Case CSS Doc 1243 Filed 04/28/16 Page 1 of 10 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. x : : : : : : : : x

Transcription

1 Case CSS Doc 1243 Filed 04/28/16 Page 1 of 10 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re GRIDWAY ENERGY HOLDINGS, et al., Debtors x x Chapter 11 Case No (CSS) Jointly Administered Hearing Date June 8, 2016 at 1000 a.m. ET Objection Deadline May 12, 2016 at 400 p.m. ET DEBTORS MOTION FOR ORDER, PURSUANT TO SECTIONS 105, 362 AND 365 OF THE BANKRUPTCY CODE, (I) AUTHORIZING THE REJECTION OF THAT CERTAIN ENERGY SERVICE PROVIDER AGREEMENT BY AND BETWEEN GLACIAL ENERGY OF CALIFORNIA, INC. AND PACIFIC GAS AND ELECTRIC COMPANY NUNC PRO TUNC TO THE REJECTION DATE, (II) GRANTING PACIFIC GAS AND ELECTRIC COMPANY RELIEF FROM THE AUTOMATIC STAY, AND (III) GRANTING RELATED RELIEF The above-captioned debtors and debtors in possession (collectively, the Debtors ) hereby submit this motion (the Motion ) pursuant to sections 105(a), 362 and 365 of title 11 of the United States Code, 11 U.S.C (the Bankruptcy Code ) and Rule 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) for entry of an order, substantially in the form attached hereto as Exhibit B (the Proposed Order ), (i) authorizing the Debtors to reject that certain contract entitled Energy Service Provider Agreement, by and between Glacial Energy of California, Inc. ( Glacial Energy of California ) and Pacific Gas and Electric Company ( PG&E ), dated August 8, 2007 (the Glacial ESP Agreement ), effective nunc pro tunc to the Rejection Date (as defined below), (ii) granting The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are Gridway Energy Holdings, Inc. (5072); Glacial Energy Holdings (3292); Glacial Energy, Inc. (1189); Glacial Energy of Maryland, Inc. (7173); Glacial Energy of California, Inc. (1795); Glacial Energy of Illinois, Inc. (1796); Glacial Energy of New Jersey, Inc. (8671); Glacial Energy of Washington DC, Inc. (5548); Glacial Energy of Michigan, Inc. (7110); Glacial Natural Gas, Inc. (0165); and Negawatt Business Solutions, Inc. (f/k/a Gridway Energy Partners, Inc.) (7086). The location of the headquarters of the Debtors is 5326 Yacht Haven Grande, Box 36, St. Thomas, VI

2 Case CSS Doc 1243 Filed 04/28/16 Page 2 of 10 PG&E relief from the automatic stay, and (iii) granting related relief. In support of this Motion, the Debtors respectfully represent as follows JURISDICTION 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated as of February 29, 2012 (the Amended Standing Order ). This is a core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue is proper in this Court pursuant to 28 U.S.C and The statutory and legal predicates for the relief sought herein are sections 105(a) and 365 of the Bankruptcy Code, together with Bankruptcy Rule BACKGROUND 2. On April 10, 2014 (the Commencement Date ), each of the abovecaptioned debtors and debtors in possession (the Debtors ) filed a petition with the Court under chapter 11 of the Bankruptcy Code, thereby commencing these cases (the Chapter 11 Cases ). 2 The Debtors continue to operate their businesses and manage their properties as debtors in possession as authorized by sections 1107(a) and 1108 of the Bankruptcy Code. 3. On April 24, 2014, the United States Trustee for the District of Delaware (the U.S. Trustee ) appointed an official committee of unsecured creditors (the Creditors Committee ). No trustee or examiner has been appointed in the Chapter 11 Cases. 4. Information regarding the Debtors history and business operations, their capital structure and primary secured indebtedness, and the events leading up to the commencement of the Chapter 11 Cases can be found in the Declaration of Randy Lennan in On the Commencement Date, certain affiliates of the Debtors; namely, Glacial Energy of New York, Glacial Energy of New England, Inc., Glacial Energy of Pennsylvania, Inc., Glacial Energy of Texas, Glacial Energy of Ohio, Inc., Negawatt Business Solutions, Ziphany, LLC, and Glacial Energy VI, LLC also filed petitions for relief. However, pursuant to an order of this Court, dated October 16, 2015 [Docket No. 1118], on October 29, 2015, those cases were dismissed upon the filing of a certification of counsel filed consistent with the terms of that order. 2

3 Case CSS Doc 1243 Filed 04/28/16 Page 3 of 10 Support of Chapter 11 Petitions and First Day Motions [Docket No. 10], which is incorporated herein by reference. RELEVANT BACKGROUND 5. On the Commencement Date, the Debtors filed a motion seeking approval of certain sales procedures and related relief [Docket No. 13] (the Sale Motion ). Pursuant to the Sale Motion, the Debtors proposed to sell substantially all of their assets to Vantage Commodities Financial Services I, LLC, as the stalking-horse bidder, or to such other purchaser who submits a higher and better offer pursuant to the sale-and-bidding procedures proposed in the Sale Motion. 6. On May 14, 2014, the Court entered an order [Docket No. 191] that, among other things, approved bidding procedures for the sale of substantially all of the Debtors assets (excluding the assets of Ziphany and NBS) (the Platinum/Agera Sale ). On June 10, 2014, in accordance with that order, the Debtors commenced an auction, at the conclusion of which on June 11, 2014, the Debtors selected Platinum Partners Value Arbitrage Fund LP ( Platinum ) as the successful bidder. On June 17, 2014, the Court entered an order [Docket No. 377] (the Sale Order ) approving the Platinum/Agera Sale to Platinum. Pursuant to section of the Asset Purchase Agreement by and Among Glacial Energy Holdings and Platinum Partners Value Arbitrage Fund LP (the APA ), Agera Energy LLC ( Agera ) was designated by Platinum as the Designated Buyer (as defined in the APA). 7. On June 18, 2014, the Economic Closing of the sale of substantially all of the Debtors assets to Agera occurred whereby, among other things, Agera paid the purchase price under the APA. However, in order to facilitate, among other things, Agera s regulatory licensure process with the various jurisdictions public utility commissions, the Asset Transfer

4 Case CSS Doc 1243 Filed 04/28/16 Page 4 of 10 Closing was deferred. Accordingly, in order to operate the Debtors businesses between the Economic Closing and the Asset Transfer Closing, the Debtors and Agera entered into a Transition Services Agreement (the TSA ) pursuant to which the Debtors have provided, and will continue to provide, certain services to Agera for which Agera is financially obligated. As of the date hereof, the Debtors continue to provide the services under the TSA. 8. On February 23, 2015, a partial asset transfer closing occurred, pursuant to which each of (i) Glacial Energy of New York, (ii) Glacial VI, LLC, (iii) Gridway Energy Holdings, Inc. and (iv) Negawatt Business Solutions transferred certain of their assets to Agera, pursuant to the terms of the APA. See Docket No On July 13, 2015, a second partial asset transfer closing occurred, pursuant to which each of (i) Glacial Energy of Texas, (ii) Glacial Energy of Ohio, Inc., (iii) Glacial Energy of Pennsylvania, Inc., (iv) Glacial Energy of New England, Inc., and (v) Glacial Natural Gas transferred certain of their assets to Agera, pursuant to the terms of the APA. See Docket No On December 10, 2015, a third partial asset transfer closing (the Third Partial Asset Closing ) occurred, pursuant to which Glacial Energy of California, Inc. transferred certain of its assets to Agera in accordance with the Sale Order and APA. See Docket No Pursuant to the section 2.2(a) of the APA, as part of the Purchased Assets, Agera acquired all Customer Contracts with Transferred Customers that are in effect as of the Relevant Closing. See APA, Section 2.2(a). In addition, pursuant to section 2.2(f), Agera was also authorized to acquire all amounts deposited by any Seller with any transmission and distribution service providers, independent system operator and state public utility commission as of the Relevant Closing Date, and all right, title and interest of any Seller, in, to and under any related Contract or tariff in effect as of the Relevant Closing... See APA, Section 2.2(f)

5 Case CSS Doc 1243 Filed 04/28/16 Page 5 of 10 Therefore, pursuant to the Sale Order approving the APA, and as evidenced by that certain Bill of Sale, which was issued upon the Third Partial Asset Closing, attached hereto as Exhibit A, Glacial Energy of California s contracts with the End-Use Customers (as defined below) and any deposits or rights to any deposits the Sellers made with PG&E in connection with the Glacial ESP Agreement were authorized to be assumed, assigned and transferred to Agera, as of December 10, A. The Glacial ESP Agreement 10. Under the terms of the Glacial ESP Agreement, through the use of PG&E s electric lines, PG&E provides Glacial Energy of California with certain utility services, particularly the transportation of electricity supplied by the Debtor to the Debtor s end-use customers participating in the Direct Access Service in PG&E s territory (the End-Use Customers ). The Glacial ESP Agreement is subject to certain PG&E Rules and Tariffs (the Tariffs ) on file with the California Public Utilities Commission. Following the Third Partial Asset Closing, the End-Use Customers were provided electricity under the Glacial ESP Agreement, pursuant to the terms of the TSA, and the Debtors did not assume the Glacial ESP Agreement either by virtue of the Sale or otherwise. 11. Notwithstanding the fact that the End-Use Customers continued to receive their electricity under the Glacial ESP Agreement following the Third Partial Asset Closing, on or about March 5, 2015, Agera entered into a separate agreement with PG&E (the Agera ESP Agreement ), pursuant to which, PG&E was to provide Agera with similar services related to storage and transportation of electricity to the End-Use Customers once the End-Use Customers were transitioned to Agera. Accordingly, Agera informed the Debtors and PG&E that it would not seek an assumption and assignment of the Glacial ESP Agreement upon the occurrence of

6 Case CSS Doc 1243 Filed 04/28/16 Page 6 of 10 the asset transfer closing for Glacial Energy of California and the transfer of the End-Use Customers. Rather, Agera advised that once the End-Use Customers have been transferred, it intended to provide service to the End-Use Customers under the Agera ESP Agreement, thus eliminating the need for the Glacial ESP Agreement. 12. On or about April 11, 2016, Agera informed the Debtors that effective February 3, 2016, the End-Use Customers have been fully transitioned from service under the Glacial ESP Agreement to service under the Agera ESP Agreement, and therefore, it has begun providing service to the End-Use Customers, via the Agera ESP Agreement. 13. Accordingly, as the result of the Third Partial Asset Closing and the transition of the End-Use Customers, the Debtors have determined, in the reasonable exercise of their business judgment, that the ESP Agreement no longer serves any business purpose and is burdensome to the Debtors estates. RELIEF REQUESTED 14. By this Motion, pursuant to sections 105(a), 362 and 365 of the Bankruptcy Code, the Debtors request that the Court enter the Proposed Order, (i) authorizing the Debtors to reject the Glacial ESP Agreement, effective April 28, 2016 (the Rejection Date ), (ii) granting PG&E relief from the automatic stay with respect to the Glacial ESP Agreement to terminate the Glacial ESP Agreement and enforce all rights and remedies under the Glacial ESP Agreement, the Tariffs, and applicable law, and (iii) granting related relief. BASIS FOR RELIEF A. Rejection of the Glacial ESP Agreement Reflects the Debtors Sound Business Judgment 15. Section 365(a) of the Bankruptcy Code provides, in relevant part, that a debtor in possession, subject to the court s approval, may assume or reject any executory

7 Case CSS Doc 1243 Filed 04/28/16 Page 7 of 10 contract or unexpired lease of the debtor. 11 U.S.C. 365(a); see also Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.), 973 F.2d 1065, 1075 (3d Cir. 1992). Section 365 allows a trustee to relieve the bankruptcy estate of burdensome agreements which have not been completely performed. L.R.S.C. Co. v. Rickel Home Ctrs, Inc. (In re Rickel Home Ctrs., Inc.), 209 F.3d 291, 298 (3d Cir. 2000) (quoting Stewart Title Guar. Co. v. Old Republic Nat l Title Co., 83 F.3d 735, 741 (5th Cir. 1996)). 16. The decision to assume or reject an executory contract or unexpired lease is a matter within the business judgment of the debtor. Sharon Steel Corp. v. Nat l Fuel Gas Distrib. Corp., 872 F.2d 36, 40 (3d Cir. 1989) (acknowledging business judgment as the standard for determining whether rejection of a contract is proper); see also Nat l Labor Relations Bd. v. Bildisco & Bildisco (In re Bildisco), 682 F.2d 72, 79 (3d Cir. 1982) ( The usual test for rejection of an executory contract is simply whether rejection would benefit the estate, the business judgment test. ); Computer Sales Int'l, Inc. v. Fed. Mogul Global, Inc. (In re Fed. Mogul Global, Inc.), 293 B.R. 124, 126 (D. Del. 2003); In re HQ Global Holdings, Inc., 290 B.R. 507, 511 (Bankr. D. Del. 2003). The business-judgment standard mandates that a court approve a debtor s business decision, unless the decision is the product of bad faith, or whim, or caprice. In re Trans World Airlines, Inc., 261 B.R. 103, 121 (Bankr. D. Del. 2001) (internal citations omitted); see also Summit Land Co. v. Allen (In re Summit Land Co.), 13 B.R. 310, 315 (Bankr. D. Utah 1981) ( In any event, court approval under Section 365(a), if required, except in extraordinary situations, should be granted as a matter of course. ). 17. The Debtors believe that rejection of the Glacial ESP Agreement is well within their business judgment and is in the best interests of their estates and creditors. The Debtors have ceased business operations. Moreover, as Agera has elected not to seek an

8 Case CSS Doc 1243 Filed 04/28/16 Page 8 of assumption and assignment of the Glacial ESP Agreement in connection with the Platinum/Agera Sale, the Glacial ESP Agreement no longer serves any business purpose to the Debtors. Further, the Glacial ESP Agreement is not a source of potential value for the Debtors estates or creditors, as the Debtors believe that any continued expense in maintaining the Glacial ESP Agreement and attempting to market the Glacial ESP Agreement would likely outweigh any consideration to be received from an assignee of the Glacial ESP Agreement, especially in light of the Platinum/Agera Sale. These continuing expenses would unnecessarily deplete assets of the Debtors estates to the detriment of all creditors. 18. The Debtors further request authority to reject the Glacial ESP Agreement, effective the Rejection Date. Courts have authorized rejections of executory contracts and unexpired leases, including retroactive rejections, based on the equities under the circumstances. See In re Chi-Chi's, Inc., 305 B.R. 396, 399 (Bankr. D. Del. 2004) (acknowledging that a bankruptcy court may approve a rejection retroactive to the date the motion is filed after balancing the equities in a particular case); In re Fleming Cos., Inc., 304 B.R. 85, 96 (Bankr. D. Del. 2003) (stating that rejection has been allowed nunc pro tunc to the date of the motion or the premises were surrendered); In re Thinking Machines Corp., 67 F.3d 1021, 1028 (1st Cir. 1995) (finding that, "[i]n the section 365 context, this means that bankruptcy courts may enter retroactive orders of approval, and should do so when the balance of equities preponderates in favor of such remediation"). 19. In the instant case, allowing the Debtors to reject the ESP Agreement will not unduly prejudice the PG&E because it will receive notice of the Motion. Additionally, PG&E and its counsel were put on notice that ESP Agreement would be rejected once the transition to Agera was complete, and its counsel was provided a draft of this Motion prior to its filing. Moreover, the Rejection Date is after the date that the End-Use Customers were transitioned to 8

9 Case CSS Doc 1243 Filed 04/28/16 Page 9 of 10 Agera, and therefore, there is no disruption of service to the End-Use Customers. Finally, any postponement of the effective date of rejection of the ESP Agreement may potentially cause the Debtors to incur unnecessary administrative expenses under the agreement without providing accompanying tangible benefits to the estates. 20. Accordingly, the decision to reject the Glacial ESP Agreement, effective on the Rejection Date, is a proper exercise of the Debtors business judgment, and the rejection of the Glacial ESP Agreement should therefore be approved pursuant to section 365(a) of the Bankruptcy Code. NOTICE 21. Notice of this Motion has been given to (i) the U.S. Trustee; (ii) counsel to the Debtors prepetition secured lender; (iii) counsel to the Creditors Committee; (iv) PG&E; (v) counsel to Agera; and (vi) all parties requesting notice in the Chapter 11 Cases pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure as of the date hereof. In light of the nature of the relief requested herein, the Debtors submit that no other or further notice is necessary

10 Case CSS Doc 1243 Filed 04/28/16 Page 10 of 10 WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that this Court enter the Proposed Order, substantially in the form attached hereto as Exhibit B, granting the relief requested herein and such other and further relief as the Court may deem just and proper. Dated April 28, 2016 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Donald J. Bowman, Jr. Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Travis G. Buchanan (No. 5595) Rodney Square 1000 North King Street Wilmington, Delaware Telephone Facsimile Attorneys for the Debtors and Debtors in Possession

11 Case CSS Doc Filed 04/28/16 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re GRIDWAY ENERGY HOLDINGS, et al., Debtors x x Chapter 11 Case No (CSS) Jointly Administered Hearing Date June 8, 2016 at 1000 a.m. ET Objection Deadline May 12, 2016 at 400 p.m. ET NOTICE OF MOTION TO (I) THE U.S. TRUSTEE; (II) COUNSEL TO THE DEBTORS PREPETITION SECURED LENDER; (III) COUNSEL TO THE CREDITORS COMMITTEE; (IV) PG&E; (V) COUNSEL TO AGERA; AND (VI) ALL PARTIES REQUESTING NOTICE IN THE CHAPTER 11 CASES PURSUANT TO RULE 2002 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AS OF THE DATE HEREOF. PLEASE TAKE NOTICE that the debtors and debtors in possession in the abovecaptioned cases (each, a Debtor and, collectively, the Debtors ) have filed the attached Debtors Motion for Order, Pursuant to Sections 105, 362 and 365 of the Bankruptcy Code, (I) Authorizing the Rejection of That Certain Energy Service Provider Agreement By and Between Glacial Energy of California, Inc. and Pacific Gas and Electric Company Nunc Pro Tunc to the Rejection Date, (II) Granting Pacific Gas and Electric Company Relief from the Automatic Stay, and (III) Granting Related Relief (the Motion ). PLEASE TAKE FURTHER NOTICE that any objections to the relief requested in the Motion must be filed on or before May 12, 2016 at 400 p.m. (ET) (the Objection Deadline ) with the United States Bankruptcy Court for the District of Delaware, 824 N. Market Street, 3 rd Floor, Wilmington, Delaware At the same time, you must serve a copy of your objection upon the undersigned counsel to the Debtors so as to be received on or before the Objection Deadline The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are Gridway Energy Holdings, Inc. (5072); Glacial Energy Holdings (3292); Glacial Energy, Inc. (1189); Glacial Energy of Maryland, Inc. (7173); Glacial Energy of California, Inc. (1795); Glacial Energy of Illinois, Inc. (1796); Glacial Energy of New Jersey, Inc. (8671); Glacial Energy of Washington DC, Inc. (5548); Glacial Energy of Michigan, Inc. (7110); Glacial Natural Gas, Inc. (0165); and Negawatt Business Solutions, Inc. (f/k/a Gridway Energy Partners, Inc.) (7086). The location of the headquarters of the Debtors is 5326 Yacht Haven Grande, Box 36, St. Thomas, VI

12 Case CSS Doc Filed 04/28/16 Page 2 of 2 PLEASE TAKE FURTHER NOTICE THAT A HEARING TO CONSIDER THE MOTION WILL BE HELD ON JUNE 8, 2016 AT 1000 A.M. (ET) BEFORE THE HONORABLE CHRISTOPHER S. SONTCHI, IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 N. MARKET STREET, 5 TH FLOOR, COURTROOM #6, WILMINGTON, DELAWARE PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND TO THE MOTION IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED THEREIN WITHOUT FURTHER NOTICE OR A HEARING. Dated April 28, 2016 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Donald J. Bowman, Jr. Michael R. Nestor (No. 3526) Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Travis G. Buchanan (No. 5595) Rodney Square 1000 North King Street Wilmington, Delaware Telephone Facsimile Attorneys for the Debtors and Debtors in Possession

13 Case CSS Doc Filed 04/28/16 Page 1 of 2 Exhibit A Bill of Sale

14 Case CSS Doc Filed 04/28/16 Page 2 of 2

15 Case CSS Doc Filed 04/28/16 Page 1 of 5 Exhibit B Proposed Order

16 Case CSS Doc Filed 04/28/16 Page 2 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE x In re GRIDWAY ENERGY HOLDINGS, et al., Debtors x Chapter 11 Case No (CSS) Jointly Administered Ref. Docket No. ORDER, PURSUANT TO SECTIONS 105, 362 AND 365 OF THE BANKRUPTCY CODE, (I) AUTHORIZING THE REJECTION OF THAT CERTAIN ENERGY SERVICE PROVIDER AGREEMENT BY AND BETWEEN GLACIAL ENERGY OF CALIFORNIA, INC. AND PACIFIC GAS AND ELECTRIC COMPANY, NUNC PRO TUNC TO THE REJECTION DATE, (II) GRANTING PACIFIC GAS AND ELECTRIC COMPANY RELIEF FROM THE AUTOMATIC STAY, AND (III) GRANTING RELATED RELIEF Upon consideration of the motion (the Motion ) 2 of the above-captioned debtors and debtors in possession (the Debtors ), for entry of an order, pursuant to sections 105(a), 362 and 365 of the Bankruptcy Code, (i) authorizing the Debtors to reject that certain contract entitled Energy Service Provider Agreement, by and between Glacial Energy of California, Inc. ( Glacial Energy of California ) and Pacific Gas and Electric Company ( PG&E ), dated August 8, 2007 (the Glacial ESP Agreement ), effective nunc pro tunc to the Rejection Date, (ii) granting PG&E relief from the automatic stay, and (iii) granting related relief; and due and proper notice of the Motion having been given; and it appearing that no other or further notice of the Motion is required; and it appearing that the Court has jurisdiction to consider the Motion in 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are Gridway Energy Holdings, Inc. (5072); Glacial Energy Holdings (3292); Glacial Energy, Inc. (1189); Glacial Energy of Maryland, Inc. (7173); Glacial Energy of California, Inc. (1795); Glacial Energy of Illinois, Inc. (1796); Glacial Energy of New Jersey, Inc. (8671); Glacial Energy of Washington DC, Inc. (5548); Glacial Energy of Michigan, Inc. (7110); Glacial Natural Gas, Inc. (0165); and Negawatt Business Solutions, Inc. (f/k/a Gridway Energy Partners, Inc.) (7086). The location of the headquarters of the Debtors is 5326 Yacht Haven Grande, Box 36, St. Thomas, VI Unless otherwise defined herein, all capitalized terms shall have the meaning ascribed to them in the Motion

17 Case CSS Doc Filed 04/28/16 Page 3 of 5 accordance with 28 U.S.C. 157 and 1334 and the Amended Standing Order; and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b); and it appearing that venue of this proceeding and the Motion is proper pursuant to 28 U.S.C and 1409; and it appearing that the relief requested in the Motion and provided for herein is in the best interest of the Debtors, their estates, and creditors; and after due deliberation thereon and with sufficient cause appearing therefor IT IS FOUND AND DETERMINED THAT A. As set forth in the Bill of Sale, the contracts with the End-Use Customers were assumed and assigned to Agera in accordance with the Sale Order and section 2.2(a) of the APA, effective as of December 10, B. Consistent with the Sale Order and section 2.2(f) of the APA, among the Purchased Assets transferred to Agera on or about December 10, 2015 were all amounts deposited by the Debtors with PG&E in connection with the Glacial ESP Agreement as of the Third Partial Asset Closing and all rights to the return thereof under the Glacial ESP Agreement or Tariff in effect as of the Third Partial Asset Closing. IT IS THEREFORE ORDERED THAT 1. The Motion is GRANTED, to the extent set forth herein. 2. The Glacial ESP Agreement is deemed rejected, effective as of the Rejection Date. 3. As of the date of this Order, PG&E shall have immediate relief from the automatic stay pursuant to section 362 of the Bankruptcy Code, to (i) terminate the Glacial ESP Agreement and proceed with any settlements, setoff, or recoupment, and (ii) apply the security it holds to any amounts due and owing by Glacial Energy of California on account of the Glacial

18 Case CSS Doc Filed 04/28/16 Page 4 of 5 ESP Agreement. PG&E shall be entitled to enforce all rights and remedies under the Glacial ESP Agreement, the Tariffs, and applicable law. 4. Nothing in this Order or the Motion shall be construed as prejudicing any rights the Debtors may have to dispute or contest (i) whether the Glacial ESP Agreement is actually an executory contract that is subject to assumption or rejection under section 365 of the Bankruptcy Code or (ii) the amount of, or basis for, any claims asserted against the Debtors arising in connection with the rejection of the Glacial ESP Agreement, or as an admission as to the validity or priority of any claim against the Debtors. 5. Nothing in the Motion or this Order shall be deemed or construed as an approval of an assumption of any executory contract or unexpired lease of non-residential real property pursuant to section 365 of the Bankruptcy Code, and all such rights are reserved. 6. PG&E shall have until the date fixed by this Court in the Chapter 11 Cases pursuant to Bankruptcy Rule 3003(c)(3) to file any and all claims for damages arising from the Debtors rejection of the Glacial ESP Agreement, or shall be forever barred from doing so. Nothing in this Order shall impair, prejudice, waive, or otherwise affect any rights, claims, or defenses of the Debtors and their estates with respect to any such damages claim. 7. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 8. All time periods set forth in this Order shall be calculated in accordance with Bankruptcy Rule 9006(a). 9. The Debtors are authorized and empowered to take all actions necessary to implement the relief granted in this Order

19 Case CSS Doc Filed 04/28/16 Page 5 of This Court shall retain jurisdiction with respect to all matters arising from or related to the implementation and interpretation of this Order. Dated, 2016 Wilmington, Delaware Christopher S. Sontchi United States Bankruptcy Judge