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1 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 1 of 27 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ) Chapter 11 In re: ) ) A GACI, LLC, ) Case No rbk-11 ) Debtor. ) ) THIS PLEADING REQUESTS RELIEF THAT MAY BE ADVERSE TO YOUR INTERESTS. IF NO TIMELY RESPONSE IS FILED WITHIN 21 DAYS FROM THE DATE OF SERVICE, THE RELIEF REQUESTED HEREIN MAY BE GRANTED WITHOUT A HEARING BEING HELD. A TIMELY FILED RESPONSE IS NECESSARY FOR A HEARING TO BE HELD. MOTION OF AWIN INC. FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM AWIN Inc. ( AWIN ), by and through its undersigned counsel, pursuant to sections 503(b) and 507 of title 11 of the United States Code (the Bankruptcy Code ) and the Second Amended Plan of Reorganization (the Plan ) of the A GACI, L.L.C. [Dkt. No. 488], 1 hereby files this Motion for entry of an order, substantially in the form attached hereto, ordering the allowance and payment of its administrative expense claim, and respectfully states as follows: 1 The Plan was unclear with respect to the method for seeking allowance of administrative expense claims. AWIN is proceeding by motion following discussion with Debtors counsel. Pursuant to the Notice of Effective Date filed on August 3, 2018 [Docket No. 507], the deadline to file applications or claims for payment of administrative claims is September 4, 2018.

2 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 2 of 27 JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and Venue is proper pursuant to 28 U.S.C and The statutory bases for the relief requested herein are 11 U.S.C. 503(b) and 507(a). BACKGROUND 4. On January 9, 2018 (the Petition Date ), A GACI, L.L.C. (the Debtor ) filed a voluntary chapter 11 petition with the Bankruptcy Court for the Western District of Texas (the Bankruptcy Court ). 5. The Debtor and AWIN were parties to an Affiliate Marketing Advertiser Agreement dated as of March 8, 2017 (the Contract ) between the Debtor and AWIN s predecessor, Digital Window Inc., pursuant to which AWIN provided internet marketing services to the Debtor. A copy of the Contract is attached hereto as Exhibit A. 6. Following the Petition Date, AWIN continued to provide the services contemplated under the Contract to the Debtor, and continued to accrue post-petition receivables in connection with the post-petition services. The Debtor rejected the Contract in connection with the effectiveness of the Plan. 7. To date, AWIN has accrued post-petition receivables totaling no less than $142,396. Copies of the billing statements showing such amounts due are attached hereto as Exhibit B. 8. By order dated July 27, 2018 [Docket No. 496], this Court confirmed the Debtor s Plan. 2

3 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 3 of The Plan became effective on August 2, 2018 [Docket No. 507]. 10. The Debtor filed and caused to be served a Notice of Effective Date on August 3, BASIS FOR RELIEF 11. Section 503(b) of the Bankruptcy Code provides in pertinent part that allowed administrative expense claims exist for the actual, necessary costs and expenses of preserving the estate, including wages, salaries or commissions for services rendered after the commencement of the case U.S.C. 503(b)(1)(A). Section 507(a) of the Bankruptcy Code provides that administrative expense claims that are allowed under section 503(b) of the Bankruptcy Code have first priority. 11 U.S.C. 507(a)(1). 12. An administrative claim pursuant to section 503(b) of the Bankruptcy Code will be allowed when the expense (1) arises post-petition and (2) benefits the debtor s estate. See, e.g., Matter of TransAmerican Nat l Gas Corp., 978 F.2d 1409, 1416 (5th Cir. 1992); see also Pirinate Consulting Group, LLC v. Maryland Dep t of the Env t (In re Newpage Corp.), 555 B.R. 444, 451 (Bankr. D. Del. 2016). 13. Here, both prongs of the test are satisfied. Because the services were rendered to the Debtor after the Petition Date, the transactions giving rise to the administrative expense occurred post-petition and were for the benefit of the estate. 14. The continued provision of the services under the Contract benefited the Debtor s estate because they allowed the Debtor to continue to operate its businesses post-petition, including the development of potential customer relationships resulting from the services provided by AWIN. The cost of the services provided to the Debtor constitutes an actual, necessary cost of preserving the Debtor s estate, and AWIN is entitled to the payment of all 3

4 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 4 of 27 accrued amounts. RESERVATION OF RIGHTS 15. AWIN reserves all of its rights to supplement this Motion to reflect additional amounts that may have, or may become, due and owing. AWIN also reserves all of its rights to file a (or amend its previously filed) proof of claim with respect to any rejection damages it may accrue following an order authorizing the rejection of the Contract. 16. In filing this Motion for allowance and payment of its administrative expense claim, AWIN does not submit itself to the jurisdiction of the Bankruptcy Court for any purpose other than with respect to the specific issues discussed herein, and does not waive (i) any of its rights and remedies against any other person or entity who may be liable for all or part of the amounts described forth herein, whether an affiliate, assignee, guarantor or otherwise, of the Debtor, or (ii) any other obligation owed to AWIN. Furthermore, nothing herein nor any later appearance, pleading, claim, or suit shall waive any right (1) to have final orders entered only after de novo review by a district judge, (2) to trial by jury in any proceeding so triable in these cases or in any case, controversy or proceeding, (3) to have the district court withdraw the reference in any matter subject to mandatory or discretionary withdrawal, or (4) to any other rights, claims, actions, defenses, setoffs, or recoupments to which AWIN, in any capacity, is or may be entitled under agreements, in law or in equity, all of which rights, claims, actions, defenses, setoffs and recoupments are expressly reserved. Nothing herein should be construed as a waiver of AWIN s right to raise these issues at a later date. WHEREFORE, AWIN hereby seeks entry of an order, substantially in the form attached hereto as Exhibit C, (i) authorizing the allowance and payment of its administrative expense claim, and (ii) granting such other relief as this Court deems appropriate. 4

5 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 5 of 27 Dated: September 4, 2018 Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP By: /s/ Crystal R. Axelrod Rachel Jaffe Mauceri Crystal R. Axelrod State Bar No Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA Telephone: (215) Facsimile: (215) rachel.mauceri@morganlewis.com crystal.axelrod@morganlewis.com Attorneys for AWIN Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Motion was served on September 4, 2018, by electronic transmission upon all parties eligible to receive service through this Court s CM/ECF system. By: /s/ Crystal R. Axelrod Crystal R. Axelrod 5

6 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 6 of 27 EXHIBIT A Contract

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8 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 8 of 27 HEAD OF SALES, US 8th MARCH 2017 NICHOLAS CARTWRIGHT

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18 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 18 EXHIBIT B Billing Statements

19 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 19 AWIN Inc 8 Market Place, Suite 500, Baltimore, MD 21202, USA london-finance@awin.com awin.com From AWIN Inc 8 Market Place Suite 500 Baltimore MD, USA To A'GACI LLC Network Boulevard Suite 106 San Antonio TX USA All Amounts in USD Terms Nett 30 days Document No Document Date 1/31/2018 Purchase order No. Account No Program Name AGACI US Invoice Description Net Affiliate Commissions Validated: 16th- 31st January , Network Fee: 16th- 31st January , Monthly Fee: January Net 52, Sales tax 0.00 Total Payable 52, DETAILS FOR PAYMENT: Check Awin Inc. PO BOX Boston MA, Wire RBS Citizens Bank N.A. 1 Citizen Drive Riverside Rhode Island, Account# ABA # Swift: CTZIUS33 ACH RBS Citizens Bank N.A. 28 State Street Boston Massachusetts, Account# ABA # Please note that we only send invoices by therefore if you wish to update current contact details please contact londonfinance@awin.com. To ensure payments are correctly allocated please send remittance advice with each payment to london-remittances@awin.com. The underlying transactions that make up the commission element of this invoice can be obtained by generating a Transactions Report based on approved, validation-dated transactions using the invoicing period stated above. Sales tax Analysis Code % Net Sales tax AWIN Inc Trading address: 8 Market Place, Suite 500, Baltimore, MD 21202, USA Registered Address: 8 Market Place, Suite 500, Baltimore, MD, 21202, USA Telephone: +44 (0) London-finance@awin.com

20 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 20 AWIN Inc 8 Market Place, Suite 500, Baltimore, MD 21202, USA london-finance@awin.com awin.com From AWIN Inc 8 Market Place Suite 600 Baltimore MD, USA To A'GACI LLC Network Boulevard Suite 106 San Antonio TX USA All Amounts in USD Terms Nett 30 days Document No Document Date 3/31/2018 Purchase order No. Account No Program Name AGACI US Invoice Description Net Monthly Fee: March Net Sales tax 0.00 Total Payable DETAILS FOR PAYMENT: Check Awin Inc. PO BOX Boston MA, Wire RBS Citizens Bank N.A. 1 Citizen Drive Riverside Rhode Island, Account# ABA # Swift: CTZIUS33 ACH RBS Citizens Bank N.A. 28 State Street Boston Massachusetts, Account# ABA # Please note that we only send invoices by therefore if you wish to update current contact details please contact londonfinance@awin.com. To ensure payments are correctly allocated please send remittance advice with each payment to london-remittances@awin.com. The underlying transactions that make up the commission element of this invoice can be obtained by generating a Transactions Report based on approved, validation-dated transactions using the invoicing period stated above. Sales tax Analysis Code % Net Sales tax AWIN Inc Trading address: 8 Market Place, Suite 600, Baltimore, MD 21202, USA Registered Address: 8 Market Place, Suite 600, Baltimore, MD, 21202, USA Telephone: +44 (0) London-finance@awin.com

21 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 21 AWIN Inc 8 Market Place, Suite 500, Baltimore, MD 21202, USA london-finance@awin.com awin.com From AWIN Inc 8 Market Place Suite 600 Baltimore MD, USA To A'GACI LLC Network Boulevard Suite 106 San Antonio TX USA All Amounts in USD Terms Nett 30 days Document No Document Date 4/30/2018 Purchase order No. Account No Program Name AGACI US Invoice Description Net Monthly Fee: April Net Sales tax 0.00 Total Payable DETAILS FOR PAYMENT: Check Awin Inc. PO BOX Boston MA, Wire RBS Citizens Bank N.A. 1 Citizen Drive Riverside Rhode Island, Account# ABA # Swift: CTZIUS33 ACH RBS Citizens Bank N.A. 28 State Street Boston Massachusetts, Account# ABA # Please note that we only send invoices by therefore if you wish to update current contact details please contact londonfinance@awin.com. To ensure payments are correctly allocated please send remittance advice with each payment to london-remittances@awin.com. The underlying transactions that make up the commission element of this invoice can be obtained by generating a Transactions Report based on approved, validation-dated transactions using the invoicing period stated above. Sales tax Analysis Code % Net Sales tax AWIN Inc Trading address: 8 Market Place, Suite 600, Baltimore, MD 21202, USA Registered Address: 8 Market Place, Suite 600, Baltimore, MD, 21202, USA Telephone: +44 (0) London-finance@awin.com

22 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 22 AWIN Inc 8 Market Place, Suite 500, Baltimore, MD 21202, USA london-finance@awin.com awin.com From AWIN Inc 8 Market Place Suite 600 Baltimore MD, USA To A'GACI LLC Network Boulevard Suite 106 San Antonio TX USA All Amounts in USD Terms Nett 30 days Document No Document Date 7/31/2018 Purchase order No. Account No Program Name AGACI US Invoice Description Net Affiliate Commissions Validated: 16th- 31st July , Network Fee: 16th- 31st July , Monthly Fee: July Net 32, Sales tax 0.00 Total Payable 32, DETAILS FOR PAYMENT: Check Awin Inc. PO BOX Boston MA, Wire RBS Citizens Bank N.A. 1 Citizen Drive Riverside Rhode Island, Account# ABA # Swift: CTZIUS33 ACH RBS Citizens Bank N.A. 28 State Street Boston Massachusetts, Account# ABA # Please note that we only send invoices by therefore if you wish to update current contact details please contact londonfinance@awin.com. To ensure payments are correctly allocated please send remittance advice with each payment to london-remittances@awin.com. The underlying transactions that make up the commission element of this invoice can be obtained by generating a Transactions Report based on approved, validation-dated transactions using the invoicing period stated above. Sales tax Analysis Code % Net Sales tax AWIN Inc Trading address: 8 Market Place, Suite 600, Baltimore, MD 21202, USA Registered Address: 8 Market Place, Suite 600, Baltimore, MD, 21202, USA Telephone: +44 (0) London-finance@awin.com

23 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 23 AWIN Inc 8 Market Place, Suite 500, Baltimore, MD 21202, USA london-finance@awin.com awin.com From AWIN Inc 8 Market Place Suite 600 Baltimore MD, USA To A'GACI LLC Network Boulevard Suite 106 San Antonio TX USA All Amounts in USD Terms Nett 30 days Document No. 8057PEND Document Date 8/22/2018 Purchase order No. Account No Program Name AGACI US Invoice Description Pending Commissions Pending Network Fee Net 45, , Net 56, Sales tax 0.00 Total Payable 56, DETAILS FOR PAYMENT: Check Awin Inc. PO BOX Boston MA, Wire RBS Citizens Bank N.A. 1 Citizen Drive Riverside Rhode Island, Account# ABA # Swift: CTZIUS33 ACH RBS Citizens Bank N.A. 28 State Street Boston Massachusetts, Account# ABA # Please note that we only send invoices by therefore if you wish to update current contact details please contact londonfinance@awin.com. To ensure payments are correctly allocated please send remittance advice with each payment to london-remittances@awin.com. The underlying transactions that make up the commission element of this invoice can be obtained by generating a Transactions Report based on approved, validation-dated transactions using the invoicing period stated above. Sales tax Analysis Code % Net Sales tax AWIN Inc Trading address: 8 Market Place, Suite 600, Baltimore, MD 21202, USA Registered Address: 8 Market Place, Suite 600, Baltimore, MD, 21202, USA Telephone: +44 (0) London-finance@awin.com

24 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 24 EXHIBIT C Proposed Order

25 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 25 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ) Chapter 11 In re: ) ) A GACI, LLC, ) Case No rbk-11 ) Debtor. ) ) ORDER GRANTING MOTION OF AWIN INC. FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM Upon the motion of AWIN Inc. ( AWIN ) for Allowance and Payment of Administrative Expenses, dated September 4, 2018 (the Motion ), seeking entry of an order pursuant to sections 503(b) and 507 of title 11 of the United States Code (the Bankruptcy Code ) and the Second Amended Plan of Reorganization (the Plan ) of A GACI, L.L.C, authorizing the allowance and payment of AWIN s administrative expense claim in the amount of $142,396 (the Claim ) arising under the Affiliate Marketing Advertiser Agreement dated as of March 8, 2017 (the Contract ) between the Debtor and AWIN s predecessor, Digital Window Inc., pursuant to

26 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 26 which AWIN provided services to the Debtor; and this Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C and 1409; and this Court having determined that, given the circumstances described in the Motion, due and proper notice of the Motion has been provided pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure; and it appearing that no other or further notice of the Motion or the relief requested therein need be provided; and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court, and after due deliberation and sufficient cause appearing therefor; it is hereby ORDERED that the Motion is granted; and it is further ORDERED that the Claim is allowed as an administrative expense claim in the amount of $142,396 (the Allowed Administrative Claim ); and it is further ORDERED that the Allowed Administrative Claim shall be paid to AWIN in accordance with the provisions of the Plan; and it is further ORDERED, that this Order is without prejudice to any other rights or claims; and it is further ORDERED that this Court retains jurisdiction with respect to all matters arising from, based upon, or related to the implementation of this Order. # # #

27 rbk Doc#536 Filed 09/04/18 Entered 09/04/18 14:39:05 Main Document Pg 27 Submitted by: MORGAN, LEWIS & BOCKIUS LLP Rachel Jaffe Mauceri Crystal R. Axelrod (State Bar No ) 1701 Market Street Philadelphia, PA Telephone: (215) Facsimile: (215) Counsel to AWIN Inc.

28 rbk Doc#536-1 Filed 09/04/18 Entered 09/04/18 14:39:05 Proposed Order Pg 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ) Chapter 11 In re: ) ) A GACI, LLC, ) Case No rbk-11 ) Debtor. ) ) ORDER GRANTING MOTION OF AWIN INC. FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE CLAIM Upon the motion of AWIN Inc. ( AWIN ) for Allowance and Payment of Administrative Expenses, dated September 4, 2018 (the Motion ), seeking entry of an order pursuant to sections 503(b) and 507 of title 11 of the United States Code (the Bankruptcy Code ) and the Second Amended Plan of Reorganization (the Plan ) of A GACI, L.L.C, authorizing the allowance and payment of AWIN s administrative expense claim in the amount of $142,396 (the Claim ) arising under the Affiliate Marketing Advertiser Agreement dated as of March 8, 2017 (the Contract ) between the Debtor and AWIN s predecessor, Digital Window Inc., pursuant to

29 rbk Doc#536-1 Filed 09/04/18 Entered 09/04/18 14:39:05 Proposed Order Pg 2 of 3 which AWIN provided services to the Debtor; and this Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C and 1409; and this Court having determined that, given the circumstances described in the Motion, due and proper notice of the Motion has been provided pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure; and it appearing that no other or further notice of the Motion or the relief requested therein need be provided; and this Court having determined that the legal and factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court, and after due deliberation and sufficient cause appearing therefor; it is hereby ORDERED that the Motion is granted; and it is further ORDERED that the Claim is allowed as an administrative expense claim in the amount of $142,396 (the Allowed Administrative Claim ); and it is further ORDERED that the Allowed Administrative Claim shall be paid to AWIN in accordance with the provisions of the Plan; and it is further ORDERED, that this Order is without prejudice to any other rights or claims; and it is further ORDERED that this Court retains jurisdiction with respect to all matters arising from, based upon, or related to the implementation of this Order. # # #

30 rbk Doc#536-1 Filed 09/04/18 Entered 09/04/18 14:39:05 Proposed Order Pg 3 of 3 Submitted by: MORGAN, LEWIS & BOCKIUS LLP Rachel Jaffe Mauceri Crystal R. Axelrod (State Bar No ) 1701 Market Street Philadelphia, PA Telephone: (215) Facsimile: (215) rachel.mauceri@morganlewis.com crystal.axelrod@morganlewis.com Counsel to AWIN Inc.