Foley Hoag is pleased to announce the successful consummation of the Second Amended Joint Chapter 11 Plan for Burgess BioPower, LLC ("Burgess") and Berlin Station, LLC ("Berlin" and, together with Burgess, the "Debtors"), with the Plan Effective Date occurring on April 1, 2026, more than two years after the Petition Date of February 9, 2024. The cases were administered in the U.S. Bankruptcy Court for the District of Delaware before Judge Laurie Selber Silverstein.

The Burgess BioPower facility is a 75 MW biomass-fueled power plant in Berlin, New Hampshire, selling electricity in the ISO New England wholesale markets. The facility supports over 240 direct and indirect jobs and generates more than $70 million in annual economic activity for the state. The reorganization presented challenges at the intersection of federal bankruptcy law, energy regulation, environmental compliance, state tax disputes, and municipal relationships — all while maintaining plant operations throughout the Chapter 11 process. A hallmark of the Burgess restructuring was the negotiation and execution of multiple critical settlements, each of which was essential to achieving the confirmed Plan.

The firm negotiated a multi-party settlement agreement with the facility's pre-filing operator-manager for an orderly transition of all operational, management, financial, and regulatory functions to Olympus Power as the new operator-manager. This transition required coordination among the Debtors, the existing and incoming operator-managers, prepetition and post-reorganization equity owners, pre-petition senior secured lenders, debtor-in-possession lenders, and new exit lenders.

The Debtors reached a settlement with the City of Berlin, New Hampshire, preserving the critical municipal relationship underlying the facility's operations, including resolution of tax agreements. The Bankruptcy Court also approved a settlement with the New Hampshire Department of Revenue Administration resolving the NHDRA's prepetition priority claim and administrative claim.

The Debtors also engaged in litigation and ultimately reached multiple settlements with Public Service Company of New Hampshire, d/b/a Eversource Energy, first to reject the existing power purchase agreement — the termination of which had precipitated the Chapter 11 filing — and then to resolve administrative expense claims for post-petition interconnection and local transmission services, navigating complex issues at the intersection of bankruptcy law, FERC-regulated tariffs, and transmission service agreements.

Finally, the Debtors, their pre-petition lenders, and a new investment group led by Keyframe Capital Partners negotiated the disposition of the lenders’ debt, which gave the Debtors’ sufficient capital to propose and confirm a Chapter 11 plan of reorganization, and emerge from Chapter 11 with new owners, a new capital structure, and a new lease on life.

The Burgess restructuring reflects the depth and breadth of Foley Hoag's multi-disciplinary capabilities, requiring knowledge across the following areas:

Bankruptcy, Debt Finance and Restructuring. All aspects of the Chapter 11 process, from petition filing through consummation, including DIP financing, disclosure statement approval, plan solicitation, claims administration, and contract assumption and rejection.

Energy and Regulatory Law. FERC approval under Federal Power Act Section 203, maintenance of market-based rate authorization, qualifying small power production facility certification, and exempt wholesale generator status, as well as ISO New England market participant and asset registration for the reorganized entities.

Environmental Law. Ongoing environmental compliance obligations.

Commercial Contracts. Assumption and rejection of executory contracts and leases, cure amount negotiations, and drafting of the new operator-manager agreements.

Litigation. Disputes with PSNH/Eversource over transmission service charges and interconnection obligations, and resolution of NHDRA and other creditor claims.

Government Relations. Navigation of city, state, and federal tax and regulatory interests.

The Foley Hoag team, which served as lead counsel to the Debtors, was led by Kenneth S. Leonetti, Alison D. Bauer, and Carol Holahan, with significant contributions from William F. Gray, Jr., Yoni Bard, Jiun-Wen Bob Teoh, Christian Garcia, Sarah Moore, Adrian Maraziti, Brenna Rosen and Rachel Kelly, as well as assistance from Aaron Lang, Adam Wade and Kristyn DeFilipp.