("

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

BLT STEAK LLC and BLT FISH LLC,

Plaintiffs,

Index No. 151293/2013

[E-Filed Case]

v.

LIBERTY POWER CORP, L.L.C., d/b/a

FIRST AMENDED

LIBERTY POWER NEW YORK, and

CLASS ACTION COMPLAINT

LIBERTY POWER HOLDINGS LLC,

Defendants.

Plaintiffs BLT STEAK LLC and BLT FISH LLC, by their attorneys, Wachtel Missry LLP,

on behalf of themselves and all

similarly situated customers of Defendants,

for their First Amended

Class Action Complaint against Defendants LIBERTY POWER CORP, L.L.C., d/b/a LIBERTY

POWER NEW YORK ("Liberty

("

Corp")

Corp"

and LIBERTY POWER HOLDINGS LLC ("Liberty

Holdings"

Holdings") (collectively, "Liberty

Power"

or

"Defendants"),

"Defendants"

allege, upon information and belief,

except as to their own acts, which are alleged on knowledge, as follows:

NATURE OF THIS ACTION

1. This is an action to recover damages caused

by

Defendants'

intentional breach of

contract. The Defendants are

Energy Services Companies

("ESCOs"), a type of private

company

that arose in the wake of the deregulation of the

electricity market. The Defendants are in the

business of

supplying electricity to residential and commercial customers.

Liberty Power offers

different rate plans. Among them, and the subject of this

litigation,

is the Variable Rate Plan

(defined below),

for which

Liberty Power agreed to charge a market-based variable rate, as more

fully explained below.

According to

Liberty Power,

the Variable Rate Plan would allow customers

to "take advantage of price

electricity

trends."

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Steak"

2.

Liberty Power breached its obligation to charge a market-based rate.

Instead,

Liberty Power added an

arbitrary and exorbitant hidden fee to the price it charged its customers

under the Variable Rate Plan.

Liberty Power's hidden fee wasfrequently higher than the wholesale

cost of the

electricity itself. As a result, plaintiffs and other customers on the Variable Rate Plan

were

consistently

charged a

supposedly

"market-based"

price that was

actually 100% or more

higher than the rates

they otherwise would have paid to the local utility.

3. As a result of its intentional breaches of the Variable Rate Plan, Liberty Power has

wrongfully pocketed tens of millions of dollars of its

customers'

money.

THE PARTIES

4. By Agreement and Plan of Merger dated as of December

2004, ETA Restaurants

Inc. merged with and into ETA Restaurants II LLC (attached as Exhibit A), causing the separate

corporate existence of ETA Restaurants Inc. to cease, with

only ETA Restaurants II LLC surviving

and

immediately changing its name to BLT STEAK LLC. Plaintiff BLT STEAK LLC ("BLT

Steak") is, and at all relevant times was, a Delaware limited

liability company that owns and

operates a restaurant

having a principal place of business at 110 East 57th Street, New York, New

York, which has received and paid forelectricity supply via Con Ed accounts no. 42-7203-0767-

0005-8 and no. 42-7203-0790-8206-6 (the "BLT Steak Accounts").

Accounts"

5. By Agreement and Plan of Merger dated as of December 2004, AZ NYC Inc. f/k/a

Diversified Capital Investors Corp. merged with and into BLT FISH LLC (attached as Exhibit B),

causing the separate corporate existence of AZ NYC Inc. f/k/a Diversified Capital Investors Corp.

to cease, with

only BLT FISH LLC surviving. Plaintiff BLT FISH LLC ("BLT

Fish")

Fish"

is, and at all

relevant times was, a Delaware limited

liability company that owns and operates a restaurant

having a principal place of business at 21 West 17th Street, New York, New York, which has

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received and paid for

electricity supply via Con Ed account no. 43-6213-0940-0002-6 (the "BLT

Fish Account").

Account"

6. Defendants

Liberty Holdings and

Liberty Corp are engaged in the business of

supplying electricity to customers within the State of New York.

7. Defendant

Liberty Holdings

is, and at all relevant times was, a Delaware limited

liability company authorized to do business in the State of New York.

8. Defendant

Liberty Holdings maintains an office at 1901 W. Cypress Creek Rd.,

Suite 600, Fort Lauderdale, Florida.

9. Defendant

Liberty Holdings has a NYS Department of State service of process

address c/o Corporate Creations Network

Inc., 15 North Mill Street, Nyack, New York.

10. Defendant

Liberty Holdings is a listed ESCO in the PSC's

directory ofenergy

suppliers

offering services to customers in

Plaintiffs'

zip codes.

11. Defendant

Liberty Corp is, and at all relevant times was, a Delaware limited

liability company authorized to do business in the State of New York.

12. Defendant

Liberty Corp maintains an office at 1901 W. Cypress Creek Rd., Suite

600, Fort Lauderdale, Florida.

13. Defendant

Liberty Corp has a registered agent and NYS Department of State

service of process address c/o Corporate Creations Network

Inc., 15 North Mill Street, Nyack,

New York.

14. The web domain

"libertypowercorp.com"

was owned and controlled

by Liberty

Corp.

15.

Liberty Corp andLiberty Holdings are affiliated entities.

16.

Liberty Corp andLiberty Holdings aredirectly or

indirectly under common control.

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17.

Liberty Corp and

Liberty Holdings aredirectly or

indirectly under common

ownership.

18.

Liberty Corp andLiberty Holdings

directly or

indirectly caused the conduct

complained of herein.

19.

Liberty Corp and

Liberty Holdings

directly or

indirectly benefited from the conduct

complained of herein.

JURISDICTION AND VENUE

20. Pursuant to CPLR 301,

this Court has jurisdiction over Defendants, each of which

is a foreign limited

liability company authorized to do business in the State of New York.

21. Pursuant to CPLR 302,

this Court has jurisdiction over Defendants, as this suit

arises out of

Defendants'

regularly-transacted business in the State of New York.

22. Pursuant to CPLR 503, venue lies in New York County, where Plaintiffs reside.

FACTUAL ALLEGATIONS

Energy Deregulation in New York

23. Historically

in New York, customers received

electricity

from a local distribution

utility (the "Local Utility"),

Utility"

such as Central Hudson, Orange and Rockland Utilities, New York

State Electric 4 Gas Corporation, Niagara Mohawk Power Corporation, Rochester Gas and

Electric, and Consolidated Edison of New York ("Con Ed"), which was responsible for both

"supplying"

electricity (i.e., obtaining electricity

from generators) and

"delivering"

the

electricity

(i.e., transmitting the

electricity over power lines to

customers'

homes and businesses).

24. Because the Local

Utility had a monopoly,

the New York State Public Service

Commission

("PSC")

regulated rates charged to customers.

25. In the late 1990s, many states, including New York, deregulated the

electricity

market

by

"unbundling"

electricity supply anddelivery services.

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26. Accordingly, upon deregulation,

the PSC no longer regulated

electricity supply

rates charged to customers.

27.

Instead, customers had the option of

purchasing their

electricity from any supplier

licensed to sell it in New York, with

electricity supply rates setby private contract and market

forces.

28. In theory,the deregulated market would operate more

efficiently and competitively,

reducing prices, andthereby benefitting customers.

29. Upon deregulation, a class of ESCOs came into existence to compete against the

local utilities and each other.

30. To protect

consumers,

the PSC promulgated detailed rules and procedures

governing the conduct of the

ESCOs'

business, including rules

governing the truthfulness of an

ESCO's representations to customers and potential customers.

31. These rules are set forth in the PSC's Uniform Business Practices

("UBP"), which

govern the business practices and operations of ESCOs such as

Liberty Power.

32. Because the

electricity is delivered to the customer

by

the Local Utility regardless

of whether it is purchased from the Local

Utility or an ESCO,

the predominant,

if not only, basis

to choose an ESCO over the Local

Utility

(or to choose

among ESCOs)

is price. ESCOs came into

existence, after all, because of the belief that through market competition

they could offer lower

rates than the Local Utility could

develop products, such as fixed-rate contracts,

that would

help

customers better predict and control costs.

Liberty Power's Variable Rate Plan

33. Consistent with a market in which price is the predominant,

if not

sole,

factor for

customers, Liberty Power holds itself out as

being able to save customers money. For example,

Liberty Power's website states that it offers "competitive

rates."

In a message targeted at

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businesses such as Plaintiffs, Liberty Power claims that "[w]e can

help you control

energy

costs"

and that

"many businesses are

switching over to

Liberty Power to benefit from our low-cost

energy

solutions."

34. Other than

purchasing electricity

for its

customers, Liberty Power does not provide

any other services to its customers.

35.

Liberty Power offers a

variety of different rate plans, whichgenerally run for a

fixed period of time. Although New York law forbids ESCOs from enrolling customers without

their explicit permission, when a

Liberty Power custonier's rate term ends and that customer does

not

explicitly

renew that or another rate

plan,

rather than return the customer to the Local Utility,

Liberty Power insteadsimply places the customer into the "Variable Rate

Plan,"

which

Liberty

Power refers to as its

"default"

plan.

36. Under the Variable Rate Plan (an exemplar

copy of which is attached hereto as

Exhibit C), a customer's enrollment

automatically renews. As a result, once enrolled a customer

will remain

indefinitely on the Variable Rate Plan.

37. The Variable Rate Plan provides that the

"Rate"

that customers will be charged "is

established each month based upon the

electricity market

pricing,"

including various

pricing

components such as

"capacity, ancillary services, losses, generation and

any other miscellaneous

charges (including, but not limited to,

ISO/RTO or PUC

fees)."

In truth,the listed components

comprise

only

about half of the price charged

by Liberty Power under this Plan with the balance

made

up by a hidden fee that was not "established each

month"

but rather remained unchanged for

long periods of

time, as further explained below.

38.

Liberty Power states on its website that the Variable Rate Plan "allows you [the

customer]

to take advantage of

electricity price

trends"

because the customer is charged a "market

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based

rate."

A copy of the relevant portion of

Liberty Power's website is attached hereto as Exhibit

D.

39.

Liberty Power further states that a "Market Based

Price"

is "a price set

by the

mutual decisions of many buyers and sellers in a competitive

market."

A copy of

Liberty Power's

"Glossary"

is attached hereto as Exhibit E.

40. Accordingly,

the terms and conditions of the Variable Rate Plan

unambiguously

promise that

Liberty Power customers on that Plan will be charged a competitive price tied to the

market price paid

by Liberty Power to purchase the

electricity on the customer's behalf.

41.

Liberty Power breached this promise to Plaintiffs and class members each and

every

month that

they were

Liberty Power customers

by failing to charge market prices, and

by charging

fees that exceeded the rates for

electricity supply

that customers would have paid their Local

Utility

every month.

42. Specifically, Liberty Power adds to its prices a fee,referred to

internally as its

"margin"

and set

by a "Revenue

Management"

department,

that represents its pre-determined

profit on the sale of electricity.

Liberty Power's margin on its fixed rate plans is low -

a few tenths

of a

penny per kilowatt hour -

and is adjusted

frequently so thatLiberty Power can compete with

other ESCOs.

43. In contrast,

the margin fee imposed

by Liberty Power on its Variable Rate Plan is

as much as 17 times higher than on its fixed rate plans. In

fact,

this fee was

frequently higher than

the wholesale price of

electricity itself. Thus,

through the addition of this hidden fee, Liberty Power

often gave itself a 100% profit on the Variable Rate Plan.

44. Meanwhile, contrary to the premise that a variable rate plan would permit

customers to take advantage of price trends, Liberty Power's Revenue Management department

rarely adjusted the margin fee for the Variable Rate Plan. For example, despite the fact that

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wholesale

electricity prices fluctuate

hourly and

vary broadly by season, Liberty Power's margin

fee in the Con Ed service

territory held at $0.047/kWh on its

supposedly Variable Rate Plan for

more than three years,from February 2009 until

July 2012, when the rate was increased to

$0.049/kWh.

45. As a result of

Liberty Power's exorbitant and undisclosed fee,

the prices it charged

customers on the Variable Rate Plan were not

remotely tied to the wholesale price for

electricity

and were

vastly higher than the rates chargedby

the Local Utility. For

example, prices that were

routinely double those of Con Ed for the

very

same periods

clearly were not the product of "the

mutual decisions of many buyers and sellers in a competitive

market."

46.

Liberty Power

knowingly and willfully engaged in the misconduct complained of

herein and imposed tens of millions of dollars in fees hidden in its

supposedly variable, market

rates.

Plaintiffs Are Among Liberty Power's Victims

47.

Plaintiffs'

restaurants are, and at all relevant times were,

in the service

territory of

Con Ed,the Local

Utility that services New York City and Westchester.

48. Con Ed was the

electricity supplier to BLT Fish from July, 2004, when the

restaurant opened,

through March, 2005, when its

electricity

supplier was switched to

Liberty

Power. BLT Fish remained under contract with

Liberty Power, and received and paid for

electricity

supplied

by Liberty Power via the BLT Fish Account, until on or about May 31, 2012.

49. Con Ed was the

electricity

supplier to BLT Steak from May, 2004, when the

restaurant opened,

through March, 2005, when

substantially all of its

electricity came to be

supplied

by Liberty Power. BLT Steak remained under contract with

Liberty Power, and received

and paid for

electricity supplied

by Liberty Power via the BLT Steak Accounts, until on or about

June 30, 2012.

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50. As of the time Plaintiffs terminated

Liberty Power as their ESCO, and at all relevant

times within the statute of limitations

preceding such termination, Plaintiffs were enrolled in the

"Variable Rate

Plan."

As described above, according to its terms,the Variable Rate Plan

automatically

renewed

during the term of the

parties'

relationship.

51. During the time that Plaintiffs were customers of

Liberty Power,

the amount

they

were charged under the Variable Rate Plan exceeded the market rate

by at least $350,000.

CLASS ACTION ALLEGATIONS

52. Plaintiffs

bring this class action under Article 9 of the Civil Practice Law and Rules

on behalf of the

following proposed class (the "Class"):

"Class"

All persons or entities in the State of New York who were or

are enrolled in

Liberty Power's Variable Rate Plan.

53. Specifically excluded from the proposed Class are the Court and its

staff, Liberty

Power, any entity

in which

Liberty Power has acontrolling interest, and the officers, directors,

affiliates,

legal

representatives, successors, subsidiaries, and/or assigns of

any such entity.

54. All of the members of the proposed plaintiff

class,

in the aggregate, are citizens of,

or own and operate businesses located

in, New York. The Defendants conduct business in New

York, including specifically

the conduct at issue in this case. The principal injuries

resulting from

Liberty Power's alleged conduct were incurred in New York.

55. During the 3-year period

preceding thefiling of this class action, no other class

action has been filed

asserting the same or similar factual allegations againstLiberty Power.

56. The proposed Class meets all requirements for class certification.

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Numerosity

57. The proposed Class is so numerous that the individual joinder of all its members in

one action is impracticable. While the exact number and the identities of Class members are

unknown at this time, they

can be ascertained through investigation and

discovery

in this action.

58.

Liberty Power has beenoperating as an ESCO in New York for several years.

Throughout the applicable time period, as much as 20% of

Liberty Power's customers in the Con

Ed service area alone were enrolled in the Variable Rate Plan.

Existence and Predominance of Common Questions of Law and Fact

59. Common questions of law and fact

arising out of the claims here at issue exist as to

all members of the Class and predominate over

any potential individual issues. These common

legal and factual questions include, but are not limited to,

the following:

a. whether the Variable Rate Plan is a contract between one or both of the

defendants on the one hand and Plaintiffs and class members on the other;

b. whether

Liberty Power breached its contract with Plaintiffs and class

members;

c. whether

Liberty Power's prices under the Variable Rate Plan, including its

imposition of fees that sometimes exceeded the wholesale cost of

electricity by more than

100%, were market-based;

d. whether plaintiffs and Class members have been damaged

by Liberty

Power's conduct as alleged herein and,

if

so, what measure of damages is proper.

Typicality of Claims

60.

Plaintiffs'

claims are typical of the claims of the Class. Plaintiffs and members of

the Class were victims of the practices detailed herein because

they were charged anarbitrary and

excessive hidden fee as part of the

supposedly market-based rate under the Variable Rate Plan.

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Each of the Class members has suffered actual

pecuniary damages as a result of the conduct of

Liberty Power as alleged herein.

61. Plaintiffs and the Class have

similarly had their legal rights infringed upon, and

have sustained injuries, losses, and damages as described herein. The right of plaintiffs and each

member of the Class to payment of damages

equally arise from and are attributable to

Liberty

Power's wrongful conduct in violation of law as alleged herein, as these claims arise from the same

core set of facts.

Adequate Representation

62. Plaintiffs will

fairly andadequately protect the interests of the members of the Class

because:

(1) they have no irreconcilable conflicts with or interests materially antagonistic to those

of the other Class members; (2)

plaintiffs'

interests are aligned with the interests of the Class; and

(3) plaintiffs understand the nature of these allegations and their responsibilities as class

representatives to represent the interests of Class members.

63. Plaintiffs have retained attorneys who are experienced in the prosecution of class

actions, including consumer class

actions, who have done significant work

investigating or

identifying potential claims in this

litigation, who have extensive knowledge of the applicable law,

and who have committed and will continue to commit substantial resources to

representing the

Class.

Superiority and Manageability of Class Litigation

64. A class action is superior to other available methods for the fair and efficient

adjudication of this

controversy and possesses substantial benefits because there is no other

available method that has greater practical advantages for

handling this litigation on a group-wide

basis on behalf of all affected persons.

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65. Individual joinder of all Class members is impracticable as Class members are

dispersed throughout the State, and no other method of adjudication of all claims asserted herein

is more efficient and manageable while at the same time

providing all the remedies available to

ensure that the full purpose of the relevant laws is effectuated.

FIRST CLAIM FOR RELIEF

(Breach of

Contract)

66. Plaintiffs repeat and re-allege the

foregoing allegations as if

fully set forth herein.

67.

Liberty Power breached its contracts to

supply electricity to Plaintiffs and class

members.

68. Plaintiffs

fully performed their obligations thereunder.

69. Under the terms of the Variable Rate Plan into which

Liberty Power enrolled them,

Liberty Power was obligated to charge Plaintiffs and class members

only a market-based

supply

charge based on the purchase of

electricity in a competitive market.

70.

Instead, Liberty Power breached this requirement

by charging Plaintiffs

arbitrary

and exorbitant amounts well in excess of market

rates, including by assessing a hidden fee that

frequently doubled the price customers paid.

71. Plaintiffs have been damaged in an amount to be determined at trial but estimated

to exceed $350,000.

72. Damages incurred

by the class are believed to be in the tens of millions of dollars.

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PRAYER FOR RELIEF

WHEREFORE, plaintiffs, individually and on behalf of the Class, pray for Order and

Judgment as follows:

a.

finding that this action satisfies the prerequisites for maintenance as a class action

under Article 9 of the CPLR, and

certifying the Class as defined herein;

b.

designating plaintiffs as Class representatives and their counsel as Class

counsel;

c.

entering judgment in favor of plaintiffs and the Class and against Defendants;

d.

awarding to plaintiffs and to the Class all actual damages, according to the proof

at

trial, plus preand post-judgment

interest;

e.

awarding plaintiffs their

costs, expenses, disbursements and reasonable

attorneys'

fees for counsel

acting on behalf of the class in an amount to be determined at

trial; and

f.

awarding plaintiffs and the Class such other relief as the Court deems just and

proper.

Dated: New York, New York

May 23, 2018

WACHTE ISSRY L P

By: A

Stella . Sainty

Marc Litt

Dani Schwartz

One Dag Hammarskjold Plaza

885 Second Avenue, 47th Floor

New York, New York 10017

(212) 909-9500

Attorneys for Plaintiffs BLT Fish LLC

and BLT Steak LLC

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r,'

VERIFICATION

STATE OF NEW YORK )

ss„"

) ss.:

COUNTY OF NEW YORK )

JAMES HABER, being duly sworn, deposes and says:

I am the manager of the managing member of Plaintiffs BLT Steak LLC and BLT

Fish LLC and authorized to make this Verification on their behalf. I have reviewed the

foregoing

FIRST AMENDED CLASS ACTION COMPLAINT, know the contents thereof. I

verify that the

allegations as to Plaintiffs and of which I have personal knowledge are true, and that the

remaining

allegations are true to the best of my knowledge,

information and belief.

JAMES HABER

Sworn to before me this

$ day of May, 2018

Notar Public

No 01AM6316145

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ta

AGREEMENT AND PLAN OF

OI("

MERGER

AGREEMENT AND PLAN OF MERGER, dated as of December _, 2004 (the

"Agreement") by and between ETA RESTAURANTS INC., a Delaware corporation (the

"Corporation"),

"Corporation"

and ETA RESTAURANTS H LLC, a Delaware limited

liability company (the

"L_L£"). Upon the merger of the Corporation with and into the LLC,the separate existence of

the Corporation shall cease. The Corporation and the LLC are hereinafter sometimes

collectively

referred to as the "Constituent

Companies."

Com anies."

WHEREAS,

the Corporation and the LLC wish to provide for the terms and conditions

upon which a merger of the Corporation with and into the LLC will be consummated;

WHEREAS,

the LLC desires to change its name upon the consummation of the merger

with the Corporation to BLT STEAK LLC;

WHEREAS,

the Board of Directors of the Corporation has, by resolutions

duly adopted,

approved this Agreement and the transactions contemplated thereby;

WHEREAS,

the sole stockholder of the Corporation has, by resolutions duly adopted,

approved this Agreement and the transactions contemplated thereby;

WHEREAS,

the sole member of the LLC has, by resolutions

duly adopted, approved this

Agreement and the transactions contemplated thereby; and

WHEREAS,

the parties intend for the merger of the Corporation with and into the LLC

to qualify as a tax-free reorganization under Section 368 of the Internal Revenue Code of 1986,

as amended.

NOW, THEREFORE, in consideration of the mutual agreements contained herein and

for the purpose of merging the Corporation with and into the LLC and

setting forth certain terms

and conditions of such merger and the mode of

carrying the same into effect,

the parties agree as

follows:

ARTICLE 1

THE MERGER

1.1 Surviving Entity. In accordance with the provisions of this Agreement, the

Delaware General Corporation Law (the

"DGCL") and the Delaware Limited

Liability Company

Act, (the "DLLCA"), at the Effective Time (as defined in Section 1.3 of this Agreement), the

Corporation shall be merged with and into the LLC (the

"Merger"), and the LLC shall be the

surviving entity in the Merger (hereinafter sometimes referred to as the "Surviving Entity") and

shall continue its existence under the laws of the State of Delaware under its new name, BLT

397900/11418.00001

BITOO1.840

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\ e

STEAK LLC. At the Effective Time,

the separate existence of the Corporation shall cease.

1.2 Corporate Governing Documents. The Certificate of Incorporation and the Bylaws of the Corporation, each as in effect

immediately prior to the Effective Time, shall terminate

at the Effective Time. The Certificate of Formation, as amended by the Certificate (as such term

is defined

below) of the LLC and the Operating Agreement dated as of December 1, 2004 (the

"Operating Agreement") of the LLC shall be the Certificate of Formation and the Operating

Agreement of the Surviving Entity.

1.3 Effective Time. The LLC shall file a Certificate of Merger (the

"Certificate")

with the Secretary of State of the State of Delaware (the "Secretary of State")

in accordance with

Section 18-209 of the DLLCA. The Merger shall become effective on December 31, 2004 at

11:59 p.m. (the "Effective Time").

Time"

1.4 Effect of Merger. At the Effective Time,

the separate existence of the Corporation

shall cease and the Corporation shall be merged with and into the LLC. The consummation of

the Merger will have the effects provided under Delaware law with respect to a merger of a

domestic corporation with and into a domestic limited

liability company.

1,5 Additional Actions.

If, at any time after the Effective Time,

the Surviving Entity

shall believe or be advised that

any further assignments or assurances in law or

any other acts are

necessary or desirable to vest, perfect or confirm, of record or otherwise, the Surviving Entity's

right,

title or interest

in,

to or under

any of the rights, properties or assets of the Corporation

acquired or to be acquired as a result of, or in connection with,

the Merger or otherwise to

carry

out the purposes of this Agreement, the Corporation and its proper officers and directors shall be

deemed to have granted to the Surviving Entity an irrevocable power of

attorney to execute and

deliver all such proper deeds, assignments and assurances in law and to undertake all acts

necessary or proper to vest, perfect or confirm any and all

right,

title and interest

in,

to and under

such rights, properties or assets in the Surviving Entity or otherwise to

carry out the purposes of

this Agreement; and the sole member of the

Surviving Entity is

fully authorized in the name of

the Corporation or otherwise to take

any and all such action.

1.6 Filing of Final Tax Returns. The Surviving Entity hereby acknowledges and

agrees that it shall be solely responsible for the preparation and

filing of all final income tax

required to be filed

by the Corporation,

ARTICLE 2

CONVERSION OF SHARES

2.1 The Corporation Common Stock. As of the date of this Agreement,

the

authorized capital stock of the Corporation consists of shares of common stock, with

$ par value per share (the "Common Stock"),

Stock"

of which one hundred

(100) shares are

outstanding and entitled to vote. All issued and

outstanding shares of Common Stock are owned

by JSB Holdings, Inc., a Delaware corporation ("JSB Holdings"). All shares of Common Stock

397900/11418,00001

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C

issued and

outstanding immediately prior to the Effective Time shall, by virtue of the Merger and

without

any action on the part of the holder

thereof, be converted into a one hundred

(100%)

percent

equity interest in the LLC. All shares of Common Stock,

issued and

outstanding

immediately prior to the Effective Time, shall no longer be

outstanding and shall be cancelled

and retired and shall cease to exist.

2.2 The LLC Equity Interest. As of the date of this Agreement, the Corporation is the

sole holder of all

equity interests in the LLC. As a result of the Merger, JSB Holdings will be the

sole holder of all

equity interests in the LLC.

ARTICLE 3

CLOSING CONDITIONS

3.1 Stockholder/Member Approval. The respective obligations of each of the

Constituent Companies to effect the Merger shall be subject to the fulfilhnent, at or prior to the

Effective Time, of the condition that the sole stockholder of the Corporation and the sole member

of the LLC shall have duly adopted tins Agreement.

3.2 Consents. All authorizations, consents and approvals required to be obtained in

order to permit the consummation of the Merger shall have been obtained.

ARTICLE 4

TERMINATION AND ABANDONMENT

4.1 Termination. This Agreement may be terminated at any time prior to the

Effective Time, whether before or after approval by the sole stockholder of the Corporation, by

the Board of Directors of the Corporation or

by the sole member of the LLC.

4.2 Effect of Termination. If this Agreement is terminated pursuant to this Article 4,

this Agreement shall become void and of no force and effect and the Merger shall be abandoned

without further action

by any of the parties hereto. If this Agreement is terminated as provided

herein, no

party hereto shall haveany liability or further obligation to

any other

party to this

Agreement.

ARTICLE 5

MISCELLANEOUS

5.1 Amendment and Modification. The Board of Directors of the Corporation, may

by written agreement amend this Agreement at

any time prior to the filing of the Certificate of

Merger with the Secretary of State, provided that an amendment made subsequent to the adoption

of this Agreement

by the sole stockholder of the Corporation shall not alter or change

(a)

the

397900/1I418.00001

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r

amount or kind of shares, securities, cash, property and/or rights to be received in exchange for

or on conversion of all or

any of the shares or equity interests ofany class or series thereof of the

Corporation, (b) any term of the Certificate of Formation of the Saviving Entity as it is to be in

effect

immediately following the Merger, or

(c) any of the terms and conditions of this

Agreement if such alteration or change would

adversely affect the holder of

any class or series

thereof of such Constituent Company. The sole member of the LLC may by written agreement

amend this Agreement at

any time prior to thefiling of the Certificate of Merger with the

Secretary of State.

5.2 Governing Law. This Agreement shall be governed by and construed in

accordance with the laws of the State of Delaware applicable to agreements made and to be

perfonned wholly within the State of Delaware.

5.3 Counterparts. This Agreement may be executed in two counterparts, each of

which shall be deemed an original, but both of which together shall constitute one and the same

instrument.

5.4 Interpretation; Definitions, The article and section headings contained in this

Agreement are solely for the purpose of

reference, are not part of the agreement of the parties and

shall not in any way affect the meaning or interpretation of this Agreement.

5.5 Entire Agreement. This Agreement, including the documents and instruments

referred to herein, embodies the entire agreement and understanding of the parties hereto in

respect of the subject matter contained herein. There are no restrictions, promises,

representations, warranties, covenants or undertakings other than those

expressly set forth or

referred to herein. This Agreement supersedes all prior agreements and understandings

among

the parties hereto with respect to such subject matter.

[Remainder

of

the page

intentionally

left

blank.]

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I

'

IN WITNESS WHEREOF,

the Corporation and the LLC have caused this Agreement

and Plan of Merger to be signed by their respective duly authorized officers on the date first

above written.

ETA RESTAURANTS INC.

Nat e: James Haber

. e: President

ETA RESTAURANTS II LLC

By ETA Restaurants Inc., its Sole

ember

By:

N : James Haber

Ti : President

397900/11418.00001

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L{

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of December _, 2004 (the

"Agreement") by and between AZ NYC INC., a Delaware corporation (the "Corporation"), and

BLT FISH LLC, a Delaware limited liability company (the "L._L_C"). Upon the merger of the

Corporation with and into the LLC, the separate existence of the Corporation shall cease. The

Corporation and the LLC are hereinafter sometimes

collectively referred to as the "Constituent

Companies."

~Com anise."

WHEREAS,

the Corporation and the LLC wish to provide for the terms and conditions

upon which a merger of the Corporation with and into the LLC will be consummated;

WHEREAS,

the Board of Directors of the Corporation has, by resolutions

duly adopted,

approved this Agreement and the transactions contemplated thereby;

WHEREAS,

the sole stockholder of the Corporation has, by resolutions

duly adopted,

approved this Agreement and the transactions contemplated thereby;

WHEREAS, the sole member of the LLC has, by resolutions

duly adopted, approved this

Agreement and the transactions contemplated thereby; and

WHEREAS,

the parties intend for the merger of the Corporation with and into the LLC

to qualify as a tax-free reorganization under Section 368 of the Internal Revenue Code of 1986,

as amended.

NOW, THEREFORE, in consideration of the mutual agreements contained herein and

for the purpose of merging the Corporation with and into the LLC and setting forth certain terms

and conditions of such merger and the mode of

carrying the same into effect,

the parties agree as

follows:

ARTICLE 1

THE MERGER

1.1 Surviving Entity. In accordance with the provisions of this Agreement, the

Delaware General Corporation Law (the

"DGCL") and the Delaware Limited

Liability Company

Act, (the "DLLCA"), at the Effective Time (as defined in Section 1.3 of this Agreement),

the

Corporation shall be merged with and into the LLC (the "Merger"), and the LLC shall be the

surviving entity in the Merger (hereinafter sometimes referred to as the "Surviving Entity") and

shall continue its existence under the laws of the State of Delaware. At the Effective Time,

the

separate existence of the Corporation shall cease.

1.2 Corporate Governing Documents. The Certificate of Incorporation and the By398302/11418.00001

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r

dr

laws of the Corporation, each as in effect

immediately prior to the Effective Time, shall terminate

at the Effective Time. The Certificate of Formation of the LLC and the Operating Agreement

dated as of December 1, 2004 (the "Operating Agreement") of the LLC shall be the Certificate of

Formation and the Operating Agreement of the Surviving Entity.

1.3 Effective Time. The LLC shall file a Certificate of Merger (the

"Certificate")

"Certificate"

with the Secretary of State of the State of Delaware (the "Secretary of State")

State"

in accordance with

Section 18-209 of the DLLCA. The Merger shall become effective on December 31, 2004 at

11:59 p.m. (the "Effective Time").

Time"

1.4 Effect of Merger. At the Effective Time,the separate existence of the Corporation

shall cease and the Corporation shall be merged with and into the LLC. The consummation of

the Merger will have the effects provided under Delaware law with respect to a merger of a

domestic corporation with and into a domestic limited

liability company.

1.5 Additional Actions.

If, at any time after the Effective Time, the Surviving Entity

shall believe or be advised that any further assignments

cr or assurances in law or

any other acts are

necessary or

ol"

desirable to vest, perfect or

confirm, of record or

oI"

otherwise, the Surviving Entity's

right,

title or interest

in,

to or under

any of the rights, properties or assets of the Corporation

acquired or to be acquired as a result of, or in connection with,the Merger or otherwise to

carry

out the purposes of this Agreement, the Corporation and its proper officers and directors shall be

deemed to have granted to the Surviving Entity an irrevocable power of attorney to execute and

deliver all such proper deeds, assignments and assurances in law and to undertake all acts

necessary or proper to vest, perfect or confirm any and all

right,

title and interest

in, to and under

such rights, properties or assets in the

Surviving Entity or otherwise to

carry out the purposes of

this Agreement; and the sole member of the Surviving Entity is

fully authorized in the name of

the Corporation or otherwise to take

any and all such action.

1.6 Filing of Final Tax Returns. The Surviving Entity hereby acknowledges and

agrees that it shall be

solely responsible for the preparation and

filing of all final income tax

returns required to be filed by the Corporation.

ARTICLE 2

CONVERSION OF SHARES

2.1 The Corporation Common Stock. As of the date of this Agreement,

the

authorized capital stock of the Corporation consists of one thousand

(1,000) shares of common

stock, with $.01 par value per share (the "Common Stock"),

Stock"

of which one hundred

(100) shares

are

outstanding and entitled to vote. All issued and outstanding shares of Common Stock are

owned by JSB Holdings, Inc., a Delaware corporation ("JSB Holdings"). All shares of Common

Stock issued and outstanding immediately prior to the Effective Time shall, by virtue of the

Merger and without any action on the part of the holder

thereof, be converted into a one hundred

(100%) percent equity interest in the LLC. All shares of Common Stock,

issued and

outstanding

immediately prior to the Effective Time, shall no longer be

outstanding and shall be cancelled

398302/11418.00001

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'I

II.

and retired and shall cease to exist.

2.2 The LLC Equity Interest. As of the date of this Agreement,

the Corporation is the

sole holder of all

equity interests in the LLC. As a result of the Merger, JSB Holdings will be the

sole holder of all

equity interests in the LLC.

ARTICLE 3

CLOSING CONDITIONS

3.1 Stockholder/Member Approval. The respective obligations of each of the

Constituent Companies to effect the Merger shall be subject to the fulfillment, at or prior to the

Effective Time, of the condition that the sole stockholder of the Corporation and the sole member

of the LLC shall have

duly adopted this Agreement.

3.2 Consents. All authorizations, consents and approvals required to be obtained in

order to permit the consummation of the Merger shall have been obtained.

ARTICLE 4

TERMINATION AND ABANDONMENT

4.1 Termination. This Agreement may be terminated at

any time prior to the

Effective Time, whether before or after approval by the sole stockholder of the Corporation, by

the Board of Directors of the Corporation or by the sole member of the LLC.

4.2 Effect of Termination. If this Agreement is terminated pursuant to this Article

4,

this Agreement shall become void and of no force and effect and the Merger shall be abandoned

without further action by any of the parties hereto. If this Agreement is terminated as provided

herein, no party hereto shall have

any liability or further obligation to any other

party to this

Agreement.

ARTICLE 5

MISCELLANEOUS

5.1 Amendment and Modification. The Board of Directors of the Corporation, may

by written agreement amend this Agreement at any time prior to the filing of the Certificate of

Merger with the Secretary of State, provided that an amendment made subsequent to the adoption

of this Agreement by the sole stockholder of the Corporation shall not alter or change (a)

the

amount or kind of shares, securities, cash, property and/or rights to be received in exchange for

or on conversion of all or

any of the shares or equity interests of any class or series thereof of the

Corporation, (b) any term of the Certificate of Fonnation of the Surviving Entity as it is to be in

effect

immediately following the Merger, or

(c) any of the terms and conditions of this

398302/11418,00001

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r

Agreement if such alteration or change would adversely affect the holder of

any class or series

thereof of such Constituent Company. The sole member of the LLC may by written agreement

amend this Agreement at

any time prior to the

filing of the Certificate of Merger with the

Secretary of State.

5.2 Governing Law. This Agreement shall be governed

by and construed in

accordance with the laws of the State of Delaware applicable to agreements made and to be

performed wholly within the State of Delaware.

Counterparts. This Agreement maybe executed in two counterparts, each of

which shall be deemed an original, but both of which together shall constitute one and the same

instrument.

5.4 Interpretation; Definitions. The article and section headings contained in this

Agreement are

solely for the purpose of

reference, are not part of the agreement of the parties and

shall not in

any way affect the meaning or interpretation of this Agreement.

5.5 Entire Agreement. This Agreement, including the documents and instruments

referred to herein, embodies the entire agreement and understanding of the parties hereto in

respect of the subject matter contained herein. There are no restrictions, promises,

representations, warranties, covenants or undertakings other than those expressly set forth or

referred to herein. This Agreement supersedes all prior agreements and understandings among

the parties hereto with respect to such subject matter.

[Remainder

of

the page intentionally left blank.]

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I'

IN WITNESS WHEREOF,

the Corporation and the LLC have caused this Agreement

and Plan of Merger to be signed

by their respectiveduly authorized officers on the date first

above written.

AZ NYC INC.

By:

am: James Haber

: President

BLT FISH LLC

By AZ NYC Inc.,

its Sole Member

By: .

Name·

Name James Haber

1 e: President

398302/11418.00001

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NYS Department of State

Division of Corporations

Entity

Information

The information contained in this database is current through

February 25, 2015.

Selected Entity Name: DIVERSIFIED CAPITAL INVESTORS CORPORATION

Selected Entity Status Information

Current

Entity Name: AZ NYC INC.

DOS ID #: 1662556

Initial DOS Filing

AUGUST 31, 1992

Date:

County: NEW YORK

Jurisdiction: DELAWARE

Entity Type: FOREIGN BUSINESS CORPORATION

Current Entity Status:

INACTIVE - Dissolution

by Proclamation / Annulment of Authority (Apr 29,

2009)

Information to reinstate a corporation that has been dissolved

by proclamation or annulment ofauthority

by proclamation is available on the New York State Department of Taxation and Finance website at

www.tax.ny.gov keyword TR-194.1 or

by telephone at

(518) 485-6027

Selected Entity Address Information

DOS Process (Address to which DOS will mail process if accepted on behalf of the

entity)

DIVERSIFIED CAPITAL SERVICES CORPORATION, C/O DIVERSIFIED

INVESTOR SERVICES OF NORTH

AMERICA,

INC.770 LEXINGTON AVE

NEW YORK, NEW YORK, 10021

Registered Agent

NONE

http://appext20.dos.ny.gov/corpfublic/CORPSEARCH,ENTITY_INFORMATION?p_nameld=1736997&p_corpid=1662556&p_entity_name=%64%69%76%65...1/2

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This office does not record information

regarding

the names and addresses of officers, shareholders or

directors of nonprofessional corporations except the

chief executive officer,if provided, which would be

listed above. Professional corporations must include

the

name(s) and address(es) of the initial officers,

directors, and shareholders in the initial certificate

of

incorporation, however this information is not

recorded and

only available

by viewing the

certificate.

*Stock Information

of Shares Type of Stock $ Value per Share

No Information Available

*Stock information is applicable to domestic business corporations.

Name History

Filing Date Name Type

Entity Name

JUL 12, 2002 Actual AZ NYC INC.

AUG 31, 1992 Actual DIVERSIFIED CAPITAL INVESTORS CORPORATION

A Fictitious name must be used when the Actual name of a foreign

entity is unavailable for use in New

York State. The entity must use the fictitious name when

conducting its activities or business in New

York State.

NOTE: New York State does not issue organizational identification numbers.

Search Results New Search

Services/Programs Privacy Policy | Accessibility Policy | Disclaimer

| R.eturn to DOS

Homepage

j Contact Us

http://appext20.dos.ny.gov/corp_public/CORPSEARCH.ENTITY_INFORMATION?p_nameid=1736997&p_corpid=1662556&p_entity_name-%64%69%76%65... 2/2

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-

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ny.us. 'h

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1901 W. CypressCreek Rd.,suite 600

Ft. Lauderdale,FL33309

1-866-POWER-99(Mon- Fri8:30 am - 8:00 pm ET

I-lTM~r'"' Liberlyl~~er: ~a~a!r!

sat & suri 10:00am -6:00 pm ET)

cusroMssrssMssNo CONDITIONS

CWomer CareFax:1-877-772-2354

Email: Info@llbertypowercorp.com

New York - Rollover Variable Rate Plan wwwlibertypowercorp.com

"Liberty Power", "us",

"we"

or

"our"

means Liberty Power Collection of Past Due Charges: Liberty Power will pass through

Holdings LLC and refers to the retail electricity provider

supplying to you all charges related to the collection of past due invoices,

electricity to you as provided in these Customer Terms and including, but not limited to, collection agency fees, legal and

Conditions. "Customer", "you", or

"your"

means the customer court fees, and Account termination fees. We reserve the right to

identified in the Voice Authorization or Written Authorization, apply any deposit to balances owed at the time your Account is

and as addressed in the Liberty Power Plan Description. placed in 8 collections status.

Entire Agreement: The voice recording confirming your decision Term and Automatic Renewal: The term of this Agreement is as

to switch to Liberty Power ("Voice

("

Authorization"),

Authorization" Authorization"

or the signed stated in the Voice or Written Authorization. Service will

Energy Services Enrollment Agreement ("Written

("

Authorization"),

Authorization" Authorization"

automatically renew monthly unless you or Liberty Power cancel,

along with these Customer Terms and Conditions and the Liberty upon thirty (30) days written Notice, or as otherwise applicable in

Power Plan Description are your full Agreement

("Agreement")

Agreement("Agreement" (" Agreement"

to this Agreement. Cancellation must be in writing and mailed to

buy electricity from Liberty Power. They take the place of any and Liberty Power Customer Care Team at 1901 W. Cypress Creek

all prior Agreements or oral or written information about your Rd., Suite 600, Ft. Lauderdale, FL 33309.

Liberty Power energy supply. Please keep this Agreement for your

Credit/Security Deposit: In completing this Agreement, ou

records. The Plan Description is included in your Liberty Power Y

Welcome Kit and has important information about your Account.

authorize credit-reporting agencies to provide Liberty Power with

any information it may have on you or your business. Liberty

Rate: This is 8 full requirements Agreement. The Rate for Power may require 8 security deposit to initiate service,

electricity sold under this Agreement is established each month depending on creditor payment history. Any deposit requirement

based upon the electricity market pricing, including capacity, will be sent to you in writing. Deposits held more than thirty (30)

ancillary services, losses, generation and any other miscellaneous days will accrue interest, at the Wall Street Journal Prime Rate,

charges (including, but not limited to, ISO/RTO or PUC fees). The from the date of receipt.

Rate will not include taxes, regulated charges from the Utility, .

including, but not limited to, Utility delivery and distribution

Dispute Resolution: Liberty Power's Customer Care Team is

charges, customer Account fees or other Utility transition

available at 866-769-3799 to help with any questions or concerns

charges regarding your Accounts. Our representatives are committed to

resourcefully finding resolution; however, if the dispute cannot

Convertibility: Customer is eligible to convert to a Liberty Power be settled within 120 days of receipt of written notification,

fixed rate plan at any time during the term of this Agreement. either party may present the dispute to a venue of competent

The fixed rate for this plan will be based on the available market jurisdiction for review such as small claims court, mediation,

rate and term. There will be no termination fee associated with arbitration, etc. The Department of Public Service ("DPS") will

making this change. not resolve Non Residential disputes associated with the services

provided under this Sales Agreement. However, the DPS will

Onsite Generation:

If, after the date you signed this Agreement, monitor inquiries and contacts from Non-Residential customers

You intend to install onsite generation units (such as solar

regarding energy service companies and an excessive number of

panels), You agree to provide Us with 60 (sixty) days prior written

confirmed complaints may result in an energy service company

notice. Upon receipt of this Notice and at Supplier's discretion,

no longer being eligible to supply natural gas or

electricity in New

the Rate associated with this Agreement may be reassessed and

York State. New York Public Service Commission ("NYPSC") can be

offered to You based on the Material Change provision of this

reached at 888-697-7728. Customer may contact the DPS by

Agreement. Failure to provide 60 (sixty) days advance Notice of

writing the Department of Public Service at the Office of

your intent to install onsite generation units will constitute an

Consumer Services, Three Empire State Plaza, Albany, NY 12223-

Event of Default and, at Supplier's discretion, either

(i) the Rate

1350, ' or by consulting their website at http://www.dps.state

associated with this Agreement maybe reassessed and offered to

.ny.us. If the Dispute cannot be settled in 120 days either party

you based on the Material Change provision; or, (li) termination

may present the dispute to a venue of competent jurisdiction for

of this Agreement will be processed in accordance with the

review such as small claims court, mediation, arbitration, etc.

Termination of Service Provision.

Billing: Liberty Power will bill you monthly for electricity supply

Termination of Service: Liberty Power may terminate service for

based on your electricity usage as reported to us by the Local any Event of Default that you incur. You will then receive

Distribution Utility ("Utility").

("'"Utility" Utility"

You will be billed under one of electricity supply from the Utility or will be given the opportunity

these billing options:

(1) 8 line item on a consolidated Utility bill;

to choose 8 different electricity provider, based on the rules of

or

(2) as 8 direct bill from Liberty Power for the electricity supply

the local Utility. You will be responsible to pay for electricity

only, with the delivery charges invoiced separately by the Utility. consumed before service was terminated. You may terminate

You will be sent a monthly invoice which is payable by check,

this Agreement by giving Liberty Power at least forty-five (45)

credit or debit card or Electronic Funds Transfer

("EFT") by the

days written Notice.

due date on the invoice. Meter Equipment: Liberty Power does not take ownership of

Payment Instructions for Direct Billed Accounts: Bills are due and your existing metering equipment. While you have an

electricity

payable by the stated due date on the invoice and will be subject Agreement with Liberty Power, we have the right to install new

to 8 finance charge for any late payment (at the lesser of 1.5% per metering equipment, at Liberty Power's expense.

month of the outstanding balance or the maximum rate

Disconnection of Service: Only the local Utility has the ability to

permitted by applicable law) and collection fees, including disconnect vour service. Failure to make full oayment of the

reasonable

attorneys'

attorneys fees and court costs. A fee of $30 per

charges due will be grounds for disconnection based on New York

transaction will be assessed due to insufficient funds for any law.

method of payment. AII direct payments should be sent to Liberty

Power Holdings LLC, 25901 Network Place, Chicago, IL 60673- Events of Default: A Customer Event of Default means:

(a) your

1259. failure to make, when due, any payment required by this

Agreement; or

(b) the failure to take electric

supply when

age o0

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delh/ered under terms of this Agreement unless remedied within Agreement and may, upon foreclosure, assign Liberty Power's

ten (10) business days following written Notice; or

(c) the rights under this Agreement; and (b) Liberty Power may also

significant downgrading of your credit

rating since the Effective assign its rights and obligations under this Agreement to service

Date of this Agreement; or (d) tampering or disconnecting of your providers for services such as invoicing and power scheduling;

electric meter which may cause or may reasonably be expected and (c) you will have the right to assign this Agreement to an

to cause an inaccurate reading or no reading of the usage data entity controlled by, controlling, or under common control with,

provided by the meter; meter,"

or

(e) a breach of any material provisions Customer.

in this Agreement

e We Fe Majeure means an event or circumstance

A Liberty Power Event of Default means the failure to fulfill the not

reasonably within the control of, or due to the negligence of,

material obligations of this Agreement with regard to Rate, Term, Liberty Power, including without limitation acts of God, accidents,

and the supply of agreed usage volume if not remedied within ten strikes, labor disputes, required maintenance work, inability to

(10) business days after giving Notice. access the Utility system, nonperformance of the Utility, cuts to

An Event of Default is a licable to either

party who files a

service lines, or Ganges in Laws, rules, regulations, practices or

PP procedures of any governmental authority or any other cause

petition for bankruptcy, or other action under any bankruptcy or

beyond the reasonable control of Liberty power, Liberty Power

similar law for the protection of creditor, if the petition or other

will endeavor in a commercially reasonable manner to provide

action is not withdrawn or dismissed within twenty (20) business

service, but cannot guarantee a continuous

supply of electrical

days of its filing.

energy. Force Majeure events may result in interruptions In

Remedies for Customer Event of Default: In the event of a service. Please be aware that Liberty Power does not produce,

Customer Event of Default, Liberty Power has the right to transmit or distribute electricity and will not be liable for any

terminate this Agreement in accordance with the Termination of damages for interruptions in service.

Service provision. in place of

termination, we may require an

Indemnity: Each party to this Agreement shall

indemnify, defend

additional deposit from you or request advance payment of an

and hold harmless the other from and against any claims arising

amount up to the average historical consumption for the last

from. or out of any event, circumstance, act or incident that the

three (3) month period

indemnifying party caused due to its negligence, willful

Material Misrepresentation: This Agreement may be terminated misconduct, strict

liability, or any action or inaction which gives

in accordance with the Termination of Service Provision in the rise to any liability.

event you make a Material Misrepresentation in order to induce

Representations and Warrantles: The electricity supplied by

us to enter into this Agreement. For purposes of this Agreement,

Liberty Power under this Agreement will be purchased from a

a Matenal Misrepresentation is any fact provided by you,

that we

variety of sources, Liberty Power makes no representations or

relied upon in agreeing to the Rate, Term or service in this

warranties other than those expressly stated in this Agreement,

Agreement, and the fact is later found to be false, and which if

Liberty Power expressly disclaims all other warranties, express or

known to be false, that we would not have entered into this

implied, including warranties of merchantability, conformity to

Agreement, or would have entered into this Agreement under

models or samples, and fitness for a particular purpose.

different Rate, Term or other service conditions.

. Limitations of Liability: Liability for damages not related to Force

Electric Emergencies and Power Quality: The Utility will continue

Majeure will be limited to direct actual damages, Neither party

to operate the electric transmission lines and be responsible for

will be liable to the other for consequential, incidental, punitive,

power outages and quality. You will hold Liberty Power harmless

exemplary or indirect damages, including lost profits or penalties

in the event of a loss of power caused by any entity other than

of any nature, which are hereby waived, whether or not there

Liberty Power. If you have an electrical emergency, power

was actual knowledge of such possible damages, or if such

outage, or reduction in power quality, contact the Utility at its

damages could have been reasonably foreseen. These limitations

emergency number on your invoice"

apply without regard to the cause or

responsibility of any liability

Material Change: Except as provided in the Change in Law or damage.

provision below, Liberty Power will provide you with forty-five

Service interruption, Liberty Power is not liable for any damages

aomf

(4S) calendar days advance written Notice of any Material Change

due to an interruption in service caused by acts of any

in the Customer Terms and Conditions, either in your invoice or in

governmental authority, or any ISO, or Changes in Laws, rules,

a separate mailing. The changes will become effective on the

regulations, practices or procedures of any such entity,

date stated in the Notice unless you cancel your Agreement. You

may cancel the Agreement no later than ten (10) calendar days

before the effective date of the Material Change.

Governing law: This Agreement and the rights and duties of both

parties are governed by the laws of the state of New York.

Change in Law: If there is a change in law, regulation, or any fees

or costs imposed by a governmental authority or the regional

Independent System Operator

("ISO") ("Change

("

in Law") and the

change causes Liberty Power to incur operating or other costs or

expenses related to the services in this Agreement, in order to

maintain the same level and quantity of delivery of electric

energy, these costs will be added to your invoice as a passthrough charge and you agree to pay the pass-through charge.

Notices: All Notices and correspondence will be in writing and

delivered to you and Liberty Power, as applicable, by regular mail,

courier, electronic mail, or facsimile. Notice will be effective

upon receipt by the person to whom it is addressed.

Assignment: Assignment of this Agreement, without the prior

written consent of the other party, is limited to the following:

(a)

Liberty Power may assign Accounts, revenues and proceeds, or

grant a lien against

them, to credit providers. These credit

providers may directly enforce Liberty Power's rights under this

age o

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Take control of your electricity costs!

Asa savvybusinessowner,you havethe powerto manageand control electricitycosts.That's becauseyour state

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allowsretail electricitysupplierslike LibertyPowerto helpyou manageyour energyneeds.

Pennsylvania

LibertyPowerunderstandsrunning a businesstakesa lot of time and effort. Choosingone of our electricity plans

canyield significant businessbenefits,Includingfreeingdollars for other businessneeds.

Rhodeisland

Ourfixed rate products

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• Offerpricecertaintyandbudgetcontrol

• Areavailablein avarietyof simple,easy-to-understandproductterms

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Call Toll Free: 1-866 POWER-99 (1-866-769-3799)

© 2013 LibertyPowerCorp. Privacy SodalResponsibilityPolicy Contact Wearesocial:

CHANNELPARTNERS

Us Termsof Use

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Customer care glossary Page 1 of 5

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Youarehere: UbertyPower CustomerCare Glossary

EnvironmentalDisclosures

EmergencyContacts

UnderstandingYour Bill

r

How to PayYour UtilityConsolidatedBill

FAQ

Glossary Glossary

ACHDeblt:ACHstandsfor automatedclearinghouse,which is a networkthat electronicallyprocessesmoney.

Typicallythis would be anautomaticwithdrawalfrom your checkingaccount.

Aggregator:A group or organization(generallya Municipality,apartmentcomplex, communityor other targe

entity)that representsenergyconsumersto purchaseelectricity.Thegoal Is to negotiatelower priceswhich are

passedon to membersof the group.The group of consumersis calleda buyinggroup.

Authortred DecisionMaker: Theindividualwho signedthe UbertyPoweragreementor gavevoiceauthorization

through theTPVprocess. OnlytheAuthorized DecisionMakerhasthe authority to makechangesto the accountor

appoint other companymembersto makedecisionsaboutthe LibertyPoweraccount.

BaseRates:The rates utility companieschargeto coverIts non-fuel costs.

BillingCycle:The Billing Cycleis basedon the utility's meterread cycle.Somemonthsthe numberof daysin the

cyclewill vary, but it is approximatelyevery30 days.

Broker:Any entity that servesasan agentor

Intermediaryin the purchaseand saleof electricity to retail customers.

Capacity:Theamount of electricpowerthat canbedeliveredat one time by ageneratingunit, generatingstation,

or all the plantson an electricsystem.

Changeof OwnershipForm:InTexas,a TexasChangeof OwnershipRequestFormmust be completedby both the

previousand newownersto ensurethere is no serviceInterruption.The completedform, a copy of the bill of sale,

anda LibertyPowercontractshouldbe sent to UbertyPowervia fax or mail.

Co-generator:A powerplant that producesboth electrical(or mechanical)energyand thermal (steamor process

heat)energy.

Competition:Allowing two or moreentities to sell similar goodsand services,in this case,energygeneration,In

the samemarket.

CompetitiveSupplier:Theelectricityprovidersthat competein a deregulatedmarket.Also referredto as retail

suppliers.Additional terms, basedon your state,areREP,RES,EC5,and ESCO.

ConsumerContract:A written agreementor verbalauthorization(TPV)betweena customerand an electricity

ContractTerms:The provisionsof an agreementbetweenan electricity supplieranda consumer,includingsuch

items asthe cost, length of service,and ability to end the contract.

Cramrning:The practiceof addingchargesto a customer's monthly bill for servicesthat the customerhasnot

authorized.This is an illegal practice.

CustomerCharge:A flat monthlychargepayableregardlessof the levelof usage.

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Customer care

glossary Page 2 of 5

rn ' U&r~mI" CustomerChoice:Theability of electricityconsumersto shop,compareprices,and choosethe companythat

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Dentalof Access:A Denialof Accessletter is sentwhenthe localutility is unableto gain accessto readyour

electricmeter.Pleasecontactthelocal utility to givethem accessto readyour meterand ensureaccuratebilling of

your account.

Demand:Theamount of energyusedat a specificmomentin time, measuredin watts, kilowatts (kW=1000watts)

or megawatts(mW=1000kilowatts,or 1 million watts).

Deregulation:The eliminationof monopolyservicein an industryto allowcompetitionto develop,sometimesused

interchangeablywith restructuring.

[h

Distribution:.The The processof deliveringelectricitythrough low-voltagepowerlinesto a consumer'shomeor

business,Distribution includeslocalwires,transformers,substations,andother equipmentusedto deliver

electricityfrom the high-voltagetransmissionlinesto homesand businesses.

DistributionCharges:Therate(per kilowatt hour)billed by the utility to deliverelectricityto a homeor business.

Distribution Utility: The regulatedelectricutility entitythat constructsand maintainsthe distribution wires

connectingthetransmissiongrid to the final customer.

DueDate:Datethat your paymentmust be receivedby LibertyPower.if you arenot surethat your checkwill arrive

in the mallon time to meetthe duedate,you canpayby phoneby calUng1-866-POWER-99.

EarlyTerminationFee:A fee chargedfor closinganaccountprior to the end of the contract term to coverthe

expensesLibertyPowerincursin pre-purchasingyour electridty in orderto secureyourfixed rate for the term of

your contract.Pleaseseeyour terms and conditionsfor the exactcalculationof the fee.

ElectricSupplier:An entity (includingan electricaggregatoror participatingmunicipalelectric utility) licensedby a

stateutility regulatoryagencyto provideelectricgenerationservicesto consumers.Withelectric choice,consumers

canchoosetheir electricsupplier.The poweris then deliveredby the consumer'selectricdistribution company.

ElectricUtility: Any personor stateagencywith a monopolyfranchise(including anymunicipality)that seHselectric

energyto end-usecustomers

Energy:The result of consumingpowerover a periodof time. In electricity,measuredin watt hours: 1000watt

= 1 kilowatt hour, or the equivalentof a 100watt bulb runningfor 10 hours.Mostelectricity rates/pricesfor

residentialservicearequoted in kilowatt-hours. in gas,measuredin volumesof gas (cubicfeet) or a proxy for

volumes(therms,q.v.).

EnergyEfficiencyPrograms:Programsdesignedto help consumersuseenergymoreefficiently.

EnrollmentAgreement:Yourwritten or verbalauthorizationto purchaseelectricityfrom LibertyPower.This is a

binding agreementand mayinvolveafee for earlytermination.

GrossReceiptsTax (GRT):A tax leviedin Pennsylvaniathat must be induded with the energy rateto computeyour

total charge. The rate that appearson your invoicewill includethe LibertyPowerenergycost aswell asthe GRT.

FederalEnergyRegulatoryCommission(FERC):TheFederalEnergyRegulatoryCommissionregulatesthe price,

terms,andconditions of powersold in interstatecommerceand regulatesthe price,terms, andconditlans of all

transmissionservices,FERCis the federal counterpartto stateutility regulatorycommissions.

FixedRate:A pricing plan that doesnot changefor the full term of the agreement.Eachmonth you will be billed at

the sameenergyrate, no matterwhat changesoccurin the energymarket.

FPA- FederalPowerAct of 1935: Establishedguidelinesfor federalregulationof interstate energysales.It is the

primary statutegoverningFERCregulationof the electricsector.

FutureStartDate: LibertyPoweroffers you the convenienceof purchasingyour electricitywith a flow start that is in

the future. This is especiallyvaluableif you areundercontractwith a different supplieror havea stayrequirement

with your utility. It's alsoconvenientfor renewalssoyou canbe surethat your ratechangesto anotherfixed-rate

term anddoesnot rollover to a default variablerate.

Generation:Theprocessof producingelectricalenergy.Generationmayalso referto the amount of electrical

energyproduced,usuallyexpressedin watt-hours, kilowatt-hours (kWh),or megawatthours (MWh).

GenerationCompany:A companythat generateselectricity.This energycanbe producedby gas,nuclearreactor,

coalplant, or avariety of renewablesources.

Grid:A systemof interconnectedpowerlinesandgeneratorsthat is managedto meetthe requirementsof the

customersconnectedto the grid at variouspoints.

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Customer care

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Lakes GreenPower:A generalterm that describespowerthat is environmentallyfriendly.Ittypically usesa mix of energy

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HomeIndependencePlan:TheLibertyPowerfixed rate planfor residentialcustomers,Availablein 12and 24

3799) monthterms

IPPindependentPowerProducer:A companyotherthan a utility that operatesa generationfacility and sells

powerto suppliersfor resaleto retail customers.

ISOIndependentSystemOperator:An organizationresponsiblefor maintaininginstantaneousbalanceof the grid

system,ensuringthat loadsmatchavailableresources.150sInwhich LibertyPoweroperatesare: NY150(NewYork

state),NEISO(NewEngland),PJM(Pennsylvania,NewJersey,Maryland- alsoincludesDelawareand Ililnois and ll

'

parts of Ohiowill soonjoin), MISO(Midwest

- Amerenlillnois, partsof Ohio);ERCOT(Texas),and CAl$0

Kilowatt-hour(kWh):This is the basicunit of electricenergyequalto one kilowatt of powersupplied to or taken

from an electriccircuit steadilyfor one hour. Onekilowatt-hour equals1,000watt-hours.

LateFee:Feeassessedwhen paymentis postedandclearedthrough the accountlaterthan the due date.

Letterof Authorization:TheLetterof Authorization is requiredIn certainmarketsto give uspermissionto obtain

usagedatafrom the localutility andexchangeon-going informationregardingyour accountas needed.h is

requiredto provideyou with your electricitysupplyservicefrom LibertyPower.

Load:Theamountof powerdrawnfrom a utility systemat a givenpoint in time. Thepeakload is the highest

amountof powerdrawndown at anyone time, or the utilities maximumcapacityor demand.

LoadProfile:Informationon acustomer'senergyusageover a periodof time, sometimesshownin a graph format.

Market-BasedPrice:A price set by the mutual decisionsof manybuyersandsellersin acompetitive market.

Marketer:An entity sellingwholesaleor retail powerin a competitivemarket.

Megawatt-hour(MWh):Onemegawatt-hourequalsonemillion (L000,000) watt-hours.

MinimumStayRequirements:A requirementimposedby the utility whena customerreturns to the utility from a

competitivesupplier, Not applicableto al utilities.

Monopoly:.AA singleseller hascontrol over marketsales.

© 2013 Uberty PowerCorp.

Non-Utility Generator(NUG):Anyentity not regulatedby the governmentasa public utility that ownsor operatesa

generatingfacility andoffers electricpowerfor saleto utilities or the public (alsoknownas IndependentPower

CHANNELPARTNERS

Producer).

Wearesocial:

Obilgationto Serve:Theobligation of a utility to provideelectric serviceto anycustomerwho seeksthat service

and iswilling to paythe ratessetfor that service.

Off-Peak:Thoseperiodsof time when energyis beingdeliveredfar belowthe utility's maximumdemand.

On-Peak:Thoseperiodsof timewhenenergyis beingdeliverednearand includingthe utility's maximumdemand.

PeakLoad:The maximumloadexperiencedby an electriccustomerover agiven periodof time.

PeakingCapacity:Capacityusedin times of maximumdemand.

PowerPool:Two or more interconnectedelectric systemsthat seekto obtain greater

reliability of serviceand

efficiencyof operationby coordinatingthe developmentand operationof their electricgeneration andtransmission

facilities.

Priceto Compare(PTC);Theutility's rate for a specificserviceclass,Eachserviceclasswill havea different PTC.

Also referredto as theStandardOfferService.

PriceCap:A wayof setting ratesin which the utility is givena limit on the averagedollar-per-customer revenueit

maycollect.

Providerof LastResort:A legal obligation (traditionallygivento utilities) to provideserviceto a customerwhen

competitivesuppliershavedecidedthey no longerwantto do businesswhat that customer.

PublicCommission:Stateagencythat is responsiblefor regulatingthe state's public utilities. TheCommissionis

overseeingthe deregulationof the electric market.

PURPA- ThePublicUtility RegulatoryPolicyAct of 1978:Among otherthings thk fr+rioraleniMarianrerguiren.......... ...

utilities to buy electricpowerfrom private"qualifying

facilities"

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Customer care

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Reliability:Theability of the electricsystemto supply the electricaldemandandenergyrequirementsat all times

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RenewableEnergy:Sustainableenergytechnologiesthat include solar,wind, trash to energy,water, andmethane

gasfrom landfills, fuel cells,andbiomass.

Restructuring:Usuallyrefersto separationof the utility functionsof verticallyintegratedenergyutilities into

individuallyoperatedandownedentitles,sometimesusedinterchangeablywith deregulation.

RetailCompetition:A systemunderwhichmore than one electricprovidercansell to retail customersandwhere

retail customersareallowedto buy from morethan oneprovider.

RetailMarket:A marketin which electricityand other energyservicesaresolddirectlyto the end-usecustomer.

RetailSupplier:SeeCompetitiveSupplier.

RolloverVariable:Also calledDefaultVarlable.Month-to-month ratechargedto customersthat do not renewtheir

fixed rateplan. Ratefollows the movementof the energymarketandchangeseachmonth.

Securitization:A processthat allowsutilities to usethe expectedfuture revenuefrom Its monopolycustomersto

financebonds.it hasbeenusedto payoff strandedcosts in somestates.(SeeStrandedCosts)

ServiceArea:Thegeographicalterritory servedby anelectric company.

Stamming:A term usedwhenan electricsupplier switchesa consumer'sservicewithout permission.SlammingIs

illegal.

StandardOfferService("SOS"):Theutility's rate for a specificserviceclass.Eachserviceclasswill havea different

SOS.Also referredto asthe Priceto Compare.

StrandedCosts:Costselectricutilities will not recoveras powermarketsmovefrom protectedmonopoliesto open,

competitiveenvironments.

Switching:Refersto a customer

receivingretail electricservice/suppliesfrom a companyor organizationother the

customer's

'

traditional utility.

Salesand UseTax (SUT):A tax leviedIn Newjersey that must be Includedwith the energyrate to computeyour

total charge. Therate that appearson your Invoicewill Includethe LibertyPowerenergycost, aswell as the SUT.

Tariff: A document,approvedby the responsibleregulatoryagency,listing the terms and conditions,including a

scheduleof prices,underwhich utility serviceswill be provided.

Third PartyVerification(TPV),alsoknownasVoiceVerification:This is a bindingagreementbetweenyou and

LibertyPowerfor the purchaseof electricity.It confirmsyour decisionto selectLibertyPowerasyour electricity

supplier,aswell as the term, rateand other contractualelements.TheTPVmaybean automatedsystemor havea

live operator.

Time-of-Use(TOU)Rates:The pricing of electricitybasedon the estimatedcostof electricity during a particular

time block, either

time-of-day or by season.

Transmission:The processof

transportingelectricityfrom a generationcompanyto an electric companyover highvoltagepowerlines.

Transmissionand DistributionServiceProvider(TDSP):Thecompanythat managesthe deliveryof electricityto your

homeor business.Theterm is most

frequentlyusedin Texas:in other marketsthe utility handlesthe deliveryof

electricity.

TransportationFee:Chargefor movingnaturalgasthrough pipelinesfrom one placeto another.

Unbundling:Separatingelectricutility serviceInto its basiccomponentsgeneration,transmission,and

distribution - and offering eachcomponentseparatelyfor salewith Its own rates,

Utility:A regulatedenergycompanywith the characteristicsof a naturalmonopoly.

WholesaleCompetition:A systemInwhich a powerdistributor canbuy its powerfrom a variety of powerproducers.

WholesalePowerMarket:The purchaseand saleof electricityfrom generatorsto resellers(whosell to retail

customers).

WiresCharge:Chargesleviedfor the useof the transmissionor distribution wires.

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