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

,1 et al., Chapter 11 Case No. 11-11795 (KG) Jointly Administered Debtors.

Objection Deadline: October 24, 2011 at 4:00 p.m. (ET) Hearing Date: October 31, 2011 at 10:00 a.m. (ET)

DEBTORS MOTION PURSUANT TO 11 U.S.C. 105(a), 365(a) AND 554(a) FOR AN ORDER AUTHORIZING THE DEBTORS TO (I) REJECT A CERTAIN UNEXPIRED NON-RESIDENTIAL REAL PROPERTY LEASE, AND (II) ABANDON ANY PROPERTY THAT REMAINS ON THE PREMISES COVERED BY THE LEASE 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 counsel, respectfully move this Court (the Motion) pursuant to sections 105(a), 365(a) and 554(a) of title 11 of the United States Code, 11 U.S.C. 101 et seq. (the Bankruptcy Code), for entry of an order, substantially in the form attached hereto as Exhibit A (the Proposed Order), authorizing the Debtors to (i) reject, effective as of November 30, 2011, that certain unexpired non-residential real property lease (the PK I Lease) made with P&MCs Real Estate Holding (the Sublessor), a non-Debtor affiliate of the Debtors, for the restaurant location at 16390 Beach Boulevard, in the city of Westminster, Orange County, California (the Westminster Location), as such PK I Lease is more fully described in Exhibit 1 to the Proposed Order, as the Debtors have determined that the PK I Lease is no longer necessary

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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or useful to their estates, and (ii) abandon any personal property that remains on the premises of the Westminster Location. In support of this Motion, the Debtors respectfully state as follows: Jurisdiction and Venue 1. This Court has jurisdiction to hear the Motion under 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 cases and the 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(a), 365(a)

and 554(a) of the Bankruptcy Code, along with Rule 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). Factual Background 4. On June 13, 2011 (the Petition Date), each of the Debtors filed a voluntary

petition for relief under chapter 11 of the Bankruptcy Code, and 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. On June 24, 2011, the Office of the United States Trustee for the District of Delaware (the U.S. Trustee) appointed an Official Committee of Unsecured Creditors (the Committee) in these Chapter 11 Cases. 5. On September 9, 2011, the Debtors filed the Debtors Second Amended

Disclosure Statement for Debtors Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 923] (including all exhibits thereto and as may be amended, modified or supplemented from time to time, the Disclosure Statement). That same

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day, the Court entered the Disclosure Statement Order, approving the Disclosure Statement as containing adequate information within the meaning of section 1125 of the Bankruptcy Code. Pursuant to the Disclosure Statement Order, the Court also established certain procedures for the solicitation of votes to accept or reject the Second Amended Chapter 11 Plan of Reorganization [Docket No. 922] (including all exhibits thereto and as may be amended, modified or supplemented from time to time, the Plan), and set October 31, 2011 at 10:00 a.m. (ET) as the date and time for a hearing on confirmation of the Plan. 6. Additional information about the Debtors businesses, the events leading up to the

Petition Date, and the facts and circumstances surrounding the Debtors and the Chapter 11 Cases can be found in the Declaration of Joseph F. Trungale in Support of Debtors Chapter 11 Petitions and First Day Motions [Docket No. 19] filed on the Petition Date and incorporated by reference herein. The PK I Lease To Be Rejected 7. On September 1, 2010, Marie Callender Pie Shops, Inc. (MCPSI), one of the

Debtors in these Chapter 11 Cases, entered into a certain Sublease between the Sublessor and MCPSI for the Westminster Location. The Sublease contemplated that MCPSI would be the sublessee under the PK I Lease, which was entered into between PK I Pavilions Place LP (PK I) and the Sublessor, and would lease the Westminster Location for a term expiring on May 31, 2042. MCPSI continued in the PK I Lease, as sublessee, and the Westminster Location as of the Petition Date. 8. In the Debtors business estimation, the monthly rent payments required under the

PK I Lease are well above market values. As a result, in connection with their efforts to, among other things, optimize their business operations through these Chapter 11 Cases, the Debtors

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attempted to negotiate a rent reduction with PK I and the Sublessor which would have made continuing in the PK I Lease economically feasible for MCPSI. However, although the

Sublessor was amenable to negotiating over the economic terms of the PK I Lease, no mutually agreeable rent reduction could be reached with PK I. 9. Accordingly, as set forth more fully below, the Debtors seek to reject the PK I

Lease effective as of November 30, 2011 (the Rejection Effective Date). Relief Requested 10. By this Motion, the Debtors respectfully request the entry of the Proposed Order

authorizing the rejection of the PK I Lease, pursuant to sections 105(a) and 365(a) of the Bankruptcy Code, effective as of the Rejection Effective Date. In addition, the Debtors seek authority from this Court, pursuant to section 554(a) of the Bankruptcy Code, to abandon any property that remains on the premises of the Westminster Location. 11. The filing of this Motion and Exhibit 1 to the Proposed Order should not be

construed as an admission that the PK I Lease is an unexpired lease subject to assumption or rejection under section 365 of the Bankruptcy Code. The Debtors reserve the right to argue that the PK I Lease is not an unexpired lease. The Debtors and their estates also reserve all rights to contest any and all claims that arise out of the rejection of the PK I Lease. Basis for Relief Requested 12. The Debtors have determined that it would be detrimental to their businesses to

continue operations at the Westminster Location. Further, the Debtors have determined that the PK I Lease creates unnecessary operating costs. 13. In consultation with their professional advisors, the Debtors have also determined

that it is highly unlikely that they would be able to locate a third party willing to accept an

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assignment of the PK I Lease on an expedited basis. In the meantime, the Debtors would accrue unnecessary administrative obligations, as well as the attendant cost of continuing to market the PK I Lease. Thus, the Debtors believe that the PK I Lease holds no value to the Debtors and their estates. In order to avoid any unnecessary administrative expense to the Debtors estates, the Debtors, in an exercise of their business judgment, have concluded that it makes sound business sense to reject the PK I Lease effective as of the Rejection Effective Date. A. 14. Rejection of the PK I Lease Section 365(a) of the Bankruptcy Code provides that a debtor, subject to the

courts approval, may assume or reject an executory contract or an unexpired lease. 11 U.S.C. 365(a); see Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.), 973 F.2d 1065, 1075 (3d Cir. 1992); see also In re Penn Traffic Co., 524 F. 3d 373 (2d Cir. 2008). The Court may approve a debtors rejection of an executory contract or unexpired lease if such rejection is made in the exercise of such debtors sound business judgment, and if such rejection benefits its estate. See e.g., In re AbitibiBowater Inc., 418 BR 815 (unpaginated) (Bankr. D. Del. Oct. 27, 2009) (holding that a debtors decision to assume or reject an executory contract will stand so long as a reasonable business person would make a similar decision under similar circumstances.); In re Philadelphia Newspapers, LLC, 424 BR 178, 182-83 (Bankr. E.D. Penn. January 13, 2010) (The standard applied to determine whether the rejection of an executory contract or unexpired lease should be authorized is the business judgment standard.); Sharon Steel Corp. v. Natl Fuel Gas Distrib. Corp., 872 F.2d 36, 39 (3d Cir. 1989); see also NLRB v. Bildisco & Bildisco (In re Bildisco), 682 F.2d 72, 79 (3d Cir. 1982), affd, 465 U.S. 513 (1984); Westbury Real Estate Ventures, Inc. v. Bradlees, Inc. (In re Bradlees, Inc.), 194 B.R. 555, 558 n.1 (Bankr. S.D.N.Y. 1996) ([U]nder this business judgment test, . . . [a court should approve a debtors

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proposed rejection] if the debtor can demonstrate that rejection will benefit the estate.). It is enough if a debtor determines in its business judgment that a benefit will be realized. Sharon Steel Corp., 872 F.2d at 39 (citing Wheeling-Pittsburgh Steel Corp. v. West Penn Power Co. (In re Wheeling-Pittsburgh Steel Corp.), 72 B.R. 845, 846 (Bankr. W.D. Pa. 1987)); In re Balco Equities LTD, Inc., 323 B.R. 85, 99 (Bankr. S.D.N.Y. 2005) (In determining whether the debtor has employed reasonable business discretion, the court for the most part must only determine that the rejection will likely benefit the estate.) (quoting In re G Survivor Corp., 171 B.R. 755, 758 (Bankr. S.D.N.Y. 1994)). The business judgment standard requires that the Court approve the debtors business decision unless that judgment is the product of bad faith, whim or caprice. In re Philadelphia Newspapers, LLC, 424 B.R. 178, 182-83 (Bankr. E.D. Penn. 2010); In re Trans World Airlines, Inc., 261 B.R. 103, 121 (Bankr. D. Del. 2001); Lubrizol Enter., Inc. v. Richmond Metal Finishers, 756 F.2d 1043, 1047 (4th Cir. 1985) cert. denied 475 U.S. 1057 (1986). 15. As an integral component of the Debtors chapter 11 efforts to optimize their

business operations by, among other things, eliminating unnecessary operating costs, the Debtors, in their business judgment, have determined that it is in their best business interest to avoid the accrual of any further obligations under the PK I Lease. The Debtors have reviewed the PK I Lease and determined that it holds no material economic value to the Debtors or their estates and is not essential to the conduct of the Debtors Chapter 11 Cases and their emergence from chapter 11. The decision to reject the PK I Lease will eliminate the Debtors obligation to perform under the PK I Lease and the accrual of any further obligations thereunder, such as administrative rent.

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B. 16.

Abandonment of Personal Property While the Debtors believe that they will have removed all personal property of

more than de minimis value from the Westminster Location prior to the Rejection Effective Date, to the extent that the Debtors leave any property, including, but not limited to, personal property, furniture, fixtures and/or equipment (collectively, Personal Property), at the Westminster Location, the Debtors request that such Personal Property be deemed abandoned pursuant to section 554 of the Bankruptcy Code. 17. Section 554(a) of the Bankruptcy Code provides that [a]fter notice and a hearing,

the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. 11 U.S.C. 554(a). 18. The Debtors submit that any Personal Property remaining in the Westminster

Location will be of inconsequential value or burdensome to the Debtors estates to remove. The Debtors believe that the cost of retrieving, marketing, and reselling the abandoned Personal Property far outweighs any recovery the Debtors and their estates could hope to attain in a sale of the Personal Property. As a result, the Debtors have determined, in an exercise of their business judgment, that the abandonment of any such Personal Property is in the best interests of the Debtors, their estates and creditors. 19. Based upon the foregoing facts and circumstances, the Debtors submit that the

rejection of the PK I Lease effective as of the Rejection Effective Date and the abandonment of the Personal Property in the manner set forth above is supported by sound business judgment, and is necessary, prudent, and in the best interests of the Debtors, their estates and creditors and other parties in interest.

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Notice 20. The Debtors will serve notice of this Motion upon: (i) the U.S. Trustee;

(ii) counsel to the Committee; (iii) counsel to the agent for the Debtors pre-petition Credit Facility and post-petition 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; (vi) counsel to the Restructuring Support Parties; (vii) the Sublessor; and (viii) all parties that, as of the filing of this Motion, have requested notice in these Chapter 11 Cases pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested, the Debtors submit that no other or further notice is necessary. In light of the nature of the relief requested, the Debtors submit that no other or further notice is necessary. No Prior Request 21. other court. Remainder of page intentionally left blank No prior motion for the relief requested herein has been made to this Court or any

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Conclusion WHEREFORE, the Debtors respectfully request that the Court enter the Proposed Order (i) authorizing the Debtors to reject the PK I Lease effective as of the Rejection Effective Date, (ii) authorizing the Debtors to abandon any Personal Property that remains on the premises of the Westminster Location and (iii) granting to the Debtors such other and further relief as the Court may deem just and proper. Dated: October 14, 2011 Wilmington, DE YOUNG CONAWAY STARGATT & TAYLOR, LLP By: /s/ Robert F. Poppiti, Jr. Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 - AND TROUTMAN SANDERS LLP Mitchel H. Perkiel Hollace T. Cohen Brett D. Goodman The Chrysler Building 405 Lexington Avenue New York, NY 10174 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 COUNSEL FOR PERKINS & MARIE CALLENDERS INC., ET AL., Debtors and Debtors-in-Possession

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC.,1 et al., Chapter 11 Case No. 11-11795 (KG) Jointly Administered Debtors.
Objection Deadline: October 24, 2011 at 4:00 p.m. (ET) Hearing Date: October 31, 2011 at 10:00 a.m. (ET)

NOTICE OF DEBTORS MOTION PURSUANT TO 11 U.S.C. 105(a), 365(a) AND 554(a) FOR AN ORDER AUTHORIZING THE DEBTORS TO (I) REJECT A CERTAIN UNEXPIRED NON-RESIDENTIAL REAL PROPERTY LEASE, AND (II) ABANDON ANY PROPERTY THAT REMAINS ON THE PREMISES COVERED BY THE LEASE TO: (I) THE U.S. TRUSTEE; (II) COUNSEL TO THE COMMITTEE; (III) COUNSEL TO THE AGENT FOR THE DEBTORS PRE-PETITION CREDIT FACILITY AND POST-PETITION 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; (VI) COUNSEL TO THE RESTRUCTURING SUPPORT PARTIES; (VII) THE SUBLESSOR; AND (VIII) ALL PARTIES THAT, AS OF THE FILING OF THE MOTION, HAVE REQUESTED NOTICE IN THESE CHAPTER 11 CASES PURSUANT TO BANKRUPTCY RULE 2002.

PLEASE TAKE NOTICE that the debtors and debtors in possession in the above-captioned cases (collectively, the Debtors) have filed the attached Debtors Motion Pursuant to 11 U.S.C. 105(a), 365(a) and 554(a) for an Order Authorizing the Debtors to (I) Reject a Certain Unexpired Non-Residential Real Property Lease, and (II) Abandon Any Property That Remains on the Premises Covered by the Lease (the Motion). PLEASE TAKE FURTHER NOTICE that any objections to the relief requested in the Motion must be filed on or before October 24, 2011 at 4:00 p.m. (ET) (the Objection Deadline) with the United States Bankruptcy Court for the District of Delaware, 824 N. Market Street, 3rd Floor, Wilmington, Delaware 19801. At the same time, you must serve a copy of your objection upon the undersigned counsel to the Debtors so as to be received on or before the Objection Deadline.

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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PLEASE TAKE FURTHER NOTICE THAT A HEARING TO CONSIDER THE MOTION WILL BE HELD ON OCTOBER 31, 2011 AT 10:00 A.M. (ET) BEFORE THE HONORABLE KEVIN GROSS IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 N. MARKET STREET, 6TH FLOOR, COURTROOM #3, WILMINGTON, DELAWARE 19801. PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND TO THE MOTION IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED THEREIN WITHOUT FURTHER NOTICE OR A HEARING. Dated: October 14, 2011 Wilmington, DE YOUNG CONAWAY STARGATT & TAYLOR, LLP By: /s/ Robert F. Poppiti, Jr. Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 - AND TROUTMAN SANDERS LLP Mitchel H. Perkiel Hollace T. Cohen Brett D. Goodman The Chrysler Building 405 Lexington Avenue New York, NY 10174 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 COUNSEL FOR PERKINS & MARIE CALLENDERS INC., ET AL., Debtors and Debtors-in-Possession

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EXHIBIT A Proposed Order

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC.,1 et al., Chapter 11 Case No. 11-11795 (KG) Jointly Administered Debtors.
Ref. Docket No. _____

ORDER AUTHORIZING THE DEBTORS TO (I) REJECT A CERTAIN UNEXPIRED NON-RESIDENTIAL REAL PROPERTY LEASE, AND (II) ABANDON ANY PROPERTY THAT REMAINS ON THE PREMISES COVERED BY THE LEASE Upon the Debtors Motion Pursuant to 11 U.S.C. 105(a), 365(a), and 554(a) for an Order Authorizing the Debtors to (I) Reject a Certain Unexpired Non-Residential Real Property Lease, and (II) Abandon Any Property That Remains on the Premises Covered by the Lease (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; (iv) the relief requested in the Motion is in the best interest of the Debtors, their estates and creditors; (v) notice of the Motion and the hearing thereon was sufficient under the circumstances; and (vi) after due deliberation, good and sufficient cause exists for the relief requested in the Motion. Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that: 1. The Motion is granted.

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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2.

The Debtors rejection of the lease set forth on Exhibit 1 hereto (the Rejected

Lease) is hereby approved, effective as of November 30, 2011. 3. The Debtors are authorized to abandon the Personal Property, if any, remaining

on the premises under the Rejected Lease. 4. This Order shall be binding on the Debtors and all parties and counterparties to

the Rejected Lease. 5. Pursuant to this Courts Order Pursuant to Section 501 and 502(b)(9) of the

Bankruptcy Code and Bankruptcy Rule 3003(c)(3) Establishing the Deadline for Filling Proofs of Claim and Approving the Form and Manner of Notice Thereof dated July 9, 2011 [Docket No. 174] (the Bar Date Order), any person or entity holding a claim arising from the Debtors rejection of the Rejected Lease (a Rejection Damage Claim) must file a proof of claim in these Chapter 11 Cases on account of such Rejection Damage Claim in accordance with the Bar Date Order on or before the date that is thirty (30) days following the entry of this Order. 6. The Debtors are authorized and empowered to take all actions necessary to

implement the relief granted in this Order. 7. The Debtors and their estates do not waive any claims that they may have against

the counterparties to the Rejected Lease, whether or not such claims arise under, are related to the rejection of, or are independent of the Rejected Lease. 8. Nothing herein shall impair, prejudice, waive or otherwise affect any rights of the

Debtors and their estates or the Committee to argue that any claims for damages arising from the rejection of the Rejected Lease is limited to the remedies available under any applicable termination provisions of such Rejected Lease, or that any such claims are obligations of a third party, and not those of the Debtors or their estates.

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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. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry. 11. This Court shall retain jurisdiction with respect to all matters arising from or

related to the interpretation and implementation of this Order. Date: October ____, 2011 KEVIN GROSS CHIEF UNITED STATES BANKRUPTCY JUDGE

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EXHIBIT 1 Marie Callender Pie Shops, Inc. Lease to Be Rejected

STORE #139 TITLE SUBLEASE between P&MCs Real Estate Holding, LLC and Marie Callender Pie Shops, Inc. EFFECTIVE DATE September 1, 2010 PROPERTY Pavilion Shopping Center 16390 Beach Boulevard, Westminster, Orange County, California TENANT Marie Callender Pie Shops, Inc. LANDLORD P&MCs Real Estate Holding c/o Castle Harlan Inc., 150 East 58th Street New York, New York 10155

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