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

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

REORGANIZED DEBTORS SECOND MOTION FOR AN ORDER, PURSUANT TO BANKRUPTCY RULES 9006 AND 9027, EXTENDING THE PERIOD WITHIN WHICH THE REORGANIZED DEBTORS MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C. 1452 Perkins & Marie Callenders, LLC and its affiliated Reorganized Debtors,2 by and through their undersigned counsel, respectfully submit this motion (the Motion) for entry of an order, pursuant to Rules 9006 and 9027 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), extending the period within which the Reorganized Debtors may remove actions pursuant to 28 U.S.C. 1452 through and including May 8, 2012. In support of this Motion, the Reorganized Debtors respectfully represent as follows: Jurisdiction and Venue 1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157

and 1334. This is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue of these cases and this Motion are proper in this District pursuant to

28 U.S.C. 1408 and 1409.

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Plan (as hereinafter defined).
2

YCST01:11372565.1

070242.1001

3. Rules 9006 and 9027.

The statutory predicates for the relief requested herein are Bankruptcy

Factual Background 4. On June 13, 2011 (the Petition Date), each of the Debtors filed a

voluntary petition for relief under chapter 11 of the Bankruptcy Code, and each thereby commenced chapter 11 cases (collectively, the Chapter 11 Cases) in this Bankruptcy Court (the Court). No request has been made for the appointment of a trustee or examiner, and subsequent to the Petition Date, the Debtors continued to operate their businesses and manage their properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On June 24, 2011, the Office of the United States Trustee for the District of Delaware (the U.S. Trustee) appointed an Official Committee of Unsecured Creditors (the Committee) in the Chapter 11 Cases. 5. On September 9, 2011, the Debtors filed the Debtors Second Amended

Disclosure Statement for Debtors Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 923] (including all exhibits thereto and as may be amended, modified or supplemented from time to time, the Disclosure Statement). That same day, the Court entered an order [Docket No. 935] approving the Disclosure Statement as containing adequate information within the meaning of section 1125 of the Bankruptcy Code. 6. On November 1, 2011, this Court entered an order [Docket No. 1287]

confirming the Debtors Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (including all exhibits thereto and as may be amended, modified, or supplemented from time to time, and as supplemented by the Plan Supplement, the Plan) pursuant to section 1129 of the Bankruptcy Code and Bankruptcy Rule 3020.

YCST01:11372565.1

070242.1001

7. No. 1370]. 8.

The Effective Date of the Plan occurred on November 30, 2011 [Docket

Additional information about the Debtors businesses, the events leading

up to the Petition Date, and the facts and circumstances surrounding the Debtors and the Chapter 11 Cases can be found in the Declaration of Joseph F. Trungale in Support of Debtors Chapter 11 Petitions and First Day Motions [Docket No. 19] filed on the Petition Date and incorporated by reference herein. Relief Requested 9. Currently, January 9, 2012 is the deadline for the Reorganized Debtors to

file notices of removal pursuant to 28 U.S.C. 1452 and Bankruptcy Rule 9027 (the Current Removal Deadline). By this Motion, the Reorganized Debtors seek entry of an order extending the period within which the Reorganized Debtors may remove actions and related proceedings, by 120 days, through and including May 8, 2012,3 without prejudice to the Reorganized Debtors rights to seek further extensions of the time within which to remove actions and related proceedings. Basis for Relief Requested 10. Bankruptcy Rule 9027 and 28 U.S.C. 1452 govern the removal of

pending civil actions. Specifically, section 1452(a) provides that: [a] party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental units police or regulatory power, to the district court for the district where

Pursuant to Rule 9006-2 of the Local Rules of Bankruptcy Practice and Procedure for the United States Bankruptcy Court for the District of Delaware (the Local Rules), the filing of this Motion prior to the expiration of the Current Removal Deadline shall automatically extend the Current Removal Deadline until the Court acts on this Motion without the necessity for entry of a bridge order.

YCST01:11372565.1

070242.1001

such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. 28 U.S.C. 1452(a). Bankruptcy Rule 9027(a)(2) further provides, in pertinent part that: [i]f the claim or cause of action in a civil action is pending when a case under the [Bankruptcy] Code is commenced, a notice of removal may be filed in the bankruptcy court only within the longest of (A) 90 days after the order for relief in the case under the Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under 362 of the Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief. Fed. R. Bankr. P. 9027(a)(2). 11. Bankruptcy Rule 9006(b) provides that the court may extend unexpired

time periods, such as the Reorganized Debtors removal period, without notice: [W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Id. at 9006(b)(1). Accordingly, this Court is authorized to grant the relief requested herein. See Raff v. Gordon, 58 B.R. 988 (Bankr. E.D. Pa. 1986) (stating that period in which to file motion to remove may be expanded pursuant to Bankruptcy Rule 9006); Jandous Elec. Constr. Corp. v. City of New York (In re Jandous Elec. Constr. Corp.), 106 B.R. 48 (Bankr. S.D.N.Y. 1989) (same); see also, Doan v. Loomis (In re Fort Dodge Creamery Co.), 117 B.R. 438 (Bankr. N.D. Iowa 1990) (implying that time period in which removal motion may be filed may be extended pursuant to Bankruptcy Rule 9006); In re Boyer, 108 B.R. 19 (Bankr. N.D.N.Y. 1988) (same). 12. The Reorganized Debtors are parties to actions currently pending in the

courts of certain states and federal districts (collectively, the Actions), and the Reorganized Debtors believe that it is prudent to seek an extension of the time established by Bankruptcy Rule

YCST01:11372565.1

070242.1001

9027 to protect their rights to remove these Actions. Given the size and national reach of the Debtors business operations, subsequent to the commencement of these Chapter 11 Cases, the Debtors management and professional advisors devoted a significant amount of effort towards ensuring a smooth transition of the Debtors operations into chapter 11. Furthermore, prior and subsequent to the Petition Date, the Debtors devoted a substantial amount of time, energy and resources toward negotiating the Restructuring Support Agreement, designed to mutually and consensually develop and agree upon the parameters of a reorganization program for the Debtors that would, among other things, delever their capital structure, and serve as a blueprint for an efficient and effective chapter 11 reorganization process. 13. In accordance with the Restructuring Support Agreement, after months of

the Debtors working closely with the Restructuring Support Parties and certain key creditor constituencies in these Chapter 11 Cases, including the Committee, on November 1, 2011, the Court entered the Confirmation Order. Thereafter, the Debtors, together with their professional advisors, devoted a significant amount of time, energy and resources to going effective under the Plan and dealing with a myriad of administrative issues related thereto, culminating in the occurrence of the Effective Date on November 30, 2011. 14. Prior and subsequent to the Effective Date, the Reorganized Debtors have

also focused on working diligently to review the Debtors books and records and analyze the proofs of claim filed in these Chapter 11 Cases against the Debtors estates. As a result of these efforts, the Reorganized Debtors have made significant progress with respect to the claims reconciliation process in these Chapter 11 Cases, having filed eight (8) omnibus claims objections to date, and successfully prosecuted, in part, five (5) of those objections.4

Three (3) of the omnibus claims objections are scheduled to be initially heard by the Court on January 19, 2012.

YCST01:11372565.1

070242.1001

15.

As a result of the foregoing efforts and others, the Reorganized Debtors

have not had sufficient time to fully review all of the Actions to determine if any should be removed pursuant to Bankruptcy Rule 9027(a). 16. Accordingly, extending the Current Removal Deadline is in the best

interests of the Reorganized Debtors and the Debtors, their estates and creditors. The extension sought will afford the Reorganized Debtors an opportunity to make more fully informed decisions concerning the removal of any Actions and will assure that the Reorganized Debtors and the Debtors and their estates do not forfeit the valuable rights afforded to them under 28 U.S.C. 1452, which could hamper attempts to maximize creditor recoveries through these Chapter 11 Cases. Furthermore, the Reorganized Debtors submit that granting the extension requested herein will not prejudice the rights of the adversaries in the Actions because, in many (if not all) circumstances, such parties may not prosecute these actions absent relief from the injunction provided for in the Plan and the Confirmation Order. In addition, nothing herein will prejudice any party to an Action that the Reorganized Debtors may ultimately attempt to remove from seeking the remand of such action under 28 U.S.C 1452(b) at the appropriate time. 17. For these reasons, the Reorganized Debtors submit that extending the

Current Removal Deadline through and including May 8, 2012 is necessary, prudent and in the best interests of the Reorganized Debtors and the Debtors, their estates and creditors. Notice 18. The Reorganized Debtors will serve notice of this Motion upon: (i) the

U.S. Trustee; (ii) counsel to the Claims Administrator; (iii) counsel to the agent for the Debtors pre-petition Credit Facility and post-petition debtor-in-possession financing facility; (iv) counsel to the indenture trustee for the Senior Secured Notes; (v) counsel to the indenture trustee for the

YCST01:11372565.1

070242.1001

Senior Notes; (vi) counsel to the Restructuring Support Parties; (vii) all known parties to the Actions and their counsel, if known; and (viii) all parties that, as of the filing of this Motion, have requested notice in these Chapter 11 Cases pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested, the Reorganized Debtors submit that no other or further notice is necessary. No Prior Request 19. any other court. Conclusion WHEREFORE, the Reorganized Debtors respectfully request the Court to enter an order, substantially in the form attached hereto as Exhibit A, extending the Current Removal Deadline through and including May 8, 2012, and granting such other and further relief as this Court deems just and proper. Dated: January 6, 2012 Wilmington, DE YOUNG CONAWAY STARGATT & TAYLOR, LLP By: /s/ Robert F. Poppiti, Jr. Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building, 1000 West Street, 17th Floor Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 - AND TROUTMAN SANDERS LLP Mitchel H. Perkiel Brett D. Goodman The Chrysler Building, 405 Lexington Avenue New York, NY 10174 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 COUNSEL FOR THE REORGANIZED DEBTORS No prior motion for the relief requested herein has been made to this or

YCST01:11372565.1

070242.1001

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC.,1 et al., Chapter 11 Case No. 11-11795 (KG) Jointly Administered Debtors.
Objection Deadline: January 20, 2012 at 4:00 p.m. (ET) Hearing Date: February 7, 2012 at 3:00 p.m. (ET)

NOTICE OF REORGANIZED DEBTORS SECOND MOTION FOR AN ORDER, PURSUANT TO BANKRUPTCY RULES 9006 AND 9027, EXTENDING THE PERIOD WITHIN WHICH THE REORGANIZED DEBTORS MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C. 1452 TO: (I) THE U.S. TRUSTEE; (II) COUNSEL TO THE CLAIMS ADMINISTRATOR; (III) COUNSEL TO THE AGENT FOR THE DEBTORS PRE-PETITION CREDIT FACILITY AND POST-PETITION DEBTOR-INPOSSESSION FINANCING FACILITY; (IV) COUNSEL TO THE INDENTURE TRUSTEE FOR THE SENIOR SECURED NOTES; (V) COUNSEL TO THE INDENTURE TRUSTEE FOR THE SENIOR NOTES; (VI) COUNSEL TO THE RESTRUCTURING SUPPORT PARTIES; (VII) ALL KNOWN PARTIES TO THE ACTIONS AND THEIR COUNSEL, IF KNOWN; AND (VIII) ALL PARTIES THAT, AS OF THE FILING OF THE MOTION, HAVE REQUESTED NOTICE IN THESE CHAPTER 11 CASES PURSUANT TO BANKRUPTCY RULE 2002.

PLEASE TAKE NOTICE Perkins & Marie Callenders, LLC and its affiliated Reorganized Debtors2 have filed the attached Reorganized Debtors Second Motion for an Order, Pursuant To Bankruptcy Rules 9006 and 9027, Extending the Period Within Which the Reorganized Debtors May Remove Actions Pursuant To 28 U.S.C. 1452 (the Motion). PLEASE TAKE FURTHER NOTICE that any objections to the relief requested in the Motion must be filed on or before January 20, 2012 at 4:00 p.m. (ET) (the Objection Deadline) with the United States Bankruptcy Court for the District of Delaware, 824
1

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119. Reorganized Debtors and Debtors shall have the meaning ascribed to such terms in the Debtors Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code.
2

YCST01:11372565.1

070242.1001

N. Market Street, 3rd Floor, Wilmington, Delaware 19801. At the same time, you must serve a copy of your objection upon the undersigned counsel to the Reorganized Debtors so as to be received on or before the Objection Deadline. PLEASE TAKE FURTHER NOTICE THAT A HEARING TO CONSIDER THE MOTION WILL BE HELD ON FEBRUARY 7, 2012 AT 3:00 P.M. (ET) BEFORE THE HONORABLE KEVIN GROSS IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 N. MARKET STREET, 6TH FLOOR, COURTROOM #3, WILMINGTON, DELAWARE 19801. PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND TO THE MOTION IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED THEREIN WITHOUT FURTHER NOTICE OR A HEARING. Dated: January 6, 2012 Wilmington, DE YOUNG CONAWAY STARGATT & TAYLOR, LLP By: /s/ Robert F. Poppiti, Jr. Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building 1000 West Street, 17th Floor Wilmington, DE 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 - AND TROUTMAN SANDERS LLP Mitchel H. Perkiel Brett D. Goodman The Chrysler Building 405 Lexington Avenue New York, NY 10174 Telephone: (212) 704-6000 Facsimile: (212) 704-6288 COUNSEL FOR THE REORGANIZED DEBTORS

YCST01:11372565.1

070242.1001

EXHIBIT A Proposed Order

YCST01:11372565.1

070242.1001

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

SECOND ORDER, PURSUANT TO BANKRUPTCY RULES 9006 AND 9027, EXTENDING THE PERIOD WITHIN WHICH THE REORGANIZED DEBTORS MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C. 1452 Upon consideration of the Reorganized Debtors Second Motion for an Order, Pursuant to Bankruptcy Rules 9006 and 9027, Extending the Period Within Which the Reorganized Debtors May Remove Actions Pursuant To 28 U.S.C. 1452 (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) the relief requested in the Motion is in the best interests of the Reorganized Debtors and the Debtors, their estates and creditors; (iv) notice of the Motion and the hearing thereon was sufficient under the circumstances; and (v) after due deliberation, good and sufficient cause exists for the relief requested in the Motion. Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED that: 1. The Motion is GRANTED.

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.
2

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

YCST01:11372565.1

070242.1001

2.

The time period provided by Bankruptcy Rule 9027 within which the

Reorganized Debtors may file notices of removal of claims and causes of action is hereby enlarged and extended through and including May 8, 2012 (the Removal Deadline). 3. This Order shall be without prejudice to the rights of the Reorganized

Debtors and the Debtors and their estates to seek further extensions of the Removal Deadline. 4. This Court shall retain jurisdiction with respect to any and all matters

arising from or related to the interpretation or implementation of this Order. Date: _______________, 2012 KEVIN GROSS CHIEF UNITED STATES BANKRUPTCY JUDGE

2
YCST01:11372565.1 070242.1001