Maritime Transactions, Bankruptcies and Workouts

As maritime transactions become increasingly varied and complex, maritime transactional attorneys who fully understand the industry – and the related business, technical, financial, tax and environmental issues – are vital. Holland & Knight’s Maritime Transactions, Bankruptcies and Workouts Team concentrates on business-critical maritime transactions and strives to deliver unsurpassed representation through a team of lawyers who combine industry experience with transactional skills.

Merging decades of maritime-based finance, litigation, environmental, tax, commercial and regulatory experience with a modern capital markets and mergers and acquisitions practice, we provide comprehensive and coordinated representation to our maritime clients, including ship owners, investors, financiers, intermediaries or other market participants. Our breadth of experience in the maritime industry has led clients to rely on Holland & Knight for their maritime transactions.

A Multidisciplinary Team Committed to Your Success

Holland & Knight’s Maritime Transactions, Bankruptcies and Workouts Team is composed of lawyers who have achieved national recognition in a wide range of maritime matters, including ship finance transactions, commercial shipping issues, charter parties, insurance, oil pollution, maritime casualties, maritime commercial disputes and regulatory issues. Complimenting this industry knowledge, the team also includes corporate lawyers who regularly execute all types of business transactions, including public and private company mergers and acquisitions, public and private equity and debt offerings, proxy contests, joint ventures, formation of private investment vehicles, and reorganizations and workouts of troubled shipping companies.

In particular, our lawyers have handled a variety of matters for maritime clients, including:

• acquisitions and dispositions of shipping assets and companies, both public and private
• formation of investment vehicles to invest in shipping assets
• bank financings of shipping assets or companies
• public equity offerings by shipping companies
• high-yield debt offerings by shipping companies
• U.S. Jones Act issues
• maritime bankruptcies, workouts and restructurings
• ship mortgages and maritime lien issues
• Marshall Islands, Liberia and Vanuatu corporate, tax and maritime issues
• oil pollution and other maritime environmental issues, including air pollution and ship recycling
• interdisciplinary projects that involve extensive corporate, tax, finance, environmental permitting, governmental approvals and other legal issues
• marine insurance and charter parties
• oil commodity trading in the United States, including swaps and derivatives

Recent Highlights

Cruise Ships Financing

We acted as counsel to Finnvera plc (the Finnish governmental export guarantee agency) and its subsidiary Finnish Export Credit Ltd. in connection with post-delivery financing of the world’s two largest cruise ships, Oasis of the Seas and its sister ship Allure of the Seas, owned by Royal Caribbean Cruises Ltd. (NYSE: RCCL). Finnvera provided a 95 percent guarantee of over $1.1 billion in loan financing for each cruise ship.

Private Equity

We have acted as counsel to U.S.-based hedge funds in connection with potential investments in shipping joint ventures with non-U.S.-based shipowners/operators (undisclosed).

High-Yield Offering

We have acted as counsel to a non-U.S.-based shipowner in connection with a proposed high-yield offering (undisclosed). We have also acted as maritime counsel to the underwriters and book-runners in connection with a $1.025 billion transaction involving the refinancing of a drilling company with both operating and new construction rigs.

Jones Act Proxy Contest

We have acted as counsel to Kistefos AS in its insurgent proxy contest relating to U.S. Jones Act shipowner/operator Trico Marine Services, Inc. (NASDAQ: TRMA). In addition to public company and Delaware corporate, securities and corporate governance matters, we advised on extensive Jones Act issues involving the Coast Guard and the Maritime Administration.

Acquisition Financing

We represented Nordea Bank Finland plc, London branch, as administrative agent, and a group of eight financial institutions as initial lenders, including Nordea, DVB Bank, Deutsche Bank, GECC and HSH Nordbank as lead arrangers, in the structuring and documentation of a $1.4 billion senior secured credit facility. The borrower was Excel Maritime Carriers Ltd., a New York Stock Exchange-listed Liberian corporation.

Proceeds of the loan were used to finance the acquisition by Excel of NASDAQ-listed Quintana Maritime Limited, a Marshall Islands corporation. The combined entity is one of the largest international bulk ship owners. Thirty-eight vessels were part of the collateral package. In addition to New York law, which was the governing law of the loan and most of the security documents, the transaction involved the extensive coordination of the laws of the Marshall Islands, Liberia, Panama, Cyprus, the Bahamas, Malta and England.

Loan Restructuring

We are advising a number of bank loan syndicates on U.S., Marshall Islands and Liberian law issues in connection with the restructuring of a series of loan transactions involving a New York Stock Exchange-listed container ship fleet owner.

Oil Trading

We counseled a financial institution on U.S. federal and state laws relating to oil trading; ownership; transportation by pipeline, marine, road and rail; and storage issues, including U.S. commodities trading regulatory and contractual issues and a complete environmental review.

Risk Assessment

We have advised major financial clients regarding the full scope of risks involved in their investment in maritime assets either directly or through corporate acquisitions or investments. These analyses have encompassed, inter alia, consideration of risks to the investor from the time of vessel construction through operation to its scrapping decades later. Such projects require the sophisticated consideration of a number of legal and non-legal disciplines. During this process, we take into account the unique aspect of our clients' businesses, including the context of the corporate structure and concern for the media "headline" impact.

U.S. and International Maritime Law Reach

We have worked on numerous assignments involving the finance and operation of entities with vessels under the U.S. flag as well as the flags of other maritime jurisdictions. Our lawyers are located on all U.S. coasts – East, Gulf and West – as well as in Mexico City, and are ready to assist you with your maritime transactions. Our Mexico City attorneys provide extensive advice on ship mortgages and other vessel financing structures relating to Mexican flag vessels. In addition, we recently opened an office in Abu Dhabi to provide localized service to clients doing business in the Middle East.

Team members in our Washington, D.C. office actively represent client interests in connection with Coast Guard, Customs, Department of Homeland Security, Federal Maritime Commission and Maritime Administration regulations and legislation.

Other areas of experience include:

• structuring transactions to accommodate U.S. and foreign tax laws and negotiating lease-related tax indemnity agreements
• structuring investments and transactions to comply with the U.S. Jones Act
• providing guidance as special Liberian, Marshall Islands and Vanuatu counsel in transactions and issuing legal opinions with respect to the corporate and shipping laws of those nations
• assisting underwriters and issuers in raising funds through the public debt and equity capital markets
• working with private equity funds as investors and lenders
• working with U.S. government programs, including Title XI, Capital Construction Funds, VISA and other programs
• handling matters of lender/lessor liability, both in the context of restructurings and OPA-90

Representative Matters

Corporate Maritime Transactions

• counsel to Finnvera plc and Finnish Export Credit Ltd. in connection with post-delivery financing of the world’s largest cruise ships, Oasis of the Seas and Allure of the Seas, owned by Royal Caribbean Cruises Ltd. (NYSE: RCCL), where Finnvera provided a 95 percent guarantee of over $1.1 billion in loan financing for each ship
• counsel to the issuer of a proposed public high-yield shipping bond issue
• maritime counsel to underwriters and book-runners in connection with a $1.025 billion 144A financing of a subsidiary of Vantage Drilling Co.
• counsel to the lenders in the $1.4 billion loan to Excel Maritime Carriers Ltd. in connection with Excel's acquisition of Quintana Maritime Ltd.
• special maritime counsel to K-Sea Transportation Partners L.P. (NYSE: KSP) in its initial public offering and follow-on equity offerings
• special maritime counsel to U.S. Shipping Partners L.P. (NYSE: USS) in its initial public offering
• special maritime counsel to Canadian National Railway in connection with its acquisition of Great Lakes Transportation
• special maritime counsel to the U.S. Seller in connection with its original 1999 transaction and 2005 modifications for the sale of its international container shipping business (SeaLand)
• special maritime counsel to the U.S. Seller in connection with the sale of its U.S. Jones Act container ship business (renamed Horizon Lines LLC) to the Carlyle Group
• counsel to Kistefos AS in its insurgent proxy contest relating to the U.S. Jones Act shipowner/operator Trico Marine Services, Inc. (NASDAQ: TRMA)
• counsel to Carnival Cruise Lines in connection with its unsecured credit line
• special global maritime counsel to Mobil in its merger with Exxon, which resulted in the formation of ExxonMobil
• special maritime and aviation counsel to Citicorp/Citibank in its merger with Travelers, which resulted in the formation of Citigroup
• special maritime counsel to the acquiror of a scrap metals business involving the sale and leaseback of U.S. Jones Act assets
• counsel to an international bank providing acquisition financing to a strategic investor that was bidding on the spin-off by a public utility of its marine transportation and terminal business
• counsel for the lead bank in a secured syndicated loan transaction providing the privatization financing for a U.S. public company
• advising non-U.S. entities in connection with the purchase and sale of shares of stock exchange listed U.S. Jones Act shipowners
• advising Nordea Bank Finland plc as agent in connection with U.S. maritime jurisdiction and Outer Continental Shelf (OCS) issues regarding a Seadrill Ltd. $1.5 billion secured financing
• counsel to Incat Group in connection with the sale of its U.S. subsidiary, Incat USA, Inc., to Swift LLC
• advising a major international shipping company on a prospective hostile tender of the shares of a U.S.-listed international shipping company
• advising a major international financial institution as underwriter of a high-yield debt offering for a foreign-based international shipping company
• advising an international shipowner on the defeasance of its secured public bond
• counsel to a U.S.-based equity fund in connection with its establishment of a shipping joint venture with a non-U.S.-based shipowner/operator
• counsel to a non-U.S.-based shipowner in connection with its establishment of a joint venture with a U.S.-based shipowner for a roll-on/roll-off (Ro-Ro) vessel transferred to U.S. flag
• advising a U.S. financial institution of risks and structural mitigation regarding joint ventures and corporate investments in shipowners/operators
• advising a bidder on the purchase of a high-end leisure cruise entity, including U.S. Jones Act advice
• advising a potential purchaser of a U.S. tourist excursion shipowner, including U.S. Jones Act advice
• advising an international shipowner in connection with its ownership structure to reflect the succession of the business to the second generation of owners
• counsel to an American Stock Exchange-listed Liberian shipowner regarding Liberian corporate issues

Maritime Port Development, Financing and Privatization Transactions

• advising clients on contracting, development, construction financing and leasing for several cruise terminals
• representing a cruise line in its financing of a major cruise ship repair and drydock facility in Grand Bahama in 2002, the largest of its kind in the Western Hemisphere
• representing multiple clients on marine terminal acquisitions and sales, including a facility in New York City, a cement terminal in South Carolina and several facilities in Latin America
• representing a party in connection with financing for a port privatization development in Cape Verde
• representing the World Bank in developing its port privatization "toolkit" documents in 2001
• advising UPS on ocean transportation operational matters
• advising clients on security issues and compliance with C-TPAT and related security compliance matters
• representing clients in cruise port and terminal facilities development or acquisitions, including the Scandinavian World Cruises/SeaEscape terminals in New York City, Port Canaveral and Miami; and cruise line and ferry terminals in New Jersey, Texas, California, Alaska and Tianjin, China

Loans

• U.S. and Marshall Islands counsel to lenders regarding a $253 million bank syndicate loan to Genco Shipping & Trading Limited to finance 13 vessels registered under the Marshall Islands flag
• counsel to K-Sea Transportation Partners L.P. in connection with its general revolving credit agreement and numerous specific tug and barge financings and construction contracts
• counsel to a U.S. bank in connection with the construction financing of a U.S. Jones Act tank barge
• maritime counsel to the lenders in connection with the main loan facility of a U.S. Jones Act container shipowner
• counsel to a U.S.-based hedge fund in connection with the financing of deepwater drilling rigs
• counsel to the lenders in connection with a proposed loan to a newly-created joint venture U.S. Jones Act shipowner, the proceeds of which were to be used to acquire certain U.S. Jones Act assets
• counsel to a U.S. financial institution in connection with a proposed LNG tanker financing
• maritime counsel to the lenders in connection with loans to a hedge fund, the proceeds of which were used to acquire a cruise company
• Marshall Islands counsel to ExxonMobil in the restructuring of financings involving six Marshall Islands flag tankers
• counsel to Citibank (lead bank) in secured financing and bond issues in the offshore supply industry and offshore drilling industry (Pride, TODCO, McDermott)
• counsel to the lenders in connection with the financing of U.S. Jones Act barges used for electrical power generation in New York City
• representing Nordea Bank Finland plc (lead bank) in secured financings in the refrigerated cargo industry (Chiquita and Del Monte) and in connection with various LNG and tanker financings
• representing financial institutions or other lenders in connection with numerous loans secured by ship mortgages and related security on U.S., Canadian, Liberian, Marshall Islands and Vanuatu flag vessels
• advising an international bank in connection with Marshall Islands corporate matters and swaps transactions
• counsel for the lender in connection with a $30 million financing of a U.S. yacht construction project
• counsel for an oil company as bareboat charterer in connection with the sale of non-U.S. flag vessels by the shipowner

Leases

• counsel to lessors and lessees in connection with financing transactions under U.S. vessel lease financing laws and regulations
• counsel to the equity investors (U.S. financing companies) in lease financing of a Panamanian flag FPSO bareboat chartered to Petrobras and used in Brazilian waters
• counsel to the non-U.S. Jones Act time charterer in the financing and chartering of U.S. Jones Act tugboats with specialized firefighting equipment

Bowater Entities, Title XI and Capital Construction Funds

• counsel to Citigroup Global Markets, Inc. as underwriter in connection with the issuance of $270 million of Title XI guaranteed ship financing bonds issued by an affiliate of Crowley Holdings, Inc. to finance 5 ATB newbuildings
• special maritime counsel to Bowater entities on vessel financing purchase-sale transactions, chartering and utilization activities
• counsel to borrower, K-Sea Transportation Partners and its predecessors, in a $40 million Title XI double-hulled barge financing, as extensively amended and restated in connection with the borrower's initial public offering on the New York Stock Exchange
• counsel to borrower in the proposed Title XI financing of four vessels built in the United States for a Greek shipowner
• counsel on a $25 million shipyard modernization Title XI guaranteed loan for the NASSCO shipyard
• counsel to a Brazilian owner (through a Bahamian company) of U.S.-built, Panamanian- registered large offshore vessels that were financed through Title XI for the Brazilian offshore oil industry
• special maritime counsel to U.S. and foreign entities in the proposed Title XI financing of support vessels for the U.S. and foreign offshore oil industries
• counsel to various U.S. shipowners in connection with establishing and maintaining capital construction funds (CCFs), a U.S. tax deferral product for income arising from certain U.S. vessel operations and used to modify or construct vessels in U.S. shipyards

Mexico-Based Transactions

• counsel to the lenders (international banks) in a number of Mexican flag tanker financings in which TMM subsidiaries were the borrowers as structured through a Mexican guarantee trust
• counsel to the various lenders (international banks) in three separate Mexican flag supply vessel financings that were structured as synthetic leases and that used a Mexican guarantee trust
• counsel to the lenders (international banks and financial institutions) in several Mexican flag offshore vessel financings in which TMM subsidiaries were the borrowers as structured through a Mexican guarantee trust
• counsel to the lenders (U.S. financing companies) in the financing of a Panamanian flag rig bareboat chartered to a Mexican entity and used in Mexican waters, including advice on Mexican withholding taxes and enforcement of the "hell and high water" charter in Mexico
• counsel to a Danish ship owner in two finance lease agreements covering vessels with a Mexican lessee

Maritime Bankruptcies and Workouts

• U.S., Marshall Islands and Liberian counsel to a number of bank lender syndicates in connection with restructuring loans to a New York Stock Exchange-listed container ship fleet owner
• counsel to a secured lender that credit bid its interests for 18 vessels of debtors and in the litigation of more than 20 third-party maritime liens which resulted in successful litigation against the maritime lien holders' challenges to the bankruptcy court's jurisdiction over their maritime claims and successful litigation invoking the bankruptcy court's jurisdiction to interpret and enforce its own sale order – Universal Oil v. Allfirst Bank (In re Millenium Seacarriers, Inc.), 419 F.3d 83 (2d Cir. 2005); (In re Millenium Seacarriers, Inc.), 458 F.3d 92 (2d Cir. 2006)
• intervention on behalf of lenders in several U.S. proceedings involving the arrest of vessels leading either to the release of the vessel or judicial sale and, following the judicial sales, litigating the maritime lien priority issues (for example, in re MANATEE, litigating with 28 claimants, most of whom asserted priority over the ship mortgage)
• appearances for secured and unsecured creditors in Chapter 11 cases of a cruise line (SeaEscape), a marine offshore support company (Torch Offshore) and a marine ship repair/ship construction company (Halter-Calcasieu)
• counsel to one venturer in a bankruptcy proceeding in the Southern District of New York involving the joint venture
• counsel for the shipowner in a bankruptcy dispute involving charters of vessels located in Mexican waters
• counsel to marine lenders in negotiating a cooperation agreement with various agencies of the Department of Homeland Security and the U.S. Attorneys' Office in which the lenders obtained prompt possession of their collateral following seizure by the government for suspected alien smuggling
• counsel, in the 1990s, to lenders in connection with the worldwide workouts of the Eddie Shipping Company, Sanko, Wah Kwan and Prometheus Shipping Company involving mortgage enforcement proceedings in 16 jurisdictions including the United States
• representing lenders in connection with the worldwide workouts of the Tidal Marine, Colocotronis and Karavias fleets, including mortgage enforcement proceedings in the United States and 20 overseas jurisdictions
• representing lenders in the workouts of TBS Shipping International and Mandate Shipping Company

Other Relevant Experience

• representing 32 shipping entities, including cruise lines, bulk carriers and other shipowners, in successfully securing four separate funds totaling more than $2 million arising from crude oil overcharges in the 1970s and 1980s
• representing a U.S.-based aggregates corporation in connection with the construction contract for a self-unloading bulk carrier in Brazil
• advising a U.S.- based rig owner in its negotiation for U.S. Maritime Administration approval for an upgraded drilling rig to drill in the U.S. Gulf of Mexico
• advising a U.S. entity on the purchase and transfer of vessels to a non-U.S. flag where the export from the United States of toxic substances used during the construction or maintenance of the vessel posed a regulatory obstacle with the U.S. Environmental Protection Agency
• advising a German entity on corporate structures to mitigate oil pollution risks
• advising a U.S. financial lessor on U.S. state law regarding oil pollution
• advising a German bank on Liberian tax law issues and negotiating an official Liberian governmental opinion interpreting several Liberian tax statutes
• representing a non-U.S. shipowner in connection with vessel transfers to the Singapore flag
• representing Enserch Corp. as lessee in a lease financing of a deepwater floating oil and natural gas system in Garden Banks Reserve in which concession rights and MARAD registration were involved
• representing a Norwegian bank as agent in connection with U.S. issues arising out of a secured €1.1 billion loan to a fish farming and processing business
• negotiating vessel construction contracts internationally and in the United States
• representing owners in numerous construction contracts relating to high-end yachts built in U.S. and non-U.S. jurisdictions, as well as construction financing, advising owners on yacht registration and use and other legal issues