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75364558.4
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: LUCKY’S MARKET PARENT COMPANY, LLC, et al.,1
Debtors.
Chapter 11 Case No. 20-10166 (JTD) (Jointly Administered) Objection Deadline: December 7, 2020 at 4:00 p.m. (ET) Hearing Date: December 14, 2020 at 10:00 a.m. (ET)
THIRD MOTION OF DEBTORS FOR ENTRY OF A SEVENTH ORDER EXTENDING
THE EXCLUSIVITY PERIODS FOR THE FILING OF A CHAPTER 11 PLAN AND SOLICITATION OF ACCEPTANCES THEREOF
The above-captioned debtors and debtors in possession (the “Debtors”) hereby move (the
“Motion”) pursuant to section 1121(d) of title 11 of the United States Code (the “Bankruptcy
Code”), for entry of an order substantially in the form attached hereto as Exhibit A (the
“Proposed Order”) extending the periods during which the Debtors have the exclusive right to
file a chapter 11 plan (the “Exclusivity Period”) and to solicit acceptances thereof (the
“Exclusive Solicitation Period”) through and including March 1, 2021, and April 28, 2021,
respectively. In further support of the Motion, the Debtors, by and through their undersigned
counsel, respectfully represent:
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are Lucky’s Market Parent Company, LLC (2055), Lucky’s Farmers Market Holding Company, LLC (5480), Lucky’s Market Operating Company, LLC (7064), LFM Stores LLC (3114), Lucky’s Farmers Market, LP (0828), Lucky’s Farmers Market Resource Center, LLC (7711), Lucky’s Market Holding Company 2, LLC (0607), Lucky’s Market GP 2, LLC (9335), Lucky’s Market 2, LP (8384), Lucky’s Market of Longmont, LLC (9789), Lucky’s Farmers Market of Billings, LLC (8088), Lucky’s Farmers Markets of Columbus, LLC (3379), Lucky’s Farmers Market of Rock Hill, LLC (3386), LFM Jackson, LLC (8300), Lucky’s Farmers Market of Ann Arbor, LLC (4067), Lucky’s Market of Gainesville, LLC (7877), Lucky’s Market of Bloomington, LLC (3944), Lucky’s Market of Plantation, LLC (4356), Lucky’s Market of Savannah, GA, LLC (1097), Lucky’s Market of Traverse, City, LLC (2033), Lucky’s Market of Naples, FL, LLC (8700), Sinoc, Inc. (0723), Lucky’s Farmers Market of Ellisville, LLC (2875), and Lucky’s Farmers Market of Lexington, KY, LLC (3446).
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PRELIMINARY STATEMENT
1. Before the Petition Date (as defined below), the Debtors operated small format
grocery stores that offered affordable organic and locally-grown fruits and vegetables, top-
quality, naturally raised meats and seafood, and fresh, daily prepared foods. The Debtors’
emphasized carrying the highest-quality products at the lowest prices, with the mission of
providing “Organic for the 99%”. Their stores offered a broad range of grocery items through the
Debtors’ “L” private label at great value, which had no artificial colors, flavors or preservatives.
2. By the end of 2019, the Debtors expanded to thirty-nine (39) stores across ten
states (each, a “Store”, and collectively, the “Stores”). As of the Petition Date, the Debtors
leased thirty-seven (37) Stores, and of those, Kroger entered into various guaranties of the
Debtors’ liabilities under thirty-one (31) store leases.
3. The Debtors seek entry of an order extending the Exclusivity Period and
Exclusive Solicitation Period by an additional ninety (90) days to allow the Debtors to continue
soliciting acceptance of the Plan and confirming the Plan (as defined below).
JURISDICTION AND VENUE
4. This Court has jurisdiction to consider this Motion under 28 U.S.C. §§ 157 and
1334 and the Amended Standing Order of Reference from the United States District Court for
the District of Delaware, dated as of February 29, 2012. This is a core proceeding under 28
U.S.C. § 157(b). Under Local Rule 9013-1(f), the Debtors consent to entry of a final order under
Article III of the United States Constitution. Venue of these cases and the Motion in this district
is proper under 28 U.S.C. §§ 1408 and 1409.
5. The statutory predicate for the relief requested herein is Bankruptcy Code section
1121(d).
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PROCEDURAL BACKGROUND
6. On January 27, 2020 (the “Petition Date”), each of the Debtors filed a voluntary
petition in this Court commencing a case for relief under chapter 11 of the Bankruptcy Code and
on March 3, 2020, Lucky’s Farmers Market of Ellisville, LLC and Lucky’s Farmers Market of
Lexington, KY, LLC each filed a voluntary petition for relief under chapter 11 of the Bankruptcy
Code (the “Chapter 11 Cases”). The factual background regarding the Debtors, including their
business operations, their capital and debt structures, and the events leading to the filing of the
Chapter 11 Cases, is set forth in detail in the Declaration of Andrew T. Pillari, Chief Financial
Officer of Lucky’s Market Parent Company, LLC, in Support of Chapter 11 Petitions and First
Day Pleadings [Docket No. 47] (the “First Day Declaration”), which is fully incorporated
herein by reference.
7. As described in greater detail within the First Day Declaration, the Kroger Co., an
Ohio corporation (“Kroger” or the “Prepetition Secured Lender”) acquired a membership
interest in the Debtors in April 2016, and beginning in September 2016, extended credit on
secure basis to the Debtors.
8. The Debtors have continued to manage and operate their business as debtors in
possession pursuant to Bankruptcy Code sections 1107 and 1108. No trustee or examiner has
been requested in the Chapter 11 Cases.
9. On February 4, 2020, the Official Committee of Unsecured Creditors (the
“Committee”) was appointed by the Office of the United States Trustee [Docket No. 94].
SALE ORDERS
10. Between January 30, 2020 and February 13, 2020, the Debtors filed seven (7)
motions, requesting orders of the Court to, among other things, approve the bid procedures and
schedule an auction and sale hearing with respect to six (6) stalking horse agreements and
Case 20-10166-JTD Doc 1281 Filed 11/30/20 Page 3 of 27
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remaining assets not subject to a stalking horse agreement, including, without limitation, certain
of the Debtors’ leases. See Docket No. 63 (the “Publix Sale Motion”); Docket No. 71 (the
“Aldi Sale Motion”); Docket No. 73 (the “LMAC Sale Motion”); Docket No. 72 (the “Seabra
Sale Motion”); Docket No. 97 (the “Winn-Dixie Sale Motion”); Docket No. 98 (the “Alvarez
Sale Motion,” together with the Publix Sale Motion, the Aldi Sale Motion, the LM Bidding
Procedures Motion, the Seabra Sale Motion, and the Winn-Dixie Sale Motion, the “Stalking
Horse Sale Motions”); and Docket No. 186 (the “Global Sale Motion”, together with the
Stalking Horse Sale Motions, the “Sale Motions”).
11. Between April 3, 2020 and May 11, 2020, the Court entered orders approving all
of the transactions contemplated by the successful bids and approved by the special committee of
the board of manager of the Debtors. See Docket No. 569 (the “Dave’s Supermarket Sale
Order”); Docket No. 574 (the “Schnuck Markets Sale Order”); Docket No. 589 (the “Oryana
Sale Order”); Docket No. 590 (the “LM Acquisitions Sale Order”); Docket No. 618 (the
“Seabra Sale Order”); Docket No. 619 (the “Dollar General Sale Order”); and Docket No.
629 (the “Winn-Dixie Sale Order”); Docket No. 659 (the “Publix Sale Order”); Docket No.
673 (the “Aldi Sale Order”); Docket No. 702 (the “Alvarez Sale Order”); Docket Nos. 706 and
715 (the “Publix/Clermont Sale Order”). Certain of the foregoing Court-approved sales have
closed; however, the Debtors still have Publix/Clermont and ALDI/Gateway Shoppes to close.
12. On July 10, 2020, the Court entered an Order (I) Approving Bid Procedures in
Connection with the Potential Sale of Certain of the Debtors’ Assets, (II) Scheduling an Auction
and a Sale Hearing, (III) Approving the Form and Manner of Notice Thereof, (IV) Authorizing
the Debtors to Enter into the Stalking Horse Agreement, (V) Approving Bid Protections, (VI)
Approving Procedures for the Assumption and Assignment of Contracts and Leases, and (VII)
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Granting Related Relief (M.B.D. Properties, LLC) [Docket No. 864], which related to Panama
City assets (the “M.B.D. Bid Procedures Order”).
13. On August 12, 2020, the Court entered an Order (I) Authorizing the Private Sale
of Certain of the Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances, and
Interests, (II) Authorizing the Assumption and Assignment of Contracts and Leases, and (III)
Granting Related Relief (VW Credit Leasing, LTD) [Docket No. 930] (the “Motor Vehicle
Private Sale Order”), which approved the sale of a Motor Vehicle Asset, a 2015 GMC Yukon
and the assignment of Motor Vehicle Leases, for a 2019 Audi S5 and a 2019 Audi Q8, to the
Purchaser, Bo Sharon.
14. On August 18, 2020, the Court entered an Order (I) Approving the Sale of Certain
of the Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances, and Interests, and
(II) Granting Related Relief (M.B.D. Properties, LLC) [Docket No. 951], which related to
Panama City assets (the “M.B.D. Sale Order”).
15. On August 24, 2020, the Debtors filed a Motion for Entry of an Order (I)
Authorizing the Private Sale of Certain of the Debtors’ Assets Free and Clear of All Liens,
Claims, Encumbrances and Interests, (II) Authorizing the Assumption and Assignment of
Contracts and Leases, and (III) Granting Related Relief (Aldi (Florida) LLC) [Docket No. 975]
(the “Aldi Private Sale Motion”). Initially, the Aldi Private Sale Motion related to two Kroger
guaranteed leases: the Cape Coral Lease and the Clearwater Lease.2 On October 22, 2020, the
Court entered an Order Approving Stipulation Between Debtor Lucky’s Market Operating
Company, LLC and SB-VETS-1, LLC [Docket No. 1138], which approved the stipulation
2 SB-Vets-1, LLC (the “Cape Coral Landlord”), along with the Debtors are parties to a lease dated March 20, 2018, as amended, related to 2605 Santa Barbara Blvd., Cape Coral, Florida (the “Cape Coral Lease”). Gulf to Bay LM, LLC, as successor in interest to Dixit Properties, LLC (the “Clearwater Landlord”) along with the Debtors are parties to a lease dated June 14, 2018, as amended, related to 2150 Gulf to Bay Boulevard, Clearwater Florida 33765 (the “Clearwater Lease”).
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between the Debtors and Cape Coral Landlord memorializing the rejection and termination of
the Cape Coral Lease as of October 14, 2020. The Aldi Private Sale Motion as it relates to the
Clearwater Landlord is scheduled to be heard on November 24, 2020, subject to further
adjournment by agreement of the parties.
CLAIM RECONCILIATION
16. On March 25, 2020, the Court entered an Order (I) Establishing the Bar Dates for
Filing Proofs of Claim, Including Section 503(b)(9) Claims and (II) Approving Form and
Manner of Notice Thereof [Docket No. 507] (the “Bar Date Order”).
17. The Bar Date Order established April 24, 2020, as the bar date deadline for all
persons and entities holding or asserting a claim, including section 503(b)(9) administrative
priority claims against the Debtors arising on or before the Petition Date (the “General Bar
Date”) to file proofs of claim in these Chapter 11 Cases and July 27, 2020, as the deadline for
governmental units to file proofs of claim in these Chapter 11 Cases (the “Governmental Bar
Date”). The Bar Date Order established the later of the General Bar Date or twenty-one (21)
days after a claimant is served with notice that the Debtors amended the Schedules, reducing,
deleting, or changing the status of a Claim in the Schedules to file a proof of claim with respect
to such Claim (the “Amended Schedule Bar Date”). Further, the Bar Date Order established the
latest of the General Bar Date, thirty (30) days after the date of the entry of any order authorizing
the rejection of such executory contract or unexpired lease, or thirty (30) days after the effective
date of the rejection of such executory contract or unexpired lease, including pursuant to 11
U.S.C. § 365(d)(4), as the date by which a proof of claim form relating to the Debtors’ rejection
of such executory contract or unexpired lease must be filed (the “Rejection Claim Bar Date”).
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18. On May 22, 2020, the Debtors filed the First (Non-Substantive) Omnibus
Objection to Certain (I) Amended Claims and (II) Duplicative Claims [Docket No. 752] (the
“First Omnibus Objection”) and the Second (Substantive) Omnibus Objection to Certain (I)
Misclassified Claims, (II) Modified Claims, and (III) No Liability Claims [Docket No. 753] (the
“Second Omnibus Objection”).
19. On June 22, 2020, the Court entered an Order Granting the First Omnibus
Objection [Docket No. 815] (the “First Omnibus Order”) and an Order Granting the Second
Omnibus Objection [Docket No. 816] (the “Second Omnibus Order”).
20. On June 26, 2020, the Debtors filed the Third (Non-Substantive) Omnibus
Objection to Certain (I) Amended Claims and (II) Duplicative Claims [Docket No. 835] (the
“Third Omnibus Objection”) and the Fourth (Substantive) Omnibus Objection to Certain (I)
Misclassified Claims, (II) Modified Claims, and (III) No Liability Claims [Docket No. 836] (the
“Fourth Omnibus Objection”).
21. On July 23, 2020, the Court entered an Order Granting the Third Omnibus
Objection [Docket No. 894] (the “Third Omnibus Order”) and an Order Granting the Fourth
Omnibus Objection [Docket No. 895] (the “Fourth Omnibus Order”).
22. On July 28, 2020 the Debtors filed the Fifth (Non-Substantive) Omnibus
Objection to Certain (I) Amended Claims and (II) Duplicative Claims [Docket No. 904] (the
“Fifth Omnibus Objection”) and the Sixth Omnibus Objection to Certain (I) Misclassified
Claims, (II) Modified Claims, and (III) No Liability Claims [Docket No. 905] (the “Sixth
Omnibus Objection”).
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23. On August 24, 2020, the Court entered an Order Granting the Fifth Omnibus
Objection [Docket No. 969] (the “Fifth Omnibus Order”) and an Order Granting the Sixth
Omnibus Objection [Docket No. 970] (the “Sixth Omnibus Order”).
24. On September 14, 2020 the Debtors filed the Seventh (Substantive) Omnibus
Objection to Certain (I) Misclassified Claims, (II) Modified Claims, and (III) No Liability Claims
[Docket No. 1046] (the “Seventh Omnibus Objection”).
25. On October 14, 2020, the Court entered an Order Granting the Seventh Omnibus
Objection [Docket No. 1118] (the “Seventh Omnibus Order”)
26. On October 23, 2020, the Debtors filed the Eighth (Non-Substantive) Omnibus
Objection to Certain (I) Amended Claims and (II) Duplicative Claims [Docket No. 1140] (the
“Eighth Omnibus Objection”) and the Ninth Omnibus Objection to Certain (I) Misclassified
Claims, (II) Modified Claims, and (III) No Liability Claims [Docket No. 1141] (the “Ninth
Omnibus Objection”).
27. On November 13, 2020, the Debtors Tenth (Substantive) Omnibus Objection to
Certain (I) Amended Claims, (II) Misclassified Claims, (III) Modified Claims, and (IV) No
Liability Claims [Docket No. 1214] (the “Tenth Omnibus Objection”)
28. On November 19, 2020, the Court entered an Order Granting the Eighth Omnibus
Objection [Docket No. 1235] (the “Eighth Omnibus Order”). On November 20, 2020, the
Court entered an Order Granting the Ninth Omnibus Objection [Docket No. 1243] (the “Ninth
Omnibus Order”).
29. The Debtors expect to file additional non-substantive and substantive omnibus
claim objections to facilitate the orderly administration of the estates.
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LITIGATION
30. On February 3, 2020, Laura Forsyth, on behalf of herself and on behalf of all
others similarly situated, filed a Class Action Adversary Proceeding Complaint against the
Debtors [Adv. Pro. 20-50449; Docket No. 1] (the “WARN Act Complaint”). On April 27, 2020,
the Debtors filed an Answer to the WARN Act Complaint [Adv. Pro. 20-50449; Docket No. 6]
(the “WARN Act Answer”, and together with the WARN Act Complaint, the “WARN Act
Litigation”). On May 28, 2020, the Court entered the Scheduling Order [Adv. Pro. 20-50449;
Docket No. 12] (the “WARN Act Litigation Scheduling Order”). On July 2, 2020, the Debtors
filed a Notice of Service of Defendants’ Rule 26 Initial Disclosures [Adv. Pro. 20-50449; Docket
No. 13]. On September 3, 2020, the Court entered an Order Approving Stipulation Extending the
Deadlines set forth in the WARN Act Litigation Scheduling Order [Adv. Pro. 20-50449; Docket
No. 16]. On September 22, 2020, the Warn Act Plaintiffs filed a Motion to Allow the Plaintiff’s
Motion for (A) Class Certification, (B) Appointment of Class Representative, (C) Appointment of
Class Counsel, (D) Approval of the Form and Manner of Class Notice, and (E) Such Other and
Further Relief as this Court may Deem Appropriate [Adv. Pro. 20-50449; Docket No. 17]. The
WARN Act Litigation is on-going and set for mediation on before Ret. Judge Judith K.
Fitzgerald on December 3, 2020.
31. On April 24, 2020, ATA Forum Louisville, KY, LLC (“ATA”) filed A Motion for
Allowance of Administrative Claims under 11 U.S.C. §§ 105, 503(b), and 365(d)(3) [Docket No.
656] (the “ATA Administrative Claim Motion”). On June 17, 2020, the Debtors filed an
Objection to the ATA Administrative Claim Motion [Docket No. 805] (the “Debtors’ ATA
Objection”), the Committee filed an Objection to the ATA Administrative Claim Motion
[Docket No. 806] (the “Committee’s ATA Objection”). On July 2, 2020, ATA filed a Reply in
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support of the ATA Administrative Claim Motion [Docket No. 849] (the “ATA Reply”, and
together with the ATA Administrative Claim Motion, the Debtors’ ATA Objection, and the
Committee’s ATA Objection, the “ATA Litigation”). After robust oral and written discovery, as
well as several amendments to the evidentiary hearing schedule, the Court conducted an
extensive evidentiary hearing on November 3, 2020. Unfortunately, ATA was not able to
complete its case in chief during the full-day evidentiary hearing. The Court has assigned
December 11, 2020 at 9:00 a.m. prevailing Eastern Time as the continued evidentiary hearing
date and instructed the parties to conclude the hearing on such date.
32. On June 30, 2020, the Debtors commended an adversary proceeding by filing a
Complaint for Damages and Specific Performance against Winn-Dixie Stores, Inc. and
Southeastern Grocers, Inc. [Adv. Pro. 20-50631; Docket No. 1] (the “Bonita Springs
Complaint”). On July 30, 2020, Winn-Dixie Stores, Inc. filed an Answer to the Bonita Springs
Complaint [Adv. Pro. 20-50631; Docket No. 4] (the “Winn-Dixie Answer”). Winn-Dixie Stores,
Inc. and Southeastern Grocers, Inc. filed a Motion to Dismiss Count I as to Both Defendants and
to Dismiss Defendant Southeastern Grocers, Inc. in its Entirety for Lack of Privity of Contract
[Adv. Pro. 20-50631; Docket No. 5] (the “Winn-Dixie Motion to Dismiss” and “Southeastern
Grocers, Inc. Motion to Dismiss”) and a Memorandum of Law in Support of the Motion to
Dismiss [Adv. Pro. 20-50631; Docket No. 6] (the “Defendant’s Memorandum of Law”). On
August 20, 2020, the Debtors filed a Stipulation of Dismissal with Prejudice of Complaint Solely
Against Southeastern Grocers, Inc. [Adv. Pro. 20-50631; Docket No. 15] (“Stipulation of
Dismissal of Southeastern Grocers, Inc.”). On August 24, 2020, the Debtors filed a Notice of
Service of Initial Disclosures of Debtors [Adv. Pro. 20-50631; Docket No. 16] and an Answering
Brief in response to the Winn-Dixie Motion to Dismiss (the “Answering Brief” and together
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with the Bonita Springs Complaint, Winn-Dixie Answer, Winn-Dixie Motion to Dismiss, and
Defendant’s Memorandum of Law, the “Bonita Springs Litigation”). Winn-Dixie Stores, Inc.
filed a Notice of Service of Initial Disclosures on August 27, 2020 [Adv. Pro. 20-50631; Docket
No. 18]. On September 8, 2020, Winn-Dixie filed a Reply to the Answering Brief [Adv. Pro. 20-
50631; Docket No. 19] (the “Winn-Dixie Reply” and together with the Bonita Springs
Complaint, Winn-Dixie Answer, Winn-Dixie Motion to Dismiss, Defendant’s Memorandum of
Law, and Answering Brief the “Bonita Springs Litigation”). On September 15, 2020, the
Debtors filed a Request for Oral Argument [Adv. Pro. 20-50631; Docket No. 20]. On September
16, 2020, the Debtors filed a Notice of Completion of Briefing [Adv. Pro. 20-50631; Docket No.
21]. On September 17, 2020, the Court entered an Order Assigning Adversary Proceeding to
Mediation and Setting Mediation Deadlines [Adv. Pro. 20-50631; Docket No. 23]. The Bonita
Springs Litigation is on-going and the Debtors and Defendant are actively engaged in discovery
and awaiting the Court to rule on the Motion to Dismiss.
EXECUTORY CONTRACTS AND LEASES
33. On February 25, 2020, the Court entered an Order Extending the Deadline to
Assume or Reject Executory Contracts, Unexpired Leases and Nonresidential Real Property
[Docket No. 264] (the “Assumption or Rejection Deadline Extension Order”), which
extended the Debtors’ time to assume or reject any unexpired lease of nonresidential real
property through and including the earlier of (i) August 24, 2020, and (ii) the date of entry of an
order confirming a plan in these Chapter 11 Cases.
34. On February 25, 2020, the Court entered an Order (I) Authorizing the Rejection of
Certain Executory Contracts Effective Nunc Pro Tunc to the Petition Date, and (II) Granting
Related Relief [Docket No. 270] (the “First Omnibus Rejection Order”).
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35. On March 12, 2020, the Court entered an Order (I) Authorizing (A) the Rejection
of Certain Unexpired Leases and Contracts and (B) the Abandonment of Certain Personal
Property, if Any, Each Effective Nunc Pro Tunc to February 29, 2020 and (II) Granting Related
Relief [Docket No. 406] (the “Second Omnibus Rejection Order”).
36. On April 9, 2020, the Court entered an Order (I) Authorizing (A) the Rejection of
Certain Unexpired Leases and Contracts and (B) the Abandonment of Certain Personal
Property, if Any, Each Effective Nunc Pro Tunc to March 31, 2020 and (II) Granting Related
Relief [Docket No. 587] (the “Third Omnibus Rejection Order”).
37. On May 27, 2020, the Court entered an Order (I) Authorizing the Rejection of
Certain Executory Contracts Effective Nunc Pro Tunc to April 30, 2020 and (II) Granting
Related Relief [Docket No. 766] (the “Fourth Omnibus Rejection Order”).
38. On June 16, 2020, the Court entered an Order (I) Authorizing (A) the Rejection of
Headquarters Lease and (B) the Abandonment of Certain Personal Property, if Any, Each
Effective Nunc Pro Tunc to May 31, 2020 and (II) Granting Related Relief [Docket No. 803] (the
“Headquarters Lease Rejection Order”).
39. On July 10, 2020, the Court entered an Order (I) Authorizing (A) the Rejection of
Certain Unexpired Leases and Contracts and (B) the Abandonment of Certain Personal
Property, if Any, Each Effective Nunc Pro Tunc to June 30, 2020 and (II) Granting Related
Relief [Docket No. 865] (the “Fifth Omnibus Rejection Order”).
40. On August 12, 2020, the Court entered an Order (I) Authorizing (A) the Rejection
of Certain Executory Contracts Effective Nunc Pro Tunc to July 31, 2020 and (II) Granting
Related Relief [Docket No. 931] (the “Sixth Omnibus Rejection Motion”, and together with the
First Omnibus Rejection Order, Second Omnibus Rejection Order, Third Omnibus Rejection
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Order, Fourth Omnibus Rejection Order, and Headquarters Lease Rejection Order, and Fifth
Omnibus Rejection Order, the “Rejection Orders”).
41. During the Chapter 11 Cases, as discussed above, the Debtors sold twelve (12)
Kroger guaranteed leases. See generally Docket Nos. 574, 590, 618, 629, 659, 673, and 755.
42. On August 24, 2020, the Debtors filed a Motion for Authority (I) to Assume and
Assign Certain Unexpired Leases of Non-Residential Real Property and (II) Granting Related
Relief [Docket No. 977] (the “Kroger LM Lease Assignment Motion”). The Debtors seek to
unequivocally assign twelve (12) Kroger guaranteed leases to Kroger LM Real Estate Holdings,
LLC, an Ohio limited liability company, which is a wholly owned subsidiary of The Kroger Co.
(“Kroger LM”).3 The Kroger LM Lease Assignment Motion has been adjourned with the
affirmative agreement of all affected landlords to the hearing scheduled on December 14, 2020.
The Debtors anticipate that a consensual proposed form of order will be presented to the Court.
43. On August 25, 2020, the Court entered an Order Approving Stipulation Between
Debtor Lucky’s Market Operating Company, LLC and Boca Raton Landlord Glades 95th LLC
[Docket No. 981], which acknowledged that the Boca Raton Lease, a Kroger guaranteed lease,
was rejected on August 24, 2020.4
44. On August 25, 2020, the Court entered an Order Approving Stipulation for
Extension of Deadline for Debtors to Assume or Reject the Neptune Lease [Docket No. 982],
which extended the deadline for the Debtors to assume or reject the Neptune Lease, a Kroger
guaranteed lease, to October 23, 2020.5 On October 29, 2020, the Court entered an Order
3 Initially, the Debtors sought to assume and assign thirteen (13) lease agreement to Kroger LM; however, the Port Charlotte Lease is no longer the subject of the Kroger LM Lease Assignment Motion, as fully described herein. 4 Glades 95th LLC (the “Boca Raton Landlord”) and the Debtor Lucky’s Market Operating Company, LLC are parties to a lease dated May 14, 2018, as amended, related to a first class grocery store at the intersection of Glades Road and U.S. Highway 441, Boca Raton, Florida (the “Boca Raton Lease”). 5 Neptune Beach FL Realty LLC (the “Neptune Landlord”) and the Debtors are parties to a lease dated August 14, 2018, as amended, related to 580 Atlantic Blvd., Neptune, Florida 32266 (the “Neptune Lease”).
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Approving Second Stipulation for Extension of Deadline for Debtors to Assume or Reject the
Neptune Lease [Docket No. 1151], which extended the deadline to assume or reject the Neptune
Lease to December 22, 2020.
45. On August 25, 2020, the Court entered an Order Approving Stipulation for
Extension of Deadline for Debtors to Assume or Reject the Bradenton Lease [Docket No. 980],
which extended the deadline for the Debtors to assume or reject the Bradenton Lease, a Kroger
guaranteed lease, to September 23, 2020.6 On September 23, 2020, the Court entered the Order
Approving Second Stipulation for Extension of Deadline for Debtors to Assume or Reject the
Bradenton Lease [Docket No. 1077], which extended the deadline to October 8, 2020. On
October 8, 2020, the Court entered an Order Approving Third Stipulation for Extension of
Deadline for Debtors to Assume or Reject the Bradenton Lease [Docket No. 1102], which
extended the deadline to October 16, 2020. On October 16, 2020, the Court entered an Order
Approving Fourth Stipulation for Extension of Deadline for Debtors to Assume or Reject the
Bradenton Lease [Docket No. 1127], which further extended the deadline to October 23, 2020.
On October 29, 2020, the Court entered an Order Approving Fifth Stipulation for Extension of
Deadline for Debtors to Assume or Reject the Bradenton Lease [Docket No. 1150], which
extended the deadline to assume or reject the Bradenton Lease to October 30, 2020. On October
30, 2020, the Court entered an Order Approving Sixth Stipulation for Extension of Deadline for
Debtors to Assume or Reject the Bradenton Lease [Docket No. 1174], which extended the
deadline to assume or reject the Bradenton Lease to November 3, 2020, and on November 4,
2020 the Court entered an Order Approving Seventh Stipulation for Extension of Deadline for
6 BRNK Bradenton, LLC (the “Bradenton Landlord”) and the Debtors are parties to a lease dated October 4, 2018, related to 7415 Manatee Ave W., Bradenton, Florida (the “Bradenton Lease”).
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Debtors to Assume or Reject the Bradenton Lease [Docket No. 1185], which extended the
deadline to assume or reject the Bradenton Lease to January 4, 2021.
46. On September 14, 2020, the Court entered an Agreed Order Rejecting and
Terminating Lease of Real Property Between Debtor Lucky’s Market Operating Company, LLC
and Tamiami Investment Partners, LLC and Releasing Certain Claims [Docket No. 1044], which
acknowledged the Port Charlotte Lease, a Kroger guaranteed lease, was rejected and terminated
as of September 14, 2020.7
EXCLUSIVITY PERIOD EXTENSIONS
47. On May 19, 2020, the Debtors filed the first Motion for Entry of an Order
Extending the Exclusivity Periods for the Filing of a Chapter 11 Plana and Solicitation Thereof
[Docket No. 729] (the “First Motion to Extend Exclusivity Periods”). In the absence of the
First Motion to Extend Exclusivity Periods, the initial Exclusivity Period and Exclusive
Solicitation Period would have expired on May 26, 2020, and July 25, 2020, respectively, by
operation of law.
48. On June 16, 2020, the Court granted the First Motion to Extend Exclusivity
Periods and entered an Order Extending the Exclusivity Periods for the Filing of a Chapter 11
Plan and Solicitation of Acceptances Thereof [Docket No. 804] (the “First Exclusivity Order”),
which extended the Exclusivity Period to July 31, 2020 and the Exclusive Solicitation Period to
September 29, 2020. The First Exclusivity Order provided that with the consent of the
Committee and Prepetition Secured Lender, the Debtors had the right to file under certification
7 Franklin Land Associates, LLC and the Debtor Lucky’s Market Operating Company, LLC were parties to a lease dated March 14, 2018, for certain premises located in a shopping center commonly known as “Port Charlotte Marketplace” in the City of Port Charlotte, Charlotte County, State of Florida (the “Port Charlotte Lease”), which was assigned to Tamiami Investment Partners, LLC (the “Port Charlotte Landlord”) by that certain Assignment of Shopping Center Lease dated May 29, 2018.
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of counsel a further order extending the Exclusivity Period to August 31, 2020 and the Exclusive
Solicitation Period to October 30, 2020.
49. On July 30, 2020, the Court entered a Second Order Extending the Exclusivity
Periods for the Filing of a Chapter 11 Plan and Solicitation of Acceptances Thereof [Docket No.
910] (the “Second Exclusivity Order”). The Second Exclusivity Order extended the Exclusivity
Period through and including August 14, 2020 and the Exclusive Solicitation Period to October
13, 2020. The Second Exclusivity Order provided that with the consent of the Committee and
Prepetition Secured Lender, the Debtors had the right to file under certification of counsel a
further order extending the Exclusivity Period to August 31, 2020 and the Exclusive Solicitation
Period to October 30, 2020.
50. On August 11, 2020, the Court entered a Third Order Extending the Exclusivity
Periods for the Filing of a Chapter 11 Plan and Solicitation of Acceptances Thereof [Docket No.
925] (the “Third Exclusivity Order”). The Third Exclusivity Order extended the Exclusivity
Period to August 31, 2020 and the Exclusive Solicitation Period to October 30, 2020.
51. On August 31, 2020, the Debtors filed the Second Motion of Debtors for Entry of
a Fourth Order Extending the Exclusivity Periods for the Filing of a Chapter 11 Plan and
Solicitation of Acceptances Thereof [Docket No. 997] (the “Second Motion to Extend
Exclusivity Periods”).
52. On September 10, 2020, the Court entered the Fourth Order Extending the
Exclusivity Periods for the Filing of a Chapter 11 Plan and Solicitation of Acceptances Thereof
[Docket No. 1028] (the “Fourth Exclusivity Order”), which granted the Second Motion to
Extend Exclusivity Periods, extended the Exclusivity Period to October 2, 2020 and the
Exclusive Solicitation Period to December 1, 2020, and provided that with the consent of the
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Committee and Prepetition Secured Lender, the Debtors had the right to file under certification
of counsel a further order extending the Exclusivity Period to November 30, 2020 and the
Exclusive Solicitation Period to January 28, 2021.
53. On September 30, 2020, the Court entered the Fifth Order Extending the
Exclusivity Periods for the Filing of a Chapter 11 Plan and Solicitation of Acceptances Thereof
[Docket No. 1090] (the “Fifth Exclusivity Order”). The Fifth Exclusivity Order extended the
Exclusivity Period to October 16, 2020 and the Exclusive Solicitation Period to December 15,
2020.
54. On October 16, 2020, the Court entered the Sixth Order Extending the Exclusivity
Periods for the Filing of a Chapter 11 Plan and Solicitation of Acceptances Thereof [Docket No.
1129] (the “Sixth Exclusivity Order”). The Sixth Exclusivity Order extended the Exclusivity
Period to November 30, 2020 and the Exclusive Solicitation Period to January 28, 2021 and
reserved the Debtors right to seek a further extension of the Exclusive Periods for cause.
DISCLOSURE STATEMENT AND PLAN FILING
55. The Debtors have worked cooperatively with the Prepetition Secured Lender and
the Committee to assure a favorable outcome of these Chapter 11 Cases for all of the Debtors’
creditor constituencies. That process has culminated in a global settlement between the Debtors,
the Prepetition Secured Lender, and the Committee that is encompassed in a liquidating chapter
11 plan that will provide a return to creditors.
56. On October 29, 2020, the Debtors filed the Joint Chapter 11 Plan of Liquidation
of Lucky’s Market Parent Company, LLC and Its Debtor Affiliates [Docket No. 1154], the
Disclosure Statement for Joint Chapter 11 Plan of Liquidation of Lucky’s Market Parent
Company, LLC and Its Debtor Affiliates [Docket No. 1155], the Motion for an Order (A)
Approving Disclosure Statement; (B) Establishing Voting Record Date, Voting Deadline, and
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Other Dates; (C) Approving Procedures for Soliciting, Receiving, and Tabulating Votes on Plan
and for Filing Objections to Plan; (D) Approving Manner and Form of Notice and Other Related
Documents; and (E) Granting Related Relief [Docket No. 1156] (the “Disclosure Statement
Motion”), and the Motion for Entry of Order (I) Shortening Notice of Hearing on Motion for an
Order Approving Disclosure Statement, (II) Shortening the Period to Object to the Motion for an
Order Approving the Disclosure Statement, and (III) Granting Related Relief [Docket No. 1157]
(the “Motion to Shorten”).
57. On October 29, 2020, the Court entered an Order granting the Motion to Shorten
and scheduled the Disclosure Statement Hearing on November 24, 2020 at 1:00 p.m. (prevailing
Eastern Time) and established November 20, 2020 at 4:00 p.m. (prevailing Eastern Time) as the
deadline to object to the Disclosure Statement Motion.
58. On November 24, 2020, the Debtors filed the First Amended Joint Chapter 11
Plan of Liquidation of Lucky’s Market Parent Company, LLC and its Debtor Affiliates [Docket
No. 1260] (the “Plan”) and the First Amended Disclosure Statement for Joint Chapter 11 Plan of
Liquidation of Lucky’s Market Parent Company, LLC and its Debtor Affiliates [Docket No.
1261] (the “Disclosure Statement”).
59. On November 24, 2020, the Court entered the Order (A) Approving the
Disclosure Statement; (B) Establishing Voting Record Date, Voting Deadline, and Other Dates;
(C) Approving Procedures for Soliciting, Receiving, and Tabulating Votes on Plan and for Filing
Objections to Plan; (D) Approving Manner and Forms of Notice and Other Related Documents;
and (E) Granting Related Relief [Docket No. 1272] (the “Disclosure Statement Order”).
60. As set forth more fully within the Disclosure Statement Order, the Court approved
the Debtors’ request to proceed on the confirmation timeline below:
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Event Proposed Date
Disclosure Statement Hearing November 24, 2020 at 1:00 p.m. (ET) Voting Record Date November 27, 2020
Solicitation Commencement November 27, 2020, or as soon as practically possible thereafter
Date of Publication of Confirmation Hearing Notice
November 27, 2020, or as soon as practically possible thereafter
Deadline to Object to Claims for Plan Voting November 27, 2020, or as soon as practically possible thereafter
Deadline to File Plan Supplement December 11, 2020 at 4:00 p.m. (ET) Deadline to File Rule 3018(a) Motions December 11, 2020 at 4:00 p.m. (ET)
Deadline to Object to Rule 3018(a) Motions December 22, 2020 at 4:00 p.m. (ET) Plan Objection Deadline December 18, 2020 at 4:00 p.m. (ET)
Voting Deadline & Opt-Out Deadline December 18, 2020 at 4:00 p.m. (ET) Deadline to File Voting Report December 22, 2020 at 4:00 p.m. (ET)
Deadline to File Confirmation Brief and Reply to Plan Objection(s)
December 22, 2020 at 1:00 p.m. (ET)
Confirmation Hearing Date December 23, 2020 at 1:00 p.m. (ET)
61. The Debtors formulated, negotiated, drafted, and filed the Plan, which ensures the
payment of administrative and priority claims, subject to agreed-upon budgets with the
Committee and the Prepetition Secured Lender. The Plan will seek approval of the Global
Settlement and the Debtors filed the Plan with the consent of the Committee and the Prepetition
Secured Lender. Granting the Debtors additional time to work on soliciting acceptance of the
Plan and pursuing confirmation of the Plan will benefit all parties in interest. The Debtors hope
that this will be the final request to extend the Exclusive Periods and seek the extension out of an
abundance of caution in the event that the confirmation process is delayed.
RELIEF REQUESTED
62. The Debtors respectfully request, pursuant to Bankruptcy Code section 1121(d),
an extension of (i) the Exclusivity Period through and including March 1, 2021, and (ii) the
Exclusive Solicitation Period through and including April 28, 2021, in each case, without
prejudice to any party in interest’s rights to seek to reduce or increase such periods in accordance
with Bankruptcy Code section 1121(d). The Debtors’ Exclusivity Period and Exclusive
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Solicitation Period are currently set to expire on November 30, 2020 and January 28, 2021,
respectively. The Debtors reserve the right to seek additional extensions of the Exclusivity
Period and Exclusive Solicitation Period.
BASIS FOR RELIEF
63. Pursuant to Bankruptcy Code section 1121(d), the Court may extend exclusive
periods “for cause.” See 11 U.S.C. § 1121(d) (“[O]n request of a party in interest made within
the respective periods specified in subsections (b) and (c) of this section and after notice and a
hearing, the court may for cause reduce or increase the 120-day period or the 180-day period
referred to in this section.”). However, the 120-day period “may not be extended beyond a date
that is 18 months after the [petition] date” and the 180-day period “may not be extended beyond
a date that is 20 months after the [petition] date.” Id. §§ 1121(d)(2)(A), (B). The Bankruptcy
Code neither defines “cause” for purposes of section 1121(d), nor establishes formal criteria for
an extension of the exclusive periods. The legislative history of Bankruptcy Code section 1121
indicates, however, that “cause” is intended to be a flexible standard that balances the competing
interests of a debtor and its creditors. See H.R. Rep. No. 95-595, at 231- 32 (1978), reprinted in
1978 U.S.C.C.A.N. 5787, 6191 (noting that Congress intended to give bankruptcy courts great
flexibility to protect a debtor’s interests by allowing a debtor an unimpeded opportunity to
negotiate settlement of debts without interference from other parties in interest). Here, the
Debtors seek a ninety (90) day extension of the Exclusivity Period and the Exclusive Solicitation
Period and well within the proscribed 18-month or 20-month dates.
64. In exercising its broad discretion to determine whether “cause” exists, a
bankruptcy court should be guided by a variety of factors. See In re Borders Grp., Inc., 460 B.R.
818, 821−22 (Bankr. S.D.N.Y. 2011) (“The determination of cause under section 1121(d) is a
fact-specific inquiry and the court has broad discretion in extending or terminating exclusivity.”);
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In re Adelphia Commc’ns Corp., 352 B.R. 578, 587 (Bankr. S.D.N.Y. 2006) (identifying
objective factors courts historically have considered in determining whether cause exists to
extend or terminate exclusivity); see also In re McLean Indus., Inc., 87 B.R. 830, 834 (Bankr.
S.D.N.Y. 1987) (identifying factors used by courts to determine whether cause exists to extend
exclusivity). Not all factors are relevant in every case, and a finding that any one of these factors
exists may justify extending a debtor’s exclusive periods. See Express One, 194 B.R. at 100
(finding only some of the factors relevant in determining whether cause exists to extend
exclusivity); see also In re Dow Corning Corp., 208 B.R. 661, 670 (Bankr. E.D. Mich. 1997)
(“When the Court is determining whether to terminate a debtor’s exclusivity, the primary
consideration should be whether or not doing so would facilitate moving the case forward. And
that is a practical call that can override a mere toting up of the factors.”). These factors are not
exhaustive and include, without limitation:
i. the size and complexity of the debtor’s case;
ii. the necessity for sufficient time to permit the debtor to negotiate a chapter 11 plan and prepare adequate information;
iii. the existence of good faith progress towards reorganization;
iv. the fact that the debtor is paying its bills as they become due;
v. whether the debtor has demonstrated reasonable prospects for filing a viable plan;
vi. whether the debtor has made progress in negotiations with its creditors;
vii. the amount of time which has elapsed in the case;
viii. whether the debtor is seeking an extension of exclusivity in order to pressure creditors to submit to the debtor’s reorganization demands; and
ix. whether an unresolved contingency exists.
See, e.g., In re Cent. Jersey Airport Servs., LLC, 282 B.R. 176, 183 (Bankr. D.N.J. 2002);
McLean Indus. Inc., 87 B.R. at 834; Adelphia Commc’ns, 352 B.R. at 587 (noting that the nine
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factors listed above are “objective factors which courts historically have considered in making
determinations of this character”); see also Borders, 460 B.R. at 822 (evaluating the nine factors
set forth in Adelphia to hold that debtor established cause to extend exclusivity); accord In re
Express One, 194 B.R. 98, 100 (Bankr. E.D. Tex. 1996) (identifying all of the nine factors as
relevant in determining whether cause exists to extend exclusivity); In re United Press Int’l, Inc.,
60 B.R. 265, 269 (Bankr. D.D.C. 1986) (holding that the debtor showed cause to extend
exclusive period based upon certain of the nine factors). The above factors are not the exclusive
bases for the exercise of the Court’s discretion to extend exclusive periods. See Adelphia
Commc’ns, 352 B.R. at 586-87.
65. Congress incorporated these exclusivity periods into the Bankruptcy Code to
afford a debtor a full and fair opportunity to propose a chapter 11 plan and enable solicitation of
acceptances of the plan without the deterioration and disruption of a debtor’s business that might
be caused by the filing of multiple competing plans. Indeed, the primary objective of a chapter
11 case is the formulation, confirmation, and consummation of a consensual chapter 11 plan. As
detailed above, the Debtors have been working with the Committee and the Prepetition Secured
Lender on formulating a consensual plan of liquidation, and the Debtors have made substantial
progress towards, and intend to achieve, this objective. The Debtors submit they are on track to
obtain approval of the Disclosure Statement and proceed with soliciting acceptance of the Plan
before the end of the 2020 calendar year, but seek an extension of the Exclusivity Period and
Exclusive Solicitation Period out of an abundance of caution to stave off any potential competing
plan.
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23 75364558.4
CAUSE EXISTS TO EXTEND THE EXCLUSIVE PERIODS 66. Cause exists to grant the Debtors’ requested extensions of the exclusivity periods.
The extensions are necessary and appropriate for the Debtors to seek confirmation of the Plan
without any interference of potential competing plans. As set forth below, the requested
extensions are appropriate, in the best interest of the Debtors’ stakeholders, and consistent with
the intent and purpose of chapter 11.
A. The Chapter 11 Cases are Large and Complex 67. The Debtors’ Chapter 11 Cases are both sizeable and complex. As of and since
the Petition Date, the Debtors focused on affordable organic and locally-grown fruits and
vegetables, top-quality, naturally raised meats and seafood, and fresh, daily prepared foods. The
Debtors carry the highest-quality products at the lowest prices, with the mission of providing
“Organic for the 99%”. Each of the Debtors’ Stores averages approximately 31,000 square feet
and has full-service departments, including produce, meat, seafood, culinary, apothecary,
beer/wine/spirits and grocery. The Debtors have liquidated a majority of their assets. They are
actively defending or pursuing litigation, including the WARN Act Litigation, the ATA
Litigation, and the Bonita Springs Litigation. The Debtors have also made strides in the claims
reconciliation process, which will assist in the orderly administration and liquidation of the
estates. Further, the Court entered the Disclosure Statement Order and the Debtors have started
soliciting acceptance of the Plan. The size and complexity of these Chapter 11 Cases provide
sufficient cause for the Court to extend the Exclusivity Period and the Exclusive Solicitation
Period (collectively, hereinafter the “Exclusivity Periods”).
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24 75364558.4
B. Substantial Good Faith Progress has been Made to Achieve the Objectives of Chapter 11
68. Since the Petition Date, the Debtors have made substantial and meaningful
progress under chapter 11, including obtaining court approval of sales of certain of the Debtors’
assets, and administering the Chapter 11 Cases efficiently and economically.
69. Since the Petition Date, less than eight months ago, the Debtors have
accomplished the following, which includes, but is not limited to:
a. Secured first-day relief to continue operating their businesses including authorization (i) to continue using the existing cash management system, (ii) to pay employee wages, (iii) to maintain and pay insurance policies, (iv) to pay various critical trade vendors, (v) to pay prepetition taxes and fees, (vi) to prohibit utility providers from altering, refusing, or discontinuing service, (vii) maintain and administer existing customer programs, (viii) pay PACA and PASA claimants, and (ix) to use cash collateral consensually post-petition;
b. Filed Schedules of Assets and Liabilities and Statement of Financial Affairs; c. Conducted 341 Meeting of Creditors; d. Set a Bar Date; e. Obtained three orders granting omnibus non-substantive objections to claims; f. Obtained three orders granting omnibus substantive objections to claims; g. Negotiated a Global Settlement with the Committee and Prepetition Secured
Lender and drafted a chapter 11 liquidating plan, accompanying disclosure statement, motion to approve solicitation procedures, and motion to approve an expedited confirmation timeline;
h. Worked through complicated lease restriction issues related to the sales and resolved all of those issues without the intervention of the Court;
i. Worked with the Special Committee of the Board of Managers to investigate any potential claims and causes of action that may exist;
j. Worked with their EB-5 investors regarding their interests; k. Sifted through complex New Market Tax Credit issues; l. Paid a majority of allowed PACA claims; m. Continued to work through numerous mechanics lien issues; n. Operated 6 stores during these Chapter 11 Cases during a global pandemic; o. Filed Monthly Operating Reports; p. Obtained the Sale Orders; q. Remained current on all post-petition administrative obligations;
r. Filed the Kroger Assumption Motion that provides clarity with respect to the remainder of the Debtors’ lease portfolio;
s. Reached the Global Settlement;
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25 75364558.4
t. Filed a Disclosure Statement and Plan; and u. Obtained the Disclosure Statement Order.
70. The Debtors have clearly made progress to achieve the objectives of chapter 11
and the requested extensions of the Exclusivity Periods are justified and well deserved.
C. The Debtors Need Sufficient Time to Pursue Confirmation
71. As stated above, the Plan embodies the Global Settlement negotiated by Debtors,
Committee, and Prepetition Secured Lender, and the Debtors. The Debtors are seeking to have
the confirmation process undertaken on an expedited basis so they can emerge from chapter 11
by the end of the year. The Debtors need to pursue confirmation without the worry that a
competing plan may be filed. The Debtors also need the flexibility provided by a further
extension of the Exclusive Periods in the event that they are not able to consummate
confirmation under the expedited timeframe currently proposed.
D. The Debtors are Not Seeking to Use Exclusivity to Pressure Creditors to Submit to the Debtors’ Demands
72. This is the Debtors’ third request for an extension of the Exclusivity Periods. The
Debtors’ conduct in these Chapter 11 Cases, particularly in connection with the ongoing
discussions with their stakeholders, demonstrates that the Debtors are acting in a transparent
manner and are not seeking an extension of the Exclusivity Periods to delay artificially the
administration of these Chapter 11 Cases. The Debtors continue narrowing the claims pools via
the claim reconciliation process and have finalized the Global Settlement with the Committee
and Prepetition Secured Lender. The Debtors have also made progress with liquidating their
store lease portfolio. To that end, the Debtors filed the Disclosure Statement and Plan, which
enjoy the full support of the Committee and the Prepetition Secured Lender. The Court entered
the Disclosure Statement Order and the Debtors are soliciting acceptance of the Plan. The
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26 75364558.4
Debtors continue to work with stakeholders to obtain approval of the Disclosure Statement and
solicit acceptance of the Plan.
E. The Debtors are Paying Their Debts as They Come Due and have the Ability to Continue to Do So
73. Bankruptcy courts considering an extension of exclusivity also may assess a
debtor’s liquidity and ability to pay costs and expenses of administration. Adelphia Commc’ns,
352 B.R. at 587. The Debtors have timely paid quarterly fees to the United States Trustee, and all
other administrative obligations in the ordinary course of business. In addition, the Debtors have
sufficient liquidity to continue paying administrative expenses as they become due and will
continue to make such payments.
F. The Requested Extension is in the Best Interests of the Debtors’ Estates and Will Not Prejudice Creditors
74. The Debtors’ requested extension is intended to allow the Debtors to work
cooperatively with their key constituents toward soliciting acceptance of the in the most cost-
efficient manner possible manner as approved within the Disclosure Statement. The Committee
and Prepetition Secured Lender support the Plan, which includes the Global Settlement. Given
the limited extension requested and the circumstances described herein, the extension aligns with
the intent and purpose of Bankruptcy Code section 1121 and should be granted.
CONCLUSION
75. For the reasons stated herein, the requested extension of the Exclusivity Periods is
warranted and necessary to afford the Debtors a meaningful opportunity to continue to pursue the
chapter 11 liquidation process as contemplated by the Bankruptcy Code. Accordingly, the
Debtors should be afforded a full, fair, and reasonable opportunity to continue to work towards
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27 75364558.4
confirmation of a plan of liquidation and the Exclusivity Periods should be extended as
requested.
NOTICE
76. Notice of this Motion will be given to the following parties: (a) the Office of the
United States Trustee; (b) the Prepetition Secured Lender; (c) Official Committee of Unsecured
Creditors; and (d) all persons and entities that have filed a request for service of filings in these
Chapter 11 Cases pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested
herein, the Debtors submit that no other or further notice is necessary.
WHEREFORE, the Debtors respectfully request that the Court: (i) enter the Proposed
Order in substantially the same form as that attached as Exhibit A, granting the relief requested
herein; and (ii) provide such other relief as the Court deems appropriate and just.
Dated: November 30, 2020 Respectfully submitted, Wilmington, Delaware
POLSINELLI PC /s/ Christopher A. Ward Christopher A. Ward (Del. Bar No. 3877) Brenna A. Dolphin (Del. Bar No. 5604) 222 Delaware Avenue, Suite 1101 Wilmington, Delaware 19801 Telephone: (302) 252-0920 Facsimile: (302) 252-0921 [email protected] [email protected] -and-
Liz Boydston (Admitted Pro Hac Vice) 2950 N. Harwood, Suite 2100 Dallas, Texas 75201 Telephone: (214) 661-5557 [email protected]
Counsel to the Debtors and
Debtors in Possession
Case 20-10166-JTD Doc 1281 Filed 11/30/20 Page 27 of 27
75657811.1
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: LUCKY’S MARKET PARENT COMPANY, LLC, et al.,1
Debtors.
Chapter 11 Case No. 20-10166 (JTD) (Jointly Administered) Objection Deadline: December 7, 2020 at 4:00 p.m. Hearing Date: December 14, 2020 at 10:00 a.m.
NOTICE OF MOTION
PLEASE TAKE NOTICE that the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) have filed the Third Motion of Debtors for Entry of a Seventh
Order Extending the Exclusivity Periods for the Filing of a Chapter 11 Plan and Solicitation of
Acceptances Thereof (the “Motion”) with the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”).
PLEASE TAKE FURTHER NOTICE that objections, if any, to entry of an order
approving the Motion must be filed on or before December 7, 2020 at 4:00 p.m. (ET) (the
“Objection Deadline”) with the Clerk of the Bankruptcy Court, 824 N. Market Street, 3rd Floor,
Wilmington, Delaware 19801. At the same time, you must serve a copy of the objection upon the
undersigned counsel to the Debtors.
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are Lucky’s Market Parent Company, LLC (2055), Lucky’s Farmers Market Holding Company, LLC (5480), Lucky’s Market Operating Company, LLC (7064), LFM Stores LLC (3114), Lucky’s Farmers Market, LP (0828), Lucky’s Farmers Market Resource Center, LLC (7711), Lucky’s Market Holding Company 2, LLC (0607), Lucky’s Market GP 2, LLC (9335), Lucky’s Market 2, LP (8384), Lucky’s Market of Longmont, LLC (9789), Lucky’s Farmers Market of Billings, LLC (8088), Lucky’s Farmers Markets of Columbus, LLC (3379), Lucky’s Farmers Market of Rock Hill, LLC (3386), LFM Jackson, LLC (8300), Lucky’s Farmers Market of Ann Arbor, LLC (4067), Lucky’s Market of Gainesville, LLC (7877), Lucky’s Market of Bloomington, LLC (3944), Lucky’s Market of Plantation, LLC (4356), Lucky’s Market of Savannah, GA, LLC (1097), Lucky’s Market of Traverse, City, LLC (2033), Lucky’s Market of Naples, FL, LLC (8700), Sinoc, Inc. (0723), Lucky’s Farmers Market of Ellisville, LLC (2875), and Lucky’s Market of Lexington, KY, LLC (3446).
Case 20-10166-JTD Doc 1281-1 Filed 11/30/20 Page 1 of 2
75657811.1 2
PLEASE TAKE FURTHER NOTICE that a hearing on the Motion will be held on
December 14, 2020 at 10:00 a.m. (ET) before the Honorable John T. Dorsey, at the Bankruptcy
Court, 824 N. Market Street, 5th Floor, Courtroom No. 5, Wilmington, Delaware 19801. Only
those objections made in writing and received by the Objection Deadline will be considered by
the Bankruptcy Court at such hearing.
PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE BANKRUPTCY COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT FURTHER NOTICE OR HEARING.
Dated: November 30, 2020 Wilmington, Delaware
Respectfully submitted,
POLSINELLI PC
/s/ Christopher A. Ward Christopher A. Ward (Del. Bar No. 3877)
222 Delaware Avenue, Suite 1101 Wilmington, Delaware 19801 Telephone: (302) 252-0920 Facsimile: (302) 252-0921 [email protected] -and- Liz Boydston (Admitted Pro Hac Vice) 2950 N. Harwood, Suite 2100 Dallas, TX 75201 Telephone: (214) 661-5557 [email protected]
Counsel to the Debtors and Debtors in Possession
Case 20-10166-JTD Doc 1281-1 Filed 11/30/20 Page 2 of 2
mailto:[email protected]
75364558.4
Exhibit A
(Proposed Order)
Case 20-10166-JTD Doc 1281-2 Filed 11/30/20 Page 1 of 3
75364558.4
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
In re: LUCKY’S MARKET PARENT COMPANY, LLC, et al.,1
Debtors.
Chapter 11 Case No. 20-10166 (JTD) (Jointly Administered) Re: Docket No. ____
SEVENTH ORDER EXTENDING THE EXCLUSIVITY PERIODS FOR THE FILING
OF A CHAPTER 11 PLAN AND SOLICITATION OF ACCEPTANCES THEREOF
Upon the motion (the “Motion”)2 of the Debtors for entry of an order, pursuant to
Bankruptcy Code section 1121(d), extending the Debtors’ exclusive periods in which to file a
chapter 11 plan (the “Exclusivity Period”) and solicit acceptances thereof (the “Exclusive
Solicitation Period”), all as more fully set forth in the Motion; and the Court finding that (a) the
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334, (b) this matter is a
core proceeding within the meaning of 28 U.S.C. § 157(b)(2), and that the Debtors consent to
entry of a final order under Article III of the United States Constitution, and (c) notice of the
Motion was due and proper under the circumstances; and it appearing that the relief requested in
the Motion is in the best interests of the Debtors’ estates, their creditors, and other parties in
interest; and after due deliberation, and good and sufficient cause appearing therefor,
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are Lucky’s Market Parent Company, LLC (2055), Lucky’s Farmers Market Holding Company, LLC (5480), Lucky’s Market Operating Company, LLC (7064), LFM Stores LLC (3114), Lucky’s Farmers Market, LP (0828), Lucky’s Farmers Market Resource Center, LLC (7711), Lucky’s Market Holding Company 2, LLC (0607), Lucky’s Market GP 2, LLC (9335), Lucky’s Market 2, LP (8384), Lucky’s Market of Longmont, LLC (9789), Lucky’s Farmers Market of Billings, LLC (8088), Lucky’s Farmers Markets of Columbus, LLC (3379), Lucky’s Farmers Market of Rock Hill, LLC (3386), LFM Jackson, LLC (8300), Lucky’s Farmers Market of Ann Arbor, LLC (4067), Lucky’s Market of Gainesville, LLC (7877), Lucky’s Market of Bloomington, LLC (3944), Lucky’s Market of Plantation, LLC (4356), Lucky’s Market of Savannah, GA, LLC (1097), Lucky’s Market of Traverse, City, LLC (2033), Lucky’s Market of Naples, FL, LLC (8700), Sinoc, Inc. (0723), Lucky’s Farmers Market of Ellisville, LLC (2875), and Lucky’s Farmers Market of Lexington, KY, LLC (3446). 2 Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Motion.
Case 20-10166-JTD Doc 1281-2 Filed 11/30/20 Page 2 of 3
2 75364558.4
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED, as set forth herein.
2. Pursuant to Bankruptcy Code section 1121(d), the Debtors’ Exclusivity Period is
extended through and including March 1, 2021.
3. Pursuant to Bankruptcy Code section 1121(d), the Debtors’ Exclusive Solicitation
Period is extended through and including April 28, 2021.
4. The extensions of the Exclusivity Period and the Exclusive Solicitation Period
granted herein are without prejudice to such further requests that may be made pursuant to
Bankruptcy Code section 1121(d) by the Debtors or any party in interest, for cause shown, upon
notice and a hearing.
5. Nothing herein shall create, nor is intended to create, any rights in favor of or
enhance the status of any claim held by any party.
6. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order.
7. This Court shall retain jurisdiction with respect to all matters arising from or
related to the implementation of this Order.
Case 20-10166-JTD Doc 1281-2 Filed 11/30/20 Page 3 of 3
SALE ORDERSCLAIM RECONCILIATIONEXECUTORY CONTRACTS AND LEASESEXCLUSIVITY PERIOD EXTENSIONSRELIEF REQUESTEDi. the size and complexity of the debtor’s case;ii. the necessity for sufficient time to permit the debtor to negotiate a chapter 11 plan and prepare adequate information;iii. the existence of good faith progress towards reorganization;iv. the fact that the debtor is paying its bills as they become due;v. whether the debtor has demonstrated reasonable prospects for filing a viable plan;vi. whether the debtor has made progress in negotiations with its creditors;vii. the amount of time which has elapsed in the case;viii. whether the debtor is seeking an extension of exclusivity in order to pressure creditors to submit to the debtor’s reorganization demands; andix. whether an unresolved contingency exists.
See, e.g., In re Cent. Jersey Airport Servs., LLC, 282 B.R. 176, 183 (Bankr. D.N.J. 2002); McLean Indus. Inc., 87 B.R. at 834; Adelphia Commc’ns, 352 B.R. at 587 (noting that the nine factors listed above are “objective factors which courts historical...CAUSE EXISTS TO EXTEND THE EXCLUSIVE PERIODSA. The Chapter 11 Cases are Large and ComplexB. Substantial Good Faith Progress has been Made to Achieve the Objectives ofChapter 11a. Secured first-day relief to continue operating their businesses including authorization (i) to continue using the existing cash management system, (ii) to pay employee wages, (iii) to maintain and pay insurance policies, (iv) to pay various critica...
C. The Debtors Need Sufficient Time to Pursue ConfirmationD. The Debtors are Not Seeking to Use Exclusivity to Pressure Creditors to Submitto the Debtors’ DemandsE. The Debtors are Paying Their Debts as They Come Due and have the Ability to Continue to Do SoF. The Requested Extension is in the Best Interests of the Debtors’ Estates and Will Not Prejudice CreditorsPLEASE TAKE NOTICE that the above-captioned debtors and debtors in possession (collectively, the “Debtors”) have filed the Third Motion of Debtors for Entry of a Seventh Order Extending the Exclusivity Periods for the Filing of a Chapter 11 Plan and S...PLEASE TAKE FURTHER NOTICE that objections, if any, to entry of an order approving the Motion must be filed on or before December 7, 2020 at 4:00 p.m. (ET) (the “Objection Deadline”) with the Clerk of the Bankruptcy Court, 824 N. Market Street, 3rd F...