Crosby Marine Transportation - Chapter 11 DIP Terms

DIP Terms

Borrower(s) / Guarantor(s)

• Crosby Marine Transportation, LLC, as Borrower and Borrower Representative, together with Bertucci Contracting Company, L.L.C., Crosby Tugs, L.L.C., and Crosby Dredging, LLC, as Borrowers
• Certain affiliates and subsidiaries of the debtors, as Guarantors, including A & C Barges, LLC, Crosby Boat Co., LLC, Crosby Enterprises, L.L.C., Crosby Holdings, L.L.C., Crosby Marine Towing, LLC, Crosby Offshore Marine Service, LLC, Offshore Rig Moving, L.L.C., Tala Barge Co., L.L.C., Tala Marine, L.L.C., and others
• All obligations of each loan party under the DIP facility are joint and several.

Lender

• JMB Capital Partners Lending, LLC, a California limited liability company, as Lender
• JMB also serves as the Prepetition Lender, as assignee of Hancock Whitney Bank under the prepetition credit facility.
• Norton Rose Fulbright US LLP and Jones Walker LLP serve as co-counsel to the DIP Lender.

DIP Commitments

• $77 million senior secured, non-amortizing, superpriority term loan facility comprised of:
  • Up to $47 million in new money term loans
    • Up to $10 million available on an interim basis, funded on March 26, 2026 pursuant to the interim order entered March 25, 2026
    • The remaining $37 million available as a delayed draw upon entry of the final order, including a $17 million incremental new money commitment added pursuant to a first amendment to the facility
  • $30 million dollar-for-dollar roll-up of all prepetition secured obligations under the prepetition loan documents, available on an interim basis
    • As of the petition date, the debtors were indebted to the prepetition lender in the aggregate amount of not less than $29,240,625.12 on account of principal, plus accrued and unpaid interest and all other amounts due under the prepetition loan documents
    • The roll-up was approved on a final basis pursuant to the interim order as a condition to any credit extensions under the DIP facility and was compensation for, and solely on account of, the DIP Lender's agreement to fund amounts under the DIP documents
• Each advance under the delayed draw term loan shall be made in a minimum aggregate amount of $5 million, and multiples thereof, upon three business days' written notice, up to three business days before the maturity date.
• Amounts repaid or prepaid may not be reborrowed.
• The prepetition credit facility was governed by the Second Amended and Restated Commercial Business Loan Agreement, dated as of October 28, 2022, by and among the debtors and certain affiliates, as borrowers and guarantors, and JMB, as assignee of Hancock Whitney Bank. As of the petition date, certain defaults and events of default had occurred and were continuing under the prepetition credit agreement.

Cash Collateral

• All of the debtors' cash, whether existing on the petition date or thereafter, wherever located, including all cash equivalents and other amounts on deposit or maintained by any debtor in any account with any depositary institution, whether as DIP collateral or prepetition collateral, and arising from the sale or other disposition of DIP or prepetition collateral, or cash, rents, income, offspring, products, proceeds, or profits generated therefrom.
• The debtors are authorized to use cash collateral and proceeds of DIP loans solely in accordance with the approved budget, subject to the permitted variance, and the terms and conditions of the final order and the DIP credit agreement.

Interest Rate

• 12.00% per annum, payable in cash, in arrears, on the first business day of each month
• Default Rate Increase: 2.00%
• Interest computed on the basis of a 360-day year for the actual number of days elapsed.

Fees

• Commitment Fee:
  • Initial Commitment Fee: 2.00% of $60 million (the initial commitment amount), fully earned, non-refundable, and allowed on a final basis upon entry of the interim order, paid in full in cash from proceeds of the initial advance
  • Incremental Commitment Fee: 2.00% of $17 million (the incremental new money DIP amount), fully earned, non-refundable, and allowed on a final basis upon entry of the final order, payable in full in cash within two business days after entry of the final order. The incremental commitment fee is payable even if the borrowers do not request an advance under the delayed draw term loan.
• Exit Fee:
  • Initial Exit Fee: 5.00% of the aggregate principal amount of the commitments, fully earned, non-refundable, and allowed on a final basis upon entry of the interim order
  • Incremental Exit Fee: 1.00% of the aggregate principal amount of the commitments, fully earned, non-refundable, and allowed on a final basis upon entry of the final order
  • The exit fee is due and payable upon the earliest of the maturity date, payment in full of the loans, or on a pro rata basis for any voluntary prepayment. The exit fee is payable even if the borrowers do not request an advance under the delayed draw term loan.
• Work Fee: $100,000, fully earned and non-refundable upon entry of the interim order, paid in full in cash as set forth in the DIP term sheet.

Maturity

• The earliest to occur of:
  • September 30, 2026
  • The effective date of any chapter 11 plan
  • The consummation of any sale or other disposition of all or substantially all of the debtors' assets pursuant to section 363 of the Bankruptcy Code
  • The date of the acceleration of the loans and the termination of the commitments following the occurrence and during the continuation of an event of default
  • Dismissal or conversion of any chapter 11 case to a case under chapter 7, or the appointment of a trustee or examiner in any chapter 11 case
• The borrowers may prepay any loan, in whole or in part, at any time without premium or penalty, in minimum increments of $1 million (and multiples of $500,000 in excess thereof), provided that each such prepayment includes the ratable portion of the exit fee due thereon.
• Within one business day of receipt of net cash proceeds from any disposition of collateral (other than in the ordinary course), the applicable loan party shall prepay the obligations in an amount equal to 100% of such net cash proceeds.
• Upon the occurrence of a DIP termination event (other than the occurrence of the maturity date), the DIP Lender shall provide five business days' prior written notice to counsel to the debtors, counsel to the committee, and the U.S. Trustee before exercising remedies against the DIP collateral, during which period the debtors, the committee, or any other party in interest may request an emergency hearing before the court.

Carve Out

• The carve out is comprised of:
  • All fees required to be paid to the Clerk of the Court and to the U.S. Trustee, plus interest at the statutory rate
  • Chapter 7 Trustee Fee: up to $50,000
  • All allowed professional fees incurred before or on the first business day following delivery of a carve out trigger notice, subject to the aggregate amounts for professional persons in the approved budget (the "Pre-Carve Out Trigger Notice Amounts")
  • Post-Carve Out Trigger Notice Cap: $2,500,000 for allowed professional fees incurred after the first day following delivery of the carve out trigger notice
• The debtors shall, on Monday of each week, transfer cash into a segregated Professional Fees Account in an amount equal to the fees and expenses reflected in the approved budget for professional persons for that week.
• Any payment of allowed professional fees prior to the termination declaration date shall not reduce the carve out on a dollar-for-dollar basis. Any payment on or after the termination declaration date shall permanently reduce the carve out and the amounts required to fund the carve out reserves on a dollar-for-dollar basis.

Use of Proceeds

• Pay the costs of administration of the chapter 11 cases
• General corporate and working capital purposes
• Pay adequate protection payments, if necessary
• Pay professional fees and expenses in accordance with the final order
• Fund any obligations benefiting from the carve out
• Maintain business relationships with customers, vendors, and suppliers
• Make payroll for employees
• Satisfy other working capital and operational needs
• Pay fees and expenses payable under the loan documents, including the commitment fee, the work fee, the exit fee, and legal fees and expenses of the lender
• All proceeds are to be used in accordance with and subject to the approved budget, subject to the permitted variance.

Credit Bid

• Subject to section 363(k) of the Bankruptcy Code and the rights of the committee to object for cause, the DIP Lender, the Prepetition Lender, or their respective designees (which may be an acquisition vehicle formed by the DIP Lender or the Prepetition Lender) shall have the right to credit bid up to the full amount of the applicable priority DIP obligations (and the prepetition secured obligations, to the extent unpaid) in any sale of all or any portion of DIP collateral or prepetition collateral, whether in a section 363 sale, a chapter 11 plan, a chapter 7 disposition, or otherwise, without the need for further order of the court.
• In connection with any such credit bid, the debtors shall, upon reasonable advance notice, provide for the assignment of the DIP Lender's or Prepetition Lender's right to purchase the acquired assets to one or more sub-agents or a newly formed acquisition vehicle.

Avoidance Actions

• The DIP collateral excludes avoidance actions and the proceeds thereof, other than causes of action under section 549 of the Bankruptcy Code to recover any postpetition transfer of DIP collateral and any proceeds thereof.
• The DIP superpriority claims shall not be payable from the proceeds of avoidance actions.

Challenge Period and Budget

• The challenge deadline is June 8, 2026, which is 75 calendar days after the entry of the interim order and 62 days after the appointment of the committee.
  • If any of the chapter 11 cases are converted to chapter 7 or a trustee is appointed or elected prior to the challenge deadline, such trustee shall have until the longer of the challenge deadline and 14 calendar days after their appointment to commence a challenge.
  • The filing of a motion seeking standing to file a challenge before the challenge deadline shall extend the challenge deadline solely with respect to that person or party in interest until two business days after the court approves the standing motion.
• The committee may incur up to $50,000 to investigate and notify parties of, but not to prepare, initiate, litigate, prosecute, object to, or otherwise challenge the prepetition loan documents, the prepetition secured obligations, and the prepetition liens held by the prepetition lender.
• Nothing in the DIP orders vests or confers on any person or entity, including the committee, standing or authority to pursue any challenge belonging to the debtors or their estates, and all rights to object to any request for such standing are expressly reserved.

Securities and Priorities

• The DIP Lender is granted valid, binding, enforceable, non-avoidable, and automatically perfected liens and security interests in all DIP collateral, subject to the carve out, with the following priorities:
  • Senior priming liens on all DIP Senior Collateral (including prepetition collateral), subordinate only to the carve out. The priming liens are limited solely to collateral on which the prepetition lender held a valid, perfected, non-avoidable first priority lien as of the petition date.
  • First priority liens on all unencumbered property, subordinate to the carve out
  • Junior liens on all DIP Junior Collateral, subordinate to the Existing Senior Liens and the carve out
• The DIP collateral encompasses substantially all of the debtors' assets and properties, including the prepetition collateral, a 49.9% interest owned by Bertucci in Luhr Crosby, LLC (the "Luhr LLC Interest"), all contracts, equipment, accounts, inventory, deposit accounts, investment property, intellectual property, insurance, and all proceeds thereof. The DIP collateral also includes proceeds of commercial tort claims, other litigation claims, and tax claims or refunds (the "Specified Claims"), and causes of action under section 549 of the Bankruptcy Code, but excludes other avoidance actions and the Specified Claims themselves.
• The DIP obligations constitute allowed superpriority administrative expense claims against each of the debtors on a joint-and-several basis, with priority over any and all other administrative expense claims, including adequate protection claims. The DIP superpriority claims are subject and subordinate only to the carve out.
• The DIP liens and DIP superpriority claims shall not be made subject or subordinate to or pari passu with any other lien, security interest, or claim, including any governmental lien, any lien avoided and preserved under section 551 of the Bankruptcy Code, or any intercompany or affiliate claim.

Adequate Protection

Prepetition Lender

• Allowed superpriority administrative expense claims under section 507(b) of the Bankruptcy Code (the "Adequate Protection Claims"), to the extent and in the amount of any diminution in value of the prepetition liens in the prepetition collateral, including cash collateral. The adequate protection claims are subordinate to the carve out and the DIP superpriority claims.
• Valid, binding, enforceable, and perfected postpetition replacement liens and security interests in all DIP collateral (the "Adequate Protection Liens"), to the extent and in the amount of any diminution in value of the prepetition liens. The adequate protection liens are subordinate to the carve out, the DIP liens, and, solely with respect to the DIP Junior Collateral, the Existing Senior Liens.
• The prepetition lender consented to the debtors' use of prepetition collateral (including cash collateral), the debtors' entry into the DIP facility, the incurrence of the DIP liens (including the priming of the prepetition liens), and the DIP superpriority claims.

Existing Secured Parties and Purported Lienholders

• The adequate protection of the Existing Secured Parties is governed by a separate Final Cash Collateral Order entered by the court on April 23, 2026.
• In the event that DIP Junior Collateral is sold or otherwise disposed of, all proceeds remaining after payment in full of the applicable Existing Secured Party Obligations shall be immediately paid to the DIP Lender to satisfy the DIP obligations until paid in full.
• The final order preserves the valid, perfected, non-avoidable liens and security rights (including statutory liens and inchoate maritime liens) of certain Purported Lienholders, including Kirby Inland Marine, LP, Masse Contracting, Inc., Retif Oil & Fuel, LLC, Southwest Shipyard L.P., and others, and does not alter, impair, or prejudice their rights under the Bankruptcy Code in connection with the sale or disposition of their collateral, including any right to credit bid.

Waivers

• Section 506(c): The debtors waive the right to surcharge the DIP collateral and the prepetition collateral as to the DIP Lender and the Prepetition Lender. No costs or expenses of administration shall be charged against or recovered from the DIP collateral or prepetition collateral without the prior written consent of the applicable lender, except to the extent of the carve out.
• Section 552(b): The "equities of the case" exception shall not apply to the prepetition secured obligations.
• The equitable doctrine of "marshaling" or any similar doctrine shall not apply with respect to the DIP collateral, the DIP obligations, the prepetition collateral, or the prepetition secured obligations.

Permitted Variance

• Net Operating Disbursement Variance of no more than 25%, tested on a cumulative four-week rolling basis, as opposed to a line-by-line basis. The calculation excludes disbursements in connection with professional fees of the borrowers, fees of the U.S. Trustee, lender expenses, interest, fees, direct costs, and budgeted professional fees in the chapter 11 cases and any other amounts payable under the loan documents.
• Variance reports are delivered on a weekly basis, on Fridays, comparing actual operating disbursements for the four-week period ending the prior Friday against the projected operating disbursements in the approved budget. Any net operating disbursement variance exceeding 25% constitutes an event of default.
• The approved budget covers a 13-week period commencing on or around the week of entry of the final order. Supplemental budgets are prepared and delivered to the lender every five weeks (or more frequently at the reasonable discretion of both borrowers and lender), extending the period covered so that it covers at least 13 weeks, subject to lender approval in its sole discretion.