Case CSS Doc 8 Filed 04/10/14 Page 1 of 16 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE.

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1 Case CSS Doc 8 Filed 04/10/14 Page 1 of 16 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re GRIDWAY ENERGY HOLDINGS, INC., et al., Debtors x x Chapter 11 Case No. 14- Joint Administration Requested DEBTORS MOTION PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a), 363(b), AND 507(a)(8) FOR AN ORDER AUTHORIZING (I) PAYMENT OF CERTAIN PREPETITION TAXES AND RELATED AMOUNTS TO GOVERNMENTAL ENTITIES, AND (II) FINANCIAL INSTITUTIONS TO HONOR AND PROCESS RELATED CHECKS AND TRANSFERS Gridway Energy Holdings, Inc. ( Gridway or the Company ) and its title 11 subsidiaries and affiliates, as chapter 11 debtors and debtors in possession (collectively, the Debtors ), submit this motion (the Motion ) for an order (i) authorizing, but not directing, the Debtors to pay certain prepetition taxes defined below as Trust Fund Taxes and Related Amounts to various state and local authorities (collectively, the Taxing Authorities ); 2 and 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 New York (0776); Glacial Energy of New England, Inc. (1724); 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 Pennsylvania, Inc. (9762); Glacial Energy of Texas (1517); Glacial Energy of Washington DC, Inc. (5548); Glacial Energy of Ohio, Inc. (0103); Glacial Energy of Michigan, Inc. (7110); Glacial Natural Gas, Inc. (0165); Negawatt Business Solutions (6299); Negawatt Business Solutions, Inc. (f/k/a Gridway Energy Partners, Inc.) (7086); Ziphany, L.L.C. (7934); and Glacial Energy VI, LLC (1142). The location of the headquarters of Glacial Energy VI, LLC is 5326 Yacht Haven Grande, Box 36, St. Thomas, VI The location of the headquarters for the remaining Debtors is 24 Massachusetts 6A, Sandwich, MA The Debtors also remit taxes to Taxing Authorities in respect of federal, state, and local income taxes, Social Security, and Medicare that the Debtors withhold from employees wages. Remittance of certain of these taxes to applicable Taxing Authorities is addressed in the Debtors Motion Pursuant to Sections 105(a), 363(b), 363(c), 507(a)(4), and 507(a)(5) of the Bankruptcy Code and Bankruptcy Rules 6003 and 6004 for Order (I) Authorizing Payment of Prepetition Employee Obligations and Continuation of Prepetition Employee Benefits, (II) Authorizing Financial Institutions to Honor and Process Related Checks and Transfers, and (III) Granting Related Relief, filed contemporaneously herewith.

2 Case CSS Doc 8 Filed 04/10/14 Page 2 of 16 (ii) authorizing banks and other financial institutions to honor and process related checks and transfers. In further support of this Motion, the Debtors respectfully represent as follows Jurisdiction and Venue 1. This Court has subject matter jurisdiction to consider and determine this matter pursuant to 28 U.S.C and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29, This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C and The statutory predicates for the relief requested are sections 105, 363 and 507 of the Bankruptcy Code and Bankruptcy Rules 6003 and Background 2. On the date hereof (the Commencement Date ), each of the Debtors commenced a voluntary case under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). The Debtors continue to operate their businesses and manage their properties as debtors in possession as authorized by Bankruptcy Code sections 1107(a) and Contemporaneously herewith, the Debtors filed a motion seeking the joint administration of their chapter 11 cases, for procedural purposes only, pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule of the Local Rules of Bankruptcy Practice and Procedure for the District of Delaware (the Local Rules ). 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 these chapter 11 cases (the Chapter 11 Cases ) can be found in the

3 Case CSS Doc 8 Filed 04/10/14 Page 3 of 16 Declaration of Randy Lennan in Support of Chapter 11 Petitions and First Day Motions (the First Day Declaration ), which is incorporated herein by reference. 3 Relief Requested 5. By this Motion, pursuant to Bankruptcy Code sections 105(a), 363(b), and 507(a)(8), the Debtors request an order, substantially in the form attached hereto as Exhibit A, (i) authorizing, but not directing, the Debtors to pay, subject to the Debtor-In-Possession ( DIP ) budget (and budget variances as permitted under the DIP Credit Agreement), to the Taxing Authorities certain prepetition taxes attributable to amounts that have been invoiced or actually collected and are held in trust by the Debtors for payment to one or more Taxing Authorities (all such prepetition taxes, Trust Fund Taxes ) as they become due and payable because the taxes are collected from Debtors customer(s) or deducted from a payment requiring withholding, which taxes may, but do not necessarily, include Sales Taxes (defined below); (ii) authorizing, but not directing, the Debtors to pay, subject to the DIP budget (and the budget variances as permitted under the DIP Credit Agreement), to the Taxing Authorities certain related amounts assessed as penalties or otherwise by Taxing Authorities concerning such Trust Fund Taxes ( Related Amounts ) as they become due and payable; and (iii) authorizing banks and other financial institutions (collectively, the Banks ) to honor and process related checks and transfers. Sales Taxes 6. A sales tax is a consumption tax calculated as a percentage of the sale price that is charged at the point of purchase for certain goods and services (the Sales Taxes ). 3 Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the First Day Declaration

4 Case CSS Doc 8 Filed 04/10/14 Page 4 of The Debtors remit Sales Taxes monthly, quarterly, semi-annually, or annually in arrears depending on the Debtor and the Taxing Authority for each taxing state or locality to which the Debtors have a sufficient nexus. The Debtors pay approximately $1.8 million (one-million eight-hundred-thousand dollars) in Sales Taxes each month. As a result of the commencement of these cases, the Debtors believe a portion of the accrued Trust Fund Taxes and Related Amounts, including these Sales Taxes, may remain due for the applicable periods immediately preceding the Commencement Date (the Current Periods ). As of the week before the Commencement Date, the Debtors owe approximately $2 million on account of Sales Taxes that constitute Trust Fund Taxes and Related Amounts due for the Current Periods. In addition, Rhode Island has assessed Sales Taxes that constitute Trust Fund Taxes and Related Amounts due for earlier tax periods in an aggregate amount of $200,000. Accordingly, the Debtors request authority to make payments for these Trust Fund Taxes and Related Amounts for the Current Periods in the same manner as they would have been made before the Commencement Date and for earlier tax periods with respect to the assessment by Rhode Island without further approval from this Court, in an aggregate amount not to exceed $2.5 million. Cause Exists to Authorize the Payment of Prepetition Trust Fund Taxes and Related Amounts 8. Payment of any prepetition Trust Fund Taxes and Related Amounts is warranted under Bankruptcy Code sections 363(b), 507(a)(8), and 105(a). The Debtors submit that ample cause exists to grant the relief requested The Trust Fund Taxes and Related Amounts may be afforded priority status under Bankruptcy Code sections 507(a)(8)(B), (C), (E), and (G). If deemed to be priority Nothing in this Motion should be construed as impairing the Debtors rights to contest the amount of any Sales Taxes, Related Amounts or other taxes and fees assessed by any Taxing Authority, or whether such amounts are subject to priority treatment, and the Debtors expressly reserve all of their rights with respect thereto. 4

5 Case CSS Doc 8 Filed 04/10/14 Page 5 of 16 claims, the Trust Fund Taxes and Related Amounts must be paid in full to render a chapter 11 plan confirmable pursuant to Bankruptcy Code section 1129(a)(9)(C). Accordingly, the relief requested will only affect the timing of the payment of Trust Fund Taxes and Related Amounts and will not prejudice the rights of general unsecured claimholders or other parties in interest. 10. As taxes that the Debtors are required to collect from third parties and hold in trust for the benefit of the Taxing Authorities, the Trust Fund Taxes may not constitute property of the estate. See Begier v. Internal Revenue Serv., 496 U.S. 53, (1990) (any prepetition payment of trust fund taxes is not an avoidable preference because such funds were not the debtor s property). As a consequence, the Debtors estates would not have a claim to such Trust Fund Taxes and, assuming they could be adequately identified and traced, such amounts would not constitute property of the Debtors estates and would not be subject to the automatic stay. See City of Farrell v. Sharon Steel Corp., 41 F.3d 92, 95 (3d Cir. 1994); see also 11 U.S.C. 541(d) (limiting property of the estate to property in which a debtor has legal title). Accordingly, because the Debtors estates have no interest in any such Trust Fund Taxes, payment of such taxes does not prejudice the rights of any of the Debtors other creditors, and the Debtors should be able to pay any Trust Fund Taxes as they become due and payable. 11. Even if some of the Trust Fund Taxes are not trust fund taxes in a particular jurisdiction, payment of Trust Fund Taxes and Related Amounts should nevertheless be authorized because they may be priority claims and some Taxing Authorities may audit the Debtors if such Trust Fund Taxes and Related Amounts are not paid timely. Such audits would needlessly divert the Debtors attention from their reorganization efforts. In addition, some Taxing Authorities may also seek to impose liens on the Debtors assets on account of unpaid Trust Fund Taxes and Related Amounts, which liens would require time, effort, and expense for

6 Case CSS Doc 8 Filed 04/10/14 Page 6 of 16 the Debtors to challenge and remove. An improper lien or the failure to pay certain Trust Fund Taxes and Related Amounts might also affect the Debtors good standing in a particular state, potentially affecting the Debtors ability to continue operating in the ordinary course. Timely payment of the Trust Fund Taxes and Related Amounts is necessary to avoid such distractions, and is thus in the best interest of the Debtors and their estates. 12. Moreover, certain federal and state statutes hold officers and directors of collecting entities personally liable or criminally responsible for certain taxes and other governmental assessments owed but not remitted by those entities (even when the company is in bankruptcy). See, e.g., ORC Ann (Section of the Ohio Revenue Code holds responsible persons liable for unpaid taxes); see also Brown v. Commonwealth of Pa., 670 A.2d 1222, 1225 (Pa. Commw. Ct. 1996) (holding officer personally liable for unpaid sales and withholding taxes). If certain Trust Fund Taxes and Related Amounts remain unpaid by the Debtors, the Debtors officers and directors may be subject to lawsuits or criminal prosecution. A lawsuit against, or criminal prosecution of, any of the Debtors key personnel would divert the Debtors attention away from important tasks to the detriment of all parties in interest in these Chapter 11 Cases. The dedicated and active participation of the Debtors directors, officers, and other employees is not only integral to the uninterrupted operation of the Debtors business, but also is essential to their successful restructuring. 13. Authorizing, but not directing, the Debtors to pay the Trust Fund Taxes and Related Amounts would also eliminate any potential administrative claims for indemnification that officers would also assert against the Debtors if held personally liable for such taxes (including penalties, interest, and other related charges), as well as the time and

7 Case CSS Doc 8 Filed 04/10/14 Page 7 of 16 expense of litigating such claims. Accordingly, the Debtors submit that the equities weigh heavily in favor of authorizing the Debtors to pay the Trust Fund Taxes and Related Amounts. 14. The Bankruptcy Code authorizes use of estate property to pay many prepetition claims. In In re Kmart Corp., 359 F.3d 866, 872 (7th Cir. 2004), the United States Court of Appeals for the Seventh Circuit ruled that Bankruptcy Code section 363 authorizes payment of prepetition claims. Likewise, Bankruptcy Code section 361 authorizes payment of adequate protection that may include prepetition amounts, and Bankruptcy Code section 365 authorizes payment of prepetition cure amounts. Additionally, it is well established that a bankruptcy court has the power to authorize payment of prepetition claims where the payment of such claims is necessary to facilitate reorganization. This principle was first articulated by the Supreme Court in Miltenberger v. Logansport Co., 106 U.S. 286, 311 (1882) ( Many circumstances may exist which may make it necessary and indispensable to the business... and the preservation of the property, for the receiver to pay pre-existing debts of certain classes, out of the earnings of the receivership, or even the corpus of the property, under the order of the court, with a priority of lien. ), and has been commonly referred to as the necessity of payment doctrine. In re Lehigh & N. E. Ry. Co., 657 F.2d 570, 581 (3d Cir. 1981) ( if payment of a claim which arose prior to reorganization is essential to the continued operation of the railroad during reorganization, payment may be authorized even if it is made out of corpus ); In re Penn Cent. Transp. Co., 467 F.2d 100, 102 n.1 (3d Cir. 1972) ( [The] necessity of payment exception to the normal deferment of the payment... permit[s] immediate payment of claims of creditors where those creditors will not supply services or material essential to the conduct of the business until their pre-reorganization claims shall have been paid. ); Pension Benefit Guar. Corp. v. Sharon Steel Corp. (In re Sharon Steel Corp.), 159 B.R. 730, 736 (Bankr. D. Del. 1993); see also

8 Case CSS Doc 8 Filed 04/10/14 Page 8 of 16 In re Kmart Corp., 359 F.3d 866, 874 (7th Cir. 2004) (finding post-petition payment of prepetition debts to critical vendors proper only if the record shows the prospect of benefit to the other creditors ); In re Motor Coach Indus. Int l Inc., No , 2009 WL , at *2 n.5 (D. Del. Feb. 10, 2009) ( The doctrine of necessity or necessity of payment doctrine is a general rubric for the proposition that a court can authorize the payment of prepetition claims if such payment is essential to the continued operation of the debtor. ); In re Just for Feet, 242 B.R. 821, 825 (D. Del. 1999) ( The Supreme Court, the Third Circuit and the District of Delaware all recognize the court s power to authorize payment of pre-petition claims when such payment is necessary for the debtor s survival during chapter 11. ); In re Columbia Gas Sys., Inc., 171 B.R. 189, (Bankr. D. Del. 1994) (noting that debtors may pay prepetition claims that are essential to continued operation of business). 15. Although the necessity of payment doctrine has not been codified in the Bankruptcy Code, courts have used their equitable power under section 105(a) of the Code to authorize the payment of pre-petition claims when such payment is deemed necessary to the survival of a debtor in a chapter 11 reorganization. Just for Feet, 242 B.R. at 824. Bankruptcy Code section 105(a) authorizes the Court to issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. 11 U.S.C. 105(a). See also In re NVR, 147 B.R. 126, 127 (Bankr. E.D. Va. 1992) ( Under 11 U.S.C. 105 the court can permit pre-plan payment of a pre-petition obligation when essential to the continued operation of the debtor. ). 16. Courts in this district regularly grant relief similar to that requested herein. See, e.g., In re ATLS Acquisition, LLC, No (PJW) (Bankr. D. Del. Feb. 20, 2013) [Docket No. 41]; In re School Specialty, Inc., No (KJC) (Bankr. D. Del. Jan. 30, 2013)

9 Case CSS Doc 8 Filed 04/10/14 Page 9 of 16 [Docket No. 72]; In rethq Inc., No (MFW) (Bankr. D. Del. Dec. 20, 2012) [Docket No. 37]; In re Vertis Holdings, Inc., No (CSS) (Bankr. D. Del. Oct. 31, 2012) [Docket No. 173]; In re Buffets Restaurants Holdings, Inc., No (MFW) (Bankr. D. Del. Jan. 19, 2012) [Docket No. 48]; In re Filene s Basement, LLC, No (KJC) (Bankr. D. Del. Nov. 4, 2011) [Docket No. 75]; In re Amicus Wind Down Corporation fka Friendly Ice Cream Corporation, No (KJG) (Bankr. D. Del. Oct. 6, 2012) [Docket No. 53]; In re NewPage Corporation, No (KJG) (Bankr. D. Del. Sept. 8, 2011) [Docket No. 62]. The Debtors submit similar relief is warranted in these chapter 11 cases. Cause Exists to Authorize the Debtors Financial Institutions to Honor Checks and Electronic Fund Transfers 17. As a result of the commencement of these Chapter 11 Cases, and absent an order of this Court providing otherwise, the Banks may dishonor or reject the Debtors prepetition checks and electronic fund transfers with respect to prepetition Trust Fund Taxes and Related Amounts due to potential exposure under Bankruptcy Code section 542(c). Thus, the Debtors request that, with respect to prepetition Trust Fund Taxes and Related Amounts, the Court authorize the Banks to process, honor, and pay all checks and electronic fund transfers, to the extent the Debtors have sufficient good funds standing to their credit at such Bank, and to rely on the representations of the Debtors as to which checks are issued and authorized to be paid in accordance with this Motion without any duty of further inquiry and without liability for following the Debtors instructions. Reservation of Rights 18. Nothing contained herein is intended or should be construed as an admission as to the validity of any claim against the Debtors, a waiver of the Debtors rights to dispute any claim, or an approval or assumption of any agreement, contract, or lease under

10 Case CSS Doc 8 Filed 04/10/14 Page 10 of Bankruptcy Code section 365. Likewise, notwithstanding any authorization that may be granted pursuant to this Motion, the Debtors maintain the sole discretion to determine whether any claims asserted against the Debtors related to the Trust Fund Taxes and Related Amounts are valid and whether to honor such claims. Relief Under Bankruptcy Rules 6003 and 6004 is Warranted 19. Bankruptcy Rule 6003 provides that except to the extent relief is necessary to avoid immediate and irreparable harm, a bankruptcy court may not approve a motion to pay all or part of a claim that arose before the filing of the petition prior to 21 days after the Commencement Date. Fed. R. Bankr. P The facts described herein demonstrate that the relief requested in this Motion is necessary to avoid immediate and irreparable harm to the Debtors business operations and the value of the Debtors estates, and that Bankruptcy Rule 6003 has been satisfied to permit such payments, if any are necessary. 20. As authorized by Bankruptcy Code section 102(1), the Debtors request that the notice requirements under Bankruptcy Rule 6004(a) be limited to the notice provided below, and that the 14-day stay otherwise required to effectuate an order authorizing the use, sale, or lease of property under Bankruptcy Rule 6004(h) be waived as the Court is authorized to do by Bankruptcy Rule 6004(h). Notice 21. No trustee, examiner, or statutory creditors committee has been appointed in these chapter 11 cases. Notice of this Motion will be provided by facsimile, electronic mail transmission, overnight delivery and/or hand delivery to the following parties (i) the Office of the United States Trustee; (ii) the Debtors twenty (20) largest unsecured creditors on a consolidated basis; (iii) counsel to the Debtors prepetition secured lender; (iv) the Debtors Banks; and (v) the Internal Revenue Service. As this Motion is seeking first-day relief, notice of 10

11 Case CSS Doc 8 Filed 04/10/14 Page 11 of 16 this Motion and any order entered hereon will be served on all parties required by Local Rule (m). WHEREFORE the Debtors respectfully request an order (i) authorizing, but not directing, the Debtors to pay certain prepetition Trust Fund Taxes and Related Amounts to various Taxing Authorities and (ii) authorizing banks and other financial institutions to honor and process related checks and transfers. Dated April 10, 2014 Wilmington, Delaware YOUNG CONAWAY STARGATT & TAYLOR, LLP /s/ Joseph M. Barry Michael R. Nestor (No. 3526) Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Rodney Square 1000 North King Street Wilmington, Delaware Telephone Facsimile and- Alan M. Noskow (pro hac vice pending) Mark A. Salzberg (pro hac vice pending) PATTON BOGGS LLP 2550 M St. NW Washington, DC Telephone Facsimile Proposed Co-Attorneys for the Debtors and Debtors in Possession

12 Case CSS Doc 8 Filed 04/10/14 Page 12 of 16 Exhibit A Proposed Order

13 Case CSS Doc 8 Filed 04/10/14 Page 13 of 16 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re GRIDWAY ENERGY HOLDINGS, INC., et al., Debtors x x Chapter 11 Case No. 14- ( ) Jointly Administered ORDER AUTHORIZING (I) PAYMENT OF CERTAIN PREPETITION TAXES AND RELATED AMOUNTS TO GOVERNMENTAL ENTITIES, AND (II) FINANCIAL INSTITUTIONS TO HONOR AND PROCESS RELATED CHECKS AND TRANSFERS Upon the motion (the Motion ) 2 of Gridway Energy Holdings, Inc. ( Gridway or the Company ) and its title 11 subsidiaries and affiliates, as chapter 11 debtors and debtors in possession (collectively, the Debtors ), for an order (i) authorizing, but not directing, the Debtors to pay certain prepetition Trust Fund Taxes and Related Amounts to various state and local authorities (collectively, the Taxing Authorities ) and (ii) authorizing banks and other financial institutions to honor and process related checks and transfers; and this Court having subject matter jurisdiction to consider the Motion and to grant the relief requested therein in accordance with 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 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 New York (0776); Glacial Energy of New England, Inc. (1724); 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 Pennsylvania, Inc. (9762); Glacial Energy of Texas (1517); Glacial Energy of Washington DC, Inc. (5548); Glacial Energy of Ohio, Inc. (0103); Glacial Energy of Michigan, Inc. (7110); Glacial Natural Gas, Inc. (0165); Negawatt Business Solutions (6299); Negawatt Business Solutions, Inc. (f/k/a Gridway Energy Partners, Inc.) (7086); Ziphany, L.L.C. (7934); and Glacial Energy VI, LLC (1142). The location of the headquarters of Glacial Energy VI, LLC is 5326 Yacht Haven Grande, Box 36, St. Thomas, VI The location of the headquarters for the remaining Debtors is 24 Massachusetts 6A, Sandwich, MA Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.

14 Case CSS Doc 8 Filed 04/10/14 Page 14 of 16 this Court pursuant to 28 U.S.C and 1409; and no trustee, examiner, or statutory creditors committee having been appointed in these chapter 11 cases; and due and proper notice of the Motion having been provided as set forth in the Motion, and it appearing that no other or further notice need be provided; and a hearing having been held to consider the relief requested in the Motion (the Hearing ); and upon the Declaration of Randy Lennan in Support of the Debtors First Day Motions and Applications, the record of the Hearing, and all of the proceedings had before the Court; and any objections to the Motion having been withdrawn or overruled; and the Court having found and determined that the relief sought in the Motion is in the best interests of the Debtors, their estates and creditors, and that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and after due deliberation and sufficient cause appearing therefor, IT IS ORDERED that 1. The Motion is GRANTED. 2. The Debtors are authorized, but not directed, to pay, subject to the Debtor- In-Possession ( DIP ) budget (and the budget variances as permitted under the DIP Credit Agreement, all Trust Fund Taxes and Related Amounts, to the applicable Taxing Authorities; for applicable periods immediately preceding the Commencement Date in the same manner as they would have been made before the Commencement Date as they become due and payable for earlier tax periods with respect to the $200,000 assessment by Rhode Island without further approval from the Court, provided, however, that the amount of payments, relating to prepetition Trust Fund Taxes and Related Amounts, shall not exceed $200,000 with respect to the assessment by Rhode Island and shall not exceed $2.5 million in the aggregate, absent further order of this Court

15 Case CSS Doc 8 Filed 04/10/14 Page 15 of The Banks are authorized, at the Debtors request, to receive, honor, process, and pay any and all checks and electronic transfers related to the prepetition Trust Fund Taxes and Related Amounts, whether presented before or after the Commencement Date, provided that there are sufficient good funds standing to the Debtors credit in the applicable accounts to cover such payments. 4. The Banks are authorized to rely on the representations of the Debtors as to which checks or fund transfers are issued or authorized to be paid pursuant to this Order without any duty of further inquiry and without liability for following the Debtors instructions. 5. The Debtors shall be and hereby are authorized to issue in their sole discretion new postpetition checks or effect new postpetition fund transfers on account of the Trust Fund Taxes and Related Amounts to replace any prepetition check or fund transfer requests that may be dishonored or rejected. 6. Nothing in the Motion or this Order shall be deemed to constitute the postpetition assumption of any executory contract between the Debtors and any third-party. 7. The requirements of Bankruptcy Rule 6003 to allow immediate use of estate property to pay prepetition claims are satisfied by the contents of the Motion and the arguments and evidence presented at the hearing. 8. All payments authorized herein shall be made in accordance with the DIP budget (and the budget variances as permitted under the DIP Credit Agreement) then in effect, and to the extent that there may be any inconsistency between the terms of the interim or final order approving the proposed DIP financing, if and when entered, and this Order, the terms of the interim or final order approving the proposed DIP financing, as applicable, shall govern

16 Case CSS Doc 8 Filed 04/10/14 Page 16 of Pursuant to Bankruptcy Code section 102(1), the notice requirements under Bankruptcy Rule 6004(a) are limited to the notice provided in the Motion, and, pursuant to Bankruptcy Rule 6004(h), the 14-day stay otherwise required to effectuate an order authorizing the use, sale, or lease of property under Bankruptcy Rule 6004(h) is waived. 10. This Court shall retain jurisdiction with respect to all matters arising from or relating to the interpretation or implementation of this Order. Dated, 2014 Wilmington, Delaware United States Bankruptcy Judge