IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC.

,1 et al., Debtors. Chapter 11 Case No. 11-11795 (___) Joint Administration Pending

DEBTORS MOTION PURSUANT TO 11 U.S.C. 105(a), 503(b)(9), AND 507(a) FOR AN ORDER AUTHORIZING DEBTORS TO PAY CERTAIN PRE-PETITION CLAIMS OF SUPPLIERS AND VENDORS OF GOODS ENTITLED TO ADMINISTRATIVE PRIORITY Perkins & Marie Callenders Inc. (f/k/a The Restaurant Company) (PMCI) and its above-captioned affiliated debtor entities (collectively, with PMCI, the Debtors), by and through their undersigned proposed counsel, respectfully submit this Motion (the Motion) for entry of an order pursuant to sections 105(a), 503(b)(9), and 507(a) of title 11 of the United States Code, 11 U.S.C. 101 et. seq. (the Bankruptcy Code), authorizing the Debtors to pay the pre-petition claims of certain suppliers of goods entitled to administrative priority under section 503(b)(9) of the Bankruptcy Code. In support of this Motion, the Debtors submit and incorporate by reference herein the Declaration of Joseph F. Trungale in Support of Debtors Chapter 11 Petitions and First Day Motions, filed contemporaneously with this Motion. In further support of this Motion, the Debtors respectfully state as follows:

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.

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Jurisdiction and Venue 1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and

1334. This is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue of the above-captioned chapter 11 cases and this Motion are proper in this

District pursuant to 28 U.S.C. 1408 and 1409. 3. The statutory predicates for the relief requested herein are sections 105, 503(b),

and 507(a) of the Bankruptcy Code. Factual Background 4. On June 13, 2011 (the Petition Date), each of the Debtors filed a voluntary

petition (collectively, the Petitions) for relief under chapter 11 of the Bankruptcy Code, and each thereby commenced chapter 11 cases (collectively, the Chapter 11 Cases) in this Bankruptcy Court (the Court). No request has been made for the appointment of a trustee or examiner, and the Debtors continue to operate their businesses and manage their properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. As of the date hereof, no Official Committee of Unsecured Creditors has been appointed in any of the Chapter 11 Cases. A. The Debtors Businesses 5. The Debtors are one of the leading operators of family-dining and casual-dining

restaurants, under their two (2) highly-recognized brands: (i) their full-service family dining restaurants located primarily in the Midwest, Florida and Pennsylvania under the name Perkins Restaurant and Bakery (Perkins), and (ii) their mid-priced, full-service casual-dining restaurants, specializing in the sale of pies and other bakery items, located primarily in the

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western United States under the name Marie Callenders Restaurant and Bakery (Marie Callenders). 6. Through the Debtors Foxtail Foods bakery goods manufacturing operations

(Foxtail), the Debtors offer pies, muffin batters, cookie doughs, pancake mixes, and other food products for sale to both company-owned and franchised Perkins and Marie Callenders restaurants, and to unaffiliated customers, such as food service distributors and supermarkets, as well as on-line to the public. 7. As of April 17, 2011, the Debtors owned and operated one hundred sixty (160)

Perkins restaurants located in thirteen (13) states, and franchised three hundred fourteen (314) Perkins restaurants located in thirty-one (31) states and five (5) Canadian provinces. Similarly, the Debtors owned and operated eighty-five (85) Marie Callenders restaurants located in nine (9) states, and franchised thirty seven (37) Marie Callenders restaurants located in four (4) states and Mexico.2 Thus, the Debtors operate or franchise approximately six hundred (600) restaurants throughout the United States, Canada and Mexico.* 8. As of April 17, 2011, the Debtors employed approximately twelve thousand three

hundred fifty (12,350) employees, consisting of approximately five thousand three hundred fifty (5,350) part-time employees and approximately seven thousand (7,000) full-time employees.* 9. $507 million. The Debtors revenues for the year ended December 26, 2010 were approximately

Included therein, MCPSI operates two (2) Callenders Grill restaurants in Los Angeles, California and a single East Side Marios restaurant in Lakewood, California. * Immediately prior to the Petition Date, the Debtors initiated a store reduction program to discontinue approximately sixty-five (65) corporate-operated restaurant locations, which will have the attendant effect of a reduction in workforce of approximately 2,500 people.

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B.

Corporate Structure and Pre-Petition Capitalization 10. Perkins & Marie Callenders Holding Inc. (f/k/a The Restaurant Holding

Corporation) is a holding company that wholly owns PMCI. PMCI is the Debtors principal operating entity and the primary obligor on the Debtors pre-Petition Date senior secured working capital facility and their secured and unsecured bond debt. PMCI directly or indirectly owns and operates the Debtors restaurant operations, oversees the Debtors franchised restaurant operations, and owns and operates its Foxtail business. 11. On September 24, 2008, PMCI issued $132 million in aggregate principal amount

of 14% Senior Secured Notes (the Senior Secured Notes), with a maturity date of May 31, 2013 and interest payable semi-annually on May 31 and November 30 of each year. Prior thereto, on September 21, 2005, PMCI issued $190 million of 10% Senior Notes (the Senior Notes), with a maturity date of October 1, 2013 and interest payable semi-annually on April 1 and October 1 of each year. Concurrently with the issuance of the Senior Secured Notes, PMCI and PMC Holding entered into a Credit Agreement dated as of September 24, 2008 (as amended, the Credit Agreement) with Wells Fargo Capital Finance, LLC (f/k/a Wells Fargo Foothill, LLC) as the lender and administrative agent (the Credit Facility Agent), consisting of a revolving credit facility in favor of PMCI, as borrower, of up to $26,000,000, with a sub-limit of $15,000,000 for the issuance of letters of credit (collectively, the Credit Facility). As of the Petition Date, approximately $103,000,000 in aggregate principal amount of the Senior Secured Notes are outstanding, $190,000,000 in aggregate principal amount of the Senior Notes are outstanding, and approximately $10,060,000 in principal amount is outstanding under the Credit Facility (comprised solely of outstanding letters of credit).

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12.

Effective April 30, 2011, PMCI and various of the other Debtors entered into two

(2) forbearance agreements (collectively, the Forbearance Agreements), one (1) with the holders of in excess of eighty (80%) percent in aggregate principal amount of the Senior Notes (the Senior Note Forbearance Agreement), and one (1) with the lender and Credit Facility Agent under the Credit Agreement. 13. In the weeks preceding the Petition Date, the Debtors entered into a

Restructuring Support Agreement dated as of June 6, 2011 with the holders of the Senior Notes signatory to the Senior Note Forbearance Agreement and the holders of one hundred (100%) percent of the Senior Notes (collectively, the Restructuring Support Parties) designed to mutually and consensually develop and agree upon the parameters of a reorganization program for the Debtors that will, among other things, delever the Debtors capital structure, and thereby establish a pre-filing blueprint for an efficient and effective chapter 11 reorganization process. In connection with entering into the Restructuring Support Agreement, the Debtors and the Restructuring Support Parties also negotiated the principal terms of the Debtors plan of reorganization, and such plan of reorganization and the accompany disclosure statement will be filed with the Court on or before July 14, 2011 in accordance with the milestones contained in the Restructuring Support Agreement. Relief Requested 14. By this Motion, and in order to obtain and ensure timely delivery from their

suppliers and vendors of food and beverages and goods related to the preparation and service thereof (collectively, the Goods), and to help ensure that the Debtors have access to postpetition trade credit from the suppliers of these vital Goods, the Debtors seek entry of an order authorizing, but not directing, payment, in the ordinary course of the Debtors business, of pre-

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petition claims of suppliers and vendors entitled to administrative priority under sections 503(b)(9) and 507(a)(2) of the Bankruptcy Code (such suppliers and vendors together, the Priority Vendors) for those undisputed obligations arising from Goods received by the Debtors from such Vendors in the ordinary course of business within twenty (20) days before the Petition Date (such administrative expense claims, collectively, the Priority Vendor Claims). 15. In the ordinary course of the Debtors businesses, with due regard to the limited

prepetition credit and payment terms imposed by vendors and suppliers, numerous Priority Vendors provide the Debtors with Goods that will be essential to the sustained operations of the Debtors both in the short term and during the reorganization period. If the Priority Vendors are not paid in the ordinary course of the Debtors businesses on account of their Priority Vendor Claims, such Priority Vendors are unlikely to provide the Debtors with post-petition trade credit and may refuse to continue providing the Debtors with Goods after the Petition Date. The Debtors operate approximately two hundred forty five (245) restaurants and franchise approximately three hundred fifty one (351) restaurants that rely on necessary deliveries from the Priority Vendors of food and beverages and goods related to the preparation and service thereof multiple times per week and on an as needed basis. Similarly, the Debtors separately operate (3) manufacturing facilities that rely on frequent deliveries of product from Priority Vendors that are dependant on production schedules at such facilities. Accordingly, any delay or disruption in the continuous flow of Goods to the Debtors could result in an immediate shut down of the Debtors restaurants. 16. As of the Petition Date, the Debtors estimate that the Priority Vendor Claims total

approximately $6,000,000 in the aggregate.

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17.

Absent the relief requested in this Motion, the Debtors would face the very real

possibility that the Priority Vendors would cease delivery of Goods, causing a significant disruption to, if not the cessation of, the Debtors businesses. An order of this Court confirming that all undisputed obligations of the Debtors arising from Goods delivered in the ordinary course of the Debtors businesses in the twenty (20) days prior to the Petition Date may (but are not required to) be paid by the Debtors in the ordinary course, pursuant to sections 503(b)(9) and 507(a)(2) of the Bankruptcy Code, will help ensure continuous delivery of Goods to the Debtors. Therefore, the relief requested herein should be granted because it is critical to the Debtors continued operation and, consequently, is in the best interests of the Debtors creditors and estates. A. Proposed Terms and Conditions of Payment of Priority Vendor Claims 18. The Debtors hereby request authorization (but not direction) to pay the Priority

Vendor Claims, as determined by the Debtors in their sole discretion, in order to continue receiving the Goods provided by the Priority Vendors. Subject to the terms set forth below, the Debtors propose to condition the payment of the Priority Vendor Claims on the agreement of individual Priority Vendors to continue supplying Goods to the Debtors on the trade terms that such Priority Vendors provided Goods to the Debtors on a historical basis prior to the Petition Date (the Customary Trade Terms), or pursuant to such other favorable trade practices and programs that are agreed to by the Debtors, in their sole discretion. The Debtors reserve the right to negotiate new trade terms with any Priority Vendor as a condition to payment of any Priority Vendor Claim; provided, however, that the Debtors will provide the Restructuring Support Parties with at least five (5) business days notice of any material modifications to any trade terms under which any material Priority Vendor provided Goods to the Debtors as of the Petition Date.

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19.

In the event a Priority Vendor refuses to supply Goods to the Debtors on

Customary Trade Terms (or such other terms as are agreed to by the parties) following receipt of payment on its Priority Vendor Claim, then the Debtors hereby seek authority, in their discretion and without further order of the Court, (a) to declare that any payments made to such Priority Vendor on account of its Priority Vendor Claims be deemed to have been in payment of any then-outstanding (or subsequently accruing) undisputed post-petition claims of such Priority Vendor without further action by any person or entity, and (b) to recover any payment made to such Priority Vendor on account of its Priority Vendor Claims to the extent that such payments exceeded the undisputed post-petition claims of such Priority Vendor, without giving effect to any rights of setoff or recoupment, claims, provision for payment of reclamation or trust fund claims, or other defenses; provided, however, that upon recovery of any such payments by the Debtors, the applicable portion of the Priority Vendor Claims shall be reinstated as such in the amount recovered by the Debtors. 20. In sum, in the event a Priority Vendor refuses to supply Goods to the Debtors on

Customary Trade Terms (or such other terms as have been agreed by the parties) following receipt of payment on its Priority Vendor Claim, the Debtors seek authority to return the parties to the positions they held immediately prior to the entry of the Order approving this Motion with respect to all pre-petition claims. In addition, the Debtors reserve the right to seek damages or other appropriate remedies against any breaching Priority Vendor. Basis For Relief Requested 21. Under section 503(b)(9) of the Bankruptcy Code, a claim shall be accorded

administrative expense priority where such claim is for the value of any goods received by the debtor within twenty (20) days before the petition date if such goods were sold to the debtor in

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the ordinary course. See 11 U.S.C. 503(b)(9). Furthermore, under section 507(a)(2) of the Bankruptcy Code, administrative expenses allowed under section 503(b) are granted priority status. See 11 U.S.C. 507(a)(2). The Priority Vendor Claims the Debtors seek to pay by this Motion are entitled to priority status under sections 503(b)(9) and 507(a)(2) of the Bankruptcy Code. The Debtors therefore must pay these claims in full to confirm a plan of reorganization. See 11 U.S.C. 1129(a)(9)(A) (requiring payment in full of claims entitled to priority under section 507(a)(2) of the Bankruptcy Code). Thus, granting the relief sought herein would only affect the timing, and not the amount or priority, of the Debtors payment of the Priority Vendor Claims. Therefore, the payment of the Priority Vendor Claims will not prejudice the unsecured creditors of the Debtors estates. 22. Although the Debtors may not be required to pay Priority Vendor Claims prior to

the confirmation of a chapter 11 plan, nothing in the Bankruptcy Code prohibits the Debtors from paying such claims sooner if they choose to do so, or this Court from exercising its discretion to authorize the post-petition payment of such obligations prior to confirmation of a chapter 11 plan. See e.g., In re Bookbinders Restaurant, Inc., Case No. 06-12302, 2006 WL 3858020 at *3 (ELF) (Bankr. E.D. Pa. Dec. 28, 2006) (chapter 11 debtors with adequate resources may pay the allowed administrative expense prior to confirmation); In re Global Home Products, LLC, 2006 Bankr. LEXIS 360 8 (Bankr. D. Del. December 21, 2006) (holding that timing of payment of section 503(b)(9) claim is within discretion of the Court); In re Garden Ridge Corp., 323 B.R. 136, 142-43 (Bankr. D. Del. March 4, 2005). 23. Furthermore, since the enactment of section 503(b)(9) of the Bankruptcy Code,

courts in this jurisdiction have routinely exercised their discretion in favor of granting relief similar to the relief requested herein. See, e.g., In re Harry & David Holdings Inc., Case No. 11-

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10884 (MFW) (Bankr. D. Del. March 29, 2011); In re Javo Beverage Company, Inc., Case No. 88-14000 (BLS) (Bankr. D. Del. Jan. 25, 2011); In re Fluid Routing Solutions Intermediate Holding Corp., Case No. 09-10.384 (CSS) (Bankr. D. Del. Feb. 6, 2009); In re Tweeter Home Entm't Group. Inc., Case No. 07-10787 (PJW) (Bankr. D. Del. June 12, 2007). Indeed, in granting a request for similar relief, at least one judge in this District observed that, arguably the debtor could pay its 503(b)(9) claimants without court approval. In re Dura Automotive Sys., Inc., Case No. 06-11202 (Bankr. D. Del. Oct. 31) (Carey, J.) (approving payment of 503(b)(9) claims as first day relief). 24. As explained above, it is critical to the survival of the Debtors that they continue

to receive Goods from the Priority Vendors on an uninterrupted basis throughout the reorganization process. The Debtors believe that without the relief requested herein, many Priority Vendors may cease delivering Goods to the Debtors, which could have devastating consequences for the Debtors. 25. Accordingly, for all of the foregoing reasons, the Debtors submit that cause exists

for granting the relief requested herein. Request For Immediate Relief and Waiver of Stay to Avoid Immediate and Irreparable Harm 26. The Debtors seek immediate authorization for the relief contemplated by this

Motion. Pursuant to Rule 6003(b) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), the Court cannot grant relief regarding a motion to use, sell, lease or otherwise incur an obligation regarding property of the estate, including a motion to pay all or part of a claim that arose before the filing of the petition within twenty-one (21) days of the filing of the petition unless the relief is necessary to avoid immediate and irreparable harm. Fed.R.Bankr.P. 6003(b). In these cases, relief is necessary to avoid immediate and irreparable 10
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harm because if the Priority Vendors are not paid in the ordinary course on account of their Priority Vendor Claims, such Priority Vendors are unlikely to provide the Debtors with postpetition trade credit and may refuse to continue providing the Debtors with Goods after the Petition Date. Any delay or disruption in the continuous flow of Goods to the Debtors could result in an immediate shut down of the Debtors restaurants and manufacturing facilities. Absent the relief requested in this Motion, the Debtors would face the very real possibility that Priority Vendors would cease delivery of Goods, causing a significant disruption to, if not cessation of, the Debtors businesses. For these reasons and those set forth above, the Debtors submit that the requirements of Bankruptcy Rule 6003(b) are met and that the relief requested in the Motion is necessary to avoid immediate and irreparable harm to the Debtors and their estates. 27. In addition, by this Motion, the Debtors seek a waiver of any stay of the

effectiveness of the order approving this Motion. Pursuant to Bankruptcy Rule 6004(h), [a]n order authorizing the use, sale, or lease of property other than cash collateral is stayed until the expiration of 14 days after entry of the order, unless the court orders otherwise. Fed.R.Bankr.P. 6004(h). For the reasons set forth above, the Debtors submit that ample cause exists to justify a waiver of the fourteen (14) day stay imposed by Bankruptcy Rule 6004(h). Reservation of Rights 28. Nothing contained herein is intended or should be construed as: (a) an admission

as to the validity of any claim against the Debtors; (b) a waiver of the Debtors rights to dispute any claim; or (c) an approval or assumption of any agreement, contract or lease, pursuant to section 365 of the Bankruptcy Code.

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Notice 29. The Debtors will serve notice of this Motion upon: (i) the Office of the United

States Trustee; (ii) the Debtors consolidated list of creditors holding the forty (40) largest unsecured claims; (iii) counsel to the agent for the Debtors pre-petition Credit Facility and postpetition debtor-in-possession financing facility; (iv) counsel to the indenture trustee for the Senior Secured Notes; (v) counsel to the indenture trustee for the Senior Notes; and (vi) counsel to the Restructuring Support Parties. Notice of this Motion and any order entered hereon will be served in accordance with Local Rule 9013-1(m). In light of the nature of the relief requested, the Debtors submit that no other or further notice is necessary. No Prior Request 30. other court. Remainder of page intentionally left blank No prior application for the relief requested herein has been made to this or any

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31.

WHEREFORE, the Debtors respectfully request that the Court enter an order,

substantially in the form annexed hereto as Exhibit A, granting the relief requested in the Motion and such other and further relief as may be just and proper. Dated: June 13, 2011 Wilmington, Delaware Respectfully submitted, YOUNG CONAWAY STARGATT & TAYLOR, LLP By: /s/ Robert S. Brady Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 And TROUTMAN SANDERS LLP Mitchel H. Perkiel Brett D. Goodman The Chrysler Building 405 Lexington Avenue New York, NY 10174 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 Proposed Counsel for Perkins & Marie Callenders Inc., et al. Debtors and Debtors-in-Possession

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EXHIBIT A

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070242.1001

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC.,1 et al., Debtors. Ref. Docket No. _____ ORDER PURSUANT TO 11 U.S.C. 105(a), 503(b), AND 507(a) AUTHORIZING DEBTORS TO PAY CERTAIN PRE-PETITION CLAIMS OF SUPPLIERS AND VENDORS OF GOODS ENTITLED TO ADMINISTRATIVE PRIORITY Upon the Debtors Motion Pursuant to 11 U.S.C. 105(a), 503(b), and 507(a) for an Order Authorizing Debtors to Pay Certain Pre-petition Claims of Suppliers and Vendors of Goods Entitled to Administrative Priority (the Motion);2 and the Court finds that: (i) it has jurisdiction over this matter pursuant to 28 U.S.C 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); (iii) venue of these cases and the Motion are proper in this District pursuant to 28 U.S.C. 1408 and 1409; and (iv) notice of the Motion and the hearing thereon was sufficient under the circumstances; and upon consideration of the Declaration of Joseph F. Trungale in Support of Debtors Chapter 11 Petitions and First Day Motions and the record herein, and after due deliberation, the Court hereby finds that good and sufficient cause exists for the relief requested and that the requirements of Bankruptcy Rule 6003 have been satisfied because the relief requested in the Motion is necessary to avoid immediate and irreparable harm. Accordingly, it is hereby,
1

Chapter 11 Case No. 11-11795 (___) Jointly Administered

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.
2

Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Motion.

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ORDERED, ADJUDGED, AND DECREED that: 1. 2. The Motion is granted. The Debtors are authorized, but not directed, in their sole discretion, to pay in the

ordinary course of the Debtors business the Priority Vendor Claims in an amount not to exceed $6,000,000 in the aggregate. 3. The Debtors are authorized, but not directed, in their sole discretion, to condition

the payment of the Priority Vendor Claims on the agreement of the individual Priority Vendor to continue supplying Goods to the Debtors on Customary Trade Terms, or pursuant to such other favorable trade practices and programs that are agreed to by the Debtors, in their sole discretion; provided, however, that the Debtors will provide the Restructuring Support Parties with at least five (5) business days notice of any material modifications to any trade terms under which any material Priority Vendor provided Goods to the Debtors as of the Petition Date. 4. If a Priority Vendor refuses to supply Goods to the Debtors on Customary Trade

Terms (or such other terms as are agreed to by the parties) following receipt of payment on its Priority Vendor Claims, then the Debtors may, in their sole discretion and without further order of the Court, (a) declare that any payments made to such Priority Vendor on account of its Priority Vendor Claims shall be deemed to have been in payment of then-outstanding or subsequently accruing undisputed post-petition claims of such Priority Vendor without further action by any person or entity, and (b) recover any payment made to such Priority Vendor on account of its Priority Vendor Claims to the extent that the aggregate amount of such payments exceeded the undisputed post-petition claims of such Priority Vendor, without giving effect to any rights of setoff or recoupment, claims, provision of payment of reclamation or trust fund claims or other defenses. Under any such circumstances, such Priority Vendor shall immediately

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repay to the Debtors any payment made to it on account of its Priority Vendor Claims to the extent that such payments exceed any undisputed post-petition claims of such Priority Vendor then outstanding or subsequently accruing, without giving effect to any rights of setoff or recoupment, claims, provision for payment of reclamation or trust fund claims, or other defenses. Upon recovery of any such payments by the Debtors, the applicable portion of the Priority Vendor Claims shall be reinstated as such in the amount recovered by the Debtors. Nothing herein shall constitute a waiver of the Debtors rights to seek damages or other appropriate remedies against any Priority Vendor. 5. The Debtors banks shall be, and hereby are, authorized, when requested by the

Debtors in their sole discretion, to process, honor, and pay any and all checks or electronic fund transfers drawn on the Debtors bank accounts to pay any payments approved by this Order, including, without limitation, those related to the Priority Vendor Claims, whether those checks were presented prior to or after the Petition Date, provided that sufficient funds are available in the applicable accounts to make the payments. 6. The Debtors banks may rely on the representations of the Debtors with respect to

whether any check or other transfer drawn or issued by the Debtors prior to the Petition Date should be honored pursuant to this Order, and any such bank shall not have any liability to any party for relying on such representations by the Debtors as provided for in this Order. 7. Nothing herein shall be construed as the allowance of a Priority Vendor Claim or

to limit, or in any way affect, the Debtors ability to dispute any Priority Vendor Claim. 8. Nothing contained in this Order shall be deemed to constitute an assumption or

rejection of any executory contract or pre-petition or post-petition agreement between the

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Debtors and a Priority Vendor or to require the Debtors to make any of the payments authorized herein. 9. Notwithstanding anything to the contrary in this Order, any payment made or to

be made under this Order, and any authorization contained in this Order, shall be subject to the requirements imposed on the Debtors under any Order(s) of this Court approving the Debtors debtor-in-possession financing facility and use of cash collateral and any budget in connection therewith. 10. 11. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and

conditions of this Order shall be immediately effective and enforceable upon its entry. 12. This Court shall retain jurisdiction with respect to all matters arising from or

related to the implementation and interpretation of this Order. Date: June _____, 2011 UNITED STATES BANKRUPTCY JUDGE

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