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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDER’S INC.,1 et al., Debtors.

Chapter 11 Case No. 11-11795 (___) Joint Administration Pending

DEBTORS’ MOTION PURSUANT TO 11 U.S.C. §§ 105(a), 345(b), 363, 1107(a) AND 1108, FED.R.BANKR.P. 2015 AND DEL.BANKR.L.R. 2015-2 FOR AN ORDER (I) AUTHORIZING AND APPROVING CONTINUED USE OF CASH MANAGEMENT SYSTEM, (II) AUTHORIZING USE OF PRE-PETITION BANK ACCOUNTS AND BUSINESS FORMS, (III) AUTHORIZING PAYMENT OF PRE-PETITION COSTS AND FEES ASSOCIATED WITH CUSTOMER CREDIT CARD TRANSACTIONS, (IV) WAIVING THE REQUIREMENTS OF 11 U.S.C. 345(b) ON AN INTERIM BASIS AND (V) GRANTING CERTAIN RELATED RELIEF Perkins & Marie Callender’s 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 (“Motion”) for entry of an order pursuant to sections 105(a) and 345(b) of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”), Rule 2015 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Rule 2015-2(a) and (b) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the “Local Rules”) (i) authorizing and approving the Debtors’ continued use of their existing cash management system, (ii) granting the Debtors a waiver of certain bank account and related requirements of the Office of the United States Trustee for the District of Delaware (the

The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Perkins & Marie Callender’s Inc. (4388); Perkins & Marie Callender’s Holding Inc. (3999); Perkins & Marie Callender’s 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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“U.S. Trustee”) to the extent that such requirements are inconsistent with (a) the Debtors’ practices in connection with their existing cash management system or (b) any action taken by the Debtors in accordance with any order granting the relief requested in this Motion or any other order entered in these chapter 11 cases, (iii) authorizing, but not directing, the Debtors to pay all pre-petition costs and fees associated with customer credit card transactions and the Debtors’ cash register system, (iv) waiving the requirements of section 345(b) of the Bankruptcy Code on an interim basis with respect to the Debtors’ deposit practices, and (v) granting certain related relief. 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: Jurisdiction and Venue 1. The Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157(b)(2)

and 1334. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 2. Venue of these 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 sought herein are sections 105(a), 345, 363,

1107(a) and 1108 of the Bankruptcy Code, Bankruptcy Rule 2015 and Local Rule 2015-2(a) and (b). 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

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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 western United States under the name “Marie Callender’s Restaurant and Bakery” (“Marie Callender’s”). 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 Callender’s 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 Callender’s restaurants located in nine (9) states, and franchised thirty seven (37) Marie Callender’s restaurants located in four (4) states

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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. B. Corporate Structure and Pre-Petition Capitalization 10. Perkins & Marie Callender’s Holding Inc. (f/k/a The Restaurant Holding The Debtors’ revenues for the year ended December 26, 2010 were approximately

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

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Included therein, MCPSI operates two (2) “Callender’s Grill” restaurants in Los Angeles, California and a single “East Side Mario’s” 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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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). 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

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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. C. 14. Description of Debtors’ Cash Management System The Debtors maintain a cash management and disbursement system in the

ordinary course of their operations. In order to lessen the disruption caused by the bankruptcy filings and maximize the value of their estates in these Chapter 11 Cases, it is vital to the Debtors that they maintain their existing system of managing cash. 15. The Debtors utilize a cash management system (the “Cash Management System”)

that works in the following manner: (a) The Debtors maintain a store cash concentration account for the Marie

Callender’s restaurants at Wells Fargo Capital Finance, LLC (“Wells Fargo”) for the daily deposit of cash receipts derived from their restaurants (the “Marie Callender’s Restaurant Account”). The daily deposits into the Marie Callender’s Restaurant Account are transferred through armored service provided by Garda or swept from certain restaurant cash deposit accounts. In addition, as customer credit card receipts are received, Visa and MasterCard payments are processed by Bank of America, N.A. (“BofA”) and American Express (“AMEX”) and Discover payments are processed directly and wired into a credit card clearing account that the Debtors maintain with Wells Fargo (the “Marie Callender’s Credit Card Clearing Accounts,” and together with the Marie Callender’s Restaurant Accounts, the “Marie Callender’s Depository Accounts”). All funds held in the Marie Callender’s Depository Accounts are swept daily via electronic transfer into a master concentration and operating account for Marie Callender’s at

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Wells Fargo (the “Marie Callender’s Master Operating Account”). The Marie Callender’s Master Operating Account primarily covers all field payroll and sales tax. (b) The Debtors also maintain another operating account for Marie

Callender’s at Regions Bank (“Regions”) which is funded from the Marie Callender’s Master Operating Account and certain Marie Callender’s commercial deposits from, among other things, royalties, licensing and wholesaler payments (the “Marie Callender’s Operating Account”). The Marie Callender’s Operating Account primarily covers payroll taxes, rent and utility payments for the Marie Callender’s brand and accounts payable for Marie Callender’s wholesalers. (c) The Debtors maintain store cash concentration accounts for the Perkins

restaurants at approximately twelve (12) different banks for the daily deposit of cash receipts derived from their restaurants which are swept from approximately one hundred and sixty (160) store cash deposit accounts at branch banks (the “Perkins Restaurant Accounts”). The Perkins Restaurant Accounts are consolidated into a separate concentration account maintained at Regions that includes, among other things, Foxtail deposits (the “Perkins Concentration Account,” and together with the Perkins Restaurant Accounts, the “Perkins Depository Accounts). Additionally, as customer credit card receipts are received, they are processed by BofA, AMEX and Discover and wired into the Perkins Concentration Account. All funds held in the Perkins Depository Accounts are swept daily via electronic transfer into a main operating account for Perkins at Regions (the “Perkins Operating Account”). (d) Aside from being funded by the Perkins Depository Accounts, the Perkins

Operating Account is also funded by transfers of money remaining at the Marie Callender’s Master Operating Account (after funding the Marie Callender’s Operating Account) and certain other Perkins commercial deposits. The Perkins Operating Account covers accounts payable,

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insurance and U.S. Foodservice payments for both the Perkins and Marie Callender’s brands, Perkins payroll, payroll taxes, sales taxes, utilities and Foxtail accounts payable. (e) All of the foregoing deposit accounts, concentration accounts, and

operating accounts are covered by control agreements with Wells Fargo and Bank of New York Mellon. (f) As part of the Debtors overall Cash Management System, both the Perkins

and Marie Callender’s brands maintain gift card promotion accounts at Regions that interact with the main operating accounts for each of the brands to settle net gift card funds once a week. In addition, Perkins maintains a marketing fund account at Regions for corporate and franchise store marketing contributions and expenses (the “Perkins Marketing Account”). The Perkins Marketing Account is funded by the corporate restaurants through the Perkins Operating Account and directly by domestic franchisees. A separate marketing fund account for Perkins’ Canadian franchisees’ marketing contributions and expenses is held at Bank of Montreal and funded directly and solely by such franchisees. 16. A schematic setting forth the Debtors’ Cash Management System, as described in

this Motion, is annexed hereto as Exhibit A. A list of the Debtors’ bank accounts is annexed hereto as Exhibit B. 17. As set forth above, as part of the Cash Management System, the Debtors, through

PMCI, are a party to an agreement with BofA for the processing of Visa and MasterCard credit and debit transactions between the Debtors and their customers. In addition, the Debtors accept AMEX and Discover credit and debit card payments from their customers that are processed directly by such credit card companies. Because approximately sixty percent (60%) of the Debtors sales are transmitted through credit and debit card transactions, the Debtors continued

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ability to honor or process credit card transactions is essential to its efforts to reorganize their businesses and maximize value to their estates. Without this continued and uninterrupted ability, the Debtors would lose a major avenue for conducting sales transaction in the ordinary course of their businesses. Pursuant to the terms of the Debtors’ agreements and relationships with BofA, AMEX and Discover, the Debtors are required to pay BofA, AMEX and Discover certain fees (collectively, the “Credit Card Processing Fees”) for their credit card processing services, certain amounts of which may have accrued, but remain unpaid, as of the Petition Date. 18. The Debtors, through PMCI, are also parties to an agreement with Merchant-Link,

LLC (“Merchant-Link”), which serves as a payment gateway between the Debtors and BofA, AMEX and Discover. When a credit or debit card is used at one of the Debtors’ restaurants it is swiped through the Debtors’ cash register system, which automatically transmits the transaction detail to Merchant-Link for authorization. Completed credit card transactions are then sent to Merchant-Link two (2) times a day for settlement. Thereafter, in connection with the Cash Management System, Merchant-Link transmits the settled credit card data to BofA two (2) times a day for processing. Under the terms of the Debtors’ agreement with Merchant-Link, the Debtors are required to pay certain fees to Merchant-Link (collectively, the “Merchant-Link Fees,” and together with the Credit Card Processing Fees, the “Processing Fees”) for their authorization and settlement services and transactions, which may have accrued, but remain unpaid, as of the Petition Date. Through this Motion, the Debtors also seek authority, but not direction, to satisfy any related outstanding pre-petition obligation owed to Merchant-Link in connection with the Merchant-Link Fees. 19. Pursuant to this Motion, the Debtors request authority to continue to pay the

Processing Fees, including any prepetition obligations, in the ordinary course of the Debtors’

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businesses to avoid any interruption of the Debtors’ ability to process credit card transactions. The Debtors’ ability to allow their customers to make purchases on credit is critical to their businesses and therefore their chapter 11 efforts. The Debtors estimate that, as of the Petition Date, approximately $500,000 in Processing Fees remain unpaid to Merchant-Link, BofA, AMEX and Discover in the aggregate. 20. Also critical to the Debtors’ Cash Management System is the Debtors’ cash

register system, which consists of point of sale software from MICROS Systems Inc. (“MICROS”). As set forth above, when credit and debit card information is run through the MICROS system, the information is transmitted directly to Merchant-Link for authorization and settlement. The Debtors rely on MICROS for software and help desk support at both the Perkins and Marie Callender’s restaurants, and additionally rely on MICROS for equipment support at Perkins restaurants. Equipment support at the Marie Callender’s restaurants is provided by Spartan Computer Services (“Spartan”). 21. The Debtors continued ability to run, maintain and service its cash registers and

transmit point of sale data is essential to their businesses and their reorganization efforts. Without the support and assistance of both MICROS and Spartan, the Debtors would suffer from more costly and less timely maintenance and repair servicers. 22. Under the terms of the Debtors agreements with MICROS and Spartan, the

Debtors are required to pay MICROS and Spartan for their services, certain amounts of which may have accrued, but remained unpaid, as of the Petition Date (collectively, the “Cash Register System Fees”). In fact, pursuant to a letter agreement between the Debtors and MICROS, MICROS has agreed to continue its necessary services and provide the Debtors with a payment plan for the Debtors to pay down the amount outstanding to MICROS over time. Through this

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Motion, the Debtors request authority to continue to pay the Cash Register System Fees, including any pre-petition obligations, in accordance with the Debtors’ pre-petition policies and procedures, in the ordinary course of their business to avoid any disruption to the overall Cash Management System. The Debtors estimate that, as of the Petition Date, approximately $290,000 in Cash Register System Fees remain unpaid to MICROS and Spartan in the aggregate. Relief Requested 23. By this Motion, the Debtors seek entry of an order of the Court (a) authorizing

and approving the continued use of their existing Cash Management System, (b) granting the Debtors a waiver of certain bank account and related requirements (including, without limitation, the operating guidelines established by the U.S. Trustee that require debtors to close all prepetition bank accounts, open new accounts designated as debtor-in-possession accounts, and to provide new business forms and stationary) of the U.S. Trustee to the extent that such requirements are inconsistent with (i) the Debtors’ practices in connection with their Cash Management System or (ii) any action taken by the Debtors in accordance with any order granting the relief requested in this Motion or any other order entered in these chapter 11 cases, (c) authorizing, but not directing, the Debtors to pay all pre-petition Processing Fees and Cash Register System Fees and any related pre-petition obligations, (d) authorizing their deposit practices and waiving the requirements of section 345(b) of the Bankruptcy Code in connection therewith on an interim basis, and (e) granting certain related relief. Basis For Relief Requested A. 24. The Court Should Authorize the Debtors’ Uninterrupted Use of Their Existing Cash Management System. The Debtors seek authority to continue utilizing their current Cash Management

System, as described above. It is critical that the Debtors be able to consolidate management of

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cash and centrally coordinate transfers of such funds in order to efficiently and effectively operate their businesses. Disrupting their current Cash Management System would impair the Debtors’ ability to optimize their business performance at this critical time as they begin the reorganization process. Maintenance of the existing Cash Management System will prevent undue disruption to the Debtors’ business operations while protecting the Debtors’ cash for the benefit of their estates. Requiring the Debtors to change their Cash Management System at this critical time would cause unnecessary disruption to the Debtors and their business affairs. 25. The Cash Management System utilizes the Debtors’ bank accounts to effectively

and efficiently collect, transfer and disburse funds as needed in the Debtors’ general business operations. The Cash Management System provides significant benefits to the Debtors, including the ability to: (a) closely track, and thus control, all corporate funds, (b) ensure cash availability, and (c) reduce administrative expenses by facilitating the movement of funds and the development of timely and accurate account balance and presentment information. A disruption in the Cash Management System could cause delays in the collection and disbursement of funds, thus impeding the Debtors’ ability to carry out their normal business operations. 26. Furthermore, the Debtors’ Chapter 11 Cases will be facilitated by preserving the

“business as usual” atmosphere and avoiding the distractions that would inevitably be associated with a substantial disruption in the Cash Management System. Accordingly, the Debtors respectfully request that the Court authorize the continued use of the Cash Management System. 27. The Debtors also request that no bank participating in the Cash Management

System (collectively, the “Cash Management Banks”) that honors a pre-petition check or other item drawn on any account that is the subject of this Motion (a) at the direction of the Debtors,

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(b) in a good faith belief that the Court has authorized such pre-petition check or item to be honored, or (c) as a result of an innocent mistake made despite implementation of reasonable item handling procedures, be deemed to be liable to the Debtors or to their estates on account of such pre-petition check or other item being honored post-petition. The Debtors believe that such flexibility accorded the Cash Management Banks is necessary to induce the Cash Management Banks to continue providing cash management services without additional credit exposure. 28. The proceeds of the Debtors’ credit card customer sales are also deposited into the

Marie Callender’s Credit Card Clearing Accounts and the Perkins Concentration Accounts. Having reviewed historical chargeback data, the Debtors have determined that the amount of prepetition chargebacks sought to be recovered against any of the Debtors as of the Petition Date would be de minimis.3 Accordingly, to avoid disruption of their businesses, the Debtors also request authorization from this Court that prepetition chargebacks may be taken against postpetition deposits in, among other accounts, the Marie Callender’s Credit Card Clearing Accounts and the Perkins Concentration Accounts. B. 29. The Court Should Grant the Debtors a Waiver of Certain Requirements of the U.S. Trustee. The Debtors further request from this Court a waiver of certain bank account and

related requirements (including, without limitation, the operating guidelines established by the U.S. Trustee that require debtors to close all pre-petition bank accounts, open new accounts designated as debtor-in-possession accounts, and to provide new business forms and stationary) of the U.S. Trustee to the extent that such requirements are inconsistent with (i) the Debtors’ practices in connection with their Cash Management System or (ii) any action taken by the

The percentage of chargebacks on credit card sales in fiscal year 2010 was 0.004% at Perkins restaurants and 0.018% at Marie Callender’s restaurants.

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Debtors in accordance with any order granting the relief requested in this Motion or any other order entered in these Chapter 11 Cases. 30. The U.S. Trustee for Region 3, who administers bankruptcy cases filed in the

District of Delaware, has issued certain chapter 11 operating guidelines pursuant to 28 U.S.C. § 586 (the “U.S. Trustee Guidelines”). These guidelines require that a chapter 11 debtor, among other things: (a) (b) close all existing bank accounts; open new bank accounts in a depository approved by the U.S. Trustee that are designated as debtor-in-possession accounts (“DIP Accounts”), with separate DIP Accounts established for an operating account, a tax account (to the extent that payroll or other taxes are an issue for the debtor), and a payroll account (to the extent that the debtor had a separate payroll account prepetition); obtain and utilize new checks for all DIP Accounts that bear the designation “Debtor-in-Possession” and contain other information about the debtor’s chapter 11 case, and insure that the signature cards for all DIP Accounts clearly indicate that the debtor is a “Debtor-in-Possession”; deposit all receipts and make all disbursements only through the approved DIP Accounts, with any funds in excess of those required for current operations being maintained in an interest-bearing account; deposit to the tax DIP Account sufficient funds to pay any tax liability (when incurred) associated with the debtor’s payroll; and deposit all estate funds into DIP Accounts with a financial institution that agrees to comply with the requirements of the United States Trustee (which will be monitored by the United States Trustee), with no DIP Account exceeding the insured or collateralized limits of that approved depository.

(c)

(d)

(e) (f)

31.

The Debtors seek a waiver of the U.S. Trustee Guidelines, including, without

limitation, those set forth immediately above, to the extent that such requirements are inconsistent with (i) the Debtors’ practices in connection with their Cash Management System or (ii) any action taken by the Debtors in accordance with any order granting the relief requested in

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this Motion or any other order entered in these Chapter 11 Cases. If enforced in these Chapter 11 Cases, such requirements would cause enormous disruption to the Debtors’ businesses and would impair the Debtors’ reorganization efforts. As described in detail above, the Debtors’ bank accounts comprise an established Cash Management System that the Debtors need to maintain to ensure smooth collections and disbursements in the ordinary course of their businesses. Therefore, to avoid delays in paying debts incurred post-petition, and to ensure as smooth a transition to chapter 11 as possible, the Debtors should be permitted to continue to maintain the existing bank accounts and, if necessary, to open new accounts and close existing accounts in the normal course of business operations. Otherwise, transferring the bank accounts will be disruptive, time consuming and expensive. 32. This Court has the authority to grant the requested relief pursuant to its equitable

powers under section 105(a) of the Bankruptcy Code. Section 105(a) provides, in relevant part, that the Court “may 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 relief requested herein is both necessary and appropriate to allow the Debtors to successfully administer these Chapter 11 Cases, to optimize their post-petition business performance and to maximize the value of their estates. 33. Accordingly, the Debtors request that this Court waive the strict enforcement of

the requirement that the Debtors open new bank accounts. The Debtors further request that its existing bank accounts be deemed debtor-in-possession accounts and that the Debtors be authorized to maintain and continue using these accounts in the same manner and with the same account numbers, styles and document forms as those employed during the pre-petition period.

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34.

A centralized cash management system “allows efficient utilization of cash

resources and recognizes the impracticability of maintaining separate cash accounts for the many different purposes that require cash.” In re Columbia Gas Sys., Inc., 136 B.R. 930, 934 (Bankr. D.Del. 1992), aff’d in part, rev’d in part on other grounds, 997 F.2d 1039 (3d Cir. 1993). The Third Circuit agreed, emphasizing that requiring the maintenance of all accounts separately “would be a huge administrative burden and economically inefficient.” In re Columbia Gas Sys, Inc., 997 F.3d at 1061; see also In re Southmark Corp., 49 F.3d 1111, 1114 (5th Cir. 1995) (cash management system allows debtor “to administer more efficiently and effectively its financial operation and assets”). 35. Accordingly, bankruptcy courts routinely grant Chapter 11 debtors authority to

continue utilizing existing cash management systems and treat requests for such authority as a relatively “simple matter”. In re Baldwin-United Corp., 79 B.R. 321, 327 (Bankr. S.D. Ohio 1987); see Charter Co. v. Prudential Ins. Co. of Am. (In re Charter Co.), 778 F.2d 617, 621 (11th Cir. 1985) (holding that allowing the debtors to use their prepetition “routine cash management system” was entirely consistent with applicable provisions of the Bankruptcy Code). Courts in this circuit have recognized that allowing a debtor to maintain existing cash management systems is often appropriate. See, e g., In re Genesis Health Ventures, Inc., 402 F.3d 416, 424 (3d Cir. 2005); In re Kindred Healthcare, Inc., 2003 WL 22327933, at *1 (Bankr. D. Del, Oct. 9, 2003); In re Columbia Gas Sys., 997 F.2d at 1061 (recognizing that a requirement to maintain all accounts separately “would be a huge administrative burden and economically inefficient”). 36. This Court previously has granted similar relief on numerous occasions. See, e.g.,

In re Harry & David Holdings Inc., Case No. 11-10884 (MFW) (Bankr. D. Del. Mar. 29, 2011); In re Javo Beverage Company, Inc., Case No. 11-14000 (BLS) (Bankr. D. Del. Jan. 25, 2011); In

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re The Fairchild Corp., Case No. 09-10899 (CSS) (Bank. D. Del. Mar. 20, 2009); In re Tribune Company, Case No. 08-13141 (KJC) (Bankr. D. Del. Apr. 29, 2009). 37. The Debtors represent that if the relief requested is granted, they will implement

appropriate mechanisms to ensure that no payments will be made on any debts incurred by them prior to the Petition Date, other than those authorized by this Court. To prevent the possible inadvertent payment of pre-petition claims, except for those otherwise authorized by the Court, the Debtors will work closely with the Cash Management Banks to ensure appropriate procedures are in place to prevent checks issued pre-petition from being honored absent this Court’s approval. 38. The Debtors also request that they be authorized to continue to use all

correspondence and business forms existing immediately before the Petition Date without reference to the Debtors’ status as debtors in possession.4 Parties doing business with the Debtors undoubtedly will be aware of the Debtors’ status as debtors in possession as a result of the size and publicity surrounding these Chapter 11 Cases. If the Debtors were required to change their preprinted correspondence and business forms, they would be forced to choose standard forms rather than the current forms with which the Debtors’ employees, customers and vendors are familiar. Such a change in operations would create a sense of disruption and potential confusion within the Debtors’ organization and for the Debtors’ employees, customers and vendors. Further, the Debtors use a significant number and a wide variety of business forms in the ordinary course of their business operations. The Debtors therefore believe that it would be costly and disruptive to cease using all existing forms and to purchase and begin using new

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The Debtors do not utilize pre-printed check stock and certain of their letterhead and business forms are printed by the Debtors as needed on a daily basis. The relief described in this section does not apply to such checks, letterhead and business forms and any such checks, letterhead and business forms will contain a reference to the Debtors’ status as a debtor-in-possession.

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stationary and business forms. The Debtors respectfully submit that to do so would be unnecessary and that appropriate care can be taken to assure the proper use of the existing forms. C. The Debtors Must be Permitted to Satisfy the Processing Fees and Cash Register System Fees, Including Any Pre-Petition Obligations Related Thereto The Debtors, operating their businesses as debtors in possession under section

39.

1107(a) and 1108 of the Bankruptcy Code, are fiduciaries “holding the bankruptcy estate and operating the business for the benefit of [their] creditors.” In re CoServ, L.L.C., 273 B.R. 487, 497 (Bankr. N.D. Tex. 2002). Implicit in the duties of a chapter 11 debtor in possession is the duty to “protect and preserve the estate, including an operating business’s going-concern value.” Id. 40. The CoServ court specifically noted that pre-plan satisfaction of pre-petition

claims would be a valid exercise of a debtor’s fiduciary duty when the payment “is the only means to effect a substantial enhancement of the estate.” Id. at 498. The court provided a threepronged test for determining whether a pre-plan payment on account of a pre-petition claim was a valid exercise of a debtor’s fiduciary duty: First, it must be critical that the debtor deal with the claimant. Second, unless it deals with the claimant, the debtor risks the probability of harm, or, alternatively, loss of economic advantage to the estate or the debtor’s going concern value, which is disproportionate to the amount of the claimant’s pre-petition claim. Third, there is no practical or legal alternative by which the debtor can deal with the claimant other than by payment of the claim. Id. at 498. 41. Satisfying the Processing Fees and Cash Register System Fees, including any pre-

petition obligations on account thereof, meets each element of the CoServ court’s standard. As described herein, approximately sixty percent (60%) of the Debtors’ revenues are generated from

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credit and debit card sales. The Debtors therefore believe that they can only meets their fiduciary duties as debtors in possession under sections 1107(a) and 1108 of the Bankruptcy Code by having the authority, but not the discretion, of this Court to satisfy any outstanding prepetition obligations on account of the Processing Fees and Cash Register System Fees. 42. The Court may also authorize the payment of the Processing Fees and Cash

Register System Fees pursuant to section 363(b) of the Bankruptcy Code. Section 363(b) provides that “[t]he trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). Under this section, a court may authorize a debtor to pay certain pre-petition claims. See In re Ionosphere Clubs, Inc., 98 B.R. 174, 175 (Bankr. S.D.N.Y. 1989) (authorizing payment of pre-petition claims where the debtors “articulate some business justification, other than the mere appeasement of major creditors”); see also In re James A. Phillips, Inc., 29 B.R. 391, 395-97 (S.D.N.Y. 1983) (authorizing, pursuant to section 363, a contractor to pay pre-petition claims of some suppliers who were potential lien claimants, because the payments were necessary for the general contractors to release funds owed to the debtors). 43. Additionally, 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). A bankruptcy court’s use of its equitable powers to “authorize the payment of pre-petition debt when such payment is needed to facilitate the rehabilitation of the debtor is not a novel concept.” In re Ionosphere Clubs, Inc., 98 B.R. at 175. Under section 105(a) of the Bankruptcy Code and the “necessity of payment” doctrine, the Court “can permit pre-plan payment of a pre-petition obligation when essential to the continued operation of the debtor.” In re NVR L.P., 147 B.R. 126, 127 (Bankr. E.D. Va. 1992); see also In

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re Lehigh & New England Ry. Co., 657 F.2d 570, 581 (3d Cir. 1981) (stating the necessity of payment doctrine “teaches no more than, if payment of a claim which arose prior to reorganization is essential to the continued operation of the [business] during reorganization, payment may be authorized even if it is made out of corpus.”); In re Just for Feet, Inc., 242 B.R. 821, 825 (D. Del. 1999) (“to invoke the necessity of payment doctrine, a debtor must show that payment of the pre-petition claims is ‘critical to the debtor’s reorganization’”) (citation omitted). 44. In light of the Debtors’ need to maximize value for the benefit of all creditors, the

relief requested herein is proper and should be granted. The success of the Debtors’ chapter 11 reorganization efforts is dependent upon, among other things, the ability to process customer credit and debit card transactions. In the Debtors’ business judgment, the ability to pay the Processing Fees and Cash Register System Fees, including any related pre-petition amounts, is critical to the Debtors’ reorganization. Any inability on the Debtors’ part to continue to satisfy pre-petition obligations with respect to the Processing Fees and Cash Register System Fees would threaten the Debtors’ ability to maximize estate value. Accordingly, the Debtors believe that the relief requested herein is warranted and a sound exercise of business judgment. 45. Finally, in chapter 11 cases in which debtors have shown that satisfying similar

pre-petition obligations was critical to the success of their chapter 11 efforts, courts in this district and other jurisdictions have routinely authorized and approved the relief requested herein. See e.g., In re Pliant Corporation, Case No. 09-10443 (Bankr. D. Del. Feb 12, 2009) (Walrath, J.); In re Smurfit-Stone Container Corporation, Case No. 09-10235 (Bankr. D. Del. Jan. 27, 2009) (Shannon, J.); In re Goody’s LLC, Case No. 09-10124 (Bankr. D. Del. Jan. 20, 2009) (Sontchi, J.); In re Merisant Worldwide, Inc., Case No. 09-10059 (Bankr. D. Del. Jan. 13, 2009) (Walsh, J.); In re Blue Tulip Corporation, Case No. 09-10015 (Bankr. D. Del. Jan. 6,

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2009) (Gross, J.); In re Sharper Image Corporation, Case No. 08-10322 (Bankr. D. Del. Feb. 19, 2008) (Carey, C.J.). 46. In light of the foregoing, the Debtors submit that the relief requested herein is

necessary, prudent and in the best interests of their estates and creditors and should therefore be granted. D. 47. The Court Should Waive the Deposit Requirements of 11 U.S.C. § 345(b) on an Interim Basis. The Debtors request that the Court waive the requirements of section 345(b) of

the Bankruptcy Code on an interim basis and permit them to maintain their deposits in their accounts in accordance with their existing deposit practices until such time as the Debtors obtain this Court’s approval to deviate from the guidelines imposed under section 345(b) of the Bankruptcy Code on a final basis. 48. Section 345(a) of the Bankruptcy Code authorizes deposits or investments of

money of a bankruptcy estate, such as cash, in a manner that will “yield the maximum reasonable net return on such money, taking into account the safety of such deposit or investment.” 11 U.S.C. § 345(a). For deposits or investments that are not “insured or guaranteed by the United States or by a department agent or instrumentality of the United States or backed by the full faith and credit of the United States,” section 345(b) of the Bankruptcy Code provides that the estate must require from the entity with which the money is deposited or invested a bond in favor of the United States secured by the undertaking of an adequate corporate surety. 11 U.S.C. § 345(b). 49. A court may, however, relieve a debtor in possession of the restrictions imposed

by section 345(b) of the Bankruptcy Code for “cause”. 11 U.S.C. § 345(b). Local Rule 20152(b) provides that if a motion for a waiver of the restrictions imposed by section 345(b) “is filed

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on the first day of a chapter 11 case in which there are more than 200 creditors, the Court may grant an interim waiver until a hearing on the debtors’ motion can be held.” Del.Bankr.L.R. 2015-2(b). As this Motion is being filed on the first day of the Debtors’ Chapter 11 Cases and the Debtors have far in excess of 200 creditors, the Debtors request that the Court enter an order waiving, on an interim basis, for a period of forty-five (45) days from the Petition Date, the requirements of section 345(b). 50. Given the complexity of the Debtors’ Cash Management System and the relative

security of the Cash Management System, the Debtors submit that cause exists to grant an interim waiver of the requirements of section 345(b) of the Bankruptcy Code in the manner requested herein. This Court previously has granted similar relief on numerous other occasions. See, e.g., In re Ambassadors International, Inc., Case No. 11-11002 (KG) (Bankr. D. Del. Apr. 5, 2011); In re Javo Beverage Company, Inc., Case No. 11-14000 (BLS) (Bankr. D. Del. Jan. 25, 2011). Request For Immediate Relief and Waiver of Stay to Avoid Immediate and Irreparable Harm 51. The Debtors seek immediate authorization for the relief contemplated by this

Motion. Pursuant to Bankruptcy Rule 6003(b), 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.

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52.

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 53. 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 54. 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 55. No prior request for relief sought in this Motion has been made to this Court or

any other court.

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WHEREFORE, the Debtors respectfully request that the Court enter an order, in the form attached hereto as Exhibit C, (i) authorizing and approving the Debtors’ continued use of their existing Cash Management System; (ii) granting the Debtors a waiver of certain requirements in the U.S. Trustee Guidelines to the extent that such requirements are inconsistent with (a) the Debtors’ practices in connection with their Cash Management System or (b) any action taken by the Debtors in accordance with any order granting the relief requested in this Motion or any other order entered in these chapter 11 cases; (iii) authorizing, but not directing, the Debtors to pay all pre-petition Processing Fees and Cash Register System Fees and any related pre-petition obligations; (iv) waiving the requirements of section 345(b) of the Bankruptcy Code on an interim basis for a period of forty-five (45) days from the Petition Date; and (iv) granting certain related relief and such other and further relief as the Court may deem 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

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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 Callender’s Inc., et al. Debtors and Debtors-in-Possession

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EXHIBIT A

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EXHIBIT B

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070242.1001

EXHIBIT C

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDER’S INC.,1 et al., Debtors. Ref. Docket No. _____ ORDER PURSUANT TO 11 U.S.C. §§ 105(a), 345(b), 363, 1107(a) AND 1108, FED.R.BANKR.P. 2015 AND DEL.BANKR.L.R. 2015-2 FOR AN ORDER (I) AUTHORIZING AND APPROVING CONTINUED USE OF CASH MANAGEMENT SYSTEM, (II) AUTHORIZING USE OF PRE-PETITION BANK ACCOUNTS AND BUSINESS FORMS, (III) AUTHORIZING PAYMENT OF PRE-PETITION COSTS AND FEES ASSOCIATED WITH CUSTOMER CREDIT CARD TRANSACTIONS, (IV) WAIVING THE REQUIREMENTS OF 11 U.S.C. 345(b) ON AN INTERIM BASIS AND (V) GRANTING CERTAIN RELATED RELIEF Upon the Debtors’ Motion Pursuant to 11 U.S.C. §§ 105(a), 345(b), 363, 1107(a) and 1108, Fed.R.Bankr.P. 2015 and Del.Bankr.L.R. 2015-2 for an Order (I) Authorizing and Approving Continued Use of Cash Management System, (II) Authorizing Use of Pre-petition Bank Accounts and Business Forms, (III) Authorizing Payment of Pre-Petition Costs and Fees Associated with Customer Credit Card Transactions, (IV) Waiving the Requirements of 11 U.S.C. § 345(b) on an Interim Basis and (V) Granting Certain Related Relief (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
The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Perkins & Marie Callender’s Inc. (4388); Perkins & Marie Callender’s Holding Inc. (3999); Perkins & Marie Callender’s 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

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

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

YCST01:11162241.1

070242.1001

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 in the Motion. Accordingly, it is hereby, ORDERED, ADJUDGED AND DECREED that: 1. 2. The Motion is granted. The Debtors are authorized in the reasonable exercise of their business judgment,

to (i) designate, maintain and continue to use, with the same account numbers, all of their bank accounts in existence on the Petition Date (collectively, the “Bank Accounts”), including, without limitation, those bank accounts identified in Exhibit B to the Motion, (ii) use, in their present form, any and all checks and other documents related to the Bank Accounts, and (iii) treat such Bank Accounts for all purposes as accounts of the Debtors as debtors-in-possession and to maintain and continue using these accounts in the same manner and with the same account numbers, styles and document forms as those employed prior to the Petition Date. 3. The Cash Management Banks participating in the Cash Management System are

hereby authorized to continue to service and administer all Bank Accounts as accounts of the Debtors as debtors-in-possession without interruption and in the ordinary course in a manner consistent with any agreements between the Cash Management Banks and the Debtors that existed prior to the Petition Date, and to receive, process, honor and pay any and all checks, drafts, wires, or other electronic transfer requests issued, payable through, or drawn on such Bank Accounts after the Petition Date by the holders or makers thereof or other parties entitled to issue instructions with respect thereto, as the case may be; provided, however, that any such

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checks, drafts, wires or other electronic transfer requests issued by the Debtors before the Petition Date may be honored by any bank only if specifically authorized by order of this Court. 4. The Debtors are authorized, but not directed, in their sole discretion, to pay all

pre-petition Processing Fees and any related pre-petition obligations, up to an aggregate amount of $500,000, in accordance with the Debtors’ pre-petition policies and practices. 5. The Debtors are authorized, but not directed, in their sole discretion, to pay all

pre-petition Cash Register System Fees and any related pre-petition obligations, up to an aggregate amount of $290,000, in accordance with the Debtors’ pre-petition policies and practices (including the Debtors’ payment plan arrangement with MICROS). 6. The Debtors are authorized, but not directed, in their sole discretion, to pay all

pre-petition fees and obligations owed to Garda, up to an aggregate amount of $30,000, in accordance with the Debtors’ pre-petition policies and practices. 7. Except for those that may be honored and paid to comply with any order(s) of this

Court authorizing payment of certain prepetition claims, no checks, drafts, wires or other electronic transfer requests drawn, issued or requested on the Bank Accounts before the Petition Date but presented for payment after the Petition Date shall be honored or paid. 8. The Debtors are authorized to make disbursements from the Bank Accounts other

than by check, including, without limitation, via wire transfer or other form of electronic transfer, to the extent consistent with the Debtors’ existing cash management practices. 9. The Cash Management Banks participating in the Cash Management System shall

not be liable to the Debtors or to their estates for honoring a pre-petition check or other item drawn on any account that is the subject of this Order (a) at the direction of the Debtors, (b) in a good faith belief that the Court has authorized such pre-petition check or item to be honored, or

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(c) as a result of an innocent mistake made despite implementation of reasonable item handling procedures. 10. The Cash Management Banks may assert prepetition chargebacks against post-

petition deposits in the Marie Callender’s Credit Card Clearing Accounts, the Perkins Concentration Accounts, or any of the Debtors’ other bank accounts for which a chargeback can be asserted. 11. The Debtors are authorized to continue to use all their correspondence and

business forms (including, without limitation, checks, letterhead, purchase orders and invoices) existing immediately before the Petition Date without reference to the Debtors’ status as debtorsin-possession; provided, however, that upon the depletion of any pre-printed check stock and other business forms, the Debtors will obtain new check stock and business forms reflecting their status as debtors-in-possession. 12. Nothing contained herein shall prevent the Debtors from opening any new bank

accounts or closing any Bank Accounts as the Debtors may deem necessary and appropriate; provided, however, that prior to opening any new bank accounts or closing any Bank Accounts, the Debtors shall provide notice of the Debtors’ intentions with respect thereto to the U.S. Trustee. 13. With regard to the Cash Management Banks that are party to a Uniform

Depository Agreement with the U.S. Trustee, within fifteen (15) days from the date of the entry of this Order, the Debtors shall (a) contact each bank, (b) provide the bank with each of the Debtors’ employer identification numbers, and (c) identify each of their accounts held at such banks as being held by a debtor-in-possession.

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14.

With regard to the Cash Management Banks that are not a party to a Uniform

Depository Agreement with the U.S. Trustee, within forty-five (45) days from the date of the entry of this Order, the Debtors shall use their good-faith efforts to cause the bank to execute a Uniform Depository Agreement in a form prescribed by the U.S. Trustee. 15. In the ordinary course of their business post-petition in accordance with their pre-

petition policies and practices, the Debtors shall continue to maintain records related to any intercompany transfers and disbursements so that such transactions can be ascertained, traced, and accounted for such that the Debtors are able to report in their monthly operating reports required by the U.S. Trustee their disbursements separately for each individual Debtor. 16. The requirements of section 345(b) of the Bankruptcy Code and the U.S. Trustee

Guidelines are waived on an interim basis for a period of forty-five (45) days from the Petition Date such that the Debtors are hereby permitted to maintain their deposits in their Bank Accounts in accordance with their existing deposit practices. This Order shall be without prejudice to the Debtors’ rights to seek a further interim waiver from this Court of such requirements or to seek approval from this Court to deviate from such requirements on a final basis. 17. The Debtors are authorized, but not required, in the Debtors’ sole discretion, to

pay all undisputed pre-petition amounts outstanding as of the Petition Date, if any, owed to the Cash Management Banks as service charges for the maintenance of the Cash Management System and the related Bank Accounts. 18. Nothing in the Motion or this Order, nor the Debtors’ payment of any claims

pursuant to this Order, shall be deemed or 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

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approval or assumption of any agreement, contract or lease, pursuant to section 365 of the Bankruptcy Code. 19. 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. 20. are satisfied. 21. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and To the extent applicable, the requirements set forth in Bankruptcy Rule 6003(b)

conditions of this Order shall be immediately effective and enforceable upon its entry. 22. This Court shall retain jurisdiction to hear and determine all matters arising from

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

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