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) FOR ORDER AUTHORIZING PAYMENT OF CLAIMS UNDER PACA AND STATE STATUTES OF SIMILAR EFFECT 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 section 105(a) of title 11 of the United States Code, 11 U.S.C. 101 et seq. (the Bankruptcy Code), authorizing, but not directing, payment of certain claims under (i) the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C. 499(a) et seq. (as the same may be amended, modified or supplemented from time to time, PACA), and (ii) any and all state statutes of similar effect.2 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.
2 1

Some states have enacted statutes granting protection similar to that of PACA. See, e.g., Minn. Stat. 27.01 et seq. Accordingly, references to PACA, PACA Goods, PACA Claims and PACA Claimants in this Motion are also intended to refer to those state statutes and the goods, claims and claimants protected thereunder. The relief requested in the Motion with respect to PACA Goods, PACA Claims and PACA Claimants is also requested with respect to the goods, claims and claimants under those state statues having an effect and purpose similar to PACA.

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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 is 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 and 541 of

the Bankruptcy Code as well as PACA. 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.3 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. Relevant Background 14. Prior to the Petition Date, certain of the Debtors vendors sold goods (collectively,

the PACA Goods) to the Debtors that constitute either (i) perishable agricultural commodities, as such term is defined under PACA4 or (ii) any other eligible goods under state statutes of similar effect. The Debtors believe that many of their vendors of PACA Goods
The term perishable agricultural commodities is defined generally as fresh fruits and vegetables of every kind and character. See In re L. Natural Foods Corp., 199 B.R. 882, 885 (Bankr. E.D. Pa. 1996).
4

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(collectively, the PACA Claimants) will file claims (collectively, the PACA Claims) against the Debtors estates under PACA or state statutes of similar effect if their pre-petition claims are not paid in full. As of the Petition Date, the Debtors estimate that PACA Claims total approximately $1,600,000 in the aggregate. Relief Requested 15. By this Motion, the Debtors seek entry of an order authorizing, but not directing,

the Debtors, in their sole discretion, to pay certain pre-petition claims of the PACA Claimants. 16. The Debtors have filed concurrently with this Motion a motion pursuant to section

503(b)(9) of the Bankruptcy Code authorizing, but not directing, the Debtors, in their sole discretion, to pay for certain goods delivered to the Debtors within twenty (20) days of the Petition Date (the Twenty-Day Claims Motion). The Twenty-Day Claims Motion seeks authority to pay undisputed administrative priority obligations arising from delivery of goods to the Debtors in the ordinary course of business within twenty (20) days before the Petition Date, some of which may be PACA Claims. Through this Motion, the Debtors seek authority to pay those PACA Claims that are not paid under any order entered by the Court on the Twenty-Day Claims Motion. Basis For Relief Requested 17. As the District Court for the Southern District of New York has explained: PACA regulates trading in perishable agricultural commodities, essentially fruits and vegetables. [PACA] was amended in 1984 upon a finding by Congress that a burden on commerce in these goods was caused by certain financial credit arrangements, whereby dealers would receive delivery of goods without having made payment for them. The 1984 amendment provides that upon delivery of goods to the purchaser, a statutory trust automatically arises on behalf of unpaid suppliers or seller. A & J Produce Corp. v. CIT Group/Factoring, Inc., 829 F. Supp. 651, 653 (S.D.N.Y. 1993) 6
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(emphasis added); see also, Consumers Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d 1374, 1379 (3d Cir. 1994). A statutory constructive trust under PACA (the PACA Trust) is imposed on a buyer's entire inventory of perishable agricultural commodities and all products, receivables or proceeds related to the sale thereof (the PACA Trust Assets). See 7 U.S.C. 499e(c)(2); 7 C.F.R. 46.46(b); Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F. 3d 163, 167 (3rd Cir. 2010) (The produce purchasers are require[d]... to hold sufficient PACA trust assets in trust to pay all suppliers. (internal quotations and citation omitted)); Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 199 (3d Cir. 1998) ([A] buyers produce, products derived from that produce, and the proceeds gained therefrom are held in a non-segregated, floating trust for the benefit of unpaid suppliers who have met the applicable statutory requirements.); Botman Intern., B.V. v. International Produce Imports, Inc., 205 Fed.Appx. 937, 940 n.1 (3d Cir. Oct. 31, 2006). As a result of the PACA Trust, PACA effectively vitiates a lenders security interest in trust assets held by produce purchasers vis-a-vis unpaid produce suppliers. Consumers Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d 1374, 1379 (3d Cir. 1994); see Middle Mt. Land & Produce, Inc. v. Sound Commodities, Inc., 307 F.3d 1220, 1224 (9th Cir. 2002) ([T]he enactment of the PACA amendment elevated the claims of unpaid perishable agricultural commodities suppliers over all other creditors of the bankrupt estate with regard to funds in the PACA trust); see also Tom Lange Co. v. Kornblum & Co. (In re Kornblum & Co.), 81 F.3d 280, 284 (2d Cir. 1996); L. Natural Foods Corp., 199 B.R. at 884. 18. Upon the imposition of a PACA Trust, courts construing PACA have consistently

held that PACA Trust Assets are not property of the estate pursuant to section 541 of the Bankruptcy Code. See In re CFP Liquidating Estate, 405 B.R. 694 (Bankr. D. Del. May 21, 2009); In re Long John Silver's Restaurants, Inc., 230 B.R. 29, 32 (Bankr. D. Del. 1999); Morris

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Okun, Inc. v. Harry Zimmerman, Inc., 814 F. Supp. 346, 348 (S.D.N.Y. 1993). Therefore, the distribution of assets to beneficiaries of a PACA Trust falls outside of both (i) the priority scheme established by the Bankruptcy Code, and (ii) the plan process (i.e., trust beneficiaries may be paid outside of, and prior to, a confirmed plan of reorganization). Id. The distribution of trust assets to PACA trust beneficiaries, however, remains under the jurisdiction of the bankruptcy court presiding over the relevant bankruptcy case. See e.g., Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F. 3d at 167; Allied Growers Co-Op, Inc. v. United Fruit & Produce Co., Inc. (In re United Fruit & Produce Co., Inc.), 86 B.R. 14, 16 (Bankr. D. Conn. 1988). 19. PACA imposes certain procedural steps that must be taken by a seller in order to

preserve its rights as a trust beneficiary. See Merrill Farms Corp. v. H.R. Hindle & Co. (In re H.R. Hindle & Co.), 149 B.R. 775, 785 (Bankr. E.D. Pa. 1993); Debruy Produce Co. v. Richmond Produce Co. (In re Richmond Produce Co.), 112 B.R. 364, 368-69 (Bankr. N.D. Cal. 1990). For example, under PACA, an unpaid supplier of perishable agricultural commodities must have provided: written notice of intent to preserve the benefits of the trust to the commission merchant, dealer, or broker within thirty calendar days: (i) after expiration of the time prescribed by which payment must be made, as set forth in regulations issued by the Secretary [i.e., ten days5], (ii) after expiration of such other time by which payment must be made, as the parties have expressly

See 7 C.F.R. 46.2(aa) (establishing ten days as the standard period by which payment must be made).

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agreed to in writing before entering into the transaction,[6] or (iii) after the time the supplier, seller, or agent has received notice that the payment instrument promptly presented for payment has been dishonored. The written notice to the commission merchant, dealer, or broker shall set forth information in sufficient detail to identify the transaction subject to the trust. When the parties expressly agree to a payment time period different from that established by the Secretary [i.e., ten days], a copy of any such agreement shall be filed in the records of each party to the transaction and the terms of payment shall be disclosed on invoices, accountings, and other documents relating to the transaction. 7 U.S.C. 499e(c)(3); 7 C.F.R. 46.46(0(2)(i)-(iii); see Bear Mountain Orchards, Inc. v. MichKim, Inc., 623 F.3d at 167 (In order to preserve trust benefits, an unpaid produce supplier or seller must give written notice of its intent to preserve); Consumers Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d at 1378; Botman Intern., B.V. v. International Produce Imports, Inc., 205 Fed.Appx. at 940 n.1 (In order to preserve the benefits of a PACA trust, the unpaid beneficiary must provide the indebted party with written notice of intent to preserve the benefits of the trust within thirty days of the time prescribed for payment.).7 Failure to comply with these requirements renders the claim on account of PACA Goods a general unsecured claim.8 20. Due to (a) the Debtors desire to prevent any interference with their supply of

PACA Goods, and (b) the Debtors recognition of the rights of the trust beneficiaries under the
6

See 7 C.F.R. 46.46(e)(2) (The maximum time for payment for a shipment to which a seller, supplier, or agent can agree and still qualify for coverage under the trust is 30 days after receipt and acceptance of the commodities....). Alternatively, a supplier may express its intent to preserve its trust rights by including specific language on its invoice. See 7 C.F.R. 46.46(f)(3). The description of the rights and obligations of holders of PACA Claims set forth in this Motion is a summary for the Courts convenience. Nothing in the Motion is intended to, or shall be construed as, impairing the Debtors rights to contest the validity or amount of any of the PACA Claims that may be asserted, and all of the Debtors rights with respect thereto are hereby reserved.

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applicable statutes, the Debtors seek to have this Court authorize, but not direct, payment of all PACA Claims that the Debtors determine to be valid, in their sole discretion. 21. Any PACA Claimant who accepts payment from the Debtors on account of its

valid PACA Claim (whether through the authority granted under this Motion or the Twenty Day Claims Motion) will be deemed to have waived any and all claims, of whatever type, kind or priority, against (a) the Debtors, (b) their property and estates, and (c) any funds and other property held in trust by the Debtors that do not constitute property of the estate, but only to the extent that payment has been received on account of the PACA Claim. 22. Preservation of the Debtors relationships with the suppliers of fresh produce is

particularly critical due to the highly competitive nature of the Debtors industry and the nature of the Debtors restaurant operations in general, and their pie making businesses in particular. Any disruption in the supply of fresh produce would prove devastating and would greatly hinder the Debtors ability to operate and efforts to reorganize. 23. Section 105(a) of the Bankruptcy Code authorizes the Court to issue any order,

process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]. 11 U.S.C. 105(a). The purpose of section 105(a) of the Bankruptcy Code is to assure a bankruptcy courts power to take what-ever action is appropriate or necessary in aid of the exercise of its jurisdiction. 2 Collier on Bankruptcy, 105.01, at 105-2 (15th ed. 1994). The relief requested in this Motion is critical to reorganizing the Debtors successfully and is justified under section 105(a) of the Bankruptcy Code. 24. In addition, the failure to provide the relief requested herein could subject the

Debtors to a substantial number of actions from PACA Claimants seeking enforcement of their PACA Claims, which would result in the unnecessary expenditure of funds by the Debtors in

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responding thereto. Moreover, the Debtors failure to satisfy the PACA Claims may result in the disruption of an uninterrupted supply of fresh produce from vendors. Any delays in satisfying PACA Claims could adversely affect the Debtors ability to obtain fresh produce in the future, thereby undercutting the Debtors competitive posture and their ability to successfully reorganize. The relief requested herein does not involve authorization to make payments on account of pre-petition claims, as PACA Claimants would be paid from non-estate property. 25. Furthermore, in certain circumstances, pursuant to PACA, officers and directors

may be held secondarily liable for amounts owed to a seller of PACA Goods. See Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d at 167; A&J Produce Corp. v. Watermelon Express, LLC, Civil Action No. 3:08-cv-1850 (VLB), 2010 U.S. Dist. LEXIS 135986 (D. Conn. Dec. 23, 2010); Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705-06 (2d Cir. 2007). Thus, to the extent that any PACA obligations remain unsatisfied by the Debtors, the Debtors officers and directors may be subject to lawsuits during the pendency of these Chapter 11 Cases. Any such lawsuit (and the ensuing potential liability) would distract the Debtors officers and directors in their attempt to implement a successful reorganization strategy, to the detriment of all parties in interest in these Chapter 11 Cases. 26. It is the Debtors business judgment that prompt satisfaction of valid PACA

Claims will best promote the Debtors rehabilitation and is in the best interests of the Debtors and their customers, creditors and estates. And, to the extent the Debtors question whether any particular PACA Claim is valid, the Debtors reserve the right to contest such claims in accordance with applicable law. 27. Furthermore, courts in this jurisdiction have previously authorized the payment of

the pre-petition claims of providers of perishable agricultural goods. See, e.g., In re Harry &

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David Holdings Inc., Case No. 11-10884 (MFW) (Bankr. D. Del. April 26, 2011); In re CB Holding Corp., Case No. 10-13683 (MFW) (Bankr. D. Del. Jan. 11, 2011); In re VI Acquisition Corp., et al., Case No. 08-10623 (KG) (Bankr. D. Del. Apr. 4, 2008); In re Buffets Holdings, Inc., et al., Case No. 08-10141 (MFW) (Bankr. D. Del. Feb. 13, 2008). 28. For all of the foregoing reasons, the Debtors request authority, but not direction,

pursuant to sections 105 and 541 of the Bankruptcy Code and PACA to pay, in the Debtors sole discretion, the undisputed amounts of the PACA Claims. Request For Immediate Relief and Waiver of Stay to Avoid Immediate and Irreparable Harm 29. 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). For the reasons 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. 30. 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). 12
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Reservation of Rights 31. 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. Notice 32. 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 33. 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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WHEREFORE, the Debtors respectfully request that the Court enter an order, in the form attached hereto as Exhibit A, granting the relief requested herein and such other and further relief the Court may deem necessary 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) AUTHORIZING PAYMENT OF CLAIMS UNDER PACA AND STATE STATUTES OF SIMILAR EFFECT Upon the Debtors Motion Pursuant to 11 U.S.C. 105 for Order Authorizing Payment of Claims Under PACA and State Statutes of Similar Effect (the Motion),2 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, ORDERED, ADJUDGED AND DECREED that: 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 meanings ascribed to them in the Motion.

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070242.1001

1. 2.

The Motion is granted. The Debtors are authorized, but not directed, in their sole discretion, to review all

PACA Claims received and to pay all PACA Claims in full, in cash or otherwise, which the Debtors determine are valid PACA Claims that are not otherwise paid pursuant to any other order of this Court in an aggregate amount not to exceed $1,600,000. 3. Any PACA Claimant who accepts payment from the Debtors on account of its

valid PACA Claim will be deemed to have waived any and all claims, of whatever type, kind or priority, against (a) the Debtors, (b) their property and estates, and (c) any funds and other property held in trust by the Debtors that do not constitute property of the estate, but only to the extent that payment has been received by such PACA Claimant on account of its PACA Claim. 4. Nothing in the Motion or this Order shall impair the Debtors right to contest the

validity or amount of any of the PACA Claims that may be asserted, and all of the Debtors rights with respect thereto are hereby reserved. 5. 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 Debtors and a PACA Claimant or to require the Debtors to make any of the payments authorized herein. 6. 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.

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7.

Debtors are hereby authorized and empowered to take such steps and perform

such acts as may be necessary to implement and effectuate the terms of this Order. 8. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and

conditions of this Order shall be immediately effective and enforceable upon its entry. 9. 10. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied. The Court shall retain jurisdiction over the Debtors and any and all PACA

Claimants with respect to any matters, claims, rights or disputes arising from or related to the Motion, the interpretation and implementation of this Order and the validity of any PACA Claims. Date: June _____, 2011 ____________________________________ UNITED STATES BANKRUPTCY JUDGE

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