Case KRH Doc 2247 Filed 04/26/16 Entered 04/26/16 17:22:12 Desc Main Document Page 1 of 7

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1 Document Page 1 of 7 JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) David G. Heiman (admitted pro hac vice) Carl E. Black (admitted pro hac vice) Thomas A. Wilson (admitted pro hac vice) 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 (KRH) (Jointly Administered) STIPULATION AND AGREED ORDER GRANTING LIMITED RELIEF FROM THE AUTOMATIC STAY TO CERTAIN LITIGATION CLAIMANTS This Stipulation and Agreed Order is entered into by and between (a) the above-captioned debtors and debtors in possession (collectively, the "Debtors") and (b) Alfred Belcher, Glenna Belcher, Charles Hatfield, Jeanette Hatfield, Dan Kinder, Betty Kinder, Buford May, Loretta May, Claude Sammons and Sue Sammons (collectively, the "Plaintiffs" and, collectively with the Debtors, the "Parties"). RECITALS A. On August 3, 2015 (the "Petition Date"), the Debtors commenced reorganization cases in this Court by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"). By order of the Court (Docket NAI v2

2 Document Page 2 of 7 No. 129), the Debtors' chapter 11 cases have been consolidated for procedural purposes only and are being jointly administered. B. Prior to the Petition Date, on January 22, 2010, Plaintiffs Alfred Belcher and Glenna Belcher commenced an action in the Circuit Court of Mingo County, West Virginia (the "West Virginia Court") against Debtors Alpha Natural Resources, Inc. ("ANR"), Nicewonder Contracting, Inc., Premium Energy, LLC (successor by merger of White Flame Energy, Inc.) ("Premium Energy") and Brooks Run South Mining, LLC (f/k/a Cobra Natural Resources) ("Brooks Run"), and one non-debtor defendant, styled as Belcher v. Alpha Natural Resources, Inc., et al., Case No. 10-C-35 (the "Belcher Action"). C. Prior to the Petition Date, on March 16, 2010, Plaintiffs Buford May and Loretta May commenced an action in the West Virginia Court against Debtors Alpha Natural Resources Services, LLC ("ANR Services" and, collectively with ANR, Premium Energy and Brooks Run, the "Debtor Defendants"), Premium Energy and Brooks Run, and two non-debtor defendants, styled as May v. Equitable Production Co., et al., Case No. 10-C-90 (the "May Action"). D. Prior to the Petition Date, on March 16, 2010, Plaintiffs Jeanette Hatfield and Charles Hatfield commenced an action in the West Virginia Court against Debtors ANR Services, Premium Energy and Brooks Run, and two non-debtor defendants, styled as Hatfield v. Equitable Production Co., et al., Case No. 10-C-88 (the "Hatfield Action"). E. Prior to the Petition Date, on August 31, 2010, Plaintiffs Betty Kinder and Dan Kinder commenced an action in the West Virginia Court against Debtors ANR, Nicewonder, Premium Energy and Brooks Run, and two non-debtor defendants, styled as Kinder v. Equitable Production Co., et al., Case No. 10-C-272 (the "Kinder Action"). NAI v2-2-

3 Document Page 3 of 7 F. Prior to the Petition Date, on May 9, 2011, Plaintiffs Claude Sammons and Sue Sammons commenced an action in the West Virginia Court against Debtors ANR, Nicewonder, Premium Energy and Brooks Run, and two non-debtor defendants, styled as Sammons v. Equitable Production Co., et al., Case No. 11-C-292 (the "Sammons Action" and, collectively with the Belcher Action, the May Action, the Hatfield Action and the Kinder Action, the "Prepetition Actions"). The Prepetition Actions remain pending, and have been consolidated in the West Virginia Court under the caption Blankenship, et al. v. Alpha Natural Resources Services, et al., Case No. 10-C-33. G. In the Prepetition Actions, the Plaintiffs seek compensatory and injunctive relief, and punitive damages, in connection with flood damage allegedly related to mining activities conducted by the Debtor Defendants. H. The Debtor Defendants are insured under one or more (a) commercial general liability insurance policies issued by National Union Fire Insurance Company of Pittsburgh, PA, (b) commercial umbrella liability policies issued by Westchester Fire Insurance Company and (c) any other applicable insurance policy (collectively, the "Insurance"), which Insurance may provide coverage for the claims and causes of action asserted against the Debtor Defendants in the Prepetition Actions. I. On March 20, 2016, the Plaintiffs filed the Motion for Relief From Stay to Allow Civil Litigation to Proceed (Docket No. 1815) (the "Lift Stay Motion"). By the Lift Stay Motion, the Plaintiffs request relief from the automatic stay imposed in these chapter 11 cases pursuant to section 362 of the Bankruptcy Code to continue the prosecution of the Prepetition Actions against the Debtor Defendants in the West Virginia Court. NAI v2-3-

4 Document Page 4 of 7 J. The Debtors and the Plaintiffs have agreed to the limited modification of the automatic stay as set forth in this Stipulation and Agreed Order. STIPULATION NOW, THEREFORE, it is hereby stipulated and agreed by and between the Parties through their undersigned counsel: 1. The automatic stay imposed by section 362 of the Bankruptcy Code is modified solely to the extent necessary to permit the Parties to fully prosecute and defend against the Prepetition Actions in the West Virginia Court and to take such actions as are necessary or appropriate to exercise their respective rights of appeal, until such rights have been exhausted; provided, however, that, as to the Debtors, the Debtors' chapter 11 estates, or any of their current or former directors, officers, agents, representatives or employees (collectively, the "Covered Parties"), the Plaintiffs may enforce or execute upon any settlement, judgment entered by a court of competent jurisdiction or other disposition of the underlying claims in the Prepetition Actions only by pursuing payment solely from available Insurance coverage for the Debtor Defendants, the other Debtors and/or the Covered Parties and/or from another non-debtor third party who may be liable. 2. The Plaintiffs shall not otherwise engage in any efforts to collect upon any settlement, judgment or other disposition of the underlying claims in the Prepetition Actions from the Debtors or the other Covered Parties, and the Debtors and the other Covered Parties shall not be required to make any distribution of property to the Plaintiffs on account of any settlement, judgment or other disposition of the underlying Prepetition Actions. The Plaintiffs shall not file a proof of claim against any Debtor related in any way to the Prepetition Actions in these chapter 11 cases. NAI v2-4-

5 Document Page 5 of 7 3. The Lift Stay Motion shall be deemed withdrawn upon the Court's entry of this Stipulation and Agreed Order. 4. Nothing herein shall be deemed an admission by any of the Debtor Defendants or any other Debtor of any of the allegations asserted by the Plaintiffs in the Prepetition Actions nor a waiver of any rights, claims, arguments, remedies or defenses that may be available to any party in the Prepetition Actions. Neither this Stipulation and Agreed Order, nor any actions taken pursuant hereto, shall constitute evidence admissible against the Parties in any action or proceeding other than one to enforce the terms of this Stipulation and Agreed Order. 5. Nothing herein (a) alters, amends or otherwise modifies the terms and conditions of any of the Debtors' insurance policies or related agreements, (b) creates a direct right of action by the Plaintiffs against any of the Debtors' insurers, (c) precludes or limits, in any way, the right of any insurer to contest and/or litigate the existence, primacy and/or scope of available coverage under any alleged applicable policy or to otherwise assert any defenses to coverage or (d) constitutes a determination or admission that insurance coverage exists with respect to the Plaintiffs' claims. 6. Any modifications, alterations or amendment to this Stipulation and Agreed Order in whole or in part shall be subject to further approval of the Court. No statement made or action taken in the negotiation of this Stipulation and Agreed Order may be used by any party for any purpose whatsoever. 7. This Stipulation and Agreed Order may be signed in counterpart originals. 8. The Court shall retain jurisdiction to hear and determine all matters arising from the implementation, interpretation and/or enforcement of this Stipulation and Agreed Order. NAI v2-5-

6 Document Page 6 of 7 The Parties agree that this Court shall have exclusive jurisdiction to apply and enforce the terms of this Stipulation and Agreed Order. 9. The 14-day stay otherwise applicable pursuant to Rule 4001(a)(3) of the Federal Rules of Bankruptcy Procedure is hereby waived. Dated: March 30, 2016 Richmond, Virginia /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) Respectfully submitted, /s/ Bruce W. White Bruce W. White (VSB No ) Bruce W. White, P.C Mayland Drive, Suite 206 Richmond, Virginia Telephone: (804) bruce.w.white@gmail.com ATTORNEY FOR THE PLAINTIFFS David G. Heiman (admitted pro hac vice) Carl E. Black (admitted pro hac vice) Thomas A. Wilson (admitted pro hac vice) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION Apr Dated:, 2016 Richmond, Virginia /s/ Kevin R. Huennekens UNITED STATES BANKRUPTCY JUDGE Entered on Docket:4/26/16 NAI v2-6-

7 Document Page 7 of 7 WE ASK FOR THIS: 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 (admitted pro hac vice) Carl E. Black (admitted pro hac vice) Thomas A. Wilson (admitted pro hac vice) JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio Telephone: (216) Facsimile: (216) Counsel to the Debtors and Debtors in Possession CERTIFICATION OF ENDORSEMENT UNDER LOCAL BANKRUPTCY RULE (C) Pursuant to Local Bankruptcy Rule (C), I hereby certify that the foregoing proposed order has been endorsed by or served upon all necessary parties. /s/ Henry P. (Toby) Long, III NAI v2