IN the UNITED STATES BANKRUPTCY COURT for the MIDDLE DISTRICT of TENNESSEE NASHVILLE DIVISION in RE: ) ) Case No

IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION IN RE: ) ) Case No. 3:20-bk-03138 OLD TIME POTTERY, LLC, ) Chapter 11 ) Judge Charles M. Walker Debtor. )

IN RE: ) ) Case No. 3:20-bk-03139 OTP HOLDINGS, LLC, ) Chapter 11 ) Judge Charles M. Walker Debtor. )

EXPEDITED MOTION, PURSUANT TO SECTION 366 OF THE BANKRUPTY CODE, FOR ENTRY OF EXPEDITED ORDER: (a) PROHIBITING UTILITIES FROM ALTERING, REFUSING OR DISCONTINUING SERVICES TO, OR DISCRIMINATING AGAINST, THE DEBTOR ON ACCOUNT OF PREPETITION INVOICES; (B) DETERMINING THAT THE UTILITIES ARE ADEQUATELY ASSURED FOR FUTURE PAYMENT; (C) ESTABLISHING PROCEDURES FOR DETERMINING REQUESTS FOR ADDITIONAL ASSURANCE; AND, (D) PERMITTING UTILITY COMPANIES TO OPT OUT OF THE ESTABLISHED ADEQUATE ASSURANCE PROCEDURES

Old Time Pottery, LLC and its affiliate Debtor, OTP Holdings, LLC (collectively “Old

Time Pottery”, the “Company”, or the “Debtors”), as debtors and debtors-in-possession, by and

through their undersigned counsel, respectfully request the Court to enter an order on an

expedited basis substantially in the form attached hereto as Exhibit A (the “Order”) (i)

determining adequacy of assurance of payment for future service from utilities; (ii) establishing

procedures for determining requests for additional or other adequate assurance; (iii) permitting

utility companies to opt out of the procedures for determining adequate assurance; (iv)

scheduling a hearing on any Procedures Objections (defined below); and (v) deeming the order

to be a final order, granting the requested relief on a permanent basis, absent a timely objection

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filed pursuant to the procedures herein (the “Motion”). In support of their request for expedited

relief, the Debtors rely on their Expedited Motion to Set Emergency Hearing on First Day

Motions, filed concurrently with this motion. In further support of its Motion, the Debtors rely

on the separately-filed Declaration of Jonathan Tyburski, Chief Financial Officer of the Debtor,

in Support of Chapter 11 Petitions and Various First Day Applications and Motions (the

“Tyburski Declaration”)1, and respectfully represent:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this Motion pursuant to

28 U.S.C. §§ 157 and 1334. Venue is proper in this Court pursuant to 28 U.S.C. § 1408. This is

a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B) and (M). The Court possesses the

requisite authority to grant the relief requested herein pursuant to 11 U.S.C. §§ 105(a), 366(a)

and 507. 2

II. BACKGROUND

2. Old Time Pottery is a retailer headquartered in Murfreesboro, Tennessee focused

on selling home décor and seasonal items. As of the Petition Date, the Company operates 43

retail locations located in 11 states. Old Time Pottery was performing well prior to the shutdown

of American retailers caused by the COVID-19 pandemic; however, the COVID-19 related

shutdown caused Company sales to decline precipitously beginning in mid-March. As a result,

the Company furloughed most of its employees and took immediate steps to conserve cash. The

Company’s business has improved as stay-at-home restrictions ease and more home décor

shoppers venture out, but the Company believes that reorganizing under Chapter 11 of the

1 All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Tyburski Declaration. 2 Title 11 of the United States Code will be referred to hereinafter as “the Bankruptcy Code.” 2

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Bankruptcy Code will be in the best long-term interest of all constituencies and allow Old Time

Pottery to emerge stronger. The Debtors’ Chapter 11 voluntary petitions were filed on June 28,

2020 (the “Petition Date”).

III. RELIEF REQUESTED

3. By this Motion, the Debtors seek an order: (i) determining adequacy of assurance of payment for future service from utilities; (ii) establishing procedures for determining requests for additional or other adequate assurance; (iii) permitting utility companies to opt out of the procedures for determining adequate assurance; (iv) scheduling a hearing on the requested relief; and (v) deeming the order a final order, granting the requested relief on a permanent basis, absent a timely objection filed pursuant to the procedures set forth herein.

4. The Debtors currently use electric, natural gas, water, sewer, internet, electronic data services, cable, phone, cellular phones, trash/garbage removal, fire alarm monitoring, and other similar services (“Utility Services”) at the Debtors’ businesses located across 11 states.

5. All of the providers of Utility Services to Debtors are referred to collectively

herein as the “Utility Companies”. A list of known Utility Companies and currently identifiable

accounts is attached hereto and will be attached to the Debtors’ proposed order as Exhibit 1 (the

“Utility List”).

a. The Debtors believe the Utility List is a complete list of all Utility

Companies and currently open accounts. For each Utility Company, the Utility List

identifies: (i) the name and address of and services provided by the Utility Company; (ii)

the existing security deposit, if any; and (iii) the average monthly service costs.

b. A copy of this Motion and the Order, if entered by the Court, and the

Utility List will be provided to all Utility Companies.

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c. The inclusion of any entity on, or any omission of any entity from, the

Utility List is not an admission by the Debtors that such entity is or is not a utility within

the meaning of section 366 of the Bankruptcy Code, and the Debtors reserve their rights

with respect thereto.

d. In addition, the Debtors are requesting that this Motion apply to all of

Debtors’ Utility Companies, whether or not any given Utility Company is included on the

Utility List. The Debtors have proposed a procedure for supplementing the Utility List.

e. Additionally, it is possible that certain entities may mistakenly be included

on the Utility List and, therefore, the Debtors reserve the right to assert that any such

entities are not Utility Companies for the purposes of this Motion or section 366.

6. Uninterrupted utility service is essential to the Debtors’ ongoing operations and,

therefore, to the success of these bankruptcy cases. Should any Utility Company refuse or

discontinue service, even for a brief period, it may cause the Debtors to be in default of their own

obligations and create tremendous difficulty for Debtors’ ongoing business operations. The

temporary or permanent discontinuation of Utility services could irreparably harm the Debtors’

businesses and jeopardize these bankruptcy cases.

7. The Debtors timely paid all pre-petition bills to the Utility Companies, and the

only unpaid utility bills will be for the last billing cycle before the Petition Date. The Debtors

intend to pay their postpetition obligations to the Utility Companies timely. Subject to Court

approval, the Debtors will make these payments from cash collateral.3

8. Pursuant to section 366(c)(2) of the Bankruptcy Code, a utility may alter, refuse

or discontinue a chapter 11 debtor’s utility service if the utility does not receive from the debtor

3 Concurrently with the filing of this Motion, the Debtors have filed a motion for authority to use cash collateral. 4

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or the trustee adequate “assurance of payment” within 30 days of the commencement of the

debtor’s chapter 11 case.4

PROPOSED ADEQUATE PROTECTION

9. Section 366(c)(1)(A) defines the phrase “assurance of payment” to mean, among

other things, a cash deposit. Accordingly, the Debtor proposes to provide a deposit to any

requesting Utility Company in an amount equal to the cost of one-fourth of one month’s average

service from that Utility Provider (the “Adequate Assurance Deposit”), provided that: (a) such

request is made in writing no later than July 28, 2020, which is 30 days after the Petition Date

(the “Request Deadline”); (b) such requesting Utility Company does not already hold a deposit,

net of pre-petition debt, equal to or greater than the Adequate Assurance Deposit (in which case,

the Debtors propose to provide the requesting Utility Company with an additional $500 cash

deposit); and (c) such requesting Utility Company is not currently paid in advance for its

services.

10. The proposed Adequate Assurance Deposits for each Utility Company are

disclosed on the Utility List, attached to the proposed Order. The Debtors request that the Utility

4 There is an apparent discrepancy between subsections (b) and (c) of section 366 because these two subsections set forth different time periods during which a utility is prohibited from altering, refusing or discontinuing utility service. Specifically, section 366(b) allows a utility to alter, refuse or discontinue service “if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment”, while section 366(c)(2) allows a utility “in a case filed under chapter 11” to alter, refuse or discontinue service to a chapter 11 debtor “if during the 30-day period beginning on the date of the filing of the petition, the utility does not receive from the debtor or the trustee adequate assurance of payment for utility service ...” (emphases added). Under the canon of statutory construction that specific language controls over general, the language of section 366(c)(2) controls here because the Debtors are chapter 11 debtors. See 3 Collier ON BANKRUPTCY ¶ 366.03[2] (Alan N. Resnick & Henry J. Sommers eds., 15th ed. rev. 2006) (“It is unclear how the 30-day period [in section 366(c)(2)] meshes with the normal 20-day period in section 366(b). The better view is that, because section 366(c) is more specifically applicable to chapter 11 cases, the 30- day period, rather than 20-day period in section 366(b), should apply.”) 5

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Companies be prohibited from requiring any deposits for Temporary Accounts except through an

Additional Assurance Request, as defined below.

11. A Utility Company’s request for, and acceptance of, an Adequate Assurance

Deposit shall be deemed an acknowledgment and admission from the Utility Company that the

Adequate Assurance Deposit is the form of adequate assurance that is satisfactory to it, within

the meaning of section 366. Likewise, any Utility Company that does not request an Adequate

Assurance Deposit by the Request Deadline and does not file an objection to opt out of the

Adequate Assurance Procedures (as described below), shall be deemed to have adequate assurance that is satisfactory to it, within the meaning of section 366.

12. The Debtors further request that any Adequate Assurance Deposit requested by, and provided to, any Utility Company pursuant to the procedures described herein be returned to the Debtors upon confirmation of a Chapter 11 plan or at the conclusion of these Chapter 11

Cases, if not returned or applied sooner.

13. The Debtors respectfully submit that the availability of the Adequate Assurance

Deposit (if timely requested), in conjunction with the Debtors’ ability to pay for future utility

services in the ordinary course of business (collectively, the “Proposed Adequate Assurance”),

constitutes sufficient adequate assurance of future payment to the Utility Companies to satisfy

the requirements of section 366. Nonetheless, if any Utility Company believes additional or other assurance is required, it may request such assurance pursuant to the procedures described below.

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ADDITIONAL ADEQUATE ASSURANCE PROCEDURES

14. To address the right of any Utility Company under section 366(c)(2) to seek

adequate assurance satisfactory to it, the Debtors propose that the following procedures (the

“Additional Adequate Assurance Procedures”) be adopted:

(a) Any Utility Company desiring assurance of future payment of utility services in excess of the Proposed Adequate Assurance must serve a request (an “Additional Assurance Request”) so that it is received by the Debtor’s counsel by the Request Deadline, that being July 28, 2020, at the following address:

Bass, Berry & Sims PLC Attn: Paul G. Jennings 150 Third Avenue South, Suite 2800 Nashville, TN 37201 [email protected] Facsimile (615) 742-6293

(b) Any Additional Assurance Request must (i) be made in writing; (ii) set forth the location(s) for which utility services are provided and the relevant account number(s); (iii) describe any deposits, prepayments or other security currently held by the requesting Utility Company; and (iv) explain why the requesting Utility Company believes the proposed Adequate Assurance Deposit is not adequate assurance of future payment.

(c) Upon receipt of an Additional Assurance Request at the address set forth above, the Debtors shall have the greater of (i) 14 days from the receipt of such Additional Assurance Request or (ii) 30 days from the Petition Date (collectively, the “Resolution Period”) to negotiate with the requesting Utility Company to resolve its Additional Assurance Request. The Resolution Period may be extended by agreement of the Debtors and the applicable requesting Utility Company.

(d) The Debtors, in their discretion, may resolve any Additional Assurance Request by mutual agreement with the requesting Utility Company and without further order of the Court, and may, in connection with any such resolution, in its discretion, provide the requesting Utility Company with additional adequate assurance of future payment in a form satisfactory to the Utility Company, including, but not limited to, cash deposits, prepayments and/or other forms of security, if the Debtors believe such additional assurance is reasonable.

(e) If the Debtors determine that an Additional Assurance Request is not reasonable, and it is not able to resolve such request during the Resolution Period, the Debtors, during or immediately after the Resolution Period, will request a hearing 7

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before this Court to determine the adequacy of assurance of payment made to the requesting Utility Company (the “Determination Hearing”), pursuant to Section 366(c)(3)(A).

(f) Pending the resolution of the Additional Assurance Request at a Determination Hearing, the Utility Company making such request shall be restrained from discontinuing, altering or refusing service to the Debtors on account of unpaid charges for prepetition services or on account of any objections to the Proposed Adequate Assurance.

(g) Other than through the Opt-Out Procedures (as such term is defined below), any Utility Company that does not comply with the Additional Adequate Assurance Procedures is deemed to find the Proposed Adequate Assurance satisfactory to it and is prohibited from discontinuing, altering or refusing service on account of any unpaid prepetition charges, or requiring additional assurance of payment other than the Proposed Adequate Assurance. The Order shall be deemed a Final Order with respect to all Utility Companies that do not timely file and serve a Procedures Objection (as defined below).

THE OPT-OUT PROCEDURES

15. As noted above, section 366(c) requires the Debtors to provide Utility Companies,

within 30 days of the Petition Date, with “adequate assurance of payment for utility service that

is satisfactory to the utility.” 11 U.S.C. § 366(c)(2). Thereafter, any such adequate assurance provided by the debtor may be modified by the Court after notice and a hearing under section

366(c)(3)(A). Under the Additional Adequate Assurance Procedures, however, the Debtors may seek a determination of appropriate adequate assurance at a Determination Hearing held after the first 30 days of these cases, without providing assurances deemed “satisfactory” to the Utility

Company. Although the Additional Adequate Assurance Procedures are reasonable, certain

Utility Companies might assert that the procedures as implemented are not strictly in compliance

with section 366 if an adequate assurance dispute is not resolved within the 30 days following

the Petition Date. If, as a result, any Utility Company wishes to opt out of the Additional

Adequate Assurance Procedures, the Debtor respectfully submits that the Court should schedule

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a hearing and issue a ruling on the amount of adequate assurance to be provided such Utility

Company within 30 days of the Petition Date.

16. In particular, to avoid any argument that the Debtor has not fully complied with section 366, the Debtors propose the following procedures (the “Opt-Out Procedures”):

(a) A Utility Company that desires to opt out of the Additional Adequate Assurance Procedures must file an objection (a “Procedures Objection”) with the Court within 15 days of entry of the Order.

(b) Any Procedures Objection must (i) be made in writing; (ii) set forth the location(s) for which utility services are provided and the relevant account number(s); (iii) describe any deposits, prepayments or other security currently held by the objecting Utility Company; (iv) explain why the objecting Utility Company believes the Proposed Adequate Assurance is not adequate assurance of future payment; and (v) identify and explain the basis for the Utility Company’s proposed adequate assurance under section 366(c)(2).

(c) The Debtors, in their discretion, may resolve any Procedures Objection by mutual agreement with the objecting Utility Company and without further order of the Court, and may, in connection with any such resolution, in its discretion, provide the objecting Utility Company with additional adequate assurance of future payment in a form satisfactory to the Utility Company, including, but not limited to, cash deposits, prepayments and/or other forms of security, if the Debtors believe such additional assurance is reasonable.

(d) If the Debtors determine that a Procedures Objection is not reasonable and it is not able to reach a prompt alternative resolution with the objecting Utility Company, the Procedures Objection will be heard at the Hearing.

(e) Any Utility Company that does not timely file a Procedures Objection is deemed to consent to, and shall be bound by, the Additional Adequate Assurance Procedures.

HEARING DATE ON PROCEDURES OBJECTION

17. To resolve Procedures Objections within 30 days of the Petition Date, the Debtors

respectfully request that the Court schedule a Hearing on any Procedures Objections on a date

that is approximately 25 days after the Petition Date.

18. The Debtors request that the Order become a Final Order as to any Utility

Company that does not timely file a Procedures Objection. 9

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SUBSEQUENT MODIFICATION OF UTILITY LIST

19. It is possible that, despite the Debtors’ best efforts, certain Utility Companies may

not be timely identified or included on the Utility List. To the extent that the Debtors identify

additional Utility Companies, the Debtors will amend the Utility List, and will serve copies of

the Order (and any subsequent order that may be entered regarding Procedures Objection) on

such newly-identified Utility Companies. The Debtors respectfully request that the Order be

binding on all Utility Companies, subject to its right to the Proposed Adequate Assurance and to

request Additional Adequate Assurance, regardless of when any given Utility Company is added

to the Utility List.

IV. BASIS FOR RELIEF

20. The statutory predicates for the relief requested herein are sections 105 and 366 of

the Bankruptcy Code.

21. Section 366 of the Bankruptcy Code governs the rights and obligations of the

Utility Companies as providers of utility services to the Debtors. The policy underlying section

366 is to protect debtors from utility service cutoffs upon the filing of a bankruptcy case, while at the same time providing utility companies with adequate “assurance of payment” for postpetition utility service. See H.R. Rep. 95-595, at 350 (1978), reprinted in 1978 U.S.C.C.A.N. 5963,

6306. While section 366(c) clarifies what does and does not constitute “assurance of payment”

and what can be considered in determining whether such assurance is adequate, Congress in enacting that section, did not divest the Court of its power to determine what amount, if any is necessary to provide adequate assurance of payment to a utility company. Indeed, section 366(c) not only fails to establish a minimum amount of adequate “assurance of payment”, but explicitly empowers the bankruptcy court to determine the appropriate level of adequate assurance required

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in each case. See 11 U.S.C. § 366(c)(3)(A)(“On request of a party in interest and after notice and

a hearing, the court may order modification of the amount of assurance of payment .…”).

22. Thus, there is nothing within section 366 that prevents a court from ruling that, on

the facts of the case before it, the amount required to adequately assure future payment to a utility company is nominal, or even zero. Prior to the enactment of section 366(c), courts enjoyed precisely the same discretion to make such rulings pursuant to section 366(b), and frequently did so. See Virginia Elec. & Power Co. v. Caldor, Inc., 117 F.3d 646, 650 (2nd Cir.

1997) (bankruptcy court’s authority to “modify” the level of the “deposit or other security” provided for in section 366(b) includes the power to require no deposit or other security where none is necessary to provide a utility company with “adequate assurance of payment”).

23. Moreover, Congress has not changed the requirement that the assurance of payment only be “adequate”. Courts construing section 366(b) have long recognized that adequate assurance of payment does not constitute an absolute guarantee of the debtor’s ability to pay. It is generally recognized that absent a pre-petition default, section 366(b) does not require deposits to be made. See, e.g., In re Caldor, Inc., 199 B.R. 1, 3 (S.D.N.Y. 1996)(section

366 does not require an absolute guarantee of payment) aff’d sub nom. Virginia Elec. & Power

Co. v. Caldor, Inc., 117 F.3d 646 (2nd Cir. 1997); In re Adelphia Bus. Solutions, Inc., 280 B.R.

63, 80 (Bankr. S.D.N.Y. 2002) (same); In re Penn Jersey Corp., 72 B.R. 981, 982 (Bankr. E.D.

Pa. 1987) (section 366(b) contemplates only assurance of payment as is sufficient to protect utility company’s interests given the facts of the debtor’s financial circumstances). Therefore, despite its language allowing a utility to take adverse action against the debtor should the debtor fail to provide adequate assurance of payment “satisfactory to the utility”, section 366 does not require that the assurance provided be “satisfactory” once a party seeks to have the court

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determine the appropriate amount of adequate assurances. In that instance, section 366, by its

plain language, requires only that the assurances be adequate.

24. The Debtors respectfully submit that, given the foregoing, entry of the proposed

Order is consistent with, and fully satisfies, the requirements of section 366. Far from offering

the Utility Companies nominal (or even no) additional assurance of payment, the Debtors propose to provide the Utility Companies with (a) cash deposits and (b) procedures pursuant to which the Utility Companies can seek greater or different security. When complemented by the

Debtors’ ability to pay through use of cash collateral, such assurance of payment significantly alleviates – if not eliminates – any genuine concern of non-payment on the part of the Utility

Companies, and is thus clearly “adequate”.

25. For these reasons, the Debtors request that the Court enter an Order providing that any Utility Company served with a copy of this Motion and the Order is subject to the scope of the Order from the date of service.

26. Once the Order is entered, the Debtors will promptly serve a copy of this Motion and the Order on each of the identified Utility Companies providing services to the Debtors.

NOTICE

27. No trustee, examiner or creditors’ committee has been appointed in these Chapter

11 Cases. Notice of this Motion has, as well as the Motion and the Order setting hearing on First

Day Motions, and the Tyburski Declaration, by the best means available based on the Debtors’ information (including: hand-delivery, facsimile, electronic mail; overnight delivery; or regular mail but only if no faster means is available) upon: (a) the Office of the United States Trustee for the Middle District of Tennessee; (b) the Internal Revenue Service; (c) the Tennessee

Department of Revenue; (d) counsel for the Debtors’ Prepetition Secured Lender (PNC); (e) counsel for the Debtors’ proposed DIP Financing Lender (Second Avenue); (f) counsel for Store 12

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Debtors); (h) Shipper Claimants listed on the Exhibit to the Shipper Claims Motion; (i) local

government authorities listed on the Schedule to the Store Closing Motion; and (j) the Attorneys

General for the following states: Tennessee, Alabama, Florida, Georgia, Illinois, Indiana,

Missouri, North Carolina, Ohio, Oklahoma, South Carolina, and Delaware.; and, (k) the Utility

Providers listed on Exhibit 1. The Debtors submit that, in light of the nature of the relief

requested, no other or further notice need be given.

WHEREFORE, the Debtors respectfully request that the Court: (i) enter the Order

substantially in the form of the Order attached hereto; and (ii) grant such other and further relief

as is may be necessary and appropriate.

Respectfully submitted,

/s/ Glenn B. Rose Paul G. Jennings, TN Bar No. 14367 Glenn B. Rose, TN Bar No. 10598 Gene L. Humphreys, TN Bar No. 21807 Michael C. Tackeff, TN Bar No. 36953 Bass, Berry & Sims PLC 150 Third Avenue South, Suite 2800 Nashville, TN 37201 Telephone (615) 742-6200 Facsimile (615) 742-6293 [email protected] [email protected] [email protected] [email protected]

Proposed Counsel for Debtors

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EXHIBIT A

Proposed Order

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION IN RE: ) ) Case No. 3:20-bk-03138 OLD TIME POTTERY, LLC, ) Chapter 11 ) Judge Charles M. Walker Debtor. )

IN RE: ) ) Case No. 3:20-bk-03139 OTP HOLDINGS, LLC, ) Chapter 11 ) Judge Charles M. Walker Debtor. )

EXPEDITED ORDER PURSUANT TO SECTION 366 OF THE BANKRUPTCY CODE: (A) PROHIBITING UTILITIES FROM ALTERING, REFUSING OR DISCONTINUING SERVICES TO, OR DISCRIMINATING AGAINST, THE DEBTOR ON ACCOUNT OF PREPETITION INVOICES; (B) DETERMINING THAT THE UTILITIES ARE ADEQUATELY ASSURED FOR FUTURE PAYMENT; (C) ESTABLISHING PROCEDURES FOR DETERMINING REQUESTS FOR ADDITIONAL ASSURANCE; AND, (D) PERMITTING UTILITY COMPANIES TO OPT-OUT OF THE ESTABLISHED ADEQUATE ASSURANCE PROCEDURES

Upon the expedited Motion1 of the Debtors for entry of an order on an expedited basis (i)

determining adequacy of assurance of payment for future service from utilities; (ii) establishing

procedures for determining requests for additional or other adequate assurance; (iii) permitting

utility companies to opt out of the procedures for determining adequate assurance; (iv)

scheduling a hearing on the any Procedures Objection; and (v) deeming the order to be a final order, granting the requested relief on a permanent basis, absent a timely objection filed pursuant

1 Unless otherwise defined, capitalized terms shall have the meanings ascribed to them in the Motion.

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to the procedures requested therein; this Court having determined that the relief requested is essential to the Debtors’ continued operation of its business and in the best interest of the

Debtors, their estates, creditors and other parties in interest; and it also appearing to the Court

that the relief requested is of critical importance to the Debtors’ ability to operate as debtors-in-

possession;

IT IS HEREBY ORDERED that:

1. The Motion is GRANTED as set forth herein.

2. Subject to the procedures described below, no Utility Company may (a) alter,

refuse, terminate, or discontinue utility services to, and/or discriminate against, the Debtors on

the basis of the commencement of these Chapter 11 Cases or on account of outstanding

prepetition invoices or (b) require additional assurance of payment, other than the Proposed

Adequate Assurance, as a condition to the Utility Company providing the Debtors continued

utility services pending this order becoming a Final Order as set forth in paragraph 12 below.

3. A Utility Company shall be entitled to an Adequate Assurance Deposit in an

amount equal to the Debtors’ calculation of the cost of one-fourth of an average month’s worth

of utility service as shown on the attached Utility Service List, Exhibit 1, provided that: (a)

such request is made in writing no later than July 28, 2020 (the “Request Deadline”); (b) such

requesting Utility Company does not already hold a deposit, net of prepetition debt, equal to or

greater than the Adequate Assurance Deposit (in which case an additional $500 cash deposit

shall be deemed to be the Adequate Assurance Deposit for purposes of this Motion); and (c) such

requesting Utility Company is not currently paid in advance for its services.

4. A Utility Company’s request for, and acceptance of, an Adequate Assurance

Deposit shall be deemed an acknowledgment and admission from the Utility Company that the

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Proposed Adequate Assurance is the form of adequate assurance that is satisfactory to it, within

the meaning of Section 366. Likewise, any Utility Company that does not request an Adequate

Assurance Deposit by the Request Deadline and does not file an objection to opt out of the

Adequate Assurance Procedures (as described below), shall be deemed to have adequate assurance that is satisfactory to it, within the meaning of Section 366. Any Adequate Assurance

Deposit requested by, and provided to, any Utility Company pursuant to the procedures described herein shall be returned to the Debtor at the conclusion of these Chapter 11 Cases, if not returned or applied earlier.

5. The following Additional Adequate Assurance Procedures are approved in all respects:

Bass, Berry & Sims PLC Attn: Paul G. Jennings 150 Third Avenue South, Suite 2800 Nashville, TN 37201 [email protected] Facsimile (615) 742-6293

(c) Upon receipt of an Additional Assurance Request at the address set forth above, the Debtor shall have the greater of (i) 14 days from the receipt of such Additional Assurance Request or (ii) 30 days from the Petition Date (collectively, the “Resolution Period”) to negotiate with the requesting Utility Company to resolve its Additional Assurance Request. The Resolution Period may be extended by agreement of the Debtor and the applicable requesting Utility Company.

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(d) The Debtors, in their discretion, may resolve any Additional Assurance Request by mutual agreement with the requesting Utility Company and without further order of the Court, and may, in connection with any such resolution, in their discretion, provide the requesting Utility Company with additional adequate assurance of future payment in a form satisfactory to the Utility Company, including, but not limited to, cash deposits, prepayments and/or other forms of security, if the Debtors believe such additional assurance is reasonable.

(e) If the Debtors determine that an Additional Assurance Request is not reasonable, and they are not able to resolve such request during the Resolution Period, the Debtors, during or immediately after the Resolution Period, will request a hearing before this Court to determine the adequacy of assurance of payment made to the requesting Utility Company (the “Determination Hearing”), pursuant to Section 366(c)(3)(A).

6. The following Opt-Out Procedures are approved in all respects:

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provide the objecting Utility Company with additional adequate assurance of future payment in a form satisfactory to the Utility Company, including, but not limited to, cash deposits, prepayments and/or other forms of security, if the Debtors believe such additional assurance is reasonable.

(d) If the Debtors determine that a Procedures Objection is not reasonable and they are not able to reach a prompt alternative resolution with the objecting Utility Company, the Procedures Objection will be heard at the Final Hearing.

(e) Any Utility Company that does not timely file a Procedures Objection is deemed to consent to, and shall be bound by, the Adequate Assurance Procedures.

7. A Hearing to resolve any Procedures Objections shall be conducted on

______, 2020, at 9:00 a.m., in Courtroom ____, Customs House, 701 Broadway,

Nashville, Tennessee, subject to any General Administrative Orders of the Court setting hearings telephonically or by other means, other than in-person, in-courtroom hearings. If no Procedures Objection is timely filed, there shall be no Hearing.

8. A Utility Company shall be deemed to have adequate assurance of payment under

Section 366 of the Bankruptcy Code unless and until: (a) the Debtors, in their discretion, agrees to (i) an Additional Adequate Assurance Request or (ii) this Court enters an order at the Hearing or any Determination Hearing requiring that additional assurance of payment be provided.

9. The Debtors are authorized, in their sole discretion, to amend the Utility Service

List to add or delete any Utility Company, and this Order shall apply to and be binding on any

such Utility Company that is subsequently added to the Utility Service List; except that, such

subsequently added Utility Company shall have 20 days from service or 30 days from the

Petition Date, whichever is longer, to make a request for Adequate Assurance Deposit or

Additional Assurance Request.

10. Nothing herein constitutes a finding that any entity is or is not a Utility Company

hereunder or under Section 366 of the Bankruptcy Code, whether or not such entity is listed on

the Utility Service List.

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11. The Debtors shall serve a copy of the Motion, this Order and the Utility Service

List on each Utility Company listed on the Utility Service List by the later of two business days

after the date this Order is entered or in conjunction with service of the Notice of Meeting of

Creditors, and shall also serve this Order on each Utility Company subsequently added by the

Debtors to the Utility Service List.

12. The terms and conditions of this Order shall be effective and enforceable

immediately upon its entry. This Order shall be deemed to be a Final Order with respect to any

Utility Company that does not file a timely Procedures Objection as described herein.

13. This Court retains jurisdiction with respect to all matters arising from or related to

the implementation of this Order.

14. Notwithstanding anything to the contrary contained herein, any payment made or

to be made under this Order, any authorization contained in this Order, or any claim for which

payment is authorized hereunder, shall be subject to any orders of this Court approving any

debtor in possession financing for, or any use of cash collateral by, the Debtors, and any

documents providing for such debtor in possession financing and the Budget governing such

debtor in possession financing and use of cash collateral.

This order was signed and entered electronically as indicated at the top of the first page.

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APPROVED FOR ENTRY:

Paul G. Jennings, TN Bar No. 14367 Glenn B. Rose, TN Bar No. 10598 Gene L. Humphreys, TN Bar No. 21807 Michael C. Tackeff, TN Bar No. 36953 Bass, Berry & Sims PLC 150 Third Avenue South, Suite 2800 Nashville, TN 37201 Telephone (615) 742-6200 Facsimile (615) 742-6293 [email protected] [email protected] [email protected] [email protected]

Proposed Counsel for Debtors

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EXHIBIT 1

Utility Providers

Case 3:20-bk-03138 Doc 14 Filed 06/28/20 Entered 06/28/20 20:05:59 Desc Main Document Page 22 of 26 Provider Provider's Address Service(s) Provided Security Deposit Average Monthly Charges PO BOX 933374 Ackerman Alarm Monitoring ‐ 5,238.38 ATLANTA, GA 31193‐3374 SOLID WASTE SOUTHEAST, INC ‐ W2 Advanced Disposal PO BOX 743019 Trash, Recycling ‐ 951.68 ATLANTA, GA 30374‐3019 PO BOX 242 Alabama Power Company Electric 450.00 28,141.42 BIRMINGHAM, AL 35292 PO BOX 88034 Ameren Corporation Electric 4,957.00 9,172.98 CHICAGO, IL 60680‐1034 PO BOX 371496 American Electric Power Electric ‐ 3,230.91 PITSBURGH, PA 15250‐7496 PO BOX 9001310 AT&T Telephone ‐ 456.62 LOUISVILLE, KY 40290‐1310 PO BOX 740353 Atmos Energy Gas ‐ 1,762.51 CINCINNATI, OH 45274‐0353 PO BOX 1628 Baldwin County Sewer Service, LLC Sewer ‐ 351.00 FOLEY, AL 36536 PO BOX 220 Baldwin EMC Electric ‐ 13,280.17 SUMMERDALE, AL 36580 235 GOVERNMENT CENTER DRIVE Cape Fear Public Utility Authority Water ‐ 297.50 WILMINGTON, NC 28403‐1638 4285 PACE STREET Carolina Waste & Recycling, LLC Trash, Recycling ‐ 288.17 NORTH CHARLESTON, SC 29405 PO BOX 1900 Caseyville Township Sewer Water ‐ 108.94 FAIRVIEW HEIGHTS, IL 62208 PO BOX 787626 Champion Energy, LLC Electric ‐ 4,839.56 PHILADELPHIA, PA 19178‐7626 PO BOX 7056 Citizens Energy Group Gas ‐ 570.64 INDIANAPOLIS, IN 46207‐7056 95 TRIPLET LAKE DRIVE City of Casselberry Water ‐ 1,620.46 CASSELBERRY, FL 32707 CITY CLERK'S OFFICE City of Fairview Heights 10025 Bunkum Road Water ‐ 2.08 FAIRVIEW HEIGHTS, IL 62208 PO DRAWER 1750 City of Foley Water ‐ 732.57 FOLEY, AL 36536 ATTN: ALARMS DIVISION City of Fort Myers 2210 WIDMAN WAY Water ‐ 468.90 FORT MYERS, FL 33901 PO BOX 296 City of Largo Water ‐ 448.13 LARGO, FL 33779 PO BOX 99 City of Madison, Alabama Water ‐ 378.47 MADISON, AL 35758 PO BOX 17 City of Melbourne Utilities Water ‐ 243.34 MELBOURNE, FL 32902‐0017 5919 MAIN STREET City of New Port Richey Water ‐ 339.86 NEW PORT RICHEY, FL 34652‐2785 PO BOX 70 City of Ocoee Water ‐ 674.51 OCOEE, FL 34761‐0070 255 S LINCOLN AVE City of O'Fallon Water ‐ 715.04 O'FALLON, IL 62269‐2139 PO BOX 12910 City of Pensacola Gas ‐ 497.07 PENSACOLA, FL 32521‐0001 PO BOX 1350 City of Pigeon Forge Water ‐ 5,856.11 PIGEON FORGE, TN 37868‐1350 PO BOX 24641 City of Tamarac Water ‐ 234.02 WEST PALM BEACH, FL 33416‐4641 ATTN: UTILITIES SERVICES City of Tulsa Water ‐ 197.94 TULSA, OK 74187‐0002 475 MAIN STREET City of West Chicago Water ‐ 204.45 WEST CHICAGO, IL 60185‐2840 3176 OLD JENNINGS ROAD Clay County Utility Authority Water ‐ 389.16 MIDDLEBURG, FL 32068

Case 3:20-bk-03138 Doc 14 Filed 06/28/20 Entered 06/28/20 20:05:59 Desc Main Document Page 23 of 26 Provider Provider's Address Service(s) Provided Security Deposit Average Monthly Charges PO BOX 308 Clay Electric Cooperative, Inc. Electric 18,600.00 10,379.02 KEYSTONE HEIGHTS, FL 32656‐0308 PO BOX 4629 Columbia Gas Gas ‐ 3,949.06 CAROL STREAM, IL 60197‐4629 SEWER AND WATER SERVICES Columbus City Treasurer PO BOX 182882 Water ‐ 463.53 COLUMBUS, OH 43218‐2882 PO BOX 6111 ComEd Electric 500.00 1,262.55 CAROL STREAM, IL 60197‐6111 PO BOX 4718 Conservice Water ‐ 1,097.38 LOGAN, UT 84323‐4718 PO BOX 4640 Constellation New Energy, Inc Electric ‐ 14,905.98 CAROL STREAM, IL 60197‐4640 1313 FOOTHILL BLVD. SUITE 2 CPP River Falls SPE I, LLC C/O COLUMBUS PACIFIC Water ‐ 941.99 LA CANADA FLINTRIDGE, CA 91011 PO BOX 308 Destin Water Users Water ‐ 462.73 DESTIN, FL 32540‐0308 PO BOX 32179 Direct Energy Business Gas ‐ 1,458.04 NEW YORK, NY 10087‐2179 PO BOX 100255 Dominion Energy Electric 18,555.00 4,253.15 COLUMBIA, SC 29202‐3255 PO BOX 1004 Duke Energy Electric 122,682.00 79,519.71 CHARLOTTE, NC 28201‐1004 3927 BROTHERTON RD. STE 200 DULOC, LLC Water ‐ $262.93 CINCINNATI, OH 45209 PO BOX 36557 Eco‐Tech, LLC Trash, Recycling ‐ 165.16 LOUISVILLE, KY 40233‐6557 PO BOX 18870 Emerald Coast Utilities Authority Water ‐ 194.67 PENSACOLA, FL 32523‐8870 PO BOX 219703 Evergy Electric 500.00 5,272.52 KANSAS CITY, MO 64121‐9703 PO BOX 7000 Fayetteville Public Works Commission Electric ‐ 4,003.14 FAYETTEVILLE, NC 28302‐7000 PO BOX 823201 First Berkshire Properties, LLC Water ‐ 375.00 PHILADELPHIA, PA 19182‐3201 GENERAL MAIL FACILITY FPL Electric 103,314.00 55,968.63 MIAMI, FL 33188‐0001 96 ANNEX Georgia Power Electric 150.00 8,325.48 ATLANTA, GA 30396‐0001 PO BOX 791519 GFL Environmental Trash, Recycling ‐ 3,142.78 BALTIMORE, MD 21279‐1519 PO BOX 2308 Grand Strand Water & Sewer Authority Water ‐ 1,030.95 CONWAY, SC 29528‐2308 PO BOX 687 Greenville Water Water ‐ 283.34 GREENVILLE, SC 29602 PO BOX 29090 Gulf Power Electric 14,792.00 18,635.23 MIAMI, FL 33102‐9090 112 SPRAGINS ST NW Huntsville Utilities Electric 14,774.00 8,222.47 HUNTSVILLE, AL 35801 PO BOX 3027 Indiana American Water Water ‐ 169.99 MILWAUKEE, WI 53201‐3027 PO BOX 110 Indianapolis Power & Light Company Electric 3,300.00 13,589.94 INDIANAPOLIS, IN 46206‐0110 PO BOX 71247 Infinite Energy Inc. Gas ‐ 428.63 CHARLOTTE, NC 28272‐1247 C/O TRI‐LAND PROPERTIES INC IP‐TL Century Plaza, LLC ONE EAST OAK HILL DRIVE, STE. 302 Water ‐ 235.27 WESTMONT, IL 60559 8750 E. 200 S Johnson Controls Alarm Monitoring ‐ 981.67 ZIONSVILLE, IN 46077 P.O. Box 219330 Kansas City Power and Light Company Electric ‐ 5,333.00 Kansas City, MO 64121‐9330

Case 3:20-bk-03138 Doc 14 Filed 06/28/20 Entered 06/28/20 20:05:59 Desc Main Document Page 24 of 26 Provider Provider's Address Service(s) Provided Security Deposit Average Monthly Charges PO BOX 807045 KC Water Water ‐ 676.09 KANSAS CITY, MO 64180‐7045 PO BOX 59029 KUB Electric ‐ 8,759.58 KNOXVILLE, TN 37950‐9029 PO BOX 611030 Lakeworth Town Plaza LLC Water ‐ 167.70 NORTH MIAMI, FL 33261 PO BOX 306140 Madison Suburban Utility District Water ‐ 297.20 NASHVILLE, TN 37230‐6140 101 RAY SANDERSON DRIVE Madison Utilities Water ‐ 245.14 MADISON, AL 35758‐1503 700 COMMERCE DRIVE, SUITE 450 Marketplace of Rockford, LLC Water ‐ 218.25 OAKBROOK, IL 60523 PO BOX 713805 MC‐NC, LLC Water ‐ 787.98 CINCINNATI, OH 45271‐3805 6251 BROADWAY Merrillville Conservancy District Water ‐ 86.87 MERRILLVILLE, IN 46410‐3004 PO BOX 305225 Metro Water Services Water ‐ 372.86 NASHVILLE, TN 37230‐5225 PO BOX 437 Metropolitan St. Louis Sewer District Water ‐ 89.17 ST. LOUIS, MO 63166‐0437 PO BOX 6029 Missouri American Water Water ‐ 204.44 CAROL STREAM, IL 60197‐6029 PO BOX 830130 Mobile Area Water & Sewer System Water ‐ 441.30 BIRMINGHAM, AL 35283‐0130 PO BOX 9 Murfreesboro Electric Dept Electric 39,735.00 21,507.68 MURFREESBORO, TN 37133‐0009 PO BOX 897 Murfreesboro Water Resources Dept Water ‐ 1,428.15 MURFREESBORO, TN 37133‐0897 PO BOX 305099 Nashville Electric Service Electric ‐ 7,211.40 NASHVILLE, TN 37230‐5099 PO BOX 1828 National Waste and Disposal, Inc. Trash, Recycling ‐ 94.17 CATOOSA, OK 74015 PO BOX 5407 Nicor Gas Gas ‐ 692.50 CAROL STREAM, IL 60197‐5407 PO BOX 13007 NIPSCO Electric ‐ 7,306.73 MERRILLVILLE, IN 46411‐3007 LOCKBOX DEPT 4929 Nitel Telephone ‐ 53,804.03 CAROL STREAM, IL 60122‐4929 PO BOX 219296 Oklahoma Natural Gas Company Gas ‐ 384.72 KANSAS CITY, MO 64121‐9296 PO BOX 31329 Orlando Utilities Commission Water ‐ 97.91 TAMPA, FL 33631‐3329 PO BOX 1479 Pelham Water Works Water ‐ 123.04 PELHAM, AL 35124‐1479 PO BOX 1246 Piedmont Natural Gas Gas ‐ 2,162.82 CHARLOTTE, NC 28201‐1246 PO BOX 1780 Pinellas County Utilities Water ‐ 886.44 CLEARWATER, FL 33757‐1780 PO BOX 371496 Public Service Company Of Oklahoma Electric 2,500.00 5,520.79 PITTSBURGH, PA 15250‐7496 DRAWER I Ray's Trash Service, Inc Trash, Recycling ‐ 252.49 CLAYTON, IN 46118 PO BOX 9001099 Republic Services Trash, Recycling ‐ 1,581.22 LOUISVILLE, KY 40290‐1099 PO BOX 580052 Riviera Utilities Water ‐ 133.18 CHARLOTTE, NC 28258‐0052 PO BOX 538710 Rumpke Trash, Recycling ‐ 168.12 CINCINNATI, OH 45253‐8710 PO BOX 188 Santee Cooper Electric 13,885.00 7,816.29 MONCKS CORNER, SC 29461‐0188 PO BOX 4870 Sevier County Electric System Electric 23,000.00 6,762.02 SEVIERVILLE, TN 37864 PO BOX 1949 Spectrotel Telephone ‐ 806.55 NEWARK NJ 07101‐1949

Case 3:20-bk-03138 Doc 14 Filed 06/28/20 Entered 06/28/20 20:05:59 Desc Main Document Page 25 of 26 Provider Provider's Address Service(s) Provided Security Deposit Average Monthly Charges DRAWER 2 Spire Inc. Gas ‐ 2,194.91 ST. LOUIS, MO 63171 PO BOX 3598 Star Disposal Of Indiana Trash, Recycling ‐ 497.28 MUNSTER, IN 46321 PO BOX 31318 TECO ‐ Tampa Electric Electric 17,966.00 7,880.60 TAMPA, FL 33631‐3318 PO BOX 2455 The City Of Daytona Beach Water ‐ 428.16 DAYTONA BEACH, FL 32115‐2455 PO BOX 3687 The Illuminating Company Electric ‐ 2,764.30 AKRON, OH 44309‐3687 PO BOX 197‐508 United Waste Solutions, LLC Trash, Recycling ‐ 2,839.61 NASHVILLE, TN 37219‐7507 PO BOX 6248 Vectren Energy Delivery Gas ‐ 233.68 INDIANAPOLIS, IN 46206‐6248 PO BOX 660108 Verizon Telephone ‐ 3,268.43 DALLAS, TX 75266‐0108 PO BOX 535233 Waste Connections Trash, Recycling ‐ 1,554.01 PITTSBURGH, PA 15253‐5233 PO BOX 791519 Waste Industries Trash, Recycling ‐ 780.68 BALTIMORE, MD 21279‐1519 PO BOX 55558 Waste Management Trash, Recycling ‐ 124.36 BOSTON, MA 02205‐5558 PO BOX 865215 Waste Pro USA Inc Trash, Recycling ‐ 353.03 ORLANDO, FL 32886‐5215 PO BOX 9001908 Windstream Telephone ‐ 13,173.95 LOUISVILLE, KY 40290‐1908 PO BOX 55558 WM Corporate Services Inc Trash, Recycling ‐ 4,207.98 BOSTON MA 02205‐5558 PO BOX 73356 WM Recycle America, LLC Trash, Recycling ‐ 120.50 CHICAGO, IL 60673‐7356

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