Free Designation of Record on Appeal - District Court of Delaware - Delaware

Case 1:04-cv-00371-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIRCUIT COURT DOCKET NUMBER: 05-2365 Chapter 11 Case No. 03-10945-MFW

In Re: FLEMING COMPANIES, INC., et al., Debtors. AWG ACQUISITION, LLC, et al., Appellants, v. ALBERTSON'S INC., Appellee,

Civ. No. 04-371-SLR DISTRICT COURT JUDGE: HON. SUE L. ROBINSON

AWG ACQUISITION, LLC'S AND ASSOCIATED WHOLESALE GROCERS, INC.'S DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD ON APPEAL AND STATEMENT OF ISSUES TO BE PRESENTED AWG Acquisition, LLC and Associated Wholesale Grocers, Inc. (collectively "AWG") submit the following designation of items to be included in the record on appeal and statement of issues to be presented: DESIGNATION OF ITEMS TO BE INCLUDED IN RECORD ON APPEAL As set forth in AWG's Notice of Appeal (D.I. 8067), AWG is appealing the judgments, orders and decrees entered by the Bankruptcy Court on February 27, 2004 (D.I. 6916, 6917) and May 6, 2004 (D.I. 7854) and the Order entered by the District Court on May 30, 2005 (D.I. 20). AWG designates and requests that the following items be included in the record on appeal:

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Case 1:04-cv-00371-SLR

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Case No. 03-10945 In the U.S. Bankruptcy Court for the District of Delaware Docket No. 2716 Title/Description Notice re Initial Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection With Sale Motion. [Filed August 4, 2003] Debtors' Motion for an Order Pursuant to Section 365 of the Bankruptcy Code Authorizing Debtors to Assume and Assign Certain Unexpired Executory Contracts With Albertson's. [Filed September 3, 2003] Objection of Albertson's, Inc. to the Debtors' Motion for an Order Pursuant to Section 365 of the Bankruptcy Code Authorizing Debtors to Assume and Assign Certain Unexpired Executory Contracts With Albertson's. [Filed November 26, 2003] Motion to Strike Objection of Albertson's, Inc. to Motion to Assume and Assign to AWG Certain Unexpired Contracts With Albertson's, Inc. [Filed December 2, 2003]. Sign-In Sheet. [Filed December 4, 2003] Transcript of Hearing Held on December 4, 2003. [Filed December 12, 2003] Post-Trial Memorandum of Albertson's, Inc. in Opposition to The Debtors' Motion for an Order Pursuant to Section 365 of the Bankruptcy Code Authorizing Debtors to Assume and Assign Certain Unexpired Executory Contracts With Albertson's. [Filed December 23, 2003] Post-Hearing Brief of AWG Acquisition, LLC and Associated Wholesale Grocers, inc. in Support of Debtors' Motion to Assume and Assign Certain Executory Contracts With Albertson's (D.I. 2716, 3521) and in Opposition to Albertson's Objection (D.I. 4631). [Filed December 24, 2003] Opinion, entered February 27, 2004. Order, entered February 27, 2004 Motion of AWG Acquisition, LLC and Associated Wholesale Grocers, Inc. to Alter and Amend the Court's Order of February 27, 2004 and Opening Brief in Support. [Filed March 8, 2004]

3521

4631

4697

4771 5043 5161

5168

6916 6917 7074

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7515

Response of Albertson's, Inc. to the Motion of AWG Acquisition, LLC and Associated Wholesale Grocers, Inc. to Alter and Amend the Court's Order of February 27, 2004 and Opening Brief in Support. [Filed April 7, 2004] Order Denying the Motion of AWG Acquisition, LLC and Associated Wholesale Grocers, Inc. to Alter and Amend the Court's Order of February 27, 2004. [Filed May 6, 2004] Exhibits introduced into evidence at December 4, 2003 hearing: Exhibit 1--Facility Standby Agreement (Tulsa), dated June 28, 2002. Exhibit 2--Facility Standby Agreement (Lincoln), dated June 28, 2002 Exhibit 8--DFW/Fleming Update Meeting December 17, 2002 Notes and Action Items Case No. 1:04-c-00371-SLR In the U.S. District Court, District of Delaware (Wilmington) 1 Notice of Appeal by AWG Acquisition LLC, Assoc Grocers of the Orders of the Bankruptcy Court entered on 2/27/04 and 5/5/04 signed by the Hon. Mary F. Walrath [Filed 6/14/2004] Appellant's Opening Brief by AWG Acquisition LLC, Assoc Grocers [Filed 7/26/2004] Opening Appellee's Brief by Albertson's, Inc. [Filed 8/19/2004] Appellant's Reply Brief by AWG Acquisition LLC, Assoc Grocers [Filed 9/8/2004] Order - Appeal is Denied and the decision of the bankruptcy court dated 2/27/04 is affirmed. Signed by Judge Sue L. Robinson on 3/30/05 Notice of Appeal of Order to the United States Court of Appeals for the Third Circuit. Appeal filed by AWG Acquisition LLC, Associated Wholesale Grocers, Inc [Filed 4/28/2005]

7854

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14 16 18 20

21

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STATEMENT OF ISSUES TO BE PRESENTED 1. Whether the Court erred in denying the Debtors' motion to assume and assign the

Oklahoma FSA. 2. Whether the District Court erred in affirming the Bankruptcy Court's denial of the

Debtors' motion to assume and assign the Oklahoma FSA. Dated: May 9, 2005 Respectfully submitted, /s/ Selinda A. Melnik Selinda A. Melnik (Bar No. 4032) EDWARDS & ANGELL, LLP 919 North Market Street Wilmington, Delaware 19801 Telephone: (302) 777-7770 Facsimile: (302) 777-7263 E-mail: [email protected] -andMark T. Benedict MO #44621 HUSCH & EPPENBERGER, LLC 1200 Main Street, Suite 1700 Kansas City, Missouri 64105 Telephone: (816) 421-4800 Facsimile: (816) 421-0596 E-mail: [email protected] Counsel for Appellants AWG Acquisition, LLC and Associated Wholesale Grocers, Inc.

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