44512.00015 

Dennis F. Dunne, Esq. (admitted pro hac vice) Michael A. Condyles, Esq. (VA 27807) 

Evan R. Fleck, Esq. (admitted pro hac vice) Peter J. Barrett, Esq. (VA 46179) 

Michael W. Price, Esq. (admitted pro hac vice) 

MILBANK LLP

Jeremy S. Williams, Esq. (VA 77469) 

Brian H. Richardson, Esq. (VA 92477) 

55 Hudson Yards KUTAK ROCK LLP 

New York, New York 10001 901 East Byrd Street, Suite 1000

Telephone: (212) 530-5000 Richmond, Virginia 23219-4071 

Facsimile: (212) 530-5219 Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

Co-Counsel for Debtors in Possession 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

) 

In re: ) Chapter 11 

) 

GYMBOREE GROUP, INC., et al.,

1

) Case No. 19-30258 (KLP) 

) 

Debtors. ) (Jointly Administered) 

) 

DEBTORS’ MOTION FOR ENTRY OF AN ORDER EXTENDING THEIR EXCLUSIVE 

PERIODS TO FILE A CHAPTER 11 PLAN AND SOLICIT ACCEPTANCES THEREOF 

 The above-captioned debtors in possession (collectively, the “Debtors”) respectfully 

move (this “Motion”) for entry of an order extending (i) the period during which the Debtors have 

the exclusive right to file a chapter 11 plan through and including July 16, 2019 (the “Exclusive 

Filing Period”), and (ii) the period during which the Debtors have the exclusive right to solicit 

acceptances of their chapter 11 plan through and including September 14, 2019 (the “Exclusive 

 

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, 

are: Gymboree Group, Inc. (6587); Gymboree Intermediate Corporation (1473); Gymboree Holding 

Corporation (0315); Gymboree Wholesale, Inc. (6588); Gym-Mark, Inc. (6459); Gymboree Operations, Inc. 

(6463); Gymboree Distribution, Inc. (8669); Gymboree Manufacturing, Inc. (6464); Gymboree Retail Stores, 

LLC (6461); Gym-Card, LLC (5720); and Gymboree Island, LLC (1215). The Debtors’ service address is 71 

Stevenson Street, Suite 2200, San Francisco, California 94105.

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2 

Solicitation Period” and, together with the Exclusive Filing Period, the “Exclusivity Periods”), and 

in support thereof, respectfully represent as follows: 

Background 

1. On January 16, 2019 (the “Petition Date”), the Debtors commenced these cases by 

filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. 

§§ 101–1532 (as amended, the “Bankruptcy Code”). 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. 

2. The Debtors’ cases have been consolidated for procedural purposes only and are 

being administered jointly. On January 23, 2019, the United States Trustee for the Eastern District 

of Virginia (the “U.S. Trustee”) appointed an official committee of unsecured creditors pursuant 

to section 1102 of the Bankruptcy Code [Docket No. 126] (the “Committee”). No request for the 

appointment of a trustee or an examiner has been made. 

3. A comprehensive description of the Debtors’ business and operations, capital 

structure and the events leading to the commencement of these cases can be found in the 

Declaration of Stephen Coulombe, Chief Restructuring Officer of Gymboree Group, Inc., in 

Support of Chapter 11 Petitions and First Day Motions [Docket No. 11]. 

4. On March 4, 2019, the Court entered the (a) Order (I) Approving the Sale of Certain 

J&J Assets Free and Clear of Liens, Claims, Interests and Encumbrances and (II) Approving the 

Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection 

Therewith; and (III) Granting Related Relief [Docket No. 484] and (b) Order (I) Approving the 

Sale of Certain Gymboree and Crazy 8 Assets Free and Clear of Liens, Claims, Interests and 

Encumbrances and (II) Approving the Assumption and Assignment of Executory Contracts and 

Unexpired Leases in Connection Therewith; and (III) Granting Related Relief [Docket No. 487], 

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3 

which, together, approved the sale of substantially all of the Debtors’ assets. The closing dates for 

such sales occurred on March 4, 2019 and April 4, 2019, respectively. 

Jurisdiction and Venue 

5. The United States Bankruptcy Court for the Eastern District of Virginia (the 

“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Standing 

Order of Reference from the United States District Court for the Eastern District of Virginia, dated 

July 10, 1984. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 

6. The bases for the relief requested herein are sections 1121 of the Bankruptcy Code, 

Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local 

Bankruptcy Rules of the United States Bankruptcy Court for the Eastern District of Virginia (as 

amended, the “Local Bankruptcy Rules”). 

7. The Debtors consent to the entry of a final order by the Court in connection with 

this Motion to the extent that it is later determined that the Court, absent consent of the parties, 

cannot enter final orders or judgments in connection herewith consistent with Article III of the 

United States Constitution.

Relief Requested 

8. The Debtors respectfully request that the Court enter an order (the “Order”), 

substantially in the form attached hereto as Exhibit A, extending (i) the Debtors’ Exclusive Filing 

Period through and including July 16, 2019, and (ii) the Debtors’ Exclusive Solicitation Period 

through and including September 14, 2019, without prejudice to the Debtors’ right to seek further 

extensions as contemplated under section 1121 of the Bankruptcy Code. 

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4 

Basis for Relief 

9. Section 1121(b) of the Bankruptcy Code establishes an initial 120-day period 

following the commencement of a case during which only the debtor may file a plan. Section 

1121(c) provides an additional 60-day period during which only the debtor may solicit acceptances 

for a plan filed within the initial 120-day period. 11 U.S.C. §§1121(b), 1121(c). 

10. Section 1121(d) of the Bankruptcy Code permits a court, after notice and a hearing, 

to extend a debtor’s Exclusivity Periods “for cause” (as long as such extension does not extend the 

Exclusive Filing Period “beyond a date that is 18 months after the date of the order for relief” and 

the Exclusive Solicitation Period “beyond a date that is 20 months after the date of the order for 

relief.” 11 U.S.C. § 1121(d). Although “cause” is not defined in the Bankruptcy Code, the 

legislative history indicates the “for cause” standard is meant to be flexible “in order to allow the 

debtor to reach an agreement.” H.R. Rep. 595, 95th Cong., 1st Sess. 232 (1978); see also In re 

Ames Dep’t Stores Inc., 1991 WL 259036 at *3 (S.D.N.Y. Nov. 25, 1991) (“The purpose of the 

Bankruptcy Code’s exclusivity period is to allow the debtor flexibility to negotiate with its 

creditors.”). 

11. Frequently, courts in this and other circuits use all or some of the following factors 

in determining whether “cause” exists to extend a debtor’s Exclusivity Periods: (a) the size and 

complexity of the case; (b) the need for sufficient time to permit the debtor to negotiate a plan of 

reorganization and prepare adequate information; (c) whether the debtor has made progress in 

negotiations with its creditors; (d) the existence of good faith progress toward reorganization; (e) 

whether the debtor is seeking to extend exclusivity to pressure creditors to accede to the debtor’s 

reorganization demands; (f) whether the debtor has demonstrated reasonable prospects for filing a 

viable plan; (g) the fact that the debtor is paying its bills as they become due; (h) the amount of 

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5 

time which has elapsed in the case; and (i) whether an unresolved contingency exists. See e.g., In 

re Quality Inns Int’l, Inc. v. L.B.H. Associates Ltd. P’Ship, 1990 WL 116761 at *2 (4th Cir. 1990); 

In re Adelphia Commc’ns Corp., 336 B.R. 610, 674 (Bankr. S.D.N.Y. 2006). 

12. Not all of these factors are relevant in every case and courts rely on various subsets 

of the above factors to determine whether the requisite “cause” exists to grant an exclusivity 

extension in a particular case. See, e.g., Quality Inns, 1990 WL 116761 at *2 (affirming the 

bankruptcy court’s grant of an exclusivity extension based on four factors: (a) the debtor was 

involved in protracted litigation; (b) the case was complex; (c) the debtor had been making every 

effort to rehabilitate itself; and (d) there was a promise of success); In re Express One Int’l, 194 

B.R. 98, 100 (Bankr. E.D. Tex. 1996) (finding only certain factors relevant in determining whether 

“cause” exists to extend exclusivity). 

13. Here, unless extended, the Debtors’ Exclusivity Periods will expire on May 17, 

2019 and July 16, 2019, respectively. Given the facts and circumstances of these cases, the 

requested extension is clearly warranted. The Debtors have made significant progress towards 

concluding these cases in the value-maximizing manner and securing consensus among their key 

constituents, but still require additional time to resolve the outstanding issues in these cases, 

including achieving a resolution of the WARN-related litigation pending in both the Bankruptcy 

Court and the United States District Court for the Northern District of California and determining 

whether they will be able to propose a confirmable, feasible plan. Nevertheless, the Debtors have 

(i) finalized sales of substantially all of their assets,2 (ii) identified sources for funding payment of 

 

2

 Notice of Closing Date of J&J Sale [Docket No. 494] and Notice of Closing Date of Sale of Gymboree and 

Crazy 8 Assets to TCP Brands, LLC [Docket No. 614]

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6 

the outstanding WARN Act claims and of their “stub rent,”3 and (iii) entered into agreements with 

their DIP lenders and the Committee to facilitate the formulation of a potential plan of 

reorganization.4

14. Moreover, the requested 60-day extension of the Exclusivity Periods will not 

prejudice or pressure the Debtors’ creditors. With the sales completed, the size of the estates 

available for distribution to the Debtors’ creditors has been fixed. What remains is the formulation 

of a plan that would allocate the proceeds of the sale in the most equitable manner in compliance 

with the priority provisions of the Bankruptcy Code. The Debtors, in cooperation with the 

Committee and working with the DIP Agent, are the parties best positioned to achieve this result 

and just need sufficient time to conclude negotiations with the various constituents involved. 

15. This is the Debtors’ first request to extend their Exclusivity Periods. Courts have 

generally required a lesser showing to grant the first extension as compared to multiple such 

requests. See, In re Newark Airport/Hotel L.P., 156 B.R. 444, 451(Bankr. D.N.J.) aff’d, 155 B.R. 

93 (D.N.J. 1993); see also In re Borders Grp., Inc., 460 B.R. 818, 825 (Bankr. S.D.N.Y. 2011); In 

re Apex Pharm., Inc., 203 B.R. 432, 441 (N.D. Ind. 1996) (“It is true that during the initial 120 day 

period in which debtors have an exclusive right to file a plan of reorganization ... the bankruptcy 

courts apply a lesser standard in determining whether the burden of showing ‘a reasonable 

possibility of a successful reorganization within a reasonable time’ has been satisfied.”) (internal 

citation omitted). 

16. Courts is this district have granted relief similar to the relief requested herein. See, 

e.g., In re Toys “R” Us, Inc. Case No. 17-34665 (KLP), [Docket No. 1319] (Bankr. E.D. Va. 

 

3

 Stipulation by and among the Debtors, the DIP Agent, and the Official Committee of Unsecured Creditors 

with Respect to the DIP Budget and Related Matters [Docket No. 627] 

4

 Id. at ¶ 12.

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7 

December 20, 2017) (granting extension of 180 days); In re Alpha Nat. Res., Inc., Case No. 

15-33896 (KRH), [Docket No. 990] (Bankr. E.D. Va. Nov. 24, 2015) (granting extension of 120 

days); In re Patriot Coal Corp., Case No 15-32450 (KLP), [Docket No. 1031] (Bankr. E.D. Va. 

Sept. 1, 2015) (granting extension of 120 days); In re Health Diagnostic Laboratory, Inc., Case 

No. 15-32919 (KRH), [Docket No. 626] (Bankr. E.D. Va. Oct. 29, 2015) (granting extension of 

90 days); In re James River Coal Co., Case No. 14-31848 (KRH), [Docket No. 473] (Bankr. E.D. 

Va. July 10, 2014) (granting extension of 100 days).5

Waiver of Memorandum of Points and Authorities 

17. The Debtors respectfully request that the Court treat this Motion as a written 

memorandum of points and authorities or waive any requirement that this Motion be accompanied 

by a written memorandum of points and authorities as described in Local Bankruptcy Rule 9013-

1(G). 

Reservation of Rights 

18. Nothing contained herein or any actions taken pursuant to such relief is intended or 

shall be construed as: (a) an admission as to the amount of, basis for, or validity of any claim 

against the Debtors under the Bankruptcy Code or applicable nonbankruptcy law; (b) a waiver of 

the Debtors’ or any other party in interest’s right to dispute any claim; (c) a promise or requirement 

to pay any particular claim; (d) an implication or admission that any particular claim is of a type 

described in this Motion; (e) a request or authorization to assume, adopt, or reject any agreement, 

contract, or lease pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the 

validity, priority, enforceability, or perfection of any lien on, security interest in, or other 

encumbrance on property of the Debtors’ estates; or (g) a waiver of any claims or causes of action 

 

5

 Because of the voluminous nature of the orders cited herein, such orders have not been attached to this 

Motion. Debtors’ counsel will provide and make available copies of these orders upon request.

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8 

which may exist against any entity under the Bankruptcy Code or any other applicable law. If this 

Court grants the relief sought herein, any payment made pursuant to this Court’s order is not 

intended and should not be construed as an admission as to the validity of any particular claim or 

a waiver of the Debtors’ rights to subsequently dispute such claim. 

Notice 

19. The Debtors will provide notice of this Motion to: (a) the Office of the U.S. Trustee; 

(b) counsel to the Committee; (c) counsel to the Debtors’ postpetition secured lenders; (d) counsel 

to Bank of America, N.A. as administrative agent under the ABL Credit Agreement; (e) counsel 

to Goldman Sachs Specialty Lending Group, L.P. as administrative and collateral agent under the 

Term Loan Credit Agreement; (f) any banking or financial institution that holds the Debtors’ 

accounts; (g) the Internal Revenue Service; (h) the office of the attorneys general for the states in 

which the Debtors operate; (i) the National Association of Attorneys General; and (j) all other 

parties entitled to notice pursuant to Bankruptcy Rule 2002. The Debtors submit that no other or 

further notice of this Motion need be given.

No Prior Request

20. No prior request for the relief sought in this Motion has been made to this or any 

other court. 

[Remainder of Page Intentionally Left Blank] 

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WHEREFORE, the Debtors respectfully request that the Court enter the Order, 

substantially in the form attached hereto as Exhibit A, extending (i) the Debtors’ Exclusive Filing 

Period through and including July 16, 2019, and (ii) the Debtors’ Exclusive Solicitation Period 

through and including September 14, 2019. 

Dated: April 17, 2019 /s/ Brian H. Richardson 

Richmond, Virginia Michael A. Condyles, Esq. (VA 27807) 

Peter J. Barrett, Esq. (VA 46179) 

Jeremy S. Williams, Esq. (VA 77469) 

Brian H. Richardson, Esq. (VA 92477) 

KUTAK ROCK LLP 

901 East Byrd Street, Suite 1000 

Richmond, Virginia 23219-4071 

Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

 Email: Michael.Condyles@KutakRock.com 

 Peter.Barrett@KutakRock.com 

 Jeremy.Williams@KutakRock.com 

Brian.Richardson@KutakRock.com 

 -and- 

 

Dennis F. Dunne, Esq. (admitted pro hac vice) 

Evan R. Fleck, Esq. (admitted pro hac vice) 

Michael W. Price, Esq. (admitted pro hac vice) 

MILBANK LLP 

55 Hudson Yards 

New York, New York 10001 

Telephone: (212) 530-5000 

Facsimile: (212) 530-5219 

 Email: ddunne@milbank.com 

 efleck@milbank.com 

 mprice@milbank.com 

 

Co-Counsel for Debtors in Possession 

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EXHIBIT A 

Proposed Order

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4823-8827-3043v9 

Dennis F. Dunne, Esq. (admitted pro hac vice) Michael A. Condyles, Esq. (VA 27807) 

Evan R. Fleck, Esq. (admitted pro hac vice) Peter J. Barrett, Esq. (VA 46179) 

Michael W. Price, Esq. (admitted pro hac vice) 

MILBANK LLP

Jeremy S. Williams, Esq. (VA 77469) 

Brian H. Richardson, Esq. (VA 92477) 

55 Hudson Yards KUTAK ROCK LLP 

New York, New York 10001 901 East Byrd Street, Suite 1000

Telephone: (212) 530-5000 Richmond, Virginia 23219-4071 

Facsimile: (212) 530-5219 Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

Co-Counsel for Debtors in Possession 

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

) 

In re: ) Chapter 11 

) 

GYMBOREE GROUP, INC., et al.,

1

) Case No. 19-30258 (KLP) 

) 

Debtors. ) (Jointly Administered) 

) 

ORDER EXTENDING DEBTORS’ EXCLUSIVITY PERIODS TO FILE A CHAPTER 11 

PLAN AND SOLICIT ACCEPTANCES THEREOF 

Upon the motion (the “Motion”)2 of the above-captioned debtors in possession (the 

“Debtors”), seeking entry of an order (this “Order”) extending their Exclusivity Periods, all as 

more fully set forth in the Motion; and this Court having jurisdiction over this matter pursuant to 

28 U.S.C. §§ 157 and 1334 and the Standing Order of Reference from the United States District 

Court for the Eastern District of Virginia, dated July 10, 1984; and this Court having found that it 

may enter a final order consistent with Article III of the United States Constitution; and this Court 

 

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, 

are: Gymboree Group, Inc. (6587); Gymboree Intermediate Corporation (1473); Gymboree Holding 

Corporation (0315); Gymboree Wholesale, Inc. (6588); Gym-Mark, Inc. (6459); Gymboree Operations, Inc. 

(6463); Gymboree Distribution, Inc. (8669); Gymboree Manufacturing, Inc. (6464); Gymboree Retail Stores, 

LLC (6461); Gym-Card, LLC (5720); and Gymboree Island, LLC (1215). The Debtors’ service address is 71 

Stevenson Street, Suite 2200, San Francisco, California 94105. 

2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.

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4823-8827-3043v9 3 

having found that venue of this proceeding and the Motion in this district is proper pursuant to 28 

U.S.C. §§ 1408 and 1409; and this Court having found that the relief requested in the Motion is in 

the best interests of the Debtors’ estates, their creditors, and other parties in interest; and this Court 

having found that the Debtors’ notice of the Motion was appropriate and that no other notice need 

be provided; and this Court having reviewed the Motion and having heard the statements in support 

of the relief requested therein at a hearing before this Court; and this Court having determined that 

the legal and factual bases set forth in the Motion and at the hearing establish just cause for the 

relief granted herein; and upon all of the proceedings had before this Court; and after due 

deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT:

1. The Motion is granted as set forth herein. 

2. Pursuant to section 1121(d) of the Bankruptcy Code, the Debtors’ Exclusive Filing 

Period is hereby extended through and including July 16, 2019 and the their Exclusive Solicitation 

Period is hereby extended through and including September 14, 2019. 

3. Entry of this Order shall not prejudice the Debtors’ right to seek further extensions of 

the Exclusivity Periods from this Court pursuant to section 1121(d) of the Bankruptcy Code, as 

may be necessary or appropriate. 

4. Notice of the Motion as provided therein shall be deemed good and sufficient notice 

of such Motion and the requirements of Bankruptcy Rule 6004(a) are satisfied by such notice. 

5. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order are 

immediately effective and enforceable upon its entry. 

6. The Debtors are authorized to take all actions necessary to effectuate the relief granted 

in this Order. 

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4823-8827-3043v9 4 

7. This Court retains exclusive jurisdiction with respect to all matters arising from or 

related to the implementation, interpretation, and enforcement of this Order. 

Dated: ________ 

Richmond, Virginia UNITED STATES BANKRUPTCY JUDGE 

WE ASK FOR THIS: 

/s/ [DRAFT] 

Michael A. Condyles, Esq. (VA 27807) 

Peter J. Barrett, Esq. (VA 46179) 

Jeremy S. Williams, Esq. (VA 77469) 

Brian H. Richardson, Esq. (VA 92477) 

KUTAK ROCK LLP 

901 East Byrd Street, Suite 1000 

Richmond, Virginia 23219-4071 

Telephone: (804) 644-1700 

Facsimile: (804) 783-6192 

- and - 

Dennis F. Dunne, Esq. (admitted pro hac vice) 

Evan R. Fleck, Esq. (admitted pro hac vice) 

Michael W. Price, Esq. (admitted pro hac vice) 

MILBANK LLP

55 Hudson Yards

New York, New York 10001 

Telephone: (212) 530-5000 

Facsimile: (212) 530-5219 

Co-Counsel for Debtors in Possession 

CERTIFICATION OF ENDORSEMENT 

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed 

order has been endorsed by or served upon all necessary parties. 

/s/ [DRAFT]_______________

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