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UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION IN RE: DELTA PRODUCE, L.P.1 DEBTOR CASE NUMBER 12-50073-LMC

CHAPTER 11

MOTION OF WORTHAM INSURANCE & RISK MANAGEMENT FOR AN ORDER FOR RELIEF FROM THE AUTOMATIC STAY IN ORDER TO TERMINATE AN EXECUTORY CONTRACT TO THE HONORABLE JUDGE OF THIS COURT: NOW COMES WORTHAM INSURANCE & RISK MANAGEMENT (hereinafter "Movant") and pursuant to 11 U.S.C 362(d), and Rules 4001(a) and 9014 of the Rules of Bankruptcy Procedure, files this its Motion for Relief from the Automatic Stay. In support of its motions, Movant would show the following: 1. This Court has jurisdiction of the subject matter of these Motions pursuant to 28 U.S.C. This is a "core proceeding" pursuant to 28 U.S.C. 1334, 28 U.S.C. 157, 11 U.S.C. 362 and the general order of reference of the United States District Court for the Western District of Texas. 2. 157(b)(2)(G). Venue is proper under 28 U.S.C. 1408 and1409. On or about January 3, 2012, Delta Produce, L.P. (hereinafter Delta) and Superior Tomato Avocado, Ltd. (hereinafter Superior) filed voluntary petitions for relief under Chapter 11 U.S.C. 1101 et seq. (the Bankruptcy Code) in the Western District of Texas. The filing of these voluntary petitions operates as an automatic stay against Movant's rights to take any act to exercise control over property of these estates. 3. Prior to the filing of these petitions, Wortham served as the insurance agent for both Delta in Superior. In that regard, Wortham procured certain insurance policies through The Cincinnati Indemnity Company and St. Paul Travelers Insurance Company on behalf of Delta and Superior with a three year term, beginning April 5, 2010 and terminating at midnight, April 4, 2013. The policies with a three year contract provision include: DELTA: Property and Inland Marine Scheduled Equipment Electronic Data Processing Crime Insurance Equipment Breakdown Commercial General Liability Business Automobile Commercial Umbrella
1

Debtors include both Delta Produce, L.P. Case No. 12-50073 and Superior Tomato Avocado, Ltd. Case No. 12-50074.

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SUPERIOR Property Equipment Breakdown Scheduled Equipment Commercial General Liability Business Automobile Commercial Umbrella 4. Because these insurance policies were initially offered as three year policies with annual

premium adjustments, Wortham, as the agent for these policies is obligated to offer them to Delta and Superior for renewal. Therefore, and in order to comply with its obligations as agent for the policies, Wortham notified Delta and Superior on or around March 16, 2012, by and through their counsel, that the above referenced insurance policies were coming up for renewal and requested that Delta and Superior voluntarily either assume these contracts or reject them. 5. Upon information and belief, Delta and Superior did not previously understand that these contracts were executory in nature and were under the belief that the policies would expire, of their own accord, on April 5, 2012. As a result, Delta and Superior failed to list these insurance contracts as executory contracts in their petitions. 6. Section 11 U.S.C. 362(a)(3) provides that the filing of a bankruptcy petition operates as a stay of "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." "Property of the estate" is defined in section 541(a) of the Code as "all legal or equitable interests of the debtor in property as of the commencement of the case. Under this definition, insurance contracts have been construed to be property of the estate and subject to the provisions of the automatic stay. 7. Pursuant to Section 362(d)(2), Movant requests that the Court grant relief from the automatic stay to allow Movant to cancel the insurance contracts as of April 4, 2012 on the basis that Debtor has no equity in these insurance contracts and because these contracts are not necessary for an effective reorganization. In fact, Delta and Superior did not anticipate that the insurance coverage would continue and, upon information and belief, has been in the process of procuring its own insurance. 8. In addition to the foregoing and without waiving the same, Movant would show that cause exists for immediate relief from the automatic stay because Movants interests are not adequately protected within the meaning of 362(d)(1) of the Code for the following reasons: a. Simultaneously with the filing of this Motion to Lift Stay, Movant has filed a Motion to Limit the Time to Assume or Reject an Executory Contract. Should this motion not be granted in Movants favor, or even if it is, if Delta and Superior elect to assume the contract, if Movant is not given adequate assurance that Delta and Superior can and will pay for these annual premiums on or before

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midnight of April 4, 2012, Wortham will be irreparably harmed as the result of having to pay for these premiums on behalf of Delta and Superior as the result of its contractual obligations with The Cincinnati Indemnity Company and St. Paul Travelers Insurance Company. b. $96,000.00. The total amount of the premiums that Movant will be required to pay is almost Although Movant will be entitled to a refund upon cancellation, cancellation of these

policies can only be given after ten (10) days notice to Delta and Superior. During those ten (10) days, a premium will be earned that will not be recouped or offset by any premium refund. c. In addition, if the Movant is forced to wait until Delta and Superior do not pay for the insurance premiums, and if they may only then file a Motion to Lift Stay, the delay will be of even greater duration, forcing Movant to incur more substantial obligations on behalf of Delta and Superior, with little recourse, other than an administrative claim, for the amount paid. Moreover, Movant will only be entitled to an offset after filing yet another motion allowing the same, causing Movant to incur yet other costs associated therewith. d. Upon information and belief, Delta and Superior are unwilling or unable to make adequate protection payments to Movant. It is Movants belief that Delta and Superior will be unable to obtain financing for the premiums, based upon their experience as agents in this market. e. Upon information and belief, Delta and Superior did not rely on insurance being provided by Movant and have already procured other insurance or have made other provisions to obtain insurance through other means. WHEREFORE, PREMISES CONSIDERED, Movant prays that after hearing of this Motion, the stay imposed pursuant to 11 U.S.C. 362 be modified to permit Movant immediately send a notice of cancellation of the insurance contracts which are the subject of this Motion if Superior and Delta do not pay the full annual premiums on or before April 5, 2012; to authorize Movant to offset any refunds received due to the cancellation against any premiums Movant paid on behalf of Delta and Superior; to allow Movant an administrative claim for the difference between what they have had to pay on behalf of Delta and Superior and whatever refund they are allowed; or, alternatively, that the Court provide Movant with adequate protection in the form of an order authorizing Delta and Superior to use its cash collateral to pay for the insurance premiums due on April 4, 2012; and for such other and further relief, both at law and in equity to which Movant may show itself to be justly entitled. Respectfully submitted, HABBESHAW KALMANS P.C. 9901 I. H. 10 West, Suite 460 San Antonio, TX 78230 (210) 699-8086 (Phone) (210) 699-3409 (Fax) By: /s/Patricia A. Kalmans Patricia A. Kalmans State Bar No. 11082500

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CERTIFICATE OF SERVICE I hereby certify that on the 21st day of March, 2012, a true and correct copy of the foregoing Motion was served via electronic means to all parties entitled to receive electronic notice, as well as all parties entitled to receive notice but not enlisted to receive electronic notice (including the Debtor and parties who have filed a notice of appearance requesting service by mail) by first class mail, postage prepaid, and the 20 largest unsecured creditors. /s/Patricia A. Kalmans Patricia A. Kalmans Debtor: Delta Produce, LP 201 S. Laredo St. San Antonio, TX 78207 Debtors Attorney Allen M. DeBard R. Glen Ayers, Jr William R. Davis, Jr. Langley & Banack, Inc. 745 E. Mulberry, Suite 90 San Antonio, TX 78212 Debtors Attorney: Craig A. Stokes Stokes Law Offices, LLP 3330 Oakwefl Court, Suite 225 San Antonio,TX 78218

Debtor: Superior Tomato Avocado, Ltd. 2001 S. Laredo St. San Antonio, TX 78207 United States Trustee: Judy A. Robbins P.O. Box 1539 San Antonio, TX 78295-1 539

and by regular mail, postage prepaid, to the following parties: 20 Largest Unsecured Creditors Harvest Crown Co., Inc. P.O. Box 13578 Bakersfield, CA 93389 Harllee Packing, Inc. P.O. Box 8 Palmetto, FL 34220 A&A Transportation, Inc. 4741 College Park San Antonio, TX 78249 Slankard Produce Co., Inc. 1500 S. Zarzamora San Antonio, TX 78207 Juniper Tomato Grower, Inc. P.O. Box 38 Greensboro, FL 32330 J-C Distributing, Inc 2731 N. Donna Ave Nogales, AZ 85621 Royal Flavor, LLC 2655 Melksee St. San Diego, CA 92154 Kingdom Fresh Produce, Inc. 2243 North Goolie Rd., #A Donna, TX 78537 Bernardi & Association 557 E. Frontage Rd Nogales, AZ 85621 Franks Distributing of Produce. P.O. Box 22020 Nogales, AZ 85628-2020 Mission Produce, Inc. 2500 Vineyard Ave., Suite 300 Oxnard, CA 93036 Del Camp Supreme, Inc. 672 W. Frontage Rd. Nogales, AZ 85621

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Divine Ripe, LLC 700 S. Bridge St., Suite C Hidalgo, TX 78557 Valero Marketing & Supply P.O. Box 300 Amarillo, TX 79105-0300 Rio Queen Citrus 4012 E. Goodwin Rd. Mission, TX 78574 Dimare Newman, Inc. P.O. Box 517 Newman, CA 95360-0517 Delta Produce Marketing 2001 S. Laredo St. San Antonio, TX 78207 Bonzana 2001 c/o Kevin P. Kelley 1278 W. Northwest Hwy, Ste. 903 Palatine, IL 60067 Parties Requesting Notice Randy A. Pulman, Leslie Hyman Elliott S. Cappuccio Pulman Cappuccio Pullen & Benson, LLP 2161 NW Military Hwy, Ste 400 San Antonio, TX 78213 Bruce W. Akerly Cantey Hanger, LLP 1999 Bryan St., Suite 3300 Dallas, TX 75201 Michael J. Black Burns & Black, PLLC 750 Rittiman Road San Antonio, TX 78209 Zachary B. Aoki Thurman & Phillips, PC 8000 111 10 West, Suite 1000 San Antonio, TX 78230 Stephen G. Wilcox Bassel & Wilcox P.O. Box 11509 Ft. Worth, TX 76110-0509 Robert J. Reagan Reagan McLain Lee & Hatch, LLP 6060 N. Central Expressway Suite 690 Dallas, TX 75206 Paul D. Barkhurst Barkhurst Hinojosa, PC 110 Broadway, Suite 350 San Antonio, TX 78205 Alamo Leasing 2010 NW Military Hwy San Antonio, TX 78213 IFCO Systems NA 5250 Tacco Drive San Antonio, TX 78207

David G. Aelvoet Linebarger Goggan Blair & Sampson, LLP 711 Navarro, Suite 300 San Antonio, TX 78205 Michael J. Colvard Martin & Drought, PC 2500 Bank of America Plaza 300 Convent St. San Antonio, TX 78205 Celinda B. Guerra Flume Law Firm, LLP lO2O NE Loop 410, Suite 200 San Antonio, TX 78209 John Kurt Stephen Cardenas & Stephen, LLP 100 South Bicennial McAllen, TX 78501 Robert E. Goldman 1 East Broward Blvd., Suite 700 Ft. Lauderdale, FL 33301

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William H. Daniel McGinnis, Lockridge & Kilgore,LLP 600 Congress Ave, Ste. 2100 Austin, TX 78701 Stephen E. Nurenberg Meuers Law Firm, P.L. 5395 Park Centra Court Naples, FL 34109 Jessie Lopez Stoke Law Office, LLP 3330 Oakwell Ct. Ste. 225 San Antonio, TX 78218 Evan Goldstein Updike, Kelley & Spellacy, P.C. 100 Pearl St., 17th Floor Hartford, CT 06123-1277 Paul Thomas Curl Curl & Stahl, P.C. 700 North St. Marys St., Ste. 1930 San Antonio, TX 78205 Kevin P. Kelley Keaton & Assoc. 1278 W. Northwest Hwy, Ste. 903 Palatine, IL 60067 Scott Fink Lakeside Place, Suite 200 323 W. Lakeside Ave. Cleveland, OH 44113-1099 Diana M. Geis Curl & Stahl 700 N. St. Marys St. Suite 1930 San Antonio, TX 78205