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 Second Amended and Restated Management Services 

Agreement dated July 6, 2020 attached hereto as Exhibit “A”.

Respectfully Submitted,

GENOVESE JOBLOVE & BATTISTA, P.A.

Proposed Attorneys for Debtors-in-Possession

100 Southeast Second Street, Suite 4400

Miami, Florida 33131

Telephone: (305) 349-2300

Facsimile: (305) 349-2310

By: /s/ Mariaelena Gayo-Guitian

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

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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 22nd day 

of April, 2021.

SERVICE LIST

Served Via CM/ECF Notification

Scott Andron on behalf of Creditor Broward County

sandron@broward.org, swulfekuhle@broward.org

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

Office of the US Trustee

USTPRegion21.MM.ECF@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

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EXHIBIT A

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SECOND AMENDED AND RESTATED

MANAGEMENT SERVICES AGREEMENT

This Second Amended and Restated Management Services Agreement is made as of July 

6, 2020 (“Agreement”), by and among Liberty Power Corp, L.L.C., a Delaware limited liability 

company (“Parent”) and Liberty Power Holdings LLC, a Delaware limited liability company 

(“Holdings”). Parent and Holdings are sometimes referred to in this Agreement individually as a 

“Party” and collectively as the “Parties”.

RECITALS

WHEREAS, the Parties entered into that certain Management Services Agreement, dated 

as of August 8, 2006, as amended by First Amendment to Management Services Agreement, 

dated January 27, 2009, and as further amended by Amended and Restated Management 

Services Agreement, dated January 27, 2014 (collectively, the “Original MSA”);

WHEREAS, Holdings is a special purpose, wholly-owned, downstream subsidiary of 

Parent;

WHEREAS, Holdings is the holder of 100% of the membership interests in each of LPT, 

LLC, a Delaware limited liability company (authorized to do business in Texas as LPT SP, LLC) 

(“LPT”), Liberty Power Maryland LLC, a Delaware limited liability company (“LPMD”) and 

Liberty Power District of Columbia LLC, a Delaware limited liability company (“LPDC”) (the 

“OpCos”);

WHEREAS, Holdings is a party to (i) that certain Supply and Services Agreement, dated 

as of July 6, 2020 (the “Supply Agreement”), by and among Boston Energy Trading and Marketing 

LLC (“BETM”) and Holdings and (ii) that certain Pledge and Security Agreement, dated as of July 

6, 2020 (the “Security Agreement”), by and among BETM, Holdings, Liberty Power Super 

Holdings LLC, LPT, LPMD and LPDC;

WHEREAS, each of the OpCos are engaged in the business of marketing and selling 

electricity and related energy products to commercial and/or industrial customers in the States of 

Texas and Maryland, and in the District of Columbia, respectively, as retail energy providers; and

WHEREAS, the Parties now desire to amend and restate the Original MSA in its entirety, 

upon the terms and conditions set forth in this Agreement and to obtain from Parent certain 

management and administrative services, including without limitation those services identified on 

the attached Schedule A (collectively, the “Management Services”), which Holdings intends to 

provide in turn to each of the OpCos pursuant to a separate Subsidiary Services Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual covenants, 

representations and warranties set forth in this Agreement, the Parties do hereby state and agree as 

follows:

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AGREEMENT

1. Provision of Management Services. On and subject to the terms, conditions, 

covenants and agreements herein, Parent hereby agrees to provide the Management Services to 

Holdings during the Term of this Agreement.

2. Term.

2.1 Term. The term of this Agreement shall be perpetual (the “Term”).

2.2 Termination for Breach. If, during the Term of this Agreement, Holdings 

fails to observe any covenant or condition of this Agreement, including without limitation failing 

to make a payment as directed by Parent, and such failure continues for fifteen (15) business days 

after written notice of such failure is received by Holdings, then Parent may terminate this 

Agreement by providing written notice to Holdings and BETM in accordance with Section 2.3. If 

during the Term of this Agreement, Parent fails to observe any covenant or condition of this 

Agreement and such failure continues for fifteen (15) business days after written notice of such 

failure is received by Parent, then Holdings may terminate this Agreement by providing written 

notice to Parent and BETM in accordance with Section 2.3.

2.3 Notice of Termination. Any notice of termination provided by Parent to 

Holdings or BETM, or provided by Holdings to Parent or BETM, pursuant to Section 2.2 hereof 

must be in writing and must state the date upon which the Agreement will terminate, which date 

must be not less than 45 days after the written notice is provided by the terminating Party.

3. Payments for Services.

3.1 Amount. Holdings shall pay to Parent on a monthly basis in arrears an 

amount equal to the actual expenses incurred by Parent in providing the Management Services 

during the prior month. Except as set forth in Section 3.3 below, each payment shall be paid within 

five (5) business days after Parent requests the payment from Holdings and provides sufficient 

detail as may be reasonably requested by Holdings to determine the basis for the requested 

payment; provided that Parent and Holdings acknowledge that such payments by Holdings to 

Parent shall be made as permitted and in accordance with the priority set forth in Section 6.3 of 

the Supply Agreement.

3.2 Records. Parent shall at all times during the Term of this Agreement keep 

true and accurate records for each calendar month of all costs and expenses related to the 

Management Services provided to Holdings in such form and manner that all amounts payable to 

Parent under Section 3.1 may be readily and accurately determined.

3.3 Advanced Funding of Obligations. As and when necessary, Parent may 

request in writing a payment (a “Funding Request”) from Holdings specifying the amount of such 

payment and providing sufficient detail as may be reasonably requested by Holdings to determine 

the basis for such payment. The amount of each Funding Request shall equal (a) 100% of the 

reasonable estimate of the amount that Parent is required to make on account of the Management 

Services to be provided to Holdings, as determined in a commercially reasonable manner by 

Parent, or (b) such other amount as is agreed upon by Parent and Holdings. Each Funding Request 

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shall be paid to Parent on the business day following the day on which the Funding Request was 

made.

3.4 Reconciliation. No later than thirty (30) days after the end of the Term of 

this Agreement, Parent and Holdings shall reconcile the payments made by Holdings with the 

actual expenses incurred by Parent for the Management Services received by Holdings during the 

Term of this Agreement. Any amounts owed by Holdings to Parent for Management Services 

provided by Parent, or any amounts owed by Parent to Holdings as a result of an over-payment, 

shall be paid within five (5) business days after the conclusion of such reconciliation or at such 

other time as may be agreed to by Parent and Holdings.

4. Parent’s Representations, Warranties and Covenants. As an inducement to 

Holdings to enter into this Agreement, Parent covenants that Parent will comply in all material 

respects with all applicable federal, state and local laws, rules, regulations and ordinances 

applicable to Management Services to be provided pursuant to this Agreement.

5. Holdings’ Representations, Warranties and Covenants. As an inducement to Parent 

to enter into this Agreement, Holdings covenants that it will comply in all material respects with 

all applicable federal, state and local laws, rules, regulations and ordinances applicable to the 

Management Services provided by Parent to Holdings.

6. Miscellaneous.

6.1 Applicable Law Construction. This Agreement shall be governed by and 

construed in accordance with the laws of the State of New York applicable to a contract executed 

and performed in such State, without giving effect to the conflicts of laws principles thereof, and, 

to the extent applicable, the federal laws of the United States of America. The Parties acknowledge 

and agree that they have been represented by counsel and that each of the Parties has participated 

in the drafting of this Agreement. Accordingly, it is the intention and agreement of the Parties that 

the language, terms and conditions of this Agreement are not to be construed in any way against 

or in favor of any Party hereto by reason of the responsibilities in connection with the preparation 

of this Agreement.

6.2 Rights And Duties On Termination. Upon termination of this Agreement, 

each Party shall in good faith assist and cooperate with the other Party to facilitate the transfer or 

performance of the services to Holdings or to any third party designated by Holdings. Parent agrees 

to provide Holdings (or its designee) originals or copies of all books and records pertaining to 

Holdings and the services received by Holdings up to and including the date of such termination 

of this Agreement; provided, that any such designee has agreed to enter into a confidentiality 

agreement with respect to such books and records acceptable to both Holdings and Parent.

6.3 Remedies Cumulative. Except as herein expressly provided, the remedies 

provided herein are cumulative and do not preclude the assertion by any Party of any other rights 

it may have or the seeking of any other remedies against the other Party.

6.4 Amendment and Restatement. This Agreement amends and restates the 

Original MSA in its entirety, effective as of the date of this Agreement. Upon execution and 

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delivery of this Agreement by the Parties, the Original MSA shall be null and void and of no further 

effect.

6.5 Amendments. At any time this Agreement may be amended or 

supplemented by an instrument containing such additional agreements or provisions as the Parties 

determine to be necessary, desirable or expedient to further the purposes of this Agreement, to 

modify the provisions hereof or for such other reasons as the Parties may determine. Any such 

instrument must be in writing and must be signed by Parent and Holdings.

6.6 Entire Agreement. This Agreement sets forth the entire agreement and 

understanding of the Parties with respect to the transactions contemplated hereby and supersede 

any prior discussions, agreements and understandings relating to the subject matter hereof.

6.7 Assignment. Neither Parent nor Holdings may assign, transfer or otherwise 

convey their respective interests in this Agreement, or any part thereof, during the Term without 

the other Party’s prior written consent.

6.8 Binding Effect. This Agreement shall bind and inure to the benefit of the 

Parties and their respective successors and permitted assigns.

6.9 Waiver. No failure on the part of any Party hereto to exercise, and no delay 

in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any 

single or partial exercise of any right, power or remedy by any such Party preclude any other or 

further exercise thereof or the exercise of any other right, power or remedy. No express waiver or 

assent by any Party hereto to any breach of or default in any term or condition of this Agreement 

shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any 

other term or condition hereof.

6.10 Sections, Headings. Unless otherwise stated, all reference herein to sections 

are to articles and sections of this Agreement. The article and section headings contained in this 

Agreement are for convenient reference only, and shall not in any way affect the meaning or 

interpretation hereof.

6.11 Severability. All rights and restrictions contained in this Agreement may 

be exercised and shall be applicable and binding only to the extent that they do not violate any 

applicable laws and are intended to be limited to the extent necessary so that they will not render 

this Agreement illegal, invalid or unenforceable. If any term of this Agreement shall be held to be 

illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the 

Parties that the remaining terms hereof shall constitute their agreement with respect to the subject 

matter hereof, and all of such remaining terms shall remain in full force and effect.

6.12 Counterparts. This Agreement may be executed in two or more 

counterparts, each of which shall be deemed an original but all of which shall be considered one 

and the same instrument.

6.13 Non-Petition. Notwithstanding any other provision of this Agreement, the 

Parent covenants and agrees that it shall not, prior to the date which is one year and one day (or, if 

longer, any applicable preference period plus one day) after the payment in full of the obligations 

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under the Supply Agreement and Security Agreement, institute against, or join any other person 

in instituting against, Holdings any bankruptcy, reorganization, arrangement, insolvency or 

liquidation proceeding, or any similar proceeding under any federal or state bankruptcy or similar 

law; provided, that nothing in this provision shall preclude, or be deemed to stop, the Parent from 

taking any action prior to the expiration of the aforementioned one year and one day period in (i) 

any case or proceeding voluntarily filed or commenced by Holdings or (ii) any involuntary 

insolvency proceeding filed or commenced against Holdings by a person other than the Parent. 

The provisions of this Section 6.13 shall survive the termination of this Agreement.

[SIGNATURE PAGE FOLLOWS]

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SCHEDULE A

MANAGEMENT SERVICES

1. Sales. Dedicated National/Key account sales personnel as well as external, third 

party sales channels are functions performed by Parent for the benefit of all subsidiaries.

2. Marketing. Promotional campaigns to include print and other media. Participation 

in trade shows, industry events and forums. Design, production and development of collateral sales 

materials such as brochures and Master Customer Contracts.

3. Energy Operations. Development and analysis of market data, customer load 

profiles, products and risk analysis. Risk pricing of customer products.

4. Supplier Relations. Development of energy hedge supplier and financial 

counterparty relationships. Execution of hedging strategy commensurate with energy operations 

pricing and products.

5. Regulatory Affairs. Cultivate and maintain regulatory relationships with Public 

Service Commissions, Independent System Operators, national and state bodies to ensure 

regulatory compliance and legislative monitoring.

6. Customer Care Operations. Manage higher echelon customer care calls. Ensure 

business continuity. Perform customer portfolio analysis and monitoring to include retention.

7. Information Technology. Evaluation, purchasing and installation of companywide operational systems, business unit level software and hardware. On-going systems support 

and training.

8. Finance and Accounting. Financial accounting, budgeting, payments to/from 

customers, outside service providers and vendors. Financial forecasting, modeling and business 

unit projections.

9. Human Resources. Personnel screening, hiring, training, evaluation and, when 

required, termination. Liaison between managed services that are outsourced and Liberty 

employees.

10. Other. Administrative and any other shared services such as project or general 

consultants, administrative assistants, travel, lodging, event planning, etc.

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