UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov

 

In re: Chapter 11 

LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-PDR 

 

Debtor. 

 

 / 

NOTICE OF FILING 

 LIBERTY POWER HOLDINGS, LLC (the “Debtor” or “Holdings”), by and through 

undersigned counsel, hereby files the redlined version of the Final Order Under Bankruptcy Code 

Sections 105, 361, 362, 363, 364 and 507(B) and Bankruptcy Rules 2002, 4001, 6004 and 9014 

(I) Authorizing Debtor (A) to Use Cash Collateral, and (B) to Obtain Senior Secured Post-Petition 

Financing, and (II) Granting Related Relief attached hereto as Exhibit “A,” marked against the 

Interim Order entered by the Court [ECF No. 86].

Respectfully Submitted, 

 GENOVESE JOBLOVE & BATTISTA, P.A. 

 Attorneys for Debtors-in-Possession 

100 Southeast Second Street, Suite 4400 

 Miami, Florida 33131 

 Telephone: (305) 349-2300 

 Facsimile: (305) 349-2310 

 By: /s/ Paul J. Battista

 Paul J. Battista, Esq. 

Florida Bar No. 884162 

pbattista@gjb-law.com 

Mariaelena Gayo-Guitian, Esq. 

Florida Bar No. 813818 

mguitian@gjb-law.com

Heather L. Harmon 

Florida Bar No. 13192 

hharmon@gjb-law.com 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 1 of 37
2 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a copy of the foregoing Notice was served via electronic mail 

and CM/ECF Notification upon all interested parties registered to receive electronic notification 

and/or via U.S. Mail or e-mail as indicated on the Service List below on the 26th day of May, 2021.

SERVICE LIST 

Served Via CM/ECF Notification 

Scott Andron on behalf of Creditor Broward County 

sandron@broward.org, swulfekuhle@broward.org 

Stephen J Bagge on behalf of Creditor Lynne Rhodes 

sbagge@baggelaw.com 

Stephen J Bagge on behalf of Creditor Samuel Katz 

sbagge@baggelaw.com 

Jeffrey P. Bast, Esq. on behalf of Creditor Philip J. von Kahle 

jbast@bastamron.com, 

jdepina@bastamron.com;kjones@bastamron.com;jmiranda@bastamron.com;mdesvergunat@bas

tamron.com 

Paul J. Battista, Esq on behalf of Debtor Liberty Power Holdings, LLC 

pbattista@gjb-law.com, gjbecf@gjb-law.com;chopkins@gjb-law.com;jzamora@gjblaw.com;gjbecf@ecf.courtdrive.com;vlambdin@gjb-law.com 

Jason B Binford on behalf of Interested Party State of Texas 

jason.binford@oag.texas.gov 

Albert A Ciardi on behalf of Creditor BLT Fish LLC BLT Steak LLC 

aciardi@ciardilaw.com, sfrizlen@ciardilaw.com;dtorres@ciardilaw.com 

Jonathan F Dinerstein on behalf of Creditor Commonwealth of Massachusetts 

jonathan.dinerstein@mass.gov 

Alexandra A Fahringer on behalf of Creditor PJM Interconnection, LLC 

afahringer@schnader.com 

Robert C Folland on behalf of Interested Party Midcontinent Independent System Operator 

("MISO") 

rob.folland@btlaw.com, courtney.dunham@btlaw.com 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 2 of 37
3 

Mariaelena Gayo-Guitian on behalf of Debtor Liberty Power Holdings, LLC 

mguitian@gjb-law.com, gjbecf@gjb-law.com;vlambdin@gjb-law.com;cesser@gjblaw.com;chopkins@gjb-law.com;gjbecf@ecf.courtdrive.com 

Eric Goldstein on behalf of Creditor ISO New England Inc. 

egoldstein@goodwin.com, bankruptcy@goodwin.com;bankruptcyparalegal@goodwin.com 

Daniel N Gonzalez, Esq on behalf of Interested Party Liberty Power Corp., LLC 

dgonzalez@melandbudwick.com, 

ltannenbaum@melandbudwick.com;mrbnefs@yahoo.com;gonzalez@ecf.courtdrive.com;ltannen

baum@ecf.courtdrive.com;phornia@ecf.courtdrive.com 

Daniel N Gonzalez, Esq on behalf of Interested Party Liberty Power Corporation 

dgonzalez@melandbudwick.com, 

ltannenbaum@melandbudwick.com;mrbnefs@yahoo.com;gonzalez@ecf.courtdrive.com;ltannen

baum@ecf.courtdrive.com;phornia@ecf.courtdrive.com 

Jordi Guso, Esq. on behalf of Creditor Boston Energy Trading and Marketing, LLC 

jguso@bergersingerman.com, 

fsellers@bergersingerman.com;efile@bergersingerman.com;efile@ecf.inforuptcy.com 

Heather L Harmon, Esq on behalf of Debtor Liberty Power Holdings, LLC 

HHarmon@gjb-law.com, gjbecf@gjb-law.com;ecastellanos@gjblaw.com;gjbecf@ecf.courtdrive.com;jzamora@gjb-law.com 

Michael S Hoffman on behalf of Interested Party 2100 West Cypress Creek Road Associates, 

LLC 

Mshoffman@hlalaw.com, 

hlaecf@gmail.com;kszolis@hlalaw.com;mshoffman@ecf.courtdrive.com 

Kevin M Lippman on behalf of Interested Party Electric Reliability Council of Texas 

klippman@munsch.com 

Office of the US Trustee 

USTPRegion21.MM.ECF@usdoj.gov 

Deborah M Perry on behalf of Interested Party Electric Reliability Council of Texas 

dperry@munsch.com 

Ethan M Preston on behalf of Creditor Lynne Rhodes 

ep@eplaw.us 

Ethan M Preston on behalf of Creditor Samuel Katz 

ep@eplaw.us 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 3 of 37
4 

Dana R Quick on behalf of Creditor Philip J. von Kahle 

dquick@bastamron.com, 

jdepina@bastamron.com;jmiranda@bastamron.com;mdesvergunat@bastamron.com 

Timothy J Reppucci on behalf of Creditor Commonwealth of Massachusetts 

timothy.reppucci@mass.gov 

Abigail R Ryan on behalf of Interested Party State of Texas 

abigail.ryan@oag.texas.gov 

J. Steven Wilkes on behalf of U.S. Trustee Office of the US Trustee 

steven.wilkes@usdoj.gov 

Served via U.S. Mail/E-Mail upon: 

Victoria Dusch, Chief Financial Officer vdusch@libertypowercorp.com

David Hernandez, Chief Executive Officer - dhernandez@libertypowercorp.com

Alberto Daire past president adaire@libertypowercorp.com

Derik Viner, President dviner@libertypowercorp.com

Marty Halpern - Manager - United TranzActions mhalpern@unitedtranzactions.com

Stephen Gray - Independent Director ssg@grayandcompanyllc.com

Stephen Gibelli, General In house counsel sgibelli@libertypowercorp.com

Breton Leone-Quick, Esq BLeone-Quick@mintz.com

Audrey Louison, Esq ALouison@mintz.com 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 4 of 37
5 

EXHIBIT A 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 5 of 37
10498971-1110575845-4 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov 

 

In re: Chapter 11 Case 

LIBERTY POWER HOLDINGS, LLC, Case No. 21-13797-SMG 

 

 Debtor. 

________________________________/ 

INTERIMFINAL ORDER UNDER BANKRUPTCY CODE SECTIONS 105, 361, 362, 363, 

364(c)(1), 364(c)(2), 364(c)(3), 364(d) AND 364(e507(B) AND BANKRUPTCY RULES 2002, 

4001, 6004 and 9014 (I) AUTHORIZING DEBTOR TO (A) TO USE CASH COLLATERAL, 

AND (B) TO OBTAIN SENIOR SECURED POST-PETITION FINANCING, AND (II) 

GRANTING RELATED RELIEF, AND (III) SCHEDULING FINAL HEARING 

THIS CAUSE came before the Court on May 624, 2021 at 9:3011:00 a.m. (the 

“InterimFinal Hearing”) upon the motion, dated May 5, 2021 [ECF No. 72] (the “Motion”)”),1, of 

Liberty Power Holdings, LLC (the “Borrower” or the “Debtor”), as debtor-in-possession in the 

above-captioned case (the “Case”) for interim and final orders under sections 105, 361, 362, 363, 

 

1

 Capitalized terms used in this InterimFinal Order and not otherwise defined herein shall have the meanings ascribed 

to such terms in the Motion. 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 6 of 37
2 

10498971-1110575845-4 

364(c)(1), 364(c)(2), 364(c)(3), 364(d), 364(e) and 507(b) of title 11 of the United States Code, 11 

U.S.C. §§ 101, et seq. (as amended, the “Bankruptcy Code”), and Rules 2002, 4001, 6004 and 

9014 of the Federal Rules of Bankruptcy Procedure (as amended, the “Bankruptcy Rules”), and 

the local bankruptcy rules for the United States Bankruptcy Court for the Southern District of 

Florida (the “Local Bankruptcy Rules”), seeking: 

(a) authorization to use the Cash Collateral (as defined in Section 363(a) of the 

Bankruptcy Code) to fund its day-to-day operating expenses, including to retain employees; 

(b) authorization for the Borrower to obtain up to $40,000,000 in amount of postpetition financing (inclusive of any interest or fees) (collectively, the “DIP Financing”), all on the 

terms and conditions set forth in this InterimFinal Order and the Preliminary Debtor-In-Possession 

(DIP) Financing Term Sheet, dated as of April 29, 2021, presented by Boston Energy Trading and 

Marketing, LLC or its designee or assignee (the “DIP Lender”) (substantially in the form attached 

to this InterimFinal Order as Exhibit A, and as amended, supplemented or otherwise modified from 

time to time in accordance with the terms hereof and thereof, the “DIP Term Sheet”); together with 

all agreements, documents, instruments and/or amendments delivered in connection therewith, 

including the Post-Petition Supply and Services Agreement between the Debtor and DIP Lender 

(collectively, the “DIP Documents”)”),2, and the budget annexed hereto as Exhibit B, as the same 

may be amended from time to time by the Debtor with the consent and approval of the DIP Lender 

(the “Budget”); 

 

2 The On May 20, 2021, the Debtor will file any additionalfiled the final form of DIP Documents no later than two 

business days prior to the Final Hearing.[ECF No. 114]. 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 7 of 37
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10498971-1110575845-4 

(c) authorization for the Debtor to execute and deliver the DIP Documents and to 

perform such other and further acts as may be necessary or appropriate in connection therewith, 

including the replacement of certain credit-support arrangements; 

(d) to schedule, pursuant to Bankruptcy Rule 4001, an interim hearing on the Motion 

to be held before this Court to consider entry of the proposed interim order annexed to the Motion 

(the “Interim Order”) authorizing the Borrower, on an interim basis, to use Cash Collateral and 

incur new indebtedness under this Interim Order and the DIP Documents up to $4,000,000,3 plus 

interest and fees as described in paragraph 6(a) below, and 

(e) to schedule, pursuant to Bankruptcy Rule 4001, a final hearing (the “Final 

Hearing”) on the Motion to be held before this Court to consider entry of a final order (the “Final 

Order”) authorizing and approving, on a final basis, the transactions described in the foregoing 

clauses (a) through (d) pursuant to the Final Order.

The InterimOn May 10, 2021, the Court entered the Interim Order Under Bankruptcy Code 

Sections 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3), 364(d) and 364(e) and Bankruptcy 

Rules 2002, 4001, 6004 And 9014 (I) Authorizing Debtor to (A) Use Cash Collateral, and (B) 

Obtain Senior Secured Post-Petition Financing, (II) Granting Related Relief, and (III) Scheduling 

Final Hearing [ECF No. 86] (the “Interim Order”) granting the Motion on an interim basis and 

scheduling the Final Hearing. The Interim and Final Hearing having been held by the Court to 

consider the relief sought in the Motion, and upon the record of the Interim HearingFinal Hearing, 

including consideration of the Limited Objection to Interim Order filed by BLT Steak, LLC and 

BLT Fish, LLC [ECF No. 107] (the “BLT Objection”), and after due deliberation and 

 

3

 For purposes of this Interim Order, the DIP Financing shall not exceed $4,000,000, which subject to entry of the 

Final Order and the DIP Lender’s sole discretion, may be increased to $40,000,000. 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 8 of 37
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10498971-1110575845-4 

consideration and sufficient cause appearing therefor, and the Debtor and the DIP Lender having 

stipulated as follows: 

I. STIPULATIONS. 

A. On April 20, 2020 (the “Petition Date”), the Debtor filed a voluntary petition 

commencing this Case. 

B. The Debtor is a retail energy provider (an “REP”) that is active in competitive 

electricity markets in over a dozen jurisdictions operating in five organized markets. The Debtor 

and its subsidiaries are certified and licensed to provide retail electric service by the Public Utilities 

Commissions or Public Service Commissions in each of California, Connecticut, District of 

Columbia, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New 

York, Ohio, Pennsylvania, Rhode Island, Texas and Virginia. The Debtor currently services 

hundreds of thousands of customer accounts in 14 states. 

C. The Debtor sells electricity to residential, commercial and industrial customers, 

wherein it competes in price and terms with other REPs and the public utility in a given market 

area. The Debtor typically makes a profit in the form of a margin between the price it charges a 

customer under a sales contract for electricity and the cost at which the Debtor sources such 

electricity in the wholesale markets. However, that margin must also account for the costs 

associated with hedging, financing, and commercial operating expenses, among other things. 

D. Each organized market is operated by an independent system operator (each, an 

“ISO”), including the Electric Reliability Council of Texas (“ERCOT”), Pennsylvania, Jersey 

Maryland Power Pool (“PJM”), New York ISO, or ISO-New England. As the Debtor’s customers 

consume electricity, each ISO balances that consumption with generation, and this balancing is 

treated as a purchase by the Debtor in the wholesale markets and a resale to the customer. 

Typically, on a monthly basis, the ISO settles accounts and, in doing so, invoices the Debtor for 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 9 of 37
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10498971-1110575845-4 

the power collectively consumed by its customers as a purchase in the wholesale market. Because 

the ISO is effectively taking counterparty credit exposure to the Debtor as any month progresses, 

the ISO demands that the Debtor provide it with credit assurance. 

E. In July 2020, the Debtor completed a restructuring of its capital structure. In 

connection thereafter, the Debtor and Boston Energy Trading and Marketing, LLC (“BETM”) 

executed the following documents: 

i. Supply and Service Agreement, by and among Boston Energy Trading and 

Marketing LLC, and Liberty Power Holdings LLC, dated as of July 6, 

2020 (the “Supply and Services Agreement”); 

ii. ISDA (International Swap and Derivatives Association, Inc.) 2002 Master 

Agreement by and among Boston Energy Trading and Marketing LLC,

and Liberty Power Holdings LLC, dated as of July 6, 2020; 

iii. Pledge and Security Agreement, by and among Liberty Power Holdings 

LLC, Liberty Power District of Columbia LLC, Liberty Power Maryland 

LLC, LPT, LLC, and Liberty Power Super Holdings LLC, and Boston

Energy Trading and Marketing LLC, dated as of July 6, 2020 (the “Pledge 

Agreement”); 

iv. Parent Agreement, by and between Liberty Power Holdings LLC, Liberty 

Power Super Holdings LLC, and Boston Energy Trading and Marketing 

LLC, dated as of July 6, 2020; 

v. Consent and Acknowledgement Letter, by and between Liberty Power 

Holdings, LLC and Boston Energy Trading and Marketing LLC, dated 

July 6, 2020; and 

vi. Intercreditor Agreement by and among Boston Energy Trading and 

Marketing LLC, David Hernandez, Martin Halpern, Shell Energy North 

America (US), L.P., Liberty Power Holdings LLC, and the other Grantors 

party hereto dated as of July 6, 2020 (the “Intercreditor Agreement”). 

 

(collectively, the “Pre-Petition Agreements”). 

F. Pursuant to the Supply and Services Agreement, BETM provides, among others, 

the following services to the Debtor: 

i. Provision of credit support to the ISOs and other key service providers 

or regulators for the operation of an REP like the Debtor; 

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10498971-1110575845-4 

ii. Hedges, either as financial instruments (e.g., a fixed/float swap) or as 

physical trades (e.g., selling power to the REP in the wholesale market); 

iii. Working capital in the form of payment provisions that, among other 

things, bridges the gap between when the REP collects invoices from 

its customers and when the REP must pay the ISO, and allow certain 

amounts above in excess of available funds to be deferred to following 

month; 

iv. Access to third-party sellers in the wholesale markets and or financial 

hedge provider through intermediation trades; and 

v. Supports the REP through various operational services, like risk 

management and scheduling. 

G. BETM also provides a unique form of credit support to the ISOs in order to support 

the Debtor’s activities. In essence, BETM provided a guaranty to each ISO for payments due to 

the ISOs in respect of electricity that the Debtor’s customers consumed. In addition, BETM 

provided collateral to the ISOs in order to secure the Debtor’s payment obligation prior to any 

settlement cycle (this financial support is known as “ISO Credit Support”). 

H. As of the Petition Date, the Debtor was justly indebted to BETM in the amount of 

$121,031,960.56, plus interest, costs and attorneys’ fees for advances and other financial 

accommodations extended by BETM to or for the benefit of the Debtor (the “Pre-Petition 

Indebtedness”). The Pre-Petition Indebtedness is due to BETM without deduction, setoff, defense 

or counterclaim. 

I. To secure their obligations under the Pre-Petition Agreements including repayment 

of the Pre-Petition Indebtedness (collectively, the “Pre-Petition Obligations”), pursuant to the 

Pledge Agreement the Debtor and the Pledgors granted BETM a first priority security interest in 

substantially all of their tangible and intangible personal property (the “Pre-Petition Collateral”). 

J. On July 6, 2020, BETM protected its first-priority security interest by filing a UCCCase 21-13797-SMG Doc 149 Filed 05/26/21 Page 11 of 37
7 

10498971-1110575845-4 

1 Financing Statement with the Delaware Secretary of State (U.C.C. Initial Filing No: 2020 

4653442). As acknowledged in the Intercreditor Agreement, BETM holds a properly perfected, 

duly enforceable, first-priority lien on substantially all of the assets of the Debtor and its 

subsidiaries, and a perfected first-priority lien on all of the equity interests of the Debtor (the “PrePetition Liens”). 

K. Subject in all respects to paragraph 10 below, the Debtor and the Debtor’s estate on 

its own behalf and on behalf of its past, present, and future predecessors, successors, heirs, 

subsidiaries and assigns hereby unconditionally, irrevocably, and fully forever releases, remises, 

acquits, relinquishes, irrevocably waives, and discharges the DIP Lender, and each of its affiliates, 

former, current, or future officers, employees, directors, agents, representatives, owners, members, 

partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, 

attorneys, affiliates, assigns, and predecessors in interest, each in their capacity as such 

(collectively, the "Representatives"), of and from any and all claims, demands, liabilities, 

responsibilities, disputes, remedies, causes of action, indebtedness and obligations, rights, 

assertions, allegations, actions, suits, controversies, proceedings, losses, damages, injuries, 

attorneys' fees, costs, expenses, or judgments of every type, whether known, unknown, asserted, 

unasserted, suspected, unsuspected, accrued, unaccrued, fixed, contingent, pending, or threatened, 

including, without limitation, all legal and equitable theories of recovery, arising under common 

law, statute, or regulation or by contract, of every nature and description that exist on the date 

hereof with respect to or relating to the DIP Obligations (as defined below), the Post-Petition Liens 

(as defined below), the DIP Documents, the Pre-Petition Agreement or the Pre-Petition Liens 

including, without limitation, (i) any and all claims and causes of action arising under the 

Bankruptcy Code, (iii) any and all claims arising from or relating to the Pre-Petition Agreements 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 12 of 37
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10498971-1110575845-4 

or any transaction or occurrence prior to the Petition Date and (iii) any and all claims and causes 

of action regarding the validity, priority, extent, enforceability, perfection, or avoidability of the 

liens or claims of the DIP Lender. 

L. The Debtor’s foregoing acknowledgments, stipulations, waivers, and releases 

(solely with respect to the releases, once they become effective) shall be binding on the Debtor 

and its respective representatives, successors, and assigns, and on the Debtor’s estate and all 

entities and persons, including any creditors of the Debtor, and each of its respective 

representatives, successors, and assigns, including, without limitation, but subject in all respects 

to paragraph 10, any trustee or other representative appointed in the Case, or upon conversion to 

chapter 7, whether such trustee or representative is appointed under chapter 11 or chapter 7 of the 

Bankruptcy Code. 

II. FINDINGS REGARDING THE DIP FINANCING. 

M. This Court has core jurisdiction over the Case, the Motion, and the parties and 

property affected hereby pursuant to 28 U.S.C. §§ 157(b) and 1334. Venue is proper before this 

Court pursuant to 28 U.S.C. §§ 1408 and 1409. The statutory predicates for the relief sought herein 

are sections 105, 361, 362, 363, 364, and 507 of the Bankruptcy Code and Bankruptcy Rules 2002, 

4001, and 6004 and the Local Bankruptcy Rules. 

N. Notice of the Motion, the relief requested therein and the relief sought at the Interim 

Hearing was served by the Debtor by either electronic mail, facsimile or overnight mail to: (a) the 

Office of the United States Trustee, 51 SW First Avenue, Room 1204 Miami, FL 33130; (b) the 

creditors known to the Debtor holding the twenty largest unsecured claims against the Debtor’s 

estate; (c) Eversheds Sutherland (US) LLP, 700 6th Street, NW, Suite 700, Washington, DC 20001-

3980, Attn: David T. McIndoe, Esq., attorneys for the DIP Lender; (d) Eversheds Sutherland (US) 

LLP, 101 Fannin Street, Suite 3700, Houston, TX 77002-6760, Attn: Mark D. Sherrill, Esq., 

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10498971-1110575845-4 

attorneys to the DIP Lender; (e) Berger Singerman LLP, 1450 Brickell Avenue, Suite 1900, 

Miami, FL 33131, Attn: Jordi Guso, Esq., attorneys for the DIP Lender, (f) any creditor known to 

the Debtor asserting a pre-petition lien and/or security interest in any of the Debtor’s assets, and 

(g) all parties who have filed a request for notice in this Case. Under the circumstances, the notice 

given by the Debtor of the Motion, the relief requested therein and the Final Hearing, including by 

and through the Interim HearingOrder, constitutes appropriate, due and sufficient notice thereof, 

complies with Bankruptcy Rules 4001(b) and (c) and the Local Bankruptcy Rules, and no further 

notice of the relief sought at the InterimFinal Hearing and the relief granted herein is necessary or 

required. 

O. As evidenced by the Certificate of Service dated May 10, 2021 [ECF No. 87], the 

Debtor served the Interim Order via CM/ECF, electronic mail or U.S. Mail on the parties listed 

therein. 

O.P. Good and sufficient cause has been shown for the entry of this InterimFinal Order. 

P.Q. The Debtor has an immediate need to obtain use Cash Collateral to preserve its 

assets, including its valuable contracts, and to pay its ordinary and necessary operating expenses, 

including to its vendors and employees. The Debtor also requires access to the DIP Financing in 

order to continue to support its retail energy business. The DIP Financing, which similar to the 

supply and financing arrangements in place between the Debtor and DIP Lender prior to the 

commencement of this Case (“Pre-Petition Supply Facility”), will provide the Debtor: 

 (i) credit support to each ISO that operate the organized markets in which the 

Debtor is active and other key service providers or regulators for the operation of a retail 

energy provider similar to the Debtor; 

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10498971-1110575845-4 

 (ii) hedges, either as financial instruments (e.g., a fixed/float swap) or as 

physical trades (e.g., selling power to the Debtor in the wholesale market); 

 (iii) working capital in the form of payment provisions that, among other things, 

bridges the gap between when the Debtor collects payment from its customers and when the Debtor 

must pay the applicable ISO, and allow certain amounts in excess of available funds to be deferred 

to following month; 

 (iv) access to third-party sellers in the wholesale markets and/or financial hedge 

providers through intermediation trades; and 

 (v) various operational services, like risk management and scheduling. 

Q.R. Access to such DIP Financing is necessary and vital to ensure that the Debtor has 

sufficient working capital and liquidity to preserve and maintain the value of its estate and to 

facilitate a sale of the Debtor’s assets. 

R.S. The Debtor has proffered that under the facts and circumstances of this Case it is 

unable to obtain financing on more favorable terms from sources other than the DIP Lender 

pursuant to, and for the purposes set forth in, the DIP Documents and is unable to obtain adequate 

unsecured credit allowable under section 503(b)(1) of the Bankruptcy Code as an administrative 

expense. The Debtor is also unable to obtain secured credit allowable under sections 364(c)(1), 

364(c)(2) and 364(c)(3) of the Bankruptcy Code for the purposes set forth in the DIP Documents 

without the Debtor granting the DIP Liens (as defined in paragraph 85 below) and the 

Superpriority Claims (as defined in paragraph 74 below) under the terms and conditions set forth 

in this InterimFinal Order and the DIP Documents. 

S.T. The Debtor has proffered that the terms of the DIP Documents pursuant to this 

InterimFinal Order are fair and reasonable, reflect the Debtor’s exercise of prudent business 

Case 21-13797-SMG Doc 149 Filed 05/26/21 Page 15 of 37
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10498971-1110575845-4 

judgment consistent with its fiduciary duties and constitute reasonably equivalent value and fair 

consideration. 

T.U. The DIP Documents and the DIP Financing have been the subject of negotiations 

conducted in good faith and at arms’-length among the Debtor, the DIP Lender, and all of the 

Debtor’s obligations and indebtedness arising under or in connection with the DIP Financing, 

including, without limitation, (i) all advances made or credit support provided to the Debtor 

pursuant to the DIP Documents and (ii) all other obligations of the Debtor under the DIP 

Documents or this InterimFinal Order owing to the DIP Lender, including any obligations to 

indemnify the DIP Lender and to pay any interest, fees, expenses (collectively, the “DIP 

Obligations”), shall be deemed to have been extended by the DIP Lender and its affiliates in “good 

faith”, as such term is used in section 364(e) of the Bankruptcy Code, and in express reliance upon 

the protections set forth therein, and shall be entitled to the full protection of section 364(e) of the 

Bankruptcy Code in the event that this InterimFinal Order or any provision hereof is vacated, 

reversed or modified, on appeal or otherwise. 

U.V. The Debtor has requested immediate entry of this Interim Order pursuant to 

Bankruptcy Rules 4001(b)(2) and 4001(c)(2) and the Local Bankruptcy Rules. Absent granting 

the relief sought by this Interim Order, the Debtor’s estate will be immediately and irreparably 

harmed. Consummation of the DIP Financing in accordance with the terms of this InterimFinal

Order and the DIP Documents is therefore in the best interests of the Debtor’s estate and is 

consistent with the Debtor’s exercise of its fiduciary duties. 

Accordingly, 

IT IS FOUND, DETERMINED, ORDERED AND ADJUDGED, that: 

1. Disposition. The Motion is granted on an interim basis in accordance with the terms 

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10498971-1110575845-4 

of this InterimFinal Order. AnyThe BLT Objection and any other objections to the interim relief 

sought in the Motion with respect to the entry of this InterimFinal Order that have not been 

previously withdrawn, waived or settled, and all reservations of rights included therein, are hereby 

denied and overruled. 

2. Authorization to Use Cash Collateral. Subject to the terms and conditions of this 

InterimFinal Order, the Debtor is authorized to use Cash Collateral for the period from the Petition 

Date through the date of the Final Hearing (as defined below) for those purposes of and in the 

amounts set forth in the Budget.

3. Authorization of the DIP Financing and the DIP Documents. 

a. The Debtor is hereby authorized to execute, enter into and perform under the DIP 

Documents and to incur new indebtedness thereunder up to an aggregate amount of $440,000,000

(including interest, fees and other expenses provided for in the DIP Documents), pending entry of 

the Final Order, all of the foregoing in accordance with the terms of this InterimFinal Order and 

the other DIP Documents (collectively, the “DIP Obligations”). All of the indebtedness incurred 

by the Debtor shall be used solely for the purposes permitted under this InterimFinal Order and 

the other DIP Documents and in accordance with the Budget. 

b. In furtherance of the foregoing and without further approval of this Court, the 

Debtor is authorized and directed to perform all acts and to execute and deliver all instruments and 

documents (including, without limitation, the execution or recordation of security agreements, 

mortgages and financing statements) and to pay all reasonable fees and expenses that the DIP 

Lender incurs in connection with the preparation, execution and delivery of the DIP Documents, 

or the Debtor’s performance of its obligations under the DIP Documents and the DIP Financing, 

including without limitation: 

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(i) the execution, delivery and performance of the DIP Documents; 

(ii) the execution, delivery and performance of one or more 

amendments, waivers, consents or other modifications to and under the DIP Documents, in each 

case in such form as the Debtor and the DIP Lender may agree, and no further approval of this 

Court shall be required for amendments, waivers, consents or other modifications to and under the 

DIP Documents (and any fees paid in connection therewith) unless such amendments, waivers, 

consents or other modifications are material; and 

(iii) the performance of all other acts required under or in connection 

with the DIP Documents. 

c. Upon execution and delivery of the DIP Documents, the DIP Documents shall 

constitute valid, binding and non-avoidable obligations of the Debtor, enforceable against the 

Debtor in accordance with the terms of this InterimFinal Order and the DIP Documents. No 

obligation, payment, transfer or grant of security under the DIP Documents or this InterimFinal

Order shall be stayed, restrained, voidable, avoidable or recoverable under the Bankruptcy Code 

or under any applicable non-bankruptcy law (including without limitation, under sections 502(d), 

548 or 549 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer 

Act, Uniform Fraudulent Conveyance Act or similar statute or common law), or subject to any 

defense, reduction, setoff, recoupment or counterclaim. 

d. In connection with the execution and delivery of the DIP Documents and to support 

future obligations of the Debtor to third parties, the Debtor is authorized and directed to facilitate 

the modification of any outstanding credit support provided under the Pre-Petition Supply Facility 

with credit support to third parties provided under the DIP Documents, with such changes as set 

forth in the DIP Term Sheet, including the DIP Lender providing the Borrower with collateral to 

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deliver to an ISO in lieu of the DIP Lender acting as a party directly responsible to an ISO in 

respect of the obligations of the Debtor. 

4. Superpriority Claims. Subject to the Carve-Out (as defined in paragraph 12 below),

pursuant to section 364(c)(1) of the Bankruptcy Code, all of the DIP Obligations shall constitute 

allowed senior administrative expense claims (the “Superpriority Claims”) against the Debtor with 

priority over any and all administrative expenses and all other claims against the Debtor, now 

existing or hereafter arising, of any kind whatsoever, including without limitation, all 

administrative expenses of the kind specified in sections 503(b) and 507(b) of the Bankruptcy 

Code, and over any and all administrative expenses or other claims arising under sections 105, 

326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546, 726, 1113 or 1114 of the Bankruptcy 

Code, whether or not such expenses or claims may become secured by a judgment lien or other 

non-consensual lien, levy or attachment, which allowed claims shall for purposes of section 

1129(a)(9)(A) of the Bankruptcy Code be considered administrative expenses allowed under 

section 503(b) of the Bankruptcy Code, and which Superpriority Claims shall be payable from and 

have recourse to all prepetition and post-petition property of the Debtor and all proceeds thereof. 

5. DIP Liens; Deposit Accounts. As security for the DIP Obligations, and subject to 

the Carve-Out (as defined in paragraph 12 below), effective and perfected upon the date of this 

InterimFinal Order and without the necessity of the execution by the Debtor (or recordation or 

other filing) of security agreements, control agreements, pledge agreements, financing statements, 

mortgages or other similar documents, or the possession or control by the DIP Agent of any PostPetition Collateral (as defined in this paragraph 5), the following security interests and liens are 

hereby granted by the Debtor to DIP Lender (all property identified in clauses (a), (b) and (c) below 

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being collectively referred to as the “Post-Petition Collateral”4, and all such liens and security 

interests granted to the DIP Lender, pursuant to this InterimFinal Order and the DIP Documents, 

the “DIP Liens”): 

a. Priming Liens on Pre-Petition Collateral. Pursuant to section 364(d)(1) of the 

Bankruptcy Code, the DIP Lender is hereby granted a valid, binding, continuing, enforceable, 

fully-perfected first priority senior lien (pari passu with the Pre-Petition Liens) on, and security 

interest in, all tangible and intangible prepetition and post-petition property of the Debtor, whether 

existing on or as of the Petition Date or thereafter acquired, including without limitation, any and 

all unencumbered cash, accounts receivable, other rights to payment, inventory, general 

intangibles, contracts, documents, instruments, securities, chattel paper, owned real estate, real 

property leaseholds, fixtures, machinery, equipment, deposit accounts, patents, copyrights, 

trademarks, tradenames, rights under license agreements and other intellectual property, wherever 

located, and the proceeds, products, rents and profits thereof, whether arising from section 552(b) 

of the Bankruptcy Code or otherwise, of all of the foregoing. Notwithstanding anything in this 

InterimFinal Order to the contrary, the DIP Liens shall not attach to any claims and causes of action 

arising under state or federal law under chapter 5 of the Bankruptcy Code or any proceeds thereof 

(the “Avoidance Actions”). 

b. Liens Senior To Certain Other Liens. The DIP Liens shall not be (i) subject or 

subordinate to (A) any lien or security interest that is avoided and preserved for the benefit of the 

Debtor and its estate under section 551 of the Bankruptcy Code, (B) any liens or security interests 

arising after the Petition Date, including without limitation, any liens or security interests granted 

in favor of any federal, state, municipal or other governmental unit, commission, board or court 

 

4

 The Pre-Petition Collateral and the Post-Petition Collateral are, collectively, the “Collateral.” 

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for any liability of the Debtor, or (ii) subordinated to or made pari passu with any other lien or 

security interest under section 363 or 364 of the Bankruptcy Code or otherwise. 

c. Deposit Accounts. With the exception of the Debtor’s Money Market Account 

(x3760), each of the bank accounts maintained by the Debtor (collectively, the “Bank Accounts”) 

is subject to an account control agreement (each, a "Control Agreement") among the Debtor, JP 

Morgan, and DIP Lender. Notwithstanding the commencement of this Case and Section 552 of 

the Bankruptcy Code, each Control Agreement shall remain in full force and effect and DIP 

Lender’s perfected security interest shall continue to attach to the Bank Accounts and the proceeds 

thereof, including as to funds deposited in the Bank Accounts from and after the Petition Date. 

6. Adequate Protection for Use of Cash Collateral. As adequate protection for the 

use of its Cash Collateral, DIP Lender is hereby granted a security interest in and lien upon all the 

personal property of the Debtor, whether owned or existing as of the Petition Date or thereafter 

acquired or arising, and all proceeds, products, rents, revenues, or profits of such property, 

excluding, however, the Avoidance Actions (the “Replacement Liens”). The Replacement Liens 

shall be junior and subordinate to the DIP Liens and the Carve Out. The Replacement Liens shall 

be deemed attached, perfected, and enforceable against the Debtor and all other persons, including 

without limitation, any subsequently appointed trustee for the Debtor, without the filing of any 

financing statements or other compliance with non-bankruptcy law. 

7. Milestones. The DIP Lender is hereby entitled to performance of the following 

milestones by the dates set forth below (or such later date as may be agreed by the DIP Lender) 

(the “Milestones”), and for the avoidance of doubt, the failure of the Debtor to comply with any 

of the Milestones shall constitute an immediate Event of Default under the DIP Documents and 

this InterimFinal Order and permit DIP Lender to exercise the rights and remedies provided for in 

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this InterimFinal Order and the DIP Documents: 

a. On or before May 18, 2021, the Debtor shall have filed a motion seeking approval 

of sale and bidding procedures for the sale of substantially all the Debtor’s assets 

(the “Bidding Procedures Motion”) in the Bankruptcy Court; 

b. On or before June 4, 2021, the Bankruptcy Court shall have entered an order 

granting the Bidding Procedures Motion, in form reasonably acceptable to the DIP 

Lender (the “Bidding Procedures Order”); 

c. No later than fifteen (15) calendar days after entry of the Bidding Procedures 

Order, Debtor shall deliver a draft confidential information memorandum (the 

“CIM”) to DIP Lender along with a proposed draft purchase agreement for the 

sale; 

d. No later than forty-five (45) calendar days after entry of the Bidding Procedures 

Order, Debtor shall deliver a final version of the CIM and a final version of the 

draft purchase agreement (together with the related disclosure schedules) to 

prospective purchasers, including those prospective purchasers that Debtor 

believes in good faith could submit a binding bid, and such final version of the 

CIM, together with a list of such prospective purchasers, shall be delivered to DIP 

Lender; 

e. On or before August 1619, 2021, the Bid Deadline (as defined in the Bidding 

Procedures Order) shall have occurred; 

f. On or before August 1924, 2021, the Debtor, in consultation with the DIP Lender, 

will select a bid that it believes represents the highest and best offer for the sale 

received by the Bid Deadline; 

g. On or before August 2025, 2021, the Debtor shall have commenced the Auction 

(as defined in the Bidding Procedures Order), if necessary; 

h. On or before August 2631, 2021, a hearing shall have occurred in the Bankruptcy 

Court to consider approval of the sale contemplated by the Bidding Procedures 

Order; 

i. On or before August 31September 3, 2021, the Bankruptcy Court shall have entered 

the Sale Order (as defined in the Bidding Procedures Order). 

8. Event of Default. The occurrence of any of the following events shall constitute an 

“Event of Default” under this InterimFinal Order: 

a. the granting of relief from the automatic stay to foreclose a lien or the taking of 

control or possession of, or the exercise of any right of setoff with respect to, any 

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Post-Petition Collateral; 

b. the failure to obtain the entry of the Final Order with terms satisfactory to the DIP 

Lender on or before June 1, 2021, unless agreed to otherwise in writing by the DIP 

Lender in its sole discretion; 

c. the failure to achieve or perform any of the Milestones set forth in paragraph 7 of 

this InterimFinal Order; 

d. the entry by the Bankruptcy Court or another court of competent jurisdiction of an 

order disallowing any of the DIP Obligations or determining that any provision of 

the DIP Documents is not enforceable according to its terms; 

e. the entry by the Bankruptcy Court of an order determining that the DIP Liens are 

invalid or do not have the priority and extent provided in the DIP Documents, 

thisthe Interim Order or thethis Final Order; 

f. the expiration or termination of the Debtor’s exclusive right to file and solicit 

acceptances of a plan of reorganization under section 1121 of the Bankruptcy Code 

without the solicitation and filing of acceptances thereof; and

g. the occurrence of an Event of Default under the DIP Documents (and the expiration 

of any period of cure, grace or notice, if any, set forth in such agreement relating to 

such default). 

9. Remedies after Event of Default. Immediately upon the occurrence of an Event of 

Default or the Maturity Date (as defined in the DIP Documents), the DIP Lender’s commitment to 

lend shall terminate and the DIP Lender shall be under no further obligation to provide credit under 

the DIP Documents. Upon the occurrence and during the continuance of an Event of Default, and 

the giving of five (5) business days’ prior written notice to the Debtor (with a copy to counsel to 

the United States Trustee), the DIP Lender may seek relief from the automatic stay on an 

emergency basis and obtain authority to exercise all other rights and remedies against the 

Collateral. In any hearing regarding any exercise of rights or remedies, the only issue that may be 

raised by any party in opposition thereto shall be whether, in fact, an Event of Default or Maturity 

Date has occurred and is continuing. Subject only to and effective upon entry of the Final Order, 

the Debtor shall waive any right to seek relief, including without limitation, under section 105 of 

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the Bankruptcy Code, to the extent such relief would in any way impair or restrict the rights and 

remedies of the DIP Lender set forth in this InterimFinal Order or the DIP Documents. In no event 

shall the DIP Lender be subject to the equitable doctrine of “marshaling” or any similar doctrine 

with respect to the Collateral. The DIP Lender’s delay or failure to exercise rights and remedies 

under the DIP Documents or this InterimFinal Order shall not constitute a waiver of the DIP 

Lender’s rights hereunder, thereunder or otherwise, unless any such waiver is pursuant to a written 

instrument executed in accordance with the terms of the DIP Term Sheet. 

10. Effect of Stipulations on Third Parties. The Debtor’s stipulations, admissions, 

releases, and agreements contained in this InterimFinal Order, shall be binding upon the Debtor 

and any successor thereto (including any chapter 7 or chapter 11 trustee or examiner appointed or 

elected for the Debtor) in all circumstances and for all purposes. The Debtor’s stipulations, 

admissions, releases, and agreements contained in this InterimFinal Order, shall be binding upon 

all other parties in interest, including any statutory or non-statutory committees appointed or 

formed in the Case (including any official committee appointed in the Case) and any other person 

or entity acting or seeking to act on behalf of the Debtor’s estate, including any chapter 7 or chapter 

11 trustee or examiner appointed or elected for the Debtor, in all circumstances and for all purposes 

unless: (a) such committee, or any other party in interest, with requisite standing (subject in all 

respects to any agreement or applicable law that may limit or affect such entity’s right or ability to 

do so), has timely filed an adversary proceeding or contested matter by no later than 60 calendar 

days after entry of thethis Final Order, (A) objecting to or challenging the amount, validity, 

perfection, enforceability, priority or extent of any of the Pre-Petition Obligations, or (B) otherwise 

asserting or prosecuting any action for preferences, fraudulent transfers or conveyances, other 

avoidance power claims or any other claims, counterclaims or causes of action, objections, contests 

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or defenses (collectively, the “Challenges”) against the DIP Lender in connection with matters 

related to the Pre-Petition Agreements; and (b) there is a final non-appealable order in favor of the 

plaintiff sustaining any such Challenge in any such timely filed adversary proceeding or contested 

matter; provided, however, that any pleadings filed in connection with any Challenge shall set 

forth with specificity the basis for such challenge or claim and any challenges or claims not so 

specified before the expiration of the Challenge Period shall be deemed forever, waived, released 

and barred. If (a) no such Challenge is timely and properly filed during the Challenge Period, or 

(b) the Court does not rule in favor of the plaintiff in any such proceeding then: (i) the Debtor’s 

stipulations, admissions, releases, and agreements contained in this InterimFinal Order, shall be 

binding on all parties in interest; (ii) the obligations of the Debtor under the Pre-Petition 

Agreements, shall constitute allowed claims (without the need to file a proof of claim) not subject 

to defense, claim, counterclaim, recharacterization, subordination, offset or avoidance, for all 

purposes in the Case, and any subsequent chapter 7 case; (iii) the Pre-Petition Liens on the PrePetition Collateral shall be deemed to have been, as of the Petition Date, legal, valid, binding, 

perfected, security interests and liens on the Pre-Petition Collateral, not subject to 

recharacterization, subordination, avoidance or other defense; and (iv) the Pre-Petition 

Indebtedness and the Pre-Petition Liens on the Pre-Petition Collateral shall not be subject to any 

other or further claim or challenge by any statutory committee appointed or formed in the Case or 

any other party in interest acting or seeking to act on behalf of the Debtor’s estate, including any 

successor thereto (including any chapter 7 trustee or chapter 11 trustee or examiner appointed or 

elected for the Debtor) and any defenses, claims, causes of action, counterclaims and offsets by 

any non-statutory committee appointed or formed in the Case, or any other party acting or seeking 

to act on behalf of the Debtor’s estate, including any successor thereto (including any chapter 7 

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trustee or chapter 11 trustee or examiner appointed or elected for the Debtor), whether arising 

under the Bankruptcy Code or otherwise, against the DIP Lender, its officers, directors, managers, 

parent, subsidiaries, affiliates, professionals and representatives arising out of or relating to any of 

the Pre-Petition Agreements, the commencement or administration of the Case or any transactions 

between the Debtor and BETM shall be deemed forever waived, released and barred. Nothing in 

this InterimFinal Order vests or confers on any Person (as defined in the Bankruptcy Code), 

including any non-statutory committee appointed or formed in the Case, standing or authority to 

pursue any claim or cause of action belonging to the Debtor or its estate. 

11. Limitation on Charging Expenses Against Collateral. Subject only to and effective 

upon entry of the Final Order, notwithstandingNotwithstanding anything to the contrary contained 

herein, no costs or expenses of administration of the Case or any future proceeding that may result 

therefrom, including liquidation in bankruptcy or other proceedings under the Bankruptcy Code, 

shall be charged against or recovered from the Collateral pursuant to section 506(c) of the 

Bankruptcy Code or any similar principle of law, without the prior written consent of the DIP 

Lender, and no such consent shall be implied from any other action, inaction, or acquiescence by 

the DIP Lender, and nothing contained in this InterimFinal Order shall be deemed to be a consent 

by the DIP Lender to any charge, lien, assessment or claim against the Collateral under section 

506(c) of the Bankruptcy Code or otherwise. 

12. Carve-Out. The Superpriority Claims, the Replacement Liens and DIP Liens 

granted to the DIP Lender pursuant to this InterimFinal Order shall be junior and subordinate to 

(a) all fees required to paid by the Debtor to the Office of the United States Trustee pursuant to 28 

U.S.C. § 1930(a), (b) all fees due the Clerk of the Court, (c) with respect to the Debtor’s 

professionals, the allowed fees and disbursements as may be awarded to such professionals from 

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time to time pursuant to Bankruptcy Code § 330, in the aggregate amount set forth in the Budget 

(including monies on deposit in the Professional Expense Escrow (as defined below)) and only to 

the extent such fees were incurred prior to an Event of Default but not yet paid, (d) up to $100,000 

in fees and expenses incurred by the Debtor's professionals following an Event of Default, and (e) 

amounts to pay post-petition “trust fund” obligations (collectively, the “Carve-Out”). The DIP 

Liens shall be junior and subordinate to the liens, if any, of (a) the Broward County Tax Collector 

on account of ad valorem taxes assessed against the tangible personal property of the Debtor.; and 

(b) ISO New England on the collateral posted by or for the benefit of the Debtor.

13. Professional Expense Escrow. As part of the Carve-Out, the Debtor is authorized 

to use (a) proceeds of the DIP Financing in accordance with the Budget, and (b) proceeds of the 

Post-petition Collateral up to the amount set forth in the Carve-Out (as defined in paragraph 12 of 

this Final Order), to pay such compensation and expense reimbursements of professional persons 

retained by the Debtor, including Berkeley Research Group, LLC and Mr. Bob Butler (the "Debtor 

Professionals") as may be awarded by the Court pursuant to Section 328, 330 or 331 of the 

Bankruptcy Code (the "Professional Expenses"). For so long as an Event of Default does not exist, 

the DIP Lender shall permit the Debtor's use of proceeds of the DIP Financing and Post-Petition 

Collateral, and allocated for the fees and expenses of the Debtor Professionals; said funds shall be 

advanced or transferred to and segregated and escrowed in an escrow account maintained by 

counsel for the Debtor for payment to the Debtor Professionals pursuant to the Budget, in 

accordance with the procedures which may be approved by the Court for the payment of 

professionals (the "Professional Expense Escrow"). Funds deposited in the Professional Expense 

Escrow shall be available and may be used by the Debtor solely for the payment of the Professional 

Expenses. Neither the Debtor nor any creditor of the Debtor (except for the DIP Lender) shall 

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have a claim or interest in the funds on deposit in the Professional Expense Escrow, other than the 

entitlement of the Debtor or a successor trustee to receive any balance remaining in the 

Professional Expense Escrow after payment in full of (a) the Professional Expenses that have 

accrued and that are allowed by final order of the Court, (b) the Pre-Petition Obligations and (c) 

the DIP Obligations. 

13.14. Fees & Expenses. The Debtor is authorized and directed to pay any and all 

reasonable and documented fees and expenses of the DIP Lender in connection with the DIP 

Documents, including the fees and expenses of attorneys, advisors, accountants and other 

consultants, whether incurred before, on or after the Petition Date, including, but not limited to 

fees and expenses incurred in connection with (a) the preparation, negotiation and execution of 

this InterimFinal DIP Order, and the DIP Documents; (b) the creation, perfection or protection of 

the DIP Liens and the Replacement Lien (including all search, filing and recording fees); (c) the 

on-going administration of the DIP Documents (including the preparation, negotiation and 

execution of any amendments, consents, waivers, assignments, restatements or supplements 

thereto) and the Case (including the filing of any proofs of claim); (d) the enforcement of the DIP 

Documents or this InterimFinal Order; and (e) any legal proceeding relating to or arising out of 

the DIP Facility or the other transactions contemplated by the DIP Documents or this Interim 

DIPFinal Order including this Case and any credit bid of the DIP Obligations and/or the PrePetition Obligations. Payment of all such professional fees and expenses shall not be subject to 

allowance by the Bankruptcy Court or to the U.S. Trustee guidelines; provided that requests for 

payment of such professional fees and expenses shall be provided to the Debtor, the U.S. Trustee 

and any statutory committee appointed in the Case on a 10 days' notice. 

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14.15. Payments Free and Clear. Any and all payments or proceeds remitted to the DIP 

Lender pursuant to the provisions of this InterimFinal Order or any subsequent order of this Court 

shall be received free and clear of any claim, charge, assessment or other liability, including 

without limitation, any such claim or charge arising out of or based on, directly or indirectly, 

sections 506(c) (whether asserted or assessed by, through or on behalf of the Debtor) or 552(b) of 

the Bankruptcy Code. DIP Lender shall apply the proceeds of the Pre-Petition Collateral to reduce 

the Pre-Petition Obligations and shall apply proceeds of the Post-Petition Collateral to reduce the 

DIP Obligations. 

15.16. Perfection of DIP Liens and Adequate Protection Liens. 

a. The DIP Lender is hereby authorized, but not required, to file or record financing 

statements, trademark filings, copyright filings, mortgages, notices of lien or similar instruments 

in any jurisdiction, or take possession of or control over, or take any other action in order to validate 

and perfect the liens and security interests granted to them hereunder. Whether or not the DIP 

Lender shall, in its sole discretion, choose to file such financing statements, trademark filings, 

copyright filings, mortgages, notices of lien or similar instruments, or take possession of or control 

over, or otherwise confirm perfection of the liens and security interests granted to it hereunder, 

such liens and security interests shall be deemed valid, perfected, allowed, enforceable, 

unavoidable and not subject to challenge, dispute or subordination at the time and on the date of 

entry of this InterimFinal Order. The Debtor shall execute and deliver to the DIP Lender, all such 

agreements, financing statements, instruments and other documents as the DIP Lender may 

reasonably request to more fully evidence, confirm, validate, perfect, preserve and enforce the DIP 

Liens. All such documents will be deemed to have been recorded and filed as of the Petition Date. 

b. A certified copy of this InterimFinal Order may, in the discretion of the DIP Lender, 

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be filed with or recorded in filing or recording offices in addition to or in lieu of such financing 

statements, mortgages, notices of lien or similar instruments, and all filing offices are hereby 

authorized to accept such certified copy of this InterimFinal Order for filing and recording. 

c. Any provision of any lease or other license, contract or other agreement that 

requires the consent or approval of one or more landlords or other parties or requires the payment 

of any fees or obligations to any governmental entity, in order for the Debtor to pledge, grant, sell, 

assign or otherwise transfer any such interest or the proceeds thereof or other Collateral, is hereby 

and shall be deemed to be inconsistent with the provisions of the Bankruptcy Code. Any such 

provision shall have no force and effect with respect to the transactions granting the DIP Lender a 

security interest in and lien on such interest or the proceeds of any assignment and/or sale thereof 

by the Borrower in favor of the DIP Lender in accordance with the terms of the DIP Documents 

and this InterimFinal Order. 

16.17. Preservation of Rights Granted Under the Order. 

a. Subject to the Carve-Out (as defined in paragraph 12 above), no claim or lien 

having a priority senior to or pari passu with those granted by this InterimFinal Order or the DIP 

Documents to the DIP Lender shall be granted or allowed while any portion of the DIP Obligations 

(or any refinancing thereof) remain outstanding and the DIP Documents have not been terminated, 

and the DIP Liens shall not be subject or junior to any lien or security interest that is avoided and 

preserved for the benefit of the Debtor’s estate under section 551 of the Bankruptcy Code or 

subordinated to or made pari passu with any other lien or security interest, whether under section 

364(d) of the Bankruptcy Code or otherwise. 

b. Unless all DIP Obligations shall have been indefeasibly paid in full in cash and the 

Commitment shall have been terminated (i) the Debtor shall not seek, and it shall constitute an 

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immediate Event of Default under the DIP Documents if the Debtor seeks, or if there is entered, 

any modification of this InterimFinal Order without the prior written consent of the DIP Lender, 

and no such consent shall be implied by any other action, inaction or acquiescence by the DIP 

Lender or (ii) it shall constitute an immediate Event of Default under the DIP Documents if any 

order is entered converting or dismissing the Case. If an order dismissing the Case under section 

1112 of the Bankruptcy Code or otherwise is at any time entered, such order shall provide (in 

accordance with sections 105 and 349 of the Bankruptcy Code) that (w) the Superpriority Claims, 

the Replacement Liens and the DIP Liens shall continue in full force and effect and shall maintain 

their priorities as provided in this InterimFinal Order until all DIP Obligations shall have been 

indefeasibly paid in full in cash, and the Commitment shall have been terminated, (x) such 

Superpriority Claims, the Replacement Liens and DIP Liens shall, notwithstanding such dismissal, 

remain binding on all parties in interest, (y) the other rights granted by this InterimFinal Order 

shall not be affected and (z) this Court shall retain jurisdiction, notwithstanding such dismissal, for 

the purposes of enforcing the claims, liens and security interests referred to in this paragraph and 

otherwise in this InterimFinal Order. 

c. If any or all of the provisions of this InterimFinal Order are hereafter reversed, 

modified, vacated or stayed, such reversal, stay, modification or vacation shall not affect (i) the 

validity, priority or enforceability of any DIP Obligations incurred prior to the actual receipt of 

written notice by the DIP Lender of the effective date of such reversal, stay, modification or 

vacation, as applicable, or (ii) the validity, priority or enforceability of the DIP Liens. 

Notwithstanding any such reversal, stay, modification or vacation, any DIP Obligations incurred 

by the Debtor to the DIP Lender prior to the actual receipt of written notice by the DIP Lender of 

the effective date of such reversal, stay, modification or vacation shall be governed in all respects 

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by the original provisions of this InterimFinal Order, and the DIP Lender shall be entitled to all of 

the rights, remedies, privileges and benefits granted in section 364(e) of the Bankruptcy Code, this 

InterimFinal Order and pursuant to the DIP Documents with respect to all DIP Obligations. 

d. Except as expressly provided in this InterimFinal Order or in the DIP Documents, 

the DIP Liens, the Replacement Liens, the Superpriority Claims, and all other rights and remedies 

of the DIP Lender granted by the provisions of this InterimFinal Order and the DIP Documents 

shall survive, and shall not be modified, impaired or discharged by (i) the entry of an order 

converting the Case to a case under chapter 7 of the Bankruptcy Code, dismissing the Case, or 

(ii) the entry of an order confirming a plan of reorganization in the Case and, pursuant to section 

1141(d)(4) of the Bankruptcy Code, the Debtor has waived any discharge as to any remaining DIP 

Obligations. The terms and provisions of this InterimFinal Order and the DIP Documents shall 

continue in the Case, or in any superseding chapter 7 case under the Bankruptcy Code, and the 

DIP Liens, the DIP Obligations, the Replacement Liens, the Superpriority Claims, and all other 

rights and remedies of the DIP Lender granted by the provisions of this InterimFinal Order and the 

DIP Documents shall continue in full force and effect until all DIP Obligations are indefeasibly 

paid in full in cash, and the Commitment has been terminated. 

17.18. Limitation on Use of DIP Financing Proceeds, Cash Collateral and Collateral. 

The Debtor shall use the proceeds of the DIP Financing and the Cash Collateral solely as provided 

in this InterimFinal Order and in the DIP Documents (including, but not limited to, the Budget). 

Notwithstanding anything herein or in any other order of this Court to the contrary, no credit 

extensions under the DIP Documents, Cash Collateral or Carve-Out may be used (a) for 

professional fees and expenses incurred for any litigation or threatened litigation (whether by 

contested matter, adversary proceeding or otherwise) against the DIP Lender or for the purpose of 

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objecting to or challenging the validity, perfection, enforceability, extent or priority of any claim, 

lien or security interest held or asserted by the DIP Lender or asserting any defense, claim, cause 

of action, counterclaim, or offset with respect to the DIP Obligations or the security interests in or 

liens on the Collateral or against the DIP Lender or its agents, affiliates, subsidiaries, directors, 

officers, representatives, attorneys or advisors, (b) to prevent, hinder or otherwise delay the DIP 

Lender’s assertion, enforcement or realization on the Collateral in accordance with the DIP 

Documents or this InterimFinal Order, (c) to seek to modify any of the rights granted to the DIP 

Lender under this InterimFinal Order or under the DIP Documents, without the DIP Lender’s prior 

written consent, which may be given or withheld by the DIP Lender in the exercise of its sole 

discretion, or (d) pay any amount on account of any claims arising prior to the Petition Date unless 

such payments are (i) approved by an order of this Court and (ii) permitted under the DIP 

Documents (including, but not limited to, the Budget). 

18.19. Subsequent Financing. So long as any portion of the DIP Obligations remains in 

effect, absent the prior written consent of DIP Lender (which consent may be withheld in DIP 

Lender’s sole discretion) the Debtor shall not seek (a) an order dismissing or converting the Case, 

or (b) any order which authorizes under any section of the Bankruptcy Code the granting of any 

lien or security interest in any Post-Petition Collateral in favor of any party other than the DIP 

Lender or the obtaining of any credit or the incurring of any indebtedness that is entitled to 

superpriority administrative status superior to that granted to the DIP Lender pursuant to this 

Order. 

19.20. Plan of Reorganization or Other Subsequent Orders. The validity, priority and 

extent of the liens and security interests granted by the Debtor to DIP Lender pursuant to this 

InterimFinal Order or the DIP Documents shall not be modified, altered, or affected in any manner, 

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absent prior written consent of DIP Lender, by (i) any plan of reorganization in this case, whether 

filed by the Debtor or a party in interest; (ii) any order confirming such a plan for the Debtor; (iii) 

by any other financing or extensions of credit, whether made pursuant to section 364 of the 

Bankruptcy Code or otherwise; or (iv) any other order of this Court. This InterimFinal Order (i) 

does not waive, modify or release any obligation of the Debtor to the ISOs, including under any 

tariff, or (ii) alter, impair or prime the validity or priority of any properly perfected liens of any 

ISO in existence as of the Petition Date. 

20.21. Termination Date. The DIP Obligations shall mature and become due and payable 

on the earliest of: (i) the effective date of a chapter 11 plan, (ii) the closing of sale of all or a 

substantial part of the Debtor’s assets, (iii) December 1, 2021, or (iv) the occurrence and 

declaration of an Event of Default by the DIP Lender (the “Maturity Date”). 

21.22. Exculpation. Nothing in this InterimFinal Order, the DIP Documents, or any other 

documents related to these transactions shall in any way be construed or interpreted to impose or 

allow the imposition upon the DIP Lender any liability for any claims arising from the prepetition 

or post-petition activities of the Debtor in the operation of its business or maintenance of assets, 

or in connection with its restructuring and sale efforts. So long as the DIP Lender complies with 

its obligations under the DIP Documents and its obligations, if any, under applicable law 

(including the Bankruptcy Code), (a) the DIP Lender shall not, in any way or manner, be liable or 

responsible for (i) the safekeeping of the Collateral, (ii) any loss or damage thereto occurring or 

arising in any manner or fashion from any cause, (iii) any diminution in the value thereof, or (iv) 

any act or default of any carrier, servicer, bailee, custodian, forwarding agency or other person, 

and (b) all risk of loss, damage or destruction of the Collateral shall be borne by the Debtor. 

22.23. Order Governs. In the event of any inconsistency between the provisions of this 

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InterimFinal Order and the DIP Documents, the provisions of this InterimFinal Order shall govern. 

23.24. Retention of Jurisdiction. The Bankruptcy Court shall retain jurisdiction to enforce 

the provisions of this InterimFinal Order, and this retention of jurisdiction shall survive the 

confirmation and consummation of any chapter 11 plan for any one or more of the Debtor 

notwithstanding the terms or provisions of any such chapter 11 plan or any order confirming any 

such chapter 11 plan. 

24.25. Binding Effect; Successors and Assigns. The DIP Documents and the provisions 

of this InterimFinal Order, including all findings herein, shall be binding upon all parties in interest 

in the Case, including without limitation, the DIP Lender, the Debtor and its respective successors 

and assigns (including any chapter 7 or chapter 11 trustee hereinafter appointed or elected for the 

estate of the Debtor, an examiner appointed pursuant to section 1104 of the Bankruptcy Code, or 

any other fiduciary appointed as a legal representative of any of the Debtor or with respect to the 

property of the estate of any of the Debtor) and shall inure to the benefit of the DIP Lender and the 

Debtor and its respective successors and assigns, provided that the DIP Lender shall have no 

obligation to extend any financing to any chapter 7 trustee, chapter 11 trustee or similar responsible 

person appointed for the estate of the Debtor. 

25.26. Credit Bid. Subject to and effective upon entry of the Final Order, and further 

subject to the the rights of holders of Existingproperly perfected and duly enforceable liens that 

are senior to the Pre-Petition Liens and the DIP Liens, the DIP Lender shall have the right to credit 

bid all or any portion of the outstanding DIP Obligations and the Pre-Petition Obligations in any 

sale of the Collateral under or pursuant to (i) section 363 of the Bankruptcy Code, (ii) a plan of 

reorganization or plan of liquidation under section 1129 of the Bankruptcy Code, or (iii) a sale or 

disposition by a chapter 7 trustee for anythe Debtor under section 725 of the Bankruptcy Code. 

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26.27. Effectiveness. This InterimFinal Order shall constitute findings of fact and 

conclusions of law and shall take effect and be fully enforceable effective as of the Petition Date 

immediately upon entry hereof. Notwithstanding Bankruptcy Rules 4001(a)(3), 6004(h), 6006(d), 

7062, or 9014 of the Bankruptcy Rules or any other Bankruptcy Rule, or Rule 62(a) of the Federal 

Rules of Civil Procedure, this InterimFinal Order shall be immediately effective and enforceable 

upon its entry and there shall be no stay of execution or effectiveness of this InterimFinal Order. 

27.28. Headings. Section headings used herein are for convenience only and are not to 

affect the construction of or to be taken into consideration in interpreting this InterimFinal Order. 

28. Final Hearing. The Final Hearing will be held by this Court on May 24, 2021 at 11:00 a.m. (prevailing 

Eastern time). The Debtor shall promptly transmit copies of this Interim Order (which shall constitute adequate 

notice of the Final Hearing) to the parties having been given notice of the Interim Hearing, to any party that has filed 

a request for notices with this Court and to the Committee. Any party in interest objecting to the relief sought at the 

Final Hearing shall file a written objection, which shall be served upon (a) Genovese Joblove & Battista, PA, 100 

SE 2nd Street, Suite 4400, Miami, FL 33131, Attn: Paul J. Battista, Esq., attorneys for the Debtor; (b) Genovese 

Joblove & Battista, PA, 200 East Broward Blvd., Suite 1110, Fort Lauderdale, FL 33301, Attn: Mariaelena GayoGuitian, Esq., attorneys for the Debtor; (c) Eversheds Sutherland (US) LLP, 700 6th Street, NW, Suite 700, 

Washington, DC 20001-3980, Attn: David T. McIndoe, Esq., attorneys for the DIP Lender; (d) Eversheds 

Sutherland (US) LLP, 101 Fannin Street, Suite 3700, Houston, TX 77002-6760, Attn: Mark D. Sherrill, Esq., 

attorneys to the DIP Lender; (e) Berger Singerman LLP, 1450 Brickell Avenue, Suite 1900, Miami, FL 33131, Attn: 

Jordi Guso, Esq., attorneys for the DIP Lender; (f) the Office of the United States Trustee, 51 SW First Avenue, 

Room 1204 Miami, FL 33130, and (g) all parties who have filed a request for notice in this Case, and shall be filed 

with the Clerk of the United States Bankruptcy Court, Southern District of Florida, to allow actual receipt by the 

foregoing no later than May 19, 2021 at 4:30 p.m. (prevailing Eastern time).

# # # 

Submitted by: 

Paul J. Battista, Esq. 

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10498971-1110575845-4 

Genovese Joblove & Battista, PA 

100 SE 2nd Street, Suite 4400 

Miami, FL 33131 

Tel. (305) 349-2300 

Fax (305) 349-2310 

E-mail: pbattista@gjb-law.com

(Paul J. Battista, Esq. shall serve a copy of the signed order on all interested parties and file with 

the Court a Certificate of Service conforming with Local Rule 2002-1(F).

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