR Hawk” means SEACOR Hawk, LLC, a Delaware limited liability company.

 

SEACOR Marine” means SEACOR Marine LLC, a Delaware limited liability company.

 

SEACOR Payroll” means SEACOR Marine Payroll Management LLC, a Delaware limited liability company.

 

 
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SEACOR Offshore” means SEACOR LB Offshore LLC, a Delaware limited liability company.

 

SEACOR Parent” means SEACOR Marine Holdings Inc., a Delaware corporation listed on the New York Stock Exchange under the symbol “SMHI”.

 

Secondment Liabilities” has the meaning set forth in Section 6.3(l).

 

Shareholder-MOI Loan” means the amount of outstanding principal and accrued but unpaid interest, fees and other amounts payable by Lee A. Orgeron to MOI pursuant to that certain Promissory Note, dated October 28, 2013, which amount as of the date of this Agreement is approximately $21,204,670.

 

SLBO” has the meaning set forth in the recitals.

 

SLH” has the meaning set forth in the preamble.

 

SLH Balance Sheet” has the meaning set forth in Section 4.15.

 

SLH Balance Sheet Date” has the meaning set forth in Section 4.15.

 

SLH Bareboat Charters” means, collectively, the bareboat charter agreement for the liftboat vessel Respect-265 and the bareboat charter agreement for the liftboat vessel Influence-265, in each case, as set forth and further described on Section 1.1-BC of the SLH Disclosure Schedule.

 

SLH Bareboat Payments” means the aggregate amount of all outstanding payments made by SLH or any of its Affiliates from and after June 13, 2017 until the Reference Date pursuant to the SLH Bareboat Charters.

 

SLH Bareboat Vessels” means, collectively, the liftboat vessel Respect-265 and the liftboat vessel Influence-265, which are the subject of the SLH Bareboat Charters.

 

SLH Business” means the ownership, maintenance and operation of the SLH Contributed Assets (including the SLH Contributed Vessels and the SLH Contributed Equity Interests).

 

SLH Cash Contribution” means $15,000,000.

 

SLH Causes of Action” means, collectively, any rights, demands, claims, causes of action, prepayments, refunds, rights of recovery, credits, allowances, rebates, or rights of setoff or subrogation and other claims of SLH or its Subsidiaries or Affiliates against any Person (other than SLH or any of its Subsidiaries or Affiliates, or MOI or any of its Subsidiaries or Affiliates).

 

SLH Contract” means any Contract of SLH or any of its Affiliates primarily relating to the SLH Business.

 

 
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SLH Contributed Assets” means (a) the SLH Contributed Equity Interests, (b) the SLH Contributed Vessels (whether contributed directly by SLH or one of its Affiliates, or, with respect to the C-Lift Vessels, indirectly through the contribution of the SLH Contributed Equity Interests), and (c) all of SLH’s (or its Subsidiaries’ or Affiliates’) right, title, and interests in, to and under all of the business, assets, personal properties, contractual rights, goodwill, going concern value, rights and claims primarily related, and reasonably necessary, to the ownership and operation of the SLH Business, wherever situated and of whatever kind and nature, tangible or intangible, whether or not reflected on the books and records of SLH or any of its Subsidiaries or Affiliates (other than the SLH Excluded Assets) to be acquired at the Closing (whether contributed directly by SLH or one of its Affiliates, or, with respect to the C-Lift Vessels, indirectly through the contribution of the SLH Contributed Equity Interests). Without limiting the foregoing, the SLH Contributed Assets include (without duplication) all of SLH’s (or its Subsidiaries’ or Affiliates’, as the case may be) rights, title and interests in, to and under each of the following assets (whether contributed directly by SLH or one of its Affiliates, or, with respect to the C-Lift Vessels, indirectly through the contribution of the SLH Contributed Equity Interests):

 

(i)      each SLH Contributed Vessel’s engines, component parts, tackle, winches, cordage, general outfit, electronic and navigation equipment, radio installations, appurtenances, appliances, inventory, spare parts, stores, tools, supplies and provisions, whether on board or ashore;

 

(ii)     all SLH Transferred Contracts and the rights and benefits accruing thereunder, including each charter or other Contract with customers in effect at Closing for the utilization or deployment of each SLH Contributed Vessel ;

 

(iii)     to the extent assignable to the Company under Law, each Permit held, used or intended to be used by SLH or any of its Affiliates in connection with or related to the SLH Business (including all such Permits set forth on Section 4.11(b) of the SLH Disclosure Schedule), and all of the rights and benefits accruing thereunder (for the avoidance of doubt, solely to the extent that the applicable Governmental Authority Consents to or otherwise approves the assignment or transfer of the applicable Permit but only to the extent such Consent or approval is required by the terms of such Permit);

 

(iv)     all technical or regulatory documentation in any form or media pertaining to each SLH Contributed Vessel that SLH or any of its Subsidiaries or Affiliates have in their respective possession or which is physically aboard an SLH Contributed Vessel, including class certificates, loadline certificates, radio licenses, operating manuals, preventative maintenance manuals and other similar certificates, licenses, manuals and documentation;

 

(v)     all Files and Records of SLH or any of its Subsidiaries or Affiliates primarily relating to any SLH Contributed Asset;

 

(vi)     to the extent transferable, all rights of SLH or any of its Affiliates under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors to the extent primarily relating to the SLH Contributed Vessels or any of the SLH Contributed Assets (including, in each case, any of their respective component parts), or any services provided to SLH or any of its Affiliates primarily in connection with the SLH Contributed Vessels or the SLH Contributed Assets (including, in each case, any of their respective component parts), or to the extent otherwise primarily affecting any SLH Contributed Vessels or any SLH Contributed Assets (including, in each case, any of their respective component parts), other than any warranties, representations and guarantees pertaining exclusively to any SLH Excluded Assets;

 

 
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(vii)     all Intellectual Property owned, used, or held for use by SLH or its Subsidiaries or Affiliates (and the right to use certain Marks that are described on Section 1.1-IP of the SLH Disclosure Schedule on the terms and conditions set forth in the License Agreement) and that is specifically associated with any SLH Contributed Vessel, including all Intellectual Property (or the right to use certain Marks, as applicable) set forth on Section 1.1-IP of the SLH Disclosure Schedule;

 

(viii)     all deposits, credits, advanced payments, security deposits, prepaid items and all prepaid or deferred charges and expenses primarily relating to any SLH Contributed Asset previously paid by SLH or any of its Subsidiaries or Affiliates;

 

(ix)       subject to Section 8.3, all insurance proceeds received by SLH or any of its Subsidiaries or Affiliates in respect of any damage or loss to, or casualty affecting, any SLH Contributed Vessel as a result of events or circumstances occurring prior to the Closing Date, to the extent such damage, loss or casualty has not been fully repaired or restored at the time of the Closing;

 

(x)       all rights to refunds of any Taxes to the extent such Taxes constitute Contributed SLH Liabilities;

 

(xi)      all SLH Causes of Action arising out of or relating to any of the SLH Contributed Assets, including any rights against third parties under Transferred Contracts;

 

(xii)     all Closing Assets attributable to, or in respect of, the SLH Contributed Assets;

 

(xiii)     the SLH Cash Contribution;

 

(xiv)     to the extent transferrable, the software systems and other information technology systems associated with the administration and management of the SLH Contributed Vessels that are set forth on Section 1.1-IT of the SLH Disclosure Schedule;

 

(xv)     all customer accounts of the SLH Contributed Vessels and the customer relationships and goodwill relating thereto;

 

(xvi)     all rights, title and interest of SLH or any of its Subsidiaries or Affiliates in and to any property subject to a SLH Personal Property Lease that is used in or held for use in connection with the ownership or operation of the SLH Business, to the extent any such SLH Personal Property Lease is a Transferred Contract; and

 

(xvii)     without limiting the foregoing, all other business, assets, rights or properties used exclusively in connection with the ownership or operation of the SLH Business and not specifically set forth herein.

 

 
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SLH Contributed Equity Interests” means all of the equity interests, directly or indirectly, owned by SLH in SLBO, and, following completion of the SLH Reorganization, all of the equity interests, directly or indirectly, owned by SLH in C-Lift.

 

SLH Contributed Value” means an amount equal to (a) the SLH Contributed Vessels Value, minus (b) $4,350,000, plus (c) an amount equal to the product of (i) 0.50 multiplied by (ii) the SLH Bareboat Payments, minus (d) the SLH Eagle/Hawk Indebtedness, plus (e) the SLH Cash Contribution, plus (f) the amount of Closing Net Working Capital contributed by SLH to the Company, subject to adjustment pursuant to Section 2.7, plus (g) the FGL Contribution Value, minus (h) an amount equal to the product of (i) 0.50 multiplied by (ii) the aggregate amount of FGL Impairment Charges, plus (i) the Voluntary Loan Amounts.

 

SLH Contributed Vessels” has the meaning set forth in the recitals.

 

SLH Contributed Vessels Value” means $112,950,600.

 

SLH Disclosure Schedule” has the meaning set forth in Article IV.

 

SLH Eagle/Hawk Facility” means, collectively, (a) that certain Credit Agreement, dated as of June 28, 2017, providing for a Senior Secured Credit Facility, by and between SEACOR Eagle, as borrower, DNB Bank ASA, as facility agent and security trustee, and the lenders party thereto, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation, and (b) that certain Credit Agreement, dated as of June 28, 2017, providing for a Senior Secured Credit Facility, by and between SEACOR Hawk, a borrower, DNB Bank ASA, as facility agent and security trustee, and the lenders party thereto, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation.

 

SLH Eagle/Hawk Indebtedness” means, as of the Reference Date, the aggregate amount of indebtedness outstanding under the SLH Eagle/Hawk Facility, including the principal and accrued but unpaid interest, fees and any other amounts actually due and payable under the SLH Eagle/Hawk Facility.

 

SLH Employee Benefit Plan” has the meaning set forth in Section 4.10(a).

 

SLH Financial Statements” has the meaning set forth in Section 4.15.

 

SLH Insurance Policies” has the meaning set forth in Section 4.13.

 

SLH Material Adverse Effect” means any effect, change, condition, circumstance, development or event that, individually or in the aggregate with all other effects, changes, conditions, circumstances, developments or events has had, or would reasonably be expected to have, a material adverse effect on the business, assets, operation, condition (financial or otherwise) or results of operation of the SLH Business or the SLH Contributed Assets (excluding the Excluded Assets and the Excluded Liabilities), taken as a whole, other than any effect, change, condition, circumstance, development or event arising from or related to: (a) general business or economic conditions in any of the geographical areas in which the SLH Contributed Vessels operate; (b) any condition or occurrence affecting the liftboat vessel industry generally; (c) national or international political or social conditions, including the engagement by any country in hostilities, whether commenced before or after the date hereof and whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack; (d) financial, banking, or securities markets (including any disruption thereof or any decline in the price of securities generally or any market or index); (e) the occurrence of any act of God or natural disaster, including any fire, flood, hurricane, tornado, or other weather event; (f) changes in Law or accounting rules; (g) the taking of any action expressly contemplated by this Agreement or any Related Agreement or taken with the prior written Consent of MOI; (h) the sale of any Excluded SLH Assets to any third parties by SLH or any of its Affiliates; and (i) any effects or changes arising from or related to the breach of this Agreement by MOI; provided, however, that in the case of the foregoing clauses (a) through (f), such effects, changes, conditions, circumstances, developments or events shall be taken into account in determining whether any material adverse effect has occurred to the extent that any such effects, changes, conditions, circumstances, developments or events have, or would reasonably be expected to have, a disproportionate effect on the Business (excluding the Excluded Assets and the Excluded Liabilities) or the Contributed Assets relative to other participants operating in the liftboat vessel industry.

 

 
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SLH Personal Property Leases” has the meaning set forth in Section 4.8.

 

SLH Reorganization” means that certain internal reorganization involving C-Lift and SEACOR Hawk pursuant to which (a) SEACOR Marine shall distribute its 99% equity interest in C-Lift to SEACOR Acadian, (b) SEACOR Acadian shall contribute such 99% equity interest in C-Lift to SLH, (c) SEACOR Offshore shall distribute its 1% equity interest in C-Lift to SLH, which will result in SLH owning 100% of the equity interests in C-Lift, (d) SEACOR Offshore shall distribute its 100% equity interest in SEACOR Hawk to SLH, and (e) SLH shall contribute such 100% equity interest in SEACOR Hawk to C-Lift.

 

SLH Transferred Contracts” has the meaning set forth in Section 5.8(a).

 

SLH’s Determination” has the meaning set forth in Section 2.7(a).

 

Sub-Bareboat Charters” means, collectively, (a) the sub-bareboat charter agreement in respect of the SLH Bareboat Charter for the liftboat vessel Respect-265, which such sub-bareboat charter agreement shall be entered into at or prior to Closing by and between SEACOR Offshore and the Company (or its Subsidiary designee) on substantially the same terms and conditions set forth in the applicable SLH Bareboat Charter, and (b) the sub-bareboat charter agreement in respect of the SLH Bareboat Charter for the liftboat vessel Respect-265, which such sub-bareboat charter agreement shall be entered into at or prior to Closing by and between SEACOR Offshore and the Company (or its Subsidiary designee) on substantially the same terms and conditions set forth in the applicable SLH Bareboat Charter.

 

Subject Party” has the meaning set forth in Section 9.1.

 

Subsidiary” means, with respect to any Person, means, on any date, any Person (a) the accounts of which would be consolidated with and into those of the applicable Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date or (b) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests or more than fifty percent (50%) of the profits or losses of which are, as of such date, owned, controlled or held by the applicable Person or one or more subsidiaries of such Person.

 

 
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Tax” or “Taxes” means any United States federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, stamp, occupation, premium, windfall profits, environmental (including taxes under section 59A of the IRC), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including any interest, penalty or addition thereto, whether disputed or not.

 

Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

Termination Payment” has the meaning set forth in Section 5.4(d)(i).

 

Transaction Costs” means, with respect to any Party and without duplication, such Party’s documented costs and expenses incurred solely in connection with this Agreement and the Transactions, including (a) all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants and (b) any costs, fees and expenses associated with obtaining any Consent in connection with the Transactions (including such costs, fees and expenses associated with any filings with, or notices to, Governmental Authorities or any other Person, including any such filings or notices required under Antitrust Laws), excluding, solely with respect to MOI, those fees, costs and expenses incurred by a Party in administering, managing or participating in the Bankruptcy Cases.

 

Transactions” means the transactions contemplated by this Agreement and the Related Agreements.

 

Transfer Tax” means all stamp, documentary, filing, recording, registration, sales, use, transfer, added-value or similar non-income Taxes, fees or governmental charges imposed under Law in connection with the Transactions.

 

Transferred Contracts” has the meaning set forth in Section 5.8(a).

 

Transition Ship Management Agreement” means that certain SHIPMAN 2009 Standard Ship Management Agreement to be entered into on the Closing Date by and between SEACOR Marine and the Company (or its designated Subsidiary), substantially in the form attached hereto as Exhibit E.

 

United States Citizen” means a citizen of the United States within the meaning of, and as interpreted under, the Jones Act, qualified to engage in the U.S. coastwise trade.

 

 
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Vessels” has the meaning set forth in the recitals.

 

Voluntary Loan” has the meaning given to such term in the FGL LLC Agreement.

 

Voluntary Loan Amounts” means, as of the Reference Date, the aggregate amount of outstanding principal and accrued but unpaid interest, fees and other amounts payable on any outstanding Voluntary Loans made by SLBO in respect of the failure of MGL to fund a capital contribution pursuant to the terms and conditions of Section 9.1 of the FGL LLC Agreement.

 

WARN Act” has the meaning set forth in Section 6.3(i).

 

Winning Bidder” has the meaning given to such term in the Bidding Procedures Order.

 

Section 1.2     Interpretations. Unless otherwise indicated herein to the contrary:

 

(a)     When a reference is made in this Agreement to an Article, Section, Exhibit, Annex, Schedule, clause or subclause, such reference shall be to an Article, Section, Exhibit, Annex, Schedule, clause or subclause of this Agreement.

 

(b)     The words “include,” “includes” or “including” and other words or phrases of similar import, when used in this Agreement, shall be deemed to be followed by the words “without limitation.”

 

(c)     The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

(d)     The word “if” and other words of similar import shall be deemed, in each case, to be followed by the phrase “and only if.”

 

(e)     The use of “or” herein is not intended to be exclusive.

 

(f)     The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of names and pronouns shall include the plural and vice versa.

 

(g)     All terms defined in this Agreement have their defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein.

 

(h)     References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any Contract shall be deemed to refer to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References herein to a Person are also to its successors and permitted assigns. Any reference herein to a Governmental Authority shall be deemed to include reference to any successor thereto. References from or through any date means, unless otherwise specified, from and including or through and including such date, respectively.

 

 
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(i)     Any reference herein to “Dollars” or “$” shall mean United States dollars.

 

(j)     References in this Agreement to materials or information “furnished to SLH” or “furnished to the Company” and other phrases of similar import include all materials or information made available to SLH, the Company or their respective Representatives in the data room prepared by MOI on or prior to 5:00 P.M. Eastern time on the date that is at least five (5) Business Days prior to the Closing or provided to SLH, the Company or their respective Representatives in response to requests for materials or information.

 

(k)     References to “days” shall refer to calendar days unless Business Days are specified. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day.

 

ARTICLE II
FORMATION OF VENTURE; CLOSING; RELATED TRANSACTIONS

 

Section 2.1     Formation of Company; Certain Transactions Prior to Closing.

 

(a)     Following execution of this Agreement and, in any event, prior to the Closing, SLH will cause the Company, and one or more wholly-owned Subsidiaries thereof, to be formed as a direct or indirect wholly-owned Subsidiary of SLH by (i) filing the Certificate of Formation with the Secretary of State of the State of Delaware and any other required documents with such other applicable Governmental Authorities as SLH shall determine after consultation with MOI and (ii) executing, or causing the execution of, a sole member limited liability company agreement of the Company. Prior to the Closing, SLH will cause the Company to take, and following the Closing, subject to the terms and conditions of the Company LLC Agreement, the Company will take, all actions reasonably requested by a Party to the extent necessary in order to permit such Party to comply with any Laws, subject to reimbursement by the requesting Party of any costs imposed on the Company (or, prior to the Closing, SLH) by such actions.

 

(b)     Following execution of this Agreement and, in any event, prior to the Closing, (i) SLH shall and shall cause its Affiliates to consummate the SLH Reorganization and (ii) MOI shall and shall cause its Affiliates to consummate the MOI Reorganization.

 

(c)     At least five (5) Business Days prior to the Closing Date, each of MOI and SLH may (but is not obligated to) elect by delivery of a written notice to the other Party, to contribute to the Company (i) commercial accounts receivable attributable to a period or period(s) prior to the date of the Confirmation Order (and, in the case of MOI, after the filing of the Bankruptcy Cases) (“Elected Accounts Receivable”) and (ii) those commercial accounts payable corresponding to such Elected Accounts Receivable during such period or period(s) (“Elected Accounts Payable”), in each case, subject to the Consent of such other Party (such Consent not to be unreasonably withheld, conditioned or delayed), and such written notice shall identify such period or periods and provide a reasonably detailed summary of all commercial accounts receivable and commercial accounts payable corresponding to such period or periods.

 

 
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Section 2.2     Contribution of Assets. On the terms and subject to the conditions set forth in this Agreement, at the Closing, each of SLH and MOI, as applicable, shall (or, if applicable, shall cause its applicable Affiliates to) contribute, transfer, assign, convey and deliver to the Company (or one or more wholly-owned Subsidiaries of the Company as may be designed by the Company), as a capital contribution to the Company by SLH or MOI, as applicable, and the Company shall (or shall cause such Subsidiary or Subsidiaries to) accept, assume and acquire, each of SLH’s and MOI’s respective Contributed Assets, free and clear of all Liens (other than any Permitted Liens). Nothing herein shall be deemed to contribute, transfer, assign, convey or deliver the Excluded Assets to the Company or any Subsidiary thereof (and neither the Company nor any Subsidiary of the Company shall accept, assume or acquire, and shall be deemed not to have accepted, assumed or acquired, any of the Excluded Assets), and each of SLH and MOI, as applicable, shall retain all of its respective right, title and interest in, to, and under its respective Excluded Assets.

 

Section 2.3     Assumption of Liabilities. On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Company shall (or shall cause one or more wholly-owned Subsidiaries of the Company as may be designed by the Company to) accept, assume and acquire each of SLH’s and MOI’s respective Contributed Liabilities. Notwithstanding anything in this Agreement to the contrary, neither the Company nor any Subsidiary of the Company shall accept, assume or acquire, and shall be deemed not to have accepted, assumed or acquired, any of the Excluded Liabilities, and each of SLH and MOI, as applicable, shall retain all of its respective Excluded Liabilities. 

 

Section 2.4     Closing. The closing of the Transactions (the “Closing”) shall take place at the offices of DLA Piper LLP located at 1000 Louisiana Street, Suite 2800, Houston, Texas 77002-5005 (or such other location as shall be mutually agreed upon by MOI and SLH) commencing at 10:00 A.M. Eastern Time on a date mutually agreed upon by MOI and SLH that is within ten (10) Business Days following the date of the Confirmation Order, or if, by the conclusion of such ten (10) Business Day period all of the conditions to the obligations of MOI and SLH to consummate the Transactions as set forth in Article VII (other than conditions that by their nature are to be satisfied at the Closing itself, but subject to the satisfaction or waiver of those conditions) are not satisfied or waived, then within five (5) Business Days following the date upon which all such conditions set forth in Article VII (other than conditions that by their nature are to be satisfied at the Closing itself, but subject to the satisfaction or waiver of those conditions) have been satisfied or waived, or such other date and time as MOI and SLH shall otherwise mutually agreed (such date, the “Closing Date”). Subject to Section 8.3, for purposes of this Agreement and the Transactions, the transfer from the Parties to the Company (or its wholly-owned Subsidiary designee) of possession of, title to and risk of loss associated with, the Contributed Assets shall be deemed to occur at 12:01 A.M. Eastern time, or such other time as shall be mutually agreed upon by MOI and SLH prior thereto, on the Closing Date (the “Reference Date”).

 

 
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Section 2.5     Closing Payments and Deliveries. On the Closing Date:

 

(a)     SLH shall (and shall cause its Affiliates or Subsidiaries, as applicable, to):

 

(i)     deliver to the Company and MOI the Company LLC Agreement, duly executed by SLH;

 

(ii)     pay to the Company, by wire transfer of immediately available funds to the account designated by SLH for the Company, an amount equal to the SLH Cash Contribution;

 

(iii)     deliver to the Company, or its Subsidiary designee, one or more Bills of Sale substantially in the form of Exhibit F (the “Bills of Sale”), duly executed by SLH and/or its applicable Affiliates or Subsidiaries, for the SLH Contributed Vessels (excluding the C-Lift Vessels);

 

(iv)     deliver to the Company an Assignment and Assumption Agreement substantially in the form of Exhibit G (the “Assignment and Assumption Agreement”), duly executed by SLH and/or its applicable Affiliates or Subsidiaries, for the Contributed Assets and Contributed Liabilities, and duly executed assignments of the U.S. trademark registrations and applications included in the SLH Contributed Assets, if any, in a form suitable for recording in the U.S. trademark office, and general assignments of all other Intellectual Property included in the SLH Contributed Assets;

 

(v)     deliver to the Company a Contribution Agreement substantially in the form of Exhibit H (the “Contribution Agreement”), duly executed by SLH, for the SLH Contributed Equity Interests;

 

(vi)     deliver to the Company the Transition Ship Management Agreement, duly executed by SEACOR Marine;

 

(vii)     deliver to the Company the Administrative Services Agreement, duly executed by SEACOR Marine;

 

(viii)     deliver to the Company and MOI the Guarantee Fee Agreement, duly executed by SEACOR Parent;

 

(ix)     deliver to the Company and MOI, evidence in form and substance reasonably acceptable to MOI, that the SLH Reorganization was duly and fully consummated prior to the Closing;

 

(x)     execute and deliver to the Company a certificate, in accordance with Treasury Regulation Section 1.1445-2(b), certifying that SLH is not a foreign person with the meaning of Section 1445 of the IRC;

 

(xi)     execute and deliver to the Company and MOI a certificate certifying to the amount of the SLH Eagle/Hawk Indebtedness;

 

 
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(xii)     deliver to MOI a duly executed certificate from an officer of SLH to the effect that each of the conditions specified in Section 7.2(a) and Section 7.2(b) is satisfied;

 

(xiii)     deliver to the Company, or its Subsidiary designee, a License Agreement substantially in the form of Exhibit I (the “License Agreement”), duly executed by SLH and/or its applicable Affiliates for the Marks with respect to which only a right to use such Mark is included in the Contributed Assets;

 

(xiv)     deliver to the Company, or its Subsidiary designee, the Sub-Bareboat Charters, duly executed by SEACOR Offshore; and

 

(xv)     execute and deliver to the Company, or its Subsidiary designee, all other instruments of conveyance and transfer, in form and substance reasonably acceptable to MOI, as are necessary to convey the SLH Contributed Assets to the Company and otherwise make effective the Transactions.

 

(b)     MOI shall (and shall cause its Affiliates or Subsidiaries, as applicable, to):

 

(i)     deliver to the Company and SLH the Company LLC Agreement, duly executed by MOI;

 

(ii)     deliver to the Company, or its Subsidiary designee, one or more the Bills of Sale, duly executed by MOI and/or its applicable Affiliates or Subsidiaries, for the MOI Contributed Vessels;

 

(iii)     deliver to the Company the Assignment and Assumption Agreement, duly executed by MOI and/or its applicable Affiliates or Subsidiaries, for the Contributed Assets and Contributed Liabilities, and duly executed assignments of the U.S. trademark registrations and applications included in the MOI Contributed Assets, if any, in a form suitable for recording in the U.S. trademark office, and general assignments of all other Intellectual Property included in the MOI Contributed Assets;

 

(iv)     deliver to the Company the Contribution Agreement, duly executed by MOI, for the MOI Contributed Equity Interests;

 

(v)     deliver to the Company and SLH, evidence in form and substance reasonably acceptable to SLH, that the MOI Reorganization was duly and fully consummated prior to the Closing;

 

(vi)     execute and deliver to the Company a certificate, in accordance with Treasury Regulation Section 1.1445-2(b), certifying that SLH is not a foreign person with the meaning of Section 1445 of the IRC;

 

(vii)     execute and deliver to the Company and SLH a certificate certifying to the amount of the Pre-Petition Facility Indebtedness and the DIP Financing Indebtedness;

 

 
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(viii)     deliver to SLH a duly executed certificate from an officer of MOI to the effect that each of the conditions specified in Section 7.1(a) and Section 7.1(b) is satisfied;

 

(ix)     deliver to SLH a copy of the Confirmation Order entered by the Bankruptcy Court;

 

(x)     deliver to the Company, or its Subsidiary designee, the License Agreement, duly executed by MOI and/or its applicable Affiliates for the Marks with respect to which only a right to use such Mark is included in the Contributed Assets, if applicable;

 

(xi)     deliver to the Company and SLH (or its applicable Affiliate) the Guarantee Fee Agreement, duly executed by MOI; and

 

(xii)     execute and deliver to the Company, or its Subsidiary designee, all other instruments of conveyance and transfer, in form and substance reasonably acceptable to SLH, as are necessary to convey the MOI Contributed Assets to the Company and otherwise make effective the Transactions.

 

(c)     the Company shall (or shall cause one or more wholly-owned Subsidiaries of the Company, as may be designed by the Company, to):

 

(i)     pay all Cure Costs necessary to cure all defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the Transferred Contracts;

 

(ii)     execute and deliver to SLH and MOI the Company LLC Agreement;

 

(iii)     execute and deliver to each of SLH and MOI (or their applicable Affiliates) the applicable Assignment and Assumption Agreement, for the Contributed Assets and Contributed Liabilities, as applicable;

 

(iv)     execute and deliver to each of SLH and MOI the applicable Contribution Agreement, for the MOI Contributed Equity Interests and the SLH Contributed Equity Interests, as applicable;

 

(v)     execute and deliver to SLH (or its applicable Affiliate) the Transition Ship Management Agreement;

 

(vi)     execute and deliver to SLH (or its applicable Affiliate) the Administrative Services Agreement;

 

(vii)     execute and deliver to SLH (or its applicable Affiliates) and MOI the Guarantee Fee Agreement;

 

(viii)     execute and deliver to Orgeron Real Estate the Headquarters Lease;

 

 
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(ix)     execute and deliver to each of SLH (or its applicable Affiliate) and, if applicable, MOI the applicable License Agreement, for the Marks to which only a right to use such Mark is included in the MOI Contributed Assets and the SLH Contributed Assets, as applicable,

 

(x)     execute and deliver to SLH (or its applicable Affiliate), the Sub-Bareboat Charters, duly executed by SEACOR Offshore;

 

(xi)     execute and deliver a counterpart signature page to this Agreement, agreeing to be bound by the terms and conditions of this Agreement that are applicable to the Company, and thereafter the Company shall be deemed a “Party” for purposes of this Agreement as though an original party hereto; and

 

(xii)     execute and deliver to any other Party all other instruments of conveyance and transfer, in form and substance reasonably acceptable to such other Party, as are necessary to convey the Contributed Assets to the Company, or its Subsidiary designee, and otherwise make effective the Transactions.

 

Section 2.6     Issuance of Common Units.

 

(a)     Concurrently with the Closing, the Company shall (and the Parties shall cause the Company to) issue a number of common units in the Company (the “Common Units”) to each of MOI and SLH, as applicable, determined as follows:

 

(i)     with respect to MOI, the Company shall issue to MOI an aggregate number of Common Units (rounded to the nearest whole Common Unit, if necessary) representing the same percentage of the total issued and outstanding Common Units (immediately after giving effect to the issuances contemplated by this Section 2.6) as the percentage obtained by dividing (A) the MOI Contributed Value by (B) the Aggregate Contributed Value; and

 

(ii)     with respect to SLH, the Company shall issue to SLH an aggregate number of Common Units (rounded to the nearest whole Common Unit, if necessary) representing the same percentage of the total issued and outstanding Common Units (immediately after giving effect to the issuances contemplated by this Section 2.6) as the percentage obtained by dividing (A) the SLH Contributed Value by (B) the Aggregate Contributed Value.

 

(b)     At least three (3) Business Days prior to the Closing Date, SLH shall deliver to MOI its good faith written determination, calculated in accordance with the policies and procedures set forth in the example statement of Common Units and Aggregate Contributed Value exchanged by, or on behalf of, the Parties on the date hereof by email with the subject line “Example Statement – Section 2.6(b)” (the “Example Statement”), of (i) the number of Common Units to be issued by the Company to each of MOI and SLH in accordance with Section 2.6(a) and (ii) the Aggregate Contributed Value and each of its component parts, including (A) the estimated Closing Net Working Capital contributed to the Company by each of SLH and MOI, (B) the estimated amount of FGL Impairment Charges, (C) the estimated amount of SLH Bareboat Payments, (D) the estimated amount of Closing Indebtedness and (E) the estimated amount of the Voluntary Loan Amounts, along with reasonable supporting information, documentation and calculations. MOI shall cooperate with SLH and provide SLH access to MOI’s and its Subsidiaries’ and Affiliates’ books, records and employees as are reasonably requested by SLH, and to the extent necessary, in each case, to enable SLH to complete and confirm the estimated calculations described in this Section 2.6, and, following such delivery of SLH’s written determination, SLH shall cooperate with MOI in responding to any questions by MOI regarding such written determination.

 

 
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(c)     For the avoidance of doubt, the Parties agree that, following Closing, (i) MOI shall not be liable for any Voluntary Loan Amounts and (ii) any such Voluntary Loan Amounts shall not be due to SLBO.

 

Section 2.7     Post-Closing Adjustment.

 

(a)     After the Closing Date, MOI, SLH and the Company shall cooperate and provide each other access to their respective books, records and employees as are reasonably requested, and to the extent necessary, in connection with the matters addressed in this Section 2.7. As soon as practicable after the Closing, but no later than forty-five (45) days after the Closing Date, SLH shall in good faith determine, in accordance with the policies and procedures set forth in the Example Statement, the (i) actual Closing Net Working Capital contributed to the Company by each of SLH and MOI, (ii) actual amount of FGL Impairment Charges, (iii) the actual amount of SLH Bareboat Payments, (iv) the actual amount of the Closing Indebtedness and (v) the actual amount of the Voluntary Loan Amounts, in each case, as of the Reference Date, and deliver to MOI its written determination of such amounts, along with reasonable supporting information, documentation and calculations (“SLH’s Determination”).

 

(b)     If MOI objects to SLH’s Determination, then MOI shall provide SLH written notice thereof forty-five (45) days after receiving SLH’s Determination, along with a reasonably detailed explanation of the nature and bases of such objections. If SLH and MOI are unable to agree on such disputed items contained in SLH’s Determination within forty-five (45) days after SLH’s receipt of MOI’s written notice of objections to SLH’s Determination, SLH and MOI shall refer such dispute to BDO USA, LLP or, if that firm declines to act as provided in this Section 2.7(b), another firm of independent public accountants mutually acceptable to MOI and SLH (the “Independent Accountants”), which firm shall make a final and binding determination as to only those matters in dispute (and only such matters), based on written (not oral) submissions so long as a copy of such submissions has been provided to the other Party, with respect to this Section 2.7(b) on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement, modify previously agreed to items among the Parties or assign a value to any particular item greater than the greatest value for such item claimed by any Party or less than the lowest value claimed by any Party. The fees, expenses and costs of the Independent Accountants (the “Independent Accountants Fees”) in connection with such review and report shall be paid by the Company; provided, however, that the Company shall apportion such Independent Accountants Fees to each of SLH and MOI pursuant to Section 2.7(d). If MOI does not object to SLH’s Determination within the time period and in the manner set forth in the first sentence of this Section 2.7(b) or if MOI accepts in writing SLH’s Determination, then (i) the actual Closing Net Working Capital contributed to the Company by each of SLH and MOI, (ii) the actual amount of FGL Impairment Charges, (iii) the actual amount of SLH Bareboat Payments, (iv) the actual amount of Closing Indebtedness and (v) the actual amount of the Voluntary Loan Amounts, in each case, as set forth in SLH’s Determination, shall become final and binding upon the Parties for all purposes hereunder. If MOI does object to SLH’s Determination within the time period and in the manner set forth herein, then (i) the actual Closing Net Working Capital contributed to the Company by each of SLH and MOI, (ii) the actual amount of FGL Impairment Charges, (iii) the actual amount of SLH Bareboat Payments, (iv) the actual amount of Closing Indebtedness and (v) the actual amount of the Voluntary Loan Amounts, in each case, as set forth in SLH’s Determination, shall become final and binding upon the Parties for all purposes hereunder, except with respect to, and only to the extent of, those matters objected to by MOI in such written notice objecting to SLH’s Determination.

 

 
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(c)     If the number of Common Units to be issued to each of MOI and SLH calculated as set forth in Section 2.6 using the actual Closing Net Working Capital contributed to the Company by each of SLH and MOI, the actual amount of FGL Impairment Charges, the actual amount of SLH Bareboat Payments, the actual amount of Closing Indebtedness and the actual amount of the Voluntary Loan Amounts (in each case, as finally determined or agreed pursuant to Section 2.7(b)), and the amount of Independent Accountants Fees, if any, apportioned to SLH and MOI by the Company pursuant to Section 2.7(d), (such number of Common Units of MOI or SLH, as applicable, the “Closing Common Units”)) is different than the number of Common Units that were issued to each of MOI and SLH at Closing (calculated using the estimated Closing Net Working Capital contributed to the Company by each of SLH and MOI, the estimated amount of FGL Impairment Charges, the estimated amount of SLH Bareboat Payments, the estimated amount of Closing Indebtedness and the estimated amount of the Voluntary Loan Amounts, in each case, pursuant to Section 2.6 (such number of Common Units of MOI or SLH, as applicable, the “Estimated Common Units”), then the Company shall (and SLH and MOI shall cause the Company to) take the following actions:

 

(i)     if the number of Closing Common Units of a Party is greater than the Estimated Common Units of such Party, the Company shall automatically issue to such Party, for no additional consideration, a number of Common Units equal to the result of (A) the Closing Common Units of such Party minus (B) the Estimated Common Units of such Party;

 

(ii)     if the number of Closing Common Units of a Party is less than the Estimated Common Units of such Party, the Company shall redeem from such Party, and cancel for no additional consideration, a number of Common Units equal to the result of (A) the Estimated Common Units of such Party minus (B) the Closing Common Units of such Party; and

 

(iii)     adjust, in the books and records of the Company, (A) MOI’s initial capital contribution to the Company and capital account to reflect the actual MOI Contributed Value (as finally determined or agreed pursuant to Section 2.7(b)) and (B) SLH’s initial capital contribution to the Company and capital account to reflect the actual MOI Contributed Value (as finally determined or agreed pursuant to Section 2.7(b)).

 

 
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(d)     Notwithstanding anything to the contrary in this Agreement, in the event the Company pays Independent Accountants Fees in connection with this Section 2.7, then each of SLH, MOI and the Company agree that (i) the Company shall apportion the aggregate amount of such Independent Accountants Fees to each of SLH, on the one hand, and MOI, on the other hand, based upon the percentage that the amount not awarded to such Party by the Independent Accountants bears to the amount actually contested by such Party in connection with the determination of the Independent Accountants pursuant to Section 2.7(b), and (ii) for the purposes of the determination of the Closing Common Units of MOI and SLH hereunder, (A) the MOI Contributed Value will be reduced by an amount equal to MOI’s applicable portion of the Independent Accountants Fees, if any, as determined pursuant to clause (i) above, and (B) the SLH Contributed Value will be reduced by an amount equal to SLH’s applicable portion of the Independent Accountants Fees, if any, as determined pursuant to clause (i) above, in each case, in full satisfaction of such Party’s applicable portion of the Independent Accountants Fees as determined in accordance with clause (i) above.

 

ARTICLE III
MOI’s REPRESENTATIONS AND WARRANTIES

 

MOI represents and warrants to SLH and the Company that the statements contained in this Article III are true and correct as of the date of this Agreement and as of the Closing, except as set forth in the disclosure schedule delivered to SLH by MOI as of the date of this Agreement (the “MOI Disclosure Schedule”).

 

Section 3.1     Organization of MOI; Good Standing. MOI is a corporation, duly organized, validly existing and in good standing under the Laws of the state of its incorporation and has, subject to the necessary authority from the Bankruptcy Court, all requisite power and authority to own, lease and operate its assets and to carry on its business as now being conducted and is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its business or the nature of its properties makes such qualification or licensing necessary, except where the failure to be so qualified or licensed, individually or in the aggregate, has not had, and would not reasonably be expected to have, a MOI Material Adverse Effect.

 

Section 3.2     Authorization of Transaction. Subject to the Bankruptcy Court’s entry of the Bidding Procedures Order, the Confirmation Order and any other necessary order to close the sale of the Contributed Assets as contemplated hereunder, MOI has full power and authority (including full corporate or other organizational power and authority) to execute and deliver this Agreement, the Related Agreements and all other agreements contemplated hereby to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement, the Related Agreements and all other agreements contemplated hereby to which MOI is a party have been duly authorized by MOI. Upon due execution hereof and thereof by MOI, this Agreement, the Related Agreements and all other agreements contemplated hereby to which MOI is a party (assuming in each case due authorization, execution and delivery by SLH and the Company where applicable) shall constitute, subject to the Bankruptcy Court’s entry of the Bidding Procedures Order, the Confirmation Order and any other necessary order to close the sale of the Contributed Assets, the valid and legally binding obligations of MOI, enforceable against MOI in accordance with their respective terms and conditions, subject to applicable bankruptcy, insolvency, moratorium, or other similar Laws relating to creditors’ rights and general principles of equity (the “Bankruptcy and Equity Exception”).

 

 
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Section 3.3     Noncontravention; Government Filings. Except as set forth on Section 3.3 of the MOI Disclosure Schedule, neither the execution and delivery of this Agreement, nor the consummation of the Transactions (including the assignments and assumptions referred to in Article II), will (a) conflict with or result in a breach or violation of or default under the organizational documents of MOI, (b) subject to the entry of the Confirmation Order and any other necessary order to close the sale of the Contributed Assets, materially conflict with, or result in any material violation or material breach of or material default (with or without notice or lapse of time, or both) under any Law or Decree to which MOI is subject in respect of the MOI Contributed Assets, or (c) subject to the entry of the Confirmation Order and any other necessary order to close the sale of the Contributed Assets, materially conflict with, result in a material breach or violation of, constitute a material default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under any Contract or Permit constituting a Contributed Asset to which MOI or any of its Affiliates is a party or to which it or any of the MOI Contributed Assets is subject or by which it or any of the MOI Contributed Assets are bound. Other than as required or pursuant to the Bankruptcy Code, the Confirmation Order, the HSR Act and any other necessary order of the Bankruptcy Court to close the sale of the MOI Contributed Assets, MOI is not required to give any notice to, make any material filing with, or obtain any material Consent from any Person in order for the Parties to consummate the Transactions or any Related Agreement.

 

Section 3.4     Title; Sufficiency; Capitalization. Immediately prior to the Closing, MOI will have, and, upon delivery to the Company on the Closing Date of the Related Agreements, and subject to the terms of the Confirmation Order and any other necessary order to consummate the Transactions, MOI will thereby transfer to the Company or its Subsidiaries, good and valid title to, or, in the case of property leased by MOI or its Affiliates, a valid leasehold interest in, or, in the case of Intellectual Property licensed to MOI or any of its Affiliates, a valid license in, all of the MOI Contributed Assets, free and clear of all Liens (other than any Permitted Liens). Except in connection with this Agreement, MOI is not a party to any option, warrant, right, Contract, call, put or other agreement or commitment providing for the disposition of acquisition of any interest in any of the MOI Contributed Vessels. The MOI Contributed Assets constitute all of the assets and properties, used or held for use in, or which are necessary for, the operation of the MOI Business and are sufficient for the Company to conduct the operation of the MOI Business from and after the Closing Date as currently conducted. Without limiting the generality of the forgoing, (a) as of immediately prior to Closing, MOI will be the direct owner, holder of record and beneficial owner of all MOI Contributed Equity Interests, (b) the MOI Contributed Equity Interests are owned free and clear of all Liens and restrictions on transfer other than those arising under this Agreement, the operating agreement of MGL, or applicable securities Laws, and (c) none of the MOI Contributed Equity Interests are subject to any voting trust, member or partnership agreement or voting agreement with respect to any purchase, sale, issuance, transfer, repurchase, redemption or voting other than those arising pursuant to this Agreement or the operating agreement of MGL, and MOI will thereby transfer to the Company, good and valid title to the MOI Contributed Equity Interests, free and clear of all Liens other than those arising under the operating agreement of MGL, applicable securities Laws or any Financing Arrangements of the Company or its Subsidiaries from and after Closing.

 

 
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Section 3.5     Litigation; Decrees. Other than the Bankruptcy Cases or with respect to any Excluded Liabilities or as set forth on Section 3.5 of the MOI Disclosure Schedule, (a) there is no material Litigation pending or, to MOI’s Knowledge, threatened, in each case, against MOI or any of its Affiliates in connection with the ownership or operation of the MOI Business, or to which any of the MOI Contributed Assets are, or, to MOI’s Knowledge would become, subject; (b) neither MOI nor any of its Affiliates or their respective assets or properties is subject to any outstanding material Decree applicable to the ownership, maintenance or operation of any MOI Contributed Asset; and (c) MOI is not subject to any outstanding Decree that would prevent or materially impair or materially delay MOI’s ability to consummate the Transactions or perform its obligations hereunder on a timely basis.

 

Section 3.6     Labor Relations. Except as set forth in Section 3.6 of the MOI Disclosure Schedule, (a) none of MOI or any of its Affiliates is a party to, bound by or negotiating any collective bargaining agreement or other arrangement with any worker collective, union, works council or other labor organization covering any Covered Employee or relating to any MOI Contributed Vessel, (b) there are not, nor have there been in the past three (3) years, any strikes, work stoppages, slowdowns, lockouts, picketing, or arbitrations pending or, to the Knowledge of MOI, threatened against or involving any of the Covered Employees or the MOI Contributed Vessels, (c) there are not, nor have there been in the past three (3) years, any material grievances or other labor disputes pending or, to the Knowledge of MOI, threatened against or involving any of the Covered Employees or the MOI Contributed Vessels and (d) there are not, nor have there been in the past three (3) years, any material unfair labor practice charges, grievances or complaints pending or, to the Knowledge of MOI, threatened by or on behalf of any of the Covered Employees. MOI and its Affiliates have complied and are in compliance in all material respects with all Laws in respect of personnel, labor, labor relations, employment and employment practices (including those related to registration, insurance, health, safety, immigration, classification, wages, hours, data privacy and discrimination) in connection with the Covered Employees.

 

Section 3.7     Brokers’ Fees. Other than the fees and expenses payable to Houlihan Lokey, Inc. in connection with the Transactions, which shall be borne by MOI, none of MOI or any of its Affiliates has entered into any Contract to pay any fees or commissions to any broker, finder or agent with respect to the Transactions for which SLH or any of its Affiliates, or the Company or any of its Subsidiaries, could become liable or obligated to pay.

 

Section 3.8     Taxes.

 

(a)     With respect to the MOI Contributed Assets and the ownership and operation of the MOI Business, MOI and its Affiliates have timely filed all material Tax Returns required to be filed with the appropriate Tax authorities in all jurisdictions in which such Tax Returns are required to be filed (taking into account any extension of time to file granted or to be obtained on behalf of MOI or any of its Affiliates), and all such Tax Returns are true, correct and complete in all material respects; and all material amounts of Taxes payable by or on behalf of MOI or any of its Affiliates have been timely paid (except as prohibited by the Bankruptcy Court).

 

(b)     MOI is not a foreign person within the meaning of section 1445 of the IRC.

 

 
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(c)     All deficiencies asserted or assessments in respect of an amount of Tax made as a result of any examinations by any Tax authority of the Tax Returns related to the MOI Contributed Assets or the ownership and operation of the MOI Business have been fully paid, and, except as set forth on Section 3.8 of the Disclosure Schedules, there are no audits or investigations by any Tax authority in progress (other than audits or investigations of which none of MOI, any of its Subsidiaries or any of their respective Representatives have received written notice and as to which none of MOI, any of its Affiliates or any of their respective Representatives have sent anything in writing to the applicable Tax authority), nor has any of MOI, any of its Affiliates or any of their respective Representatives received any written notice from any Tax authority that it intends to conduct such an audit or investigation, in each case, related to the MOI Contributed Assets or the ownership and operation of the MOI Business (other than any proof of claim filed by a taxing authority in the Bankruptcy Cases).

 

(d)     MOI and its Affiliates have complied in all respects with all Laws relating to the payment and withholding of Taxes with respect to the Contributed Assets and the ownership and operation of the MOI Business and have duly and timely withheld and paid over to the appropriate Tax authorities all amounts required to be so withheld and paid over under all Laws with respect to the MOI Contributed Assets and the ownership and operation of the MOI Business.

 

(e)     Since April 1, 2015, no written claim has been made by a Tax authority in a jurisdiction in which none of MOI or any of its Affiliates currently file a Tax Return such that MOI or any of its Affiliates is or may be subject to taxation by that jurisdiction with respect to the Contributed Assets or the ownership and operation of the MOI Business.

 

(f)     No agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including any applicable statute of limitation) has been executed or filed with any Tax authority by or on behalf of MOI or any of its Affiliates that would be binding on the Company or any of its Subsidiaries with respect to the MOI Contributed Assets and the ownership and operation of the MOI Business (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business).

 

(g)     There are no Liens for Taxes upon any of the Contributed Assets, except for Permitted Liens.

 

Section 3.9     Tangible Personal Property. Section 3.9 of the MOI Disclosure Schedule sets forth a list of all MOI Transferred Contracts that constitute leases of personal property (“MOI Personal Property Leases”) relating to personal property held, used or intended to be used by MOI or any of its Affiliates in connection with the ownership and operation of the MOI Business. MOI has made available to SLH and the Company true and complete copies of the MOI Personal Property Leases. Without limiting the generality of Section 3.4, (a) MOI or its applicable Affiliate has a valid and enforceable leasehold interest under each of the MOI Personal Property Leases, subject to the Bankruptcy and Equity Exception; (b) each of the MOI Personal Property Leases is in full force and effect; (c) there is no material default under any MOI Personal Property Lease by MOI or any of its Affiliate or, to the Knowledge of MOI, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder; and (d) no party to any of the MOI Personal Property Leases has exercised any termination rights with respect thereto.

 

 
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Section 3.10     Transferred Contracts; Contributed Vessels.

 

(a)     Each of the MOI Transferred Contracts is in full force and effect and is a valid and binding obligation of MOI or its applicable Affiliate, as the case may be, and, to MOI’s Knowledge, the other parties thereto, in accordance with its terms and conditions, in each case subject to the terms of the Confirmation Order and the Bankruptcy and Equity Exception.  MOI has made available to SLH and the Company true and complete copies of each MOI Transferred Contract in MOI’s or any of its Affiliates’ possession or control. There is no material default under any of the MOI Transferred Contracts by MOI or any of its Affiliates or, to the Knowledge of MOI, by any other party thereto, and none of MOI or any of its Affiliates has received any written notice of any default or event that with notice or lapse of time or both would constitute a default by MOI or any of its Affiliates under any MOI Transferred Contract. Subject only to the satisfaction of the Cure Costs applicable to the MOI Transferred Contracts and the entry of the Confirmation Order, each MOI Transferred Contract may be assumed by MOI and assigned to, and assumed by, the Company or its Subsidiaries pursuant to section 365 of the Bankruptcy Code.

 

(b)     Without limiting the generality of Section 3.10(a) or Section 3.12, (i) each MOI Contributed Vessel is lawfully and duly documented under the United States flag with a coastwise endorsement, with a valid and unexpired certificate of documentation issued by the U.S. Coast Guard, (ii) each MOI Contributed Vessel is eligible for operation in the coastwise trade of the United States, (iii) each MOI Contributed Vessel is afloat and in good operating condition for the trades in which it is currently operating, (iv) each MOI Contributed Vessel holds all valid and unexpired certificates, licenses and permits from the United States Coast Guard and other Governmental Authorities required for the operation of such MOI Contributed Vessel in its current trades, (v) to the Knowledge of MOI, no event has occurred and no condition exists that would materially or adversely affect the condition of any MOI Contributed Vessel and (vi) each MOI Contributed Vessel is in class and, to the Knowledge of MOI, free of any recommendations.

 

Section 3.11     MOI Employee Benefits.

 

(a)     Section 3.11(a) of the MOI Disclosure Schedule lists all MOI Employee Benefit Plans. “MOI Employee Benefit Plans” means “employee benefit plans,” as defined in section 3(3) of ERISA (whether or not subject to ERISA), including any “multiemployer plans” as defined in section 3(37) of ERISA, and all other employee benefit plans, programs, policies, funds, practices, agreements or arrangements, including bonus or incentive plans, equity or equity-linked arrangements, compensation or deferred compensation arrangements, change in control, severance or termination pay, sick leave, vacation pay or other paid time off, disability, medical insurance and life insurance, and any other benefit arrangement, in any case, adopted, sponsored, maintained, contributed to, or required to be contributed to, by MOI or any of its Affiliates, or in respect of which MOI or any of its Affiliates could reasonably be expected to have any Liability (including by virtue of any ERISA Affiliate relationship) with respect to any Covered Employee.

 

(b)     True, correct and complete copies of the following documents, with respect to each of the MOI Employee Benefit Plans, have been made available to SLH and the Company: (i) any plan documents, and all material amendments thereto, (ii) the most recent summary plan descriptions (including letters or other documents updating such descriptions), (iii) the most recent IRS determination letter or opinion letter with respect to any MOI Employee Benefit Plan that is a retirement plan, and (iv) any other related document(s) or items reasonably requested by SLH or the Company.

 

 
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(c)     Each of the MOI Employee Benefit Plans that is intended to qualify under section 401 of the IRC has been determined by the IRS to be so qualified, and, to the Knowledge of MOI, nothing has occurred with respect to any such plan which could reasonably be expected to adversely affect such favorable determination or the qualified status of such plan.

 

(d)     Each of the MOI Employee Benefit Plans is and has been adopted, operated, administered and maintained, in all material respects, in accordance with its terms and all provisions of Law.

 

(e)     None of MOI, any of its Affiliates, or any ERISA Affiliate, has any Liability to or in respect of any employee benefit plan, program, policy, fund, practice, agreement or arrangement which could result in any Liability to SLH or the Company from or after the Closing.

 

Section 3.12     Compliance with Laws; Permits.

 

(a)     MOI and its Affiliates are in compliance in all material respects with all Laws applicable to the ownership and operation of the MOI Business (except for Laws addressed in Section 3.13, which Laws are addressed in such Section). None of MOI, any of its Affiliates or any of their respective Representatives have received any notice of, or been charged with the material breach or violation of, any Laws applicable to the ownership and operation of the MOI Business. There are no investigations pending or, to the Knowledge of MOI, threatened against MOI or any of its Affiliates regarding the possible material breach or violation of any Laws applicable to the ownership and operation of the MOI Business.

 

(b)     Section 3.12(b) of the MOI Disclosure Schedule sets forth, with respect to each MOI Contributed Vessel, a list of all material Permits held, used or required to be used by MOI or any of its Affiliates, or otherwise required, in connection with or related to the ownership and operation of the MOI Business, including all such Permits required pursuant to any Law (including any Environmental Law), in each case that are in effect on the date hereof, and all applications for any such Permits that are in process on the date hereof. MOI and its applicable Affiliates are in compliance in all material respects with all such Permits. Such Permits constitute all Permits which are required for the ownership and operation of the MOI Business as presently conducted. Each such Permit is in full force and effect and has not expired. All applications required to have been filed for the renewal of such Permits have been duly filed on a timely basis with the appropriate Governmental Authority. None of MOI or any of its Affiliates has received any notice from any Governmental Authority or issuer of any such Permit with respect to the revocation, suspension, restriction, limitation or termination thereof nor is there any Litigation pending or, to MOI’s Knowledge, threatened, the object of which is to revoke, restrict, limit or terminate any such Permit. None of MOI or any of its Affiliates is in material default or violation of any term, condition or provision of any such Permit.

 

 
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(c)     Without limiting the generality of the forgoing, MOI and each of its Subsidiaries, Affiliates and Representatives is a United States Citizen to the extent such Person is required to be a United States pursuant to, or in connection with, the Jones Act in order for such Persons to engage in the MOI Business.

 

Section 3.13      Environmental Matters. With respect to each MOI Contributed Vessel: (a) MOI and each of its Affiliates is in, and during the past three (3) years has been in, compliance with all Environmental Laws in all material respects, and none of MOI or any of its Affiliates has received any written notice or allegation of any material breach or violation of any Environmental Laws which remains outstanding; (b) there is no material Litigation pending or, to MOI’s Knowledge, threatened against MOI or any of its Affiliates pursuant to Environmental Law, including with regard to any non-compliance with or Liability under Environmental Law and with regard to any Release of or exposure to any Hazardous Materials; and (c) there has been no Release of any Hazardous Material into the environment arising from MOI’s or any of its Affiliates’ operation of any MOI Contributed Vessel (i) in material violation of Environmental Law, (ii) that requires investigation, remediation or other response action to comply with Environmental Law, or (iii) that could reasonably be expected to result in personal or bodily injury or property damage, which in the case of (i), (ii), or (iii) could reasonably be expected to result in MOI or any of its Affiliates incurring material Liabilities under any Environmental Laws. Notwithstanding any other provisions of this Agreement, Section 3.12(b) and this Section 3.13 contain the exclusive representations of MOI and its Affiliates concerning any matter arising under Environmental Law.

 

Section 3.14     Insurance. Subject to Section 6.5, all of MOI’s and its Affiliates’ material policies of insurance by which the MOI Contributed Assets (the “MOI Insurance Polices”) are covered are in full force and effect. All premiums due on such MOI Insurance Policies have been paid or, if due and payable prior to the Closing, will be paid prior to the Closing in accordance with the payment terms of such MOI Insurance Policies. Subject to Section 6.5, all such MOI Insurance Policies are valid and binding in accordance with their terms and have not been subject to a lapse in coverage. Subject to Section 6.5, none of MOI, its Affiliates or any of their respective Representatives have received any notice of cancellation or non-renewal of any such MOI Insurance Policy. There are no material claims related to the MOI Business pending under any such MOI Insurance Policy as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. None of MOI or any of its Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such MOI Insurance Policy. The MOI Insurance Policies are of the type and in the amounts customarily carried by Persons operating liftboat vessels comparable to the MOI Contributed Vessels.

 

Section 3.15     Intellectual Property. MOI or its applicable Affiliates owns or has a valid right to use all Intellectual Property that is a MOI Contributed Asset and which is reasonably necessary for the conduct of the MOI Business as is currently conducted, and MOI or its applicable Affiliate has made all necessary filings and paid all necessary registration, maintenance and renewal fees for the purpose of maintaining all of the registered Intellectual Property that is a MOI Contributed Asset. To the Knowledge of MOI, none of MOI, any of its Affiliates or any of their respective Representatives have received from any third party any claim that MOI or any of its Affiliates is infringing the Intellectual Property of a third party, and no third party is infringing any Intellectual Property that is a MOI Contributed Asset.

 

 
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Section 3.16     Financial Statements. MOI has made available to SLH and the Company true and complete copies of MOI’s consolidated unaudited balance sheets as of June 30, 2017 (the “MOI Balance Sheet” and the date of the MOI Balance Sheet, the “MOI Balance Sheet Date”), and December 31, 2016 and the related unaudited statements of income (collectively, the “MOI Financial Statements”). The MOI Financial Statements (a) have been prepared in accordance with the books and records of MOI and its Subsidiaries, (b) have been prepared in accordance with GAAP throughout the periods indicated and (c) fairly present, in all material respects, the assets, liabilities, results of operations and financial condition of MOI and its Subsidiaries for such periods, subject to normal year-end audit adjustments and the absence of footnotes. Since the MOI Balance Sheet Date, except in connection with the Bankruptcy Cases, MOI and its Subsidiaries have operated the MOI Business only in the Ordinary Course of Business and none of MOI or any of its Subsidiaries has incurred any indebtedness, obligations or Liabilities of any kind that would have been required to be reflected in, reserved against or otherwise described in the MOI Balance Sheet or in the notes thereto in accordance with GAAP, other than Liabilities incurred in the Ordinary Course of Business since the MOI Balance Sheet Date, Liabilities under this Agreement or any of the Related Agreements, Excluded MOI Liabilities and Liabilities that would not reasonably be expected to result in a MOI Material Adverse Effect.

 

Section 3.17     MGL.

 

(a)     MGL has not conducted any business other than organizational-related activities and matters or, prior to its involvement in the Transactions, entered into any material Contracts with any Person other than the FGL LLC Agreement or in connection with the FGL Term Loan. As of the date hereof, and as of immediately prior to the Closing, MGL has no (i) assets or properties (whether real, personal, tangible or intangible) other than its ownership of fifty percent (50%) of the equity interests of FGL, or (ii) Liabilities or obligations other than for (A) organizational expenses related to FGL, (B) its obligations or Liabilities under the FGL LLC Agreement or in connection with the FGL Term Loan and (C) expenses associated with the negotiation and consummation of the Transactions.

 

(b)     MGL does not have and has never had any employees. MGL does not maintain, sponsor or contribute to, and could not incur any liability under any employment agreement, consulting agreement, collective bargaining agreement, benefit plan or any other policy or agreement for the remuneration of employees, including the payment of any salaries or other benefits. MGL is not party to, or a guarantor of, any Contract with any labor organization.

 

(c)     MGL is, and always has been, an entity taxable as a partnership or an entity disregarded from its owner for federal, state and local income tax purposes. MGL has not filed any election to be treated as anything other than a partnership for federal income tax purposes. No federal, state, local or foreign taxes are due and payable by MGL.

 

(d)     Except as a result of the consummation of the Transactions or in connection with the FGL Term Loan, MGL does not have any indebtedness, is not guarantor of any indebtedness for borrowed money of any Person, and is not (and its assets and properties are not subject to) any Lien.

 

 
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Section 3.18     No Other Representations or Warranties. Except for the representations and warranties expressly contained in Article IV and in the certificate delivered to MOI pursuant to Section 2.5(a)(xii), MOI acknowledges and agrees that neither SLH nor any of its Representatives has made, and that MOI has not relied upon, any representation or warranty, whether express or implied, with respect to SLH or any of SLH’s Affiliates or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to MOI by or on behalf of SLH. Except as expressly set forth in this Agreement, MOI acknowledges and agrees that the SLH Contributed Assets are sold “as is, where is” and that the Company agrees to accept the SLH Contributed Assets and the SLH Business in the condition they are in as of the Closing based on its own inspection examination and determination with respect to all matters.

 

ARTICLE IV
SLH’S REPRESENTATIONS AND WARRANTIES

 

SLH represents and warrants to MOI and the Company that the statements contained in this Article IV are true and correct as of the date of this Agreement and as of the Closing, except as set forth in the disclosure schedule delivered to MOI by SLH as of the date of this Agreement (the “SLH Disclosure Schedule”).

 

Section 4.1     Organization of SLH; Good Standing. SLH is, and the Company will be at Closing, a limited liability company duly organized, validly existing, and in good standing under the Laws of the State of its formation and has (and, in the case of the Company, will have at Closing) all requisite power and authority to own, lease, and operate its assets and to carry on its business as now being conducted and is (and, in the case of the Company, will be) duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of its business or the nature of its properties makes such qualification or licensing necessary, except where the failure to be so qualified or licensed, individually or in the aggregate, has not had, and would not reasonably be expected to have, an SLH Material Adverse Effect. The Company has not engaged in any activities or incurred any Liabilities other than in connection with the Transactions.

 

Section 4.2     Authorization of Transaction. SLH has full power and authority (including full limited liability company or other entity power and authority) to execute and deliver this Agreement, the Related Agreements and all other agreements contemplated hereby to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery, and performance of this Agreement, the Related Agreements and all other agreements contemplated hereby to which SLH is a party have been duly authorized by SLH. Upon due execution hereof and thereof by SLH, this Agreement, the Related Agreements and all other agreements contemplated hereby to which SLH is a party (assuming in each case due authorization, execution and delivery by MOI and the Company where applicable) shall constitute the valid and legally binding obligation of SLH, enforceable against SLH in accordance with their respective terms and conditions, subject to the Bankruptcy and Equity Exception.

 

 
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Section 4.3     Noncontravention; Government Filings. Except as set forth on Section 4.3 of the SLH Disclosure Schedule, neither the execution and delivery of this Agreement, nor the consummation of the Transactions (including the assignments and assumptions referred to in Article II) will (a) conflict with or result in a breach or violation of or default under organizational documents of SLH or the Company, (b) conflict with, or result in any violation or breach of or default (with or without notice or lapse of time, or both) under any Law or Decree to which SLH is subject in respect of the SLH Contributed Assets or (c) conflict with, result in a breach or violation of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under any Contract to which SLH or any of its Affiliates is a party or to which it or any of the SLH Contributed Assets is subject or by which it or any of the SLH Contributed Assets are bound, except, in the case of either clause (b) or clause (c), for such conflicts, breaches, violations, defaults, accelerations, rights or failures to give notice as would not, individually or in the aggregate, prevent or materially impair or delay SLH’s or the Company’s ability to consummate the Transactions or perform its obligations hereunder on a timely basis. Other than as required or pursuant to the Bankruptcy Code, the Confirmation Order, the HSR Act and any other necessary order of the Bankruptcy Court to close the sale or transfer of the SLH Contributed Assets, SLH is not required to give any notice to, make any material filing with, or obtain any material Consent from any Person in order for the Parties to consummate the Transactions or any Related Agreement.

 

Section 4.4     Title; Sufficiency; Capitalization. Immediately prior to the Closing, SLH (or its applicable Affiliates) will have, and, upon delivery to the Company on the Closing Date of the Related Agreements, and subject to the terms of the Confirmation Order and any other necessary order to consummate the Transactions, SLH will thereby transfer, or cause to be transferred, to the Company or its Subsidiaries, good and valid title to, or, in the case of property leased by SLH or its Affiliates, a valid leasehold interest in, or, in the case of Intellectual Property licensed to SLH or any of its Affiliates, a valid license in, all of the SLH Contributed Assets, free and clear of all Liens (other than any Permitted Liens). Except in connection with this Agreement and the SLH Reorganization, SLH is not a party to any option, warrant, right, Contract, call, put or other agreement or commitment providing for the disposition of acquisition of any interest in any of the SLH Contributed Vessels. The SLH Contributed Assets constitute all of the assets and properties, used or held for use in, or which are necessary for, the operation of the SLH Business and are sufficient for the Company to conduct the operation of the SLH Business from and after the Closing Date as currently conducted. Without limiting the generality of the forgoing, (a) as of immediately prior to Closing, SLH will be the direct owner, holder of record and beneficial owner of all SLH Contributed Equity Interests, (b) the SLH Contributed Equity Interests are owned free and clear of all Liens and restrictions on transfer other than those arising under this Agreement, the operating agreement of SLBO or the operating agreement of C-Lift, as applicable, or applicable securities Laws, and (c) none of the SLH Contributed Equity Interests are subject to any voting trust, member or partnership agreement or voting agreement with respect to any purchase, sale, issuance, transfer, repurchase, redemption or voting other than those arising pursuant to this Agreement or the operating agreement of SLBO or the operating agreement of C-Lift, as applicable, and SLH will thereby transfer to the Company, good and valid title to the SLH Contributed Equity Interests, free and clear of all Liens other than those arising under the operating agreement of SLBO or the operating agreement of C-lift, as applicable, applicable securities Laws or any Financing Arrangements of the Company from and after Closing.

 

 
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Section 4.5     Litigation; Decrees. Except as set forth on Section 4.5 of the SLH Disclosure Schedule, there is no material Litigation pending or, to SLH’s Knowledge, threatened, in each case, against SLH or any of its Affiliates in connection with the ownership or operation of the SLH Business, or to which any of the SLH Contributed Assets are, or, to SLH’s Knowledge would become, subject; neither SLH nor any of its Affiliates or their respective assets or properties is subject to any outstanding material Decree applicable to the ownership, maintenance or operation of any SLH Contributed Asset; and SLH is not subject to any outstanding Decree that would prevent or materially impair or materially delay SLH’s ability to consummate the Transactions or perform its obligations hereunder on a timely basis.

 

Section 4.6     Brokers’ Fees. None of SLH or any of its Affiliates has entered into any Contract to pay any fees or commissions to any broker, finder or agent with respect to the Transactions for which MOI or any of its Affiliates could become liable or obligated to pay.

 

Section 4.7     Taxes.

 

(a)     With respect to the SLH Contributed Assets and the ownership and operation of the SLH Business, SLH and its applicable Affiliates have timely filed all material Tax Returns required to be filed with the appropriate Tax authorities in all jurisdictions in which such Tax Returns are required to be filed (taking into account any extension of time to file granted or to be obtained on behalf of SLH or any of its Affiliates), and all such Tax Returns are true, correct and complete in all material respects; and all material amounts of Taxes payable by or on behalf of SLH or any of its Affiliates have been timely paid (except as prohibited by the Bankruptcy Court).

 

(b)     SLH is not a foreign person within the meaning of section 1445 of the IRC.

 

(c)     All deficiencies asserted or assessments in respect of an amount of Tax made as a result of any examinations by any Tax authority of the Tax Returns related to the SLH Contributed Assets or the ownership and operation of the SLH Business have been fully paid, and there are no audits or investigations by any Tax authority in progress (other than audits or investigations of which none of SLH, any of its Affiliates or any of their respective Representatives have received written notice and as to which none of SLH, any of its Affiliates or any of their respective Representatives have sent anything in writing to the applicable Tax authority), nor has any of SLH, any of its Affiliates or any of their respective Representatives received any written notice from any Tax authority that it intends to conduct such an audit or investigation, in each case, related to the SLH Contributed Assets or the ownership and operation of the SLH Business (other than any proof of claim filed by a taxing authority in the Bankruptcy Cases).

 

(d)     SLH and its Affiliates have complied in all respects with all Laws relating to the payment and withholding of Taxes with respect to the Contributed Assets and the ownership and operation of the SLH Business and have duly and timely withheld and paid over to the appropriate Tax authorities all amounts required to be so withheld and paid over under all Laws with respect to the SLH Contributed Assets and the ownership and operation of the SLH Business.

 

(e)     Since April 1, 2015, no written claim has been made by a Tax authority in a jurisdiction in which none of SLH or any of its Affiliates currently file a Tax Return such that SLH or any of its Affiliates is or may be subject to taxation by that jurisdiction with respect to the Contributed Assets or the ownership and operation of the SLH Business.

 

 
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(f)     No agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including any applicable statute of limitation) has been executed or filed with any Tax authority by or on behalf of SLH or any of its applicable Affiliates that would be binding on the Company or any of its Subsidiaries with respect to the SLH Contributed Assets and the ownership and operation of the SLH Business (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business).

 

(g)     There are no Liens for Taxes upon any of the Contributed Assets, except for Permitted Liens.

 

Section 4.8     Tangible Personal Property. Section 4.8 of the SLH Disclosure Schedule sets forth a list of all SLH Transferred Contracts that constitute leases of personal property (“SLH Personal Property Leases”) relating to personal property held, used or intended to be used by SLH or any of its Affiliates in connection with the ownership and operation of the SLH Business. SLH has made available to MOI and the Company true and complete copies of the SLH Personal Property Leases. Without limiting the generality of Section 4.4, (a) SLH or its applicable Affiliate has a valid and enforceable leasehold interest under each of the SLH Personal Property Leases, subject to the Bankruptcy and Equity Exception; (b) each of the SLH Personal Property Leases is in full force and effect; (c) there is no material default under any SLH Personal Property Lease by SLH or any of its Affiliates or, to the Knowledge of SLH, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder; and (d) no party to any of the SLH Personal Property Leases has exercised any termination rights with respect thereto.

 

Section 4.9     Transferred Contracts; Contributed Vessels.

 

(a)     Each of the SLH Transferred Contracts is in full force and effect and is a valid and binding obligation of SLH or its applicable Affiliate, as the case may be, and, to SLH’s Knowledge, the other parties thereto, in accordance with its terms and conditions, in each case subject to the Bankruptcy and Equity Exception.  SLH has made available to MOI and the Company true and complete copies of each SLH Transferred Contract in SLH’s or any of its Affiliates’ possession or control. There is no material default under any of the SLH Transferred Contracts by SLH or any of its Affiliates or, to the Knowledge of SLH, by any other party thereto, and none of SLH or any of its Affiliates has received any written notice of any default or event that with notice or lapse of time or both would constitute a default by SLH or any of its Affiliates under any SLH Transferred Contract.

 

(b)     Without limiting the generality of Section 4.9(a) or Section 4.11, and except as set forth on Section 4.9(b) of the SLH Disclosure Schedule, (i) each SLH Contributed Vessel and SLH Bareboat Vessel is lawfully and duly documented under the United States flag with a coastwise endorsement, with a valid and unexpired certificate of documentation issued by the U.S. Coast Guard, (ii) each SLH Contributed Vessel and SLH Bareboat Vessel is eligible for operation in the coastwise trade of the United States, (iii) each SLH Contributed Vessel and SLH Bareboat Vessel is afloat and in good operating condition for the trades in which it is currently operating, (iv) each SLH Contributed Vessel and SLH Bareboat Vessel holds all valid and unexpired certificates, licenses and permits from the United States Coast Guard and other Governmental Authorities required for the operation of such SLH Contributed Vessel in its current trades, (v) to the Knowledge of SLH, no event has occurred and no condition exists that would materially or adversely affect the condition of any SLH Contributed Vessel or any SLH Bareboat Vessel and (vi) each SLH Contributed Vessel and SLH Bareboat Vessel is in class and, to the Knowledge of SLH, free of any recommendations.

 

 
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Section 4.10     SLH Employee Benefits.

 

(a)     Section 4.10(a) of the SLH Disclosure Schedule lists each “SLH Employee Benefit Plan.”

 

(b)     True, correct and complete copies of the following documents, with respect to each of the SLH Employee Benefit Plans, have been made available to MOI and the Company: (i) any plan documents, and all material amendments thereto, (ii) the most recent summary plan descriptions (including letters or other documents updating such descriptions), and (iii) any other related document(s) or items reasonably requested by MOI or the Company.

 

(c)     Each of the SLH Employee Benefit Plans that is intended to qualify under section 401 of the IRC has been determined by the IRS to be so qualified, and, to the Knowledge of SLH, nothing has occurred with respect to any such plan which could reasonably be expected to adversely affect such favorable determination or the qualified status of such plan.

 

(d)     Each of the SLH Employee Benefit Plans is and has been adopted, operated, administered and maintained, in all material respects, in accordance with its terms and all provisions of Law.

 

Section 4.11     Compliance with Laws; Permits.

 

(a)     SLH and its Affiliates are in compliance in all material respects with all Laws applicable to the ownership and operation of the SLH Business (except for Laws addressed in Section 4.12, which Laws are addressed in such Section). None of SLH, any of its Affiliates or any of their respective Representatives have received any notice of, or been charged with the material breach or violation of, any Laws applicable to the ownership and operation of the SLH Business. There are no investigations pending or, to the Knowledge of SLH, threatened against SLH or any of its Affiliates regarding the possible material breach or violation of any Laws applicable to the ownership and operation of the SLH Business.

 

(b)     Section 4.11(b) of the SLH Disclosure Schedule sets forth, with respect to each SLH Contributed Vessel, a list of all material Permits held, used or required to be used by SLH or any of its Affiliates, or otherwise required, in connection with or related to the ownership and operation of the SLH Business, including all such Permits required pursuant to any Law (including any Environmental Law), in each case that are in effect on the date hereof, and all applications for any such Permits that are in process on the date hereof. SLH and its applicable Affiliates are in compliance in all material respects with all such Permits. Such Permits constitute all Permits which are required for the ownership and operation of the SLH Business as presently conducted. Each such Permit is in full force and effect and has not expired. All applications required to have been filed for the renewal of such Permits have been duly filed on a timely basis with the appropriate Governmental Authority. None of SLH or any of its Affiliates has received any notice from any Governmental Authority or issuer of any such Permit with respect to the revocation, suspension, restriction, limitation or termination thereof nor is there any Litigation pending or, to SLH’s Knowledge, threatened, the object of which is to revoke, restrict, limit or terminate any such Permit. None of SLH or any of its Affiliates is in material default or violation of any term, condition or provision of any such Permit.

 

 
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(c)     Without limiting the generality of the forgoing, SLH and each of its Subsidiaries, Affiliates and Representatives is a United States Citizen to the extent such Person is required to be a United States pursuant to, or in connection with, the Jones Act in order for such Persons to engage in the SLH Business.

 

Section 4.12     Environmental Matters(a)     . With respect to each SLH Contributed Vessel: (a) SLH and each of its Affiliates is in, and during the past three (3) years has been in, compliance with all Environmental Laws in all material respects, and none of SLH or any of its Affiliates has received any written notice or allegation of any material breach or violation of any Environmental Laws which remains outstanding; (b) there is no material Litigation pending, or to SLH’s Knowledge, threatened against SLH or any of its Affiliates pursuant to Environmental Law, including with regard to any non-compliance with or Liability under Environmental Law and with regard to any Release of or exposure to any Hazardous Materials; and (c) there has been no Release of any Hazardous Material into the environment arising from SLH’s or any of its Affiliates’ operation of any SLH Contributed Vessel in (i) material violation of Environmental Law, (ii) that requires investigation, remediation or other response action to comply with Environmental Law, or (iii) that could result in personal or bodily injury or property damage, which in the case of (i), (ii), or (iii) could reasonably be expected to result in SLH or any of its Affiliates incurring material Liabilities under Environmental Laws. Notwithstanding any other provisions of this Agreement, Section 4.11(b) and this Section 4.12 contain the exclusive representations of SLH and its Affiliates concerning any matter arising under any Environmental Law.

 

Section 4.13     Insurance. Subject to Section 6.5, all of SLH’s and its Affiliates’ material policies of insurance by which the SLH Contributed Assets (the “SLH Insurance Policies”) are covered are in full force and effect. All premiums due on such SLH Insurance Policies have been paid or, if due and payable prior to the Closing, will be paid prior to the Closing in accordance with the payment terms of such SLH Insurance Policies. Subject to Section 6.5, all such SLH Insurance Policies are valid and binding in accordance with their terms and have not been subject to a lapse in coverage. Subject to Section 6.5, none of SLH, its Affiliates or any of their respective Representatives have received any notice of cancellation or non-renewal of any such SLH Insurance Policy. There are no material claims related to the SLH Business pending under any such SLH Insurance Policy as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. None of SLH or any of its Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such SLH Insurance Policy. The SLH Insurance Policies are of the type and in the amounts customarily carried by Persons operating liftboat vessels comparable to the SLH Contributed Vessels.

 

 
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Section 4.14     Intellectual Property. Except as set forth on Section 4.14 of the SLH Disclosure Schedule, SLH or its applicable Affiliates owns or has a valid right to use all Intellectual Property that is an SLH Contributed Asset and which is reasonably necessary for the conduct of the SLH Business as is currently conducted, and SLH or its applicable Affiliate has made all necessary filings and paid all necessary registration, maintenance and renewal fees for the purpose of maintaining all of the registered Intellectual Property that is an SLH Contributed Asset. To the Knowledge of SLH, none of SLH, any of its Affiliates or any of their respective Representatives have received from any third party any claim that SLH or any of its Affiliates is infringing the Intellectual Property of a third party, and no third party is infringing any Intellectual Property that is an SLH Contributed Asset.

 

Section 4.15     Financial Statements. SLH has made available to MOI and the Company true and complete copies of SLH’s consolidated unaudited balance sheets as of June 30, 2017 (the “SLH Balance Sheet” and the date of the SLH Balance Sheet, the “SLH Balance Sheet Date”), and December 31, 2016 and the related unaudited statements of income (collectively, the “SLH Financial Statements”). The SLH Financial Statements (a) have been prepared in accordance with the books and records of SLH and its Subsidiaries, (b) have been prepared in accordance with GAAP throughout the periods indicated and (c) fairly present, in all material respects, the assets, liabilities, results of operations and financial condition of SLH and its Subsidiaries for such periods, subject to normal year-end audit adjustments and the absence of footnotes. Since the SLH Balance Sheet Date, SLH and its Subsidiaries have operated the SLH Business only in the Ordinary Course of Business and none of SLH or any of its Subsidiaries has incurred any indebtedness, obligations or Liabilities of any kind that would have been required to be reflected in, reserved against or otherwise described in the SLH Balance Sheet or in the notes thereto in accordance with GAAP, other than Liabilities incurred in the Ordinary Course of Business since the SLH Balance Sheet Date, Liabilities under this Agreement or any of the Related Agreements, Excluded SLH Liabilities and Liabilities that would not reasonably be expected to result in an SLH Material Adverse Effect.

 

Section 4.16     Sufficient Funds; Adequate Assurances. SLH has, and upon the Closing will have, immediately available funds sufficient for the satisfaction of all of SLH’s obligations under this Agreement, including the payment of the SLH Cash Contribution and all fees, expenses of, and other amounts required to be paid by, SLH in connection with the Transactions. SLH and the Company are and shall be capable of satisfying the conditions contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the Transferred Contracts and the related Contributed Liabilities.

 

Section 4.17     SLBO.

 

(a)     SLBO has not conducted any business other than organizational-related activities and matters or, prior to its involvement in the Transactions, entered into any material Contracts with any Person other than the FGL LLC Agreement or in connection with the FGL Term Loan. As of the date hereof, and as of immediately prior to the Closing, SLBO has no (i) assets or properties (whether real, personal, tangible or intangible) other than its ownership of fifty percent (50%) of the equity interests of FGL, or (ii) Liabilities or obligations other than for (A) organizational expenses related to FGL, (B) its obligations or Liabilities under the FGL LLC Agreement or in connection with the FGL Term Loan and (C) expenses associated with the negotiation and consummation of the Transactions.

 

 
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(b)     SLBO does not have and has never had any employees. SLBO does not maintain, sponsor or contribute to, and could not incur any liability under any employment agreement, consulting agreement, collective bargaining agreement, benefit plan or any other policy or agreement for the remuneration of employees, including the payment of any salaries or other benefits. SLBO is not party to, or a guarantor of, any Contract with any labor organization.

 

(c)     Since August 1, 2014, SLBO has elected to be classified as a corporation for federal income tax purposes. As of the date hereof, there are no federal, state, local or foreign taxes due and payable by SLBO.

 

(d)     Except as a result of the consummation of the Transactions or in connection with the FGL Term Loan, SLBO does not have any indebtedness, is not guarantor of any indebtedness for borrowed money of any Person, and is not (and its assets and properties are not subject to) any Lien.

 

Section 4.18     C-Lift.

 

(a)     C-Lift has not conducted any business other than organizational-related activities and matters or, prior to its involvement in the Transactions, entered into any material Contracts with any Person other than the operating agreements (or similar governing documents) for, as of the date hereof, SEACOR Eagle and, following the consummation of the SLH Reorganization, SEACOR Eagle and SEACOR Hawk or in connection with the SLH Eagle/Hawk Facility. Except for the assets, properties, Liabilities and obligations referenced on Section 4.18 of the SLH Disclosure Schedule, C-Lift has no material (i) assets or properties (whether real, personal, tangible or intangible) other than in connection with (A) as of the date hereof, its ownership of the equity interests of SEACOR Eagle, and (B) following consummation of the SLH Reorganization, its ownership of SEACOR Eagle and SEACOR Hawk, or (ii) Liabilities or obligations other than for (A) organizational expenses related to (1) as of the date hereof, SEACOR Eagle, and (2) following consummation of the SLH Reorganization, SEACOR Eagle and SEACOR Hawk, (B) its obligations or Liabilities in connection with the SLH Eagle/Hawk Facility or under the operating agreements (or similar governing documents) for, as of the date hereof, SEACOR Eagle, and, following consummation of the SLH Reorganization, SEACOR Eagle and SEACOR Hawk and (C) expenses associated with the negotiation and consummation of the Transactions.

 

(b)     C-Lift does not have and has never had any employees. C-Lift does not maintain, sponsor or contribute to, and could not incur any liability under any employment agreement, consulting agreement, collective bargaining agreement, benefit plan or any other policy or agreement for the remuneration of employees, including the payment of any salaries or other benefits. C-Lift is not party to, or a guarantor of, any Contract with any labor organization.

 

(c)     C-Lift is, and always has been, an entity taxable as a partnership or an entity disregarded from its owner for federal, state and local income tax purposes. C-Lift has not filed any election to be treated as anything other than a partnership for federal income tax purposes. No federal, state, local or foreign taxes are due and payable by C-Lift.

 

 
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(d)     Except as a result of the consummation of the Transactions or in connection with the SLH Eagle/Hawk Facility, C-Lift does not have any indebtedness, is not guarantor of any indebtedness for borrowed money of any Person, and is not (and its assets and properties are not subject to) any Lien.

 

Section 4.19     No Other Representations or Warranties. Except for the representations and warranties expressly contained in Article III and in the certificate delivered to SLH pursuant to Section 2.5(b)(viii), SLH acknowledges and agrees that neither MOI nor any of its Representatives has made, and that SLH has not relied upon, any representation or warranty, whether express or implied, with respect to MOI or any of MOI’s Affiliates or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to SLH by or on behalf of MOI. Except as expressly set forth in this Agreement, SLH and the Company acknowledges and agrees that the MOI Contributed Assets are sold “as is, where is” and SLH and the Company agree to accept the MOI Contributed Assets and the MOI Business in the condition they are in as of the Closing based on its own inspection examination and determination with respect to all matters.

 

ARTICLE V
PRE-CLOSING COVENANTS

 

The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing (except as otherwise expressly stated to apply to a different period):

 

Section 5.1     Efforts; Cooperation; Permits.

 

(a)     Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties shall use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, or advisable to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions (including by giving, or causing to be given, any notices to, making any filings with, and using commercially reasonable efforts to obtain any Consents of Governmental Authorities as are necessary and appropriate to consummate the Transactions). Without limiting the generality of the foregoing, (a) MOI shall use its commercially reasonable efforts to cause the conditions set forth in Section 7.1 that are within its control or influence to be satisfied or fulfilled and (b) SLH shall use its commercially reasonable efforts to cause the conditions set forth in Section 7.2 that are within its control or influence to be satisfied or fulfilled.

 

 
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(b)     As soon as practicable following the date of this Agreement, MOI and SLH shall reasonably cooperate and use their respective commercially reasonable efforts to obtain for the Company and its Subsidiaries all Permits required for the Company’s and its Subsidiaries’ ownership and operation (including maintenance and repairs) of the Contributed Assets from and after the Closing (including, with respect to Permits related to the MOI Business, all the Permits set forth on Section 3.12(b) of the MOI Disclosure Schedule, and, with respect to Permits related to the SLH Business, all the Permits set forth on Section 4.11(b) of the SLH Disclosure Schedule). Each of MOI and SLH shall reasonably cooperate and use their commercially reasonable efforts to provide all documents and/or information necessary to obtain such Permits for the Company and its Subsidiaries and execute such papers as may reasonably be required. From and after the date of this Agreement, the Parties will, subject to Section 6.1, cooperate to comply with, to the extent possible, all Laws so that the Company and its Subsidiaries may, from and after the Closing, operate the MOI Business and the SLH Business, in each case, in the Ordinary Course of Business until all of the required Permits can be transferred to, or obtained by, the Company and its Subsidiaries. To the extent permitted by applicable, and consistent with, Law, MOI and SLH, as applicable, shall (and, if required, with the Consent of any Governmental Authority) execute a power of attorney authorizing the Company and/or its applicable Subsidiaries to operate using such Permits of MOI or SLH, as applicable, and to execute and file, at such Party’s sole cost and expense, any documents or instruments (including fictitious name Consents, which shall be withdrawn as soon as the Company and/or its applicable Subsidiaries obtains its own applicable Permits) required in order to permit the Company and its Subsidiaries to lawfully operate under such Permits of MOI or SLH, as applicable, in accordance with the foregoing. The Company shall indemnify and hold each of MOI and SLH harmless for any Liability arising out of, related to, or resulting from any of the foregoing, including the granting of any power of attorney, other than to the extent arising out of MOI’s or SLH’s fraud, willful or intentional misconduct or gross negligence. Each Party will provide prompt notification to each other Party when any such Permit is obtained, taken, made, given or denied, as applicable, and will advise each other Party of any material communications with any Governmental Authority in connection therewith.

 

Section 5.2     Covenants Pending The Closing.

 

(a)     From and after the date of this Agreement until Closing, except (i) with respect to MOI, as set forth on Section 5.2 of the MOI Disclosure Schedule, (ii) with respect to SLH, as set forth on Section 5.2 of the SLH Disclosure Schedule, (iii) as required by Law or, with respect to MOI, by order of the Bankruptcy Court, (iv) as otherwise expressly contemplated by this Agreement or (v) with the prior written Consent of the other Party (which Consent shall not be unreasonably withheld, conditioned or delayed), each of MOI and SLH shall (and shall cause their respective Affiliates to) (A) conduct the operation of its respective Business only in the Ordinary Course of Business and (B) use its commercially reasonable efforts to (1) preserve the present business operations, organization and goodwill of its respective Business, (2) preserve the present relationships with material vendors and suppliers of its respective Business and (3) otherwise maintain its respective Contributed Vessels and Contributed Assets (and, in the case of MOI and its Affiliates, their respective employees) in their respective current condition. Without limiting the generality of the foregoing, each of MOI and SLH agrees from the date of this Agreement until the Closing to: (I) perform necessary repair and maintenance on its respective Contributed Vessels and Contributed Assets in the Ordinary Course of Business and as otherwise required by Law, and (II) use its respective commercially reasonable efforts to maintain and preserve its respective Contributed Vessels and Contributed Assets in their present condition (including by using their respective commercially reasonable efforts to renew, in the Ordinary Course of Business, any Permits constituting a Contributed Asset of such Party that come up for renewal), other than with respect to reasonable wear and tear in the Ordinary Course of Business.

 

 
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(b)     Except (i) with respect to MOI, as set forth on Section 5.2 of the MOI Disclosure Schedule, (ii) with respect to SLH, as set forth on Section 5.2 of the SLH Disclosure Schedule, (iii) as required by Law or, with respect to MOI, by order of the Bankruptcy Court, (iv) as otherwise contemplated by this Agreement or (v) with the prior written Consent of the other Party (which Consent shall not be unreasonably withheld, conditioned or delayed), neither MOI or SLH shall (and each of MOI and SLH shall cause their respective Subsidiaries and Affiliates not to), solely as it relates to its respective Business:

 

(i)     introduce any material change with respect to the operation of its Business, including any material change to its respective Contributed Vessels or the types, nature, composition or quality of its respective inventory, Capital Spares, services or other Contributed Assets;

 

(ii)     sell, lease (as lessor), transfer, assign, convey or otherwise dispose of, or impose or suffer to be imposed any Lien (except for Permitted Liens) on, any of its respective Contributed Assets (except for the purpose of disposing of obsolete or worthless properties or assets), or acquire any material properties or assets that would constitute a Contributed Asset;

 

(iii)     (A) with respect to MOI and its Affiliates, (I) enter into any Contract which would be a Material MOI Contract (or amend, modify or supplement in any material manner or renew or terminate any Material MOI Contract) or (II) within the five (5) Business Day period described in Section 5.8(c)(ii), enter into any Contract which would be a Non-Material MOI Contract; and (B) with respect to SLH, enter into any material SLH Contract that would be a Transferred Contract;

 

(iv)     other than as may be necessary to separate its respective Excluded Assets from its respective Contributed Assets, (A) amend, modify or supplement in a material manner or terminate any of its respective Transferred Contracts, Permits (constituting a Contributed Asset) or any of its other Contributed Assets, (B) waive, compromise or grant any release or relinquishment of any material rights or claims under any of its respective Transferred Contract, Permits (constituting a Contributed Asset) or any of its other Contributed Assets or (C) otherwise take any action not required by the terms of any of its respective Transferred Contracts, Permits (constituting a Contributed Asset) or any of its other Contributed Assets that would result in any increase in any payments to be made thereunder or that would adversely affect such Party’s rights thereunder or impose additional non-monetary obligations on such Party;

 

(v)     enter into any Contract for any capital expenditures in connection with any of its Contributed Assets in excess of $500,000 for any such individual commitment and $1,000,000 for all such commitments in the aggregate;

 

 
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(vi)     with respect to MOI and its Subsidiaries and Affiliates, increase the compensation or benefits of any Covered Employee;

 

(vii)     with respect to MOI and its Subsidiaries and Affiliates, terminate or transfer the employment of any Covered Employee, or alter the duties or responsibilities of any Covered Employee, in any case such that the applicable individual would no longer be a Covered Employee;

 

(viii)     with respect to MOI and its Subsidiaries and Affiliates, negotiate or enter into any collective bargaining agreement or other arrangement with any worker collective, union, works council or other labor organization covering the Covered Employees; or

 

(ix)     agree to do anything prohibited by this Section 5.2.

 

(c)     From and after the date of this Agreement until the Closing, the business and operations of FGL shall be conducted in the Ordinary Course of Business and otherwise in accordance with the terms and conditions of the FGL LLC Agreement. For the avoidance of doubt, and in furtherance of the forgoing, with respect to the business, management and operation of FGL between the date of this Agreement until Closing, the Parties and their respective applicable Affiliates may take any action with respect to FGL that is permitted by the FGL LLC Agreement (including making additional Capital Contributions (as defined in the FGL LLC Agreement) to FGL or making a Voluntary Loan) so long as such action is taken in accordance with the terms and conditions of, and applicable procedures therefor, if any, set forth in the FGL LLC Agreement; except that neither MOI or SLH shall (and each of MOI and SLH shall cause their respective Affiliates not to) exercise any of their respective rights under Article XIII of the FGL LLC Agreement. Each of MOI and SLH agrees to (and to cause its respective Affiliates to) waive any restrictions on, or conditions to, transfer, if any, set forth in the FGL LLC Agreement solely with respect to, and to the extent necessary to consummate, (i) the transfer of the MOI Contributed Equity Interests and the SLH Contributed Equity Interests to the Company, (ii) the MOI Reorganization and (iii) the SLH Reorganization.

 

Section 5.3     Consents; Regulatory Approvals.

 

(a)     In furtherance, and not in limitation, of Section 5.1, each Party will, in order to consummate the Transactions, (i) proceed diligently and in good faith, and use its commercially reasonable efforts, to obtain as promptly as practicable Consents required by it and to make all filings required to be made by it with, and to give all notices required to be given by it to, Governmental Authorities or any other Person in order to consummate the Transactions, which, includes those Consents set forth on, with respect to MOI, Section 5.3(a) of the MOI Disclosure Schedule, and, with respect to SLH, Section 5.3(a) of the SLH Disclosure Schedule (collectively, the “Approvals”), and (ii) provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith, subject to Section 6.10.

 

(b)     Each Party will provide prompt notification to each other Party when any such Consent is obtained, taken, made, given or denied, as applicable, and will advise each other Party of any material communications with any Governmental Authority or other Person regarding any of the Transactions.

 

 
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(c)     In furtherance of the forgoing Sections 5.3(a) and (b):

 

(i)      Each Party will prepare, as soon as is practical following execution of this Agreement, all necessary filings in connection with the Transactions that may be required to be filed by such Party with any applicable Governmental Authority or under the HSR Act or under any other federal, state or local Laws. Each Party will submit such filings as soon as practicable after the execution hereof (except for filings with the Bankruptcy Court, which such filings are addressed solely in Section 5.4), and, with respect to such filings under the HSR Act, as soon as practicable following the date on which SLH is selected as the Winning Bidder at the Auction or such earlier date on which the Bankruptcy Court determines that there are no Competing Transactions or Qualified Bids other than the Transactions. The Parties will request expedited treatment of any such filings, will promptly furnish each other with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, will promptly make any appropriate or necessary subsequent or supplemental filings and will promptly cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each Party has the right to review in advance a copy of (and all information related to MOI or SLH or any of its respective Contributed Assets, in each case as applicable, and the Transactions with respect to) any filing with any Governmental Authority made by any other Party in connection with the Transactions.

 

(ii)      Each Party will, and will cause its respective Affiliates to, cooperate in good faith with the applicable Governmental Authorities and other Persons in obtaining as promptly practicable the Approvals.

 

(iii)     Each Party will promptly furnish the other Party copies of any notices or written communications received by such Party or any of its Representatives from any Governmental Authority concerning the Transactions, and each Party will permit counsel to the other Party an opportunity to review in advance, and such Party will consider in good faith the views of, or changes proposed by, such counsel in connection with, any proposed filing or other communications by such Party and/or its Affiliates to any Governmental Authority concerning the Transactions; provided that the Parties shall have the joint right to approve in advance any filing or other communication that must be submitted jointly by SLH and MOI. Each Party will provide the other Party and their counsel the opportunity, on reasonable advance notice, to participate in any substantive meetings or discussions, either in person or by telephone, between such Party and/or any of its Affiliates or Representatives, on the one hand, and any Governmental Authority, on the other hand, concerning the Transactions.

 

 
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Section 5.4     Bankruptcy Court Matters.

 

(a)     Competing Transactions. This Agreement is subject to approval by the Bankruptcy Court and the marketing process set forth in the Bidding Procedures Order.

 

(b)     Bankruptcy Court Filings. If SLH is selected as the Winning Bidder at the auction undertaken pursuant to the Bidding Procedures Order (the “Auction”) or such earlier date on which the Bankruptcy Court determines that there are no Competing Transactions or Qualified Bids other than the Transactions, MOI agrees as follows:

 

(i)     MOI shall (1) as promptly as practicable following the closing of the Auction, or such earlier date on which the Bankruptcy Court determines that there are no Competing Transactions or Qualified Bids other than the Transactions, file with the Bankruptcy Court, and use its reasonable best efforts to obtain approval of, the Disclosure Statement and the Plan, in each case (I) consistent with the terms and conditions of the Transactions and (II) acceptable in form and substance to each of MOI and SLH, and (2) use its reasonable best efforts to seek entry of the Confirmation Order in form and substance (including with respect to all findings of fact and conclusions of Law) acceptable to the Parties. SLH agrees that it will promptly take such actions as are reasonably requested by MOI to assist in obtaining the Bankruptcy Court’s entry of the Confirmation Order and a finding of adequate assurance of future performance by the Company, including assisting in furnishing affidavits or other documents or information for filing with the Bankruptcy Court for the purposes, among others, of providing necessary assurances of performance by SLH under this Agreement and demonstrating that SLH is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code. MOI shall file such motions or pleadings as may be appropriate or necessary to assume and assign the MOI Transferred Contracts in accordance with the Transactions and to determine the amount of the Cure Costs (in consultation with SLH and subject to Section 5.8); provided that, subject to Section 5.8, nothing herein shall preclude MOI from filing motions to reject any Contracts that are not MOI Transferred Contracts.

 

(ii)     MOI agrees that all pleadings (including any motions or plans) filed by MOI or any of its Affiliates in the Bankruptcy Cases shall be consistent with (and shall not conflict with, supersede, abrogate, nullify, modify, interfere with or restrict) the terms and conditions of this Agreement and otherwise reasonably acceptable in form and substance to SLH and MOI; provided, however, that all such pleadings that pertain or relate in any way to SLH or the Transactions must be acceptable in form and substance to SLH in its sole direction.

 

(iii)     In the event the Confirmation Order, Bidding Procedures Order or any other orders of the Bankruptcy Court relating to this Agreement shall be appealed or petition for certiorari or motion for rehearing or reargument shall be filed with respect thereto, MOI agrees to use its reasonable best efforts to defend against such appeal, petition or motion and SLH agrees to reasonably cooperate in such efforts.

 

 
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(iv)     Following the closing of the Auction, or such earlier date on which the Bankruptcy Court determines that there are no Competing Transactions or Qualified Bids other than the Transactions, MOI shall not, nor shall it authorize or permit any of its Affiliates or Representatives to, solicit or otherwise encourage any Person with respect to the submission of any inquiries, proposals or offers of any Competing Transaction with respect to the sale or disposition of any of the MOI Contributed Assets or negotiating the terms or conditions of any such Competing Transaction; provided, however, that so long as MOI is not in breach of this Section 5.4, nothing shall prohibit MOI or its Affiliates or Representatives from entering into confidentiality agreements with any Person or furnishing to any Person any information relating to the MOI Contributed Assets with respect to any unsolicited proposal or expression of interest, which constitutes a Competing Transaction, that MOI determines in good faith would have constituted the Winning Bid if submitted during the Auction (an “Alternative Transaction”). MOI shall as promptly as practicable (any in any event within twenty-four (24) hours after receipt) inform SLH of any proposal (or any subsequent modification to the material terms thereof, including price) (written or oral) for an Alternative Transaction received and any information received related to the price and material terms and conditions of such Alternative Transaction except to the extent MOI is advised in writing by external counsel that Antitrust Laws, the proceedings in the Bankruptcy Cases or other Law prohibit sharing such information.

 

(c)     Back-up Bidder. MOI and SLH agree that, if SLH is not the Winning Bidder at the Auction, but SLH is selected as the Back-up Bidder in accordance with the Bidding Procedures Order, then (a) MOI shall give SLH prompt written notice of such fact, and (b) notwithstanding anything to the contrary in this Agreement, if MOI gives written notice to SLH on or before the Back-up Termination Date, certifying that MOI (i) failed to consummate the sale with the Winning Bidder in the Auction and (ii) terminated the purchase or acquisition agreement with the Winning Bidder in the Auction, SLH and MOI shall promptly consummate the Transactions upon the terms and conditions as set forth herein and the Bidding Procedures Order.

 

(d)     Approval of Break-up Fee and Expense Reimbursement.

 

(i)     In consideration for SLH having expended considerable time and expense in connection with this Agreement and the negotiation thereof and the identification and quantification of assets of MOI, MOI shall pay SLH, in accordance with the terms and subject to the express conditions hereof and the Bidding Procedures Order, (a) a break-up fee in an amount equal to $3,960,000 (the “Break-up Fee”) plus (b) the amount of the reasonable out-of-pocket costs, fees and expenses of SLH and its Subsidiaries (including reasonable legal, financial advisory, accounting and other similar costs, fees and expenses) incurred in connection with the Transactions (to the extent such out-of-pocket costs, fees and expenses of SLH and its Subsidiaries are not otherwise paid or reimbursed by MOI under its cash collateral orders) up to an aggregate amount of $1,000,000 (such reimbursement of expenses collectively with the Break-up Fee, the “Termination Payment”). MOI shall use its reasonable best efforts to seek the approval of the Bankruptcy Court of the Procedures Motion and the Transactions, including the Termination Payment (and deeming the Termination Payment as administrative priority expenses under Sections 503(b) and 507(a)(l) of the Bankruptcy Code), and the entry by the Bankruptcy Court of the Bidding Procedures Order approving the payment of the Termination Payment pursuant to the terms of this Section 5.4(d).

 

 
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(ii)     The Termination Payment shall be paid within five (5) Business Days following the occurrence of: (A) the Bankruptcy Court’s approval of a Competing Transaction, (B) the termination of this Agreement by SLH pursuant to Section 8.1(c), or (C) the termination of this Agreement for any other reason in accordance with the terms and conditions of Article VIII; provided that, in the case of this clause (C), at the time of such termination, SLH would have been permitted to terminate this Agreement in accordance with Section 8.1(c).

 

Section 5.5     Notice of Developments. Each Party will give prompt written notice to the other Parties of (a) the existence of any fact or circumstance, or the occurrence of any action or event, of which it has Knowledge that has caused, or would reasonably be likely to cause, a condition to a Party’s obligations to consummate the Transactions set forth in Article VII not to be timely satisfied, (b) the receipt of any notice or other communication from any Governmental Authority in connection with the Transactions, (c) any Casualty Event or (d) any events or developments that materially affect the MOI Contributed Value or the SLH Contributed Value (including any FGL Impairment Charges), as applicable. The delivery of any notice pursuant to this Section 5.5 shall not have any effect on the representations, warranties, covenants and agreements contained in this Agreement for purposes of determining satisfaction of any condition herein and shall not be deemed to amend or supplement this Agreement. The failure to deliver any such notice shall not constitute a waiver of any right or condition to the consummation of the Transactions by any Party.

 

Section 5.6     Access; No Contact.

 

(a)     Upon the reasonable request of SLH and to the extent not otherwise prohibited by Law, MOI will (and MOI will cause its Representatives and Affiliates to) permit SLH and its Representatives to have, upon reasonable advance written notice, access to (i) all properties, Files and Records Permits and Transferred Contracts included in the MOI Contributed Assets (and SLH may make extracts and copies of any such Files and Records), (ii) MOI’s and its Affiliates’ customers, suppliers, creditors, and employees and officers who have significant responsibility for any MOI Contributed Asset, (iii) the Covered Employees, and (iv) the MOI Contributed Vessels, in each case, during normal business hours, and in a manner so as not to interfere unreasonably with the normal business operations of MOI; provided, however, that, for avoidance of doubt, SLH and its Representatives shall not collect or perform or analyze any environmental samples without the prior written consent of MOI; provided, further, that MOI shall have the right to have a Representative present for any communications by SLH or its Representatives with customers, suppliers, creditors, employees or officers of MOI or any of its Affiliates, and any access by SLH or any of its Representatives to a MOI Contributed Vessel. No such access or examination, whether occurring prior to or after the date of this Agreement, shall diminish or obviate any of the representations, warranties, covenants or agreements of the Parties contained in this Agreement or the Related Agreements. SLH will indemnify and hold harmless MOI, its Affiliates and their Representatives for any and all Liabilities incurred by MOI or its Affiliates or their respective Representatives to the extent arising out of any exercise of the access rights under this Section 5.6(a).

 

 
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(b)     Upon the reasonable request of MOI and to the extent not otherwise prohibited by Law, SLH will (and SLH will cause its Representatives and Affiliates to) permit MOI and its Representatives to have, upon reasonable advance written notice, access to (i) all properties, Files and Records, Permits and Transferred Contracts included in the SLH Contributed Assets (and MOI may make extracts and copies of any such Files and Records), (ii) SLH’s and its Affiliates’ customers, suppliers, creditors, and employees and officers who have significant responsibility for any SLH Contributed Asset, and (iii) the SLH Contributed Vessels, in each case, during normal business hours, and in a manner so as not to interfere unreasonably with the normal business operations of SLH or its applicable Affiliate; provided, however, that, for avoidance of doubt, MOI and its Representatives shall not collect or perform or analyze any environmental samples without the prior written consent of SLH; provided, further, that SLH shall have the right to have a Representative present for any communications by MOI or its Representatives with customers, suppliers, creditors, employees or officers of SLH or any of its Affiliates, and any access by MOI or any of its Representatives to an SLH Contributed Vessel. No such access or examination, whether occurring prior to or after the date of this Agreement, shall diminish or obviate any of the representations, warranties, covenants or agreements of the Parties contained in this Agreement or the Related Agreements. MOI will indemnify and hold harmless SLH, its Affiliates and their Representatives for any and all Liabilities incurred by SLH or its Affiliates or their respective Representatives to the extent arising out of any exercise of the access rights under this Section 5.6(b). SLH shall deliver, or shall cause to be delivered, the most recent IRS determination letter or opinion letter with respect to any SLH Employee Benefit Plan that is a retirement plan promptly following the issuance of such IRS determination letter or opinion letter to SLH or its applicable Affiliate.

 

(c)     Notwithstanding the forgoing, a Party may restrict or otherwise prohibit access to any Files and Records or information to the extent that (i) in the reasonable good faith judgment of such Party, any Contract or applicable Law requires such Party to restrict or otherwise prohibit access to such documents or information, (ii) such Files and Records or information includes Privileged Communications and access to such documents or information would reasonably be expected to result in a risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such Privileged Communications (any such privilege, “Privilege”), or (iii) in the reasonable good faith judgment of such Party, such access would violate any obligations of such Party or any of its Affiliates with respect to confidentiality obligations to any third party. In the event that a Party does not provide access to Files and Records or information in reliance on the preceding sentence, such Party shall use its commercially reasonable efforts to communicate the applicable information to the other Party in a way that would not violate the foregoing restrictions, including by (A) using its commercially reasonable efforts to obtain the required consent of any third party necessary (in such Party’s good faith judgment) to provide such disclosure or (B) providing such information in redacted form as is necessary to preserve such Privilege or comply with such Law, or otherwise make appropriate substitute disclosure arrangements, to the extent possible, that are reasonably acceptable to SLH and MOI.

 

Section 5.7     Bulk Transfer Laws. SLH and the Company hereby waives compliance by MOI and its Subsidiaries with the requirements and provisions of any “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the sale or transfer of any or all of the MOI Contributed Assets to the Company. Pursuant to the Confirmation Order, the transfer of the MOI Contributed Assets shall be free and clear of any Liens (other than Permitted Liens) in the MOI Contributed Assets, including any Liens or claims arising out of the bulk transfer laws, and the parties shall take such steps as may be necessary or appropriate to so provide in the Confirmation Order.

 

 
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Section 5.8     Assumption and Assignment of Transferred Contracts; Cure Costs.

 

(a)     Section 5.8(a) of the MOI Disclosure Schedule contains a list of those MOI Contracts that the Parties elect to have assumed by MOI and assigned to the Company on the Closing Date (the “MOI Transferred Contracts”), and Section 5.8(a) of the SLH Disclosure Schedule contains a list of those SLH Contracts that the Parties elect to have assigned to the Company on the Closing Date (the “SLH Transferred Contracts” and, collectively with the MOI Transferred Contracts, the “Transferred Contracts”). Without limiting the generality of Section 5.6, at the other Party’s reasonable request, MOI or SLH, as applicable, shall make reasonably available to such other Party the Contracts to which MOI or SLH or any of its respective Affiliates is a party, as the case may be, that primarily relates to such Party’s respective Business or any of its respective Contributed Assets or Contributed Liabilities or is otherwise material to such Party’s respective Business, and the appropriate employees necessary to discuss such Contracts.

 

(b)     The Cure Costs necessary to cure all monetary defaults, if any, and to pay all actual or pecuniary losses that have resulted from such defaults under the MOI Transferred Contracts, shall be paid by the Company, on or before the Closing.

 

(c)      

 

(i)     Notwithstanding anything in this Agreement to the contrary, with respect to any SLH Contract and any Material MOI Contract, the Parties may from time to time by mutual written agreement, at any time prior to, (x) with respect to any SLH Contract, the date that is five (5) Business Days prior to the Closing Date, and (y) with respect to any Material MOI Contract, the earlier of the date that is five (5) Business Days prior to the Closing Date and the date on which the Bankruptcy Code or the Bankruptcy Court would require a determination to assume or reject such Contract, amend or revise Section 5.8(a) of the MOI Disclosure Schedule or Section 5.8(a) of the SLH Disclosure Schedule, as the case may be, in order to (A) add any Material MOI Contract or SLH Contract, as applicable, to such Schedule or (B) eliminate any Material MOI Contract or SLH Contract, as applicable, from such Schedule.

 

(ii)     Notwithstanding anything in this Agreement to the contrary, with respect to any Non-Material MOI Contract, SLH may from time to time in its sole discretion, at any time prior to the earlier of the date that is five (5) Business Days prior to the Closing Date and the date on which the Bankruptcy Code or the Bankruptcy Court would require a determination to assume or reject such Contract, amend or revise Section 5.8(a) of the MOI Disclosure Schedule in order to (A) add any Non-Material MOI Contract to such Schedules or (B) eliminate any Non-Material MOI Contract from such Schedules.

 

 
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(iii)     Automatically upon the addition of any Contract to any Schedule in accordance with Section 5.8(c)(i) or Section 5.8(c)(ii), as applicable, such Contract shall become a Transferred Contract (and Contributed Asset) for all purposes under this Agreement, and the Parties shall take such steps as are reasonably necessary to cause such Contract to be assumed and assigned to the Company as promptly as possible at or following the Closing (subject to required approvals of the Bankruptcy Court, if any). Automatically upon the deletion of any Contract from any Schedule in accordance with Section 5.8(c)(i) or Section 5.8(c)(ii), as applicable, such Contract shall no longer be a Transferred Contract and shall be deemed an Excluded Asset for all purposes under this Agreement.

 

(d)     Notwithstanding anything in this Agreement to the contrary, (i) from and after the date hereof through the Closing, MOI will not reject or take any action (or fail to take any action that would result in rejection by operation of Law) to reject, repudiate or disclaim any MOI Contract without the prior written Consent of SLH, and (ii) the Company shall have no obligation to purchase, acquire or assume any Contract (or any Liabilities thereunder) if a true and complete copy of such Contract has not been made available by MOI to SLH and the Company in accordance with Section 3.10.

 

(e)     Notwithstanding anything herein to the contrary, to the extent the assumption and/or assignment of any MOI Transferred Contract is, after giving effect to applicable provisions of the Bankruptcy Code, not permitted by Law or not permitted without the consent of another Person, and such restriction cannot be effectively overridden or canceled by the Confirmation Order or other order of the Bankruptcy Court, then this Agreement shall not constitute an agreement to assign or an assignment or transfer of the same (each a “Removed Contract”), and (subject to Section 6.1) the Parties shall cooperate in good faith and use commercially reasonable efforts to obtain any required Consent(s) and, once such required Consent(s) is obtained, such Removed Contract will be assumed and assigned as though it were one of the Transferred Contracts hereunder, as applicable. Such commercially reasonable efforts shall not require any material payment or other material consideration from any Party (other than the Cure Costs, which shall be the responsibility of the Company), and any such Consent shall contain terms and conditions reasonably acceptable to each of MOI and SLH. For the avoidance of doubt, the term “material” in the prior sentence means material in the context of the relevant Removed Contract. If any such Consent shall not be obtained, or if any attempted assignment would be ineffective or would impair the Company’s rights under the MOI Contributed Asset in question, MOI shall, subject to any approval of the Bankruptcy Court that may be required, use commercially reasonable efforts for a reasonable period of time following the Closing, to obtain for the Company the benefits and burdens thereunder. These commercially reasonable efforts shall not require any material payment or other material consideration from any Party (other than the Cure Costs, which shall be the responsibility of the Company). For the avoidance of doubt, the term “material” in the prior sentence means material in the context of the relevant Removed Contract.

 

 
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Section 5.9     Financing Arrangements. From and after the date of this Agreement until the Closing, each Party agrees to (and to cause their respective Representatives and Affiliates to) use its commercially reasonable efforts and to cooperate in good faith with the other Party, to cause the Company (or one of its Subsidiaries), as borrower, to (i) enter into the Consolidated Facility to consolidate and renew the Pre-Petition Facility and the DIP Financing, and (ii) enter into such intercreditor or similar agreements or arrangements with and among the lenders with respect to the Consolidated Facility, the SLH Eagle/Hawk Facility and the FGL Term Loan, in each case, on terms mutually acceptable to MOI, SLH, the Company and such lenders (all of the foregoing being collectively referred to herein as the “Financing Arrangements”); provided, that, the Parties acknowledge and agree that the terms and conditions of the Financing Arrangements shall provide that Orgeron Real Estate shall not be a co-borrower under the Financing Arrangements and that Lee Orgeron, in his individual capacity, will not be a personal guarantor under the Financing Arrangements.

 

ARTICLE VI
OTHER COVENANTS

 

The Parties agree as follows with respect to the period from and after the Closing (except as otherwise expressly stated to apply to a different period):

 

Section 6.1     Further Assurances. In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will, at the requesting Party’s sole cost and expense, take such further action (including the execution and delivery of such other reasonable instruments of sale, transfer, conveyance, assignment, assumption and confirmation, providing materials and information) as the other Party may reasonably request which actions shall be reasonably necessary to transfer, convey or assign to the Company all of the Contributed Assets or to confirm the Company’s assumption of the Contributed Liabilities.

 

Section 6.2     Access; Enforcement; Record Retention. From and after the Closing, upon the written request by MOI or SLH, the Company will permit such Party and their Representatives to have reasonable access during normal business hours, and in a manner so as not to interfere unreasonably with the normal business operations of the Company, to all properties, personnel, books and records, and Transferred Contracts of or related to such Party’s respective Contributed Assets or such Party’s respective Contributed Liabilities for the purposes of (a) preparing Tax Returns, (b) monitoring or enforcing rights or obligations of such Party under this Agreement or any of the Related Agreements, or (c) complying with the requirements of any Governmental Authority; provided, however, that, for avoidance of doubt, the foregoing shall not require the Company to take any such action if (i) such action may result in a waiver, loss or breach of any Privilege, (ii) such action could reasonably be expected to result in violation of Law, or (iii) providing such access or information would be reasonably expected to be disruptive to its normal business operations. The Company agrees to maintain the files or records which are contemplated by the first sentence of this Section 6.2 in a manner consistent in all material respects with its document retention and destruction policies, as in effect from time to time, for six (6) years following the Closing.

 

Section 6.3     Covered Employees.

 

 
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(a)     Offer of Employment. Prior to the date hereof, MOI provided SLH with a list of all Covered Employees, including their current base wage and hourly rate, incentive bonus opportunities, title, job function, work location, credited service date, active work status, and other material employment and compensation terms, and such list is true, complete and accurate as of the date hereof. Subject to Section 5.2(b), MOI shall update such list as soon as practicable following any changes to the information contained therein or in the Covered Employees. SLH shall consider in good faith offering employment, or causing one of its Subsidiaries or Affiliates (other than the Company or its Subsidiaries) to offer employment, to all or substantially all of the Covered Employees. Not less than five (5) Business Days prior to the Closing, SLH shall make available to MOI a list of the Covered Employees who will not be offered employment. Prior to the Closing, but subject to Section 6.3(m), SLH shall, or shall cause one of its Subsidiaries or Affiliates (other than the Company or its Subsidiaries) to, make an offer of employment, effective as of and contingent upon the Closing, to all of the Covered Employees (with terms and conditions of employment substantially comparable in the aggregate to those of SEACOR Payroll’s employees with similar or corresponding positions) who were not specifically excluded by SLH pursuant to the immediately preceding sentence. Such offers of employment shall be for each Covered Employee’s then-current role with MOI, and shall provide for secondment to the Company or its Subsidiaries (and any Covered Employee who accepts such an offer of employment and commences services to the Company or its Subsidiaries via secondment as of or following the Closing, a “Company Secondee”). Notwithstanding the anything herein to the contrary, nothing herein shall be construed as to prevent any Person (including SLH and its Subsidiaries and Affiliates) from terminating the employment of any other Person (including any Covered Employee and any Company Secondee), consistent with Law, at any time after the Closing.

 

(b)     Compensation and Benefits. Commencing upon the Closing and continuing through the first anniversary thereof, SLH or its Affiliates shall make available or cause to be made available to the Company Secondees who are then employed by SLH or its Affiliates compensation and employee benefits that are in the aggregate substantially comparable to the compensation and employee benefits provided by SEACOR Payroll to its employees with similar or corresponding positions immediately prior to the Closing.

 

(c)     Service Credit. Each Company Secondee shall be given credit for all service with MOI and its Subsidiaries, and their respective predecessors, under any employee benefit plans or arrangements of SLH and its Affiliates maintained by SLH or its Affiliates in which such Company Secondees participate following the Closing Date, in each case solely for purposes of eligibility and vesting, but only to the extent that such service was recognized under a corresponding MOI Employee Benefit Plan immediately prior to the Closing. Notwithstanding the foregoing, nothing in this Section 6.3(c) shall be construed to require crediting of service that would result in a duplication of benefits.

 

(d)     Waiver of Pre-Existing Conditions. Subject to Section 6.3(m), upon or as soon as reasonably practicable following the Closing, SLH or its Affiliates shall provide the Company Secondees with access to certain of SLH’s or its applicable Affiliates’ benefit plans or programs under the terms and conditions of those plans and programs, as applicable. SLH or its applicable Affiliates shall use commercially reasonable efforts to cause the waiver of all limitations as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Secondees under any such welfare benefit plans to the extent that such conditions, exclusions or waiting periods did not apply under a corresponding MOI Employee Benefit Plan immediately prior to the Closing.

 

 
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(e)     Welfare Benefit Claims; COBRA. Subject to Section 6.3(m), upon or as soon as reasonably practicable following the Closing, SLH or its Affiliates shall commence providing welfare coverage to the Company Secondees, as applicable, in accordance with any applicable employee benefit plans or programs of SLH or its Affiliates. MOI shall be responsible in accordance with its applicable welfare plans (and the applicable welfare plans of its Subsidiaries or Affiliates) in effect at all times for all reimbursement claims (including medical and dental claims) for expenses incurred, and for all non-reimbursement claims (including life insurance claims) incurred, under MOI’s or its Subsidiaries’ or Affiliates’ employee benefit plans, programs, policies, funds, practices, agreements and arrangements (including the MOI Employee Benefit Plans). SLH or its Affiliates shall be responsible in accordance with the applicable welfare plans of SLH or its Affiliates for all reimbursement claims (including medical and dental claims) for expenses incurred, and for all non-reimbursement claims (including life insurance claims) incurred, after the Closing (or the date of commencement of the applicable Company Secondee’s employment with SLH or its applicable Affiliate, if later) by Company Secondees and their dependents. For purposes of this Section 6.3(e), a claim shall be deemed to have been incurred as follows: (i) for health, dental and prescription drug benefits, upon provision of such services, and (ii) for life, accidental death and dismemberment and business travel accident insurance benefits, upon the death, disability or accident giving rise to such benefits. MOI or its Affiliates shall provide coverage required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under MOI’s or its Affiliates’ employee benefit plans, programs, policies, funds, practices, agreements and arrangements (including the MOI Employee Benefit Plans). SLH or its Affiliates shall provide coverage required by COBRA to Company Secondees and their eligible dependents or beneficiaries under SLH’s or its Affiliates’ group health plans with respect to qualifying events under such plans occurring after the Closing.

  

(f)     Tax Reporting. The Parties shall adopt the “standard procedure” for preparing and filing IRS Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53. Under this procedure, MOI will not be relieved from filing a Form W-2 with respect to any Covered Employees, and SLH or its applicable Affiliate will undertake to file (or cause to be filed) a Form W-2 for each Company Secondee only with respect to the portion of the year during which such Company Secondee is employed by SLH or its applicable Affiliate that includes the Closing Date, excluding the portion of such year that such Company Secondee was employed by MOI or not otherwise employed by SLH or its applicable Affiliate. The Parties shall also adopt the “standard procedure” of Revenue Procedure 2004-53 for purposes of IRS Forms W-4 (Employee’s Withholding Allowance Certificate) and W-5 (Earned Income Credit Advance Payment Certificate).

 

(g)     No Third Party Beneficiary Rights. The Parties agree that nothing in this Section 6.3, whether express or implied, is intended to create any third party beneficiary rights in any Person (including any Covered Employee). Nothing in this Section 6.3 provides, or shall be deemed to provide, any Person with any right to any particular benefit or level of compensation or benefits (or the right to participate in any particular employee benefit plan, program, policy, fund, practice, agreement or arrangement), nor shall anything in this Section 6.3 guarantee employment or service to any Person or for any particular length of time. Nothing in this Section 6.3 shall be deemed to amend any employee benefit plan, program, policy, fund, practice, agreement or arrangement, or be deemed to prevent any Person from amending or terminating any employee benefit plan, program, policy, fund, practice, agreement or arrangement.

 

 
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(h)     Cooperation. After the Closing Date, SLH shall, and shall cause its Affiliates to, reasonably cooperate with MOI to provide such current information regarding the Company Secondees as may reasonably be necessary to facilitate determinations of eligibility for, and payments of benefits to, the Company Secondees under any applicable employee benefit plan, program, policy, fund, practice, agreement or arrangement that continues to be maintained by MOI or its Affiliates.

 

(i)     WARN. MOI shall, or shall cause it applicable Subsidiary or Affiliate to, comply with the Worker Adjustment and Retraining Notification Act and any other similar Laws (collectively, the “WARN Act”) with respect to any closings, layoffs, terminations or other events that occur with respect to the employees of MOI or its Subsidiaries or Affiliates (including the Covered Employees in their respective capacities as employees of MOI or its Subsidiaries or Affiliates), or the termination of such employment on or prior to the Closing Date (it being understood that for such purposes, and without prejudice to SLH’s rights and obligations as described in Section 6.3(a), MOI may assume that SLH shall offer or cause one of its Subsidiaries or Affiliates (other than the Company or its Subsidiaries) to offer, employment to all or substantially all of the Covered Employees). SLH shall, or shall cause its applicable Subsidiary or Affiliate to, comply with the WARN Act with respect to any closings, layoffs, terminations or other events that occur with respect to Company Secondees, or the termination of such employment following the Closing Date. MOI shall (i) provide to SLH on the Closing Date a list and details of any termination of, or other relevant event affecting, employees of MOI or its Subsidiaries or Affiliates (together with the applicable work location, reason for termination and other relevant information) that occurred during the 90-day period immediately prior to the Closing; and (ii) promptly provide similar information to SLH following any termination of, or relevant events affecting, employees of MOI or its Subsidiaries or Affiliates that occur after the Closing.

 

(j)     Controlled Group Liability. Notwithstanding anything herein to the contrary, MOI shall, and shall take all actions necessary to, retain and be responsible for, and to ensure that none of SLH, the Company or their respective Subsidiaries or Affiliates have any Liability relating to or in respect of, all Liabilities of MOI (including any Liabilities of MOI in respect of its Subsidiaries or Affiliates and any ERISA Affiliates) (i) under or in connection with Title IV or Section 302 of ERISA, or Sections 412 and 4971 of the IRC; (ii) as a result of any failure to fully comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the IRC, or the requirements of the Patient Protection and Affordable Care Act; (iii) under or in connection with any corresponding or similar provisions of other applicable (including foreign) Laws; and (iv) relating to the employment or termination of employment by MOI or any of its Subsidiaries or Affiliates of any of their respective employees (including any Covered Employees).

 

(k)     Access to Employees. Without limiting the generality of Section 5.6, from and after the date hereof, SLH, its Affiliates and/or its Representatives may meet and otherwise communicate with employees of MOI or its Subsidiaries or Affiliates, upon prior written notice to MOI (in a manner so as not to interfere unreasonably with the normal business operations of MOI), including to interview and/or offer employment pursuant to the terms of this Section 6.3 to MOI’s or its Subsidiaries’ or Affiliates’ employees, and MOI may elect to have Representatives present during such communications.

 

 
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(l)     Secondment. Notwithstanding anything to the contrary in this Agreement, the Parties agree and acknowledge that the Company shall bear all Liabilities with respect to the employment, compensation, and benefits of the Company Secondees, and with respect to the employment, compensation, and benefits of each other employee of SLH or its Subsidiaries or Affiliates who provides services to the Company or its Subsidiaries via secondment, in each case during the period such Person provides services to the Company or its Subsidiaries via secondment (the “Secondment Liabilities”). The Company shall indemnify and hold each of SLH and its Subsidiaries and Affiliates (other than the Company and its Subsidiaries) harmless for any Liability arising out of, related to, or resulting from the Secondment Liabilities.

 

(m)     Delayed Transfer. Notwithstanding anything to the contrary in this Agreement, to the extent that it can be accommodated in accordance with applicable Laws, any Covered Employee who would otherwise become a Company Secondee, but who is not actively at work as of the Closing Date due to a leave of absence, disability or sick leave (in each case, reasonably expected to last for more than two weeks following the Closing), shall remain an employee of MOI or its Subsidiaries or Affiliates (other than the Company and its Subsidiaries) and shall not be hired by SLH or any of its Subsidiaries or Affiliates (including the Company and its Subsidiaries) until such time as such Person is able to return to active work status (each, a “Delayed Transfer Employee”). Each such Delayed Transfer Employee shall not be considered a Company Secondee unless and until such Person returns to actively at work status with SLH or its Affiliates prior to the first anniversary of the Closing or such longer period as required by applicable Laws. With respect to each such Delayed Transfer Employee, any references to the termination of any employment-related obligations of MOI or any of its Affiliates, and the assumption or commencement of employment-related obligations by SLH and its Affiliates as of the Closing, shall be deemed to apply instead as of the date such employee returns to actively at work status with SLH or its Affiliates.

 

Section 6.4     Certain Tax Matters.

 

(a)     Transfer Taxes. All Transfer Taxes attributable to the contribution to the Company of the MOI Contributed Assets and Contributed MOI Liabilities shall be borne by MOI (to the extent not covered by section 1146 of the Bankruptcy Code), and all Transfer Taxes attributed to the contribution to the Company of the SLH Contributed Assets and Contributed SLH Liabilities shall be borne by SLH. A Party that is required by Law to file any Tax Returns in connection with Transfer Taxes shall prepare and timely file such Tax Returns; provided, however, that the other Parties shall be entitled to receive such Tax Returns and other documentation reasonably in advance of filing by such preparing Party, but not less than ten (10) Business Days prior to the due date of such Tax Returns, and such Tax Returns and other documentation shall be subject to the other Parties’ approval, which shall not be unreasonably withheld, delayed, or conditioned. The Parties hereto shall cooperate to permit the filing party to prepare and timely file any such Tax Returns and shall provide each other with any applicable exemption certificates.

 

 
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(b)     Tax Adjustments. Property and ad valorem Taxes (other than Transfer Taxes) imposed upon, assessed directly against or payable with respect to the SLH Contributed Assets or the MOI Contributed Assets (including real estate Taxes, personal property Taxes and similar Taxes) for the Tax period in which the Closing occurs (the “Proration Period”) will be apportioned and prorated on the Closing Date between MOI (with respect to the MOI Contributed Assets) or SLH (with respect to the SLH Contributed Assets), on the one hand, and the Company, on the other hand, based upon the number of days in the Proration Period that such assets are owned by SLH or MOI, on the one hand, and the Company or a Company Subsidiary, on the other; and any refunds of such Taxes for the Tax period in which the Closing occurs shall be apportioned in a like manner. If the precise amount of any such Tax cannot be ascertained on the Closing Date, apportionment and proration shall be computed as of the Closing Date on the basis of the amount payable for each respective item during the Tax period immediately preceding the Proration Period and such apportionment and proration shall be deemed final, regardless of the actual amount of any such Tax (or refund thereof) as the same may be determined thereafter. As of the Closing Date, if MOI or SLH, as applicable, have paid more than their allocated portion of such Taxes prior to the Closing, then the Company shall pay to MOI or SLH, as applicable, an amount equal to such excess; and if MOI or SLH, as applicable, has paid less than their allocated portion of such Taxes prior to the Closing, MOI or SLH, as applicable, shall pay to the Company an amount equal to such deficiency.

 

Section 6.5     Insurance Matters. The Company acknowledges that, upon the Closing, all insurance coverage provided in relation to MOI or SLH or their respective Contributed Assets (whether such policies are maintained with third party insurers or with MOI or SLH or their respective Affiliates) shall cease to provide any coverage to the Company or their respective Contributed Assets and no further coverage shall be available to the Company or the Contributed Assets under any such policies.

 

Section 6.6     Acknowledgements.

 

(a)     Each of SLH and the Company acknowledges that it has received from MOI certain projections, forecasts, and prospective or third party information relating to MOI, the MOI Contributed Vessels, the MOI Contributed Assets, the Contributed MOI Liabilities and other related topics. Each of SLH and the Company acknowledges that (i) there are uncertainties inherent in attempting to make such projections and forecasts and in such information; (ii) such Party is familiar with such uncertainties and is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, forecasts and information so furnished; and (iii) none of SLH, the Company or any other Person shall have any claim against any MOI or any of its respective directors, officers, Affiliates, agents or other Representatives with respect thereto. Accordingly, except as otherwise expressly provided in this Agreement, each of SLH and the Company acknowledges that neither MOI nor any other Person makes any representations or warranties with respect to such projections, forecasts, or information.

 

(b)     MOI acknowledges that it has received from SLH and the Company certain projections, forecasts, and prospective or third party information relating to SLH and the Company, the SLH Contributed Vessels, the SLH Contributed Assets, the Contributed SLH Liabilities and other related topics. MOI acknowledges that (i) there are uncertainties inherent in attempting to make such projections and forecasts and in such information; (ii) such Party is familiar with such uncertainties and is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, forecasts and information so furnished; and (iii) none of MOI or any other Person shall have any claim against any SLH or the Company or any of their respective directors, officers, Affiliates, agents or other Representatives with respect thereto. Accordingly, except as otherwise expressly provided in this Agreement, MOI acknowledges that neither SLH nor any other Person makes any representations or warranties with respect to such projections, forecasts, or information.

 

 
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Section 6.7     Press Releases and Public Announcements. No Party shall issue any press release or make any public announcement relating to the existence or subject matter of this Agreement without the prior written approval of the other Party, unless a press release or public announcement is required by Law or a Decree of the Bankruptcy Court. If any such announcement or other disclosure is required by Law or a Decree of the Bankruptcy Court, the disclosing Party shall give the nondisclosing Party prior notice of, and an opportunity to comment on, the proposed disclosure. The Parties acknowledge that MOI shall file this Agreement with the Bankruptcy Court in connection with obtaining the Bidding Procedures Order and the Confirmation Order.

 

Section 6.8     Excluded Marks. The Excluded Marks may appear on some of the Contributed Assets, including on signage. The Company acknowledges and agrees that it does not have and, upon consummation of the Transactions, will not have, any right, title, interest, license, or other right to use the Excluded Marks. The Company shall, as soon as reasonably practicable after the Closing Date, remove the Excluded Marks from, or cover or conceal the Excluded Marks on, any Contributed Assets, or otherwise refrain from the use and display of the Contributed Assets on which the Excluded Marks are affixed.

 

Section 6.9     Release. Notwithstanding anything to the contrary contained herein, effective as of the Closing, (a) each of MOI and SLH (individually and on behalf of its Affiliates and Representatives) hereby releases and forever discharges the Company and the other Party and their respective Affiliates and each of their respective successors, assigns and Representatives from any and all actual or potential claims, causes of action, proceedings, Litigation, Liabilities, damages expenses and/or Liability of whatever kind or nature (including attorneys’ fees and costs), in law or equity, known or unknown, suspected or unsuspected, now existing or hereafter arising, whether contractual, in tort or otherwise, which such Party had, has or may have in the future to the extent relating to their respective Excluded Assets or Excluded Liabilities, as the case may be, and (b) the Company (individually and on behalf of its Subsidiaries) hereby releases and forever discharges each of MOI and SLH, as applicable, and their respective Affiliates and each of their respective successors, assigns and Representatives from any and all actual or potential claims, causes of action, proceedings, Litigation, Liabilities, damages expenses and/or Liabilities of whatever kind or nature (including attorneys’ fees and costs), in law or equity, known or unknown, suspected or unsuspected, now existing or hereafter arising, whether contractual, in tort or otherwise, which the Company or its Subsidiaries had, has or may have in the future to the extent relating to (i) in the case of MOI and its related parties described above, the MOI Contributed Assets and the Contributed MOI Liabilities, and (ii) in the case of SLH and its related parties described above, the SLH Contributed Assets and the Contributed SLH Liabilities; provided, however, that nothing in this Agreement (including this Section 6.9 shall (A) constitute a release of any Person arising from conduct of such Person that constitutes willful or intentional breach, fraud or gross negligence, or (B) be construed to release any Person from, or affect or impair, any of its contractual obligations arising under or in connection with this Agreement and the Transactions, including its respective obligations in respect of the Contributed Assets, Contributed Liabilities, Excluded Assets and Excluded Liabilities.

 

 
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Section 6.10     Confidentiality. Each Party hereto agrees that, except with the prior written consent of the other Parties, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any confidential information, knowledge or data concerning or relating to the business or financial affairs of the other Parties (including their respective Businesses, the Contributed Assets or the Contributed Liabilities) to which such Party has been or shall become privy by reason of this Agreement, discussions or negotiations relating to this Agreement or the Transactions; provided, however, that such confidential information, knowledge or data may be disclosed to a Party’s Affiliates or Representatives (provided that such Affiliates or Representatives of any Party, as the case may be, will be informed by such Party of the confidential nature of such information and shall be directed by such Party to keep such information confidential in accordance with the contents of this Agreement). The confidentiality obligations of this Section 6.10 do not apply to any information, knowledge or data (a) which is publicly available or becomes publicly available through no act or omission of the party wishing to disclose the information, knowledge or data; or (b) to the extent that it is required (or a Party reasonably believes it is required) to be disclosed by (or to comply with) any Law, regulation or legal process or by the rules of any stock exchange, regulatory body or Governmental Authority; provided that, in the case of clause (b), the Party making such disclosure (i) furnishes or discloses (as applicable) only that portion of such confidential information, knowledge or data that is required (or that such Party reasonably believes is required) pursuant to (or to comply with) any such Law, regulation or legal process or by the rules of any stock exchange, regulatory body or Governmental Authority and (ii) to the extent reasonably practicable and permitted by Law, provides the other Parties with prior written notice of the disclosure to be made.

 

ARTICLE VII
CONDITIONS TO OBLIGATION TO CLOSE

 

Section 7.1     Conditions to SLH’s Obligations to Effect the Closing. SLH’s obligation to consummate the Transactions is subject to satisfaction or waiver of the following conditions:

 

(a)     the representations and warranties set forth in Article III qualified as to “materiality”, “MOI Material Adverse Effect”, “material adverse effect” or words of similar import shall have been true and correct in all respects, and such representations and warranties not so qualified shall be true and correct in all material respects, in each case, on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date);

 

(b)     MOI shall have performed and complied with in all material respects with its respective covenants and agreements hereunder that are required to be performed and complied with by MOI on or prior to the Closing Date;

 

(c)     the Bankruptcy Court (i) shall have entered the Confirmation Order and any other order necessary to close the Transactions, including the transfer of the Contributed Assets, in each case, in form and substance (including with respect to all findings of fact and conclusions of Law) acceptable to the Parties, (ii) such orders shall be in full force and effect, (iii) no order staying, reversing, modifying or amending such orders shall be in effect on the Closing Date, and (iv) such orders shall be final and not subject to appeal;

 

 
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(d)     all applicable waiting periods under any Antitrust Law shall have expired or otherwise been terminated;

 

(e)     no Law or Decree shall be in effect that restrains, enjoins or otherwise prohibits consummation of any of the Transactions;

 

(f)     each delivery contemplated by Section 2.5(b) and Section 2.5(c) shall have been delivered;

 

(g)     MOI shall have filed the Assumption Notice with the Bankruptcy Court and served the Assumption Notice via first class mail on each counterparty to a Contract listed thereon;

 

(h)     since the date of this Agreement, no MOI Material Adverse Effect shall have occurred; and

 

(i)     the Company (or its Subsidiaries) shall have consummated the Financing Arrangements in accordance with Section 5.9 substantially simultaneously with the Closing, and customary Lien releases and financing statement terminations shall have been executed and delivered with respect to any Lien on the Contributed Assets that is not under the Financing Arrangements.

 

For the avoidance of doubt, SLH shall have the right to waive any of the conditions set forth in this Section 7.1 (including Section 7.1(c)) in its sole and absolute discretion.

 

Section 7.2     Conditions to MOI’s Obligations to Effect the Closing. MOI’s obligations to consummate the Transactions are subject to satisfaction or waiver of the following conditions:

 

(a)     the representations and warranties set forth in Article IV qualified as to “materiality”, “material adverse effect” or words of similar import shall have been true and correct in all respects, and such representations and warranties not so qualified shall be true and correct in all material respects, in each case, on the date hereof and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such date as if made at and as of such date);

 

(b)     SLH shall have performed and complied with in all material respects with its covenants and agreements hereunder that are required to be performed and complied with by SLH on or prior to the Closing Date;

 

(c)     the Bankruptcy Court shall have entered (i) the Confirmation Order and any other order necessary to close the Transactions, including the transfer of the Contributed Assets, in each case, in form and substance (including with respect to all findings of fact and conclusions of Law) acceptable to the Parties, (ii) such orders shall be in full force and effect, (iii) no order staying, reversing, modifying or amending such orders shall be in effect on the Closing Date, and (iv) such orders shall be final and not subject to appeal;

 

 
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(d)     all applicable waiting periods under any Antitrust Law shall have expired or otherwise been terminated;

 

(e)     no Law or Decree shall be in effect that restrains, enjoins or otherwise prohibits consummation of any of the Transactions;

 

(f)     each delivery contemplated by Section 2.5(a) and Section 2.5(c) shall have been delivered;

 

(g)     since the date of this Agreement, no SLH Material Adverse Effect shall have occurred; and

 

(h)     the Company (or its Subsidiaries) shall have consummated the Financing Arrangements in accordance with Section 5.9 substantially simultaneously with the Closing, and customary Lien releases and financing statement terminations shall have been executed and delivered with respect to any Lien on the Contributed Assets that is not under the Financing Arrangements.

 

For the avoidance of doubt, MOI shall have the right to waive any of the conditions set forth in this Section 7.2 (including Section 7.2(c)) in their sole and absolute discretion.

 

Section 7.3     No Frustration of Closing Conditions. Neither MOI nor SLH may rely on the failure of any condition to their respective obligations to consummate the Transactions set forth in Section 7.1 or Section 7.2, as the case may be, to be satisfied if such failure was primarily caused by such Party’s failure to perform its obligations hereunder.

 

ARTICLE VIII
TERMINATION RIGHTS

 

Section 8.1     Termination of Agreement. This Agreement may be terminated prior to the Closing as follows (and, if applicable, subject to SLH’s right to payment of the Termination Payment in accordance with the provisions of Section 5.4(d)):

 

(a)     by the mutual written Consent of SLH and MOI;

 

(b)     by any Party by giving written notice to the other Party if:

 

(i)     any court of competent jurisdiction or other competent Governmental Authority shall have enacted or issued a Law or Decree or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions and such Law or Decree or other action shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to a Party if the failure to consummate the Closing because of such action by a Governmental Authority shall be due to the failure of such Party to have fulfilled any of its obligations under this Agreement;

 

 
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(ii)     the Closing shall not have occurred prior to December 31, 2017 (the “Outside Date”); provided, however, that if the Closing shall not have occurred on or before the Outside Date due to a breach of any representations, warranties, covenants or agreements contained in this Agreement by MOI or SLH, as applicable, such that any of the conditions set forth in Article VII would not be satisfied, then the breaching Party may not terminate this Agreement pursuant to this Section 8.1(b)(ii);

 

(iii)     the Confirmation Order has not been entered by the Bankruptcy Court by the Outside Date; provided, however, that if the Confirmation Order shall not have been entered on or before the Outside Date, due to a breach of any representations, warranties, covenants or agreements contained in this Agreement by MOI or SLH, as applicable, such that any of the conditions set forth in Article VII would not be satisfied, then the breaching Party may not terminate this Agreement pursuant to this Section 8.1(b)(iii);

 

(iv)     if (A) the Bankruptcy Cases are converted to cases under chapter 7 of the Bankruptcy Code prior to the Closing or (B) the Bankruptcy Cases are dismissed;

 

(v)     if (A) the Bankruptcy Court enters an order approving a Competing Transaction or (B) the Bankruptcy Court enters an order that otherwise precludes the consummation of the Transactions on the terms and conditions set forth in this Agreement; provided, however, that any such ability to terminate this Agreement pursuant to this Section 8.1(b)(v) is subject to Section 5.4(c) and the limitations set forth in the Bidding Procedures Order and to SLH’s right to payment of the Termination Payment in accordance with the provisions of Section 5.4(d); or

 

(c)     by SLH, by giving written notice to MOI if there has been a breach by MOI of any representation, warranty, covenant or agreement contained in this Agreement that has prevented the satisfaction of any of the conditions to the obligations of SLH at the Closing set forth in Section 7.1(a) and Section 7.1(b), and such breach or unsatisfied condition has not been waived by SLH, or, if such breach or unsatisfied condition is curable (including any payment default), cured by MOI prior to the earlier to occur of (i) ten (10) Business Days after receipt of SLH’s notice of intent to terminate and (ii) the Outside Date; provided, however, that SLH may not terminate this Agreement pursuant to this Section 8.1(c) if SLH is in material breach of any representation, warranty, covenant or agreement contained in this Agreement;

 

(d)     by MOI, by giving written notice to SLH if there has been a breach by SLH of any representation, warranty, covenant or agreement contained in this Agreement that has prevented the satisfaction of the conditions to the obligations of MOI at the Closing set forth in Section 7.2(a) and Section 7.2(b), and such breach has not been waived by MOI, or, if such breach is curable (including any payment default), cured by SLH prior to the earlier to occur of (i) ten (10) Business Days after receipt of MOI’s notice of intent to terminate or (ii) the Outside Date; provided, however, that MOI may not terminate this Agreement pursuant to this Section 8.1(d) if MOI is in material breach of any representation, warranty, covenant or agreement contained in this Agreement;

 

 
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(e)     by SLH, upon the appointment of a trustee or examiner (except a fee examiner) pursuant to Section 1104 of the Bankruptcy Code; or

 

(f)     by SLH or MOI in accordance with Section 8.3(b).

 

Section 8.2     Effect of Termination. If any Party terminates this Agreement pursuant to Section 8.1, all rights and obligations of the Parties hereunder shall terminate upon such termination and shall become null and void (except that Article I, Article IX, the penultimate sentence of Section 5.1(b), the last sentence of Section 5.6(a), the last sentence of Section 5.6(b), Section 6.6 and this Section 8.2 (and the definitions of all defined terms appearing in the foregoing sections) shall survive any such termination) and no Party shall have any Liability to the other Party hereunder; provided, however, that nothing in this Section 8.2 shall relieve any Party from any liability or damages (which the Parties agree shall be determined by the courts referred to in Section 9.9 and, to the extent proven, shall not necessarily be limited to reimbursement of expenses or out of pocket costs and expenses) for any breach occurring prior to any such termination set forth in this Agreement; provided, further, that, upon entry of the Confirmation Order, any such damages caused to SLH shall be treated as an administrative expense claim against MOI’s bankruptcy estate pursuant to sections 503(b) and 507(a)(2) of the Bankruptcy Code and payable by MOI from its bankruptcy estate.

 

Section 8.3     Casualty Events.

 

(a)     If a MOI Contributed Vessel or SLH Contributed Vessel, as applicable, is damaged or destroyed, or the physical condition thereof is materially and adversely changed, in each case by a casualty or other loss (such MOI Contributed Vessel or SLH Contributed Vessel, as the case may be, the “Damaged Vessel”) at any time from the date of this Agreement until the Closing (a “Casualty Event”), then MOI or SLH, as the case may be, shall promptly notify the other Party of the occurrence of such Casualty Event. Following a Casualty Event, SLH and MOI shall cooperate in good faith to determine and mutually agree upon the amount of the cost of restoring such Damaged Vessel (and its related Contributed Assets located on such Damaged Vessel) to substantially the same condition prior to such Casualty Event; provided that, if SLH and MOI are unable to mutually agree to such amount within twenty (20) days after delivery by MOI or SLH to the other Party of written notice of the occurrence of such Casualty Event, then SLH and MOI will engage an independent qualified firm, reasonably acceptable to SLH and MOI (a “Qualified Firm”), to promptly determine the amount of the cost of restoring such Damaged Vessel (and its related Contributed Assets located on such Damaged Vessel) to substantially the same condition prior to such Casualty Event (as mutually agreed to by SLH and MOI or as determined by the Qualified Firm, the “Restoration Cost”). If the restoration of such Damaged Vessel to substantially the same condition prior to such Casualty Event would not be completed prior to the Closing, then the Party that does not own such Damaged Vessel (the “Electing Party”) shall have the right to elect, subject to the other Party’s written consent (which consent shall not be unreasonable withheld, conditioned or delayed) (the “Casualty Election”), by delivery of a written notice of such election to the other Party within thirty (30) days following the Electing Party’s receipt of notice of such Casualty Event, to either:

 

(i)     cause the Company, or its wholly-owned Subsidiary designee, to take possession of such Damaged Vessel in connection with the Closing and, at the Electing Party’s option, either (A) reduce the MOI Contributed Value or the SLH Contributed Value, as the case may be, and the Aggregate Contributed Value, in each case, by an amount equal to the Restoration Cost, or (B) require MOI or SLH, as the case may be, to assign to the Company, or its wholly-owned Subsidiary designee, any insurance or other proceeds relating to such Casualty Event at the Closing less (and only to the extent of) any amounts used by such Party for restoration and repair of such Damaged Vessel prior to Closing;

 

 
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(ii)     exclude such Damaged Vessel from the Transactions and reduce the MOI Contributed Value or the SLH Contributed Value, as applicable, and the Aggregate Contributed Value, in each case, by an amount equal to the applicable portion of the Aggregate Contributed Value attributed to such Damaged Vessel (and its related Contributed Assets located on such Damaged Vessel) as set forth on Section 8.3 of the MOI Disclosure Schedule or Section 8.3 of the SLH Disclosure Schedule, as applicable; or

 

(b)     Notwithstanding the forgoing, if the Restoration Cost arising from any Casualty Event (individually or in combination with any other Casualty Event(s)) is determined in accordance with this Agreement to be thirty percent (30%) or more of the Aggregate Contributed Value (which Aggregate Contributed Value will be determined assuming no Casualty Events have occurred), then the Electing Party (in addition to the right to make the Casualty Elections pursuant to Section 8.3(a)) shall have the right to elect, subject to the prior written consent of the other Party (which consent shall not be unreasonably withheld conditioned or delayed) to terminate this Agreement by delivering written notice of such election to termination to the other Party.

 

(c)     In connection with any assignment of awards, proceeds or insurance under Section 8.3(a)(i)(B), (i) the portion of the Aggregate Contributed Value allocated to the applicable Damaged Vessel as set forth under Section 8.3 of the MOI Disclosure Schedule or Section 8.3 of the SLH Disclosure Schedule shall be reduced by an amount equal to the applicable deductible or self-insured retention amount under MOI’s insurance or SLH’s insurance, as applicable (provided, that such reduction shall not exceed the amount by which the cost, as of the Closing Date, to repair the Damaged Vessel is greater than the amount of insurance proceeds assigned to the Company, or its wholly-owned Subsidiary designee), and (ii) such assignment of proceeds or awards shall be reduced by the amount of (A) all actual and documented, out-of-pocket repair costs incurred by MOI or SLH or their respective Affiliates, as the case may be, in connection with such Damaged Vessel and (B) all actual and documented, out-of-pocket collection costs of MOI or SLH or their respective Affiliates respecting any awards or other proceeds.

 

(d)     If a Damaged Vessel is excluded from the Transactions in accordance with the terms and conditions of this Section 8.3, then such Damaged Vessel shall automatically be deemed to be an Excluded Asset hereunder and such Damaged Vessel shall be removed from Annex A and the applicable sections of the SLH Disclosure Schedules or the MOI Disclosure Schedules, as applicable, provided, however, that the failure of the Parties to so remove such Damaged Vessel from Annex A and the applicable sections of the SLH Disclosure Schedules or the MOI Disclosure Schedules will not prevent the exclusion of such Damaged Vessel from the Transactions from being effective.

 

 
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(e)     Section 8.3 of the MOI Disclosure Schedule shall set forth the applicable portion of the Aggregate Contributed Value attributable to each MOI Contributed Vessel, and Section 8.3 of the SLH Disclosure Schedule shall set forth the applicable portion of the Aggregate Contributed Value attributable to each SLH Contributed Vessel.

 

(f)     Notwithstanding anything in this Agreement to the contrary, (i) if any Casualty Event occurs less than fifteen (15) Business Days prior to the Outside Date and the conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their terms or nature are to be satisfied at the Closing), the Parties agree to work in good faith to expedite the determination of the Restoration Cost in accordance with Section 8.3(a), except that the Parties shall disregard all time periods set forth in such Section 8.3(a) in an effort to complete the process set forth therein prior to the Outside Date; or (ii) if at any time the Closing is to occur in accordance with Section 2.4, a Casualty Event shall have occurred and the determination of the Restoration Cost in connection with such Casualty Event shall not have been completed in accordance with Section 8.3(a), then either MOI or SLH may elect by written notice to the other Party to delay the Closing until the fifteenth (15th) Business Day following the date on which such determination has been completed; provided that the conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their terms or nature are to be satisfied at the Closing).

 

Section 8.4     Remedies. The rights and remedies herein provided are cumulative and none is exclusive of any other remedy; provided that, if SLH is entitled to and receives the Termination Payment in connection with the termination of this Agreement, then the Termination Payment shall constitute the sole and exclusive remedy of SLH in connection with such termination of this Agreement.

 

ARTICLE IX
MISCELLANEOUS

 

Section 9.1     Survival; Claims. All representations, warranties, covenants and obligations in this Agreement, and the right to commence any Litigation or other claim with respect thereto, shall survive the Closing Date. In the event that the Company is entitled to enforce a valid claim against either MOI or SLH (the “Subject Party”) arising under the terms of this Agreement, and MOI or SLH, as the case may be (the “Claiming Party”), is not entitled to enforce such claim against the Subject Party, then, the Company hereby grants the Claiming Party the right to, and agrees that the Claiming Party may, enforce such claim in the name, and on behalf, of the Company and agree to any settlement in the name, and on behalf, of the Company, in each case, under the terms and conditions of this Agreement.

 

Section 9.2     Expenses. Except as otherwise expressly set forth herein (including in connection with Section 2.7(d), the penultimate sentence of Section 5.1(b), the last sentence of Section 5.6(a), and the last sentence of Section 5.6(b)), (a) MOI shall pay its own Transaction Costs and (b) the Company shall, or shall cause a wholly-owned Subsidiary of the Company to, pay or reimburse SLH for all the Transaction Costs of SLH.

 

Section 9.3     Entire Agreement. This Agreement and the Related Agreements constitute the entire agreement between the Parties with respect to the Transactions and supersede any prior understandings, agreements or representations (whether written or oral) by or between the Parties to the extent they relate in any way to the subject matter hereof.

 

 
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Section 9.4    Incorporation of Exhibits and Disclosure Schedules. The Exhibits and Annexes to this Agreement and the Disclosure Schedules are incorporated herein by reference and made a part hereof.

 

Section 9.5     Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by each of MOI and SLH except as expressly provided herein. No waiver of any breach of this Agreement shall be construed as an implied amendment or agreement to amend or modify any provision of this Agreement. No waiver by any Party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent default, misrepresentation or breach of warranty or covenant. No conditions, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement the terms or conditions of this Agreement shall be binding unless this Agreement is amended or modified in writing pursuant to the first sentence of this Section 9.5 except as expressly provided herein. Except where a specific period for action or inaction is provided herein, no delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof.

 

Section 9.6     Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written Consent of the other Parties; provided, however, that the Company may assign this Agreement and any or all rights or obligations hereunder (including the Company’s rights to purchase the Contributed Assets and assume the Contributed Liabilities) to any Affiliate of the Company; provided, that any such assignment shall not relieve the Company of its obligations under this Agreement. Upon any such permitted assignment, the references in this Agreement to the Company shall also apply to any such assignee unless the context otherwise requires.

 

Section 9.7     Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing except as expressly provided herein. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (a) when delivered personally to the recipient; (b) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid); (c) upon receipt of confirmation of receipt if sent by facsimile transmission; (d) on the day such communication was sent by e-mail; or (e) three (3) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:

 

If to MOI:                              Montco Offshore, Inc.

17751 Hwy 3235

Galliano, LA 70354

Attention: Derek Boudreaux

Facsimile: (985) 325-6795

E-mail: derek.boudreaux@montco.com

 

 
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With a copy (which shall not constitute notice to MOI) to:

 

DLA Piper LLP (US)

1000 Louisiana Street, Suite 2800

Houston, Texas 77002-5005

Attention: W. Christopher Schaeper

Facsimile: (713) 300-6008

E-mail: Chris.Schaeper@dlapiper.com

 

If to SLH:                               SEACOR LB Holdings LLC

c/o SEACOR Marine Holdings, Inc.

7910 Main Street, 2nd Floor

Houma, Louisiana 70360

Attention: Jesus Llorca

E-mail:      jllorca@seacormarine.com

 

With a copy (which shall not constitute notice to SLH) to:

 

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, New York 10005

Attention: David E. Zeltner

E-mail: DZeltner@milbank.com

 

Any Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Parties notice in the manner set forth in this Section 9.7.

 

Section 9.8     Governing Law. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of New York (without giving effect to the principles of conflict of Laws thereof that would cause the application of the Laws of any other jurisdiction), except to the extent that the Laws of such state are superseded by the Bankruptcy Code.

 

Section 9.9     Submission to Jurisdiction; Service of Process. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Bankruptcy Court in any Litigation arising out of or relating to this Agreement or any Related Agreement or the Transactions or thereby and agrees that all claims in respect of such Litigation may be heard and determined in any such court. Each Party also agrees not to (a) attempt to deny or defeat such exclusive jurisdiction by motion or other request for leave from the Bankruptcy Court or (b) bring any Litigation arising out of or relating to this Agreement or any Related Agreement or the Transactions or thereby in any other court. Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue in, and any defense of inconvenient forum to the maintenance of, any Litigation so brought and waives any bond, surety or other security that might be required of any other Party with respect thereto. Any Party may make service on any other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 9.7; provided, however, that nothing in this Section 9.9 shall affect the right of any Party to serve legal process in any other manner permitted by law or in equity. Each Party agrees that a final judgment in any Litigation so brought shall be conclusive and may be enforced by Litigation or in any other manner provided by law or in equity. The Parties intend that all foreign jurisdictions will enforce any Decree of the Bankruptcy Court in any Litigation arising out of or relating to this Agreement or any Related Agreement or the Transactions or thereby.

 

 
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Section 9.10     Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Section 9.11     Specific Performance. Each Party acknowledges and agrees that the other Party would be damaged irreparably in the event that a Party does not perform its obligations under this Agreement in accordance with its specific terms or otherwise breaches this Agreement, so that, in addition to any other remedy that SLH or MOI may have under law or equity, either Party shall be entitled, without the requirement of posting a bond or other security, to injunctive relief to prevent any breaches of the provisions of this Agreement by the other Party and to enforce specifically this Agreement and the terms and provisions hereof.

 

Section 9.12     Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated only to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

 

Section 9.13     No Third Party Beneficiaries. Except as set forth in Section 9.14 and this Section 9.13, this Agreement shall not confer any rights or remedies upon any Person other than each Party hereto and their respective successors and permitted assigns.

 

Section 9.14     Non-Recourse. All claims or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or related in any manner to this Agreement or the Related Agreements may be made only against (and are expressly limited to) the Persons that are expressly identified as parties hereto or thereto (the “Contracting Parties”). In no event shall any Contracting Party have any shared or vicarious Liability for the actions or omissions of any other Person. No Person who is not a Contracting Party, including any director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney or representative of, and any financial advisor or lender to, any of the foregoing (“Non-Party Affiliates”), shall have any Liability (whether in contract or in tort, in law or in equity, or granted by statute or based upon any theory that seeks to impose Liability of an entity party against its owners or Affiliates) for any causes of action or Liabilities arising under, out of, in connection with or related in any manner to this Agreement or the Related Agreements or based on, in respect of, or by reason of this Agreement or the Related Agreements or their negotiation, execution, performance or breach; and, to the maximum extent permitted by Law, each Contracting Party waives and releases all such causes of action and Liabilities against any such Non-Party Affiliates. Without limiting the foregoing, to the maximum extent permitted by Law, (a) each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any Non-Party Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise; and (b) each Contracting Party disclaims any reliance upon any Non-Party Affiliates with respect to the performance of this Agreement or the Related Agreements or any representation or warranty made in, in connection with, or as an inducement to this Agreement or the Related Agreements. The Parties acknowledge and agree that the Non-Party Affiliates are intended third-party beneficiaries of this Section 9.14.

 

 
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Section 9.15     Mutual Drafting. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

 

Section 9.16     Privileged Communications. The Parties acknowledge and agree that notwithstanding any provision of this Agreement, whether or not the Closing occurs, no Party nor any of its Affiliates shall have access to (and each hereby waives any right of access it may otherwise have with respect to) any Privileged Communications of the other Parties, if such access will cause such Privileged Communications to lose the benefit of the Privilege. Without limiting the generality of the foregoing, each Party acknowledges and agrees to the following, upon and after the Closing, to the extent it will cause any Privileged Communications to lose the benefit of the Privilege: (a) no Party nor any of its Affiliates shall be a holder of, or have any right, title or interest to the Privileged Communications of any other Party; (b) only the Party that, as of the Closing, owns the Privileged Communications shall hold property rights in such Privileged Communications and shall have the right to waive or modify such property rights; and (c) such Party shall have no duty whatsoever to reveal or disclose any Privileged Communications to any other Party or any of its Affiliates. To the extent that a Party’s Privileged Communications is disclosed or made available to another Party prior to Closing, and as a consequence the Privilege applicable thereto may reasonably be lost, the Parties agree (i) that the disclosure, receipt and/or review of such Privilege Communication is entirely inadvertent and shall not waive, modify, limit or impair in any form or fashion the Privilege of the Privileged Communications, (ii) it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the applicable Privilege, (iii) the Party owning the Privileged Communications shall have the right in its sole discretion and at any time to require the return and/or destruction of such Privileged Communications.

 

Section 9.17     Disclosure Schedules. All capitalized terms not defined in a Party’s Disclosure Schedules shall have the meanings ascribed to them in this Agreement. The representations and warranties of MOI and SLH, as applicable, in this Agreement are made and given, and the covenants are agreed to, subject to the disclosures and exceptions set forth in, with respect to MOI, the MOI Disclosure Schedule, and, with respect to SLH, the SLH Disclosure Schedule. The disclosure of any matter in any section of a Party’s Disclosure Schedule shall be deemed to be a disclosure for all purposes of this Agreement, to the extent that such disclosure is reasonably apparent on its face. The listing of any matter shall expressly not be deemed to constitute an admission by MOI or SLH, as applicable, or to otherwise imply, that any such matter is material, is required to be disclosed under this Agreement or falls within relevant minimum thresholds or materiality standards set forth in this Agreement. No disclosure in a Party’s Disclosure Schedule relating to any possible breach or violation of any Contract or Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. In no event shall the listing of any matter in a Party’s Disclosure Schedule be deemed or interpreted to expand the scope of such Party’s representations, warranties, or covenants set forth in this Agreement. All attachments to a Party’s Disclosure Schedule are incorporated by reference into the applicable section of such Party’s Disclosure Schedule in which they are directly or indirectly referenced. The information contained in a Party’s Disclosure Schedule is in all respects provided subject to Section 6.10.

 

 
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Section 9.18     Headings; Table of Contents. The section headings and the table of contents contained in this Agreement and the Disclosure Schedules are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

 

Section 9.19     Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by facsimile copies or delivered by electronic communications by portable document format (.pdf), each of which shall be deemed an original.

 

Section 9.20     Time of Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.

 

[Remainder of page intentionally left blank.]

 

 
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

 

 

SEACOR LB HOLDINGS LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/Jesús Llorca

 

 

Name:

Jesús Llorca

 

 

Title:

Vice President

 

 

 

 

[Signature Page to Joint Venture Contribution and Formation Agreement]

 
 
 

 

 

 

MONTCO OFFSHORE, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Derek C. Boudreaux

 

 

Name:

Derek C. Boudreaux

 

 

Title:

Secretary - Chief Financial Officer

 

 

 

 

[Signature Page to Joint Venture Contribution and Formation Agreement]

 

 
 

 

 

ANNEX A

 

The Vessels

 

SLH Contributed Vessels

Direct Owner Affiliated with SLH*

Vessel Name

SEACOR LB Offshore LLC

Power- 265

SEACOR LB Offshore LLC

Legacy- 250

SEACOR Hawk LLC

Hawk- 245

SEACOR Eagle LLC

Eagle- 245

SEACOR LB Offshore LLC

Gale- 245

SEACOR LB Offshore LLC

Storm- 245

SEACOR LB Offshore LLC

Champion 230

SEACOR LB Offshore LLC

Endeavor- 200

SEACOR LB Offshore LLC

Intervention- 200

SEACOR LB Offshore LLC

Supporter- 200

SEACOR LB Offshore LLC

Victory- 200

*As of the date of this Agreement, (i) SEACOR Offshore is owned 100% by SLH; (ii) C-Lift is owned 99% by SEACOR Marine and 1% by SEACOR Offshore; (iii) each of SLH and SEACOR Marine are owned 100% by SEACOR Acadian; (iv) SEACOR Hawk is owned 100% by SEACOR Offshore; and (v) SEACOR Eagle is owned 100% by C-Lift. Following the completion of the SLH Reorganization, (A) each of SEACOR Hawk and SEACOR Eagle will be owned 100% by C-Lift, and (B) C-Lift will be owned 100% by SLH.

 

MOI Contributed Vessels

Direct Owner of MOI Vessels

Vessel Name

Montco Offshore, Inc.

Jill- 335

Montco Offshore, Inc.

Robert- 335

Montco Offshore, Inc.

Myrtle- 245

Montco Offshore, Inc.

Kayd- 245

Montco Offshore, Inc.

Paul- 235

Montco Offshore, Inc.

Caitlin- 235

 

FGL Vessels

Direct Owner of FGL Vessels**

Vessel Name

Falcon Diamond LLC

Falcon Diamond

Falcon Pearl LLC

Falcon Pearl

**Each of Falcon Diamond LLC and Falcon Pearl LLC are wholly-owned subsidiaries of FGL

 

 
 

 

 

Exhibit A

 

Administrative Services Agreement

 

This ADMINISTRATIVE SERVICES AGREEMENT, dated as of [●], 2017 (this “Agreement”), is made between SEACOR Marine LLC, a Delaware limited liability company (“SEACOR”), and Falcon Global Holdings LLC, a Delaware limited liability company (the “Company”, which term includes all of its direct and indirect subsidiaries).

 

WHEREAS, on August 10, 2017, SEACOR LB Holdings LLC, a Delaware limited liability Company (“SLH”), and Montco Offshore, Inc., a Louisiana corporation (“MOI”), entered into that certain Joint Venture Contribution and Formation Agreement (the “Contribution Agreement”) pursuant to which SLH and MOI agreed to form, and contribute certain assets to, the Company;

 

WHEREAS, pursuant to the terms of, and concurrently with the consummation of the transactions contemplated by, the Contribution Agreement SLH and MOI are entering into that certain Amended and Restated Limited Liability Company Agreement of the Company, dated as of the date hereof (the “Company LLC Agreement”), to give effect to certain transactions contemplated by the Contribution Agreement and to continue the operation of the Company; and

 

WHEREAS, the Company desires that SEACOR and certain of its affiliates provide and furnish to the Company certain services in order to assist the Company, and SEACOR is willing to do so, on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

1.     Commencement; Services. The Services (as defined below) shall commence as of the date of this Agreement and shall continue until terminated as provided in Section 5. SEACOR hereby agrees that it shall use its commercially reasonable efforts to provide and furnish to the Company the following services during the term of this Agreement (the “Services”), consistent with the reasonable needs of the Company and the reasonable availability of SEACOR’s officers and other employees:

 

1.1     Assistance with Tax Returns. SEACOR shall (a) assist the Company with the preparation and filing of all tax returns required by applicable law to be filed by the Company, and (b) consult and coordinate with the Company and federal, state and local tax authorities and/or any attorneys, auditors, tax advisors, accountants and other experts professionally employed or retained by the Company, with respect to administrative, accounting and tax matters, including with respect to any financial statements, quarterly and annual reports, income and franchise taxes, and Schedules K-1 to be provided to each member of the Company under the Company LLC Agreement (each, a “Member”), in each case, consistent with the terms and conditions of the Company LLC Agreement.

 

1.2     Routine Legal Services. SEACOR shall provide routine legal services to the Company, including consultation on strategies and governmental compliance, attorney selection, and reviewing legal bills. Subject to the direction of the Company, SEACOR shall manage any claim, litigation, arbitration or other proceedings (whether in court, in front of an arbitral tribunal or governmental agency or otherwise) involving the Company (except for any such claim, litigation, arbitration or other proceeding between SEACOR and the Company), including any settlement discussions in connection therewith.

 

 
 

 

 

1.3     Administration of Employee Benefit Plans. SEACOR shall assist the Company in administering and coordinating the Company’s payroll, employee benefit plans and other human resources-related matters, including administering any management or equity incentive plans and employee profit sharing plans, monitoring and processing pension plans and employee benefit enrollment, making required employee benefit related tax filings, handling other related compliance tasks and general consulting related to employee benefits.

 

1.4     Insurance. SEACOR shall cause to be maintained in effect policies of insurance providing coverage to the Company (and, in the case of directors’ and officers’ liability insurance, covering the Company’s directors and officers) for general liability, errors and omissions liability, directors’ and officers’ liability and such other risks and/or liabilities that are from time to time insured by SEACOR for the benefit of the Company, its affiliates, in each case with at least the same coverage with respect to amounts, limits and terms as in effect for SEACOR, its subsidiaries or affiliates. SEACOR shall also assist the Company with adjusting and negotiating settlements, with or on behalf of claimants or underwriters, of any claim for damages that are recoverable under policies of insurance maintained in accordance with this Section 1.4.

 

1.5     Consulting on Public Relations. SEACOR shall provide consulting services with respect to the Company’s public and community relations and branding efforts, and shall be responsible for all public and community relations and branding matters of the Company, except that SEACOR may not issue any press release regarding the Company without the Company’s prior written consent, which such consent shall not be unreasonably withheld, conditioned or delayed.

 

1.6     Reports. SEACOR shall assist the Company in the preparation, maintenance and distribution of all financial reports and statements or other reports and statements, and budgets, estimates, books, records, accounts and other information required to be prepared, maintained or distributed, in each case, consistent with and pursuant to Article 6 of the Company LLC Agreement.

 

1.7     Tax Distributions; Capital Accounts. SEACOR shall assist the Company in (a) calculating each Member’s tax distributions, in each case, consistent with and pursuant to Article 5 of the Company LLC Agreement, and (b) maintaining accurate Capital Accounts (as defined in the Company LLC Agreement) of the Members, in each case, consistent with and pursuant to Article 4 of the Company LLC Agreement.]

 

 
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1.8     Financing Arrangements. SEACOR shall assist the Company in preparing and updating reports, certificates, documents and other information, including all supporting schedules and documentation, required under any credit facilities and other financing arrangements of the Company.

 

1.9     Accounting Services. SEACOR shall assist the Company in establishing and maintaining with respect to the Company an accounting system, including the development, implementation, maintenance and monitoring of internal control over financial reporting and disclosure controls and procedures, and maintaining books and records, in accordance with generally acceptable accounting principles in effect in the United States from time to time consistently applied throughout the applicable period and otherwise in accordance with the Company LLC Agreement and as may be necessary to comply with applicable laws or regulations.

 

1.10     Contract Administration Services. SEACOR shall assist the Company in generally administering, complying with and performing the actions required by the Company pursuant to the terms and conditions of each contract known to SEACOR (provided that SEACOR has in its possession a copy of each such contract) under which the Company has any obligations or rights (except this Agreement and any other agreement between SEACOR on the one hand, and the Company, on the other hand). Subject to Section 7.6(b) of the Company LLC Agreement, SEACOR is authorized to deal directly with the counterparties under any such contracts on behalf of the Company and to receive notifications from counterparties pursuant to such contracts.

 

1.11     Additional Services. In addition to the forgoing services described this Section 1, SEACOR shall assist in connection with, and provide to, the Company the services listed and described on Schedule A.

 

2.     Fees and Payment.

 

2.1     In consideration for the Services provided by SEACOR to the Company under this Agreement, the Company shall pay SEACOR a quarterly fee of $400,000 (the “Service Fee”); provided that the parties agree that such Service Fee shall be subject to an increase by amendment to this Agreement for (a) any additional services requested by the Company, (b) any increase in the overhead costs and expenses of SEACOR that is a result of any changes in any laws, rules (including accounting rules) or regulations of any governmental or other competent authority or agency having jurisdiction or authority over SEACOR or the Company and which affect the Services, (c) any increase in the number of vessels owned or operated, directly or indirectly, by the Company and (d) any material increase in the business activities of the Company, and SEACOR and the Company agree that they shall amend this Agreement under Section 13.6 to reflect any changes required to reflect such additional services and/or such increase in the Service Fee, as applicable.

 

2.2     In addition, the Company shall reimburse SEACOR for any third party documented out-of-pocket costs and expenses reasonably incurred by SEACOR during the preceding calendar quarter in providing the Services hereunder, including the cost of travel, communications and reproduction, and all reasonable fees and expenses of third party attorneys, auditors, tax advisors, accountants and other experts or professional advisers, in each case, that are not employees of SEACOR or any affiliate of SEACOR, with respect to any legal, administrative, accounting, tax and other matters (collectively, the “Expenses”); provided, however, that the Expenses shall not include the compensation paid by SEACOR (or one of its affiliates) to SEACOR’s officers and employees who are rendering the Services to the Company.

 

 
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2.3     On the date of this Agreement, (a) if the date of this Agreement is the first day of a calendar quarter, the Company shall pay SEACOR, the Service Fee, or (b) if the date of this Agreement is not the first day of a calendar quarter, the Company shall pay SEACOR a pro rata portion of the Service Fee for the initial calendar quarter, which shall be an amount equal to the product of (i) the Service Fee multiplied by (ii) a fraction, the numerator of which is the number of calendar days remaining in such calendar quarter, and the denominator of which is the total number of calendar days in such calendar quarter. At the beginning of each fiscal quarter, SEACOR shall deliver to the Company an invoice for the Service Fee and the Expenses payable by the Company with respect to the Services provided by SEACOR in connection with this Agreement for the preceding fiscal quarter. The Company shall pay in full the amount due as stated on each SEACOR invoice within ten (10) business days of the date of the delivery of such invoice, except to the extent such invoice is subject to a bona fide dispute or challenge by the Company.

 

3.     Personnel.

 

3.1     At all times during the performance of the Services, all persons performing such Services (including agents, temporary employees, independent third parties, and consultants), who are collectively referred to herein as the “SEACOR Employees”, shall be construed as being independent from the Company and no SEACOR Employee shall be considered or deemed to be an employee of the Company nor entitled to any employee benefits from the Company as a result of this Agreement or the provision of the Services to the Company. For the avoidance of doubt, SEACOR acknowledges and agrees that throughout the period that a SEACOR Employee is providing Services hereunder, SEACOR is solely responsible for the payment of wages, providing of benefits and satisfaction of all employment-related obligations (including all obligations with respect to employee leave, immigration, recordkeeping, employment-related taxes and compliance with all labor and employment laws).

 

3.2     SEACOR will have the right, in its sole discretion, to (a) designate which personnel it will assign to perform the Services, and (b) remove and replace such personnel at any time. SEACOR will use reasonable commercial efforts to assign those personnel who have the requisite experience and expertise as reasonably determined by it to perform the particular Services in question. The Company shall not have the authority to terminate any such personnel’s employment with SEACOR or any other third party, and SEACOR shall have the sole and exclusive control over such personnel performing the Services.

 

 
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4.     Term. The term of this Agreement shall commence as of and from the date of this Agreement, and shall continue until the date that is the first anniversary of the date of this Agreement (the “Initial Term”); provided, however, that on such date, and on each anniversary of such date thereafter, this Agreement shall be automatically extended for one (1) additional twelve-month period, unless either party gives the other party written notice of its election to terminate this Agreement at least ninety (90) days prior to the end of the Initial Term or the end of any subsequent twelve-month extension period. Notwithstanding the foregoing, each party shall have the right to terminate this Agreement at any time in accordance with Section 5.

 

5.     Termination and Post-Termination Obligation.

 

5.1     Termination. Either party shall have the right, at any time, to terminate this Agreement with or without cause upon sixty (60) days’ prior written notice, or, in the event of a party’s Default hereunder, in accordance with the terms and conditions of Section 6.

 

5.2     Company’s Obligations.

 

(a)     The termination of this Agreement shall not terminate the Company’s obligation to provide to SEACOR all information required by SEACOR if and when necessary in order to present SEACOR’s financial and accounting information in accordance with generally accepted accounting principles.

 

(b)     In addition, upon termination of this Agreement, the Company shall be required to pay to SEACOR the aggregate amount of all outstanding and unpaid amounts of (i) all unpaid Service Fees for which the Company is liable under this Agreement, and (ii) all unpaid Expenses for which the Company is liable under this Agreement; provided, however, that the amounts referred to in clause (i) above shall not be payable in the event of termination of this Agreement for a Default by SEACOR.

 

5.3     SEACOR’s Obligation. SEACOR agrees to (a) furnish to the Company such further information, (b) execute and deliver to the Company such other documents, and (c) do such other acts and things, all as the Company may reasonably request in order to permit the Company to file all certificates, notices, tax returns, documents or other instruments or perform other actions as may be required by law applicable to the Company, its operations and/or assets (whether owned, chartered, leased or hired).

 

5.4     Effect of Termination. Section 5, Section 6.2, Section 6.3, Section 7, Section 9, Section 11 and Section 13 shall survive any termination of this Agreement.

 

6.     Default and Remedies.

 

6.1     Event of Default. A party shall be in default (a “Default”) hereunder if (a) such party commits a material breach of any term of this Agreement and such breach continues uncured (if capable of being cured) for thirty (30) days following receipt of written notice thereof from the other party, (b)  such party makes a general assignment for the benefit of its creditors, (c) following the date of this Agreement, there is a filing seeking an order for relief in respect of such party in an involuntary case under any applicable bankruptcy, insolvency or other similar law and such case remains undismissed for thirty (30) days or more, (d) a trustee or receiver is appointed for such party or its assets or any substantial part thereof, or (e) following the date of this Agreement, such party files a voluntary petition under any bankruptcy, insolvency or similar law of the relief of debtors.

 

 
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6.2     Remedies.

 

(a)     If there is any Default by the Company hereunder, SEACOR may exercise any or all of the following remedies: (i) declare immediately due and payable all sums for which the Company is liable under this Agreement (including (A) the entire Service Fee and all Expenses incurred by SEACOR, which are payable in respect of the fiscal quarter in which such Default occurs in accordance with the terms of Section 5.2(b), and (B) all unpaid Services Fees and Expenses for any preceding fiscal quarter); (ii) decline to perform any of its obligations hereunder; and/or (iii) terminate this Agreement by issuing a written notice to the Company specifying the date and reasons for termination.

 

(b)     If there is any Default by SEACOR hereunder, the Company may terminate this Agreement by issuing a written notice to SEACOR specifying the date and reasons for termination and recover any fees paid in advance for the period following the effective date of termination.

 

(c)     The rights and remedies herein provided are cumulative and none is exclusive of any other remedy, and, in addition to the remedies set forth in clauses (a) and (b) above, a non-Defaulting party shall have all other remedies available at law or equity, subject to Section 6.3 below.

 

6.3     Liabilities.

 

(a)     Consequential and Other Damages. Except as provided in Section 7, neither party shall be liable to the other party, whether in contract, tort (including negligence and strict liability), or otherwise, for any special, indirect, incidental or consequential damages whatsoever (including loss of profits), which in any way arise out of, relate to, or are a consequence of, its performance or nonperformance hereunder, or the provision of or failure to provide any Service hereunder.

 

(b)     Limitation of Liability. NOTWITHSTANDING THE FORUM IN WHICH ANY CLAIM OR ACTION MAY BE BROUGHT OR ASSERTED OR THE NATURE OF ANY SUCH CLAIM OR ACTION, IN NO EVENT SHALL ANY DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF SEACOR BE PERSONALLY LIABLE TO THE COMPANY IN RESPECT OF ANY SERVICES RENDERED HEREUNDER BY SUCH PERSON EXCEPT IN THE CASE OF FRAUD OR WILLFUL MISCONDUCT. EXCEPT AS PROVIDED IN SECTION 7, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SEACOR, ITS SUBSIDIARIES AND ITS AFFILIATES, EXCEPT IN THE CASE OF FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, BE LIABLE TO THE COMPANY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT THAT SHALL EXCEED THE LESSER OF (A) THE AMOUNT OF THE CLAIM AND (B) THE SERVICE FEE PAID OR PAYABLE BY THE COMPANY IN RESPECT OF THE FISCAL QUARTER IN WHICH THE SERVICES GIVING RISE TO SUCH CLAIM OR ACTION WERE RENDERED OR REQUIRED TO BE RENDERED. The parties agree that this provision limiting remedies and liquidating damages is reasonable under the circumstances and the Company acknowledges that SEACOR, its subsidiaries and its affiliates (including directors, officers, employees and agents) shall have no other financial liability to the Company whatsoever.

 

 
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7.     Indemnification.

 

7.1     The Company hereby releases SEACOR and its officers, directors, managers, employees and agents (each, a “SEACOR Indemnified Party”), and the Company shall indemnify, defend and hold harmless the SEACOR Indemnified Parties, from and against any and all liabilities, claims, damages, losses and expenses (including court costs and reasonable attorneys’ fees) of any kind or nature (“Losses and Expenses”), arising from, relating to or in connection with provision of the Services by SEACOR or the use of the Services by the Company, inclusive of those persons for which the Services have been rendered, provided, however, that the SEACOR Indemnified Parties shall not be indemnified by the Company for any Losses and Expenses that have resulted from the fraud, willful misconduct or gross negligence of SEACOR in connection with the provision of the Services.

 

7.2     SEACOR shall indemnify, defend and hold harmless the Company and its officers, directors, managers, employees and agents (“Company Indemnified Parties”) from and against any and all Losses and Expenses that have resulted from the fraud, willful misconduct or gross negligence of SEACOR in connection with the provision of the Services.

 

7.3     Nothing in this Section 7 or Section 6 shall be deemed to eliminate or limit, in any respect, the Company’s express obligation in this Agreement to pay the Service Charges and Expenses for Services rendered in connection with this Agreement.

 

8.     No Right of Set-Off. Except as provided in the last sentence of Section 2.3, the Company shall pay the full amount of the Service Fees and Expenses that are payable pursuant to this Agreement. The Company shall not set-off, counterclaim or otherwise withhold any amount owed to SEACOR under this Agreement on account of any obligation owed by SEACOR to the Company that has not been finally adjudicated, settled or otherwise agreed upon by the parties in writing.

 

9.     Confidentiality. Each of the parties agrees that any confidential information of the other party received in the course of performance under this Agreement shall be kept strictly confidential by the parties, and shall not be disclosed to any person without the prior written consent of the other party, except as required by law, rule, regulation or court order. Upon the termination of this Agreement, each party shall return to the other party all of such other party’s confidential information to the extent that such information has not been previously returned; provided that a party may retain confidential information solely to the extent necessary to comply with applicable law or for regulatory, audit or internal record retention purposes

 

 
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10.     Compliance with Laws. Each of the Company and SEACOR shall comply in all material respects with any and all applicable statutes, rules, regulations, orders or restrictions of any domestic or foreign government, or instrumentality or agency thereof, in respect of the conduct of its obligations under this Agreement.

 

11.     Dispute Resolution. In the event of any dispute, controversy or claim arising out of or relating to the transactions contemplated by this Agreement, or the validity, interpretation, breach or termination of any provision of this Agreement, or calculation or allocation of the costs of any Service, including claims seeking redress or asserting rights under any law (each, a “Dispute”), the parties shall negotiate in good faith in an attempt to resolve such Dispute amicably. If such Dispute has not been resolved to the mutual satisfaction of the parties within thirty (30) days after the initial written notice of the Dispute (or such longer period as the parties may agree), then either party may seek any remedies that are available under law, subject to Section 6 and Section 7 of this Agreement; provided, that such dispute resolution process shall not modify or add to the remedies available to the parties under this Agreement.

 

12.     Representations and Warranties. Each party hereto represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; and (c) the execution and delivery of this Agreement by it and the performance by it of its obligations hereunder have been duly and validly authorized by all necessary corporate action.

 

13.     General Provisions.

 

13.1     Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing except as expressly provided herein. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (a) when delivered personally to the recipient; (b) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid); (c) upon receipt of confirmation of receipt if sent by facsimile transmission; (d) on the day such communication was sent by e-mail; or (e) three (3) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:

 

(i)            If to SEACOR, to:

 

c/o SEACOR Marine Holdings Inc.

7910 Main Street, 2nd Floor

Houma, Louisiana 70360

Attention: Jesus Llorca

Email: jllorca@seacormarine.com

 

 
8

 

 

with a copy (which copy shall not constitute notice) to:

 

Milbank, Tweed, Hadley & McCloy LLP

28 Liberty Street

New York, New York 10005

Attention: David E. Zeltner

Email: Dzeltner@milbank.com
Facsimile: (212) 822-5003

 

(ii)           If to the Company, to:

 

Falcon Global Holdings LLC

7910 Main Street, 2nd Floor

Houma, Louisiana 70360

Attention: [____]

 

Any Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Parties notice in the manner set forth in this Section14.1

 

13.2     Force Majeure. A party shall not be deemed to have breached this Agreement to the extent that performance of its obligations or attempts to cure any breach are made impossible or impracticable due to any act of God, fire, natural disaster, act of terror, act of government, shortage of materials or supplies after the date hereof, labor disputes or any other cause beyond the reasonable control of such party (a “Force Majeure”). The party whose performance is delayed or prevented shall promptly notify the other party of the Force Majeure cause of such prevention or delay and shall (if reasonably within such party’s control or influence) take commercially reasonable steps to mitigate the effects of Force Majeure and to resolve the Force Majeure as expeditiously as possible.

 

13.3     Access. The Company shall make available on a timely basis to SEACOR all information reasonably requested by SEACOR to enable it to provide the Services. The Company shall give SEACOR reasonable access, during regular business hours and at such other times as are reasonably required or requested, to its premises for the purposes of providing the Services.

 

13.4     Books and Records. Upon the termination of Services with respect to which SEACOR holds books, records or files, including current and archived copies of computer files, owned by the Company and used by SEACOR in connection with the provision of a Service to the Company, SEACOR will return all of such books, records or files as soon as reasonably practicable. In the event SEACOR needs access to such books, records or files for legal or tax reasons, the Company shall cooperate with SEACOR and make such books, records or files available to SEACOR. The parties agree that regardless of the location of such books, records and files, the Company shall at all times retain ownership over same.

 

 
9

 

 

13.5     Independent Contractors. The parties shall operate as, and have the status of, independent contractors and neither party shall act as or be a partner, co-venturer or employee of the other party. Unless specifically authorized to do so in writing, neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.

 

13.6     Amendment and Waiver. No amendment, waiver, modification, replacement, termination or cancellation of any provision of this Agreement will be valid unless the same shall be in writing and signed by each party hereto. Any waiver hereunder shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement nor the failure to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.

 

13.7     Succession and Assignment. No party may assign its rights or delegate its obligations under this Agreement to any person without the prior written consent of the other party; provided, however, that the Company shall be entitled to assign this Agreement to any subsidiary of the Company without obtaining the consent of SEACOR. Any attempted or purported assignment or delegation without such required consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

 

13.8     Governing Law; Jurisdiction.

 

(a)     This Agreement shall be governed by and construed in accordance with the internal Laws of the State of New York (without giving effect to the principles of conflict of Laws thereof that would cause the application of the Laws of any other jurisdiction).

 

(b)     Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the U.S. sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or for recognition or enforcement of any judgment relating thereto, and each party hereto hereby irrevocably and unconditionally agrees that all claims or causes of action (whether in contract, tort or otherwise) in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such federal court. Each party hereto agrees that a final, non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

 
10

 

 

(c)     Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any New York State court or federal court of the U.S. sitting in New York City. Each party hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(d)     Each party hereto hereby irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 13.1 hereof. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

 

13.9     Waiver of Jury Trial. Each party hereto irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation or claim arising out of or relating to this Agreement or the transactions contemplated hereby.

 

13.10     Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of the parties under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid, or unenforceable provisions, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.

 

13.11     Sections and Headings. The sections and headings contained in this Agreement are for convenience only, are not intended to define, limit, expand or describe the scope or intent of any clause or provision of this Agreement and shall not affect the meaning or interpretation of this Agreement.

 

13.12     Entire Agreement. This Agreement, together with the Schedule attached hereto and the Contribution Agreement, constitutes the entire agreement and understanding of the parties and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.

 

13.13     Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by facsimile copies or delivered by electronic communications by portable document format (.pdf), each of which shall be deemed an original.

 

 
11

 

 

13.14     No Third Party Beneficiaries. Except as provided in Section 7.1 and Section 7.2 with respect to indemnification, nothing in this Agreement, express or implied, is intended to or shall confer upon anyone other than the parties hereto (and their respective successors and permitted assigns) any right, benefit or remedy of any nature whatsoever under or because of this Agreement except that Services to be provided by SEACOR hereunder shall also be provided to all subsidiaries included within the “Company” for purposes of this Agreement, all of which shall be entitled to the benefit thereof.

 

13.15     Errors and Omissions. Inadvertent delays, errors or omissions that occur in connection with the performance of this Agreement or the transactions contemplated hereby shall not constitute a breach of this Agreement; provided that any such delay, error or omission is corrected as promptly as commercially practicable after discovery.

 

13.16     Rules of Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Section, paragraph, and clause are references to the Sections, paragraphs and clauses of this Agreement unless otherwise specified; (c) references to “$” shall mean U.S. dollars; (d) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) references to “written” or “in writing” include in electronic form; (g) provisions shall apply, when appropriate, to successive events and transactions; (h) each party has participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts of this Agreement; (i) a reference to any person includes such person’s successors and permitted assigns; (j) any reference to “days” means calendar days unless business days are expressly specified; (k) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, if the last day of such period is not a business day, the period shall end on the next succeeding business day; and (l) whenever a reference is made to SEACOR’s affiliates, such reference shall be deemed to exclude the Company and its subsidiaries unless otherwise expressly indicated.

 

[SIGNATURE PAGE FOLLOWS]

 

 
12

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement effective as of the day and year first written above.

 

 

SEACOR MARINE LLC

 

 

 

 

 

 

 

By:

/s/ 

 

 

Name:    

 

 

Title:   

 

 

 

FALCON GLOBAL HOLDINGS LLC

 

 

 

 

 

 

 

By:

/s/ 

 

 

Name:    

 

 

Title:   

 

 

 

[Signature Page to Administrative Services Agreement]

 

 
 

 

 

Schedule A

Additional Services

 

 

SEACOR shall assist in connection with, and provide to, the Company the following services:

 

1.

Assistance in connection with any audit;

 

2.

Consolidation / General Ledger Maintenance;

 

3.

Accounts Payable Services;

 

4.

Marine Documentation Services;

 

5.

Cash Management Services;

 

6.

Treasury Management Services;

 

7.

Establishment and maintenance of bank accounts and relationships;

 

8.

Information Technology Services, Support and Infrastructure (including, without limitation, data network services, voice and telecommunication services, end user computing services, global applications infrastructure services, email systems, software maintenance, licensing and support, operational management, website services, etc.); and

 

9.

Information Technology Infrastructure Procurement Services.

  

 

 

 

Exhibit B

 

 

 

 


 

AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY AGREEMENT

 

 

OF

 

 

Falcon Global Holdings LLC

 

 

 

 

 

Dated as of [●], 2017

 


 

 

The limited liability company interests represented by this AMENDED AND RESTATED Limited Liability Company Agreement have not been registered under the Securities Act, the securities laws of any state of the United States or any other applicable securities laws in reliance upon exemptions from the registration requirements of the Securities Act and such laws. Such LIMITED LIABILITY COMPANY INTERESTS must be acquired for investment only and may not be offered for sale, pledged, hypothecated, sold, assigned or transferred at any time except in compliance with (i) the Securities Act, any applicable state securities laws, and any other applicable securities laws; and (ii) the terms and conditions of this AMENDED AND RESTATED Limited Liability Company Agreement. The LIMITED LIABILITY COMPANY INTERESTS may not be transferred of record except in compliance with such laws and THE TERMS AND CONDITIONS OF this AMENDED AND RESTATED Limited Liability Company Agreement. Therefore, purchasers of such LIMITED LIABILITY COMPANY INTERESTS will be required to bear the risk of their investment for an indefinite period of time.

 

 
 

 

 

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT
OF
Falcon GLobal HOldings LLC

TABLE OF CONTENTS

 

    Page
     

ARTICLE 1. FORMATION OF THE COMPANY

2

Section 1.1

Formation of the Company

2

Section 1.2

Name

2

Section 1.3

Business of the Company

2

Section 1.4

Location of Principal Place of Business

2

Section 1.5

Registered Agent

2

Section 1.6

Term

2

Section 1.7

Title to Company Assets

3

     

ARTICLE 2. DEFINITIONS

  3

Section 2.1

Definitions

3

Section 2.2

Rules of Interpretation

11

     

ARTICLE 3. CAPITAL CONTRIBUTIONS

12

Section 3.1

Initial Contributions

12

Section 3.2

Additional Contributions

12

Section 3.3

Return of Contributions

15

Section 3.4

Interest on Capital Contributions

15

Section 3.5

Withdrawal; Return of Capital Contributions

15

Section 3.6

Form of Capital Contribution

15

Section 3.7

Advances by Members

15

Section 3.8

Ownership and Issuance of Units

16

Section 3.9

Voting Rights

16

     

ARTICLE 4. ALLOCATION OF NET INCOME AND NET LOSS

  17

Section 4.1

General

17

Section 4.2

Other Allocation Provisions

17

Section 4.3

Allocations for Income Tax Purposes

19

Section 4.4

Withholding and Entity-Level Taxes

20

     

ARTICLE 5. DISTRIBUTIONS

  21

Section 5.1

Other Distributions

21

Section 5.2

Tax Distributions

21

Section 5.3

Limitations on Distributions

21

Section 5.4

Reserves.

23

     

ARTICLE 6. BOOKS OF ACCOUNT; RECORDS AND REPORTS; FISCAL YEAR

  23

Section 6.1

Books and Records

23

  

 

 

 

    Page
     

Section 6.2

Annual Reports

24

Section 6.3

Financial Reports

24

Section 6.4

Fiscal Year

24

Section 6.5

Amended Returns

24

     

ARTICLE 7. POWERS, RIGHTS AND DUTIES OF THE MEMBERS

  25

Section 7.1

Limitations

25

Section 7.2

Liability

25

Section 7.3

Priority

25

Section 7.4

Corporate Opportunities

25

Section 7.5

Member Standard of Care

26

Section 7.6

Certain Actions

26

     

ARTICLE 8. POWERS, RIGHTS AND DUTIES OF THE BOARD OF MANAGERS

  27

Section 8.1

Authority

27

Section 8.2

Powers and Duties of the Board of Managers

27

Section 8.3

Board of Managers

28

Section 8.4

Officers, Agents and Employees

30

Section 8.5

Company Funds

30

Section 8.6

Other Activities

30

Section 8.7

Corporate Opportunities

31

Section 8.8

Exculpation

31

Section 8.9

Tax Elections and Reporting

32

Section 8.10

Indemnification of the Board of Managers, Officers and Agents

32

Section 8.11

Primary Obligation

33

Section 8.12

Expenses

34

Section 8.13

Standard of Care

34

Section 8.14

Additional Units; Additional Members

34

Section 8.15

Issuance of Equity Interests by the Company

35

     

ARTICLE 9. TRANSFERS OF INTERESTS BY MEMBERS

  37

Section 9.1

General.

37

Section 9.2

General Restrictions on Transfer.

37

Section 9.3

Right of First Offer

39

Section 9.4

Company Sale

40

Section 9.5

Tag-Along Rights

41

Section 9.6

Further Requirements.

43

Section 9.7

Consequences of Transfers Generally.

44

Section 9.8

Capital Account; Equity Interest.

45

Section 9.9

Additional Filings; Governmental Compliance.

45

     

ARTICLE 10. RESIGNATION OF MEMBERS; TERMINATION OF COMPANY; LIQUIDATION AND DISTRIBUTION OF ASSETS

  45

Section 10.1

Resignation of Members.

45

Section 10.2

Dissolution of Company.

46

Section 10.3

Distribution in Liquidation.

46

  

 
ii 

 

 

    Page
     

Section 10.4

Final Reports.

47

Section 10.5

Rights of Members.

47

Section 10.6

Deficit Restoration.

48

Section 10.7

Termination.

48

     

ARTICLE 11. NOTICES AND VOTING

  48

Section 11.1

Notices

48

     

ARTICLE 12. AMENDMENT OF AGREEMENT

  49

Section 12.1

Amendments

49

Section 12.2

Amendment of Certificate

50

Section 12.3

Power of Attorney.

50

     

ARTICLE 13. Representations, Warranties and Covenants

  50

Section 13.1

Authorization; Validity and Enforceability; No Conflicts

50

Section 13.2

Investment Purpose

51

Section 13.3

Independent Inquiry

51

Section 13.4

United States Citizenship

51

Section 13.5

Certain Agreements Concerning Idle Vessels

51

     

ARTICLE 14. MISCELLANEOUS

  52

Section 14.1

Confidentiality

52

Section 14.2

Entire Agreement

52

Section 14.3

GOVERNING LAW

53

Section 14.4

WAIVER OF TRIAL BY JURY.

53

Section 14.5

CONSENT TO JURISDICTION; SERVICES OF PROCESS AND VENUE

53

Section 14.6

Severability

53

Section 14.7

Successors and Assigns

54

Section 14.8

Captions

54

Section 14.9

Counterparts

54

Section 14.10

Waiver of Partition

54

Section 14.11

No Third-Party Beneficiaries

54

Section 14.12

Further Assurances

54

Section 14.13

Remedies and Waivers

55

Section 14.14

Specific Performance

55

  

 
iii 

 

 

SCHEDULES

 

Schedule I – Capital Accounts

 

Schedule II – Capitalization Table

 

Schedule III – Vessels to be Reactivated

 

Schedule IV – Affiliate Transactions

 

Schedule V – Board of Managers

 

 
iv 

 

 

AMENDED AND RESTATED

 

LIMITED LIABILITY COMPANY AGREEMENT

OF

Falcon Global HOldings LLC

 

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of Falcon Global Holdings LLC, dated as of [●], 2017, is entered into by and among Falcon Global Holdings LLC, a Delaware limited liability company (the “Company”), and the Members. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Section 2.1.

 

RECITALS

 

WHEREAS, the Company was formed as a limited liability company under the Act by the filing of the Certificate of Formation of the Company with the Office of the Secretary of State of Delaware on [●], 2017 and the entering into of a limited liability company agreement of the Company dated as of such date (the “Initial Agreement”);

 

WHEREAS, pursuant to that certain Joint Venture Contribution and Formation Agreement, dated as of August 10, 2017 (as amended, supplemented or modified from time to time, the “Contribution Agreement”), by and between SEACOR LB Holdings LLC, a Delaware limited liability company (“SLH”), and Montco Offshore, Inc., a Louisiana corporation (“MOI”), SLH and MOI contributed certain tangible and intangible assets to the Company;

 

WHEREAS, pursuant to the Contribution Agreement, the Members desire to enter into this Agreement to give effect to the transactions provided for therein;

 

WHEREAS, concurrently with the execution of this Agreement, the Company is entering into an Administrative Services Agreement with SEACOR Marine LLC, a Delaware limited liability company (“SEACOR Marine”);

 

WHEREAS, concurrently with the execution of this Agreement, the Company is entering into a Transition Services Agreement with SEACOR Marine;

 

WHEREAS, concurrently with the execution of this Agreement, the Company is entering into a Lease Agreement with Orgeron Real Estate L.L.C., a Louisiana limited liability company, for the occupancy of the corporate office of the Company; and

 

WHEREAS, the parties hereto wish to effect (a) the amendment and restatement of the Initial Agreement, (b) the admission of additional members of the Company and (c) the continued operation of the Company on the terms and conditions set forth herein.

 

 
1

 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

 

 

ARTICLE 1.       FORMATION OF THE COMPANY

 

Section 1.1     Formation of the Company. The Company was formed as a limited liability company under the Act by the filing of the Certificate with the Office of the Secretary of State of the State of Delaware on [●], 2017. The Company shall accomplish all filing, recording, publishing and other acts necessary or appropriate for compliance with all requirements for operation of the Company as a limited liability company under this Agreement and the Act and under all other laws of the State of Delaware and such other jurisdictions in which the Company determines that it may conduct business.

 

Section 1.2     Name. The name of the Company is “Falcon Global Holdings LLC”, as such name may be modified from time to time by the Board of Managers as it may deem advisable.

 

Section 1.3     Business of the Company. Subject to the limitations specified in this Agreement, the principal business purpose of the Company shall be to own, operate and charter self-propelled, self-elevating liftboat vessels, as well as the provision of services for well servicing, decommissioning, plug and abandonment, maintenance and removal of offshore structures and related services and activities, and, in furtherance of such purpose, may (a) conduct any business or activity that may be conducted by a limited liability company organized pursuant to the Act and (b) except as otherwise limited herein, enter into, make and perform all contracts, agreements and other undertakings, and engage in all activities and transactions as the Board of Managers may reasonably deem necessary or advisable to the carrying out of the foregoing business of the Company.

 

Section 1.4     Location of Principal Place of Business. The location of the principal place of business of the Company (including with respect to all administrative matters) shall be 7910 Main Street, 2nd Floor, Houma, Louisiana 70360, and the principal business operations of the Company shall be conducted from 17751 Highway 3235, Galliano, Louisiana 70354, or, in each case, such other location as may be determined by the Board of Managers from time to time. In addition, the Company may maintain such other offices as the Board of Managers may deem advisable at any other place or places within or without the State of Delaware.

 

Section 1.5     Registered Agent. The registered agent for the Company shall be National Registered Agents, Inc., located at 160 Greentree Drive, Suite 101, Dover, Delaware 19904, or such other registered agent as the Board of Managers may designate from time to time.

 

Section 1.6     Term. The term of the Company commenced on the date of filing of the Certificate, and shall be perpetual unless the Company is earlier dissolved and terminated in accordance with the provisions of this Agreement.

 

 
2

 

 

Section 1.7     Title to Company Assets. Title to the Company’s assets, whether real, personal or mixed and whether tangible or intangible, shall be held by the Company as an entity, and no Member or Manager, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof.

 

 

ARTICLE 2.       DEFINITIONS

 

Section 2.1     Definitions. The following terms used in this Agreement shall have the following meanings.

 

Act” means the Delaware Limited Liability Company Act, 6 Del. Code §§ 18-101 et seq., and any successor statute, as it may be amended from time to time.

 

Actual Reactivation Costs” means, as of any date, the reasonable and documented costs of reactivation actually paid by the Company or any of its Subsidiaries in connection with the reactivation of the Idle Vessels listed on Schedule III.

 

Additional Amount” has the meaning set forth in Section 8.15(c).

 

Additional Capital Contribution” means any Capital Contribution in addition to the initial Capital Contribution made by a Member to the Company pursuant to Section 3.1.

 

Additional Member” has the meaning set forth in Section 8.14(a).

 

Adjusted Capital Account” has the meaning set forth in Section 4.2(b).

 

Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; and the terms “controlling” and “controlled” shall have correlative meanings.

 

Agreement” means this Amended and Restated Limited Liability Company Agreement, as amended, modified or supplemented from time to time.

 

Annual Premium Rate” has the meaning set forth in Section 3.2(f)(i).

 

Approved Sale” has the meaning set forth in Section 9.2(a)(iii).

 

Assignees” has the meaning set forth in Section 9.2(d).

 

Available Cash” means, at the time of any distribution, the excess of (a) all cash then held by the Company to the extent not otherwise required to pay Company expenses over (b) the amount of reserves established by the Board of Managers in accordance with Section 5.4.

 

Bankruptcy Cases” has the meaning set forth in the Contribution Agreement.

 

 
3

 

 

Bankruptcy Code” means the United States Bankruptcy Code, title 11 of the United States Code, as amended from time to time (or any succeeding law).

 

Bankruptcy Court” has the meaning set forth in the Contribution Agreement.

 

Base Amount” has the meaning set forth in Section 8.15(a).

 

Board of Managers” means the board of managers of the Company established pursuant to Section 8.3.

 

Business Day” means any day other than a Saturday, Sunday or a day on which commercial banks are authorized or required to close in New York City, New York.

 

Call Notice” has the meaning set forth in Section 3.2(c).

 

Capital Account” means with respect to each Member the account established and maintained for such Member on the books of the Company in compliance with Regulation §§ 1.704-1(b)(2)(iv) and 1.704-2, as amended. Subject to the preceding sentence, each Member’s Capital Account balance shall initially equal the amount of cash and the Contribution Value of any other property contributed by such Member, which initial Capital Account balance is set forth opposite such Member’s name under the heading “Initial Capital Account Balance” on Schedule I. Throughout the term of the Company, each Capital Account will be (a) increased by the amount of (i) income and gains allocated to such Capital Account pursuant to Article 4 and (ii) any cash and the Contribution Value of any other property subsequently contributed to such Capital Account, and (b) decreased by the amount of (i) losses and deductions allocated to such Capital Account pursuant to Article 4 and (ii) cash and the Distribution Value of any other property distributed or transferred from such Capital Account pursuant to Article 3, 5 or 10.

 

Capital Call” has the meaning set forth in Section 3.2(b).

 

Capital Contribution” means a contribution to the capital of the Company.

 

Certificate” means the Certificate of Formation of the Company, as amended, modified or supplemented from time to time.

 

Chairman of the Board” has the meaning set forth in Section 8.3(a)(ii).

 

Chief Executive Officer” means the chief executive officer of the Company from time to time.

 

Closing” has the meaning of such term as set forth in the Contribution Agreement.

 

Closing Date” has the meaning of such term as set forth in the Contribution Agreement.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time (or any succeeding law).

 

 
4

 

 

Common Percentage Interest” means, as of any date of determination, with respect to any Member, a fraction, expressed as a percentage, (a) the numerator of which is the aggregate number of Common Units held by such Member and (b) the denominator of which is the aggregate number of Common Units held by all Members, in each case, as of such date.

 

Common Units” has the meaning set forth in Section 3.8(a).

 

Company” has the meaning set forth in the Preamble.

 

Company Sale Agents” has the meaning set forth in Section 9.4(f).

 

[“Consolidated Facility” has the meaning ascribed to such term in the Contribution Agreement.]1

 

Contribution Agreement” shall have the meaning set forth in the Recitals.

 

Contribution Date” has the meaning set forth in Section 3.2(c).

 

Contribution Non-Payment Event” has the meaning set forth in Section 3.2(f).

 

Contribution Value” means the Value of a Company asset contributed by a Member to the Company (net of liabilities secured by such contributed asset that the Company is treated as assuming or taking subject to).

 

Corporate Opportunity” has the meaning set forth in Section 7.4.

 

Default Amount” has the meaning set forth in Section 3.2(f)(i).

 

Default Contribution” has the meaning set forth in Section 3.2(f).

 

Default Guarantee Amount” has the meaning set forth in Section 3.2(g).

 

Default Guarantee Premium” has the meaning set forth in Section 3.2(g)(i).

 

Default Loan” has the meaning set forth in Section 3.2(f)(i).

 

Default Premium” has the meaning set forth in Section 3.2(f)(i).

 

Defaulting Member” has the meaning set forth in Section 3.2(f).

 

Distribution Value” means the Value of a Company asset distributed to a Member by the Company (net of liabilities secured by such distributed asset that such Member is treated as assuming or taking subject to).

 

Election Notice” has the meaning set forth in Section 8.15(c).

 

Election Period” has the meaning set forth in Section 8.15(c).

 


1  Note to Draft: Parties contemplate including the actual name of the facility at Closing.

 
 
5

 

 

Equity Interests” means any and all membership or other equity interests in the Company or any securities convertible into or exchangeable for such equity interests, including warrants or options to acquire such equity interests. For purposes of clarification, “Equity Interests” include only Common Units on the Closing Date but may in the future include other classes of securities with rights that are preferential to the rights of the Common Units.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

 

Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

Exempt Interests” has the meaning set forth in Section 8.15(e).

 

Fiscal Year” has the meaning set forth in Section 6.4.

 

Funding Member” has the meaning set forth in Section 3.2(g).

 

GAAP” means generally accepted accounting principles in the United States.

 

Guarantee Fee Agreement” means that certain Guarantee Fee Agreement, dated as of the date hereof, by and between the Company, Falcon Global USA LLC, a Delaware limited liability company and wholly-owned Subsidiary of the Company, and SEACOR Marine Holdings Inc., a Delaware limited liability company.

 

Guarantee Loan” has the meaning set forth in Section 3.2(g)(i).

 

Guarantee Non-Payment Event” has the meaning set forth in Section 3.2(g).

 

Guaranteeing Member” has the meaning set forth in Section 3.2(e).

 

Guaranty” has the meaning set forth in Section 3.2(e).

 

Idle Vessel” means any liftboat vessel listed on Schedule III.

 

Imputed Reactivation Costs” means, with respect to each Idle Vessel, the dollar amount set forth opposite such Idle Vessel’s name on Schedule III.

 

Indemnified Party” has the meaning set forth in Section 8.10(a).

 

Indemnity Obligations” has the meaning set forth in Section 8.11.

 

Initial Agreement” has the meaning set forth in the Recitals.

 

IRS” means the United States Internal Revenue Service.

 

Jones Act” means the laws contained in and rules and regulations promulgated under or in connection with, 46 U.S.C. 50501, as amended or revised from time to time and any successor or replacement thereof, relating to the ownership and operation of vessels in the U.S. coastwise trade.

 

 
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Liquidator” has the meaning set forth in Section 10.2(c).

 

Liquidity Event” means a Sale of the Company or dissolution or liquidation of the Company in accordance with the terms of this Agreement.

 

Manager” means any Person appointed to the Board of Managers.

 

Member” means each of the Persons listed on the signature pages attached hereto, as well as each Substituted Member and each Additional Member.

 

Member Parties” has the meaning set forth in Section 8.11.

 

MOI” has the meaning set forth in the Recitals.

 

MOI Manager” has the meaning set forth in Section 8.3(a)(i)(B).

 

Net Income” and “Net Loss”, respectively, for any period means the income or loss of the Company for such period as determined in accordance with the method of accounting followed by the Company for federal income tax purposes, including, for all purposes, any income exempt from tax and any expenditures of the Company which are described in Code Section 705(a)(2)(B); provided, however, that in determining Net Income and Net Loss and every item entering into the computation thereof, solely for the purpose of adjusting the Capital Accounts of the Members (and not for tax purposes), (a) any income, gain, loss or deduction attributable to the taxable disposition of any Company asset shall be computed as if the adjusted basis of such Company asset on the date of such disposition equaled its book value as of such date, (b) if any Company asset is distributed in-kind to a Member, the difference between its Value and its book value at the time of such distribution shall be treated as gain or loss, and (c) any depreciation, cost recovery and amortization as to any Company asset shall be computed by assuming that the adjusted basis of such Company asset equaled its book value determined under the methodology described in Regulation §1.704-1(b)(2)(iv)(g)(3); and provided, further, that any item (computed with the adjustments in the preceding proviso) allocated under Section 4.2 shall be excluded from the computation of Net Income and Net Loss.

 

New Issuance Notice” has the meaning set forth in Section 8.15(b).

 

Non-Defaulting Member” has the meaning set forth in Section 3.2(f).

 

Notifying Manager/Officer” has the meaning set forth in Section 8.7.

 

Notifying Member” has the meaning set forth in Section 7.4.

 

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury, or any successor thereto.

 

Offer Notice” has the meaning set forth in Section 9.3(a).

 

 
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Offer Period” has the meaning set forth in Section 9.3(b).

 

Offer Price” has the meaning set forth in Section 9.3(a).

 

Offeree” has the meaning set forth in Section 9.3(a).

 

Outstanding Bankruptcy Claims” has the meaning set forth in Section 5.3(a)(ii).

 

Outstanding Claims” has the meaning set forth in Section 5.3(a)(iii).

 

Partnership Audit Adjustment” has the meaning set forth in Section 6.5.

 

Permitted Transferee” means, with respect to any Member, any Affiliate of such Member.

 

Person” means any individual, partnership, limited liability company, association, corporation, trust or other entity.

 

Plan” means that certain [Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code], dated [●], 2017, of MOI, as confirmed by that certain order of the Bankruptcy Court entered on [●], 2017, as amended, modified, restated or supplemented from time to time.

 

Preemptive Offer Record Date” has the meaning set forth in Section 8.15(b).

 

Preemptive Right” has the meaning set forth in Section 8.15(a).

 

Prohibited Person” means any Person that is (a) located within, or doing business or operating from, a country or other territory subject to a general embargo administered by OFAC, (b) designated on the OFAC list of “Specially Designated Nationals”, (c) otherwise targeted under economic or financial sanctions administered by the United States, OFAC or any other national economic sanctions authority, (d) an Affiliate of any Person described in clauses (a), (b) or (c) above, (e) a banking institution chartered or licensed in a jurisdiction against which the U.S. Secretary of the Treasury has imposed special measures under Section 311 of the USA PATRIOT Act of 2001, as amended or any successor law, or (f) not a United States Citizen.

 

Reactivation Default Amount” has the meaning set forth in Section 13.5(b).

 

Reactivation Notice” has the meaning set forth in Section 13.5(a).

 

Reactivation Premium” has the meaning set forth in Section 13.5(b).

 

Regulation” means a Treasury Regulation promulgated under the Code, as such Treasury Regulations may be amended from time to time (including corresponding provisions of succeeding Treasury Regulations).

 

Reimbursement Deadline” has the meaning set forth in Section 13.5(b).

 

 
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Sale of the Company” means a transaction or series of related transactions pursuant to which a Person or group of Persons (that, immediately prior to the contemplated transaction or series of related transactions, is not an Affiliate of SLH) acquires, directly or indirectly, (a)  more than fifty percent (50%) of the Equity Interests (regardless of the form of such transaction or series of related transactions, including whether by merger, consolidation or sale or transfer or issuance of the Company’s Equity Interests); or (b) all or substantially all of the Company’s and its Subsidiaries’ assets determined on a consolidated basis.

 

SEACOR Marine” has the meaning set forth in the Recitals.

 

Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

SLH” has the meaning set forth in the Recitals.

 

SLH Eagle/Hawk Facility” means, collectively, (a) that certain Credit Agreement, dated as of June 28, 2017, providing for a Senior Secured Credit Facility, by and between SEACOR Eagle, as borrower, DNB Bank ASA, as facility agent and security trustee, and the lenders party thereto, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation, and (b) that certain Credit Agreement, dated as of June 28, 2017, providing for a Senior Secured Credit Facility, by and between SEACOR Hawk, a borrower, DNB Bank ASA, as facility agent and security trustee, and the lenders party thereto, as amended, restated, supplemented or modified from time to time, together with all related security and other documentation.

 

SLH Manager” has the meaning set forth in Section 8.3(a)(i)(A).

 

Subject Interest” has the meaning set forth in Section 9.3(a).

 

Subject Member” has the meaning set forth in Section 5.3(a)(iii).

 

Subsidiary” means, with respect to any specified Person, any other Person in which such specified Person, directly or indirectly through one or more Affiliates or otherwise, beneficially owns at least fifty percent (50%) of either the ownership interest (determined by equity or economic interests) in, or the voting control of, such other Person.

 

Substituted Member” means any Person admitted to the Company as a substituted Member pursuant to the provisions of Article 9.

 

Tag-Along Acceptance Notice” has the meaning set forth in Section 9.5(b).

 

Tag-Along Expiration Date” has the meaning set forth in Section 9.5(b).

 

Tag-Along Notice” has the meaning set forth in Section 9.5(a).

 

Tag-Along Rightholder” has the meaning set forth in Section 9.5(a).

 

Tag-Along Sale” has the meaning set forth in Section 9.5(a).

 

 
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Tag-Along Seller” has the meaning set forth in Section 9.5(a).

 

Tag-Along Triggering Units” has the meaning set forth in Section 9.5(a).

 

Tag-Along Units” has the meaning set forth in Section 9.5(b).

 

Tax Amount” means, in respect of any Member, the excess of (a) the product of (i) the Board of Managers’ estimate of taxable income allocable to such Member for the Fiscal Year through the end of the month preceding the date on which such distribution is made, multiplied by (ii) the highest marginal effective rate of federal, state and local income taxes generally applicable in respect of the operating income of the Company to calendar-year individuals or corporations, whichever is greater, resident in New Orleans, Louisiana, in the calendar quarter preceding the date of the distribution, over (b) the amount of distributions previously made to such Member pursuant to Section 5.1 during the Fiscal Year in which the taxable income arose, or pursuant to Section 5.2 in respect of the Fiscal Year with respect to which the distribution is being made.

 

Tax Distribution” has the meaning set forth in Section 5.2.

 

Tax Matters Partner” shall mean SLH, or if SLH shall resign such position or no longer be able to serve as “tax matters partner” or “partnership representative” (as defined in Section 8.9(c)), the Tax Matters Partner for such purpose shall be such other person as designated by the Board of Managers.

 

TEFRA” means the Tax Equity and Fiscal Responsibility Act of 1982, as amended from time to time.

 

Third-Party Buyer” has the meaning set forth in Section 9.5(a).

 

Transaction Documents” means this Agreement, the Contribution Agreement and all other documents executed in connection herewith or contemplated hereby.

 

Transfer means any direct or indirect transfer, sale, assignment, conveyance, change of legal, record or beneficial ownership or other disposition, including a transfer effected by means of a merger, consolidation or dissolution, and including any testamentary disposition or transfer pursuant to any applicable laws of intestate succession or by gift.

 

Transferee” has the meaning set forth in Section 9.1.

 

Transferor” has the meaning set forth in Section 9.1.

 

Unelected Amounts” has the meaning set forth in Section 8.15(c).

 

United States Citizen” means a citizen of the United States within the meaning of, and as interpreted under the Jones Act, qualified to engage in the U.S. coastwise trade.

 

Value” of (a) a Member’s Common Units in the Company, as of any date, means an amount equal to the product of (i) the fair market value as of such date of all Common Units then outstanding, based upon the total consideration that would be received upon the sale of the Company or all of its assets as a going concern between a willing buyer and a willing seller with the former under no compulsion to buy and the latter under no compulsion to sell, all parties having reasonable knowledge of all relevant facts, as determined upon a reasonable basis and in good faith by the Board of Managers (it being understood that the Board of Managers shall be under no obligation to obtain an independent valuation of the Company), multiplied by (ii) such Member’s Common Percentage Interest, and (b) any asset of the Company, as the case may be, as of any date, means the fair market value of such asset, as of such date, as determined upon a reasonable basis and in good faith by the Board of Managers.

 

 
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Void Transfer” has the meaning set forth in Section 9.1.

 

Withdrawing Member” has the meaning set forth in Section 9.2(d).

 

Section 2.2     Rules of Interpretation. Unless the context otherwise clearly requires: (a) a term has the meaning assigned to it in this Agreement; (b) “or” is not exclusive; (c) wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine or neuter shall include the masculine, feminine and neuter; (d) provisions apply to successive events and transactions; (e) all references in this Agreement to “include” or “including” or similar expressions shall be deemed to mean “including without limitation”; (f) all references in this Agreement to designated “Articles,” “Sections,” “Schedules,” “ “paragraphs,” “clauses” and other subdivisions are to the designated Articles, Sections, Schedules, paragraphs, clauses and other subdivisions of this Agreement, and the words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Schedule, Exhibit, paragraph, clause or other subdivision; and (g) any definition of or reference to any agreement, instrument, document, statute or regulation herein shall be construed as referring to such agreement, instrument, document, statute or regulation as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein). This Agreement is among financially sophisticated and knowledgeable parties and is entered into by the parties in reliance upon the economic and legal bargains contained herein and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party who prepared, or cause the preparation of, this Agreement or the relative bargaining power of the parties. Wherever in this Agreement a Member or other Person is empowered to take or make a decision, direction, consent, vote, determination, election, action or approval, such Member or Person is entitled to consider, favor and further such interests and factors as it desires, including its own interests, and has no duty or obligation to consider, favor or further any other interest of the Company, any Subsidiary of the Company or any other Member or Person. Wherever in this Agreement a Member is permitted or required to make a decision or determination or take an action in its “discretion” or its “judgment,” that means that such Member may take that decision in its “sole discretion” or “sole judgment” without regard to the interests of any other Person.

 

 
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ARTICLE 3.       CAPITAL CONTRIBUTIONS

 

Section 3.1     Initial Contributions.

 

(a)        The initial Capital Contributions and Capital Account balances for each Member shall be as set forth on Schedule I.

 

(b)        Any Additional Member admitted to the Company will be issued a number of Common Units or such other Equity Interests, and will make such Capital Contributions, if any, in each case as the Board of Managers deems appropriate.

 

(c)        Except as otherwise required by law or pursuant to Section 3.2, (i) no Member shall be required to make any Additional Capital Contributions to the Company without the prior consent of such Member and the Board of Managers, and (ii) no Member shall be permitted to make any Additional Capital Contributions to the Company without the prior consent of the Board of Managers and the other Member.

 

Section 3.2     Additional Contributions.

 

(a)        The Members and the Company acknowledge that each Member hereby commits to make Additional Capital Contributions from time to time in accordance with this Agreement and subject to the conditions set forth in this Section 3.2.

 

(b)        Subject to Section 3.2(c), each Member shall make Capital Contributions in cash to the Company pursuant to calls for capital by the Company (each such call, a “Capital Call”). Capital Contributions requested pursuant to Capital Calls shall be made by the Members on a pro rata basis in accordance with their respective Common Percentage Interests as of the date such Capital Call is made.

 

(c)        Capital Calls may be made by the Board of Managers from time to time in accordance with this Section 3.2, but only if and to the extent the Board of Managers reasonably determines that the Company or its business, properties or prospects would be adversely affected without additional capital and no other commercially reasonable source of funding is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7). Each Capital Call shall be accompanied by a written call notice (the “Call Notice”) and delivered by the Company to the Members promptly after the Board of Managers’ approval for such Capital Call. Each Call Notice shall specify (i) the purpose of such Capital Call in accordance with this Section 3.2(c); (ii) the aggregate amount of such Capital Call; (iii) the amount of funds required to be contributed by each Member; and (iv) the date on which the funds to satisfy such Capital Call must be received by the Company (the “Contribution Date”), which date shall be no earlier than the tenth (10th) Business Day following the date of the Call Notice.

 

(d)        Subject to Sections 3.2(c), on each Contribution Date, each Member shall make payment of the funds necessary to satisfy its respective pro rata portion of the applicable Capital Call by wire transfer of immediately available funds to the bank account designated by the Company and specified in the Call Notice or by such other payment method as is mutually agreed to by the Members and the Company.

 

 
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(e)        The Members acknowledge that SLH has agreed to guaranty, or cause one or more of its Affiliates to agree to guaranty, certain financial obligations of the Company or certain of its Subsidiaries as further described in the Guarantee Fee Agreement. In addition, at any time or from time to time hereafter, the Board of Managers may request either or both Members to guaranty, or cause one or more of its Affiliates to guaranty, certain other financial obligations of the Company or its Subsidiaries currently existing or hereafter created, it being understood, however, that no Member shall have any obligation to provide, or agree to provide, any such guaranty. Any Member which has provided, or may hereafter provide, such a guaranty of financial obligations of the Company as described in this Section 3.2(e) (any such guaranty, a “Guaranty”) is herein referred to as a “Guaranteeing Member”.

 

(f)        If a Member (a “Defaulting Member”) fails to make an additional Capital Contribution as and when required pursuant to the provisions of this Section 3.2 (a “Contribution Non-Payment Event”; and the unpaid amount of Additional Capital Contribution being referred to as a “Default Contribution”), then the Company shall promptly notify such Defaulting Member of such default. Notwithstanding anything to the contrary in this Agreement, if the relevant Contribution Non-Payment Event is not cured in full within fourteen (14) calendar days, any other Member that is not (x) a Defaulting Member with respect to any additional Capital Contribution as provided under this Section 3.2(f), (y) a Guaranteeing Member that is the subject of a default in performing a financial obligation under a Guaranty under Section 3.2(g) or (z) a Member that is the subject of a default in performing its obligations under Section 13.5, in any case, at such time (whether one or more, the “Non-Defaulting Member”), may, at its option and at any time thereafter by written notice to the Board of Managers and the Defaulting Member, elect any of the following remedies:

 

(i)     Loan to Defaulting Member. The Non-Defaulting Member may elect to advance an amount equal to the Default Contribution as a loan (the “Default Loan”) to the Defaulting Member, the proceeds of which shall be disbursed directly to the Company as the contribution or payment of the Default Contribution, and which shall be deemed to cure any such default and to be a contribution of the Default Contribution by the Defaulting Member. Such Default Loan shall be subject to a premium (the “Default Premium”) at a rate per annum (the “Annual Premium Rate”) equal to the lesser of (A) twelve percent (12%) and (B) the maximum rate permitted by applicable law, compounding quarterly, from the date the Non-Defaulting Member agrees to make the Default Loan to the Defaulting Member until paid in full. The Default Premium shall be computed daily and shall be the amount equal to the product of (1) the product of (x) the amount of the Default Contribution multiplied by (y) the quotient of the Annual Premium Rate divided by 365, multiplied by (2) the number of days since the date the Non-Defaulting Member agrees to make the Default Loan until the date upon which the Defaulting Member pays in full the Default Contribution and the Default Premium owing thereon (such aggregate amount, the “Default Amount”). Such Default Loan and accrued interest thereon shall be due and payable on the date that is one (1) year after the date such Non-Defaulting Member makes the Default Loan, and shall be repaid (aa) voluntarily by the Defaulting Member, or (bb) directly and automatically from an assignment of distributions of the Company which would otherwise have been paid to the Defaulting Member (and such Defaulting Member hereby agrees to such automatic assignment of distributions at the demand of the Non-Defaulting Member).

 

 
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(ii)     Contributions by the Non-Defaulting Member. The Non-Defaulting Member may elect to pay to the Company an amount equal to the Default Contribution as an Additional Capital Contribution to the Company, which shall be deemed to cure such default. A Non-Defaulting Member making an Additional Capital Contribution under this Section 3.2(f)(ii) shall receive in respect thereof an issuance by the Company of a number of Common Units equal to the result of the quotient of (I) the amount of the Additional Capital Contribution being made by such Non-Defaulting Member, divided by (II) the amount equal to the Value of a Common Unit determined as of such date.

 

(iii)     Acquisition of all Common Units of the Defaulting Member. The Non-Defaulting Member may elect, upon giving written notice to the Defaulting Member, to acquire all (but not less than all) of the Defaulting Member’s Common Units in the Company, in which case the Defaulting Member shall conclusively be deemed to have offered all of its Common Units to the Non-Defaulting Member or its designee and the Non-Defaulting Member or its designee shall, notwithstanding any further right granted by law or otherwise, have the option to purchase all of the Common Units held by such Defaulting Member for an amount of consideration equal to the product of (I) the Value of the Defaulting Member’s Common Units determined as of such date multiplied by (II) ninety percent (90%). If the Non-Defaulting Member elects to purchase the Defaulting Member’s Common Units under this Section 3.2(f)(iii), the amount of the Default Contribution shall be applied against the consideration payable for such Common Units, and the balance shall be paid in cash at the closing of such purchase and sale, which shall occur within thirty (30) calendar days following the Non-Defaulting Member’s written notice specified above.

 

(g)        If a Guaranteeing Member defaults in performing a financial obligation under a Guaranty, and any such failure continues uncured for a period of fourteen (14) calendar days (such failure, a “Guarantee Non-Payment Event”, and any unpaid amount, the “Default Guarantee Amount”), then any other Member that is not a Defaulting Member under Section 3.2(f) and is not a Guaranteeing Member that has defaulted in performing a financial obligation under a Guaranty under this Section 3.2(g), in either case, at such time (whether one or more, the “Funding Member”), may, at its option and at any time thereafter by written notice to the Board of Managers and the Guaranteeing Member, elect either of the following remedies:

 

(i)     Loan to Guaranteeing Member. The Funding Member may elect to advance an amount equal to the Default Guarantee Amount as a loan (the “Guarantee Loan”) to the Guaranteeing Member, the proceeds of which shall be disbursed directly to the Company as the payment of the Default Guarantee Amount. Such Guarantee Loan shall be deemed to cure any such default under the applicable Guaranty for the purposes of this Agreement. Such Guarantee Loan shall be subject to a premium (the “Default Guarantee Premium”) at a rate per annum equal to the Annual Premium Rate, compounding quarterly, from the date the Funding Member agrees to make the Guarantee Loan to the Guaranteeing Member until paid in full. The Default Guarantee Premium shall be computed daily and shall be the amount equal to the product of (1) the product of (x) the amount of the Default Guarantee Amount multiplied by (y) the quotient of the Annual Premium Rate divided by 365, multiplied by (2) the number of days since the date the Funding Member agrees to make the Guarantee Loan until the date upon which the Guaranteeing Member pays in full the Default Guarantee Amount and Default Guarantee Premium owing thereon. Such Guarantee Loan and accrued interest thereon shall be due and payable on the date that is one (1) year after the date such Funding Member makes the Guarantee Loan, and shall be repaid (A) voluntarily by the Guaranteeing Member, or (B) directly and automatically from an assignment of distributions of the Company which would otherwise have been paid to the Guaranteeing Member (and such Guaranteeing Member hereby agrees to such automatic assignment of distributions at the demand of the Funding Member).

 

 
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(ii)     Institute Claims. In the event that the Company is entitled to enforce a claim against the Guaranteeing Member as a result of the Guarantee Non-Payment Event, then the Funding Member may institute or enforce such claim against the Guaranteeing Member in the name, and on behalf, of the Company and agree to any settlement in the name, and on behalf, of the Company.

 

Section 3.3     Return of Contributions. No Member shall be entitled to the return of any part of its Capital Contributions except as specified in this Agreement. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member’s Capital Contributions.

 

Section 3.4     Interest on Capital Contributions. No Member shall be entitled to interest on, or with respect to, any Capital Contribution.

 

Section 3.5     Withdrawal; Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member shall be entitled to (a) withdraw any part of such Member’s Capital Contribution, (b) receive distributions from the Company or (c) receive any property other than cash in return for such Member’s Capital Contributions.

 

Section 3.6     Form of Capital Contribution. Unless otherwise agreed to by the Board of Managers, all Capital Contributions shall be made in cash.

 

Section 3.7     Advances by Members. If the Board of Managers reasonably determines that the Company does not have sufficient funds to pay its obligations after taking into account other then-currently available funding sources (excluding for the purposes hereof the availability of any Capital Contributions pursuant to Section 3.2), then any Member(s) that may agree to do so may advance all or part of the funds required to, or on behalf of, the Company. An advance described in this Section 3.7 constitutes a loan from such Member(s) to the Company, and shall not constitute a Capital Contribution. Repayment of such advances shall be on such commercially reasonable terms and conditions mutually acceptable to the Board of Managers and such Member making an advance hereunder; provided, however, that, (a) if a Non-Defaulting Member has made a Default Loan to a Defaulting Member in connection with Section 3.2(f), then any amounts that would otherwise be paid by the Company to such Defaulting Member to repay any advance by such Defaulting Member to the Company shall instead be paid to the Non-Defaulting Member and applied to repay such Default Loan until such Default Loan is repaid in full, or (b) if a Funding Member has made a Guarantee Loan to a Guaranteeing Member in connection with Section 3.2(g), then any amounts that would otherwise be paid by the Company to such Guaranteeing Member to repay any advance by such Guaranteeing Member to the Company shall instead be paid to the Funding Member and applied to repay such Guarantee Loan until such Guarantee Loan is repaid in full.

 

 
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Section 3.8     Ownership and Issuance of Units.

 

(a)        As of the Closing Date (as defined in the Contribution Agreement), the Company has issued Equity Interests designated as Common Units (“Common Units”) to each Member, and each Member owns that number of Common Units as appears opposite its name on Schedule II, which such schedule shall be updated from time to time by the Board of Managers to reflect any changes and adjustments to the number of Common Units or other Equity Interests issued to, and held by, the Members and each Member’s respective Common Percentage Interest or otherwise resulting from the admission or removal of any Member or any Transfer or issuance of Equity Interests made in accordance with this Agreement; provided, that a failure to reflect any such change, adjustment, or other action on Schedule II shall not prevent any such change, adjustment or other action from being effective.

 

(b)        Each Member and the Company agrees and acknowledges that, the number of Common Units issued to MOI and SLH as of the Closing Date is subject to a post-Closing adjustment in accordance with the terms and conditions of Section 2.7 of the Contribution Agreement to reflect the actual value of the assets (net of liabilities) contributed to the Company by each of MOI and SLH as of the Closing (as defined in the Contribution Agreement). Each of the Members and the Company agrees that the Board of Managers is fully authorized to, and shall, adjust (i) Schedule I to reflect the actual (A) initial Capital Account balance and (B) initial Capital Contribution of each of MOI and SLH, and (ii) Schedule II to reflect the issuance or redemption of Common Units to, or from, each of MOI and SLH, as the case may be, in each case, as determined by and pursuant to the terms, conditions and procedures of Section 2.7 of the Contribution Agreement. In furtherance of the forgoing, each Member hereby irrevocably agrees to grant any rights, enter into any contracts or other agreements and execute and deliver all other documents or instruments, in each case, as reasonably requested by the Board of Managers (or otherwise reasonably necessary or appropriate as determined by the Board of Managers) to effectuate and carry out the purposes of this Section 3.8(b).

 

Section 3.9     Voting Rights.

 

(a)        All Members shall be entitled to one vote for each Common Unit held by such Member for any matter for which approval of the Members is required by this Agreement, and, except as expressly set forth in this Agreement, the Common Units shall have no voting rights.

 

(b)        Any action requiring the affirmative vote of Members under this Agreement, unless otherwise specified herein, may be taken by vote at a meeting or, in lieu thereof, by the unanimous written consent of all Members entitled to vote thereon.

 

 
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ARTICLE 4.       ALLOCATION OF NET INCOME AND NET LOSS

 

Section 4.1     General. The Members agree to treat the Company as a partnership and the Members as partners for federal income tax purposes and shall file all tax returns accordingly. Except as provided in Section 4.2, Net Income or Net Loss, as the case may be, and each item of income, gain, loss and deduction entering into the computation thereof, for each Fiscal Year (or any other period that the Tax Matters Partner deems appropriate) shall be allocated to the Members (and credited and debited to their Capital Accounts) so as, to the extent possible, to cause each Member’s Capital Account balance, as increased by the amount of such Member’s share of partnership minimum gain (as defined in Regulation § 1.704-2(g)(1) and (3)) and the amount of such Member’s share of partner nonrecourse debt minimum gain (as defined in Regulation § 1.704-2(i)(5)), to equal the amount that would be distributed to such Member if the Company sold all of its assets for their book value in cash, paid all of its liabilities to the extent required by their terms (limited, with respect to each nonrecourse liability (as defined in Regulation § 1.704-2(b)(3)) or partner nonrecourse debt (as defined in Regulation § 1.704-2(b)(4)), to the book value of the assets securing each such liability), and distributed its cash to the Members pursuant to Section 10.3 in complete liquidation.

 

Section 4.2     Other Allocation Provisions.

 

(a)        If during a Fiscal Year there is a net decrease in “partnership minimum gain” (within the meaning of Regulation § 1.704-2(d)) with respect to the Company, then there shall be allocated to each Member items of income and gain of the Company for such Fiscal Year (and, if necessary, for succeeding Fiscal Years) equal to such Member’s share of the net decrease in partnership minimum gain (within the meaning of Regulation § 1.704-2(g)(2)), subject to the exceptions set forth in Regulation § 1.704-2(f)(2) and (3), and to any exceptions provided by the Commissioner of the IRS pursuant to Regulation § 1.704-2(f)(5); provided, that if the Company has any discretion as to an exception provided pursuant to Regulation § 1.704-2(f)(5), the Tax Matters Partner may exercise reasonable discretion on behalf of the Company. The foregoing is intended to be a “minimum gain chargeback” provision as described in Regulation § 1.704-2(f) and shall be interpreted and applied in all respects in accordance with such Regulation.

 

If during a Fiscal Year there is a net decrease in partner nonrecourse debt minimum gain (as determined in accordance with Regulation § 1.704-2(i)(3)) with respect to the Company, then, in addition to the amounts, if any, allocated pursuant to the preceding paragraph, any Member with a share of such partner nonrecourse debt minimum gain (determined in accordance with Regulation § 1.704-2(i)(5)) as of the beginning of the Fiscal Year shall, subject to the exceptions set forth in Regulation § 1.704-2(i)(4), be allocated items of income and gain of such Fiscal Year for the Fiscal Year (and, if necessary, for succeeding Fiscal Years) equal to such Member’s share of the net decrease in the partner nonrecourse debt minimum gain. The foregoing is intended to be the “chargeback of partner nonrecourse debt minimum gain” required by Regulation § 1.704-2(i)(4) and shall be interpreted and applied in all respects in accordance with such Regulation.

 

(b)        If during any Fiscal Year a Member unexpectedly receives an adjustment, allocation or distribution described in Regulation § 1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases a deficit balance in such Member’s Adjusted Capital Account, there shall be allocated to such Member items of income and gain (consisting of a pro rata portion of each item of income, including gross income, and gain of the Company for such Fiscal Year) in an amount and manner sufficient to eliminate such deficit as quickly as possible. The foregoing is intended to be a “qualified income offset” provision as described in Regulation § 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in all respects in accordance with such Regulation.

 

 
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A Member’s “Adjusted Capital Account”, at any time, shall equal the Member’s Capital Account at such time (x) increased by the sum of (A) the amount of the Member’s share of partnership minimum gain (as defined in Regulation § 1.704-2(g)(1) and (3)), (B) the amount of the Member’s share of partner nonrecourse debt minimum gain (as defined in Regulation § 1.704-2(i)(5)) and (C) any amount of the deficit balance in its Capital Account that the Member is treated as obligated to restore pursuant to Regulation § 1.704-1(b)(2)(ii)(c) and (y) decreased by reasonably expected adjustments, allocations and distributions described in Regulation §§ 1.704-1(b)(2)(ii)(d)(4), (5) and (6). This definition shall be interpreted consistently with Regulation § 1.704-1(b)(2)(ii)(d).

 

(c)        Notwithstanding anything to the contrary in this Article 4,

 

(i)     losses, deductions, or expenditures subject to Code Section 705(a)(2)(B) that are attributable to a particular partner nonrecourse liability shall be allocated to the Member that bears the economic risk of loss for the liability in accordance with the rules of Regulation § 1.704-2(i); and

 

(ii)     losses, deductions, or expenditures subject to Code Section 705(a)(2)(B) that are attributable to partnership nonrecourse liabilities shall be allocated to the Members in a manner consistent with the manner in which distributions are made (or to be made) in accordance with Section 5.01.

 

(d)         

 

(i)     Notwithstanding any provision of Section 4.1, no allocation of Net Loss or an item of loss or deduction shall be made to a Member if it would cause the Member to have a negative balance in its Adjusted Capital Account. Allocations of Net Loss or of items of loss or deduction that would be made to a Member but for this Section 4.2(d)(i) shall instead be made to other Members pursuant to Section 4.1 to the extent not inconsistent with this Section 4.2(d)(i). To the extent allocations of Net Loss or of items of loss or deduction cannot be made to any Member because of this Section 4.2(d)(i), such allocations shall be made to the Members in accordance with Section 4.1 notwithstanding this Section 4.2(d)(i).

 

(ii)     If any Member has a deficit in its Adjusted Capital Account, such Member shall be specially allocated items of Company income and gain in the amount of such deficit as rapidly as possible; provided, however, that an allocation pursuant to this Section 4.2(d)(ii) shall be made if and only to the extent that such Member would have a deficit in its Adjusted Capital Account after all other allocations provided for in this Agreement have been tentatively made as if this Section 4.2(d)(ii) were not in this Agreement.

 

 
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(e)        To the extent that any item of income, gain, loss or deduction has been specially allocated pursuant to paragraph (b) or (d) of this Section 4.2 and such allocation is inconsistent with the way in which the same amount otherwise would have been allocated under Section 4.1, subsequent allocations under Section 4.1 shall be made, to the extent possible and without duplication, in a manner consistent with paragraph (a), (b), (c) or (d), which negate as rapidly as possible the effect of all such inconsistent allocations under said paragraph (b) or (d).

 

(f)        Except to the extent otherwise required by the Code and Regulations, if any Equity Interest in the Company or part thereof is transferred in any Fiscal Year, the items of income, gain, loss, deduction and credit allocable to such Equity Interest for such Fiscal Year shall be apportioned between the transferor and the transferee in proportion to the number of days in such Fiscal Year the Equity Interest is held by each of them, except that, if they agree between themselves and so notify the Tax Matters Partner within thirty (30) calendar days after the transfer, then at their option and expense, (i) all items or (ii) extraordinary items, including capital gains and losses, may be allocated to the Person who held the Equity Interest on the date such items were realized or incurred by the Company.

 

(g)        If the Company is required to pay any amount of taxes (including withholding taxes) with respect to any of its income, such amount shall be allocated to the Members in the same manner as the income subject to such taxes is allocated.

 

(h)        Any allocations made pursuant to this Article 4 shall be made in the following order:

 

(i)       Section 4.2(a);

(ii)      Section 4.2(b);

(iii)     Section 4.2(c);

(iv)     Section 4.2(e);

(v)      Section 4.2(g); and

(vi)     Section 4.1, as modified by Section 4.2(d).

 

These provisions shall be applied as if all distributions and allocations were made at the end of the Fiscal Year. Where any provision depends on the balance of a Capital Account of any Member, such Capital Account shall be determined after the operation of all preceding provisions for the year. These allocations shall be made consistently with the requirements of Regulation § 1.704-2(j).

 

Section 4.3     Allocations for Income Tax Purposes.

 

(a)        The income, gains, losses, deduction and credits of the Company for any Fiscal Year shall be allocated to the Members in the same manner as Net Income and Net Loss were allocated to the Members for such Fiscal Year pursuant to Sections 4.1 and 4.2; provided, however, that solely for federal, state and local income and franchise tax purposes and not for book or Capital Account purposes, income, gain, loss and deduction with respect to any Company asset properly carried on the Company’s books at a value other than the tax basis of such Company asset shall be allocated in a manner determined in the discretion of the Tax Matters Partner, so as to take into account (consistently with Code Section 704(c) principles) the difference between such Company asset’s book basis and its tax basis.

 

 
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(b)        For purposes of Regulation § 1.752-3(b), the Company shall allocate the Consolidated Facility to the MOI Contributed Assets (as defined in the Contribution Agreement).  Any “excess nonrecourse liabilities” (within the meaning of Regulation § 1.752-3(a)) relating to the Consolidated Facility shall, to the extent permissible under applicable law, be allocated to MOI. For purposes of Regulation § 1.752-3(b), the Company shall allocate the SLH Eagle/Hawk Facility to the SLH Contributed Assets (as are defined in the Contribution Agreement).  Any “excess nonrecourse liabilities” (within the meaning of Regulation § 1.752-3(a)) relating to such SLH Eagle/Hawk Facility shall, to the extent permissible under applicable law, be allocated to SLH. 

 

Section 4.4     Withholding and Entity-Level Taxes.

 

(a)        The Company shall comply with withholding requirements under federal, state and local law and shall remit amounts withheld to and file required forms with the applicable jurisdictions. To the extent the Company is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Member or to the extent the Company is required to pay any income tax (including interest and penalties) that (as reasonably determined by the Tax Matters Partner based upon this Agreement) is attributable or allocable to any Member, the amount withheld or paid shall be deemed to be, at the option of the Tax Matters Partner, either a distribution by the Company to such Member (which shall reduce the amounts that would subsequently otherwise be distributed to such Member pursuant to Section 5.1 in the order in which they would otherwise have been distributable) or a demand loan by the Company to such Member, in each case in the amount of the withholding or payment. In the event of any claimed over-withholding, Members shall be limited to an action against the applicable jurisdiction. If the amount was deemed to be a demand loan, the Company may, at its option, (a) at any time require the Member to repay such loan in cash or (b) at any time reduce any subsequent distributions by the amount of such loan. Each Member agrees to furnish the Company with any representations and forms as shall reasonably be requested by the Company to assist it in determining the extent of, and in fulfilling, its withholding obligations.

 

(b)        If the Company, the Tax Matters Partner, or any of their respective Affiliates, or any of their respective officers, directors, managers, members, partners, shareholders, employees, consultants, agents or advisors becomes liable as a result of a failure to withhold and remit taxes in respect of any Member hereunder, then such Member shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, the Tax Matters Partner, or any of their respective Affiliates, or any of their respective officers, directors, managers, members, partners, shareholders, employees, consultants, agents or advisors, as the case may be, in respect of all taxes, including interest and penalties, and any expenses incurred in any examination, determination, resolution and payment of such liability, except with respect to any penalties or expenses that arise as a result of any act or omission with respect to which a court of competent jurisdiction has issued a final, nonappealable judgment that the Company, the Tax Matters Partner, or any of their respective Affiliates, or any of their respective officers, directors, employees, managers, members, partners, shareholders, and, as determined by the Tax Matters Partner in its sole and absolute discretion, consultants, agents or advisors was grossly negligent or engaged in willful misconduct or fraud. Additionally, each Member shall indemnify the Company against any losses and liabilities (including interest and penalties) related to any income tax payable by the Company that (as reasonably determined by the Tax Matters Partner based upon this Agreement) is attributable or allocable to such Member. The provisions contained in this Section 4.4(b) shall survive the termination of the Company and the Transfer of any Equity Interest.

 

 
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ARTICLE 5.       DISTRIBUTIONS

 

Section 5.1     Other Distributions. Subject to the provisions of Section 5.2 and Section 5.3, the Company shall distribute Available Cash at the times and in amounts as determined by the Board of Managers. Any distribution made to the Members pursuant to this Section 5.1 (other than at liquidation or sale of all or substantially all of the Company’s assets, which distributions shall be made pursuant to the terms of Section 10.3) shall be distributed to the Members in accordance with their respective Common Percentage Interests determined as of the date of such distribution.

 

Section 5.2     Tax Distributions. Subject to the Act and to any restrictions contained in any agreement to which the Company is bound, the Board of Managers shall make a distribution to the extent of Available Cash (each, a “Tax Distribution”), at the same time and with the same priority, to the Members, pro rata in accordance with their relative Tax Amounts, until each Member has received an amount equal to its Tax Amount; provided, that any amounts distributed to a Member pursuant to this Section 5.2 shall be deemed to be an advance of distributions to which such Member is otherwise entitled pursuant to Section 5.1 or Section 10.3. Tax Distributions shall be made no later than ten (10) Business Days prior to each due date for quarterly estimated U.S. federal income tax payments for individuals or corporations, whichever is earlier. No distributions other than Tax Distributions shall be made to Members at any time when a Tax Distribution required to be paid by the Company has not been paid, and any distributions made in contravention of this sentence shall be promptly repaid by the Members receiving such distributions upon the Company’s demand.

 

Section 5.3     Limitations on Distributions.

 

(a)        Anything to the contrary herein notwithstanding:

 

(i)     no distribution pursuant to this Agreement shall be made if such distribution would (x) result in a violation of the Act or (y) violate the terms of any, to the extent applicable, agreement or any other instrument to which the Company or any of its direct or indirect Subsidiaries is a party;

 

(ii)     in accordance with the Plan, if, at any time, (A) any amount of the [Allowed Claims (as defined in the Plan)]2 in the Bankruptcy Cases have not been paid or otherwise discharged in full, including the full and complete resolution of any contingencies related to such Allowed Claims (such Allowed Claims and related contingencies, collectively, the “Outstanding Bankruptcy Claims”), and (B) MOI is entitled to receive a distribution pursuant to the terms of this Agreement (whether pursuant to Section 5.1, Section 5.2, Section 10.3 or otherwise), then, subject to the rights of the Company or SLH under Section 3.2(e) if MOI is a Defaulting Member and the rights of the Company and SLH under Section 5.3(a)(iii) if MOI is the Subject Member, all such distributions otherwise payable to MOI will (1) first, be applied to satisfy all such Outstanding Bankruptcy Claims until such time as all such Outstanding Bankruptcy Claims have been paid or otherwise discharged in full and (2) thereafter, the balance, if any, of any such distributions shall be paid to MOI in accordance with the terms and conditions of this Agreement;

 


2  Note to Draft: Defined term to be conformed to the Plan at Closing.

 

 
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(iii)     if, at any time, (A) in connection with any Litigation (as defined in the Contribution Agreement) brought pursuant to Section 9.1 of the Contribution Agreement, or otherwise arising out of or in connection with the Contribution Agreement, any amounts payable by SLH or MOI, as applicable (the “Subject Member”), to SLH, MOI or the Company in connection with such Litigation pursuant to a final, non-appealable judgment by a court of competent jurisdiction have not been paid or otherwise discharged in full, (any such amounts, “Outstanding Claims”), and (B) the Subject Member is entitled to receive a distribution pursuant to the terms of this Agreement (whether pursuant to Section 5.1, Section 5.2, Section 10.3 or otherwise), then all such distributions otherwise payable to the Subject Member will (1) first, be applied to satisfy all such Outstanding Claims until such time as all such Outstanding Claims have been paid or otherwise discharged in full and (2) thereafter, the balance, if any, of any such distributions shall be paid to the Subject Member in accordance with the terms and conditions of this Agreement;

 

(iv)     if, at any time following the Reimbursement Deadline, (A) any amount of the Actual Reactivation Costs is outstanding and unpaid and (B) SLH is entitled to receive a distribution pursuant to the terms of this Agreement (whether pursuant to Section 5.1, Section 5.2, Section 10.3 or otherwise), then such distributions otherwise payable to SLH will (1) first, be applied to satisfy any such outstanding and unpaid Actual Reactivation Costs owed to the Company until the amount of such outstanding and unpaid Actual Reactivation Costs is reduced to zero and (2) thereafter, the balance, if any, of any such distributions shall be paid to SLH in accordance with the terms and conditions o