UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov

In re: Chapter 11 Cases 

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

LPT, LLC, Case No. 21-15537-SMG 

LIBERTY POWER MARYLAND, LLC, Case No. 21-15539-SMG 

LIBERTY POWER DISTRICT OF COLUMBIA, LLC Case No. 21-15540-SMG 

Debtors. (Jointly administered 21-13797-SMG) 

/ 

JOINT CHAPTER 11 PLAN OF LIQUIDATION PROPOSED BY 

LIBERTY POWER HOLDINGS, LLC, LPT, LLC, LIBERTY POWER 

MARYLAND, LLC AND LIBERTY POWER DISTRICT OF COLUMBIA, LLC

VENABLE, LLP

Paul J. Battista, Esq. 

Florida Bar No. 884162 

Mariaelena Gayo-Guitian, Esq. 

Florida Bar No. 813818 

Heather L. Harmon, Esq. 

Florida Bar No. 013192 

100 SE 2nd Street, 44th Floor 

Miami, FL 33131 

Telephone: (305) 349-2300 

Facsimile: (305) 349-2310 

Counsel for the Debtors

Dated: April 14, 2023 

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TABLE OF CONTENTS

INTRODUCTION ......................................................................................................................... 1 

ARTICLE I. DEFINITIONS AND RULES OF INTERPRETATION ................................ 2 

A. Definitions.............................................................................................................. 2 

B. Rules of Interpretation ......................................................................................... 16 

C. Exhibits ................................................................................................................ 17

D Computation of Time ........................................................................................... 17 

E Governing Law .................................................................................................... 17 

ARTICLE II. ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE CLAIMS, 

PRIORITY TAX CLAIMS, STATUTORY FEES AND BETM DIP 

FINANCING CLAIMS ................................................................................. 17 

A. Administrative Claims ......................................................................................... 17 

B. Professional Fee Claims ....................................................................................... 18 

C. Priority Tax Claims .............................................................................................. 18 

D. Statutory Fees....................................................................................................... 19 

E. BETM’s DIP Financing Claims ........................................................................... 19 

ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY 

INTERESTS ................................................................................................. 19 

A. Summary of Classification ................................................................................... 19 

B. Class Categories ................................................................................................... 20 

ARTICLE IV TREATMENT OF CLAIMS AND EQUITY INTERESTS .......................... 21 

 A. Treatment of Claims and Equity Interests ............................................................ 21 

 1. Class 1 – Allowed Other Priority Claims ....................................................... 21 

 2. Class 2 – Allowed Secured Claim of The Hanover Insurance Company ....... 22 

 3. Class 3 – Allowed Secured Claim of Eckert Seamans Cherin and Mellot, LLC 

(Eckert Seamans) ................................................................................................. 22 

 4. Class 4 – Allowed Prepetition Secured Claim of BETM ............................... 23 

 5. Class 5 – Allowed Secured Claim of Shell Energy North America (US), L.P. 

(Shell Energy) ...................................................................................................... 23 

 6. Class 6 – Allowed Secured Claim of the Mezzanine Lender(s) ..................... 23 

 7. Class 7 – Allowed General Unsecured Claims ............................................... 24 

 8. Class 8 – Allowed Subordinated Unsecured Claim of the Office of the Illinois 

Attorney General (Holdings only) ....................................................................... 25 

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 9. Class 9 – Allowed Equity Interests ................................................................. 25 

ARTICLE V. ACCEPTANCE, REJECTION, AMENDMENT AND REVOCATION OR 

WITHDRAWAL OF THE PLAN ................................................................. 25 

A. Classes Entitled to Vote ....................................................................................... 25 

B. Acceptance by Class of Claims and Equity Interests ........................................... 26 

C. Nonconsensual Confirmation............................................................................... 26 

D. Revocation or Withdrawal; No Admissions ........................................................ 26 

E. Amendment of Plan and/or the Plan Documents ................................................. 27 

F. Special Provision Governing Unimpaired Claims ............................................... 27 

ARTICLE VI. MEANS FOR IMPLEMENTATION OF THE PLAN .................................. 27 

A. Joint Chapter 11 Plan and Vesting of Property .................................................... 27 

B. Source of Funding for Plan Distributions ........................................................... 27 

C. The BETM Plan Settlement Pursuant to Bankruptcy Rule 9019 ......................... 27 

D. Distributions ......................................................................................................... 30 

E. Liquidation and Dissolution of Debtors ............................................................... 30 

F. Preservation and Abandonment of Records ......................................................... 30 

G. Deadline for Filing Application for Professional Fee Claims ............................. 30 

H. Disallowance of Claims Without Further Order of the Court .............................. 30 

I. Post-Effective Date Report and Fees ................................................................... 31 

K. Preservation of Causes of Action ......................................................................... 31 

L Section 1146 Exemption from Certain Taxes and Fees ....................................... 32 

M. Closing of the Chapter 11 Cases .......................................................................... 32 

ARTICLE VII. PROVISIONS GOVERNING DISTRIBUTIONS ........................................ 32 

A. Manner of Cash Payments Under the Plan .......................................................... 32 

B. Delivery of Distributions ..................................................................................... 33 

C. Undeliverable and Unclaimed Distributions ........................................................ 33 

D. Compliance with Tax Requirements ................................................................... 33 

E. No Payments of Fractional Dollars ...................................................................... 34 

F. Interest on Claims ................................................................................................ 34 

G. No Distribution in Excess of Allowed Amount of Claim .................................... 34 

H. Setoffs and Recoupment ...................................................................................... 34 

I. De Minimis Distributions .................................................................................... 35 

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J. Distributions in Satisfaction; Allocation .............................................................. 35 

K. No Distribution on Late-Filed Claims ................................................................. 35 

ARTICLE VIII. DISPUTED CLAIMS .................................................................................... 35 

A. Resolution of Disputed Claims ............................................................................ 35 

B. Objection Deadline .............................................................................................. 35 

C. Estimation of Claims............................................................................................ 36 

D. No Distributions Pending Allowance; Disputed Claims Reserve........................ 36 

ARTICLE IX. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED 

LEASES ......................................................................................................... 36 

A. General Provisions ............................................................................................... 36 

B. Notice of Deemed Rejection ................................................................................ 37 

ARTICLE X. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE ...................... 37 

A. Conditions Precedent to the Effective Date ......................................................... 36 

B. Waiver of Conditions Precedent .......................................................................... 37 

ARTICLE XI EFFECT OF CONFIRMATION; INJUNCTION, EXCULPATION AND 

RELATED PROVISIONS ............................................................................. 38 

A. Settlement, Compromise, and Release of Claims and Equity Interests ............... 38 

B. Plan Injunction ..................................................................................................... 38 

C. All Distributions Received in Full and Final Satisfaction ................................... 38 

D. No Discharge of Debtors ..................................................................................... 39 

E. No Modification of Res Judicata Effect ............................................................... 39 

F. Exculpation .......................................................................................................... 39 

G. Limitations on Exculpation .................................................................................. 39 

ARTICLE XII. RETENTION OF JURISDICTION BY BANKRUPTCY COURT .............. 40 

ARTICLE XIII. MISCELLANEOUS PROVISIONS .............................................................. 41 

A. Modification of Plan ............................................................................................ 41 

B. Revocation of Plan ............................................................................................... 41 

C. Binding Effect ...................................................................................................... 41 

D. Successors and Assigns ........................................................................................ 42 

E. Governing Law .................................................................................................... 42 

F. Severability .......................................................................................................... 42 

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G. Regulatory Approval ............................................................................................ 42 

H. Reservation of Rights ........................................................................................... 42 

I. Section 1125(E) Good Faith Compliance ............................................................ 42 

J. Further Assurance ................................................................................................ 42 

K. Service of Documents .......................................................................................... 43 

L. Filing of Additional Documents .......................................................................... 43 

M. No Stay of Confirmation Order ........................................................................... 43 

N. Bankruptcy Rule 9019 Request; Impact .............................................................. 43 

ARTICLE XIV CONCLUSION .............................................................................................. 43 

 

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INTRODUCTION 

LIBERTY POWER HOLDINGS, LLC (“Holdings”), LPT, LLC (“LPT”), LIBERTY 

POWER MARYLAND, LLC (“Liberty MD”) and LIBERTY POWER DISTRICT OF 

COLUMBIA, LLC (“Liberty DC”) (collectively, the “Debtors”), as debtors-in-possession in the 

above-captioned cases, hereby propose this Joint Chapter 11 Plan of Liquidation under 

Bankruptcy Code section 1121 (including all Plan Documents and other attachments hereto, as 

any of the same may be amended from time to time, all of which are incorporated herein by 

reference and are a part of, the “Plan”), pursuant to the provisions of chapter 11 of the Bankruptcy 

Code (as defined in Article I herein) (the “Defined Terms”). 

Although proposed jointly for administrative purposes, the Plan shall apply as a separate 

Plan for each of the Debtors and the classification of Claims and Equity Interests set forth herein 

shall apply separately to each of the Debtors. The Debtors’ bankruptcy Estates have not been 

substantively consolidated. 

In summary, and subject to the more specific details provided herein, the Plan provides for 

(i) the Distribution of the Available Cash generated from the liquidation of the Debtors’ Assets 

during the Chapter 11 Cases and the settlement of certain Causes of Action, including pursuant to 

the D&O Settlement Agreement and the Kaufman Settlement Agreement, and/or (ii) a reserve of 

a portion of the Available Cash for the prosecution of certain Causes of Action pursuant to the 

BETM Plan Settlement, all pursuant to the priorities mandated by the Bankruptcy Code as outlined 

in the Liquidation Analysis attached as Exhibit 3 to the Disclosure Statement. 

For a discussion of the Debtors’ history, business, operations, assets and liabilities, for a 

summary and analysis of the Plan, settlement and preservation of Causes of Actions, liquidation 

analysis, tax implications and alternatives to the Plan, reference should be made to the Joint 

Disclosure Statement for Joint Chapter 11 Plan of Reorganization, dated as of April 14, 2023, as 

such disclosure statement may be amended, modified or supplemented (the “Disclosure 

Statement”). 

THE ONLY CLASS OF CLAIMS OR EQUITY INTERESTS ENTITLED TO VOTE 

ON THE PLAN IS THE CLASS 4 ALLOWED SECURED CLAIM OF BOSTON ENERGY 

TRADING AND MARKETING, LLC. ALL OTHER CLASSES OF CLAIMS AND 

EQUITY INTERESTS UNDER THE PLAN ARE EITHER UNIMPAIRED AND 

THEREFORE ARE CONCLUSIVELY PRESUMED TO HAVE VOTED TO ACCEPT 

THE PLAN UNDER SECTION 1126(F) OF THE BANKRUPTCY CODE, OR WILL NOT 

RECEIVE OR RETAIN ANY PROPERTY UNDER THE PLAN ON ACCOUNT OF SUCH 

CLAIMS OR EQUITY INTERESTS, AND THEREFORE ARE DEEMED TO HAVE 

REJECTED THE PLAN UNDER SECTION 1126(G) OF THE BANKRUPTCY CODE. 

FOR AVOIDANCE OF DOUBT, THE DEBTORS DO NOT INTEND TO SOLICIT VOTES 

FROM ANY CLASS OF CLAIMS OR EQUITY INTERESTS OTHER THAN FROM 

BOSTON ENERGY TRADING AND MARKETING, LLC ON ITS CLASS 4 ALLOWED 

SECURED CLAIM. 

SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET FORTH 

IN SECTION 1127 OF THE BANKRUPTCY CODE, BANKRUPTCY RULE 3018 AND IN 

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THIS PLAN, THE DEBTORS RESERVE THE RIGHT TO ALTER, AMEND, MODIFY, 

REVOKE OR WITHDRAW THE PLAN PRIOR TO ITS SUBSTANTIAL 

CONSUMMATION. 

ARTICLE I 

DEFINITIONS AND RULES OF INTERPRETATION 

A. Definitions 

The following terms, when used in this Plan, or any subsequent amendments or 

modifications thereof, have the respective meanings hereinafter set forth and shall be equally 

applicable to the singular and plural of terms defined. 

1. “Adequate Protection Order” shall mean the Order Granting Debtors’ Motion for 

Entry of Order Approving Stipulation With Boston Energy Trading and Marketing, LLC (I) 

Authorizing Continued Use of Cash Collateral, (II) Establishing Adequate Protection Obligation, 

and (III) Granting Adequate Protection In Connection Therewith and Related Relief entered by 

the Bankruptcy Court on October 18, 2022 [ECF No. 801] granting, among other relief, approval 

of the Cash Collateral Stipulation. 

2. “Administrative Claim” means a Claim, other than the DIP Financing Claim or a 

Professional Fee Claim, filed against one of more of the Debtors’ Estates prior to the applicable 

Administrative Claims Bar Date and allowed by order of the Bankruptcy Court, and entitled to 

priority under Bankruptcy Code section 503(b), 507(a)(2), or 507(b), including, without limitation: 

(i) the actual and necessary costs and expenses incurred after the Petition Date of preserving any 

Debtor’s Estate and of operating the business of any Debtor; and (ii) any payment to be made 

under this Plan to cure a default on an executory contract or unexpired lease that is assumed 

pursuant to Section 365 of the Bankruptcy Code. Any fees or charges assessed against the Debtors’ 

Estates under section 1930 of chapter 123 of title 28 of the United States Code are excluded from 

the definition of Administrative Claim and shall be paid in accordance with Article II.D of this 

Plan. Professional Fee Claims are excluded from the definition of Administrative Claim and shall 

be paid in accordance with Article II.B of this Plan. Notwithstanding anything to the contrary 

herein, the filing of an Administrative Claim shall not be required in order to receive payment for 

any tax liability described in sections 503(b)(1)(B) and (C) in accordance with section 

503(b)(1)(D) of the Bankruptcy Code. 

 

3. “Administrative Claims Bar Date” shall mean the First Administrative Claims Bar 

Date and the Second Administrative Claims Bar Date, which are the dates established by Final 

Order of the Bankruptcy Court as the last date to request payment of Administrative Claims, other 

than with respect to (a) Claims of Professionals or other Persons requesting compensation or 

reimbursement of expenses pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the 

Bankruptcy Code for services rendered on or before the Effective Date (including any 

compensation requested by any professional or any other Person for making a substantial 

contribution in the Chapter 11 Case), and (b) liabilities incurred by any Debtor other than in the 

ordinary course of business after the Administrative Claims Bar Date but before the Effective Date. 

 

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4. “Affiliate” has the meaning assigned to such term in Bankruptcy Code section 

101(2). 

 

5. “Agreed Senior Claims” shall have the meaning set forth in Article II(E) below. 

 

6. “Allowed” means, with respect to a Claim against or Equity Interest in the Debtors, 

(i) proof of which was originally filed within the applicable period of limitation fixed by the 

Bankruptcy Court in accordance with Rule 3003(c)(3) of the Bankruptcy Rules and any Final 

Order, (ii) if no Proof of Claim or Equity Interest has been timely filed, which has been or hereafter 

is listed by the Debtors in their Schedules as liquidated in an amount and not Disputed or 

contingent, as to which no objection to the allowance thereof has been interposed within the 

applicable period of limitation fixed by this Plan, the Bankruptcy Code, the Bankruptcy Rules, a 

Final Order, or Order of the Bankruptcy Court, but only to the extent applicable, or as to which an 

objection has been interposed and such Claim or Equity Interest has been allowed in whole or in 

part by a Final Order, or (iii) a Claim or Equity Interest that is allowed by Final Order; provided, 

however, that (a) Claims allowed solely for the purpose of voting to accept or reject the Plan 

pursuant to an order of the Bankruptcy Court shall not be considered “Allowed Claims” hereunder 

unless otherwise specified herein or by order of the Bankruptcy Court, (b) “Allowed Claim” does 

not include interest, penalties, or late charges arising from or relating to the period from and after 

the Petition Date, and (c) “Allowed Claim” does not include any Claim subject to disallowance 

under Bankruptcy Code section 502(d). 

 

7. “Assets” means all property of the Estates, including, without limitation, all 

property and other interests identified in Bankruptcy Code section 541(a) wherever located and 

whether acquired prior to or after the Petition Date, including Cash, furniture, fixtures, equipment, 

contracts, intellectual property, Causes of Action, together with the proceeds and products, 

replacements, and accessions thereof, including, without limitation, the post-petition Collateral. 

 

8. “Asset Purchase Agreement” shall mean that certain Asset Purchase Agreement 

dated August 20, 2021, between the Debtors and NRG Energy, Inc., a fully executed copy of which 

is attached to Debtors’ Expedited Motion (I) To Approve Designation of Stalking Horse Bidder, 

(II) To Approve Asset Purchase Agreement and Related Bid Procedures, And (IV) For Related 

Relief [ECF No. 324] for the purchase and sale of the Debtors’ book of business, namely all of 

the Debtor’s residential customer contracts and a portion of the Debtors’ commercial customer 

contracts. 

 

9. “Assignment Case” means the Assignment for the Benefit of Creditors of Liberty 

Power Corp., LLC Case No. CACE-21-010056 pending in the Seventeenth Judicial Circuit, In and 

For Broward County, Florida. 

 

10. “Assignee” refers to Philip J. Von Kahle, as Assignee in the Assignment Case. 

 

11. “Available Cash” means the sum of (i) Cash on hand as of the Effective Date, 

including, without limitation, Cash in the Debtors’ bank accounts, the Professional Fee Escrow, 

and the retainers of Professionals, and (ii) proceeds from any prosecution and/or settlement of 

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Causes of Action, including pursuant to the D&O Settlement Agreement and the Kaufman 

Settlement Agreement. 

 

12. “Avoidance Actions” means any Cause of Action to avoid or recover a transfer of 

property or an obligation incurred by the Debtors and any recovery, subordination, or other 

remedies that may be brought by or on behalf of any Debtor and its respective Estate under the 

Bankruptcy Code or applicable non-bankruptcy law, including under sections 502, 542, 544, 545, 

547, 548, 549, 550, 551, 553(b) and 724(a) of the Bankruptcy Code. 

 

13. “Ballot” means the form distributed to the holder of an impaired Claim on which it 

is to be indicated whether such holder accepts or rejects the Plan. 

 

14. “Bankruptcy Code” means Articles 101 et seq. of title 11 of the United States Code, 

and applicable portions of titles 18 and 28 of the United States Code. 

 

15. “Bankruptcy Court” or “Court” means the United States Bankruptcy Court for the 

Southern District of Florida, Ft. Lauderdale Division. 

 

16. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, 

promulgated under 28 U.S.C. § 2075, the Local Rules of the Bankruptcy Court, and general orders 

and chambers procedures of the Bankruptcy Court, each as applicable to the Chapter 11 Cases and 

as amended from time to time. 

 

17. “Bar Date” means as applicable (i) for Holdings, June 29, 2021, which was the date 

established by the Bankruptcy Court in that certain Notice of Chapter 11 Bankruptcy Case filed in 

the Holdings Chapter 11 Case as the deadline to file proofs of Claim or, with respect to 

Governmental Units, October 18, 2021, and (ii) for each Subsidiary Debtor, August 13, 2021, 

which was the date established by the Bankruptcy Court in that certain Notice of Chapter 11 

Bankruptcy Case filed in the Chapter 11 Case for each Subsidiary Debtor as the deadline to file 

proofs of Claim or, with respect to Governmental Units, December 1, 2021. 

 

18. “BETM” means Boston Energy Trading and Marketing LLC. 

 

19. “BETM Adequate Protection Obligation” shall mean an amount equal to 

$11,515,000, which is the superpriority administrative expense claim granted to BETM pursuant 

to the Adequate Protection Order. 

 

20. “BETM Adequate Protection Superpriority Administrative Claim” shall mean that 

certain superpriority administrative claim granted to BETM under section 507(b) of the 

Bankruptcy Code with respect to the BETM Adequate Protection Obligation pursuant to the Cash 

Collateral Stipulation. 

 

21. “BETM Replacement Liens” shall mean those certain replacement Liens granted to 

BETM pursuant to the Adequate Protection Order to secure repayment of the BETM Adequate 

Protection Obligation. 

 

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22. “BETM Superpriority Administrative Claims” shall mean, in order of priority, 

BETM’s allowed superpriorty administrative expense claim on account of: (i) the DIP Financing 

Claims, and (ii) the BETM Adequate Protection Obligation. 

 

23. “BETM Plan Settlement” means that certain settlement and compromise between 

the Debtors and BETM that provides for Distributions to holders of Allowed Administrative and 

Priority Tax Claims and/or the reserve for the prosecution of Causes of Action, all pursuant to the 

terms and conditions set forth in Article VI.C below. 

24. “Bid Procedures Motion” shall mean that certain Debtor’s Expedited Motion for 

Entry of an Order (1) Approving Competitive Bidding Procedures for the Sale Of Substantially All 

of the Debtor’s Assets, (2) Scheduling Dates To Conduct Auction and Sale Hearing, (3) Approving 

the Form and Manner of Notices, (4) Approving The Sale of Substantially All of the Debtors’ 

Assets Free and Clear of All Liens, Claims, Encumbrances and Interests, (5) Approving 

Assumption and Assignment Procedures for Executory Contracts, and (6) Granting Related Relief

[ECF No. 98] as supplemented by the Debtors’ Expedited Motion for Entry of A Supplemental 

Order (I) Approving the Sale of Assets of the Subsidiary Debtors Through The Court ‘s Bid 

Procedures Order, (II) Approving Revised Form of Notices, (III) Authorizing Notice of Sale By 

Email and Publication, and (IV) Granting Related Relief [ECF No. 98] seeking an order of the 

Bankruptcy Court approving, among other things, (i) certain bidding procedures for the solicitation 

of higher and/or better offers for the sale of certain executory contracts and unexpired leases, 

including the Debtors’ contracts with its retail customers and a hearing on the approval of the sale 

thereof, (ii) certain bid protections to the Buyer, and (iii) authorizing the sale of the Contracts free 

and clear of all liens, claims, encumbrances and interests under sections 363 and 365 of the 

Bankruptcy Code to the highest and/or best bidder therefor. 

 

25. “Bid Procedures Order” means that certain Order Granting Debtor’s Expedited 

Motion for Entry of an Order (1) Approving Competitive Bidding Procedures for the Sale Of 

Substantially All of the Debtor’s Assets, (2) Scheduling Dates To Conduct Auction and Sale 

Hearing, (3) Approving the Form and Manner of Notices, (4) Approving The Sale of Substantially 

All of the Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances and Interests, (5) 

Approving Assumption and Assignment Procedures for Executory Contracts, and (6) Granting 

Related Relief [ECF No. 156] entered by the Bankruptcy Court on May 28, 2021 (i) establishing 

bidding procedures for the solicitation of higher and/or better offers for the sale of the Contracts, 

including setting an auction, if applicable, and a hearing on the approval of the sale thereof and 

(ii) approving certain bid protections to the Buyer. 

 

26. “Business Day” means any day other than a Saturday, Sunday, or a “legal holiday,” 

as such term is defined in Bankruptcy Rule 9006(a). 

 

27. “Buyer” means NRG Energy, Inc., the buyer of substantially all of the Debtors’ 

Assets. 

 

28. “Cash” means cash and cash equivalents in certified or immediately available U.S. 

funds, including but not limited to bank deposits, checks and similar items. 

 

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29. “Cash Collateral” shall have the meaning set forth in Section 363(a) of the 

Bankruptcy Code, which is subject of a Lien securing, in order of priority: (i) the DIP Financing 

Claims, (ii) the BETM Adequate Protection Obligation, and (iii) the Allowed Class 4 Secured 

Claim of BETM. 

 

30. “Cash Collateral Stipulation” means that certain Stipulation for Order (I) 

Authorizing Continued Use of Cash Collateral, And (II) Granting Adequate Protection and 

Related Relief dated September 27, 2022 by and between the Debtors and BETM [ECF No. 792]. 

 

31. “Causes of Action” means any and all claims, actions, choses in action, causes of 

action, suits, debts, dues, sums of money, accounts, rights to payment, reckonings, bonds, bills, 

specialties, controversies, variances, trespasses, damages, judgments, third-party claims, 

counterclaims and cross claims (including, but not limited to, any Avoidance Actions) whether 

known or unknown, fixed, contingent, matured, unmatured, disputed, undisputed, secured or 

unsecured and whether assertible directly or derivatively in law, equity, or otherwise, that are or 

may be pending on the Effective Date or instituted after the Effective Date against any Person 

based on law or equity, including, but not limited to, under the Bankruptcy Code, whether direct, 

indirect, derivative, or otherwise and whether asserted or unasserted, known or unknown, and 

including, without limitation, those which are: (i) property of the bankruptcy Estates under and 

pursuant to section 541 of the Bankruptcy Code; (ii) for professional malpractice, breach of 

fiduciary duty, and/or negligent supervision or retention against any and all pre-petition 

professionals, including without limitation, law firms and lawyers, that represented or provided 

legal services to the Debtors or any of them, (iii) subrogation and contribution; (iv) for turnover; 

(v) for avoidable transfers and preferences under and pursuant to sections 542 through 550 and 

553 of the Bankruptcy Code and applicable state law; (vi) for surcharge under section 506(c) of 

the Bankruptcy Code; (vii) for subordination under section 510 of the Bankruptcy Code; (viii) 

related to federal or state securities laws; (ix) direct or derivative claims or causes of action of any 

type or kind; (x) for collection on accounts, accounts receivables, loans, notes receivables or other 

rights to payment; (xi) for the right to seek a determination by the Bankruptcy Court of any tax, 

fine or penalty relating to a tax, or any addition to a tax, under section 505 of the Bankruptcy Code; 

(xii) which arise under or as a result of any section of the Bankruptcy Code; (xiii) for common law 

torts or aiding and abetting common law torts, including aiding and abetting breach of fiduciary 

duty; (xiv) which arise under or as a result of any section of the Bankruptcy Code, including 

Section 362; (xv) for lender liability against any lender of any Debtor, including but not limited to 

claims for exerting excessive or unreasonable control over the Debtor, for, charging, taking, 

reserving, collecting or receiving interest in excess of the highest lawful rate, for any breach of 

fiduciary duty, breach of any duty of fair dealing, breach of confidence, or any cause of action or 

defense based on negligence, for any “lender liability” theories, breach of funding commitment, 

undue influence, duress, economic coercion, conflict of interest, negligence, bad faith, malpractice, 

violations of the Racketeer Influenced and Corrupt Organizations Act, intentional or negligent 

infliction of mental distress, tortious interference with contractual relations, tortious interference 

with corporate governance or prospective business advantage, breach of contract, fraud, mistake, 

deceptive trade practices, libel, slander, conspiracy, fraudulent conveyance, or any claim for 

wrongfully taking any action in connection with the foregoing, (xvi) any rights of setoff, 

recoupment, contribution, reimbursement, subrogation or indemnity (as those terms are defined by 

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the non-bankruptcy law of any relevant jurisdiction), and (xvii) any other direct or indirect claim 

of any kind whatsoever, whenever and wherever arising or asserted. 

 

32. “Chapter 11 Cases” means the voluntary cases commenced under chapter 11 of the 

Bankruptcy Code by Holdings on April 20, 2021, and each of Liberty District of Columbia, Liberty 

Maryland and LPT on June 4, 2021, and jointly administered under case number 21-13797-SMG 

in the United States Bankruptcy Court for the Southern District of Florida. 

 

33. “Claim” has the meaning assigned to such term in Bankruptcy Code section 101(5). 

 

34. “Claims Agent” means Stretto, which was appointed by the Bankruptcy Court to 

receive, maintain, docket, and otherwise administer the proofs of Claim filed in the Chapter 11 

Cases. 

 

35. “Class” means a category of Claims or Equity Interests described in Article III 

herein and pursuant to section 1122(a) of the Bankruptcy Code. 

 

36. “Confirmation Date” means the date on which the Clerk of the Bankruptcy Court 

enters the Confirmation Order on the docket. 

 

37. “Confirmation Hearing” means the hearing held by the Bankruptcy Court to 

consider Confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code. 

 

38. “Confirmation Order” means the order of the Bankruptcy Court (i) confirming this 

Plan pursuant to Bankruptcy Code section 1129, as the Plan may be amended by its terms and 

consistent with applicable law, and any findings of fact and conclusions of law contained in the 

Confirmation Order or a separate document entered substantially contemporaneously therewith, 

and (ii) approving the BETM Plan Settlement, in form and substance reasonably satisfactory to 

the Debtors and BETM. 

 

39. “Creditor” means any Person holding a Claim against the Debtors or, pursuant to 

Bankruptcy Code section 102(2), against property of the Debtors, that arose or is deemed to have 

arisen on or prior to the Petition Date, including, without limitation, a Claim against the Debtors 

of the kind specified in Bankruptcy Code sections 502(g), 502(h), or 502(i). 

 

40. “Customers” means any end-use residential, commercial or industrial, or 

governmental customer of electricity of the Debtors. 

 

41. “Customer Contracts” means those certain retail electricity contracts (and the 

associated accounts) between the Debtors and the Customers. 

 

42. “Debtors” means Liberty Power Holdings LLC, LPT, LLC, Liberty Power 

Maryland, LLC and Liberty Power District of Columbia, LLC as debtors-in-possession in these 

Chapter 11 Cases. 

 

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43. “Debtors in Possession” means the Debtors in their capacity as debtors in 

possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 

44. “Deficiency Claim” means that portion of any Allowed Claim held by a Secured 

Creditor that exceeds the value of the Assets securing such Allowed Claim. 

 

45. “D&O Parties” means David Hernandez and Martin Halpern. 

 

46. “D&O Settlement Agreement” means that certain Global Settlement and Release 

Agreement, dated as of April 7, 2023, by and between the Debtors and each of the D&O Parties. 

 

47. “D&O Settlement Motion” means that certain Motion Pursuant to Section 105(a) 

of the Bankruptcy Code and Fed. R. Bankr. P. 9019 for Entry of an Order Approving the Terms of 

a Settlement by and Between the Debtors and the D&O Parties [ECF No. 871]. 

 

48. “DIP Financing/Cash Collateral Orders” shall mean those certain interim and final 

orders entered by the Bankruptcy Court as follows: 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]; and 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 to (A) Use Cash 

Collateral, and (B) Obtain Senior Secured Post-Petition Financing, and (II) Granting Related 

Relief [ECF No. 153], in each case authorizing the Debtors, as applicable, to (a) use the Cash 

Collateral of BETM, and (b) obtain secured post-petition financing from BETM up to the 

aggregate amount of $40,000,000.00, as such Orders were extended, amended or modified, 

including as extended by the Court on December 6, 2021 [ECF No. 491] and March 30, 2022 [ECF 

No. 610]. 

 

49. “DIP Lender” means Boston Energy Trading and Marketing, LLC. 

 

50. “DIP Loan Documents” means that certain Debtor-in-Possession Supply and 

Services Agreement, dated May 27, 2021 (the “Supply Agreement”), and (ii) a certain Amendment 

to ISDA Master Agreement, dated May 27, 2021 (the “ISDA Amendment”). In addition, each of 

Holdings, LPT, Liberty MD and Liberty DC4 entered into (i) a certain Debtor-in-Possession 

Pledge and Security Agreement, dated May 27, 2021 with the DIP Lender (the “Pledge 

Agreement”), (ii) that certain First Amendment to The Debtor-In-Possession Supply and Services 

Agreement (the “First Amendment”), (iii) that certain Second Amendment to The Debtor-InPossession Supply and Services Agreement (the “Second Amendment”) and (iv) that certain Third 

Amendment to the Debtor-In-Possession Supply and Services Agreement (the “Third 

Amendment”). 

 

51. “DIP Financing Claims” means the Allowed, post-petition secured financing 

claims of BETM in an amount that is not less than $5,068,566, as approved by the Court pursuant 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 13 of 49
9 

to the DIP Financing/Cash Collateral Orders, Extension Orders, DIP Loan Documents and Cash 

Collateral Stipulation. 

 

52. “Disallowed” with respect to a Claim shall mean any Claim, or any portion thereof, 

that (i) has been disallowed by Final Order or settlement; (ii) is listed on the Schedules at an amount 

of $0.00 or as contingent, disputed, or unliquidated and as to which a no Proof of Claim has been 

timely filed by the applicable Bar Date, deemed timely filed with the Bankruptcy Court pursuant 

to either the Bankruptcy Code or any Final Order of the Bankruptcy Court, or otherwise deemed 

timely filed under applicable law; or (iii) is not listed on the Schedules and as to which no Proof 

of Claim has been timely filed by the applicable Bar Date or deemed timely filed with the 

Bankruptcy Court pursuant to the Bankruptcy Code or any Final Order of the Bankruptcy Court, 

or otherwise deemed timely filed under applicable law. “Disallow” and “Disallowance” shall have 

correlative meanings. 

 

53. “Disclosure Statement” means the joint disclosure statement for the Plan and all 

exhibits annexed thereto or otherwise filed in connection therewith, approved by the Bankruptcy 

Court under Bankruptcy Code section 1125. 

 

54. “Disclosure Statement Order” shall mean that certain order of the Bankruptcy 

Court, dated April ___, 2023, [ECF No. ____] conditionally approving, among other things, the 

Disclosure Statement as containing adequate information pursuant to Section 1125 of the 

Bankruptcy Code, and setting various deadlines in connection with Confirmation of the Plan. 

 

55. “Disputed” means, with respect to a Claim against or Equity Interest in the Debtors, 

the extent to which the allowance of such Claim or Equity Interest is the subject of a timely 

objection, complaint, or request for estimation in accordance with the Plan, the Bankruptcy Code, 

the Bankruptcy Rules, or the Confirmation Order, or is otherwise not yet Allowed or is disputed 

in accordance with applicable law, which objection, request for estimation, or dispute has not been 

withdrawn with prejudice or determined by a Final Order. 

 

56. “Distribution” means the distributions of Cash to be made in accordance with the 

Plan. 

 

57. “Distribution Agent” means the Debtors or the Reorganized Debtors, as applicable, 

who will be responsible for making Distributions under the Plan. 

 

58. “Distribution Date” means the date on which a Distribution is made or to be made 

to holders of Allowed Claims under this Plan after the satisfaction or waiver as applicable of the 

conditions set forth in Article X. 

 

59. “Effective Date” means ten (10) business days after the satisfaction or waiver as 

applicable of the conditions set forth in Article X. Within three (3) Business Days of the Effective 

Date, the Debtors shall file a notice of the Effective Date with the Bankruptcy Court. 

Notwithstanding anything herein to the contrary, the Debtors reserve the right to waive the 

requirement of the Confirmation Order becoming a Final Order and shall have the right to proceed 

with the Effective Date despite the Confirmation Order not being a Final Order at such time. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 14 of 49
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60. “Entity” has the meaning assigned to such term in Bankruptcy Code section 

101(15). 

 

61. “Equity Interest” means the interests of any holder of an equity security as defined 

in Bankruptcy Code section 101(16) of any Debtor represented by any issued and outstanding any 

membership interest, partnership interest, shares of common stock or preferred stock, or other 

instrument evidencing a present ownership interest in such Debtor, including any option, warrant, 

or right, contractual or otherwise. 

 

62. “Estate” or “Estates” means, individually or collectively, the estate or estates of the 

Debtors created under Bankruptcy Code section 541. 

 

63. “Extension Orders” means the three orders entered by the Court [ECF Nos. 491, 

610, 753] approving three amendments to the DIP Loan Documents that, among other things, 

extended the Maturity Date through and including March 31, 2022. 

 

64. “Exculpated Parties” shall mean (a) each of Stephen Gray, Jay Goldman and Louis 

Martinsen as certain of the Debtors’ respective present and former managers, (b) Bob Butler as the 

Debtors’ chief restructuring officer, (c) Michael Brown, as the Debtor’s chief financial officer, (d) 

each of the Debtors’ employees who were employed by the Debtors from and after the Petition 

Date; (e) all Professionals (including ordinary course professionals) whose employment has been 

approved by the Bankruptcy Court in the Chapter 11 Cases, including Genovese Joblove & 

Battista, P.A., Venable LLP and Berkeley Research Group, LLC, and each of their respective 

attorneys, paraprofessionals and employees, and (f) BETM and all its managers, members, 

professionals and representatives, including Berger Singerman LLP and Eversheds Sutherland, 

and each of their respective attorneys, paraprofessionals and employees. 

 

65. “Final Decree” means the decree contemplated under Bankruptcy Rule 3022. 

 

66. “Final Order” means an order or judgment of the Bankruptcy Court as to which the 

time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to 

which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall then 

be pending; provided, however, that if an appeal, writ of certiorari, reargument, or rehearing 

thereof has been filed or sought, such order shall have been affirmed by the highest court to which 

such order was appealed, or certiorari shall have been denied or reargument or rehearing shall have 

been denied or resulted in no modification of such order, and the time to take any further appeal, 

petition for certiorari, or move for reargument or rehearing shall have expired; provided, further, 

that the possibility that a motion under Bankruptcy Code section 502(j), Rule 59 or Rule 60 of the 

Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be but 

has not then been filed with respect to such order, shall not cause such order not to be a Final 

Order. 

 

67. “First Administrative Claims Bar Date” means February 9, 2022, as the deadline 

set by the Court pursuant to the Order Granting Debtors’ Expedited Motion (I) To Establish Bar 

Date for the Filing of Motions Seeking the Allowance and/or Payment of Administrative Expense 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 15 of 49
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Claims, and (II) To Designate The Form and Manner of Notice of Administrative Claims Bar Date

[ECF No. 526] for the filing of an appropriate motion or application seeking the allowance and/or 

payment of an administrative expense claim under section 503(b) of the Bankruptcy Code. 

 

68. “General Unsecured Claim” means any Unsecured Claim against any Debtor that 

is not an Administrative Claim, Professional Fee Claim, Priority Tax Claim, Other Priority Claim, 

Secured Claim, or Equity Interest, provided, however, that, notwithstanding anything to the 

contrary herein, to the extent that a Holder of a General Unsecured Claim against a Debtor holds 

any joint and several liability Claims, guarantee Claims, or other similar Claims against any other 

Debtor arising from or relating to the same obligations or liability as such General Unsecured 

Claim, such Holder shall only be entitled to a distribution on one General Unsecured Claim against 

the Debtors in full and final satisfaction of all such General Unsecured Claims. 

 

69. “Governmental Unit” has the meaning assigned to such term in Bankruptcy Code 

section 101(27). 

 

70. “Impaired” means “impaired” within the meaning of section 1124 of the 

Bankruptcy Code and applicable decisional law, with respect to a Claim, Equity Interest, or Class 

of Claims or Equity Interests. 

 

71. “IRS” means the Internal Revenue Service of the United States of America. 

 

72. “ISDA” means that certain International Swap and Derivatives Association, Inc. 

2002 Agreement by and among Boston Energy Trading and Marketing, LLC., and Liberty Power 

Holdings, LLC dated as of July 6, 2020. 

 

73. “Intercreditor Agreement” means that certain 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 

thereto dated as of July 6, 2020. 

 

74. “Kaufman” shall mean Peter S. Kaufman. 

 

75. “Kaufman Settlement Agreement” means that certain Global Settlement and 

Release Agreement, dated as of April 7, 2023, by and between the Debtors and each of the D&O 

Parties 

 

76. “Kaufman Settlement Motion” means that certain Motion Pursuant to Section 

105(a) of the Bankruptcy Code and Fed. R. Bankr. P. 9019 for Entry of an Order Approving the 

Terms of a Settlement by and Between the Debtors and BETM on the one hand and Kaufman on 

the other hand [ECF No. 872]. 

77. “Lien” means, collectively, any and all security interests, liens, pledges, Claims, 

levies, charges, escrows, encumbrances, options, rights of first refusal, transfer restrictions, 

conditional sale contracts, title retention contracts, mortgages, hypothecations, indentures, security 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 16 of 49
12 

agreements or other agreements, arrangements, contracts, commitments, understandings or 

obligations of any kind whatsoever, whether written or oral. 

78. “LPC” means Liberty Power Corp, LLC., the parent company of Holdings. 

 

79. “Mezzanine Lenders” means David Hernandez and Martin Halpern as the holders 

of that certain $10 million second-tier mezzanine loan to Holdings. 

 

80. “Mezzanine Loan” means that certain $10 million second-tier mezzanine loan made 

by the Mezzanine Lenders to Holdings on or about July 6, 2020. 

 

81. “Net Sales Proceeds” shall mean the proceeds from the sale to the Buyer of the 

Customer Contracts, after (A) payment of (i) all closing costs and other obligations required to be 

paid by the Debtors under the terms of the Asset Purchase Agreement, (ii) all prorations required 

to be paid by the Debtors under the Asset Purchase Agreement, and (ii) any break-up fees and/or 

expense reimbursements approved by the Bankruptcy Court and required to be paid from the 

proceeds of the sale of the Customer Contracts, and (B) funding of any reserves or similar 

obligations required of the Debtors under the Asset Purchase Agreement from the proceeds of the 

sale. 

 

82. “Other Priority Claims” means Claims accorded priority in right of payment under 

section 507(a) of the Bankruptcy Code, other than Priority Tax Claims. 

 

83. “Person” means any individual, corporation, partnership, association, joint venture, 

limited liability company, limited liability partnership, estate, trust, receiver, trustee, 

unincorporated organization or Governmental Unit or subdivision thereof or other Entity. 

 

84. “Petition Date” means April 21, 2021 for Holdings, and June 4, 2021 for each of 

the Subsidiary Debtors. 

 

85. “Plan” means this Joint Chapter 11 Plan of Liquidation and any exhibits annexed 

hereto or otherwise filed in connection with the Plan, and any documents delivered in connection 

herewith, as the same may be amended or modified from time to time by any duly authorized and 

permitted amendment or modification. 

 

86. “Plan Documents” means the documents, if any, that aid in effectuating the Plan, 

including, without limitation, all addenda, exhibits, schedules, which documents (as may be 

amended, modified or supplemented from time to time). 

 

87. “Pledge Agreement” means the 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. 

 

88. “Prepetition Liens” means the properly perfected and duly enforceable first priority 

security interest held by BETM on substantially all of the assets of and equity interests in Holdings 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 17 of 49
13 

and its subsidiaries, perfected through the filing of that certain UCC-1 Financing Statement with 

the Delaware Secretary of State (U.C.C. Initial Filing No. 2020 4653442). 

89. “Prepetition Secured Claim” means all obligations owed by the Debtors to BETM 

under the Prepetition Secured Loan Documents, which total an amount that is not less than 

$15,707,362.40. 

 

90. “Prepetition Secured Loan Documents” means (i) that certain 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 (v) 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”). 

 

91. “Prepetition Shell Loan” means all obligations owed by Debtors to Shell Energy 

North America (US), L.P under that certain third-tier note in the amount of $63,492,663. 

 

92. “Priority Tax Claim” means a Claim or a portion of a Claim of a Governmental 

Unit against any Debtor that is entitled to priority in payment under Bankruptcy Code sections 

502(i) and 507(a)(8). 

 

93. “Professional Fee Claim” means any Claim of a Professional for compensation, 

indemnification, or reimbursement of costs and expenses incurred on or before the Effective Date 

pursuant to Bankruptcy Codes sections 327, 328, 330, 331, 503(b), or 1103(a), plus any fees and 

expenses related to the final fee application of a Professional. 

 

94. “Professionals” means all Persons retained by order of the Bankruptcy Court in 

connection with the Chapter 11 Cases, pursuant to Bankruptcy Code sections 327, 328, or 1103, 

including Berkeley Research Group, LLC, Bob Butler, Genovese, Joblove & Battista, P.A., 

Venable, LLP and Stretto, and excluding any ordinary course professionals. 

 

95. “Professional Fee Escrow” means that certain escrow maintained in the attorneys’ 

trust account of Venable, LLP and containing monies funded under and approved by the Court in 

connection with the DIP Financing/Cash Collateral Orders to pay the compensation and expenses 

of Professionals retained by the Debtors, including Berkeley Research Group, LLC, Bob Butler, 

Genovese, Joblove & Battista, P.A., Venable, LLP and Stretto as such compensation and expenses 

may be awarded by the Court pursuant to Section 328, 330 or 331 of the Bankruptcy Code. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 18 of 49
14 

 

96. “Proof of Claim” shall mean a proof of claim filed by a holder of a Claim in the 

Bankruptcy Court’s claim register evidencing the basis and/or amount of a Claim. 

 

97. “Pro Rata” means, in connection with a particular Allowed Claim and in 

connection with any Distribution, the ratio between the amount of such Allowed Claim and the 

aggregate amount of all Allowed Claims in such Class or Classes entitled to such Distribution. 

 

98. “Record Date” means the date that the Disclosure Statement is conditionally 

approved by the Bankruptcy Court. 

 

99. “Reorganized Debtors” shall mean the Debtors from and after the Effective Date. 

 

100. “REP” means a retail energy provider. 

 

101. “Rejection/Termination Orders” means the separate Orders entered by the 

Bankruptcy Court approving the motions to reject and/or terminate certain of the Debtors’ 

customer accounts not sold to the Buyer [ECF Nos. 431, 459, 460, 525, 590, 691 and 729]. 

 

102. “Sale Order” means that certain “Order (I) Approving Sale of the Purchased Assets 

Free and Clear of Liens, Claims, Encumbrances, and Other Interests, (II) Authorizing Assumption 

and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith 

and (III) Granting Related Relief [ECF No. 385] entered by the Bankruptcy Court on September 

14, 2021. 

 

103. “Scheduled Claim” means a Claim that is listed in the Debtors’ Schedules. 

 

104. “Schedules” means the schedules of assets and liabilities, schedules of executory 

contracts and unexpired leases, statements of financial affairs, and other schedules and statements 

filed by the Debtors pursuant to Bankruptcy Rule 1007, and any amendments thereto. 

 

105. “Second Administrative Expense Claims Bar Date” means August 23, 2022, as the 

deadline set by the Court pursuant to the Order Granting Debtors’ Expedited Motion (I) To 

Establish Second Administrative Claims Bar Date for Certain Putative Creditors To Tile (I) 

Motions Seeking the Allowance and/or Payment of Administrative Expense Claims, and (II) To 

Designate The Form and Manner of Notice of Second Administrative Claims Bar Date [ECF No. 

752] for the filing of an appropriate motion or application seeking the allowance and/or payment 

of an administrative expense claim under section 503(b) of the Bankruptcy Code. 

 

106. “Secured Claim” means a Claim secured by a Lien, including, but not limited to, a 

judicial lien as that term is defined in Bankruptcy Code section 101(36), against any property of 

the Estates, but only to the extent of the value, as determined by the Bankruptcy Court pursuant to 

Bankruptcy Code section 506(a) and Bankruptcy Rule 3012 or as otherwise agreed to, of such 

Creditor’s interest in any Debtor’s interest in such property. 

 

107. “Secured Creditor” means the holder of a Secured Claim. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 19 of 49
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108. “Settled Administrative Claims” means the Allowed Administrative Claims of (i) 

The Commonwealth of Massachusetts Department of Energy Resources in the amount of $475,000 

[ECF No. 751] (ii) State of Connecticut Public Utilities Regulatory Authority in the amount of 

$275,000 [ECF No. 800]; (iii) The City of New York Department of Finance in the amount of 

$26,000 [ECF No. 810], and (iv) Postal Center International in the amount of $11,726 [ECF No. 

450]. 

 

109. “Settled Priority Tax Claims” means the Allowed Priority Tax Claims of (i) The 

State of Connecticut Public Utilities Regulatory Authority in the amount of $425,000 [ECF No. 

800], and (ii) The City of New York Department of Finance in the amount of $425,000 [ECF No. 

810]. 

110. “Stamp or Similar Tax” means any stamp tax, recording tax, conveyance fee, 

intangible or similar tax, mortgage tax, personal or real property tax, real estate transfer tax, sales 

tax, use tax, transaction privilege tax (including, without limitation, such taxes on prime 

contracting and owner-builder sales), privilege taxes (including, without limitation, privilege taxes 

on construction contracting with regard to speculative builders and owner builders), and other 

similar taxes or fees imposed or assessed by any Governmental Unit. 

 

111. “Statutory Fees” means all fees for which the Debtors are obligated pursuant to 28 

U.S.C. § 1930(a)(6), together with interest, if any, pursuant to 31 U.S.C. § 3717. 

112. “Stalking Horse Motion” means the Expedited Motion (I) to Approve Designation 

of Stalking Horse Bidder, (II) to Approve Asset Purchase Agreement and Related Bid Protections, 

(III) to Clarify/Modify Bidding Procedures, and (IV) for Related Relief [ECF No. 324] which 

Stalking Horse Motion attached a fully executed copy of that certain Asset Purchase Agreement, 

dated August 20, 2021, between the Debtors and the Buyer, which agreement was subsequently 

modified and filed with the Court on August 23, 2021 by that certain Notice of Filing 

Modifications to Stalking Horse Agreement [ECF No. 339]. 

 

113. “Stalking Horse Order” means the Order entered on August 26, 2021, granting the 

Stalking Horse Motion [ECF No. 349]. 

 

114. “Subordinate Secured Parties” means collectively, David Hernandez, Martin 

Halpern, and Shell Energy. 

 

115. “Subsidiary Debtors” shall mean collectively LPT, LLC, Liberty Power Maryland 

and Liberty Power District of Columbia, LLC, each a wholly-owned subsidiary of Holdings. 

 

116. “Supplemental Bid Procedures Motion” means that certain Debtors’ Expedited 

Motion for Entry of a Supplemental Order (I) Approving the Sale of Assets of the Subsidiary 

Debtors Through the Court’s Bid Procedures Order, (II) Approving Revised Form of Notices, (III) 

Authorizing Notice of Sale by Email and Publication, and (IV) Granting Related Relief dated July 

9, 2021 [ ECF No. 255] seeking an order of the Bankruptcy Court approving, among other things, 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 20 of 49
16 

extending the bidding and sale procedures, and related relief set forth in the Bid Procedures Order, 

to the sale of the assets of the Subsidiary Debtors. 

 

117. “Supplemental Bid Procedures Order” means that certain Order entered by the 

Court on July 15, 2021, granting the Supplemental Bid Procedures Motion [ECF No. 264]. 

 

118. “Supply and Service Agreement” means that Supply and Service Agreement, by and 

among Boston Energy Trading and Marketing LLC, and Liberty Power Holdings, LLC dated as 

of July 6, 2020. 

 

119. “U.S. Trustee” means the Office of the United States Trustee for Region 21. 

 

120. “Unclaimed Distribution” means any Distribution that remains unclaimed after 

ninety (90) days following any Distribution Date, including, without limitation, (i) checks (and the 

funds represented thereby) that have been returned as undeliverable without a proper forwarding 

address, (ii) funds representing checks that have not been paid, and (iii) checks (and the funds 

represented thereby) that were not mailed or delivered because of the absence of a valid address. 

 

121. “Unimpaired” means not “impaired” within the meaning of sections 1123(a)(4) and 

1124 of the Bankruptcy Code and applicable decisional law, with respect to a Claim, Equity 

Interest, or Class of Claims or Equity Interests. 

 

122. “Warn Act” means the Worker Adjustment and Retraining Notification Act, 

codified at 29 U.S.C. § § 2101-2109. 

B. Rules of Interpretation 

(i) For purposes herein: (a) in the appropriate context, each term, whether stated in the 

singular or the plural, shall include both the singular and the plural, and pronouns stated in the 

masculine, feminine or neutral gender shall include the masculine, feminine and the neutral gender; 

(b) any reference herein to a contract, instrument, release, indenture or other agreement or 

document being in a particular form or on particular terms and conditions means that the referenced 

document shall be substantially in that form or substantially on those terms and conditions; (c) any 

reference herein to an existing document or exhibit having been filed or to be filed shall mean that 

document or exhibit, as it may thereafter be amended, modified or supplemented; (d) unless 

otherwise specified, all references herein to “Articles” are references to Articles hereof or hereto; 

(e) the words ‘‘herein,’’ “hereof” and ‘‘hereto’’ refer to the Plan in its entirety rather than to a 

particular portion of the Plan; (f) captions and headings to Articles are inserted for convenience of 

reference only and are not intended to be a part of or to affect the interpretation hereof; (g) the 

rules of construction set forth in section 102 of the Bankruptcy Code shall apply; and (h) any term 

used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy 

Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy 

Code or the Bankruptcy Rules, as the case may be. 

(ii) All references herein to monetary figures shall refer to currency of the United States 

of America, unless otherwise expressly provided. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 21 of 49
17 

C. Exhibits 

All exhibits and schedules, if any, to the Plan are incorporated into and are part of the Plan 

as if set forth herein. All exhibits and schedules to the Plan will be filed with the Clerk of the 

Bankruptcy Court not later than three (3) days prior to the deadline set by the Bankruptcy Court to 

vote to accept or reject the Plan. Such exhibits may be inspected in the office of the Clerk of the 

Bankruptcy Court during normal hours of operation of the Bankruptcy Court. Holders of Claims 

or Equity Interests may also obtain a copy of such exhibits, once filed, from the Debtor’s counsel 

by a written request sent to the following address: 

VENABLE, LLP. 

100 S.E. Second Street, 44th Floor 

Miami, FL 33131 

Telephone: 305-349-2300 

ATTN: Paul J. Battista, Esq. pjbattista@venable.com

Mariaelena Gayo-Guitian, Esq., mguitian@venable.com 

Heather Harmon, Esq. hlharmon@venable.com

D. Computation of Time 

Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) 

shall apply in computing any period of time prescribed or allowed herein. If the date on which a 

transaction may occur pursuant to the Plan shall occur on a day that is not a Business Day, then 

such transaction shall instead occur on the next succeeding Business Day. Any action to be taken 

on the Effective Date may be taken on or as soon as reasonably practicable after the Effective Date. 

E. Governing Law 

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy 

Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of 

Florida, without giving effect to the principles of conflict of laws, shall govern the rights, 

obligations, construction, and implementation of the Plan, any agreements, documents, 

instruments, or contracts executed or entered into in connection with the Plan (except as otherwise 

set forth in those agreements, in which case the governing law of such agreement shall control). 

ARTICLE II 

ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE CLAIMS, PRIORITY TAX 

CLAIMS, STATUTORY FEES AND BETM DIP FINANCING CLAIMS 

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, 

Professional Fee Claims, Priority Tax Claims, Other Priority Claims, DIP Financing Claims and 

Statutory Fees have not been classified and, thus, are excluded from the classification of Claims 

and Equity Interests set forth in Article III below. 

 A. Administrative Claims. 

 

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All Allowed Administrative Claims shall be paid in full, in Cash in such amounts as may 

be Allowed by the Bankruptcy Court (a) as soon as practicable following the later of the Effective 

Date or the date upon which the Court enters a Final Order allowing any such Administrative 

Claim, (b) as otherwise provided in the Bankruptcy Code or approved by the Bankruptcy Court, 

or (c) as agreed by the holder of any such Administrative Claim. If any Disputed Administrative 

Claim exists on the Effective Date, then the Debtors shall hold and maintain Cash in a segregated 

account in an amount equal to all outstanding Disputed Administrative Claims until such dispute 

is resolved consensually or by Final Order. Pursuant to the BETM Plan Settlement, BETM shall 

waive any Distribution on the BETM Adequate Protection Obligation and the BETM Adequate 

Protection Superpriority Administrative Claim. 

Unless otherwise ordered by the Bankruptcy Court, any holder of an Administrative Claim 

(including a holder of a Claim for postpetition federal, state or local taxes) that did not file an 

application, motion, request or other Bankruptcy Court-approved pleading by the Administrative 

Claims Bar Date shall be forever barred, estopped and enjoined from ever asserting such 

Administrative Claim against the Debtors, or their respective assets, and such holder shall not be 

entitled to participate in any Distribution under the Plan on account of any such Administrative 

Claim. 

B. Professional Fee Claims 

On or prior to the deadline set by the Bankruptcy Court for Professionals to file final fee 

applications, each Professional shall file with the Bankruptcy Court its final fee application seeking 

final approval of all fees and expenses from the Petition Date through the Confirmation Hearing. 

All Allowed Professional Fee Claims shall be paid in full, in Cash in such amounts as may be 

Allowed by the Bankruptcy Court (a) as soon as practicable following the later of the Effective 

Date or the date upon which the Court enters a Final Order allowing any such Professional Fee 

Claim, (b) as otherwise provided in the Bankruptcy Code or approved by the Bankruptcy Court, 

or (c) as may be agreed upon between the holder of any such Professional Fee Claim and the 

Debtors. Allowed Professional Fee Claims shall be paid from (a) first from any retainers held by 

such Professional(s), with any excess retainers being deposited into the Professional Fee Escrow; 

(b) second from the Professional Fee Escrow, and (c) third if the Professional Fee Escrow is 

insufficient to pay the full amount of Allowed Professional Fee Claims, then the remaining unpaid 

the Allowed Professional Fee Claims shall be paid by the Debtors from Available Cash. 

C. Priority Tax Claims. 

Unless otherwise ordered by the Bankruptcy Court or agreed to by the Holder of an 

Allowed Priority Tax Claim, the Holders of Allowed Priority Tax Claims against the Estates shall 

be paid 100% of their Allowed Priority Tax Claims from Available Cash upon the later of:(i) the 

Effective Date, or as soon thereafter as is practicable, (ii) the date on which such Priority Tax 

Claim is Allowed pursuant to a Final Order, or (iii) after such Holder has exercised any and all 

rights and remedies in respect of any Lien on the Debtors’ Assets securing such Priority Tax Claim, 

thereby reducing any such Allowed Priority Tax Claims. Notwithstanding anything herein to the 

contrary, the Settled Priority Tax Claims shall only be paid if and when the Debtors have paid in 

full all allowed claims of BETM. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 23 of 49
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D. Statutory Fees. 

Notwithstanding any other provisions of the Plan to the contrary, the Debtors shall pay the 

United States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), within 

fourteen (14) days of the entry of the order confirming the Plan, for pre-confirmation periods and 

simultaneously file all the monthly operating reports for the relevant periods, indicating the cash 

disbursements for the relevant period. The Reorganized Debtors shall further pay the United States 

Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), based upon all postconfirmation periods within the time period set forth in 28 U.S.C. § 1930(a)(6), based upon all 

post-confirmation disbursements made by the Reorganized Debtors, until the earlier of the closing 

of this case by the issuance of a Final Decree by the Bankruptcy Court, or upon the entry of an 

Order by the Bankruptcy Court dismissing this case or converting this case to another chapter 

under the Bankruptcy Code, and the Reorganized Debtors shall provide to the United States 

Trustee upon the payment of each post-confirmation payment, and concurrently filed with the 

Court, post-confirmation quarterly operating reports indicating all the cash disbursements for the 

relevant period. 

E. BETM’s DIP Financing Claims. 

The DIP Financing Claims constitute Allowed Senior Secured Claims and Allowed 

Superpriority Administrative Expense Claims against the Debtors and their estates. Pursuant to 

the BETM Plan Settlement, and subject to the occurrence of the Effective Date of the Plan, the 

DIP Financing Claims of BETM, including based on the BETM DIP Liens, the BETM 

Replacement Liens and the BETM Superpriority Expense Claim, shall be subordinated (i) first to 

the payment from Available Cash of Statutory Fees, (ii) second to the payment from Available 

Cash of all Allowed Professional Fee Claims, (iii) third to the payment from Available Cash of the 

Settled Administrative Claims, (iv) fourth to the payment from Available Cash of any other 

Allowed Administrative Claims approved by BETM, and (v) fifth to the payment from Available 

Cash of Allowed Other Priority Claims and Allowed Priority Tax Claims approved by BETM 

(collectively, the “Agreed Senior Claims”). Following payment of the Agreed Senior Claims, all 

Available Cash and proceeds of Causes of Action (whether now existing or hereafter arising) shall 

be distributed by the Reorganized Debtors to BETM until each of (a) the DIP Financing Claims, 

(b) the BETM Adequate Protection Obligation, and (c) the Prepetition Secured Claim have been 

paid in full. In the event the Available Cash is not sufficient to pay the Agreed Senior Claims in 

full, then BETM shall waive a Distribution on its DIP Financing Claims. 

ARTICLE III 

CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS 

A. Summary of Classification. 

The Plan groups the Debtors together solely for the purposes of describing treatment under 

the Plan, confirmation of the Plan, and making Distributions in accordance with the Plan in respect 

of Claims against, and Equity Interests in, the Debtors under the Plan. Notwithstanding such 

groupings, the Plan constitutes a separate chapter 11 plan of liquidation for each Debtor. The Plan 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 24 of 49
20 

is not premised upon, and will not cause, the substantive consolidation of any of the Debtors. For 

brevity and convenience, the classification and treatment of Claims and Equity Interests have been 

arranged into one chart. Such classification shall not affect any Debtor’s status as a separate legal 

entity, change the organizational structure of the Debtors’ business enterprise, constitute a change 

of control of any Debtor for any purpose, cause a merger or consolidation of any legal entities, or 

cause the transfer of any Assets. Except as otherwise provided by or permitted under the Plan, all 

Debtors shall continue to exist as separate legal entities. 

B. Class Categories. 

All Claims and Equity Interests, except for Administrative Claims, Professional Fee 

Claims, Priority Tax Claims, Other Priority Claims, DIP Financing Claims, and Statutory Fees, 

are classified in the Classes set forth in this Article III for all purposes, including voting, 

Confirmation, and Distributions pursuant to the Plan and pursuant to sections 1122 and 1123(a)(1) 

of the Bankruptcy Code. A Claim or Equity Interest is classified in a particular Class only to the 

extent that such Claim or Equity Interest qualifies within the description of that Class and is 

classified in other Classes to the extent that any portion of such Claim or Equity Interest qualifies 

within the description of such other Classes. A Claim or Equity Interest also is classified in a 

particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent 

that such Claim or Equity Interest is an Allowed Claim or Allowed Equity Interest in that Class 

and has not been paid, released, or otherwise satisfied prior to the Effective Date. 

 Class Class Designation Status Voting Rights 

Class 1 Allowed Other Priority Claims 

(All Debtors) 

Unimpaired Presumed to Accept 

the Plan under 

Section 1126(f) of 

the Bankruptcy 

Code 

Class 2 Secured Claim of Hanover 

Insurance Company (All 

Debtors) 

Unimpaired Presumed to Accept 

the Plan under 

Section 1126(f) of 

the Bankruptcy 

Code 

Class 3 Secured Claim of Eckert 

Seamans Cherin & Mellot 

(Holdings only) 

Unimpaired Presumed to Accept 

the Plan under 

Section 1126(f) of 

the Bankruptcy 

Code 

Class 4 Secured Claim of Boston 

Energy Trading and Marketing 

LLC (All Debtors) 

Impaired Entitled to Vote 

Class 5 Secured Claim of Shell Energy 

North America (US), L.P (All 

Debtors) 

Impaired Deemed to Reject 

the Plan under 

Section 1126(g) of 

the Bankruptcy 

Code 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 25 of 49
21 

Class 6 Secured Claims of David 

Hernandez and Martin Halpern 

- Mezzanine Lenders (Insider 

Claims) (All Debtors) 

Impaired Deemed to Reject 

the Plan under 

Section 1126(g) of 

the Bankruptcy 

Code 

Class 7 General Unsecured Claims (All 

Debtors) 

Impaired Deemed to Reject 

the Plan under 

Section 1126(g) of 

the Bankruptcy 

Code 

Class 8 Subordinated Unsecured Claim 

of The Illinois Attorney 

General (Holdings Only) 

Impaired Deemed to Reject 

the Plan under 

Section 1126(g) of 

the Bankruptcy 

Code 

Class 9 Equity Interests (All Debtors) Impaired Deemed to Reject 

the Plan under 

Section 1126(g) of 

the Bankruptcy 

Code 

ARTICLE IV 

TREATMENT OF CLAIMS AND EQUITY INTERESTS 

A. Treatment of Claims and Equity Interests 

The following treatment of and consideration to be received by holders of Allowed Claims 

and Equity Interests under this Plan shall be in full settlement, release, and discharge of such 

Allowed Claims and Equity Interests except to the extent less favorable treatment is agreed to by 

the Debtors and the Holder of such Allowed Claim or Allowed Interest, as applicable. Unless 

otherwise indicated, the Holder of an Allowed Claim or Allowed Interest, as applicable, shall 

receive such treatment on the later of the Effective Date and the date such Holder’s Claim or 

Interest becomes an Allowed Claim or Allowed Interest or as soon as reasonably practicable 

thereafter. 

1. Class 1 – Allowed Other Priority Claims 

(a) Classification: Class 1 consists of all Allowed Other Priority Claims against 

each Debtor. 

(b) Treatment: Except to the extent that a holder of an Allowed Other Priority 

Claim and the applicable Debtor prior to the Effective Date, or after the Effective 

Date, such holder and the applicable Reorganized Debtor, agree to a less favorable 

treatment, each holder of an Allowed Other Priority Claim shall receive, in full and 

final satisfaction, compromise, settlement, release, and discharge of and in 

exchange for such Allowed Other Priority Claim, payment in full, in Cash, of the 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 26 of 49
22 

unpaid portion of its Allowed Other Priority Claim on the Effective Date or as soon 

thereafter as reasonably practicable. 

(c) Voting: Class 1 is Unimpaired under the Plan. Accordingly, each holder of 

an Allowed Other Priority Claim in this Class 1 is conclusively presumed to have 

accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. 

2. Class 2 – Allowed Secured Claim of The Hanover Insurance Company 

(“Hanover”). 

(a) Classification: Class 2 consist of the Allowed Secured Claim of The 

Hanover Insurance Company. Hanover filed a Proof of Claim in the amount of 

$6,355,073, of which $2,700,000 was secured by a certain letter of credit issued by 

JP Morgan Chase Bank, N.A. on behalf of the Debtors (the “Hanover Letter of 

Credit”). 

(b) Treatment: The Allowed Secured Claim of Hanover Insurance has been 

fully paid and satisfied based on Hanover drawing on the Hanover Letter of Credit 

during the Chapter 11 Cases. Pursuant to section 506(a) of the Bankruptcy Code, 

the remainder of the Allowed Claim of Hanover shall be included in and treated as 

an Allowed General Unsecured Claim in accordance with Class 7. 

(c) Voting: Class 2 is Unimpaired under the Plan. Accordingly, Hanover 

Insurance is conclusively presumed to have accepted the Plan pursuant to section 

1126(f) of the Bankruptcy Code. 

3. Class 3 – Allowed Secured Claim of Eckert Seamans Cherin and Mellot, LLC 

(“Eckert Seamans”) 

(a) Classification: Class 3 consist of the Allowed Secured Claim of Eckert 

Seamans. 

(b) Treatment: Eckert Seaman’s filed a Proof of Claim in Holdings asserting a 

claim for unpaid pre-petition legal services in the amount of $253,882.16 (the 

“Eckert Seamans Claim”). The Eckert Seamans Claim is comprised of a Secured 

Claim in the amount of $13,442.87 and General Unsecured Claim in the amount of 

$240,439.29. The Class 3 Secured Claim of Eckert Seamans is secured by that 

certain pre-petition retainer held by Eckert Seamans in the amount of $13,442.87 

(the “Retainer”). The Allowed Class 3 Secured Claim of Eckert Seamans shall be 

satisfied in full by the application of the Retainer to the Secured Claim in the 

amount of $13,442.87. The balance of the Eckert Seamans Claim shall be included 

in and treated as an Allowed General Unsecured Claim in accordance with Class 7. 

(c) Voting: Class 3 is Unimpaired under the Plan. Accordingly, Eckert 

Seamans is conclusively presumed to have accepted the Plan pursuant to section 

1126(f) of the Bankruptcy Code. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 27 of 49
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4. Class 4 – Allowed Prepetition Secured Claim of BETM 

(a) Classification: Class 4 consists of the Allowed Prepetition Secured Claim 

of BETM against each of the Debtors (the “BETM Secured Claim”). 

(b) Treatment: Following payment of (i) first, the Agreed Upon Claims, (ii) 

second, the DIP Financing Claims, and (iii) third, the BETM Adequate Protection 

Obligation pursuant and in accordance with this Plan, the Debtors shall make 

additional Distributions to BETM on account of the Class 4 Allowed Secured Claim 

of BETM in accordance with the BETM Plan Settlement from Available Cash and 

proceeds of Causes of Action (whether now existing or hereafter arising) until such 

time as the BETM Secured Claim is paid in full . The balance of the BETM Secured 

Claim after such Distributions shall be included in and treated as an Allowed 

General Unsecured Claim in accordance with Class 7. 

(c) Voting: Class 4 is Impaired and BETM is entitled to vote to accept or reject 

the Plan as the holder of the Allowed Class 4 Secured Claim. 

5. Class 5- Allowed Secured Claim of Shell Energy North America (US), L.P 

(“Shell Energy”) 

(a) Classification: Class 5 consists of the Secured Claim of Shell Energy 

against each of the Debtors. Shell Energy filed a Proof of Claim in each of these 

Chapter 11 Case asserting a total claim as of the Petition Date in the aggregate 

amount of $79,594,326.84 (the “Shell Claim”). 

(b) Treatment: As of the Petition Date, the rights of Shell Energy in respect of 

the Shell Claim were subject to the terms of the Intercreditor Agreement. Among 

other things, the Intercreditor Agreement provides that the Liens and Claims of 

Shell Energy are fully subject and subordinate to the Liens and Claims of BETM 

in all respects. The proceeds from the sale and liquidation of the Debtors’ Assets 

were not sufficient to satisfy in full the DIP Financing Claims and the BETM 

Secured Claim. Accordingly, pursuant to section 506(a) of the Bankruptcy Code 

and the terms of the Intercreditor Agreement, the entirety of the Shell Claim is a 

General Unsecured Claim which shall be included in and treated as an Allowed 

General Unsecured Claim in accordance with Class 7. 

(c) Voting: Class 5 is Impaired. Since the Class 5 Allowed Secured Claim of 

Shell Energy will not receive any Distribution or retain any property under the Plan 

on account of such Allowed Secured Claim, Shell Energy, as the holder of the Class 

5 Allowed Secured Claim, shall be deemed to have rejected the Plan pursuant to 

section 1126(g) of the Bankruptcy Code. 

6. Class 6 – Allowed Secured Claim of the Mezzanine Lenders

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 28 of 49
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(a) Classification: Class 6 consists of the Allowed Secured Claim of the 

Mezzanine Lenders against each of the Debtors. The Mezzanine Lenders each filed 

a Proof of Claim in Holdings in the amount of $5,179,166.67 (the “Mezzanine 

Lender Claims”). 

(b) Treatment: As of the Petition Date, the rights of the Mezzanine Lenders 

respect of the Mezzanine Lender Claims were subject to the terms of the 

Intercreditor Agreement. Among other things, the Intercreditor Agreement 

provides that the Liens and Claims of the Mezzanine Lenders are fully subject and 

subordinate to the Liens and Claims of BETM in all respects. The proceeds from 

the sale and liquidation of the Debtors’ Assets were not sufficient to satisfy in full 

the DIP Financing Claims and the BETM Secured Claim. In addition, the 

Mezzanine Lenders are parties to the D&O Settlement Agreement, which is the 

subject of the D&O Settlement Motion. If the Bankruptcy Court grants the D&O 

Settlement Motion, then (i) each Mezzanine Lender shall have provided a general 

release in favor of the Debtors of any and all Claims, including the Mezzanine 

Lender Claims, and (ii) the Mezzanine Lender Claims shall be deemed satisfied in 

full. Alternatively, in the event the Bankruptcy Court does not grant the D&O 

Settlement Motion, then pursuant to section 506(a) of the Bankruptcy Code and the 

terms of the Intercreditor Agreement, the entirety of each Mezzanine Lender Claim 

is a General Unsecured Claim which shall be included in and treated as an Allowed 

General Unsecured Claim in accordance with Class 7. 

(c) Voting: Class 6 is Impaired. Since the Class 6 Allowed Secured Claim of 

each Mezzanine Lender will have either been released pursuant to the D&O 

Settlement Motion, or will not receive any Distribution or retain any property under 

the Plan on account of such Allowed Secured Claim, each Mezzanine Lender, as 

the holder of a Class 6 Allowed Secured Claim, shall no longer have a Mezzanine 

Lender Claim or shall be deemed to have rejected the Plan pursuant to section 

1126(g) of the Bankruptcy Code. 

 

7. Class 7 – Allowed General Unsecured Claims 

(a) Classification: Class 7 consists of the Allowed General Unsecured Claims 

against each of the Debtors. 

(b) Treatment: Each holder of a General Unsecured Claim shall not receive any 

Distribution or property under the Plan on account of their Allowed General 

Unsecured Claims. 

(c) Voting: Class 7 is Impaired. Since the holders of the Class 7 Allowed 

General Unsecured Claim will not receive any Distribution or retain any property 

under the Plan on account of such Allowed General Unsecured Claims, such 

holders shall be deemed to have rejected the Plan pursuant to section 1126(g) of the 

Bankruptcy Code. 

 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 29 of 49
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8. Class 8 - Allowed Subordinated Unsecured Claim of the Office of the Illinois 

Attorney General (Holdings only). 

(a) Classification: Class 8 consists of the Allowed Subordinated Unsecured 

Claim of the Office of the Illinois Attorney General against Holdings in the amount 

of $77,191,092.00, which was approved by the Court pursuant to that certain 

Agreed Order Granting Ex-Parte Joint Motion and Stipulation for Entry of An 

Agreed Order Resolving Objection to Claim of the Illinois Attorney General’s 

Office entered on September 7, 2022 [ECF No. 783]. 

(b) Treatment: The Illinois Attorney General, as the holder of the Class 8 

Allowed Subordinated Unsecured Claim, will not receive any Distribution or retain 

any property under the Plan on account of such Claim. 

(c ) Voting: Class 8 is Impaired. Since The Illinois Attorney General, as the 

holder of the Class 8 Allowed Subordinated Unsecured Claim, will not receive any 

Distribution or retain any property under the Plan on account of such Claim, The 

Illinois Attorney General shall be deemed to have rejected the Plan pursuant to 

section 1126(g) of the Bankruptcy Code. 

9. Class 9 – Allowed Equity Interests. 

(a) Classification: Class 9 consist of all Allowed Equity Interests. 

(b) Treatment: As of the Effective Date, all Equity Interests in each Debtor shall 

be deemed retired, cancelled, extinguished and/or discharged and of no further 

force and effect. 

(c) Voting: Class 9 is Impaired. Since the holders of Equity Interests in each 

Debtor shall not receive any Distribution or retain any property under the Plan on 

account of such Equity Interests, such holders shall be deemed to have rejected the 

Plan pursuant to Section 1126(g) of the Bankruptcy Code. 

ARTICLE V 

ACCEPTANCE, REJECTION, AMENDMENT AND 

REVOCATION OR WITHDRAWAL OF THE PLAN 

A. Classes Entitled to Vote 

Each holder of a Claim or Equity Interest who it to receive a Distribution or retain property 

on account of such Claim or Equity Interest under the Plan, as of the Record Date, in an Impaired 

Class shall be entitled to vote to accept or reject the Plan, in its sole and absolute discretion, subject 

to applicable law. Each of Class 1, 2 and 3 are Unimpaired and therefore are conclusively 

presumed to have accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code. Class 4 

is Impaired and is entitled to vote to accept or reject the Plan. Classes 5 through 9 are Impaired 

and will not receive a Distribution or retain any property under the Plan on account of such Claims. 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 30 of 49
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As a result, Classes 5 through 9 are deemed to have rejected the Plan pursuant to Section 1126(g) 

of the Bankruptcy Code. 

B. Acceptance by Class of Claims and Equity Interests 

Under the Bankruptcy Code, Impaired Class of Claims shall be deemed to accept the Plan 

if (a) holders (other than any holder designated under section 1126(e) of the Bankruptcy Code) of 

at least two-thirds in dollar amount of the Allowed Claims actually voting in such Class have voted 

to accept the Plan and (b) the holders (other than any holder designated under section 1126(e) of 

the Bankruptcy Code) of more than one-half in number of the Allowed Claims actually voting in 

such Class have voted to accept the Plan. For purposes of calculating the number of Allowed 

Claims in a Class of Claims that have voted to accept or reject the Plan under section 1126(c) of 

the Bankruptcy Code, all Allowed Claims in such Class held by one Entity or any Affiliate thereof 

shall be aggregated and treated as one Allowed Claim in such Class. For purposes of any Claim 

in any Impaired Class that is Disputed as to its amount only, the holder of such claim shall be 

entitled to vote on the Plan as if such holder held an Allowed Claim in an amount equal to the 

undisputed portion of such Claim. 

Pursuant to Section 1126(f) of the Bankruptcy Code, holders of Allowed Claims and Equity 

Interests who are Unimpaired under the Plan are deemed to have accepted the Plan. As set forth 

above, Classes 1, 2, and 3 under the Plan are Unimpaired and therefore all such Classes are deemed 

to have voted in favor of the Plan. 

C. Nonconsensual Confirmation 

In the event that any Class of Claims or Equity Interests entitled to vote shall not accept 

the Plan by the requisite statutory majority required by section 1126 of the Bankruptcy Code, the 

Debtor reserves the right to (a) request that the Bankruptcy Court confirm the Plan in accordance 

with section 1129(b) of the Bankruptcy Code with respect to such non-accepting Class, in which 

case the Plan shall constitute a motion for such relief, or (b) alter, amend or modify the Plan in 

accordance with Article XIII. 

As set forth above, Classes 5 through 9 of the Plan are Impaired and are deemed to have 

rejected the Plan pursuant to Section 1126(g) because the holders therein will not receive any 

Distribution or retain any property under the Plan on account of their respective Claims or Equity 

Interests. As a result, the Debtors intend to exercise the right to seek confirmation of the Plan 

through a “cramdown” on Classes 5 through 9 of the Plan pursuant to section 1129(b) of the 

Bankruptcy Code. 

D. Revocation or Withdrawal; No Admissions 

Right to Revoke or Withdraw. The Plan may be revoked or withdrawn prior to the 

Confirmation Date by the Debtors in their sole discretion. 

Effect of Withdrawal or Revocation; No Admissions. If the Plan is revoked or withdrawn 

prior to the Confirmation Date, then the Plan shall be deemed null and void. In such event, nothing 

contained herein shall be deemed to constitute a waiver or release of any claims or defenses or any 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 31 of 49
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admission or statement against interest by the Debtors or any other Person or to prejudice in any 

manner the rights of the Debtors or any Person in any further proceedings involving the Debtors. 

E. Amendment of the Plan and/or the Plan Documents 

From and after the Effective Date, the Debtors shall have the authority to amend, modify, 

or supplement the Plan, the Exhibits to the Plan and any documents attached to such Plan and 

Exhibits to the Plan as provided in the Plan, the Exhibits to the Plan and the Bankruptcy Code. 

F. Special Provision Governing Unimpaired Claims 

Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors 

rights with respect to any Unimpaired Claim, including, without limitation, all rights in respect of 

legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim. 

ARTICLE VI 

MEANS OF IMPLEMENTATION OF THE PLAN 

A. Joint Chapter 11 Plan and Vesting of Property. 

The Plan is a joint chapter 11 plan for each Debtor, with the Plan for each Debtor being 

non-severable and mutually dependent on the Plan for each other Debtor. The Debtors shall 

continue to exist on or after the Effective Date solely for the purposes of satisfying the Debtors’ 

obligations under the Plan, including making distributions as required under the Plan and 

effectuating the wind down of the Debtors. 

Except as provided for herein, pursuant to Sections 1123(a)(5), 1123(b)(3) and 1141(b) 

and (c) of the Bankruptcy Code, on the Effective Date, all property of the Estates shall vest in the 

applicable Reorganized Debtor free and clear of all Liens, Claims, charges, or other encumbrances 

for all purposes under and subject to the terms of this Plan. All privileges with respect to the 

property of the Estates, including the attorney/client privilege, to which the Debtors are entitled 

shall automatically vest in, and may only be asserted by and/or waived on behalf of, the applicable 

Reorganized Debtor. 

B. Source of Funding for Plan Distributions. 

The Distributions to be made in Cash under the terms of this Plan shall be funded from the 

Available Cash on hand as of and generated after the Effective Date as set forth on the Liquidation 

Analysis attached as Exhibit “3” to the Disclosure Statement, which includes, without limitation, 

Cash in the Debtors’ bank accounts, the Professional Fee Escrow, the retainers of Professionals, 

and proceeds from the prosecution and/or settlement of Causes of Action, including pursuant to 

the D&O Settlement Agreement and the Kaufman Settlement Agreement. Pursuant to the BETM 

Plan Settlement, and subject to the occurrence of the Effective Date, BETM has agreed to allow 

the Debtors to use the Available Cash to pay the Agreed Senior Claims pursuant to the terms of 

the Plan. 

C. The BETM Plan Settlement pursuant to Bankruptcy Rule 9019. 

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The Plan shall constitute a motion for approval of a settlement and compromise under 

Bankruptcy Rule 9019 between the Debtors and BETM related to the use of Available Cash 

(whether now existing or hereafter arising) in connection with confirmation of the Plan (the 

“BETM Plan Settlement”). Specifically, subject to and conditioned on confirmation of the Plan 

and the Plan becoming effective, BETM has agreed to subordinate its right to receive a Distribution 

on account of: (a) the DIP Financing Claims, (b) the BETM Adequate Protection Obligation, and 

(c) the BETM Class 4 Allowed Secured Claim, so as to enable the Debtors to use the Available 

Cash (i) to pay the Agreed Senior Claims in connection with confirmation of the Plan, and/or (ii) 

to pay for the prosecution of Causes of Action on terms acceptable to the Debtors and BETM. In 

exchange for and as a material inducement to BETM’s agreement to the BETM Plan Settlement 

and to allow the Debtors to use such Available Cash, effective automatically on the Effective Date, 

each of the Debtors, on behalf of themselves and their bankruptcy estates, and anyone claiming 

by, through, or under them (collectively, the “Debtor Releasing Parties”), shall be deemed to have 

fully and forever remised, released, acquitted, waived, disclaimed, surrendered, satisfied, and 

discharged BETM each of its present and former managers (including Jay Goldman and Louis 

Martinsen), members, officers, directors, employees, attorneys, affiliates, direct and indirect 

subsidiaries, direct and indirect parent companies, accountants, financial advisors, agents and 

representatives, (collectively, the “BETM Released Parties”) of and from any and all manner of 

claims, debts, equity or ownership interests, rights, dues, sums of money, accountings, bonds, 

warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, 

obligations, reckonings, expenses, damages, judgments, executions, objections, defenses, setoffs, 

actions, liens, suits, proceedings, claims, counterclaims, losses, costs, expenses, attorneys’ fees, 

demands, and causes of action of any kind or nature whatsoever, whether contingent, whether 

disputed or undisputed, whether or not well-founded in fact or law, whether in law, equity or 

otherwise, whether known or unknown, and whether now accrued or hereafter maturing, which 

any of the Debtor Releasing Parties ever had, now has or hereafter can, shall or may have against 

any of the BETM Released Parties, from the beginning of the world until the Effective Date, for 

or by reason of any matter, cause, omission, or thing whatsoever, including, but not limited to, any 

matter, cause, omission, or thing related to, arising out of or in connection with the Debtors, the 

Chapter 11 Cases, the Prepetition Secured Claim, the Prepetition Secured Loan Documents, the 

DIP Financing Claims and the DIP Loan Documents. Nothing contained in this release shall 

release BETM from its agreements set forth in this Plan. 

Bankruptcy Rule 9019(a) provides, in relevant part, that “[o]n motion by the trustee 

and after notice and a hearing, the court may approve a compromise or settlement.” Fed. R. 

Bankr. P. 9019(a). Section 1107(a) of the Bankruptcy Code grants a debtor-in-possession the 

rights and powers afforded to a trustee serving in a chapter 11 case. See 11 U.S.C. § 1107(a). 

Furthermore, Section 105(a) of the Bankruptcy Code provides that “[t]he court may issue any 

order, process, or judgment that is necessary or appropriate to carry out the provisions of this 

title.” See 11 U.S.C. § 105(a). Accordingly, it is within the scope of this Court’s authority to 

approve the BETM Plan Settlement. 

When considering whether to approve a compromise or settlement under Rule 9019, a 

bankruptcy court must determine if the proposed compromise or settlement is fair, equitable, 

reasonable and in the best interests of the debtor’s estate. See Protective Comm. for Indep. 

Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424 (1968); In re Se. Banking 

Case 21-13797-SMG Doc 875 Filed 04/14/23 Page 33 of 49
29 

Corp., 314 B.R. 250, 272 (Bankr. S.D. Fla. 2004) (holding a bankruptcy court considers whether 

a settlement is “fair and equitable”). Approval of a settlement in a bankruptcy proceeding is 

within the sole discretion of the Court. In re Arrow Air, 85 BR 891 (Bankr. S.D. Fla. 1988). A 

bankruptcy court is not required to decide the merits of claims, but is to assess the probability 

of succeeding on those claims. See In re Vazquez, 325 B.R. 30, 35 (Bankr. S.D. Fla. 2005). 

“It is generally recognized that the law favors settlement of disputes over litigation for litigation 

sake.” In re Bicoastal Corp., 164 B.R. 1009, 1016 (Bankr. M.D. Fla. 1993). Compromises and 

settlements are looked upon favorably in bankruptcy cases because they “minimize costly litigation 

and further parties’ interests in expediting the administration of the bankruptcy estate.” Motors 

Liquidation Co., 555 B.R. 355, 364-65 (Bankr. S.D.N.Y. 2016) (citing Myers v. Martin (In re 

Martin), 91 F.3d 389, 393 (3d Cir. 1996)); see also Protective Comm. for Indep. Stockholders of 

TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424 (1968); Martin v. Kane (In re A&C 

Properties), 784 F.2d 1377, 1380-81 (9th Cir. 1986); 10 Collier on Bankruptcy ¶ 9019.01 (16th 

ed. 2017) (“Compromises are favored in bankruptcy.”). 

The inquiry need only determine whether the settlement falls below the lowest point of the 

range of reasonableness. See In re W.T. Grant Co., 699 F.2d 599, 608 (2d Cir.), cert. denied, sub 

nom., Cosoff v. Rodman, 464 U.S. 822 (1983). 

The United States Court of Appeals for the Eleventh Circuit has set forth four factors to 

assist bankruptcy courts in determining whether a settlement proposal meets the appropriate 

standard. These factors are as follows: 

a. the probability of success in the litigation; 

b. the difficulties, if any, to be encountered in the matter of collection; 

c. the complexity of the litigation involved, and the expense, inconvenience and delay 

necessarily attending it; and 

d. the paramount interest of the creditors and a proper deference to their reasonable 

views in the premises. 

Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.), 898 F.2d 1544, 1549 (11th Cir. 1990). 

See also Romagosa v. Thomas (In re Van Diepen, P.A.), 236 Fed. Appx. 498, 504 (11th Cir. 2007) 

(setting forth Justice Oaks factors and affirming bankruptcy court’s approval of settlement 

agreement). 

Appellate courts review a bankruptcy court’s approval of a settlement or compromise to 

determine whether there is a clear showing that the bankruptcy court abused its discretion. In re 

Van Diepen, P.A., 236 Fed. Appx. at 504; In re Bicoastal Corp., 164 B.R. at 1016 (stating “the 

Bankruptcy Court has broad discretion to approve a compromise.”). Moreover, “[t]he bankruptcy 

court is not required to rule on the merits, and must look only to the probabilities.” Id. Settlements 

or compromises should be approved unless they “fall below the lowest point in the range of 

reasonableness.” In re Bicoastal Corp., 164 B.R. at 1016. 

The Debtors believe and submit that as applied to the BETM Plan Settlement herein, the 

Justice Oaks factors weigh heavily in favor of approval of the terms and conditions of the BETM 

Plan Settlement. First, with regard to the “probability of success in litigation” and the “complexity 

of the litigation” factors, the Debtors, without the consent of BETM to use the Available Cash on 

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30 

which BETM has senior Liens and Claims, the Debtors would not succeed in any litigation to 

compel BETM to allow such use. As to the “collection factor,” the Debtors do not believe it is 

relevant to the analysis of the BETM Plan Settlement. 

With regard to the final factor of “paramount interests of creditors,” the Debtors assert that 

it weighs heavily in favor of approving the BETM Plan Settlement and confirming the Plan. 

Without the BETM Plan Settlement, the Debtors would not be able to confirm the Plan and make 

Distributions to the holders of Agreed Senior Claims. In fact, the Debtors would be required to 

turnover all Available Cash to BETM and then either convert these Chapter 11 Cases to cases 

under Chapter 7 of the Bankruptcy Code or seek dismissal of these Chapter 11 Cases. In either 

situation, without the BETM Plan Settlement, no other creditors, namely the Settled 

Administrative Claims, would receive any Distribution. 

For the foregoing reasons, the Debtors submit that the BETM Plan Settlement satisfies the 

applicable Justice Oaks factors, falls well above the lowest point in the range of reasonableness, 

is fair and equitable, is in the best interest of all Creditors and, accordingly, should be approved 

upon and in connection with confirmation of the Plan. 

D. Distributions 

The Distributions will be made in accordance with the Plan by the Debtors, as applicable 

and as set forth herein. 

E. Liquidation and Dissolution of Debtors. 

On or after the Effective Date, the Reorganized Debtors shall have the power and authority 

to take any actions necessary in his discretion to dissolve the Debtors, including the filing of any 

documents with the secretary of state for the state in which such dissolved Debtor is formed 

without further order of the Bankruptcy Court or without the need for any corporate action. 

F. Preservation and Abandonment of Records.

After the Effective Date, the Debtors shall be authorized to preserve or abandon (with or 

without destruction) the Debtors’ books and records as deemed appropriate by the CRO in the 

exercise of his reasonable business judgment and without further order of the Court. 

G. Deadline for Filing Applications for Professional Fee Claims.

All parties seeking payment of Professional Fee Claims must file with the Bankruptcy 

Court a final application and/or an application for payment of reasonable fees and expenses under 

Bankruptcy Code section 503(b), as applicable, pursuant to the Court’s Disclosure Statement 

Order. 

H. Disallowance of Claims Without Further Order of the Court.

As of the Effective Date, any Scheduled Claim designated as disputed, contingent, or 

unliquidated in amount and for which a Proof of Claim has not been filed by the Creditor by the 

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31 

applicable Bar Date shall be deemed Disallowed and expunged. All Scheduled Claims that 

correspond to a Proof of Claim filed by a particular Creditor by the applicable Bar Date shall be 

deemed to have been superseded by such later filed Proof of Claim, and the Scheduled Claim, 

regardless of priority, shall be expunged from the Claims register; provided however, that such 

proofs of Claim shall be subject to objection in accordance with Article VIII. 

I. Post-Effective Date Reports and Fees. 

Notwithstanding any other provisions of the Plan to the contrary, the Debtors shall pay the 

United States Trustee the appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), within 

fourteen (14) days of the entry of the order confirming the Plan, for pre-confirmation periods and 

simultaneously file all the monthly operating reports for the relevant periods, indicating the cash 

disbursements for the relevant period. The Debtors shall further pay the United States Trustee the 

appropriate sum required pursuant to 28 U.S.C. § 1930(a)(6), based upon all post-confirmation 

periods within the time period set forth in 28 U.S.C. § 1930(a)(6), based upon all post-confirmation 

disbursements made by the Debtors, until the earlier of the closing of this case by the issuance of 

a Final Decree by the Bankruptcy Court, or upon the entry of an Order by the Bankruptcy Court 

dismissing this case or converting this case to another chapter under the Bankruptcy Code, and the 

Debtors shall provide to the United States Trustee upon the payment of each post-confirmation 

payment, and concurrently filed with the Court, post-confirmation quarterly operating reports 

indicating all the cash disbursements for the relevant period. 

J. Preservation of Causes of Action. 

Except as otherwise provided in this Plan or in any contract, instrument, release, or 

agreement entered into in connection with the Plan, in accordance with Bankruptcy Code section 

1123(b), all Claims and Causes of Action that the Debtors or the Estates may have against any 

Person or Entity are preserved on and from and after the Effective Date, including, without 

limitation, any and all Causes of Action the Debtors, the Estates, or other appropriate party in 

interest may have or assert under Bankruptcy Code sections 502, 510, 522(f), 522(h), 541, 542, 

543, 544, 545, 547, 548, 549, 550, 551, 553 and 724(a). 

The Causes of Actions include the Debtors’ prosecution and/or defense of any Claim, 

Cause of Action or objections to Claim that the Debtors have commenced, may commence or 

become involved in against, or with, any Person or Entity which arises out of events related to the 

Debtors or their operations, either before or after the Petition Date, including but not limited to, 

any Claims or Causes of Action that the Debtors may have against pre-petition professionals, 

including law firms and lawyers, who represented the Debtors, provided services to the Debtors or 

were otherwise involved with the Debtors. 

UNLESS SPECIFICALLY PROVIDED FOR HEREIN, THE PLAN DOES NOT, 

AND IS NOT INTENDED TO, RELEASE ANY CAUSE OF ACTION OR OBJECTIONS 

TO CLAIMS, AND ALL SUCH RIGHTS ARE SPECIFICALLY RESERVED IN FAVOR 

OF THE DEBTORS. Creditors are advised that legal rights, claims and rights of action the 

Debtors may have against them, if they exist, are retained under the Plan for prosecution unless a 

specific order of the Bankruptcy Court authorizes the Debtors to release such claims. As such, 

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Creditors are cautioned not to rely on (i) the absence of the listing of any legal right, claim or right 

of action against a particular Creditor in the Disclosure Statement, the Plan, or the Schedules, or 

(ii) the absence of litigation or demand prior to the Effective Date of the Plan as any indication 

that the Debtors do not possess or do not intend to prosecute a particular claim or Cause of Action 

if a particular Creditor votes to accept the Plan. It is the expressed intention of the Plan to preserve 

rights, objections to Claims, and rights of action of the Debtors, whether now known or unknown, 

for the benefit of Debtors’ Estates. A Cause of Action shall not, under any circumstances, be 

waived as a result of the failure of the Debtors to describe such Cause of Action with specificity 

in the Plan or in the Disclosure Statement; nor shall the Debtors, as a result of such failure, be 

estopped or precluded under any theory from pursuing any such Cause of Action. Nothing in the 

Plan operates as a release of any Cause of Action. 

The Estates shall remain open, even if the Chapter 11 Cases shall have been closed, as to 

any and all objections to Claims and Causes of Action until such time as all objections to Claims 

and the Causes of Action have been fully administered and the recoveries therefrom have been 

received. 

K. Section 1146 Exemption from Certain Taxes and Fees. 

Pursuant to and to the extent set forth in Bankruptcy Code section 1146(a), any issuance, 

transfer, or exchange of a security, or the making or delivery of an instrument of transfer of 

property, pursuant to or in connection with this Plan shall not be subject to any Stamp or Similar 

Tax or governmental assessment in the United States or by any other Governmental Unit, and the 

Confirmation Order shall direct the appropriate federal, state or local (domestic or foreign) 

governmental officials or agents to forgo the collection of any such Stamp or Similar Tax or 

governmental assessment and to accept for filing and recordation instruments or other documents 

evidencing such action or event without the payment of any such Stamp or Similar Tax or 

governmental assessment. Such exemption specifically applies, without limitation, to all actions, 

agreements and documents necessary to evidence and implement the provisions of, transactions 

contemplated by and the distributions to be made under this Plan. 

L. Closing of the Chapter 11 Cases. 

Notwithstanding anything to the contrary in the Bankruptcy Rules or Local Rules of the 

Bankruptcy Court providing for earlier closure of the Chapter 11 Cases, when the Debtors’ 

Available Cash has been distributed in accordance with the Plan, or at such earlier time as the 

Debtors deem appropriate, the Debtors shall seek authority from the Bankruptcy Court to close the 

Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules. 

ARTICLE VII 

 PROVISIONS GOVERNING DISTRIBUTIONS 

A. Manner of Cash Payments Under the Plan. 

Any Distribution pursuant to the Plan, to the extent posted in the United States mail, shall 

be deemed made when deposited by the Debtors (or their respective agent(s)), as applicable, into 

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33 

the United States mail, or paid by wire transfer. At the option of the Debtors any Cash payment 

to be made pursuant to the Plan shall be made, at the election of the Debtors by check drawn on a 

domestic bank, by wire transfer, or by ACH, from a domestic bank, or other method mutually 

agreed upon by the holder of the Allowed Claim or Allowed Equity Interest and the Debtors. 

Whenever any Distribution to be made under the Plan shall be due on a day other than a Business 

Day, such Distribution shall instead be made, without interest, on the immediately succeeding 

Business Day, but shall be deemed to have been made on that due date. 

B. Delivery of Distributions

Subject to Bankruptcy Rule 9010 and except as otherwise provided herein, Distributions 

to the holders of Allowed Claims and Equity Interests shall be made by the Distribution Agent at 

(a) the address of each holder as set forth in the Schedules, unless superseded by the address set 

forth on proofs of Claim filed by such holder or (b) the last known address of such holder if no 

Proof of Claim is filed or if the Debtors, as applicable, have not been notified in writing of a change 

of address. 

C. Undeliverable and Unclaimed Distributions

In the event that any Distribution to any holder of an Allowed Claim made by the Debtors, 

as applicable is returned as undeliverable, the Debtors, as applicable, shall use commercially 

reasonable efforts to determine the current address of each holder, but no Distribution to such 

holder shall be made unless and until the Debtors, as applicable, have determined the then current 

address of such holder; provided, however, that all Distributions to holders of Allowed Claims 

made by the Debtors, as applicable, that are unclaimed for a period of ninety (90) days after the 

date of the first attempted Distribution shall have its, his or her Claim for such undeliverable 

Distribution deemed satisfied and will be forever barred from asserting any such Claim against the 

Debtors, as applicable, or their property. Any Distributions which are undeliverable or have not 

been negotiated within the time set forth above shall be deemed unclaimed property under section 

347(b) of the Bankruptcy Code and revested in the particular Debtor, as applicable, and redistributed in accordance with the terms of this Plan. The Debtors shall have no further obligation 

to make any Distribution to the holder of such Claim on account of such Claim, and any entitlement 

of any holder of such Claim to any such Distributions shall be extinguished and forever barred. 

D. Compliance with Tax Requirements

In connection with the Plan, to the extent applicable, the Debtors shall comply with all 

federal, state or local withholding taxes or other amounts required to be withheld under applicable 

law shall be deducted from Distributions pursuant to the Plan. The Debtors may withhold from 

any Distributions under and pursuant to the Plan to any Person or Entity any and all amounts, 

determined in the reasonable discretion of the Debtors required to be withheld by any law, 

regulation, rule, ruling, directive, or other governmental requirement; provided, however, that the 

Debtors shall not make any such withholdings described in this paragraph (other than routine tax 

withholdings with respect to employee-related claims (if any)) from any payment or Distribution 

on account of Claims or Equity Interests without first filing a notice with the Court (and serving 

such notice on the holder of the Claim or Equity Interest) describing the nature and amount of the 

proposed withholding and providing such holder an opportunity to object. All such amounts 

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withheld and paid to the appropriate taxing authority shall be treated as amounts distributed to 

such holders of the Claims and/or Equity Interests. The Debtors shall be authorized to collect such 

tax information from the holders of Claims and/or Equity Interests (including social security 

numbers or other tax identification numbers) as it in its sole discretion deems necessary to 

effectuate the Plan. In order to receive Distributions under the Plan, all holders of Claims and 

Equity Interests will need to identify themselves to the Debtors and provide all tax information the 

Debtors deem appropriate (including completing the appropriate Form W-8 or Form W-9, as 

applicable to each holder). The Debtors may refuse to make a Distribution to any holder of a 

Claim or Equity Interest that fails to furnish such information within the time period specified by 

the Debtors, and such Distribution shall be deemed an unclaimed Distribution under the Plan, and, 

provided further that, if the Debtors fail to withhold in respect of amounts received or distributable 

with respect to any such holder and the Debtors are later held liable for the amount of such 

withholding, such holder shall reimburse the Debtors for such liability. Notwithstanding any other 

provision of the Plan, each holder of an Allowed Claim or Allowed Equity Interest that is to receive 

a Distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction 

and payment of any tax obligations imposed by any governmental unit. 

E. No Payments of Fractional Dollars

Notwithstanding any other provision of the Plan to the contrary, no payment of fractional 

dollars shall be made pursuant to the Plan. Whenever any payment of a fraction of a dollar under 

the Plan would otherwise be required, the actual Distribution made shall reflect a rounding down 

of such fraction to the nearest whole dollar. 

F. Interest on Claims 

Except as specifically provided for in this Plan or the Confirmation Order or required by 

the Bankruptcy Code, interest shall not accrue on Claims and no holder of a Claim shall be entitled 

to interest on any Claim accruing on or after the Petition Date. Interest shall not accrue on any 

General Unsecured Claim that is a Disputed Claim in respect of the period from the Effective Date 

to the date a final Distribution is made thereon if and after that Disputed Claim becomes an 

Allowed Claim. Except as expressly provided in any Plan or in an order of the Bankruptcy Court, 

no prepetition Claim shall be Allowed to the extent that it is for post-petition interest or similar 

charges. 

G. No Distribution in Excess of Allowed Amount of Claim

Notwithstanding anything to the contrary contained in the Plan, no holder of an Allowed 

Claim shall receive in respect of that Claim any Distribution in excess of the Allowed amount of 

such Claim. 

H. Setoffs and Recoupment

The Debtors, as applicable, may setoff against, or recoup from, any Claim and the 

Distributions to be made pursuant to the Plan in respect thereof, any Claims or defenses of any 

nature whatsoever that such Debtor, as applicable, or the Estate may have against the holder of 

such Claim, but neither the failure to do so nor the allowance of any Claim under such Plan shall 

constitute a waiver or release by such Debtor, as applicable, or such Estate of any right of setoff 

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35 

or recoupment that any of them may have against the holder of any Claim. Any such setoffs or 

recoupments may be challenged in Bankruptcy Court. Notwithstanding any provision in any Plan 

to the contrary, nothing herein or in a Plan shall bar any creditor from asserting its setoff or 

recoupment rights to the extent permitted under section 553 or any other provision of the 

Bankruptcy Code; provided, however, that such setoff or recoupment rights are timely asserted; 

provided further that all rights of the Debtors, as applicable, and the Estates with respect thereto 

are reserved. 

I. De Minimis Distributions

Notwithstanding anything to the contrary in the Plan, the Debtors shall not be required to 

make a Distribution to any Creditor if the dollar amount of the Distribution is less than $10 or 

otherwise so small that the cost of making that Distribution exceeds the dollar amount of such 

Distribution. 

J. Distributions in Satisfaction; Allocation

Except for the obligations expressly imposed by the Plan and the property and rights 

expressly retained under the Plan, if any, the Distributions and rights that are provided in the Plan 

shall be in complete satisfaction and release of all Claims against, liabilities in, Liens on, 

obligations of and Equity Interests in the Debtors and their Estates, whether known or unknown, 

that arose or existed prior to the Effective Date. Distributions received in respect of Allowed 

Claims will be allocated first to the principal amount of such Claims, with any excess allocated to 

unpaid accrued interest (if any). 

K. No Distributions on Late-Filed Claims 

Except as otherwise provided in a Final Order of the Bankruptcy Court, any Claim as to 

which a Proof of Claim was required to be filed and was first filed after the applicable bar date in 

these Chapter 11 Cases, including, without limitation, the General Bar Date and any bar date 

established in the Plan or in the Confirmation Order, shall automatically be deemed a late-filed 

Claim that is disallowed in the Chapter 11 Cases, without the need for (a) any further action by the 

Debtors, as applicable, (b) an order of the Bankruptcy Court. Nothing in this paragraph is intended 

to expand or modify the applicable bar dates or any orders of the Bankruptcy Court relating thereto. 

ARTICLE VIII 

DISPUTED CLAIMS 

A. Resolution of Disputed Claims 

The Debtors, as applicable, shall have the right to make and file objections to Claims in the 

Bankruptcy Court. Unless otherwise ordered by the Bankruptcy Court after notice and a hearing, 

all Disputed Claims shall be subject to the exclusive jurisdiction of the Bankruptcy Court. 

B. Objection Deadline 

All objections to Claims shall be filed no later than the date set by the Disclosure Statement 

Order, unless otherwise ordered by the Bankruptcy Court after notice and a hearing, with notice 

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only to those parties entitled to notice in the Chapter 11 Cases pursuant to Bankruptcy Rule 2002. 

C. Estimation of Claims 

At any time, each Debtor, as applicable, may request that the Bankruptcy Court estimate 

any contingent or unliquidated Claim to the extent permitted by section 502(c) of the Bankruptcy 

Code regardless of whether such Debtor or Reorganized Debtor, as applicable, has previously 

objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the 

Bankruptcy Court shall have jurisdiction to estimate any Claim at any time during litigation 

concerning any objection to such Claim, including during the pendency of any appeal relating to 

any such objection. If the Bankruptcy Court estimates any contingent or unliquidated Claim, that 

estimated amount shall constitute either the Allowed amount of such Claim or a maximum 

limitation on the Claim, as determined by the Bankruptcy Court. If the estimated amount 

constitutes a maximum limitation on the Claim, the respective Debtor or Reorganized Debtor, as 

applicable, may elect to pursue supplemental proceedings to object to the ultimate allowance of 

the Claim. All of the aforementioned Claims’ objection, estimation and resolution procedures are 

cumulative and not exclusive of one another. Claims may be estimated and subsequently 

compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy 

Court. 

D. No Distributions Pending Allowance; Disputed Claims Reserve 

Notwithstanding any other provision in the Plan, no Distributions shall be made under the 

Plan on account of any Disputed Claim until it becomes an Allowed Claim. To protect the interests 

of holders of Disputed Claims, the Debtors shall reserve an amount that represents the Disputed 

Claim (or portion thereof) that would otherwise be distributed to the holder of each Disputed Claim 

(or portion thereof) if such Disputed Claim was Allowed in the amount set forth on the holder’s 

Proof of Claim or as estimated by the Bankruptcy Court. As soon as practicable after a Disputed 

Claim becomes an Allowed Claim, the holder of such Allowed Claim shall receive from a 

Distribution in an amount equal to the Distribution that such holder would have received had such 

Disputed Claim been an Allowed Claim on the Effective Date. If and when a Disputed Claim or 

any portion thereof becomes a Disallowed Claim, the Distributions that would otherwise be made 

thereon shall be available for Distribution to holders of Allowed Claims or Equity Interests 

pursuant to the Plan. 

ARTICLE IX 

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 

A. General Provisions. 

All executory contracts and unexpired leases of the Debtors shall be deemed rejected as of 

the Effective Date, unless a particular executory contract or unexpired lease (i) has previously been 

assumed or rejected pursuant to an order of the Bankruptcy Court or applicable provisions of the 

Bankruptcy Code, (ii) has expired or otherwise terminated pursuant to its terms, or (iii) is the 

subject of a separate assumption motion filed by one of the Debtors under Bankruptcy Code section 

365. 

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B. Notice of Deemed Rejection.

Any party to an executory contract or unexpired lease that was previously rejected pursuant 

to an order of the Bankruptcy Court or applicable provisions of the Bankruptcy Code and failed to 

timely file a Claim for damages from such rejection pursuant to the deadlines established in the 

Rejection/Termination Orders shall be deemed to have waived any Claim in connection with the 

rejection and/or termination of such contract or lease. 

ARTICLE X 

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE 

A. Conditions Precedent to the Effective Date. 

The Effective Date shall not occur and no obligations under the Plan shall come into 

existence unless each of the following conditions is met or, alternatively, are waived by the 

Debtors. 

(a) The Confirmation Order shall have become a Final Order and such order shall not 

have been amended, modified, vacated, stayed, or reversed; 

(b) All asserted Administrative Claims, other than the Settled Administrative Claims, 

shall have been resolved by a Final Order of the Court in a manner acceptable to BETM; 

(c) All asserted Priority Claims and Priority Tax Claims, other than the Settled Priority 

Tax Claims, shall have been resolved by a Final Order of the Court in a manner acceptable to 

BETM; 

(d) All documents contemplated by this Plan to be executed and delivered on or before 

the Effective Date shall have been executed and delivered; 

(e) There shall be no stay or injunction in effect with respect to the Confirmation Order; 

and 

(f) The Plan Documents shall be in a form and substance reasonably acceptable to the 

Debtors, and have been duly executed and delivered; provided, however, that no party to any such 

agreements and instruments, may unreasonably withhold its execution and delivery of such 

documents to prevent this condition precedent from occurring. 

B. Waiver of Conditions Precedent. 

Notwithstanding the foregoing conditions, the Debtors reserve, in their sole discretion, but 

with the consent of BETM as applicable, the right to waive the occurrence of any condition 

precedent or to modify any of the foregoing conditions precedent. Any such written waiver of a 

condition precedent set forth in this Plan may be effected at any time, without notice, without leave 

or order of the Bankruptcy Court, and without any formal action other than proceeding to 

consummate the Plan. Any actions required to be taken on the Effective Date or Confirmation 

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Date (as applicable) shall take place and shall be deemed to have occurred simultaneously, and no 

such action shall be deemed to have occurred prior to the taking of any other such action. 

ARTICLE XI 

EFFECT OF CONFIRMATION; INJUNCTION, EXCULPATION 

AND RELATED PROVISIONS 

A. Settlement, Compromise, and Release of Claims and Equity Interests 

Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019, and in 

consideration for the Distributions and other benefits provided pursuant to the Plan, the provisions 

of the Plan shall constitute a good faith compromise of all Claims and Equity Interests. The entry 

of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or 

settlement of all Claims and Equity Interests, as well as a finding by the Bankruptcy Court that 

such compromises or settlements are fair, equitable, reasonable and in the best interests of the 

Debtor, the Estate and holders of Claims and Equity Interests. 

B. Plan Injunction. 

Except as otherwise expressly provided for in the Plan or in obligations issued 

pursuant to the Plan, all Persons and Entities are permanently enjoined, on and after the 

Effective Date, on account of any Claim or Equity Interest, from: (i) commencing or 

continuing in any manner any action or other proceeding of any kind against the Debtors, 

their Estates and their successors and assigns and its assets and properties; (ii) enforcing, 

determining, attaching, collecting or recovering by any manner or means any liability, claim, 

judgment, award, decree or order against the Debtors and their Estates, and their successors 

and assigns and their assets and properties; (iii) creating, perfecting or enforcing any 

encumbrance of any kind against the Debtors, and their Estates and their successors and 

assigns and their assets and properties; and (iv) commencing or continuing in any manner 

any action or other proceeding of any kind in respect of any Claim or Equity Interest or 

Cause of Action released or settled hereunder, provided however, that nothing in the Plan or 

Confirmation Order shall constitute a waiver of any rights or defenses of such persons with 

respect to such actions, provided, further, that such injunction shall neither bar any entity 

from asserting any defense in an action commenced by or on behalf of the Debtors, nor 

prohibit any entity from asserting any right expressly preserved or contemplated by the 

Plan; provided, furthermore, that nothing contained in the Plan or Confirmation Order shall 

preclude the IRS from pursuing an action against any entity, or preclude any governmental 

entity from pursuing a criminal, police or regulatory action against any entity. Nothing 

herein shall be construed as enjoining any party’s prosecution or defense of any appeal of 

any order entered by the Bankruptcy Court in these Chapter 11 Cases. 

C. All Distributions Received in Full and Final Satisfaction. 

Except as otherwise set forth herein, all payments and all Distributions to be made in 

accordance with the Plan on account of Claims (including Administrative Claims) shall be received 

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in full and final satisfaction, settlement, and release of the Estates’ obligations for such Claims as 

against the Debtors and their property and the Estates. 

D. No Discharge of Debtors. 

Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation of the Plan will not 

discharge Claims against the Debtors; provided, however, that no Holder of any Claim or Equity 

Interest may, on account of such Claim or Equity Interest, seek or receive any payment or other 

Distribution from, or seek recourse against any of the Estates, and/or their respective successors, 

assigns and/or property, except as expressly provided in the Plan. 

E. No Modification of Res Judicata Effect. 

The provisions of this Article XI are not intended, and shall not be construed, to modify 

the res judicata effect of any order entered in the Chapter 11 Cases, including, without limitation, 

the Confirmation Order, the DIP Financing/Cash Collateral Orders, and any order finally 

determining Professional Fee Claims to any Professional. 

F. Exculpation. 

Notwithstanding anything herein to the contrary, the Exculpated Parties shall neither 

have nor incur any liability to any Person or Entity for any and all Claims and Causes of 

Action arising on or after the Petition Date up through the time these Chapter 11 Cases are 

closed, involving or relating to any act taken or omitted to be taken in connection with, or 

related to, prosecuting these Chapter 11 Cases, formulating, negotiating, preparing, 

disseminating, implementing, or administering any aspect of these Chapter 11 Cases, 

including the sale of property of the Estate, distributing property of the Estate or related in 

any way to any other contract, instrument, release or other agreement or document created 

or entered into in connection with these Chapter 11 Cases, the Plan or any other post-petition 

act taken or omitted to be taken in connection with or in contemplation of the administration 

of the Estate; provided, however, that the foregoing provisions of this paragraph shall have 

no effect on the liability of any person that results from any such act or omission that is 

determined to have constituted gross negligence, willful misconduct, or fraud; provided 

further, that nothing contained in the Confirmation Order shall preclude any governmental 

entity from pursuing a criminal, police or regulatory action against any entity. 

G. Limitations on Exculpation. 

Nothing in this Plan shall be construed to release or exculpate any Person from, or 

require indemnification of, any Person against losses arising from criminal conduct, 

intentional unauthorized misuse of confidential information that causes damages, or limit 

the liability of the professionals of the Debtors to the Debtors pursuant to Rule 4-1.8(h) of 

the Florida Rules of Professional Conduct (“Limiting Liability for Malpractice”). 

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ARTICLE XII 

RETENTION OF JURISDICTION BY BANKRUPTCY COURT 

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective 

Date, the Bankruptcy Court shall, after the Effective Date, retain such jurisdiction over the Chapter 

11 Cases and all Persons and Entities with respect to all matters related to these Chapter 11 Cases, 

the Debtors and the Plan as is legally permissible, including, without limitation, jurisdiction to: 

(i) allow, disallow, determine, liquidate, classify, estimate or establish the 

priority or secured or unsecured status of any Claim against or liability of the Debtors, including 

the resolution of any request for payment of any Administrative Claim and the resolution of any 

and all objections to the allowance or priority of Claims; 

(ii) grant, deny or otherwise resolve any and all applications of Professionals or 

Persons retained in these Chapter 11 Cases by the Debtors for allowance of compensation or 

reimbursement of expenses authorized pursuant to the Bankruptcy Code or the Plan, for periods 

ending on or before the Effective Date; 

(iii) resolve any matters related to the assumption, assignment or rejection of 

any executory contract or unexpired leases to which the Debtors are a party or with respect to 

which the Debtors may be liable and to hear, determine and, if necessary, liquidate, any Claims 

arising therefrom; 

(iv) ensure that Distributions to holders of Allowed Claims and Equity Interests 

are accomplished pursuant to the provisions of the Plan, including by resolving any disputes 

regarding, as applicable, the Debtors’ entitlement to recover assets held by third parties; 

(v) decide, adjudicate or resolve any motions, contested or litigated matters and 

any other matters, including all Causes of Action, and grant or deny any applications involving the 

Debtors that may be pending on the Effective Date or filed after the Effective Date; 

(vi) enter such orders as may be necessary or appropriate to implement or 

consummate the provisions of the Plan and all other contracts, instruments, releases, indentures 

and other agreements or documents adopted in connection with the Plan or the Disclosure 

Statement; 

(vii) issue injunctions, enforce them, enter and implement other orders or take 

such other actions as may be necessary or appropriate to restrain interference by any Entity with 

the Effective Date or enforcement of the Plan, except as otherwise provided in the Plan; 

(viii) enforce Articles within this Plan; 

(ix) resolve any cases, controversies, suits or disputes with respect to the 

exculpation, injunction and other provisions contained in Article XI, and enter such orders as may 

be necessary or appropriate to implement or enforce all such releases, injunctions and other 

provisions; 

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(x) enter and implement such orders as necessary or appropriate if the 

Confirmation Order is modified, stayed, reversed, revoked or vacated; 

(xi) resolve any other matters that may arise in connection with or related to the 

Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, 

indenture or other agreement or document adopted in connection with the Plan or the Disclosure 

Statement; and 

(xii) enter an order and a Final Decree closing these Chapter 11 Cases. 

ARTICLE XIII 

MISCELLANEOUS PROVISIONS 

A. Modification of Plan 

 Subject to the limitations contained in the Plan, the Debtors reserve the right in their sole 

discretion, in accordance with the Bankruptcy Code and the Bankruptcy Rules to amend or modify 

the Plan prior to the entry of the Confirmation Order, including amendments or modifications to 

satisfy section 1129(b) of the Bankruptcy Code; provided, however, that (1) any pre-Confirmation 

Date amendments shall not materially or adversely affect the interests, rights or treatment of any 

Allowed Claims or Equity Interests under the Plan; and (2) after the entry of the Confirmation 

Order, the Debtors may, upon order of the Bankruptcy Court, amend or modify the Plan, in 

accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or 

reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the 

purpose and intent of the Plan. 

B. Revocation of Plan 

 The Debtors reserve the right in their sole discretion to revoke or withdraw the Plan prior 

to the entry of the Confirmation Order, and to file subsequent chapter 11 plans. If the Debtors 

revoke or withdraws the Plan or if entry of the Confirmation Order or the Effective Date does not 

occur, then: (1) the Plan shall be null and void in all respects; and (2) nothing contained in the Plan 

shall: (a) constitute a waiver or release of any Claims by or against, or any Equity Interests in, the 

Debtors or any other Entity; (b) prejudice in any manner the rights of either of the Debtors or any 

other Entity; or (c) constitute an admission of any sort by either of the Debtors or any other Entity. 

C. Binding Effect 

On the Effective Date, the provisions herein shall bind any holder of a Claim against, or 

present or former direct or indirect holder of an Equity Interest in, the Debtors and such holder’s 

respective successors and assigns, whether or not the Claim or Equity Interest of such holder is 

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Impaired under the Plan, whether or not such holder has accepted the Plan and whether or not such 

holder is entitled to a Distribution under the Plan. 

D. Successors and Assigns 

The rights, benefits and obligations of any Entity named or referred to herein shall be 

binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or assign 

of such Entity. 

E. Governing Law 

Except to the extent that the Bankruptcy Code or Bankruptcy Rules apply, unless otherwise 

stated, and subject to the provisions of any contract, instrument, release, indenture or other 

agreement or document entered into in connection herewith, the rights and obligations arising 

hereunder shall be governed by, and construed and enforced in accordance with, the laws of the 

State of Florida without giving effect to the principles of conflict of laws thereof. 

F. Severability. 

Should any provision in this Plan be determined to be unenforceable, such determination 

shall in no way limit or affect the enforceability and operative effect of any or all other provisions 

of this Plan. 

G. Regulatory Approval. 

No regulatory approval is necessary for confirmation of this Plan. 

H. Reservation of Rights 

The Plan shall have no force or effect unless and until the Effective Date occurs. Neither 

the filing of the Plan, any statement or provision contained herein, nor the taking of any action by 

the Debtors or any Entity with respect to the Plan shall be or shall be deemed to be an admission 

or waiver of any rights of: (1) the Debtors with respect to the holders of Claims or Equity Interests 

or other parties-in-interest; or (2) any holder of a Claim or other party-in-interest prior to the 

Effective Date. 

I. Section 1125(e) Good Faith Compliance 

Confirmation of the Plan shall act as a finding by the Bankruptcy Court that the Debtors 

have acted in “good faith” under sections 1125(e) and 1129(a)(3) of the Bankruptcy Code. 

J. Further Assurances 

The Debtors, all holders of Claims receiving Distributions hereunder, and all other parties 

in interest shall, from time to time, prepare, execute and deliver any agreements or documents and 

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take any other actions as may be necessary or advisable to effectuate the provisions and intent of 

the Plan or the Confirmation Order. 

K. Service of Documents 

Any pleading, notice or other document required herein to be served on or delivered to the 

Debtors shall be sent by both email and first class, certified U.S. mail, postage prepaid as follows: 

To the Debtors: VENABLE, LLP 

Attn: Paul J. Battista, Esq. 

Attn: Mariaelena Gayo-Guitian, Esq. 

100 SE 2nd Street, 44th Floor 

Miami, FL 33131 

Telephone: (305) 349-2300 

 Email: pjbattista@venable.com

 Email: mguitian@venable.com

L. Filing of Additional Documents 

On or before the Effective Date, the Debtors may file with the Bankruptcy Court all 

agreements and other documents that may be necessary or appropriate to effectuate and further 

evidence the terms and conditions hereof. 

M. No Stay of Confirmation Order 

The Debtors shall request that the Court waive stay of enforcement of the Confirmation 

Order otherwise applicable, including pursuant to Federal Rules of Bankruptcy Procedure 3020(e), 

6004(h) and 7062. 

N. Bankruptcy Rule 9019 Request; Impact 

The Plan, including the Plan Documents or other Plan Document, may provide for one or 

more compromises or settlements. Pursuant to Bankruptcy Rule 9019, the Debtors hereby request 

approval of all compromises and settlements included in the Plan, and entry of the Confirmation 

Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of any 

such compromise or settlement. 

ARTICLE XIV 

CONCLUSION 

The Debtors assert that confirmation of the Plan is in the best interests of all holders of 

Allowed Claims and Equity Interests and urge all such holders to review the Plan and the 

Disclosure Statement in their entirety and then to vote to accept the Plan. 

 

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Dated: April 14, 2023 

 Liberty Power Holdings, LLC 

By: /s/ Bob Butler 

Chief Restructuring Officer 

Liberty Power Holdings, LLC 

LPT, LLC 

By: /s/ Bob Butler 

Chief Restructuring Officer 

LPT, LLC 

Liberty Power Maryland, LLC 

By: /s/ Bob Butler 

Chief Restructuring Officer 

Liberty Power Maryland, LLC 

Liberty Power District of Columbia, LLC 

By: /s/ Bob Butler 

Chief Restructuring Officer 

Liberty Power District of Columbia, LLC 

VENABLE, LLP. 

Attorneys for the Debtors 

100 S.E. Second Street, 

44th Floor 

Miami, FL 33131 

Telephone: (305) 349-2300 

 By: /s/ Paul J. Battista 

Paul J. Battista, Esq. Fla. 

Bar No. 884162 

Email: pjbattista@venable.com

Mariaelena Gayo-Guitian, Esq. 

Fla. Bar No. 0813818 

Email: mguitian@venable.com

Heather L. Harmon, Esq. 

Fla. Bar No. 013192 

mlheather@venable.com

 

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