1 

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) 

/ 

DECLARATION OF BOB BUTLER, CHIEF RESTRUCTURING OFFICER, IN 

SUPPORT OF (A) APPROVAL OF THE ADEQUACY OF DEBTORS’ DISCLOSURE 

STATEMENT ON A FINAL BASIS, AND (B) CONFIRMATION OF THE CHAPTER 11 

PLAN OF LIQUIDATION PROPOSED BY LIBERTY POWER HOLDINGS, LLC, LPT, 

LLC, LIBERTY POWER MARYLAND, LLC AND LIBERTY POWER DISTRICT OF 

COLUMBIA, LLC UNDER CHAPTER 11 OF THE BANKRUPTCY CODE 

I, Bob Butler, submit this declaration (“Declaration”) pursuant to 28 U.S.C. § 1746 in 

support of confirmation of the 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, dated as of April 14, 2023 (as modified, amended and/or supplemented from time to time, 

the “Plan”) [ECF No. 875],1

 and its accompanying Joint Disclosure Statement for Chapter 11 Plan 

of Liquidation Proposed by Liberty Power Holdings, LLC, LPT, LLC, Liberty Power Maryland, 

LLC and Liberty Power District of Columbia, LLC [ECF No. 880], dated as of April 14, 2023 and 

filed on April 21, 2023 (as modified, amended and/or supplemented from time to time, the 

“Disclosure Statement”), and state as follows: 

1

 Capitalized terms used herein and not otherwise defined shall have the same meaning as attributed to them in the 

Plan or, if not defined in the Plan, in the Disclosure Statement. 

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INTRODUCTION 

1. I am over the age of 18 years and am competent to testify in connection with the 

matters set forth below. 

2. I am the Chief Restructuring Officer (the “CRO”) of the Debtors. I have served in my 

current role since being engaged on April 16, 2021. The Bankruptcy Court entered Orders 

approving my engagement during these Chapter 11 Cases on May 14, 2021 and August 12, 2021 

respectively [ECF Nos. 96, 313]. As a result, I am authorized to submit this Declaration of behalf 

of the Debtors. 

3. I am a Managing Director of Berkeley Research Group, LLC (“BRG”) in Atlanta, 

Georgia and have almost 21 years of experience in the insolvency and restructuring field and 41 

years of business experience. BRG is a global consulting firm with offices around the world, 

specializing in, among other things, insolvency and restructuring matters, disputes and 

investigations, corporate finance, and performance improvement. I hold a Bachelor of Science 

degree in Accounting from the University of Arizona. I am a Certified Public Accountant and a 

member of the American Institute of Certified Public Accountants. I submit this Declaration in 

support of (a) final approval of the Disclosure Statement, and (b) confirmation of the Plan. 

4. Except as otherwise indicated, all facts set forth herein are based on my personal 

knowledge, my discussions with other members of the BRG team and the Debtors’ advisors and 

professionals, my review of relevant documents and information concerning the Debtors’ 

operations, financial affairs and restructuring initiatives, or my opinions based upon my experience 

and knowledge. 

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5. I am familiar with the terms and provisions of the Plan and the Disclosure 

Statement, having participated in the negotiations and development thereof. I am authorized to 

submit this Declaration in support of the approval of the Disclosure Statement and confirmation 

of the Plan. I make the statements in this Declaration after consultation with Debtors’ counsel 

regarding the requirements for confirmation of the Plan under Bankruptcy Code section 1129. The 

statements set forth below are true and correct to the best of my knowledge and if called to testify 

to those statements, I would do so competently. 

6. As the CRO of the Debtors, I have been involved in all aspects of the Debtors’ 

Chapter 11 Cases, including, without limitation: (i) an analysis of the Debtors’ assets, liabilities, 

capital structure, financial operations and performance; (ii) negotiations with all of the major 

creditor constituencies in these Chapter 11 Cases; (iii) negotiations and consummation of the sale 

of substantially of the Debtors’ Assets as set forth below; (iv) the review and termination or 

rejection of certain consumer and commercial contracts; (v) the investigation and settlement of 

third party litigation claims; (vi) the formulation and structuring of the Plan, including the BETM 

Plan Settlement; and (vii) the active involvement in the development of the Disclosure Statement, 

and all relevant exhibits and appendices attached thereto, including, but not limited to, the 

“Liquidation Analysis” attached to the Plan. In addition, as a part of my duties, I have supervised 

and worked closely with the Debtors’ professionals that have been involved in these Chapter 11 

Cases. 

PART I 

RELEVANT BACKGROUND 

7. On April 20, 2021 (the “Holdings Petition Date”), Holdings filed a voluntary 

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petition for relief under chapter 11 of title 11 of the United States Code (as now in effect or as 

hereafter amended, the “Bankruptcy Code”) (the “Main Bankruptcy Case”) in the United States 

Bankruptcy Court for the Southern District of Florida (the “Bankruptcy Court”). Since that time, 

Holdings has operated as a debtor-in-possession pursuant to section 1107 and 1008 of the 

Bankruptcy Code. 

8. On June 4, 2021 (the “Subsidiary Petition Date”), LPDC, LPT and LPMD 

(collectively, the “Subsidiary Debtors”), who are wholly owned subsidiaries of Holdings, each 

filed a voluntary petition for relief under the Bankruptcy Code, which Chapter 11 cases were 

jointly administered with the Main Bankruptcy Case (collectively, the “Chapter 11 Cases”). Since 

that time, the Subsidiary Debtors have operated as debtors-in-possession pursuant to Sections 1107 

and 1108 of the Bankruptcy Code. 

9. The Debtors commenced the Chapter 11 Cases with the primary purpose of 

consummating the sale of substantially of their assets. To that end, the Debtors conducted a 

fulsome marketing and sale process of the Debtors’ assets pursuant to several orders of the Court 

[ECF Nos. 98, 156, 255, 264, 277, 282, 320, 323]. As a result, on August 20, 2021, the Debtors 

filed their 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] (the “Stalking Horse Motion”), which 

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

dated August 20, 2021, between the Debtors and NRG Energy, Inc., (the “Buyer”), which 

agreement was subsequently modified and filed with the Court on August 23, 2021 by that certain 

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Notice of Filing Modifications to Stalking Horse Agreement [ECF No. 339] (the “Stalking Horse 

Agreement”). 

10. On August 26, 2021, the Court entered an Order Granting the Stalking Horse 

Motion [ECF No. 349] over certain objections filed by creditor BLT Fish, LLC, BLT Steak, LLC, 

[ECF No. 340] and Commonwealth of Massachusetts [ECF No. 342]. 

11. On August 31, 2021, the Debtors selected the Buyer, NRG Energy, Inc., as the 

Successful Bidder for the Purchased Assets as noted in that certain Notice of (I) Cancellation of 

Auction Scheduled for September 1, 2021 At 9:00 a.m., and (II) Designation of Stalking Horse 

Bidder As The Purchaser [ECF No. 352] (the “Notice of Successful Bidder”). On September 10, 

2021, the Court conducted an evidentiary hearing (the “Sale Hearing”) on the proposed sale of the 

Purchased Assets to the Buyer. 

12. On September 14, 2021, the Court entered an Order (I) Approving Sale of the 

Purchased Assets Free and Clear of Liens, Claims, Encumbrances, and Other Interest, (II) 

Authorizing Assumption and Assignment of Certain Executory Contracts and Unexpired Lease in 

Connection Therewith and (III) Granting Relief (“Sale Order”) [ECF No. 385], which Sale Order 

approved, among other things, the sale of a substantial portion of the Debtors’ “book of business,” 

namely all of the Debtors’ residential customer contracts and a portion of the Debtors’ commercial 

customer contracts as described more fully in the Stalking Horse Agreement (the “Purchased 

Assets”) free and clear of liens, claims, encumbrances, and other interest and authorized the 

assumption and assignment of certain executory contracts and unexpired leases in connection 

therewith to the Buyer. On September 22, 2021, the Debtors and the Buyer closed on the sale of 

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the Purchased Assets (as defined in the Sale Order) pursuant to the terms of the Stalking Horse 

Agreement and the Sale Order. 

13. On April 14, 2023, the Debtors filed their Plan. On April 21, 2023, the Debtors 

filed their Disclosure Statement. On April 27, 2023, the Court entered its Order (A) Conditionally 

Approving Joint Disclosure Statement; (B) Authorizing Solicitation Of Votes On Joint Plan Of 

Liquidation; (C) Approving Solicitation Procedures; (D) Approving Additional Notice 

Procedures; And (E) Scheduling A Combined Hearing On Approval Of The Joint Disclosure 

Statement And Hearing On Confirmation Of The Joint Plan Of Liquidation (the “Disclosure 

Statement Order”) [ECF No. 884], which, among other things: (a) conditionally approved the 

adequacy of the Disclosure Statement; (b) (i) scheduled a combined hearing to approve the 

adequacy of the Disclosure Statement on a final basis and confirmation of the Plan, (ii) established 

June 8, 2023 as the deadline to file objections to the adequacy of the Disclosure Statement and/or 

confirmation of the Plan, (iii) approved the solicitation procedures as described therein with 

respect to the Plan, which included establishing June 1, 2023, as the Voting Deadline, approved 

the form and manner of service of the Ballots, and (iv) approved the form and manner of service 

of certain notices related to the Plan, and (c) granted related relief. 

14. As reflected in the certificates of service that have been filed with the Court, the 

Debtors, with the assistance of their noticing agent, Stretto, solicitated acceptances of the Plan 

from BETM, and on April 23, 2023 provided notice of the date and time of the confirmation 

hearing set forth in the Disclosure Statement Order on all creditors and parties in interest [ECF 

No. 898]. To the best of my knowledge, the Debtors have complied in good faith with all 

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requirements of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules of the Bankruptcy 

Court and the solicitation procedures adopted by the Court in the Disclosure Statement Order. 

15. The primary purpose of the Plan is to effectuate the orderly wind down of the 

Debtors’ affairs by distributing the Assets of the Estates based in large part on the previously 

approved sale of substantially all of the Debtors’ Assets. Notably, the Plan provides for, inter alia, 

the BETM Plan Settlement, whereby Boston Energy Trading and Marketing, LLC (“BETM”) has 

agreed to subordinate its right to receive a Distribution on account of its DIP Financing Claims, 

the BETM Adequate Protection Obligation, and 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. 

16. On June 9, 2023, the Debtors filed the Debtors’ Expedited Motion to Modify Joint 

Chapter 11 Plan Of Liquidation Dated April 14, 2023 [ECF No. 923] (the “Modification 

Motion”), which Modification Motion seeks to modify certain provisions of the Plan pursuant to 

Section 1127 of the Bankruptcy Code related to (i) the procedures for approving settlements and 

compromises of Causes of Action after the Effective Date, and (ii) adding a condition to the 

occurrence of the Effective Date. I understand that BETM supports the Modification Motion. 

PART II 

OBJECTIONS TO CONFIRMATION AND RESOLUTION 

17. I understand that there were no formal objections filed to confirmation of the Plan 

before the June 8, 2023 deadline imposed by the Bankruptcy Court in the Disclosure Statement 

Order. 

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18. However, I am aware that counsel to the Assignee for the Benefit of Creditors for 

Liberty Power Corp., Philip Von Kahle, raised an informal objection with counsel to the Debtors 

in respect of the extent of the releases being proposed under the BETM Plan Settlement. In the 

event the Court confirms the Plan, then I understand that counsel to the Debtors and counsel to the 

Assignee have agreed to add the following language to the proposed confirmation order in order 

to resolve the informal objection to the Plan asserted by the Assignee: “Nothing in the Plan or this 

Confirmation Order releases, enjoins, or shall be deemed to release or enjoin any claims of (a) 

Liberty Power Corp., LLC; or (b) Philip J. von Kahle as Assignee for Liberty Power Corp., LLC 

against the BETM Released Parties; provided however that nothing in this provision constitutes 

an acknowledgement that such claims exist or restricts or releases any defense against same, and 

provided further that this provision shall not limit or affect the release being provided by the 

Debtors under the Plan to the BETM Released Parties for any claims of the Debtors that exist and 

may be brought by, through or under the Debtors.” 

PART III 

COMPLIANCE WITH SECTION 1129(a) REQUIREMENTS 

19. I have worked with the Debtors’ Professionals in connection with the wind down 

of the Debtors’ affairs. I participated in the development of and negotiations on the Plan. Counsel 

to the Debtors has informed me that the Debtors must demonstrate that the Plan satisfies section 

1129 of the Bankruptcy Code in order for the Plan to be confirmed. Based on my understanding 

of the Plan and discussions that I have had with Debtors’ counsel regarding various orders entered 

in these Chapter 11 Cases and the requirements of the Bankruptcy Code and applicable law, I 

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understand and believe as set forth below that the Plan satisfies the confirmation requirements of 

sections 1129(a) and (b) of the Bankruptcy Code and should be confirmed. 

20. 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 is not premised upon, and will not cause, the substantive consolidation of 

any of the Debtors. Except as otherwise provided by or permitted under the Plan, all Debtors shall 

continue to exist as separate legal entities. 

A. The Plan Complies with the Applicable Provisions of the Bankruptcy Code as 

Required by Section 1129(a)(1) of the Bankruptcy Code. 

Section 1122 

(i) The Classifications in the Plan are proper under 11 U.S.C. §1122. 

 

21. Section 1122 provides that a plan may place a claim or an interest in a particular 

class only if such claim or interest is substantially similar to the other claims or interests of such 

class. 

22. Counsel to the Debtors has informed me that the classifications in the Plan are 

proper and in accordance with the standards set forth in section 1122 of the Bankruptcy Code. 

Specifically, Article III of the Plan provides for the separate classification into nine (9) Class of 

Claims and Equity Interests as follows: (a) Class 1 (Allowed Other Priority Claims) – All Debtors; 

(b) Class 2 (Secured Claim of Hanover Insurance Company – All Debtors); (c) Class 3 (Secured 

Claim of Eckert Seamans Cherin & Mellot – Holdings only); (d) Class 4 (Secured Claim of Boston 

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Energy Trading and Marketing LLC- All Debtors; (e) Class 5 (Secured Claim of Shell Energy 

North America (US), L.P- All Debtors; (f) Class 6 (Secured Claims of David Hernandez and 

Martin Halpern - Mezzanine Lenders (Insider Claims))- All Debtors; (g) Class 7 (General 

Unsecured Claims) – All Debtors; (h) Class 8 (Subordinated Unsecured Claim of The Illinois 

Attorney General) (Holdings Only); and (i) Equity Interest – All Debtors. The Administrative 

Claims, Professional Fee Claims, Priority Tax Claims and United States Trustee Fees are 

unclassified and their treatment is described in Article II of the Plan in accordance with section 

1123(a)(1) of the Bankruptcy Code. 

23. In each instance of separate classification, the Plan classifies Claims based upon 

their different rights and attributes. As such, valid business, factual, and legal reasons exist for 

classifying separately the various Classes of Claims and Equity Interests created under the Plan. 

Additionally, each of the Claims or Equity Interests in each particular Class is substantially similar 

to the other Claims or Equity Interests in such Class. Accordingly, I believe that the Plan satisfies 

the requirements of section 1122 of the Bankruptcy Code. 

(ii) The Plan complies with the mandatory requirements under the 

Bankruptcy Code (11 U.S.C. §1123(a)). 

Section 1123(a) 

24. Section 1123(a) mandates that a plan: (a) designate classes of claims and interests; 

(b) specify unimpaired classes of claims and interests; (c) specify treatment of impaired classes of 

claims and interests; (d) provide the same treatment for each claim or interest of a particular class, 

unless the holder of a particular claim agrees to a less favorable treatment of such particular claim 

or interest; (e) provide adequate means for the plan’s implementation; (f) provide for the 

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prohibition of nonvoting equity securities and provide an appropriate distribution of voting power 

among the classes of securities; and (g) contain only provisions that are consistent with the interests 

of the creditors and equity security holders and with public policy. 

25. Counsel to the Debtors has informed me that section 1123(a) of the Bankruptcy 

Code sets forth seven requirements applicable to a corporate debtor’s plan. Based on my 

understanding of the requirements of section 1123(a), I believe that the Plan complies with each 

of the following seven (7) requirements: 

a. 11 U.S.C. § 1123(a)(1). In accordance with section 1123(a)(1) of the Bankruptcy 

Code, the Plan designates nine (9) different classes of Claims and Equity Interests 

consistent with the requirement of section 1122. 

b. 11 U.S.C. § 1123(a)(2). In accordance with section 1123(a)(2) of the Bankruptcy 

Code, Article III of the Plan specifies that Claims in Class 1 (Allowed Other Priority 

Claims), Class 2 (Secured Claim of Hanover Insurance Company) and Class 3 (Secured 

Claim of Eckert Seamans Cherin & Mellot) are unimpaired under the Plan. 

c. 11 U.S.C. § 1123(a)(3). In accordance with section 1123(a)(3) of the Bankruptcy 

Code, Article III of the Plan specifies that Claims in Class 4 (Secured Claim of Boston 

Energy Trading and Marketing LLC), Class 5 (Secured Claim of Shell Energy North 

America (US), L.P., Class 6 (Secured Claims of David Hernandez and Martin Halpern - 

Mezzanine Lenders (Insider Claims), Class 7 (General Unsecured Claims), Class 8 

(Subordinated Unsecured Claim of The Illinois Attorney General) (Holdings Only); and 

Class 9 (Equity Interest) are impaired under the Plan and provides the treatment for each 

Class. 

d. 11 U.S.C. § 1123(a)(4). In accordance with section 1123(a)(4) of the Bankruptcy 

Code, under Article IV of the Plan, each Claim against or Equity Interest in the Debtors in 

each respective Class is the same as the treatment of every other Claim or Equity Interest 

in such Class, unless the holder of a particular Claim or Equity Interest has agreed to a less 

favorable treatment for such Claim or Equity Interest. 

e. 11 U.S.C § 1123(a)(5). In accordance with section 1123(a)(5) of the Bankruptcy 

Code, Article VI of the Plan sets forth adequate means for implementation of the Plan, and 

contemplates, among other things: (a) the approval of a settlement and compromise 

between the Debtors and BETM related to the use of Available Cash; (b) the liquidation of 

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the remaining Debtors’ Assets on or after the Effective Date of the Plan; (c) the 

Distributions of 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, all 

in accordance with the BETM Plan Settlement; (d) the dissolution of 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; and (e) preservation of Causes of Action not otherwise released under the 

Plan. 

f. 11 U.S.C § 1123(a)(6). In accordance with section 1123(a)(6) of the Bankruptcy 

Code, and as set forth in Article VI of the Plan, 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. As such the Debtors will not be issuing securities under the 

Plan. 

g. 11 U.S.C. §1123(a)(7). In accordance with section 1123(a)(7) of the Bankruptcy 

Code, and as set forth in Article VI of the Plan, from and after the Effective Date, 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. Because the Plan 

is a plan of liquidation, it does not provide for the appointment of officers, directors, and 

trustees. 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. 

26. Based upon the foregoing, I understand and believe that the Plan complies with the 

requirements of sections 1122 and 1123 of the Bankruptcy Code (as well as other applicable 

provisions of the Bankruptcy Code and the Bankruptcy Rules) and, thus, satisfies the requirements 

of section 1129(a)(1). 

iii. The Plan contains certain provisions permitted under the Bankruptcy Code 

(11 U.S.C. § 1123(b)). 

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27. Counsel to the Debtors has informed me that section 1123(b) of the Bankruptcy 

Code sets forth provisions that may be included in a chapter 11 plan. I believe each of the 

provisions described below and included in the Plan are permissible under section 1123(b): 

a. 11 U.S.C. §1123(b)(1). As permitted by section 1123(b)(1) of the Bankruptcy 

Code, Article III of the Plan specifies that Claims in Class 1 (Allowed Other Priority 

Claims), Class 2 (Secured Claim of Hanover Insurance Company) and Class 3 (Secured 

Claim of Eckert Seamans Cherin & Mellot) are unimpaired because the Plan leaves 

unaltered the legal, equitable and contractual rights of the holders of Claims within such 

Classes. Conversely, Class 4 (Secured Claim of Boston Energy Trading and Marketing 

LLC), Class 5 (Secured Claim of Shell Energy North America (US), L.P., Class 6 (Secured 

Claims of David Hernandez and Martin Halpern - Mezzanine Lenders (Insider Claims), 

Class 7 (General Unsecured Claims), Class 8 (Subordinated Unsecured Claim of The 

Illinois Attorney General) (Holdings Only); and Class 9 (Equity Interest) are impaired 

under the Plan. 

b. 11 U.S.C. §1123(b)(2). As permitted by section 1123(b)(2) of the Bankruptcy 

Code, Article IX of the Plan provides that 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. 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. 

c. 11 U.S.C. §1123(b)(3)(A). As permitted by section 1123(b)(3)(A) of the 

Bankruptcy Code, the settlements contemplated in the Plan, including the BETM Plan 

Settlement described in Article VI of the Plan, has been proposed in good faith and 

represents a good faith compromise and settlement. 

d. 11 U.S.C. §1123(b)(3)(B). As permitted by section 1123(b)(3)(B) of the 

Bankruptcy Code, the Plan contemplates the retention of Causes of Action, subject to the 

releases, injunctions and exculpations contained in Article XI of the Plan and the BETM 

Plan Settlement. 

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e. 11 U.S.C. §1123(b)(5). As permitted by Section 1123(b)(5) of the Bankruptcy 

Code, in accordance with section 1123(b)(5) of the Bankruptcy Code, Article IV of the 

Plan modifies or leaves unaffected, as the case may be, the rights of holders of Claims and 

Equity Interests in each Class. 

f. 11 U.S.C. §1123(b)(6). As permitted by section 1123(b)(6) of the Bankruptcy 

Code, the Plan includes additional appropriate provisions, such as releases, exculpation and 

injunction provisions that are consistent with the provisions of the Bankruptcy Code. 

B. The Debtors have Complied with Applicable Provisions of the Bankruptcy 

Code (Section 1129(a)(2)). 

Section 1129(a)(2) 

28. As the plan proponents, the Debtors have sought to comply with Section 1129(a)(2) 

by conducting themselves in accordance with Chapter 11 of the Bankruptcy Code, including 

without limitation: (a) conducting the solicitation of votes on the Plan in a manner consistent with 

the Disclosure Statement Order and with Section 1126 of the Bankruptcy Code; (b) obtaining 

conditional approval of the Disclosure Statement, (c) complying with all orders of the Court; and 

(d) operating the Debtors’ businesses within the confines established by the Bankruptcy Code and 

all Orders of the Court. 

29. The Disclosure Statement Order set May 16, 2023 as the deadline for the Debtors 

to serve the Solicitation Documents. On or before May 16, 2023, I understand that the Debtors, 

with the assistance of their noticing agent, Stretto, solicitated acceptances of the Plan and provided 

notice of the date and time of the Confirmation Hearing set forth in the Disclosure Statement Order 

on all creditors and parties in interest on May 16, 2023, as evidenced by the Certificate of Service 

filed on May 23, 2023 [ECF No. 898]. 

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30. To the best of my knowledge and belief, the Debtors have complied with all of the 

provisions of the Bankruptcy Code and the Bankruptcy Rules governing notice, disclosure, and 

solicitation in connection with the Plan, the Disclosure Statement, and all other matters considered 

by the Bankruptcy Court in connection with these Chapter 11 Cases. I further understand and 

believe that good, sufficient, and timely notice of the Confirmation Hearing and all other hearings 

in these Chapter 11 cases have been provided to all holders of Claims and Equity Interests and all 

other parties in interest to whom notice was required to have been provided. 

31. To the best of my knowledge and belief, the Debtors have complied with the 

requirements of section 1126 of the Bankruptcy Code. Claims in Class 1 (Allowed Other Priority 

Claims), Class 2 (Secured Claim of Hanover Insurance Company) and Class 3 (Secured Claim of 

Eckert Seamans Cherin & Mellot) are not impaired under the Plan and as a result, I understand 

that those Classes are conclusively deemed to have accepted the Plan pursuant to section 11246(f) 

of the Bankruptcy Code. As such, I understand that they have not been solicited to vote. I further 

believe Class 5 (Secured Claim of Shell Energy North America (US), L.P., Class 6 (Secured 

Claims of David Hernandez and Martin Halpern - Mezzanine Lenders (Insider Claims), Class 7 

(General Unsecured Claims), Class 8 (Subordinated Unsecured Claim of The Illinois Attorney 

General) (Holdings Only); and Class 9 (Equity Interest) are impaired under the Plan and will not 

receive any Distribution or retain any property under the Plan on account of their Claims and are 

therefore deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. 

Accordingly, I understand that Classes 5-9 were not solicited to accept or reject the Plan in 

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accordance with the Disclosure Statement Order. Only Class 4 (BETM) was solicited to vote and 

as such received a copy of the Plan, Disclosure Statement, Confirmation Order and Ballot. 

Section 1129(a)(3) 

32. Section 1129(a)(3) of the Bankruptcy Code requires that a plan be "proposed in 

good faith and not by any means forbidden by law." The Plan is based upon arms’-length 

negotiations among the Debtors and BETM regarding the best means for completing the 

liquidation of the remaining Assets, winding down the Debtors’ affairs, and maximizing the value 

of the Estates and the return to creditors. The Plan formulation process was conducted in good 

faith with all participants in that process represented by experienced and competent counsel. I 

believe that the acceptance of the Plan by the only impaired voting Class and the fact that no 

objections have been filed challenging the Debtors’ good faith supports the Debtors’ good faith in 

the process. 

Section 1129(a)(4) 

33. To comply with Section 1129(a)(4), the Debtors have provided that all payments 

made or to be made by the Debtors for services or for costs or expenses incurred in connection 

with the Chapter 11 Cases, including all of the Allowed Professional Fee Claims, are subject to 

approval of the Court as reasonable. Among other things, the Plan contains appropriate procedures 

for filing applications for final allowance of compensation by Professionals. As such, I understand 

and believe that the requirements of section 1129(a)(4) have been satisfied with respect to the Plan. 

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Section 1129(a)(5) 

34. Section 1129(a)(5)(A) of the Bankruptcy Code requires that, prior to confirmation, 

the proponent of a plan disclose the identity and affiliations of the proposed officers and directors 

of the reorganized debtors and that the appointment or continuance of such officers and directors 

be consistent with the interests of creditors and equity security holders and with public policy. In 

addition, section 1129(a)(5)(B) requires a plan proponent to disclose the identity of any "insider" 

to be employed or retained by the reorganized debtor and the "nature of any compensation for such 

insider.” 

35. Because the Plan is a plan of liquidation, it does not provide for the appointment of 

proposed officers and directors of the Reorganized Debtors or continuance of officers and 

directors. Instead, the Plan call for the eventual dissolution of the Debtors. As the Debtors’ CRO, 

I am charged with consummating the provisions of the Plan upon and after confirmation thereof. 

As such, I believe the Plan satisfies section 1123(a)(5) of the Bankruptcy Code. 

Section 1129(a)(6) 

36. Section 1129(a)(6) of the Bankruptcy Code requires governmental and regulatory 

approval of any rate change implemented under the terms of a plan. I understand that Bankruptcy 

Code section 1129(a)(6) is inapplicable to these Chapter 11 Cases because the Debtors are winding 

down their affairs and no longer charging rates that are the subject of any governmental or 

regulatory oversight. 

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Section 1129(a)(7) 

37. Section 1129(a)(7) of the Bankruptcy Code requires a determination that the Plan 

is in the best interests of the holders of impaired claims that have not voted to accept the Plan. It 

is my understanding that the best interests test requires that each holder of a claim or interest either 

accept the plan or receive or retain property having a present value, as of the effective date of the 

plan, not less than the amount such holder would receive or retain if the debtor were liquidated in 

a hypothetical liquidation under chapter 7 of the Bankruptcy Code. 

38. The Debtors, with the assistance of BRG and Debtors’ Counsel, prepared the 

Liquidation Analysis attached to the Disclosure Statement as Exhibit “3”. The Liquidation 

Analysis sets forth the 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 before and after the Effective Date, including pursuant to the D&O Settlement Agreement 

and the Kaufman Settlement Agreement. I am familiar with the methods used, and the conclusions 

reached, in the preparation of the Liquidation Analysis and believe the same is true and accurate. 

39. Each holder of a Claim or Equity Interest that is impaired under the Plan has 

accepted the Plan or, based on the Liquidation Analysis, will receive a distribution under the Plan 

that is not less than the amount that such holder would receive if the Debtors were liquidated under 

chapter 7 of the Bankruptcy Code unless they agreed to a lesser treatment. Specifically, the 

Liquidation Analysis is based, in part, on approval of the BETM Plan Settlement which provides, 

among other things, on BETM’s agreement to subordinate its right to receive a Distribution on 

account of: (a) the DIP Financing Claims, (b) the BETM Adequate Protection Obligation, and (c) 

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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. The 

approval of the BETM Plan Settlement will allow for the holders of Administrative Claims, 

Priority Tax Claims and Creditors in Class 1 to receive more under the Plan than such holders 

would receive in a liquidation under chapter 7 of the Bankruptcy Code. In addition, holders of 

Claims in Class 2, 3 and 5-9 will receive no less under the Plan than they would in a chapter 7 

liquidation. 

40. Additionally, the amounts that would be available for satisfaction of the Allowed 

Claims under the Plan would be reduced significantly by the costs and expenses of a chapter 7 

trustee and his professionals, as well as additional Administrative Claims and other priority Claims 

that might result from the chapter 7 case. Based on the Liquidation Analysis, I believe that the 

Plan satisfies the so-called “best interests tests” under section 1129(a)(7) of the Bankruptcy Code. 

Section 1129(a)(8) 

41. Section 1129(a)(8) of the Bankruptcy Code requires that each class of claims or 

interests must either accept the plan or be unimpaired under the plan. An unimpaired class is 

conclusively presumed to accept the plan. The Certificate of Plan Proponent being filed by the 

Debtors contemporaneously herewith sets forth the impaired and unimpaired Classes under the 

Plan. Under the Plan, Classes 1-3 are unimpaired, and thus are conclusively deemed to have 

accepted the Plan. Class 4 (BETM) is impaired and has voted in favor of the Plan and Classes 5- 

9 are impaired under the Plan and will not receive any Distribution or retain any property under 

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the Plan on account of their claims and therefore are deemed to have rejected the Plan. 

Accordingly, I understand and believe that the requirements of section 1129(a)(8) of the 

Bankruptcy Code have been met. 

Section 1129(a)(9) 

42. Section 1129(a)(9) of the Bankruptcy Code requires that persons holding claims 

entitled to priority under Section 507(a) receive specified cash payments under the Plan. Unless 

the holder of a particular claim agrees to a different treatment with respect to such claim, section 

1129(a)(9) of the Bankruptcy Code generally requires the plan to satisfy administrative and priority 

tax claims in full in cash. In accordance with section 1129(a)(9)(A) and (B), I understand that 

Article II of the Plan provides for all Agreed Senior Claims (which include Statutory Fees, Allowed 

Professional Fee Claims, Settled Administrative Claims, other Allowed Administrative Claim, 

Allowed Priority Tax Claims and Allowed Other Priority Claims approved by BETM) to 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, (b) as otherwise provided in the Bankruptcy 

Code or approved by the Bankruptcy Court, or (c) as agreed by the holder of any such Agreed 

Senior Claim. I also understand that the Debtors will reserve the full amount sought in connection 

with the request for allowance and payment of an administrative expense claim by Shawn and 

Lydia O’Brien in the event such claim is allowed by the Court. 

43. Accordingly, it is my understanding that, based upon the foregoing, the Plan 

satisfies the requirements of section 1129(a)(9) of the Bankruptcy Code, including because the 

Plan cannot go effective unless and until persons holding claims entitled to priority under Section 

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507(a) receive specified cash payments under the Plan or have otherwise agreed to a different 

treatment. 

Section 1129(a)(10) 

44. Section 1129(a)(10) of the Bankruptcy Code is an alternative requirement to 

Section 1129(a)(8)’s requirement that each class of claims or interests must either accept the Plan 

or be unimpaired under the Plan. Section 1129(a)(10) provides that to the extent there are Impaired 

Classes of Claims, then at least one Impaired Class of Claims must accept the plan, without 

counting the acceptance of such plan by any insider of the Debtor. As is outlined herein and in 

more detail on the Certificate of Plan Proponent, the Debtors have one (1) Impaired Class (Class 

4 BETM) that has voted to accept the Plan. As a result, the requirement of Section 1129(a)(10) 

has been met because at least one Impaired Class of Claims, excluding Insiders, has accepted the 

Plan. 

Section 1129(a)(11) 

45. Section 1129(a)(11) of the Bankruptcy Code requires the Court to conclude that the 

Plan is "feasible," in that confirmation of the Plan is not likely to be followed by the liquidation or 

need for further reorganization of the Debtors, and the Plan has a reasonable probability of success. 

I understand that the Plan is feasible because the Debtors will be able to satisfy all conditions 

precedent to the Effective Date and will have sufficient funds to make the payments required under 

the Plan in a manner consistent with the Liquidation Analysis. Accordingly, I believe that the Plan 

is feasible as the term is used in connection with confirmation of a liquidating chapter 11 plan. In 

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addition, the Plan provides for the liquidation of the Assets of the Debtors and therefore there will 

not be a need for a further reorganization of the Debtors after confirmation of the Plan. 

Section 1129(a)(12) 

46. Section 1129(a)(12) of the Bankruptcy Code requires the payment of all fees 

payable under 28 U.S.C. § 1930. It is my understanding that as of the date of this Declaration, 

the Debtors are current with chapter 11 statutory and operating fees required to be paid during 

these Chapter 11 Cases. Moreover, pursuant Article II of the Plan, on the Effective Date, and 

thereafter as required, the Debtors agree to 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 further agree to 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 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 postconfirmation payment, and concurrently filed with the Court, post-confirmation quarterly 

operating reports indicating all the cash disbursements for the relevant period. Therefore, I 

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understand and believe that the Plan complies with the requirements of section 1129(a)(12) of the 

Bankruptcy Code. 

Section 1129(a)(13) 

47. Section 1129(a)(13) of the Bankruptcy Code requires that all retiree benefits 

occasioned by way of collective bargaining agreement continue to be paid post-confirmation at 

any levels established in accordance with Section 1114 of the Bankruptcy Code. The Debtors have 

no retiree benefits and the 401(k) Plan, and any other pension programs, as the same have been 

cancelled or terminated, or will be cancelled or terminated prior to the Effective Date. Therefore, 

I believe that section 1129(a)(13) of the Bankruptcy Code does not apply and is deemed satisfied. 

Sections 1129(a)(14)-(16) 

48. Sections 1129(a)(14), (15) & (16) of the Bankruptcy Code requires the payment of 

certain domestic support obligations; the Debtors have none and, therefore, section 1129(a)(14) is 

inapplicable and deemed satisfied. Section 1129(a)(15) of the Bankruptcy Code imposes certain 

payment obligations on individual Debtor; the Debtors are not individuals and, therefore, section 

1129(a)(15) is inapplicable here. Section 1129(a)(16) of the Bankruptcy Code applies to transfers 

by “a corporation or trust that is not a moneyed, business, or commercial corporation or trust.” 11 

U.S.C. § 1129(a)(16). Counsel to the Debtors has advised me that Bankruptcy Code sections 

1129(a)(14), (15) & (16) are not applicable to the Debtors. 

Section 1129(d) 

49. The Plan has not been filed for the purpose of the avoidance of taxes or the 

application of Section 5 of the Securities Act of 1933, as amended. 

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Section 1129(b) 

50. Section 1129(b) of the Bankruptcy Code provides that if all applicable requirements 

of Section 1129(a) are met with respect to a plan, other than subparagraph 8 thereof, then the Court 

shall confirm the plan if the plan does not discriminate unfairly and is fair and equitable with 

respect to each class of claims or interests that is impaired and has not accepted the plan. As set 

forth above, one (1) impaired Class (Class 4 BETM) has voted in favor of the Plan. Classes 1-3 

are unimpaired, and thus are conclusively deemed to have accepted the Plan. Classes 5-9 are 

impaired under the Plan and will not receive any Distribution or retain any property under the Plan 

on account of their claims and therefore are deemed to have rejected the Plan. As a result, the 

Debtors are required to proceed with a “cramdown” on the holders of Claims and Equity Interests 

in Classes 5-9 under section 1129(b). 

51. To that end, the Claims in Classes 5-8 of the Plan are Unsecured and Class 9 

contains the Equity Interests in the Debtors. With respect to the Unsecured Claims in Classes 5-8 

of the Plan, I understand that the provisions of section 1129(b) are satisfied if “the holder of a 

claim or interest that is junior to the claims of such class will not receive or retain under the plan 

on account of such junior claim or interest any property ....” I understand that a similar provision 

exists in section 1129(b) for the Class 9 Equity Interests under the Plan. 

52. As set forth in the Plan, no holder of a Claim of Equity Interest in Classes 5-9 of 

the Plan will receive or retain any property under the Plan. Accordingly, I understand and believe 

that the requirements of section 1129(b) of the Bankruptcy Code have been met with respect to 

Classes 5-9 under the Plan. 

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PART IV 

ADDITIONAL PLAN PROVISIONS 

A. The Injunction, Exculpation and Related Provisions under the Plan Should be 

Approved. 

53. Article XI of the Plan contains certain exculpation and injunctive provisions, each 

of which is narrowly tailored and reasonable. Further, the provisions specifically exclude acts of 

fraud, willful misconduct, or gross negligence. Such provisions are critical components of the 

Plan and appropriate in the Debtors’ business judgment. Counsel to the Debtors has informed me 

that section 1123(b)(6) of the Bankruptcy Code provides that a chapter 11 plan may “include any 

other appropriate provision not inconsistent with the applicable provisions of [the Bankruptcy 

Code].” 

i. The Exculpation Provision is Appropriate and Narrowly Tailored 

54. I understand that Article XI of the Plan (the “Exculpation Provision”) complies with 

the requirements of the Bankruptcy Code and applicable law. For purposes in the Plan, 

“Exculpated Parties” shall mean and include (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, 

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

and each of their respective attorneys, paraprofessionals and employees. 

55. The Exculpation Provision, which excludes gross negligence, willful misconduct, 

or fraud is appropriate and important because it provides protection to those parties who served as 

fiduciaries during the chapter 11 process or made substantial and critical contributions to the 

settlements contained in the Plan. It is my understanding that the Exculpation Provision helps to 

prevent future collateral attacks that, if otherwise permitted, may have caused the parties that are 

to be exculpated under the Plan to have been reluctant to cooperate with the negotiations and 

formulation of the Plan. Lastly, the Exculpation Provision only applies to acts or omissions that 

occurred after the Petition Date and does not apply to any pre-petition acts of omissions. 

Accordingly, I believe that the Exculpation Provision in the Plan is appropriate and should be 

approved. 

ii. The Plan Injunction Provision is Appropriate 

56. I understand that the injunctions in Article XI of the Plan (the “Plan Injunction”) 

are necessary to protect the Debtors and their Estates from any potential litigation from prepetition 

creditors after the Effective Date. I further understand that, without the Plan Injunction, there 

would be no mechanism to enforce the provisions of the Plan. As a result, the Debtors, who are 

liquidating and have limited wind down funds, could be faced with numerous lawsuits in various 

jurisdictions related to Claims that are treated under the Plan. Accordingly, I believe that the Plan 

Injunction is appropriate and should be approved. 

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PART V 

EXECUTORY CONTRACTS AND UNEXPIRED LEASES 

57. During the course of the Chapter 11 Cases, the Debtors conducted a full review of 

their executory contract and unexpired leases in connection with the sale of their Assets. I 

understand that section 1123(b)(2) of the Bankruptcy Code allows a plan, subject to section 365, 

to provide for the assumption, rejection or assignment of an executory contract or unexpired leases 

not previously assumed or rejected under the Bankruptcy Code section 365. Article IX of the Plan 

provides that 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. 

58. 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. 

PART VI 

THE BETM PLAN SETTLEMENT SHOULD BE APPROVED 

59. 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 

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(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. 

60. 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 

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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 the Plan. 

61. I understand that 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). I further understand that 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). Still further, I understand that 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, the Debtors are seeking the Court’s authority to approve the BETM Plan 

Settlement. 

62. I understand that 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 

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Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 

424 (1968); In re Se. Banking 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.”). 

63. I also understand that 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). 

64. I also understand that 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: 

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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). 

65. Lastly, I understand that 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. 

66. On behalf of the Debtors, I 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, I believe that without the consent of 

BETM to use the Available Cash on which BETM has senior Liens and Claims, the Debtors would 

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not succeed in any litigation to compel BETM to allow such use. As to the “collection factor,” I 

do not believe it is relevant to the analysis of the BETM Plan Settlement. 

67. With regard to the final factor of “paramount interests of creditors,” I believe on 

behalf of the Debtors 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. 

68. For the foregoing reasons, I submit on behalf of 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. 

PART VII 

CONCLUSION 

69. In summary, and without limiting any of the conclusions and opinions expressed 

above, based upon my education, experience, analysis, underlying assumptions and 

understandings as set forth above, it is my opinion that (i) the Debtors have complied fully with 

the requirements of Section 1129 of the Bankruptcy Code; (ii) the Plan has been proposed in good 

faith as required pursuant to Section 1129(a)(3) of the Bankruptcy Code; (iii) confirmation of the 

Plan will enable the Debtors to wind down the Debtors’ business and liquidate the Debtors’ Assets 

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in an orderly fashion for the benefit of all stakeholders, and (iv) the Plan satisfies the best interests 

of the creditors, as that concept is treated in section l129(a)(7) of the Bankruptcy Code. 

28 U.S.C. § 1746 DECLARATION 

 I declare under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct to the best of my information, knowledge, and belief. 

Executed this 9th day of June 2023 in Miami, Florida. 

 /s/ Bob Butler 

By: Bob Butler 

Chief Restructuring Officer

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