Opinion
Case No. 04-033192 (Jointly Administered).
June 22, 2004.
Upon the motion (the "Motion") of the debtors and debtors in possession in the above-captioned Chapter 11 Cases (collectively, the "Debtors") seeking entry of an order under 11 U.S.C. §§ 105(a) and 366 (a) prohibiting utilities from discontinuing, altering or refusing service and (b) establishing procedures for determining adequate assurance of payment; and it appearing that the relief requested is essential to the continued operation of the Debtors' businesses and is in the best interest of the Debtors' estates and creditors; and it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that this Motion is a core proceeding pursuant to 28 U.S.C. §§ 1408 and 1409; and adequate notice of the Motion having been given; and it appearing that no other notice need be given; and after due deliberation and sufficient cause appearing therefor, it is hereby:
Capitalized terms not defined herein shall have the same meaning ascribed in the Motion.
ORDERED that the Motion is granted; and it is further
ORDERED that:
a. absent any further order of this Court and except as otherwise provided herein, the Utility Providers are forbidden to discontinue, alter or refuse service on account of any unpaid prepetition charges, or request payment of a deposit or receipt of other security in connection with any unpaid prepetition charges;
b. that the Debtors will serve the Order on the Utility Providers via U.S. Mail, within five (5) business days of the date this Order is entered by the Court (the "Date of Entry") provided that for any Utility Provider that may have been omitted from Exhibit A attached to the Motion, the Debtors shall promptly provide notice of the Order upon learning of such Utility Provider;
c. that a Utility Provider may request additional assurance of payment in the form of deposits or other security within thirty (30) days of the Date of Entry (an "Additional Assurance Request") and, if the Debtors believe the Additional Assurance Request is unreasonable, the Debtors will promptly schedule a hearing to determine if additional assurance is necessary (the "Determination Hearing");
d. that any Additional Assurance Request must (i) be made in writing and (ii) must include a summary of the Debtors' payment history relevant to the affected account(s);
e. that pending resolution of any such Determination Hearing, any Utility Provider making an Additional Assurance Request shall be prohibited from discontinuing, altering or refusing service to the Debtors on account of unpaid charges for prepetition services;
f. that a Utility Provider shall be deemed to have adequate assurance of payment until a future order of this Court is entered in connection with a Determination Hearing; and
g. that if a Utility Provider makes a timely request for additional assurance under section 366 of the Bankruptcy Code that the Debtors believe is reasonable, then the Debtors shall be entitled to comply with such request without further order of the Court; and it is further
ORDERED that notwithstanding anything to the contrary contained herein, any payment to be made hereunder shall be subject to any requirements imposed on the Debtors under any approved debtor in possession financing facility or any budget in connection therewith or any order with respect to the use of the prepetition lenders' cash collateral; and it is further
ORDERED that nothing in this Order or the Motion shall be construed as an assumption of any utility service agreements; and it is further
ORDERED that the Debtors retain their right to assume or reject any utility service agreements under section 365 of the Bankruptcy Code at a later date; and it is further
ORDERED that the Debtors are authorized and empowered to take all actions necessary to implement the relief in this Order; and it is further
ORDERED that this Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order.