DEBTOR’S MOTION TO EXTEND TIME TO ASSUME OR REJECT LEASE PAGE 1 OF 6

MULLIN HOARD & BROWN, L.L.P.

Steven L. Hoard, SBN: 09736600

Alysia Córdova, SBN: 24074076

Flannery Nardone, SBN: 24083183

P.O. Box 31656

Amarillo, Texas 79120-1656

Telephone: (806) 372-5050

Facsimile: (806) 372-5086

shoard@mhba.com

acordova@mhba.com

fnardone@mhba.com

Counsel for Debtor

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

IN RE:

CAPROCK MILLING & CRUSHING, 

LLC,

Debtor.

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Case No. 23-20251-RLJ-11

DEBTOR’S MOTION TO EXTEND TIME TO

ASSUME OR REJECT LEASE OF REAL PROPERTY

NO HEARING WILL BE CONDUCTED HEREON UNLESS A WRITTEN RESPONSE IS 

FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AT U.S. 

BANKRUPTCY COURT 205 SOUTHEAST 5TH AVE, ROOM 133 AMARILLO, TEXAS 

79101-1559 BEFORE CLOSE OF BUSINESS ON MARCH 21, 2024, WHICH IS AT LEAST 

21 DAYS FROM THE DATE OF SERVICE HEREOF. 

ANY RESPONSE SHALL BE IN WRITING AND FILED WITH THE CLERK, AND A 

COPY SHALL BE SERVED UPON COUNSEL FOR THE MOVING PARTY PRIOR TO 

THE DATE AND TIME SET FORTH HEREIN. IF A RESPONSE IS FILED A HEARING 

MAY BE HELD WITH NOTICE ONLY TO THE OBJECTING PARTY. IF NO HEARING 

ON SUCH NOTICE OR MOTION IS TIMELY REQUESTED, THE RELIEF 

REQUESTED SHALL BE DEEMED TO BE UNOPPOSED, AND THE COURT MAY 

ENTER AN ORDER GRANTING THE RELIEF SOUGHT OR THE NOTICED ACTION 

MAY BE TAKEN.

TO THE HONORABLE ROBERT L. JONES, U.S. Bankruptcy Judge:

NOW COMES, CapRock Milling & Crushing, LLC, the Debtor in the above-referenced 

bankruptcy proceeding and files this Motion to Extend Time to Assume or Reject Lease of Real 

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Property (“Motion”). In support, the Debtor would respectfully show the Court as follows:

I.

JURISDICTION

1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. 

This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue is proper in this District and 

before this Court pursuant to 28 U.S.C. §§ 1408 and 1409. The legal predicates for the relief 

requested herein are Bankruptcy Code section 365(d)(4)(B)(ii) and Bankruptcy Rule 6006.

II.

BACKGROUND

2. On November 3, 2023 (the “Petition Date”), Debtor commenced this case by filing 

a petition for relief under Chapter 11 of the Bankruptcy Code. Debtor has been operating its 

business as a debtor-in-possession.

3. Debtor is a Texas limited liability company dealing in primarily in the processing 

and storage of agricultural commodities. 

4. Specifically, Debtor leases a warehouse located at 8911 Bethlehem Boulevard, 

Sparrows Point, Baltimore, Maryland (the “Warehouse”) from TPA Properties 8, LLC (“TPA”), 

where it operates its business (the “Lease”).

5. Ultimately, Debtor intends to market and sell the business. The Lease is one of the 

Debtor’s most valuable assets. 

6. Earlier in the case, Debtor was behind on post-petition rent under the Lease. 

Consequently, TPA filed its Motion for Relief from the Automatic Stay for Debtor’s Failure to 

Pay Post-Petition Rent [Doc. 46] and TPA Properties 8, LLC’S Motion to Compel Payment of 

Post-Petition Rent and For Assumption or Rejection of Unexpired Non-Residential Real Property 

Lease [Doc. No. 45].

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7. The Debtor paid past due post-petition rent and those motions were resolved by 

agreement in the form of two agreed orders identical in substance. The orders state that TPA agreed 

it will not oppose a ninety-day extension of the time to assume or reject the Lease. [Doc. Nos. 88 

& 89].

II.

RELIEF REQUESTED

8. By this Motion, Debtor seeks entry of an order to extend the time within which they 

must assume or reject the Lease, as required by § 365(d)(4)(B)(i), for an additional ninety (90) 

days to June 2, 2024.

III.

ARGUMENTS AND AUTHORITIES

9. The Debtor is a party to the Lease, and the period in which the Debtor may assume 

or reject the Lease is set to expire on March 4, 2024.

10. Pursuant to section 365(d)(4) of the Bankruptcy Code, a debtor is deemed to have 

rejected a nonresidential real property lease under which it is the lessee upon the earlier of (a) 120 

days from the petition date or (b) the date the bankruptcy court confirms a plan of reorganization 

in the debtor’s case, unless the debtor affirmatively assumes such leases prior to those expiration 

dates. See 11 U.S.C. § 365(d)(4)(A). Accordingly, without the relief requested herein, if the Lease 

is not (a) assumed within the initial 120-day statutory period or (b) is not subject to a motion to 

assume, the Lease will be deemed rejected.

11. The Court may extend the initial statutory period for 90 days on the motion of the 

debtor or lessor for cause. 11 U.S.C. § 365(d)(4)(B). While “cause” is not defined in the 

Bankruptcy Code, courts consider a variety of factors to determine whether cause exists to extend 

the time to assume or reject unexpired leases of nonresidential real property, including the 

following:

(a) whether the lease is the debtor’s primary asset; 

(b) whether the debtor has had sufficient time to intelligently appraise its 

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financial situation and potential value of its assets in terms of the 

formulation of a plan of reorganization; 

(c) whether the lessor continues to receive rent for the use of the property; 

(d) whether the debtor’s continued occupation could damage the lessor beyond 

the compensation available under the Bankruptcy Code; 

(e) whether the case is exceptionally complex and involves a large number of 

leases;

(f) whether the debtor has failed or is unable to formulate a plan when it has 

had sufficient time to do so; and any other factors bearing on whether the 

debtor has had a reasonable amount of time in which to decide whether to 

assume or reject the lease. 

See, e.g., In re Am. Healthcare Mgt. Inc., 900 F.2d 827, 833 (5th Cir. 1990) (discussing factors 

relevant to section 365(d)(4) analysis of whether “cause” exists to extend the time to assume or 

reject unexpired leases); In re Panaco, Inc., No. 02-47811-H3-11, 2002 WL 31990368, at *5

(Bankr. S.D. Tex. Dec. 10, 2002) (citing similar factors); see also S. St. Seaport Ltd. P’ship v. 

Burger Boys, Inc. (In re Burger Boys, Inc.), 94 F.3d 755, 761–62 (2d Cir. 1996) (same). 

12. The Debtor is in the process of marketing its business for sale. Accordingly, the 

Debtor is not able to determine if it should assume and assign or reject the Lease by the existing 

deadline. 

13. Additionally, it is remaining current on rental payments, and TPA, the other party 

to the lease, has consented to a ninety-day extension satisfying factors (c) and (d) above. 

14. The Debtor does not believe any parties will be harmed by the requested extension.

15. Debtor would ask that it be allowed an extension of ninety (90) days from March 

4, 2024, in order to allow time to assume or reject the unexpired lease. Debtor believes that an 

additional ninety (90) days will provide sufficient time.

16. No previous request for relief related to the Lease sought herein has been made by 

debtor to this Court or any other court. This Motion is sought in good faith and not for the purpose 

of delay.

IV.

PRAYER

WHEREFORE, the Debtor respectfully requests entry of an order extending the time to

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assume or reject the unexpired lease for an additional ninety (90) days to the time period prescribed 

in the Bankruptcy Rules, allowing Debtor until June 2, 2024. Further, the Debtor prays for such 

other and further relief, at law or in equity, to which the Debtor may show itself justly entitled.

Respectfully Submitted,

MULLIN HOARD & BROWN, L.L.P.

P.O. Box 31656

Amarillo, Texas 79120-1656

Telephone: (806) 372-5050

Facsimile: (806) 372-5086

/s/ Steven L. Hoard

Steven L. Hoard, SBN: 09736600

Alysia Córdova, SBN: 24074076

Flannery Nardone, SBN: 24083183

shoard@mhba.com

acordova@mhba.com

fnardone@mhba.com

Counsel for Debtor CapRock Milling & Crushing, LLC

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Motion was served on all parties 

receiving notice via ECF on this 29th day of February 2024.

/s/ Steven L. Hoard

Steven L. Hoard

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