IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors.

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

Objections Due: October 4, 2011 at 4:00 p.m. Hearing Date: October 11, 2011 at 2:00 p.m.

MOTION OF ANTON GIRANDE AND JASON IPPOLITO FOR RELIEF FROM THE AUTOMATIC STAY Anton Girande and Jason Ippolito (Movants), by and through their undersigned counsel, moves this Honorable Court for Relief From the Automatic Stay to assert and prosecute personal injury claims against the Debtor arising from an automobile collision in Alameda County, California, and in support thereof, states as follows: JURISDICTION AND VENUE 1. On June 13, 2011 (the Petition Date), the Debtors filed Voluntary

Petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code (the Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware. 2. This Court has jurisdiction to entertain this Motion pursuant to 28 U.S.C.

157 and 1334. 3. 4.

1

Venue in this District is proper pursuant to 28 U.S.C. 1408 and 1409. The statutory predicates for the relief sought are section 362(d)(1) of the

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/); 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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Bankruptcy Code, Rule 4001(a) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and Rule 4001-1 of the Local Rules of Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the "Local Rules"). 5. On September 9, 2011, this Court approved the Second Amended

Disclosure Statement and the Confirmation Hearing is presently scheduled for October 31, 2011. STATEMENT OF FACTS - RELEF REQUESTED 6. Nearly 18 months before the Petition Date, on December 18, 2009, an

automobile operated by James Thomas Nelson caused a multi-vehicle collision in unincorporated Alameda County, California, which resulted in serious bodily injury to Anton Girande and Jason Ippolito as well as resulting property damages and expenses. 7. Upon information and belief, at the time of the collision, the adverse driver -

James Thomas Nelson was in the course and scope of his employment with the Debtor, Perkins & Marie Callenders, Inc., and was operating an automobile which carried liability and property damage insurance in the name of the Debtor, Perkins & Marie Callenders, Inc. identified as Policy #CAL-H-07961431 with ACE American Insurance Company. 8. Movants have each asserted claims with the insurance carrier for Debtors

under Policy #CAL-H-07961431 with ACE American Insurance Company and in June and July 2011, Debtors insurance representatives advised Movants counsel of the pending bankruptcy and the automatic stay arising as of the Petition Date. 9. Accordingly, Movants file this Motion and request that this Honorable Court

lift the automatic stay to allow Movants to continue asserting claims against the Policy, to file the appropriate Complaints in the appropriate state or federal courts within the applicable two

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year statute of limitations and to allow Movants to liquidate their claims in the appropriate state or federal courts. Movants are not seeking the right to execute upon any judgments they may obtain against the Debtors other than rights to collection against applicable insurance carriers and liquidatation of the claims for purposes of proofs of claim to be allowed as general unsecured creditors under any confirmed Plan of Reorganization should a self retention or similar limitation impair Movants ability to collect any settlement or judgment from the Debtors insurance carriers. BASIS FOR RELIEF 10. Bankruptcy Code section 362(d)(1) provides that a court shall grant relief

from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay - (1) for cause. 11 U.S.C. 362(d)(1). 11. There is no definition of cause in the Bankruptcy Code. Therefore,

cause must be determined on a case-by-case basis. International Business Machines v. Fernstrom Storage & Van Co. (In re Fernstrom Storage & Van Co.), 938 F.2d 731, 735 (7th Cir. 1991) (citing In re Tuscon Estates, 912 F.2d 1162, 1166 (9th Cir. 1990)); Izzarelli v. Rexene Products Co. (In re Rexene Products Co.), 141 B.R. 574, 576 (Bankr. D. Del. 1992). 12. In determining whether cause exists to lift the stay to permit a party to

continue litigating an action in a non-bankruptcy court, courts in the Third Circuit apply the following three factor test: (1) Whether any great prejudice to either the bankrupt estate or the debtor will result from continuation of the civil suit; (2) Whether the hardship to the non-bankrupt party by maintenance of

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the stay considerably outweighs the hardship to the debtor; and (3) The probability of the creditor prevailing on the merits.

Rexene Products, 141 B.R. at 576; see also American Airlines, Inc. v. Continental Airlines, Inc. (In re Continental Airlines, Inc.), 152 B.R. 420, 424 (D. Del. 1993); Levitz Furniture Inc. v. T. Rowe Price Recovery Fund, L.P. (In re Levitz Furniture Inc.), 2000 Bankr. LEXIS 1322, *15 (Bankr. D. Del. 2000); Save Power Limited v. Pursuit Athletic Footwear, Inc. (In re Pursuit Athletic Footwear, Inc.), 193 B.R. 713, 718 (Bankr. D. Del. 1996). 13. Further, courts are directed to consider the following legislative history: It

will often be more appropriate to permit proceedings to continue in their place of origin, where no great prejudice to the bankruptcy estate would result, in order to leave the parties to their chosen forum and to relieve the bankruptcy court from many duties that may be handled elsewhere. Rexene Products, 141 B.R. at 576; In re Wilson, 85 B.R. 722, 728-29 (Bankr. E.D. Pa. 1988) (citing S. Rep. No. 989, 95th Cong., 2d. Sess. 50, reprinted in [1978] U.S. Code Cong. & Ad. News 5836). 14. This Court, in the Continental Airlines decision referred to above, set forth

the following framework for analyzing motions for relief from the automatic stay: There is no rigid test for determining whether sufficient cause exists to modify an automatic stay. Rather, in resolving motions for relief for cause from the automatic stay courts generally consider the policies underlying the automatic stay in addition to the competing interests of the debtor and the movant. In balancing the competing interests of the debtor and the movant, Courts consider three factors: (1) the prejudice that would be suffered should the stay be lifted; (2) the balance of the hardships facing the parties; and (3) the probable success on the merits if the stay is lifted. See Intl Business Machines v. Fernstrom Storage & Van Co. (In re Fernstrom

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Storage & Van Co.) 938 F. 2d 731. 734-37 (7th Cir. 1991). Id. at 424. 15. All three factors weigh heavily in favor of modifying the automatic stay to

permit Movants to proceed with the non-bankruptcy action to pursue personal injury claims in the forums of their choice. 16. In determining whether a debtor will endure prejudice if the automatic

stay is lifted, courts examine the status of the underlying non-bankruptcy court action. In this case, Movants counsels had been addressing these claims with the Debtors insurance carriers, but were required to cease settlement efforts as a result of the filing of the bankruptcy. The Movants anticipated settling all claims, and if that was not completed expeditiously, Movants would have filed Complaints in the appropriate state or federal courts prior to the expiration of the applicable two year statute of limitations. 17. Administration of the estate will not be delayed by granting this Motion.

The Debtors have progressed rapidly in this case, a Second Amended Disclosure Statement has already been approved and a Confirmation Hearing is presently scheduled for October 31, 2011. The Movants have identified applicable insurance coverage; consequently, the Debtors will not need to expend resources in the defense of these actions. There should be no inconvenience to the Debtors by allowing Movants to pursue their respective actions. 18. Debtors will not suffer great prejudice if the stay is lifted and the Movants

are permitted to proceed against the insurance and liquidate any claims they have against the Debtors. 19. The third prong of the Fernstrom test analyzes the Movants probability of

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success on the underlying action. As stated by the bankruptcy court in Rexene Products, the required showing is very slight. Rexene Products, 141 B.R at 578; see also Continental Airlines, 152 B.R. at 420 (The third factor the Court must consider in assessing the propriety of lifting the automatic stay is whether the Movants have some probability of success on the merits in the proposed litigation.); Levitz Furniture, 2000 Bankr. LEXIS at *17 (holding that Movants only need to show that their claim is not frivolous to satisfy the third prong). 20. Movants have satisfied the third part of the Rexene test. Here, the

Movants claims against the Debtors are clearly not frivolous as evidenced by the fact that the Movants were seriously injured in an automobile collision caused by the negligence of an employee of Debtors operating in the course of his employment. Movants had been addressing these claims through Debtors insurance carrier before the Petition Date. Granting of a Relief from Stay will allow the process to proceed, and, under any circumstances, complete the liquidation of Movants claims. 21. Based on the foregoing, Movants respectfully submit that the Debtors

administration and reorganization endeavors will not be prejudiced by the granting of this Motion because the Movants are seeking only to liquidate their claims, pursue available insurance proceeds and preserve any rights they have under a confirmed plan of reorganization. Movants would be seriously prejudiced by any delay and they must be allowed to proceed before the tolling of the applicable statute of limitations. WHEREFORE, based on the foregoing reasons, Movants pray for the entry of an Order terminating the automatic stay of 11 U.S.C. 362 (a) to proceed against insurance proceeds, to allow Movants to pursue and liquidate their claims in the appropriate state or

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federal courts and to grant such other and further relief as the Court deems just and proper. Dated: September 26, 2011 MONZACK MERSKY MCLAUGHLIN AND BROWDER, P.A. /s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Telephone: (302) 656-8162 Facsimile: (302) 656-2769 Email: rmersky@monlaw.com Attorneys for Anton Girande and Jason Ippolito

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors.

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

Objections Due: October 4, 2011 at 4:00 p.m. Hearing Date: October 11, 2011 at 2:00 p.m.

NOTICE OF MOTION OF ANTON GIRANDE AND JASON IPPOLITO FOR RELIEF FROM STAY UNDER SECTION 362 OF THE BANKRUPTCY CODE TO: Counsel to the Debtors, Office of the United States Trustee, Counsel to the Creditors Committee, Counsel to the DIP Lender and Counsel to Noteholders.

Anton Girande and Jason Ippolito (Movants) has filed their Motion of Anton Girande and Jason Ippolito for Relief from Automatic Stay (the Motion) on September 26, 2011 requesting an order pursuant to 11 U.S.C. 362 (d)(1) and Bankruptcy Rule 4001 granting relief from the automatic stay. HEARING ON THE MOTION WILL BE HELD ON OCTOBER 11, 2011 AT 2:00 P.M. You are required to file a response (and the supporting documentation required by Local Rule 4001-1(d)) to the attached motion at lease five business days before the above hearing date. At the same time, you must also serve a copy of the response upon Movants attorney: MONZACK MERSKY McLAUGHLIN AND BROWDER, P.A. Rachel B. Mersky, Esquire 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Telephone: (302) 656-8162 Facsimile: (302) 656-2769 Email: rmersky@monlaw.com

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/); 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.

The hearing date specified above may be a preliminary hearing or may be consolidated with the final hearing, as determined by the Court. The attorneys for the parties shall confer with respect to the issues raised by the motion in advance for the purpose of determining whether a consent judgment may be entered and/or for the purpose of stipulating to relevant facts. Dated: September 26, 2011 MONZACK MERSKY MCLAUGHLIN AND BROWDER, P.A.

/s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Telephone: (302) 656-8162 Facsimile: (302) 656-2769 Email: rmersky@monlaw.com Attorneys for Anton Girande and Jason Ippolito

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors.

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

Related to Docket No. _______

ORDER GRANTING ANTON GIRANDE AND JASON IPPOLITO RELIEF FROM THE AUTOMATIC STAY PURSUANT TO 11 U.S.C. 362(d) AND RULE 4001 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE Upon consideration of the Motion of Anton Girande and Jason Ippolito for Relief from Automatic Stay Pursuant to 11 U.S.C. 362(d and Rule 4001 of the Federal Rules of Bankruptcy Procedure (the Motion), and the Court finding that: (i) it has subject matter jurisdiction over the matters raised in the Motion pursuant to 28 U.S.C. 1334; (ii) venue of these cases and this Motion are proper in this District pursuant to 28 U.S.C. 1408 and 1409; and (iv) proper and adequate notice of the Motion and the hearing thereon has been given and that no other or further notice is necessary; and upon deliberation and sufficient cause appearing thereof, it is hereby: ORDERED, that the Motion is GRANTED; and it is further ORDERED, that pursuant to 11 U.S.C. 362(d)(1), the automatic stay is hereby terminated for the purpose of allowing Anton Girande and Jason Ippolito, individually and collectively, to proceed against insurance proceeds; and it is further

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/); 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.

ORDERED, that Movants are authorized to pursue and liquidate their claims in the appropriate state or federal courts; and it is further ORDERED, that this Court shall retain jurisdiction to hear any disputes arising out of the implementation of this Order.

The Honorable Kevin Gross United States Bankruptcy Judge

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors.

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

CERTIFICATE OF SERVICE I, Shelley A. Losito, certify that I am not less than 18 years of age, and that service of the Motion of Anton Girande and Jason Ippolito for Relief from Stay was made on September 26, 2011 upon all parties on the attached service list in the manner indicated. I further certify that the foregoing was also served electronically on the CM/ECF System.

Date: September 26, 2011

/s/ Shelley A. Losito Shelley A. Losito, Paralegal

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/); 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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SERVICE LIST FOR RELIEF FROM STAY GIRANDE/IPPOLITO Brett Goodman, Esq. Mitchel H. Perkiel, Esq. The Chrysler Building Troutman Sanders 405 Lexington Avenue New York, NY 10174 (Debtors) Federal Express Overnight Mark R. Somerstein, Esq. Benjamin L. Schneider, Esq. Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036 (Official Committee of Unsecured Creditors) Federal Express Overnight Robert S. Brady, Esq. Robert F. Poppiti, Esq. The Brandywine Bldg., 17th Floor Young Conaway Stargatt & Taylor LLP 1000 West Street Wilmington, DE 19801 (Debtors) Hand Delivery Richard S. Cobb, Esq. WIlliam Chipman, Esq. Mark Olivere, Esq. Landis Rath & Cobb LLP 919 Market Street, Suite 600 Wilmington, DE 19801 (Official Committee of Unsecured Creditors) Hand Delivery Richard L. Schepacarter, Esq. Office of the United States Trustee 844 King Street, Suite 2207 Lock Box 35 Wilmington, DE 19801 Hand Delivery

Aaron Klein Park Avenue Tower Paul Hastings 75 E. 55th St., First Floor New York, NY 10022 (Wells Fargo Capital Finance) Federal Express Overnight Cassie Coppage, Esq. Jesse H. Austin, III, Esq. Paul Hastings Janofsky & Walker LLP 600 Peachtree Street, N.E. Suite 2400 Atlanta, GA 30308 (Wells Fargo Capital Finance) Federal Express Overnight

Richard Riley, Esq. Duane Morris LLP 222 Delaware Avenue, Suite 1600 Wilmington, DE 19801 (Wells Fargo Capital Finance) Hand Delivery

Scott L Alberino, Esq Robert Strauss Building Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave NW Washington, DC 20036 (Wayzata) Federal Express Overnight Ira Dizengoff, Esq Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, New York 10036 (Wayzata - Holders of Secured Notes and Majority of Senior Notes) Federal Express Overnight Ramesh Singh c/o Recovery Manangement Systems Corp. GE Money Bank 25 SE Second Avenue, Suite 1120 Miami, FL 33131 (Recovery Agent for GE Money Bank) Federal Express Overnight Edward P. Zujkowski, Esq. Emmet Marvin & Martin, LLP 120 Broadway, 32nd Floor New York, NY 10271 (Indenture Trustee for Second Notes) Federal Express Overnight

David W. Carickhoff Stanley Tarr, Rsq. Blank Rome LLP 1201 North Market Street, Suite 800 Wilmington, DE 19801 (Wayzata) Hand Delivery Ray Wallender, Esq. Wayzata Investment Partners 701 East Lake Street, Suite 300 Wayzata, MN 55291 (Holder of Senior Notes) Federal Express Overnight

Douglas E. Spelfogel Richard Bernard Foley & Lardner LLP 90 Park Avenue New York, NY 10016 (Wilmington Trust, Indenture Trustee for Senior Notes) Federal Express Overnight