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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MASSACHUSETTS EASTERN DIVISION ____________________________________ ) In re: ) ) NEW ENGLAND COMPOUNDING ) CHAPTER 11 PHARMACY, INC., ) CASE NO. 12-19882-HJB ) Debtor. ) ____________________________________) FINAL ORDER (I) PROHIBITING UTILITY COMPANIES FROM DISCONTINUING, ALTERING, OR REFUSING SERVICE, (II) DEEMING UTILITY COMPANIES TO HAVE ADEQUATE ASSURANCE OF PAYMENT FOR POST-PETITION SERVICES, AND (III) ESTABLISHING PROCEDURES FOR RESOLVING REQUESTS FOR ADDITIONAL ASSURANCE Upon the motion (the “Motion”)1 of the above-captioned debtor and debtor-in-possession (the “Company”), for entry an interim order and a final order (this “Final Order”) (i) prohibiting the Utility Companies from discontinuing, altering, or refusing service to the Company; (ii) determining that the Utility Companies have been provided with adequate assurance of payment for post-petition services on the basis of the establishment of a Utility Deposit Account; and (iii) approving the Company’s proposed procedures for Utility Companies to request additional assurance of payment; and it appearing that this Court has jurisdiction to consider the Motion pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that venue of these chapter 11 cases and the Motion in this District is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and it appearing that this matter is a core proceeding pursuant to 28 U.S.C. § 157(b); and this Court having determined that the relief requested in the Motion is in the best interests of the Company, its estate, its creditors and other parties-in-interest; and it appearing that proper and adequate notice
Capitalized terms not otherwise defined herein shall retain the meanings ascribed to them in the Motion.
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of the Motion has been given and that no other or further notice is necessary; and after due deliberation thereon; and good and sufficient cause appearing therefor; IT HEREBY IS ORDERED THAT: 1. 2. The Motion is GRANTED on a final basis. The Company is deemed to have furnished the Utility Companies with adequate
assurance of payment for postpetition services by having deposited $55,003.36 in the Utility Deposit Account. Absent further order of this Court, the Company will maintain the Utility Deposit Account with a minimum balance of $55,003.36 until a chapter 11 plan is confirmed and becomes effective or the Company’s case is converted or dismissed; provided, that with respect to any Added Utilities Company, such account shall be increased, if necessary, so that the total amount in the Utility Deposit Account will be equal to the estimated cost of two months of all known Utility Companies’ services utilized by the Company, based on a yearly average. 3. Except as set forth in this Order, all Utility Companies are prohibited from: (i)
discontinuing, altering, or refusing service to the Company on account of the commencement of this bankruptcy case or any unpaid prepetition charges; and from (ii) discriminating against the Company, or requiring the payment of a security deposit or receipt of any other security from the Company for continued service, as a result of this case or any outstanding pre-Petition Date invoices. 4. The procedures for determining requests for additional assurance of payment as
described in the Motion are approved as follows: (i) Except as set forth in this Order, Utility Companies may not (a) alter, refuse, or discontinue service to, or discriminate against, the Company on account of the commencement of its bankruptcy case or any unpaid prepetition charges, or (b) request payment of a deposit or receipt of other security in connection with any unpaid prepetition charges.
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The Company will serve a copy of this Final Order via first-class mail, within five (5) business days after the date that such Final Order is entered, upon each of the Utility Companies identified in Exhibit A. If the Company learns that a Utility Company was omitted from Exhibit A, the Company shall file a supplement to Exhibit A, adding the name of such Utility Company (the “Added Utility Company”), and shall promptly serve such Added Utility Company with a copy of the Motion, and this Final Order, as applicable (each such service, a “Supplemental Service”). Any Utility Company may request additional adequate assurance of payment (an “Additional Assurance Request”) by submitting a written request to proposed counsel to the Company, Murtha Cullina LLP. Any Additional Assurance Request must (a) be in writing; (b) set forth the location at which utility services are provided; (c) include a summary of the Company’s payment history relevant to the affected account(s), including any security deposits or other prepayments or assurances previously provided by the Company; (d) describe in sufficient detail the reason(s) why the treatment afforded pursuant to the procedures set forth in the Motion does not constitute satisfactory adequate assurance of payment; and (e) include a proposal for what would constitute adequate assurance of payment from the Company, along with an explanation of why such proposal is considered reasonable. If a Utility Company makes an Additional Assurance Request that the Company believes is reasonable, the Company shall be authorized to comply, in its sole discretion, with such request without further order of this Court. If the Company believes that a Utility Company’s Additional Assurance Request is unreasonable, the Company will attempt to resolve the matter consensually with the Utility Company and if a resolution cannot be reached, will schedule the matter to be heard at the next regularly scheduled omnibus hearing date to determine whether additional assurance of payment to such Utility Company is necessary (a “Determination Hearing”). If the Utility Company reaches an agreement with the Company before the Determination Hearing, such agreement shall be deemed to constitute adequate assurance of payment that is satisfactory to the Utility Company.
(viii) Pending resolution of a Utility Company’s Additional Assurance Request, such party will be prohibited from altering, refusing, or discontinuing service to the Company or otherwise discriminating against the Company.
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Unless a Utility Company makes an Adequate Assurance Request, such Utility Company will be deemed to have received, by virtue of the Utility Deposit Account, adequate assurance of payment in accordance with section 366(c)(l)(A)(vi) of the Bankruptcy Code. Based on the establishment of the Utility Deposit Account, a Utility Company will be deemed to have adequate assurance of payment unless and until a future order of this Court is entered requiring further assurance of payment.
The Company is authorized, in its sole discretion, to amend the list of Utility
Companies attached as Exhibit A to the Motion to add or delete any Utility Company. 6. Nothing in the Motion, Interim Order or on Exhibit A constitutes a finding that
any entity is or is not a utility company for purposes of this Order or under section 366 of the Bankruptcy Code. 7. Any request for adequate assurance received by the Company prior to entry of
this Final Order shall be deemed to be an Additional Assurance Request. 8. The Company is authorized and empowered to take all actions necessary to
implement the relief granted in this Final Order. 9. Notwithstanding any applicability of any of the Federal Rules of Bankruptcy
Procedure and Local Bankruptcy Rule 6012-1, the terms and conditions of this Interim Order shall be immediately effective and enforceable upon its entry. 10. This Court shall retain jurisdiction to hear and determine all matters arising from
or related to the implementation and/or enforcement of this Final Order.
Dated: ___________, 201____ Boston, MA
__________________________________________ UNITED STATES BANKRUPTCY JUDGE
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