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Craig D. Hansen (AZ Bar No. 007405) chansen@ssd.

com
Bradley Cosman (AZ Bar No. 026223) bcosman@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
Two Renaissance Square, Suite 2700
40 North Central Avenue
Phoenix, Arizona 85004-4498
(602) 528-4000

and

Kristin E. Richner (OH Bar No. 0078582) krichner@ssd.com


Nicholas J. Brannick (OH Bar No. 0079642) nbrannick@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
(614) 365-2700

Proposed Counsel to Debtors and Debtors-In-Possession

UNITED STATES BANKRUPTCY COURT


FOR THE DISTRICT OF ARIZONA

In re

EUROFRESH, INC. Case No. 2:-09-bk-07970-CGC

EUROFRESH PRODUCE, LTD. Case No. 2:-09-bk-07971-CGC

Debtors. Chapter 11

NOTICE OF BANKRUPTCY FILING

NOTICE IS HEREBY GIVEN that on April 21, 2009, EUROFRESH, INC. and
EUROFRESH PRODUCE, LTD. (collectively, the “Debtors”), by and through undersigned
counsel, filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy
Code, 11 U.S.C. § 101-1532, in the United States Bankruptcy Court for the District of Arizona,
Phoenix Division, before the Honorable Charles G. Case II (the “Bankruptcy Court”).

Immediately on the bankruptcy filing, a broad “stay” automatically goes into effect that
prohibits creditors from taking or continuing most actions to collect money or property from the
Debtors, including the commencement or continuation of any judicial proceedings in any court
other than the Bankruptcy Court. Such a stay is now in effect as of April 21, 2009 as to the
Debtors. A creditor wishing to proceed with an action against the Debtors or any of the Debtors’

COLUMBUS/676188.2 1
property must obtain permission from the Bankruptcy Court, or face a potential claim for
damages, including costs and attorneys’ fees, and, in appropriate circumstances, punitive
damages. Creditors who are uncertain of their rights should seek legal advice.

Dated this 21st day of April, 2009.

SQUIRE, SANDERS & DEMPSEY L.L.P.

By: /s/ Craig D. Hansen


Craig D. Hansen
Bradley Cosman
Two Renaissance Square
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004-4498
(602) 528-4000

-and-

Kristin E. Richner
Nicholas J. Brannick
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
(614) 365-2700

Proposed Counsel to Debtors and Debtors-in-


Possession

COLUMBUS/676188.2 2
Craig D. Hansen (AZ Bar No. 007405) chansen@ssd.com
Bradley A. Cosman (AZ Bar No. 026223) bcosman@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
Two Renaissance Square, Suite 2700
40 North Central Avenue
Phoenix, Arizona 85004-4498
(602) 528-4000

and

Kristin E. Richner (OH Bar No. 0078582) krichner@ssd.com


Nicholas J. Brannick (OH Bar No. 0079642) nbrannick@ssd.com
SQUIRE, SANDERS & DEMPSEY L.L.P.
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
(614) 365-2700

Proposed Counsel to Debtors and Debtors-In-Possession

UNITED STATES BANKRUPTCY COURT


FOR THE DISTRICT OF ARIZONA

In re

EUROFRESH, INC. Case No. 2:09-bk-07970-CGC

EUROFRESH PRODUCE, LTD. Case No. 2:09-bk-07971-CGC

Debtors. Chapter 11

Relief Requested Applies to: MOTION FOR ORDER AUTHORIZING


THE DEBTORS TO (A) PREPARE, BUT
Eurofresh, Inc. Only NOT FILE, A CONSOLIDATED LIST OF
Eurofresh Produce, Ltd. Only
Both Debtors CREDITORS IN LIEU OF INDIVIDUAL
MATRICES, (B) MAKE THE
CONSOLIDATED LIST OF CREDITORS
AVAILABLE ONLY UPON REQUEST, AND
(C) FILE A CONSOLIDATED LIST OF THE
DEBTORS’ 30 LARGEST UNSECURED
CREDITORS

Date of Hearing: April 22, 2009


Time of Hearing: 1:30 p.m.

COLUMBUS/676159.1 1
EUROFRESH, INC. and EUROFRESH PRODUCE, LTD., debtors and debtors-in-

possession in the above-captioned Chapter 11 cases (the “Debtors”), file this Motion for an

order under 11 U.S.C. § 105(a), Rules 1001 and 1007(a)(5), (c), and (d) of the Federal Rules

of Bankruptcy Procedure, and Local Bankruptcy Rules 1007-1(a) and (b), authorizing the

Debtors to prepare a consolidated list of creditors in lieu of individual matrices, make the

consolidated list of creditors available only upon request, and file a consolidated list of the

Debtors’ 30 largest unsecured creditors. This Motion seeks immediate entry of an order

granting the Motion and is brought on an emergency basis on expedited notice under Local

Bankruptcy Rule 9013-1(h) to avoid immediate and irreparable harm to the Debtors’ estates.

The relief requested in this Motion would allow the Debtors to prepare a consolidated
list of creditors for these Cases in lieu of individual matrices, as well as file a
consolidated list of the Debtors’ 30 largest unsecured creditors. The basis for the
relief requested in this Motion is set forth in paragraphs 10 through 25 below

This Motion is supported by the entire record before the Court, the “Declaration of Frank

van Straalen in Support of Chapter 11 Petitions and First Day Motions” (the “Van Straalen

Dec.”) filed contemporaneously with Motion, and by the following memorandum of points and

authorities.

BACKGROUND

Jurisdiction and Venue

1. On April 21, 2009 (the “Petition Date”), the above-captioned Debtors filed

voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C.

§§ 101, et seq. (as amended, the “Bankruptcy Code”), which cases are pending before the

United States Bankruptcy Court for the District of Arizona (the “Court”).

2. The Debtors continue to operate their businesses and manage their assets as

debtors-in-possession pursuant to 11 U.S.C. §§ 1107 and 1108.

COLUMBUS/676159.1 2
3. This Court has jurisdiction over these Chapter 11 cases (these “Cases”) under 28

U.S.C. §§ 157 and 1334. These matters constitute core proceedings under 28 U.S.C. § 157(b)(2).

4. Eurofresh, Inc. is a Delaware corporation having its principal places of business in

Snowflake, Arizona and Willcox, Arizona. Eurofresh Produce, Ltd. is a wholly owned

subsidiary of Eurofresh, Inc. Accordingly, venue of these Cases is proper in this District under

28 U.S.C. §§ 1408 and 1409.

5. The statutory predicates for the relief requested in this Motion are section 105(a)

of the Bankruptcy Code, Rules 1001 and 1007(a)(5), (c) and (d) of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”), and Local Rules 1007-1(a) and (b) of the

Local Bankruptcy Rules for the District of Arizona (the “Local Rules”) .

6. No trustee or examiner has been appointed in these Cases, nor has an official

committee of unsecured creditors been established.

Background Facts Concerning The Debtors

7. In support of this Motion, the Debtors hereby incorporate by reference the factual

statements contained in the “Omnibus Statement of Fact in Support of First Day Motions”, filed

contemporaneously herewith, and in the Van Straalen Dec.

RELIEF REQUESTED

8. By this Motion, the Debtors seek an order authorizing the Debtors to: (a) prepare

a consolidated matrix (the “Consolidated Matrix”) on behalf of the Debtors, in electronic

format only, identifying their creditors (without claim amounts) in the format(s) currently

maintained in the ordinary course of their businesses in lieu of preparing the requisite creditor

matrices for each Debtor required by Bankruptcy Rule 1007 and Local Rule 1007-1(a) using the

format requirements of Bankruptcy Rule 1007 and the Local Rules; (b) not file the Consolidated

COLUMBUS/676159.1 3
Matrix with the Court concurrently with the filing of their bankruptcy petitions, but instead to

make such list available to parties in interest only upon request; and (c) file a single consolidated

list of their 30 largest unsecured creditors in these Cases in lieu of filing lists of each Debtor’s

top 20 general unsecured creditors as required by Bankruptcy Rule 1007(d) and Local Rule

1007-1(b).

9. Under the facts and circumstances of these Cases, the Debtors respectfully assert

that such relief is not only appropriate, but necessary for the efficient and orderly administration

of these Cases.

BASIS AND AUTHORITY FOR RELIEF

Basis and Authority to Prepare, But Not File, the Consolidated Matrix

A. Applicable Bankruptcy and Local Rules

10. Bankruptcy Rule 1007(a)(l) and Local Rule 1007-1(a) require a debtor, in a

voluntary case, to file with its petition a list, or creditor service matrix, containing the name and

address of each entity included or to be included on Schedules D, E, F, G and H as prescribed by

the Official Forms. These rules, however, do not specifically address complex Chapter 11 cases

where: (a) multiple bankruptcy cases will be jointly administered by the Court; and (b) a court

appointed claims, noticing, and balloting agent will be handling the service of all Notices (as

defined below) in the bankruptcy cases.

11. Rule 1001 of the Bankruptcy Rules provides, among other things, that the

Bankruptcy Rules “shall be construed to secure, the just, speedy and inexpensive determination

of every case and proceeding.” Fed. R. Bank. P. 1001.

COLUMBUS/676159.1 4
B. Ample Cause Exists for Authorizing the Debtors to Prepare, But Not File, the
Consolidated Matrix in the Format(s) Maintained by the Debtors in the Ordinary Course
of Business

12. Authorizing the Debtors to prepare, but not file, the Consolidated Matrix using the

format(s) currently maintained by the Debtors in the ordinary course of their businesses is

appropriate in these Cases and is in the best interests of the Debtors and the efficient

administration of their estates for reasons set forth below. Doing so will contribute to the just,

speedy, and inexpensive determination of these Cases.

13. The Debtors have identified approximately 5,000 potential entities to which

notice of certain proceedings and events in these Cases must be provided and who will need to

be included in the Debtors’ creditor matrix. The Debtors anticipate that such notices will

include, among other things, notice of the following: (a) the filing of the Debtors’ voluntary

petitions under Chapter 11 of the Bankruptcy Code; (b) the Bankruptcy Code § 341 meeting of

creditors; (c) the deadline to file proofs of claim in these Cases; (d) the hearing on any disclosure

statement with respect to any plan of reorganization that the Debtors may propose; (e) the

commencement of voting and solicitation procedures and the distribution of any ballots and

master ballots that may be used to solicit acceptances of a plan of reorganization; and (f) the

hearing to confirm any plan of reorganization (collectively, the “Notices”).

14. At this nascent stage of these Cases, the Debtors need to focus their time and

efforts on stabilizing their business operations, transitioning into operating under the numerous

Chapter 11 restrictions, and otherwise addressing the issues that necessarily arise upon the filing

of a Chapter 11 petition. Additionally, the Debtors believe the information, as maintained in

Eurofresh Inc.’s computer files (or those of its agents), may be utilized efficiently to provide

interested parties with the Notices and other similar documents. Van Straalen Dec.

COLUMBUS/676159.1 5
15. Furthermore, requiring the Debtors to convert their computerized information to a

format compatible with the matrix requirements would be an exceptionally burdensome task and

would greatly increase the risk and recurrence of error with respect to information already intact

on computer systems maintained by the Debtors or their agents. Van Straalen Dec.

16. Finally, concurrently herewith, the Debtors have also filed a motion (the “Claims

Agent Motion”) seeking the appointment of Kurtzman Carson Consultants LLC (“KCC”) as

claims, noticing, and balloting agent in these Cases. If the Claims Agent Motion is granted,

KCC will, among other things, (a) assist with the consolidation of the Debtors’ computer records

into a creditor database, and (b) complete the mailing of the Notices to the parties in such

database, thereby alleviating the need for the Bankruptcy Court to maintain a list of creditors.

Upon consulting with KCC, the Debtors believe preparing the Consolidated Matrix in the format

or formats currently maintained in the ordinary course of the Debtors’ businesses will be

sufficient to permit KCC to promptly notice all applicable parties. Van Straalen Dec.

17. Avoiding the costs and risks associated with preparing and filing separate

matrices for each Debtor is: (a) in the best interests of the Debtors’ estates; and (b) will serve to

further the just, speedy, and inexpensive determination of these Cases.

18. Regarding the Debtors’ request to not file the Consolidated Matrix, but rather to

make it available upon request, Bankruptcy Rule 1007(a)(5) and (c) provide that an extension of

time for the filing of such a list “may be granted only on motion for cause shown and on notice

to the United States trustee and to any trustee, committee elected under § 705 or appointed under

§ 1102 of the Code, or other party as the court may direct.” Fed. R. Bankr. P. 1007(a)(5).

19. Here, assuming that the Court will grant the Claims Agent Motion, KCC will be

handling the service of all of the Notices. This service alleviates the need for the Debtors to file

COLUMBUS/676159.1 6
a creditor matrix with the Court at all. Thus, the Debtors respectfully request authority to not file

the Consolidated Matrix with the Court. Alternatively, the Debtors request that the Court grant

the Debtors an extension to file the Consolidated Matrix indefinitely, with the Court reserving

the right to order the Debtors to file the Consolidated Matrix later in these Cases should the

Court determine that such filing is necessary and/or appropriate.

20. Under § 105(a), the Court “may issue any order . . . that is necessary or

appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C. § 105(a). The

relief requested herein will save the Debtors the time and expense of generating new creditor

matrices, and it will reduce the risk and error that might result if the Debtors were required to

generate new creditor matrices. Such relief will also allow the Debtors to utilize the time saved

to focus on the numerous other issues which will necessarily arise as a result of the Debtors’

Chapter 11 filings. Accordingly, the relief requested is necessary and appropriate to carry out

the filing requirements and notice provisions of the Bankruptcy Code, the Bankruptcy Rules, and

the Local Rules, and it is necessary and appropriate to allow the Debtors the opportunity and

time to reorganize in these Cases.

21. Relief similar to that requested in this Motion has been granted in comparable

complex Chapter 11 cases in this District. In re PFP Holding, Inc., Case No. 08-00899 (Bankr.

D. Ariz. Feb. 19, 2008); In re Union Power Partners, L.P., et al., No. 2:05-bk-01143-CGC

(Bankr. D. Ariz. Jan. 31, 2005). Therefore, for the reasons stated above, the Debtors request

authority to prepare, but not file, the Consolidated List, and to make such list available to parties-

in-interest upon request.

COLUMBUS/676159.1 7
Basis and Authority to File Consolidated List of 30 Largest Unsecured Creditors

22. Bankruptcy Rule 1007(d) also provides that a Chapter 11 debtor must file with its

voluntary petition a list setting forth the names, addresses, and claim amounts of the creditors

that hold the 20 largest unsecured claims in the debtor’s case (the “Top 20 List”).

23. This Top 20 List is primarily used by the United States trustee (the “U.S.

Trustee”) to evaluate the types and amounts of unsecured claims against the debtor and thus

identify potential candidates to serve on the official committee of unsecured creditors appointed

in the debtor’s case under section 1102 of the Bankruptcy Code. See In re Dandy Doughboy

Donuts, Inc., 66 B.R. 457, 458 (Bankr. S.D.F.L 1986) (“The purpose of the separate list of 20

largest creditors required by this provision in the rules is to enable the clerk to identify members

and the court to appoint immediately an unsecured creditors' committee in compliance with 11

U.S.C. § 1102(a)(1).”); 9 Collier on Bankruptcy ¶ 1007.05 (15th rev. ed. 2009) (“[T]he larger

[unsecured creditor] list and information about the claims of the creditors on the list enables the

United States trustee to determine the different types of claims existing in order to assure that a

fully representative committee is appointed.”).

24. Here, the main operations of the Debtors are those run by Eurofresh, Inc., while

Eurofresh Produce, Ltd. currently has few, if any, creditors. Because the creditors are all paid in

the ordinary course of business by Eurofresh, Inc., the Debtors respectfully submit that it is not

necessary to file a separate Top 20 List in both cases. The Debtors do not believe such a file

would facilitate the U.S. Trustee’s review of creditors’ claims or appointment of a creditors’

committee in these Cases. Accordingly, the Debtors seek authority to file a single consolidated

list of the 30 largest unsecured creditors in these Cases. The Debtors respectfully assert that such

relief is appropriate under the circumstances. Van Straalen Dec.

COLUMBUS/676159.1 8
25. Under Bankruptcy Code § 105(a), the Court “may issue any order . . . that is

necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C.

§ 105(a). The relief requested herein will not only save the Debtors the time and expense of

preparing separate Top 20 Lists, but will allow the Debtors to provide the U.S. Trustee with the

information most relevant for forming a committee of unsecured creditors in these Cases.

WHEREFORE, the Debtors respectfully request that the Court enter an order: (a)

authorizing the Debtors to prepare the Consolidated Matrix, in electronic format only,

identifying their creditors (without claim amounts) in the format or formats currently

maintained in the ordinary course of their businesses in lieu of preparing the requisite creditor

matrices, (b) authorizing the Debtors not to file the Consolidated Matrix with the Court

concurrently with the filing of their bankruptcy petitions, but instead to make such list available

only upon request; (c) authorizing the Debtors to file a single consolidated list of their 30 largest

unsecured creditors, and (d) granting such other relief as the Court deems just and proper.

COLUMBUS/676159.1 9
Dated this 21st day of April, 2009.

SQUIRE, SANDERS & DEMPSEY L.L.P.

By: /s/ Craig D. Hansen


Craig D. Hansen
Sean T. Cork
Two Renaissance Square
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004-4498
(602) 528-4000

-and-

Kristin E. Richner
Nicholas J. Brannick
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215

Proposed Counsel to Debtors and Debtors-in-


Possession

COLUMBUS/676159.1 10

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