Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document Page 1 of 44

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1 Document Page 1 of 44 JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) David G. Heiman (pro hac vice pending) Carl E. Black (pro hac vice pending) Thomas A. Wilson (pro hac vice pending) Proposed Attorneys for Debtors and Debtors in Possession HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia Telephone: (804) Facsimile: (804) Tyler P. Brown (VSB No ) J.R. Smith (VSB No ) Henry P. (Toby) Long, III (VSB No ) Justin F. Paget (VSB No ) IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION In re: Alpha Natural Resources, Inc., et al., Debtors. Chapter 11 Case No. 15- ( ) (Joint Administration Requested) MOTION OF THE DEBTORS, PURSUANT TO SECTION 366 OF THE BANKRUPTCY CODE, FOR INTERIM AND FINAL ORDERS ESTABLISHING ADEQUATE ASSURANCE PROCEDURES WITH RESPECT TO THEIR UTILITY PROVIDERS Alpha Natural Resources, Inc. ("ANR") and certain of its direct and indirect subsidiaries, as debtors and debtors in possession (collectively, the "Debtors"), respectfully represent as follows: Background 1. On the date hereof (the "Petition Date"), the Debtors commenced their reorganization cases by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). By a motion filed on the Petition Date, the

2 Document Page 2 of 44 Debtors have requested that their chapter 11 cases be consolidated for procedural purposes only and administered jointly. 2. The Debtors are authorized to continue to operate their business and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 3. A comprehensive description of the Debtors' businesses and operations, capital structure and the events leading to the commencement of these chapter 11 cases can be found in the declarations of (a) Kevin S. Crutchfield, Chief Executive Officer and Chairman of the Board of Directors of ANR, and (b) Philip J. Cavatoni, Executive Vice President and Chief Financial and Strategy Officer of ANR in support of the Debtors' "first day" pleadings (together, the "First Day Declarations"), which were filed contemporaneously herewith and which are incorporated by reference. Jurisdiction 4. This Court has subject matter jurisdiction to consider this matter pursuant to 28 U.S.C 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 Relief Requested 5. Pursuant to section 366(a) of the Bankruptcy Code, the Debtors hereby seek entry of an interim order (the "Interim Order"): (a) prohibiting those utility companies currently providing services, or that will provide services, to the Debtors (collectively, the "Utility Companies" and each, individually, a "Utility Company") from altering, refusing or discontinuing services to, or discriminating against, the Debtors on account of the filing of these cases or on account of unpaid prepetition invoices, pending entry of a final order granting the relief sought herein (the "Final Order," and together with the Interim Order, the "Orders"); -2-

3 Document Page 3 of 44 (b) determining that the Utility Companies have received adequate assurance of payment for future utility service on the terms provided herein; and (c) establishing certain procedures for determining requests for additional assurance for the Utility Companies. The Debtors also seek the entry of a Final Order granting this relief on a final basis. The Utility Companies 6. The Debtors currently use electric, natural gas, water, sewer, waste removal, telecommunications and other similar services provided by approximately 120 different Utility Companies, including the Utility Companies identified on the attached Exhibit A (the "Utility List"). 1 The Debtors estimate that their average aggregated monthly obligation to the Utility Companies on account of services rendered is approximately $10.1 million. 7. Uninterrupted utility service is essential to the Debtors' ongoing operations and, therefore, key to preserving value for all interested stakeholders. As described in the First Day Declarations, the Debtors are among the largest coal producers in the United States. The Debtors would not be able to operate their mines and coal processing facilities in the absence of continuous utility service. Should any Utility Company refuse or discontinue service, even for a brief period, the affected mine or facility would be forced to stand idle. The temporary or permanent discontinuation of utility services at any of the Debtors' mines or 1 The Debtors have made an extensive and good faith effort to identify all Utility Companies and include them on the Utility List. For each Utility Company, the Utility List identifies: (a) the name and address of the Utility Company; (b) the type of utility services provided by the Utility Company; (c) the account numbers for that Utility Company; and (d) the proposed Adequate Assurance Deposit (as defined below). 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. In addition, the Debtors are requesting that this Motion apply to all of the 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. Additionally, it is possible that certain entities may have been mistakenly 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 of the Bankruptcy Code. -3-

4 Document Page 4 of 44 other facilities could irreparably harm the Debtors' businesses and the value of the Debtors' estates. 8. The Debtors intend to pay any postpetition obligations to the Utility Companies in a timely fashion and in the ordinary course, as they have substantially done prior to the Petition Date. 2 The Adequate Assurance Deposit 9. 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 or the trustee "adequate assurance of payment" within 30 days of the petition date. 3 Section 366(c)(1)(A) of the Bankruptcy Code defines the phrase "assurance of payment" to mean, among other things, a cash deposit. See 11 U.S.C. 366(c)(1)(A). Accordingly, the Debtors propose to provide a cash deposit to any requesting Utility Company equal to the Debtors' calculation of the cost of two weeks' worth of utility service, based on the historical average over 2 3 The Debtors currently maintain substantial liquidity of approximately $1.0 billion and expect to be able to satisfy all of their postpetition obligations during the pendency of these chapter 11 cases. In addition, concurrently with the filing of this Motion, the Debtors have filed a motion seeking approval of approximately $600 million in debtor in possession financing from their postpetition lenders. There is an apparent discrepancy between subsections (b) and (c) of section 366 of the Bankruptcy Code 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) of the Bankruptcy Code 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) of the Bankruptcy Code 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." 11 U.S.C. 366(b), 366(c)(2) (emphases added). Under the statutory construction canon lex specialis derogat legi generali ("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 [2] (Alan N. Resnick & Henry J. Sommer eds. 16th ed. 2015) ("It is unclear how the 30-day period [in section 366(c)(2) of the Bankruptcy Code] 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 in that subsection, rather than the 20-day period in section 366(b), should apply."); In re Astle, 338 B.R. 855, 859 (Bankr. D. Idaho 2006) (deciding that the provisions of Bankruptcy Code section 366(c) only apply in chapter 11 cases). -4-

5 Document Page 5 of 44 the 52 weeks beginning July 1, 2014 and ending June 30, 2015, and as specifically identified on the attached Utility List (each, an "Adequate Assurance Deposit"), provided that: (a) such request is made in writing no later than 30 days after the Petition Date (the "Request Deadline"); and (b) such requesting Utility Company does not already hold a deposit equal to or greater than the Adequate Assurance Deposit (which deposit shall be deemed to be the Adequate Assurance Deposit for purposes of this Motion). 4 The aggregate amount of the proposed available Adequate Assurance Deposits is approximately $2.0 million. 10. A Utility Company's request for, and acceptance of, an Adequate Assurance Deposit shall be deemed an acknowledgement and admission from the Utility Company that the Adequate Assurance Deposit is a form of adequate assurance that is satisfactory to it, within the meaning of section 366 of the Bankruptcy Code. 5 Likewise, any Utility Company that does not request an Adequate Assurance Deposit by the Request Deadline shall be deemed to have adequate assurance that is satisfactory to it within the meaning of section 366 of the Bankruptcy Code. 11. The Debtors 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 of the Bankruptcy Code. Nonetheless, if any Utility Company 4 5 Certain Utility Companies held surety bonds or security deposits as of the Petition Date. If the Debtors believe that the surety bonds or security deposits held by a Utility Company are sufficient to provide such Utility Company with a two week or greater deposit, the Debtors are proposing no further Adequate Assurance Deposit. The Debtors further request that any Adequate Assurance Deposit requested by, and provided to, any Utility Company pursuant to the procedures described above be returned to the Debtors at the conclusion of these chapter 11 cases, if not returned or applied sooner. -5-

6 Document Page 6 of 44 believes additional assurance is required, it may request such assurance pursuant to the procedures described below. The Adequate Assurance Procedures 12. To address the right of any Utility Company under section 366(c)(2) of the Bankruptcy Code to seek adequate assurance satisfactory to it, the Debtors propose that the following procedures (the "Adequate Assurance Procedures") be adopted: (a) (b) (c) (d) Any Utility Company desiring assurance of future payment for utility service beyond the Proposed Adequate Assurance must serve a request (an "Additional Assurance Request") so that it is actually received by the Debtors by the Request Deadline at the following addresses: (i) Alpha Natural Resources, Inc., One Alpha Place, P.O. Box 16429, Bristol, Virginia (Attn: Richard H. Verheij, Esq., General Counsel); (ii) Jones Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio (Attn: Carl E. Black, Esq. and Thomas A. Wilson, Esq.); and (iii) Hunton & Williams LLP, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, Virginia (Attn: Tyler P. Brown, Esq.). Any Additional Assurance Request must specify the amount and nature of assurance of the deposit that would be satisfactory to the Utility Company and (i) be made in writing, (ii) set forth all location(s) for which utility services are provided and the relevant account number(s), (iii) describe any deposits or other security currently held by the requesting Utility Company, (iv) explain whether the Debtors prepay for such Utility Company's services or what payment terms apply to the Debtors and (v) explain why the requesting Utility Company believes that the Proposed Adequate Assurance is not sufficient adequate assurance of future payment. Upon the Debtors' receipt of an Additional Assurance Request at the addresses set forth above, the Debtors shall have the greater of (i) 20 days from the receipt of such Additional Assurance Request or (ii) 40 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 Utility Company without application to or approval of the Court. 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, -6-

7 Document Page 7 of 44 in connection with any such resolution, in their discretion, provide the requesting Utility Company with additional assurance of future payment in a form satisfactory to the Utility Company, including, but not limited to, cash deposits, prepayments, other forms of security or any combination of the above, if the Debtors believe such additional assurance is reasonable. (e) (f) (g) If the Debtors determine that an Additional Assurance Request is not reasonable, and the parties are not able to resolve such request during the Resolution Period, the Debtors will request a hearing before the Court to determine the adequacy of assurances of payment made to the requesting Utility Company (a "Determination Hearing"), pursuant to section 366(c)(3)(A) of the Bankruptcy Code. 6 Pending the resolution of the Additional Assurance Request at a Determination Hearing, the Utility Company making such request shall be prohibited 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. Any Utility Company that does not comply with these Adequate Assurance Procedures is deemed to find the Proposed Adequate Assurance satisfactory to it and is forbidden 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). Subsequent Modifications of Utility List 13. It is possible that, despite the Debtors' efforts, certain Utility Companies have not yet been identified by the Debtors nor included on the Utility List (collectively, the "Additional Utility Companies"). To the extent that the Debtors identify additional Utility Companies, the Debtors will file amendments to the Utility List. The Debtors request that the Court: (a) authorize the Debtors to provide notice and a copy of the Interim Order or, if a Final Order has been entered granting the relief requested herein, such Final Order, to the Additional 6 Section 366(c)(3)(A) of the Bankruptcy Code provides that "[o]n request of a party in interest and after notice and a hearing, the court may order modification of the amount of an assurance of payment." 11 U.S.C. 366(c)(3)(A). -7-

8 Document Page 8 of 44 Utility Companies as such companies are identified, and (b) provide that the Additional Utility Companies are subject to the terms of the Interim Order or Final Order, as applicable, including the Adequate Assurance Procedures; provided, however, that: (a) the deadline for an Additional Utility Company to submit a request for an Adequate Assurance Deposit will be 20 days after the date the Interim Order or Final Order, as applicable, is served upon such Additional Utility Company; and (b) the Resolution Period applicable to an Additional Utility Company shall be the 20-day period following the Debtors' receipt of an Additional Assurance Request from such Additional Utility Company, provided that such Resolution Period may be extended by agreement of the Debtors and the applicable Additional Utility Company without application to or approval of the Court. Argument 14. The policy underlying section 366 of the Bankruptcy Code 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. No , at 350 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, Section 366(c)(1) of the Bankruptcy Code defines "assurance of payment" to mean several enumerated forms of security (e.g., cash deposits, letters of credit, prepayment for utility service) while excluding from the definition certain other forms of security (e.g., administrative expense priority for a utility's claim). See 11 U.S.C. 366(c)(1). In addition, section 366(c)(3)(B) of the Bankruptcy Code provides that a court may not consider certain facts (e.g., a debtor's prepetition history of making timely payments to a utility) in making a determination of adequate assurance of payment. See 11 U.S.C. 366(c)(3)(B). -8-

9 Document Page 9 of 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) of the Bankruptcy Code not only fails to establish a minimum amount of adequate "assurance of payment," but explicitly empowers the Court to determine the appropriate level of adequate assurance required 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 an assurance of payment."). 16. Thus, there is nothing within section 366 of the Bankruptcy Code 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) of the Bankruptcy Code, courts enjoyed precisely the same discretion to make such rulings pursuant to section 366(b) of the Bankruptcy Code, and frequently did so. See Va. Elec. & Power Co. v. Caldor, Inc., 117 F.3d 646, 650 (2d Cir. 1997) ("Even assuming that 'other security' should be interpreted narrowly, we agree that a bankruptcy court's authority to 'modify' the level of the 'deposit or other security,' provided for under 366(b), includes the power to require no 'deposit or other security' where none is necessary to provide a utility supplier with 'adequate assurance of payment.'") (citation omitted). 17. Moreover, the requirement of the statute is that the assurance of payment only be "adequate." Courts construing section 366(b) of the Bankruptcy Code have long recognized that adequate assurance of payment does not constitute an absolute guarantee of the debtors' ability to pay. See, e.g., In re Circuit City Stores, Inc., No , 2009 WL , -9-

10 Document Page 10 of 44 at *4 (Bankr. E.D. Va. Jan. 14, 2009) ("Under 366(b), a debtor must furnish what it considers to be adequate assurance of payment within twenty days after the petition date in the form of a deposit or other security for postpetition service. A debtor need not provide utility companies an absolute guarantee of payment.") (citing In re Adelphia Bus. Solutions, Inc., 280 BR. 63, 80 (Bankr. S.D.N.Y. 2002)); In re Caldor, Inc., 199 B.R. 1, 3 (S.D.N.Y. 1996) ("Section 366(b) requires [a] [b]ankruptcy [c]ourt to determine whether the circumstances are sufficient to provide a utility with 'adequate assurance' of payment. The statute does not require an 'absolute guarantee of payment.'") (citation omitted), aff'd, 117 F.3d 646 (2d Cir. 1997); Steinebach v. Tucson Elec. Power Co. (In re Steinebach), 303 B.R. 634, 641 (Bankr. D. Ariz. 2004) ("Adequate assurance of payment is not, however, absolute assurance. [A]ll 366(b) requires is that a utility be protected from an unreasonable risk of non-payment."); In re Penn Jersey Corp., 72 B.R. 981, 982 (Bankr. E.D. Pa. 1987) (stating that section 366(b) of the Bankruptcy Code "contemplates that a utility receive only such assurance of payment as is sufficient to protect its interests given the facts of the debtor's financial circumstances"); see also In re Astle, 338 B.R. 855, 860 (Bankr. D. Idaho 2006) (case law governing section 366(b) is still applicable because BAPCPA did not amend section 366(b)) Therefore, despite its language allowing a utility to take adverse action against the debtor should the debtor fail to provide adequate assurance of future payment "satisfactory to the utility," section 366 of the Bankruptcy Code does not require that the assurance provided be "satisfactory" to the utility (no matter how unreasonable) once a party seeks to have the Court determine the appropriate amount of adequate assurances. See Circuit 7 Courts have recognized that "[i]n deciding what constitutes 'adequate assurance' in a given case, a bankruptcy court must 'focus upon the need of the utility for assurance, and to require that the debtor supply no more than that, since the debtor almost perforce has a conflicting need to conserve scarce financial resources.'" Caldor, 117 F.3d at 650 (emphasis in original) (quoting Penn Jersey, 72 B.R. at 985). -10-

11 Document Page 11 of 44 City, 2009 WL , at **3-5 (utility's proposed interpretation of section 366 that precluded bankruptcy court from determining adequate assurance prior to payment of utility's demand was held to be unworkable and counter to Congressional intent); Long Island Lighting Co. v. Great Atl. & Pac. Tea Co. (In re Great Atl. & Pac. Tea Co.), No. 11-CV-1338, 2011 WL , at *4 (S.D.N.Y. Nov. 14, 2011) (holding that bankruptcy courts may "modify the amount that the utility provider deems to be satisfactory"); In re Beach House Prop., LLC., No , 2008 WL , at *1 (Bankr. S.D. Fla. Apr. 8, 2008) (bankruptcy court may determine amount of adequate assurance pursuant to section 366 before debtor's payment of utility's initial demand for adequate assurance). 19. Given the foregoing, the Debtors submit that entry of the Orders is consistent with, and fully satisfies, the requirements of section 366 of the Bankruptcy Code. Far from offering the Utility Companies nominal (or even no) additional assurance of payment, the Debtors propose to (a) make available to the Utility Companies significant cash deposits of approximately $2.0 million in the aggregate and (b) provide procedures pursuant to which the Utility Companies can seek greater or different security. Such assurance of payment significantly alleviates if not eliminates any honest concern of non-payment on the part of the Utility Companies, and is thus clearly "adequate." 20. Courts in this District have granted relief similar to that sought herein in numerous other cases. See, e.g., In re Health Diagnostic Lab., Inc., No (Bankr. E.D. Va. June 10, 2015 and July 1, 2015) (interim and final orders approving adequate assurance procedures requiring the debtors to provide requesting utility providers a deposit equal to the average cost of two weeks of utility service); In re Patriot Coal Corp., No (Bankr. E.D. Va. May 14, 2015 and June 5, 2015) (interim and final orders approving adequate -11-

12 Document Page 12 of 44 assurance procedures requiring the debtors to deposit approximately two weeks of their average utility liabilities into a segregated account); In re James River Coal Co., No (Bankr. E.D. Va. Apr. 11, 2014) (order approving adequate assurance procedures requiring the debtors to provide requesting utility providers a deposit equal to the average cost of two weeks of utility service); In re AMF Bowling Worldwide, Inc., No (Bankr. E.D. Va. Nov. 14, 2012 and Dec. 17, 2012) (interim and final orders approving adequate assurance procedures requiring the debtors to deposit approximately two weeks of their average utility liabilities into a segregated account); In re Bear Island Paper Co., No (Bankr. E.D. Va. Feb. 26, 2010 and Mar. 24, 2010) (interim and final orders approving adequate assurance procedures requiring the debtors to provide requesting utility providers a deposit equal to the average cost of two weeks of utility service); In re Movie Gallery, Inc., No (Bankr. E.D. Va. Feb. 8, 2010 and Feb. 25, 2010) (interim and final orders approving adequate assurance procedures requiring the debtors to provide requesting utility providers a deposit equal to the average cost of two weeks of utility service); In re Ennstone, Inc., No (Bankr. E.D. Va. Feb, 27, 2009) (order approving adequate assurance procedures requiring the debtors to provide requesting utility providers a deposit equal to the average cost of two weeks of utility service). 8 Requests for Immediate Relief and Waiver of Stay 21. Pursuant to Rules 6003(b) and 6004(h) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), the Debtors seek: (a) immediate entry of an interim order granting the relief requested herein until a final hearing on this motion can be conducted (such 8 The unreported orders cited herein are not attached to this Motion. Copies of these orders will be made available to the Court or other parties upon request made to the Debtors' counsel. -12-

13 Document Page 13 of 44 relief, the "Interim Relief") and (b) a waiver of any stay of the effectiveness of such an order. Bankruptcy Rule 6003(b) provides, in relevant part, that "[e]xcept to the extent that relief is necessary to avoid immediate and irreparable harm, the court shall not, within 21 days after the filing of the petition, issue an order granting a motion to pay all or part of a claim that arose before the filing of the petition[.]" Fed. R. Bankr. P. 6003(b). Accordingly, where the failure to grant any such requested relief would result in immediate and irreparable harm to the Debtors' estates, the Court may authorize the Debtors to pay all or part of a claim that arose before the Petition Date at this time. Bankruptcy Rule 6004(h) provides that "[a]n order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise." Fed. R. Bankr. P. 6004(h). 22. For the reasons set forth above, the Debtors' ability to provide Adequate Assurance Deposits to requesting Utility Companies is necessary to prevent immediate and irreparable damage to the Debtors' estates and their going concern value that would result from even a temporary discontinuation of the services provided by the Utility Companies. Accordingly, the Debtors submit that ample cause exists to justify: (a) the immediate entry of an interim order annexed hereto as Exhibit B granting the Interim Relief sought herein pursuant to Bankruptcy Rule 6003(b); and (b) a waiver of the 14-day stay imposed by Bankruptcy Rule 6004(h), to the extent that it applies. Waiver of Separate Memorandum of Points and Authorities 23. The Debtors respectfully request that the Court regard any argument and citations set forth herein as a written memorandum of facts, reasons and authorities that has been combined with the relief requested herein, as permitted by Local Bankruptcy Rule (G)(1). Alternatively, the Debtors respectfully request that the Court waive any requirement set forth in -13-

14 Document Page 14 of 44 Local Bankruptcy Rule (G)(1) that this Motion be accompanied by such a written memorandum. Notice 24. Notice of this Motion has been given to: (a) the Utility Companies listed on the Utility List; (b) the Office of the United States Trustee for the Eastern District of Virginia; (c) Davis Polk & Wardwell LLP and McGuireWoods LLP, as co-counsel to Citibank, N.A., as administrative and collateral agent under the proposed postpetition credit facility, and Citicorp North America, Inc., as administrative and collateral agent under the Debtors' prepetition secured credit facility; (d) Kirkland and Ellis LLP, as counsel to the Second Lien Noteholder Group; (e) the indenture trustees for the Debtors' secured and unsecured notes (and counsel, where known); (f) counsel to General Electric Credit Corporation, as administrative agent under the Debtors' prepetition secured accounts receivable facility; (g) the creditors holding the 50 largest unsecured claims against the Debtors' estates on a consolidated basis; (h) the United Mine Workers of America; and (i) any party that has requested notice pursuant to Bankruptcy Rule 2002 as of the time of service (collectively, the "Notice Parties"). In light of the nature of the relief requested, the Debtors submit that no further notice is necessary. No Prior Request 25. No prior request for the relief sought in this Motion has been made to this or any other Court in connection with these chapter 11 cases. -14-

15 Document Page 15 of 44 WHEREFORE, the Debtors respectfully request that the Court: (i) enter the Interim Order substantially in the form attached hereto as Exhibit B, granting the relief requested herein on an interim basis; (ii) enter the Final Order substantially in the form attached hereto as Exhibit C, granting the relief requested herein on a final basis; and (iii) grant such other and further relief to the Debtors as the Court may deem proper. Dated: August 3, 2015 Richmond, Virginia Respectfully submitted, /s/ Henry P. (Toby) Long, III Tyler P. Brown (VSB No ) J.R. Smith (VSB No ) Henry P. (Toby) Long, III (VSB No ) Justin F. Paget (VSB No ) HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia Telephone: (804) Facsimile: (804) David G. Heiman (pro hac vice pending) Carl E. Black (pro hac vice pending) Thomas A. Wilson (pro hac vice pending) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) PROPOSED ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION -15-

16 Document Page 16 of 44 Exhibit A Utility List

17 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE A & S SANITATION 673 JERSUSALEM ROAD SCOTCH PLAINS, NJ Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 17 of 44 WASTE REMOVAL / DUMPSTER RENTAL ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) ; ; ; ; ; ; ; ; $ $ 623 $ 312 A T & T 208 S. AKARD ST. DALLAS, TX TELECOMMUNICATION 79989; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; 1033 I IDL; ; or ; 423m ; 423m ; 423m ; ; ; ; ; ; ; ; ; 606M ; 606M ; 606M ; 606M ; 606m ; 606m ; 606m ; 606M ; 606m ; 606M ; 606M ; 606m ; 606m ; 606M ; 606m ; BAN FAN ; BES or BES $ $ 19,335 $ 9,667 A T & T MOBILITY ADVANCED DISPOSAL SVCS SOLID WASTE OF PA INC AFTON COMMUNICATIONS CORP AMEREN ILLINOIS AMERICAN ELECTRIC POWER AMERICAN MESSAGING AMERIGAS 208 S. AKARD ST. DALLAS, TX ROUTE 219 BROCKWAY, PA CLOVERDALE ROAD ROANOKE, VA AMEREN PLAZA 1901 CHOUTEAU AVE ST. LOUIS, MO RIVERSIDE PLAZA COLUMBUS, OH LAKEPOINTE DRIVE SUITE 100 LEWISVILLE, TX N. GULPH RD KING OF PRUSSIA, PA TELECOMMUNICATION BES ; BES ; ; $ $ 32,993 $ 16,496 WASTE REMOVAL / RECYCLING/LANDFILL L ; L $ $ 2,096 $ 1,048 TELECOMMUNICATION 199; 884; 1438; 5937; 8321 $ $ 531 $ 266 ELECTRIC / NATURAL GAS $ $ 3,238 $ 1,619 ELECTRIC * LISTED UNDER APPALACHIAN POWER CO $ $ 8,638 $ TELECOMMUNICATION E $ $ 1,056 $ 528 PROPANE $ $ 177 $ 88 Page 1 of 10

18 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 18 of 44 ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) APPALACHIAN POWER CO 1 RIVERSIDE PLAZA COLUMBUS, OH ELECTRIC ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ 8,405,065 $ 5,260,694 $ APPALACHIAN WIRELESS ARMSTRONG AVAYA INC 101 TECHNOLOGY TRL IVEL, KY MED TECH PKWY STE 307 PHILADELPHIA, PA NIAGARA CARTHAGE RD NEW YORK, NY TELECOMMUNICATION ; $ $ 4,404 $ 2,202 TELECOMMUNICATION $ $ 117 $ 59 TELECOMMUNICATION ; ; ; $ $ 769 $ 384 BIRCH COMMUNICATIONS INC 320 INTERSTATE NORTH PARKWAY, SE TELECOMMUNICATION $ $ 369 $ 185 ATLANTA, GA BLACK HILLS ENERGY BOONE COUNTY PSD BOONE RALEIGH PSD BRISTOL TENNESSEE ESSENTIAL SERVICES BUCHANAN COUNTY PUBLIC SERVICE AUTHORITY 380 MADISON AVE # 23 NEW YORK, NY TOWN SQ DANVILLE, WV COAL RIVER RD SYLVESTER, WV VOLUNTEER PARKWAY BRISTOL, TN OLD BENNS BRANCH ROAD OAKWOOD, VA ELECTRIC / NATURAL GAS $ $ 12,146 $ 6,073 WATER / SEWAGE / GAS 6308; 3636 $ $ 124 $ 62 WATER / SEWAGE / GAS ; ; ; ; ; ; $ $ 2,179 $ 1,090 ELECTRIC / CABLE / PHONE / INTERNET $ $ 769 $ 384 WATER ; $ $ 291 $ 146 Page 2 of 10

19 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 19 of 44 ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) BVU AUTHORITY LEE HIGHWAY BRISTOL, VA WATER / SEWER / ELECTRIC / INTERNET / PHONE / DATA / WATER ; ; ; $ 145,000 $ 45,685 $ C & M WASTE WATER SERVICE LLC CANNONSBURG WATER CASTLEWOOD WATER & SEWAGE AUTHORITY 108 BERDINE RD NEW FREEPORT, PA JOLLYTOWN RD NEW FREEPORT, PA CANNONSBURG RD ASHLAND, KY WATER LANE ST. PAUL, VA WASTE Unknown $ $ 2,748 $ 1,374 WATER & SEWER $ $ 54 $ 27 WATER & SEWER ; $ $ 97 $ 49 CENTURYLINK 100 CENTURYLINK DRIVE MONROE, LA TELECOMMUNICATION 35469; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; or 2I720000; or ; B; B; B; B; B; P M; P M; P M; P M; P M; P M; P M $ $ 127,966 $ 63,983 CINCINNATI BELL 221 E 4TH ST #7 CINCINNATI, OH CISCO WEBEX LLC 235 COMMERCE DR CHICAGO, IL CITY OF GILLETTE 201 E. 5TH STREET GILLETTE, WY CLEARWAVE 2 VINE ST COMMUNICATIONS HARRISBURG, IL COLANE CABLE TV INC 8274 JERRY W HWY OMAR, WV COLUMBIA GAS OF KENTUCKY 2001 MERCER RD LEXINGTON, KY COLUMBIA GAS OF 121 CHAMPION WAY STE 100 PENNSYLVANIA INC CANONSBURG, PA COMCAST COMED COX COMMUNICATIONS CRYSTALLINE TECHNOLOGY LLC ONE COMCAST CENTER PHILADELPHIA, PA S DEARBORN ST 48TH FLOOR CHICAGO, IL LAKE HEARN DR NE ATLANTA, GA EASTGATE AVE MONESSEN, PA TELECOMMUNICATION $ $ 175 $ 88 TELECOMMUNICATION $ $ 1,395 $ 697 ELECTRIC / WATER & SEWER $ $ 1,484 $ 742 TELECOMMUNICATION $ $ 506 $ 253 TELECOMMUNICATION ; ; ; $ $ 258 $ 129 GAS $ 19,704 $ 290 $ GAS $ $ 280 $ 140 TELECOMMUNICATION ; ; ; ; ; ; ; ; ; or ; ; ; ; ; ; ; $ $ 1,739 $ 869 ELECTRIC $ $ 1,153 $ 577 TV / PHONE / INTERNET $ $ 319 $ 160 TELECOMMUNICATION 451 $ $ 87 $ 44 Page 3 of 10

20 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE CUMBERLAND VALLEY ELECTRIC CUMBERLAND WATER WORKS DIAL COMMUNICATIONS INC 6219 N US HWY 25 E GRAY, KY KINGDOM COME DR CUMBERLAND, KY PO BOX 3588 WISE, VA Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 20 of 44 ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) ELECTRIC $ 75,000 $ 128,360 $ WATER 1213 $ $ 238 $ 119 TELECOMMUNICATION 1118; ; ; ; ; ; ; $ $ 161 $ 81 DICKENSON COUNTY PUBLIC SERVICE AUTHORITY 293 CLINTWOOD MAIN STREET CLINTWOOD, VA WATER & WASTEWATER SERVICES ; ; ; ; ; ; ; ; $ $ 2,811 $ 1,406 DIRECTV DOMINION HOPE EARTHLINK BUSINESS EAST DUNKARD WATER ASSN EASTERN ELECTRIC EMERY TELCOM 2330 EAST IMPERIAL HIGHWAY EL SEGUNDO, CA TREDEGAR STREET RICHMOND, VA BEAUMONT CENTRE CIR NO 375 BIRMINGHAM, AL SOUTH EIGHTY EIGHT ROAD DILLINER, PA RIVIERA RD MT. NEBO, WV EAST HWY 29 ORANGEVILLE, UT TELECOMMUNICATION ; ; ; ; ; $ $ 496 $ 248 NATURAL GAS ; ; ; ; ; $ $ 1,005 $ 502 TELECOMMUNICATION $ $ 249 $ 124 WATER 7995; 9505; 9500 $ $ 590 $ 295 ELECTRIC ; ; ; ; ; ; ; ; $ $ 1,855 $ 928 TELECOMMUNICATION $ $ 276 $ 138 FIRST ENERGY SOLUTIONS 76 S MAIN ST AKRON, OH ELECTRIC ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 1,087,012 $ 543,506 FLATWOODS CANOE RUN PSD WATER FRANKLIN TOWNSHIP SEWER AUTHRTY 406 MAIN ST SUTTON, WV ROLLING MEADOWS RD WAYNESBURG, PA WATER / SEWAGE / GAS ; $ $ 229 $ 114 WASTEWATER ; ; $ $ 12,256 $ 6,128 Page 4 of 10

21 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 21 of 44 ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) FRONTIER COMMUNICATIONS CORPORATION 3 HIGH RIDGE PARK STANFORD, CT TELECOMMUNICATION ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 81,042 $ 40,521 GEARHEART COMMUNICATIONS GLOBAL CROSSING CONFERENCING 20 LAYNESVILLE RD HAROLD, KY ALPHA PL ST LOUIS, MO TELECOMMUNICATION 1099; 1111; 4311; 11533; 11540; 11953; 13880; ; ; ; ; ; ; ; ; ; ; or 1099; ; ; ; ; $ $ 964 $ 482 TELECOMMUNICATION ; ; ; ; $ $ 863 $ 431 GREGG EXCAVATING & SANITATION VETERANS MEMORIAL HWY REEDSVILLE, WV SANATATION (PORTABLE TOILETS) ; $ $ 93 $ 47 HUGHES NETWORK SYSTEMS LLC ILLINOIS AMERICAN WATER COMPANY 535 CHESTNUT RD RM 300 CHICAGO, IL NORTH WATER WORKS DRIVE BELLEVILLE, IL E. MAIN ST. JOHNSON CITY UTILITY SYSTEM JOHNSON CITY, TN KANAWHA PUBLIC SERVICE PO BOX 8 DISTRICT CHEYLAN, WV TELECOMMUNICATION DSS ; DSS ; SME01409; SME03005; SME22366 $ $ 578 $ 289 WATER / SEWER / PRIVATE HYDRANT / FIRE SERVICE ; ; ; $ $ 480 $ 240 WATER $ $ 28 $ 14 WATER / SEWAGE / GAS ; $ $ 235 $ 117 Page 5 of 10

22 UTILITY PROVIDER UTILITY PROVIDER ADDRESS TYPE OF SERVICE Case Doc 17 Filed 08/03/15 Entered 08/03/15 09:15:41 Desc Main Document EXHIBIT Page A 22 of 44 ACCOUNT NUMBER (IF KNOWN) SECURITY DEPOSIT OR BOND AVERAGE MONTHLY SPEND ADEQUATE ASSURANCE ( =AVERAGE MONTHLY SPEND/2) KENTUCKY POWER COMPANY 490 JUSTELL BRIDGE RD BETSY LAYNE, KY ELECTRIC ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 548,807 $ 274, W BROADWAY KENTUCKY UTILITIES COMPANY LOUISVILLE, KY KEY TELEPHONE & SECURITY 811 E. MAIN ST. OAK HILL, VA LAVALETTE PSD 5308 WV 152 LAVALETTE, WV LETCHER CO SOLID WASTE 2157 HWY 119 N DEPT WHITESBURG, KY LOGAN COUNTY P S D 41 ARMORY RD LOGAN, WV LUMOS NETWORKS ONE LUMOS PLAZA WAYNESBORO, VA ELECTRIC ; ; ; ; ; ; ; $ 232,500 $ 262,995 $ TELECOMMUNICATION 1061; 1105 $ $ 16,600 $ 8,300 WATER / SEWAGE / GAS $ $ 897 $ 448 SANITATION $ $ 519 $ 260 WATER / SEWAGE / GAS TELECOMMUNICATION ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 4,790 $ 2,395 $ $ 5,900 $ 2,950 LUSK DISPOSAL SERVICE INC 1121 FRONTAGE RD PRINCETON, WV SANITATION / DUMPSTER RENTAL ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 122,248 $ 61,124 M2M DATA CORPORATION MATEWAN WATER & SEWER MATHESON TRI GAS INC MCDOWELL COUNTY PUBLIC MINGO COUNTY PSD MOBIL SATELLITE TECHNOLOGIES 8668 CONCORD CENTER DR ENGLEWOOD, CO MCCOY ALLEY MATEWAN, WV ALLEN RD #302 BASKING RIDGE, NJ HC 31, BOX 436J WELCH, WV RIVERSIDE DR NAUGATUCK, WV SCENIC PKWY CHESAPEAKE, VA TELECOMMUNICATION ALPHAN $ $ 433 $ 216 WATER & SEWER ; $ $ 103 $ 51 SUPPLIER OF GASES AND GAS HANDLING EQUIPMENT ; ; ; ; ; ; ; ; $ $ 77,933 $ 38,966 WATER / SEWAGE / GAS 5496 $ $ 2,088 $ 1,044 WATER / SEWAGE / GAS ; ; ; ; $ $ 1,293 $ 647 TELECOMMUNICATION ; $ $ 703 $ 352 MOBILE & NETWORK COMMUNICATIONS INC 3995 MORNING STAR CIR LEBANON, VA TELECOMMUNICATION ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 922 $ 461 MONPOWER MORGANTOWN UTILITY BOARD FIRSTENERGY CORP. 76 SOUTH MAIN STREET AKRON, OH GREEN BAG RD MORGANTOWN, WV ELECTRIC ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; $ $ 481,071 $ 240,535 WATER & SEWER $ $ 10 $ 5 Page 6 of 10