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UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF MASSACHUSETTS

EASTERN DIVISION____________________________________

)

In re: ))NEW ENGLAND COMPOUNDING ) CHAPTER 11PHARMACY, 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)1of 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 Companys 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

1 Capitalized terms not otherwise defined herein shall retain the meanings ascribed to them in the Motion.

Case 12-19882 Doc 4-3 Filed 12/21/12 Entered 12/21/12 18:15:47 Desc ProposedOrder (Final) Page 1 of 4

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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. The Motion is GRANTED on a final basis.

2. 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 Companys 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 onaccount of the commencement of its bankruptcy case or any unpaidprepetition charges, or (b) request payment of a deposit or receipt of othersecurity in connection with any unpaid prepetition charges.


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(ii) 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 isentered, upon each of the Utility Companies identified in Exhibit A.

(iii) 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 ofsuch Utility Company (the Added Utility Company), and shall promptlyserve such Added Utility Company with a copy of the Motion, and thisFinal Order, as applicable (each such service, a Supplemental Service).

(iv) Any Utility Company may request additional adequate assurance ofpayment (an Additional Assurance Request) by submitting a writtenrequest to proposed counsel to the Company, Murtha Cullina LLP.

(v) Any Additional Assurance Request must (a) be in writing; (b) set forth thelocation at which utility services are provided; (c) include a summary of

the Companys payment history relevant to the affected account(s),including any security deposits or other prepayments or assurancespreviously provided by the Company; (d) describe in sufficient detail thereason(s) why the treatment afforded pursuant to the procedures set forthin the Motion does not constitute satisfactory adequate assurance ofpayment; and (e) include a proposal for what would constitute adequateassurance of payment from the Company, along with an explanation ofwhy such proposal is considered reasonable.

(vi) If a Utility Company makes an Additional Assurance Request that theCompany believes is reasonable, the Company shall be authorized tocomply, in its sole discretion, with such request without further order ofthis Court.

(vii) If the Company believes that a Utility Companys Additional AssuranceRequest is unreasonable, the Company will attempt to resolve the matterconsensually with the Utility Company and if a resolution cannot bereached, will schedule the matter to be heard at the next regularlyscheduled omnibus hearing date to determine whether additional assuranceof payment to such Utility Company is necessary (a DeterminationHearing). If the Utility Company reaches an agreement with theCompany before the Determination Hearing, such agreement shall bedeemed to constitute adequate assurance of payment that is satisfactory tothe Utility Company.

(viii) Pending resolution of a Utility Companys Additional Assurance Request,such party will be prohibited from altering, refusing, or discontinuingservice to the Company or otherwise discriminating against the Company.


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(ix) Unless a Utility Company makes an Adequate Assurance Request, suchUtility Company will be deemed to have received, by virtue of the UtilityDeposit Account, adequate assurance of payment in accordance withsection 366(c)(l)(A)(vi) of the Bankruptcy Code.

(x) Based on the establishment of the Utility Deposit Account, a UtilityCompany will be deemed to have adequate assurance of payment unlessand until a future order of this Court is entered requiring further assuranceof payment.

5. 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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NEC 4 p4