notice of lodging of proposed final order (i) … · united states bankruptcy court northern...

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NOTICE OF LODGING OF PROPOSED FINAL ORDER -1-

Heinz Binder (SBN 87908) Robert G. Harris (SBN 124678) Roya Shakoori (SBN 236383) BINDER & MALTER, LLP 2775 Park Avenue Santa Clara, CA 95050 Tel: (408) 295-1700 Fax: (408) 295-1531 Email: [email protected] Email: [email protected] Email: [email protected]

Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

In re MI PUEBLO SAN JOSE, INC.,

Debtor.

Case No. 13-53893-ASW

Chapter 11

Final Hearing: Date: March 6, 2014 Time: 10:30 a.m. Place: Courtroom: 3020 280 South First Street San Jose, CA 95113 Judge: Hon. Arthur S. Weissbrodt

NOTICE OF LODGING OF PROPOSED FINAL ORDER (I) AUTHORIZING DEBTOR IN POSSESSION TO OBTAIN POSTPETITION FINANCING AND PROVIDING GUARANTY PURSUANT TO 11 U.S.C. §§ 105, 361, 362, 363, AND 364; (II) GRANTING LIENS, SECURITY INTERESTS, AND SUPERPRIORITY CLAIMS; (III) AUTHORIZING USE OF CASH COLLATERAL; (IV) MODIFYING THE AUTOMATIC STAY; (V) SCHEDULING A FINAL HEARING; AND (VI) GRANTING RELATED RELIEF

TO AFFECTED LESSORS: CHA CHA ENTERPRISES, LLC1; BEDFORD PLAZA ASSOCIATES, LLC; JOHN & PEGGY LYNCH; LOAN VU; BERNARD BERGER; CHE CHEN LIU AND SHU FEN LIU; JOSEPH V. CASTELLO, JULIUS S. CASTELLO AND PAULINE TERESI DBA CASTELLO, CASTELLO & TERESI; 1630 HIGH STREET; FRIES PROPERTIES INC.; ALBERTSONS; CAPITOL SQUARE PARTNERS; OVERAA; SEASIDE RETAIL PROPERTY LLC; NATIONAL RETAIL PROPERTIES INC.; WILBUR PROPERTIES; SIMVEST REAL ESTATE II, LLC; ISLAY INVESTMENTS; PRITAM 1 Cha Cha Enterprises, LLC filed Chapter 11 bankruptcy on July 22, 2013 (Case No. 13-53894) and is a related case.

Case: 13-53893 Doc# 664 Filed: 03/04/14 Entered: 03/04/14 15:15:43 of 3

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NOTICE OF ENTRY OF ORDER AND FINAL HEARING -2-

GREWAL, DEV GREWAL & MAJEET GREWAL; MAURICE A. LADRECH, NICOLE A. LADRECH, ANDRE E. LADRECH AND ERIC E. LADRECH; JV INVESTMENTS TOWN PLAZA, LLC; STUART LIMITED PARTNERSHIP; WHITE ROAD PARTNERS, LLC; FLEMING BUSINESS PARK; GWC PROPERTIES, LLC); AFFECTED SECURED CLAIMANTSD GAYTAN FOOD, WELLS FARGO EQUIPMENT FINANCE, GEORGE PERRY & SONS, INC., EDULIS, INC., FRESKA PRODUCE INTERNATIONAL, INC., BAY CITIES PRODUCE, INC., CONTRA COSTRA TREASURY TAX COLLECTOR, BAY CITIES PRODUCE, INC., MEX TAMALE FOODS, MARKSTEIN BEVERAGE CO., CHARLIE’S ENTERPRISES, INC. DBA OK PRODUCE, WELLS FARGO BANK, N.A., GREATAMERICA FINANCIAL SERVICES CORPORATION, CROWN LIFT TRUCKS, TOYOTA FINANCIAL SERVICES, UNIFIED GROCERS, INC., WELLS FARGO FINANCIAL LEASING, THE UNITED STATES TRUSTEE; AND OTHER PARTIES IN INTEREST:

PLEASE TAKE NOTICE that debtor and debtor in possession Mi Pueblo San Jose, Inc.

has, in connection with the final hearing above, lodged with the bankruptcy court its proposed

Final Order (I) Authorizing Debtor in Possession to Obtain Postpetition Financing and Providing

Guaranty Pursuant to 11 U.S.C. §§ 105, 361, 362, 363, and 364; (II) Granting Liens, Security

Interests, and Superpriority Claims; (III) Authorizing Use of Cash Collateral; (IV) Modifying

the Automatic Stay; (V) Scheduling a Final Hearing; and (VI) Granting Related Relief (the

“Final Order”). A true and correct copy of the proposed Final Order is attached hereto as

Exhibit A.

PLEASE TAKE FURTHER NOTICE that if you would like a copy of the final Order

redlined to show changes from the Interim Order (I) Authorizing Debtor in Possession to Obtain

Postpetition Financing and Providing Guaranty Pursuant to 11 U.S.C. §§ 105, 361, 362, 363, and

364; (II) Granting Liens, Security Interests, and Superpriority Claims; (III) Authorizing Use of

Cash Collateral; (IV) Modifying the Automatic Stay; (V) Scheduling a Final Hearing; and (VI)

Granting Related Relief (the “Interim Order”), signed by the Honorable Arthur S. Weissbrodt on

February 20, 2014, you may send a request by email to the undersigned at

[email protected]. An electronic copy will be sent in response.


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NOTICE OF ENTRY OF ORDER AND FINAL HEARING -3-

Dated: March 4, 2014 BINDER & MALTER, LLP

By: /s/ ROBERT G. HARRIS ROBERT G. HARRIS Attorneys for Mi Pueblo San Jose, Inc.


EXHIBIT A

Case: 13-53893 Doc# 664-1 Filed: 03/04/14 Entered: 03/04/14 15:15:43 Page 1 of 40

FINAL ORDER AUTHORIZING DEBTOR IN POSSESSION TO OBTAIN POSTPETITION FINANCING Page 1 LEGAL_US_E # 108767745.5

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Heinz Binder (SBN 87908) Robert G. Harris (SBN 124678) Roya Shakoori (SBN 236383) BINDER & MALTER, LLP 2775 Park Avenue Santa Clara, CA 95050 Tel: (408) 295-1700 Fax: (408) 295-1531 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC.



SAN JOSE DIVISION

In re: MI PUEBLO SAN JOSE, INC., Debtor.

Case No. 13-53893-ASW Chapter 11 Date: March 6, 2014 Time: 10:30 a.m. Place: Courtroom: 3020 280 South First Street San Jose, CA 95113 Judge: Hon. Arthur S. Weissbrodt

FINAL ORDER (I) AUTHORIZING DEBTOR IN POSSESSION TO OBTAIN

POSTPETITION FINANCING PURSUANT TO 11 U.S.C. §§ 105, 361, 362, 363, AND 364; (II) GRANTING LIENS, SECURITY INTERESTS, AND SUPERPRIORITY CLAIMS;

(III) AUTHORIZING USE OF CASH COLLATERAL; (IV) MODIFYING THE AUTOMATIC STAY; (V) GRANTING RELATED RELIEF

Upon the motion [Docket No. 624] (the “Motion”) of Mi Pueblo San Jose, Inc. (“Mi

Pueblo” or the “Debtor”), debtor and debtor in possession, for entry of an interim order (the

“Interim Order”) and a final order (this “Final Order”), pursuant to sections 105, 361, 362, 363,

and 364 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”)

and Rules 2002, 4001, 6004, and 9014 of the Federal Rules of Bankruptcy Procedure (the



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“Bankruptcy Rules”), and the Local Bankruptcy Rules (the “Local Bankruptcy Rules”) of the

United States Bankruptcy Court for the Northern District of California (the “Court”), seeking,

among other things:

(i) authorization and approval to (a) execute and enter into and (b) obtain credit,

incur debt, and perform under, pursuant to sections 105, 362, 363, and 364 of the Bankruptcy

Code and Bankruptcy Rules 2002, 4001, and 9014, that certain Debtor-in-Possession Term

Loan/Lender Sponsored Transaction Term Sheet attached as Exhibit 2 to the Motion (the “DIP

Term Sheet” and together with all ancillary documents referred to therein and/or required to be

executed in connection therewith, as modified by the Interim Order or this Final Order, and as

hereafter amended, restated, or otherwise modified from time to time in accordance with the

terms thereof and of this Final Order, the “DIP Financing Documents”),1 among Mi Pueblo as

Borrower, Cha Cha Enterprises, LLC as Guarantor (“Cha Cha” or the “Guarantor”), Victory Park

Capital Advisors, LLC, on behalf of one or more entities for which it acts as investment manager

and any other lenders acceptable to it (collectively, the “DIP Lenders”), and Victory Park

Management, LLC, as administrative and collateral agent for the DIP Lenders (the “DIP

Agent”), subject to the terms and conditions set forth herein;

(ii) authorization and approval granting the DIP Agent, for the benefit of the DIP

Lenders, (a) pursuant to sections 364(c)(2), 364(c)(3), and 364(d) of the Bankruptcy Code, the

Priming Liens (as defined herein) in and on all of the DIP Collateral (as defined herein) and (b)

pursuant to section 364(c)(1) of the Bankruptcy Code, priority of the Superpriority Claims (as

defined herein), subject only to payment of the Carve-Out (as defined herein) on the terms and

conditions set forth in the Interim Order, this Final Order, and in the DIP Financing Documents;

(iii) authorization and approval, pursuant to sections 361 and 363 of the Bankruptcy

Code, to use “cash collateral” as the term is defined in section 363(a) of the Bankruptcy Code

(“Cash Collateral”); and

1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the DIP Term Sheet.



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(iv) modification of the automatic stay under section 362 of the Bankruptcy Code to

the extent necessary to implement and enforce the terms and provisions of the DIP Financing

Documents, the Interim Order, and this Final Order.

The Court having reviewed and considered the Motion, the pleadings filed in opposition

and support thereof, all matters brought to the Court’s attention at the preliminary hearing on the

Motion, which was held on February 19, 2014, in accordance with Bankruptcy Rule 4001 (the

“Interim Hearing”), and the hearing to approve the Motion and enter an order on a final basis

(the “Final Hearing”), there having been due and sufficient notice under the circumstances of the

Motion and the relief requested therein, the Interim Hearing, and the Final Hearing, after due

deliberation and consideration of all the pleadings filed with the Court, the record presented at

the Interim Hearing, the Final Hearing, and prior hearings in the Debtor’s chapter 11 case (the

“Bankruptcy Case”), the Court having entered the Interim Order, and it appearing that the relief

requested in the Motion is in the best interests of the Debtor, its estate, and its creditors, the

Court makes the following findings of fact and conclusions of law (to the extent any findings of

fact constitute conclusions of law, they are adopted as such, and vice versa).

THE COURT HEREBY FINDS:

A. On July 22, 2013 (the “Petition Date”), the Debtor filed a voluntary petition for

relief under chapter 11 of the Bankruptcy Code. The Debtor is now operating its businesses and

managing its properties as debtor in possession pursuant to sections 1107(a) and 1108 of the

Bankruptcy Code. There is presently no pending request or motion for the appointment of a

trustee or examiner in the Bankruptcy Case.

B. An Official Committee of Unsecured Creditors (the “Committee”) has been

appointed in the Bankruptcy Case.

C. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(b) and

1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue of the Bankruptcy

Case and the Motion in this District is proper pursuant to 28 U.S.C. §§ 1408 and 1409.

D. The Debtor was obligated to repay certain prepetition obligations owing to Wells



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Fargo Bank, N.A. (the “Prepetition Lender”) in the approximate amount of $38,874,773.85 as

detailed in the Declaration of Juvenal Chavez served and filed on February 13, 2014 [Docket No.

620] (the “Prepetition Debt Obligations”). The Debtor asserts that as of the entry of this Final

Order, all Prepetition Debt Obligations have been paid in full.

E. Due and appropriate notice of the Motion and the Interim Hearing has been

provided (by hand, fax, overnight mail, or courier) to: counsel to the Prepetition Lender; the

Office of the United States Trustee (the “U.S. Trustee”); the DIP Agent; all known entities

asserting a lien against the DIP Collateral; and any other entity that has filed a request for notice

pursuant to Bankruptcy Rule 2002 or is required to receive notice under the Bankruptcy Rules.

In view of the urgency of the relief requested, such notice constitutes due and sufficient notice

under, and complies with, Bankruptcy Rule 4001 and the Local Bankruptcy Rules, and no other

notice of the relief sought at the Interim Hearing or the relief granted herein is necessary or

required to be given. Due and appropriate notice of the Motion, the entry of the Interim Order,

and the Final Hearing has been provided (by hand, fax, overnight mail, first class mail, or

courier) to: (i) the Office of the United States Trustee; (ii) counsel to the Prepetition Lender; (iii)

counsel to the DIP Agent; (iv) all entities known to the Debtor to have liens on or security

interests in any of the Debtor’s assets as of February 20, 2014; (v) the Internal Revenue Service;

and (vi) all entities who have timely filed requests for notice under Rule 2002 of the Bankruptcy

Rules as of February 20, 2014 as evidenced by the Certificate of Service filed with the Court on

February 20, 2014 [Docket No. 651-1].

F. Subject to the provisions of the DIP Financing Documents, the Interim Order, and

this Final Order, the DIP Lenders have agreed to provide postpetition financing to fund

operations on the terms set forth therein, satisfy the obligations under the DIP Financing

Documents, repay at a discount or cash collateralize the Prepetition Debt Obligations, pursuant

to and in accordance with the Discounted Payoff Agreement, dated February 20, 2014, between,

inter alia, the Debtor and the Prepetition Lender (the “DPO Agreement”), and permit the Debtor

to pursue a restructuring in accordance therewith.



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G. An immediate and critical need existed for the Debtor to obtain funds in order to

continue the operations of its businesses. Without such funds, the Debtor will not be able to,

among other things, pay its payroll, pay other direct operating expenses, or obtain goods and

services needed to carry on its businesses in a manner that would avoid irreparable harm to,

among other entities, the Debtor’s estate, creditors, vendors, suppliers, customers, and

employees. The Debtor’s ability to finance its operations and the availability to it of sufficient

working capital and liquidity through the incurrence of new indebtedness for borrowed money

and other financial accommodations are vital to the confidence of the Debtor’s vendors and

suppliers of other goods and services, to its customers, and to the preservation and maintenance

of the going concern value of the Debtor’s estate.

H. The Debtor is unable to obtain the required funds in the form of: unsecured credit

or unsecured debt allowable under section 503(b)(1) of the Bankruptcy Code; an administrative

expense pursuant to section 364(a) or 364(b) of the Bankruptcy Code; unsecured debt having the

priority afforded by section 364(c)(1) of the Bankruptcy Code; or secured debt as described in

section 364(c)(2) or 364(c)(3) of the Bankruptcy Code except as set forth in the Interim Order

and this Final Order.

I. Pursuant to the Interim Order, (i) the Final Hearing was scheduled for March 6,

2014, and (ii) any entity objecting to the entry of this Final Order shall have (a) filed a written

objection with the United States Bankruptcy Court Clerk for the Northern District of California

no later than 12:00 p.m. prevailing Pacific time on February 28, 2014, and (b) served such

objection so that it was received on or before such date on counsel to the Debtor, counsel to the

DIP Agent, counsel to the Committee, and the Office of the United States Trustee.

J. Good cause has been shown for the entry of this Final Order. Among other

things, entry of the Interim Order and entry of this Final Order minimizes disruption of the

Debtor’s businesses and operations and permits them to meet payroll for their employees and

other operating expenses and obtain needed supplies and retain customer and supplier confidence

by demonstrating an ability to maintain normal operations. The financing arrangements



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authorized in the Interim Order and this Final Order are vital to avoid immediate and irreparable

harm to the Debtor’s estate. Consummation of such financing, therefore, is in the best interests

of the Debtor, its creditors, and its estate.

K. Upon entry of this Final Order, the DIP Financing Documents (upon execution

and delivery in accordance with this Final Order, in the case of any DIP Financing Documents

executed after entry of this Final Order) shall constitute legal, valid, and binding obligations of

the Debtor, enforceable in accordance with the terms of the DIP Financing Documents and this

Final Order. No consent or waiver of, filing with, authorization, approval, or other action by any

shareholder, any federal, state, or other governmental authority or regulatory body, or any other

entity, which has not already been obtained or done, is required in connection with the execution,

delivery, and performance by any Debtor of any of the documents required as a condition to the

validity or enforceability of the DIP Financing Documents, except for the entry by the Court of

this Final Order.

L. The terms of the DIP Facility (as defined herein) are the best available and are fair

and reasonable under the circumstances, reflect the Debtor’s exercise of prudent business

judgment consistent with its fiduciary duty, and are supported by reasonably equivalent value

and fair consideration. The financing authorized hereunder has been negotiated in good faith and

at arm’s length among the Debtor, the Guarantor, the DIP Agent, and the DIP Lenders. Any

credit extended and loans made to the Debtor pursuant to the Interim Order and this Final Order

shall be deemed to have been extended, issued, made, or consented to, as the case may be, in

“good faith” as required by, and within the meaning of, section 364(e) of the Bankruptcy Code,

and the DIP Agent and the DIP Lenders shall have all of the protections thereunder.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT:

1. The Motion is granted on a final basis and on the terms set forth herein. Any

objections to the Motion with respect to the entry of this Final Order that have not previously

been withdrawn, waived, or resolved, and all reservations of rights included therein, are hereby



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denied and overruled on their merits. This Final Order shall be valid, binding on all entities, and

fully effective immediately upon its entry.

2. The Debtor was by the Interim Order and is by this Final Order authorized and

empowered to execute, enter into, and to borrow money pursuant to the credit facility (the “DIP

Facility”) maintained under the DIP Financing Documents, including, without limitation, the DIP

Term Sheet, the Interim Order, and this Final Order (all loans, advances, and any other

indebtedness or obligations, contingent or absolute, that may now or from time to time hereafter

be owing by the Debtor to the DIP Agent and the DIP Lenders, the “DIP Loan”), all of which are

hereby approved (on a nunc pro tunc basis, in the case of any such DIP Financing Documents

entered into by the Debtor or the DIP Lender, as applicable, prior to the entry of this Final Order

and otherwise in accordance with the terms and conditions of this Final Order), and to perform

their obligations hereunder and thereunder, solely in accordance with, and subject to, the terms

of the Interim Order and this Final Order, in compliance with (on a line-by-line basis) and for the

purposes of funding those expenses set forth in the budget attached as Exhibit A to the Notice of

Filing [Docket No. 640] (as may be modified or supplemented from time to time without further

order of the Court, by additional budgets (covering any time period covered by a prior budget or

covering additional time periods) in form and substance acceptable to the DIP Agent, a copy of

which will be provided to the Committee, the “Budget”). The determination of compliance with

the Budget shall be made on a week-ending basis on a four-week rolling basis. The Debtor shall

be deemed to be in compliance with the Budget so long as, with respect to the Debtor’s receipts

and disbursements, (a) each category in the Budget (e.g., cash receipts, operating cash

disbursements, and non-operating cash disbursements), on a four-week rolling basis, is (i) no

more than one hundred and ten percent (110%) of the amounts provided for in the Budget for

each respective four-week period and (ii) no less than ninety percent (90%) of the amounts

provided for in the Budget for each respective four-week period and (b) in the aggregate, on a

four-week rolling basis, is (i) no more than one hundred and ten percent (110%) of the amount

provided for in the Budget for each respective four-week period and (ii) no less than ninety



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percent (90%) of the amount provided for in the Budget for each respective four-week period

(the “Variance”). Payments made by the Debtor in compliance with this Final Order shall not

violate the provision in the DIP Term Sheet at “Covenants” in paragraph 4.c thereof.

3. From and after entry of the Interim Order and entry of this Final Order until the

indefeasible payment in full in cash of the DIP Loan Obligations (as defined in the DIP Term

Sheet), the Debtor is hereby authorized and directed to remit, and shall remit, except as set forth

in the Budget, to the DIP Agent, for the benefit of the DIP Lenders, immediately upon the

Debtor’s receipt thereof, or otherwise in accordance with the Debtor’s current practices, all Cash

Collateral in their possession or control arising from, or constituting proceeds of, the DIP

Collateral. For purposes of this Final Order, “proceeds” of the DIP Collateral shall mean

proceeds (as defined in the Uniform Commercial Code) of such collateral as well as: (a) any and

all proceeds of any insurance, indemnity, warranty, or guaranty payable to the Debtor from time

to time with respect to such collateral; (b) any and all payments (in any form whatsoever) made

or due and payable to the Debtor in connection with any requisition, confiscation, condemnation,

seizure, or forfeiture of all or any part of such collateral by any governmental body, authority,

bureau, or agency (or any person under color of governmental authority); and (c) other payments,

dividends, interest, or other distributions on or in respect of any of such collateral.

4. Provided that the Debtor is not in default under the terms of the Interim Order,

this Final Order, or the DIP Financing Documents, the Debtor was by the Interim Order and is by

this Final Order hereby authorized to borrow up to an aggregate amount of $32,752,145.51

pursuant to the DIP Financing Documents; provided, however, borrowings prior to entry of this

Final Order was limited to an initial disbursement of $28,752,145.51 (the “Initial

Disbursement”), which was funded by the DIP Lenders promptly after entry of the Interim

Order. Notwithstanding any other provision of the Interim Order or this Final Order, the DIP

Agent and the DIP Lenders shall not have any obligation or commitment to make any further

DIP Loan pursuant to this Final Order until the conditions precedent provided for herein and in

the DIP Financing Documents, including, without limitation, the entry of an interim and final



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orders (collectively, the “Cha Cha Order”) in the chapter 11 case of Cha Cha (the “Cha Cha

Bankruptcy Case”) approving the guaranty by Cha Cha of the DIP Loan Obligations secured by

liens on the assets of Cha Cha (the “Cha Cha Collateral”) on the terms set forth in the DIP

Financing Documents, have been satisfied.

5. The DIP Financing Documents (upon execution and delivery in accordance with

the Interim Order or this Final Order, in the case of any DIP Financing Documents executed after

entry of this Final Order) shall constitute legal, valid, and binding obligations of the Debtor,

enforceable against the Debtor in accordance with the terms of the DIP Financing Documents,

the Interim Order, and this Final Order.

6. The DIP Financing Documents, the Interim Order, and this Final Order shall

govern the financial and credit accommodations to be provided to the Debtor by the DIP Agent

and the DIP Lenders.

7. The DIP Loan shall bear interest at the applicable rates (including Interest and

Default Interest (each as defined in the DIP Term Sheet)) and be paid Interest and Default

Interest as set forth in the DIP Term Sheet.

8. The Costs and Expenses, the Waivable Financing Fee, the DIP Fee, and the

Maintenance Fee (each as defined in the DIP Term Sheet) are hereby approved and allowed in

their entirety and shall be paid in accordance with the DIP Financing Documents and in

accordance with paragraph 46 of this Final Order.

9. None of the Debtor, the DIP Agent, or the DIP Lenders shall be obligated to file

any application with the Court for approval or payment of the Costs and Expenses, the Waivable

Financing Fee, the DIP Fee, or the Maintenance Fee. All such costs, fees, charges, and expenses

shall be part of the DIP Loan and shall have the same rights, status, and priority as the DIP Loan.

Upon payment, such costs, fees, charges, and expenses shall be deemed fully earned,

indefeasibly paid, and non-refundable.

10. By the Interim Order the Debtor was and by this Final Order the Debtor is

authorized to use $26,402,145.51 (the “Payoff Amount”) of the proceeds of the DIP Loan to



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permanently, fully, finally, indefeasibly, and unavoidably repay at a discount all outstanding

loans, swap contracts, and other obligations and cash collateralize all outstanding letters of credit

owed by the Debtor, any guarantor, or any other obligor thereunder in respect of the Prepetition

Debt Obligations (the “Prepetition Debt Payoff”) pursuant to (a) that certain Credit Agreement,

dated as of May 15, 2012, by and between the Debtor and the Prepetition Lender, and all other

agreements and documents entered into in connection therewith, in each case, as amended,

modified, or supplemented (collectively, the “Prepetition Credit Agreement Documents”), and

(b) that certain ISDA Master Agreement dated as of May 3, 2012, by and between the Debtor

and the Prepetition Lender, and all other agreements and documents entered into in connection

therewith, in each case, as amended, modified, or supplemented (collectively, the “Prepetition

Swap Documents” and, together with the Prepetition Credit Agreement Documents, the

“Prepetition Debt Documents,” provided such Prepetition Debt Documents shall not include the

Letters of Credit (as hereafter defined) and the DPO Agreement (and the documents to be

executed in connection therewith). Upon the receipt by the Prepetition Lender of the Payoff

Amount and satisfaction of all the other conditions precedent of the DPO Agreement, (a) all

loans and other amounts that may be due and owing to the Prepetition Lender by the Debtor, the

guarantor, or any other obligor thereunder, including, without limitation, accrued interest,

accrued net swap payments, swap termination fees, unreimbursed letter of credit draws, letter of

credit fees, and unreimbursed bank expense, pursuant to the Prepetition Debt Documents were

deemed paid in full, (b) all Letters of Credit that remain outstanding as of the Prepetition Debt

Payoff and fees associated therewith were fully cash collateralized, (c) the Prepetition Debt

Documents were terminated and no longer in force or effect, and (d) any liens on the assets of

the Debtor, any guarantor, or any other obligor thereunder in favor of the Prepetition Lender

(other than the Equipment Lenders’ Liens (as defined herein) and other than the cash collateral in

respect of the Letters of Credit referred to above) were released without further order of the

Court as provided in the DPO Agreement, and, to the extent not already completed, the

Prepetition Lender shall promptly take all reasonable actions to effect the removal of any such



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liens, including the filing and/or delivery, as the case may be, of any financing statement

terminations, deed of trust reconveyances, mortgage releases, and any other releases, documents,

or instruments necessary to evidence the Prepetition Debt Payoff, and the automatic stay of

section 362 of the Bankruptcy Code is hereby vacated to effect any such filings.

11. As consideration for the DIP Loan, except for the Carve-Out, no other costs or

administrative expenses, pursuant to sections 506(c) (except as set forth in this Final Order),

552(b), and/or 105(a) of the Bankruptcy Code or otherwise, that have been or may be incurred in

the Bankruptcy Case, in any proceedings related hereto, or in any subsequent chapter 7 case, and

no priority claims are or will be prior to or on parity with the Superpriority Claims. In no event

shall any such costs or expenses of administration be imposed upon any of the DIP Collateral

without the prior written consent of the DIP Agent, on behalf of the DIP Lenders, and no such

consent shall be implied from any action, inaction, or acquiescence. The DIP Agent, on behalf

of the DIP Lenders, shall be entitled to apply the payments or proceeds of the DIP Collateral in

accordance with the provisions of this Final Order and the DIP Financing Documents, and in no

event shall the DIP Agent or the DIP Lenders be subject in any way whatsoever to the equitable

doctrine of “marshaling” or any similar doctrine with respect to the DIP Collateral.

12. As security for the DIP Loan, the DIP Agent, on behalf of the DIP Lenders, was

granted by the Interim Order and is granted by this Final Order (collectively, the “Priming

Liens”), subject only to the Carve-Out: (a) except as otherwise set forth in this paragraph,

pursuant to sections 364(c)(2), 364(c)(3), and 364(d) of the Bankruptcy Code, a valid, binding,

continuing, enforceable, fully perfected, and unavoidable first priority senior security interest and

priming lien, with priority over all liens, on any and all current (whether prepetition or

postpetition) and future property, assets, and other interests in property and assets of the Debtor,

whether such property is now existing or hereafter acquired, and all other “property of the estate”

(within the meaning of the Bankruptcy Code) of the Debtor, of any kind, type, or nature

whatsoever, whether real or personal, tangible, intangible, or mixed, and wherever located,

whether existing prior to or arising after the Petition Date, including, without limitation, Cash



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Collateral, any other cash, accounts, accounts receivable, goods, instruments, investment

property (including, without limitation, ownership interests in corporations, partnerships, and

limited liability companies), inventory, vehicles, customer lists, patents, trade secrets,

trademarks, copyrights, brands, know-how, and other intellectual property, minerals, mineral

rights, plant and equipment, tax assets, real property and/or leasehold rights, personal property,

commercial tort claims, any causes of action under the Bankruptcy Code or applicable non-

bankruptcy law (but excluding causes of action and recoveries pursuant to chapter 5 of the

Bankruptcy Code), and all other tangible and intangible property, and proceeds (including,

without limitation, proceeds of credit card receipts), products, offspring, rents, and profits of any

of the foregoing (collectively, the “DIP Collateral”); (b) pursuant to section 364(d)(1), with

respect to DIP Collateral, to the extent that an entity has valid, binding, continuing, enforceable,

fully perfected, and unavoidable security interests that were pari passu with the security interests

of the Prepetition Lender in such DIP Collateral as of the Petition Date and that were perfected

prior to the Petition Date (or perfected after the Petition Date to the extent permitted by section

546(b) of the Bankruptcy Code) and only to the extent not subject to reduction, offset,

disallowance, counterclaim, surcharge, recharacterization, or subordination pursuant to the

Bankruptcy Code or applicable non-bankruptcy law (collectively, the “Pari Passu Interests”), a

valid, binding, continuing, enforceable, fully perfected, and unavoidable security interest and

lien, with priority over all liens but pari passu with such Pari Passu Interests; and (c) pursuant to

section 364(c)(3), with respect to (i) DIP Collateral, to the extent that an entity has valid,

binding, continuing, enforceable, fully perfected, and unavoidable security interests that were

senior to the security interests of the Prepetition Lender in such DIP Collateral as of the Petition

Date and that were perfected prior to the Petition Date (or perfected after the Petition Date to the

extent permitted by section 546(b) of the Bankruptcy Code) and only to the extent not subject to

reduction, offset, disallowance, counterclaim, surcharge, recharacterization, or subordination

pursuant to the Bankruptcy Code or applicable non-bankruptcy law; (ii) security interest of the

Prepetition Lender in the cash that collateralizes the letters of credit (collectively, the “Letters of



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Credit”) that the Prepetition Lender has issued (collectively, the “Senior Interests”); and (iii) the

interests of Wells Fargo Equipment Finance, a division of the Prepetition Lender, in certain of

the Debtor’s property, as more fully described in Proof of Claim No. 6 filed February 12, 2014,

in the Bankruptcy Case (collectively, the “Wells Fargo Equipment Liens”), a valid, binding,

continuing, enforceable, fully perfected, and unavoidable security interest and lien, with priority

over all liens but junior to such Senior Interests and the Wells Fargo Equipment Liens; (d) a first

priority pledge of the capital stock and/or equity interest held directly or indirectly by the Debtor;

and (e) constructive control over all of the Debtor’s bank accounts, for the purposes of

constituting perfection under applicable non-bankruptcy law; provided, however, that

notwithstanding anything in the Interim Order, this Final Order, or the DIP Financing

Documents to the contrary (but remaining subject to paragraph 44 of this Final Order), DIP

Collateral shall not include the Debtor’s interest in leaseholds and/or subleaseholds of

nonresidential real property if such leasehold or subleasehold: (a) by its terms prohibits or

otherwise restricts (but only to the extent of such restriction) the grant of a security interest by

the Debtor in such leasehold or subleasehold without the consent of the lessor or other party in

interest who is party to the lease, sublease, or related documents; and (b) does not deem the

lessor or other party in interest who is party to the lease, sublease, or related documents to have

unconditionally consented to the grant of a security interest in such leasehold or subleasehold

(the “Excluded Leases”), but DIP Collateral shall include any proceeds of the Excluded Leases.

13. Except as expressly set forth in this Final Order: (a) the Priming Liens shall not be

subject to any lien that is avoided and preserved for the benefit of the Debtor’s estate under

section 551 of the Bankruptcy Code; and (b) the Priming Liens shall not be subordinated to or

made pari passu with any other lien under section 364(d) of the Bankruptcy Code.

14. As used in this Final Order, “Carve-Out” means: (a) unpaid fees of the Clerk of

the Court and the U.S. Trustee pursuant to 28 U.S.C. § 1930; (b) unpaid fees and expenses of the

professionals of the Debtor and the Committee and any other official committee of unsecured

creditors retained by an order of the Court pursuant to sections 327, 328, 363, or 1103(a) of the



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Bankruptcy Code (the “Professionals”) incurred prior to the occurrence of a Termination Event,

to the extent such fees and expenses are (i) within the amounts set forth in the Budget approved

by the DIP Lenders and the DIP Agent, (ii) subsequently allowed by the Court under sections

330, 331, or 363 of the Bankruptcy Code, and (iii) not otherwise paid or payable from retainers

or any professional fee or expense escrow account established by the Debtor; (c) fees and

expenses of the Professionals incurred after the occurrence of a Termination Event in an

aggregate amount not to exceed $200,000 in the aggregate, to the extent such fees and expenses

are (i) subsequently allowed by the Court under sections 330, 331, or 363 of the Bankruptcy

Code, and (ii) not otherwise paid or payable from retainers or any professional fee or expense

escrow account established by the Debtor; and (d) following a conversion of the Bankruptcy

Case to chapter 7 or the appointment of a chapter 11 trustee in the Bankruptcy Case, (i) the

commissions and expenses of such trustee appointed in such chapter 7 case or the Bankruptcy

Case and (ii) all fees, disbursements, costs, and expenses incurred by professionals or

professional firms retained by any such trustee pursuant to section 327 of the Bankruptcy Code

in an aggregate for the amounts in (i) and (ii) hereof not to exceed $150,000, to the extent such

commissions, fees, disbursements, costs, and expenses in (i) and (ii) are (A) subsequently

allowed by the Court under sections 330, 331, or 363 of the Bankruptcy Code and (B) not

otherwise paid or payable from retainers or any professional fee or expense escrow account

established by the Debtor; provided, however, that the Carve-Out shall only be available to pay

the fees, costs, and expenses set forth above to the extent unencumbered funds are not otherwise

available. Notwithstanding any other provision in the Interim Order or this Final Order, none of

the proceeds of the DIP Facility, the DIP Collateral, nor the Carve-Out shall be utilized to pay

the fees and expenses, if any, of any of the Professionals incurred, directly or indirectly, in

respect of, arising from, or relating to: (a) the initiation, joinder, or prosecution of any action

attacking or contesting the indebtedness owed under the DIP Facility or the validity, priority, or

extent of the claims or liens of the DIP Agent or the DIP Lenders, including, without limitation,

the Priming Liens and the Superpriority Claims; (b) researching, reviewing, analyzing, or



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investigating with respect to or in connection with any litigation, claim, objection, or cause of

action of any kind or nature whatsoever against any agent or any lender under the DIP Facility,

including, without limitation, the DIP Agent and/or the DIP Lenders (whether or not arising from

or related to prepetition or postpetition liens, security interests, acts, omissions, or other

conduct); (c) preventing, hindering, or otherwise delaying, whether directly or indirectly, the

exercise by the DIP Agent of any of its rights and remedies under the Interim Order, this Final

Order, or the DIP Financing Documents other than to enforce the terms of the Interim Order, this

Final Order, or the DIP Financing Documents; (d) filing, prosecuting, or otherwise pursuing any

litigation, claim, objection, or other cause of action of any kind or nature whatsoever against any

agent or any lender under the DIP Facility, including, without limitation, the DIP Agent and/or

the DIP Lenders (whether or not arising from or related to prepetition or postpetition liens,

security interests, acts, omissions, or other conduct); or (e) any request to borrow money other

than pursuant to the terms of the Interim Order, this Final Order, or the DIP Financing

Documents. As long as no Event of Default (as defined herein) and no Termination Event shall

have occurred and be continuing, the Debtor shall be permitted to pay compensation and

reimbursement of expenses allowed consistent with the Budget and an order of the Court

(including, if one is entered, an order permitting payment of estate professionals on a monthly

basis), and payable under sections 330 and 331 of the Bankruptcy Code.

15. For the entire amount of the DIP Loan Obligations, the DIP Agent, on behalf of

the DIP Lenders, was granted by the Interim Order and is granted by this Final Order

superpriority claims, in accordance with the provisions of section 364(c)(1) of the Bankruptcy

Code, over any and all administrative expenses, including, without limitation, all of the kind

specified in sections 105, 326, 328, 330, 331, 364(c), 503(a), 503(b), 506(c), 507(a), 507(b),

546(c), 726, 1113, or 1114 of the Bankruptcy Code, whether or not such expenses or claims may

become secured by a judgment lien or other consensual or non-consensual lien, levy, or

attachment, whether incurred in the Bankruptcy Case or any successor case, which allowed

superpriority claims of the DIP Lender shall be payable from, and have recourse to, all



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prepetition and postpetition property of the Debtor and all proceeds thereof whether now existing

or hereafter acquired subject only to the Carve-Out (collectively, the “Superpriority Claims”).

Notwithstanding section 726 of the Bankruptcy Code, the DIP Loan shall also have superpriority

over all administrative expenses of a chapter 7 trustee and any chapter 7 professionals to the

extent such expenses exceed $150,000. The Superpriority Claims shall be deemed legal, valid,

binding, and enforceable claims, not subject to subordination, impairment, or avoidance other

than as provided herein, for all purposes in the Bankruptcy Case and any successor case. Except

for the Carve-Out, no costs or administrative expenses that have been or may be incurred in the

Bankruptcy Case, in any conversion of the Bankruptcy Case to a proceeding pursuant to chapter

7 of the Bankruptcy Code, or in any other proceeding related thereto, and no priority claims,

including, without limitation, any other superpriority claims, are or will be pari passu with or

senior to the claims of the DIP Agent, on behalf of the DIP Lenders, against the Debtor arising,

as applicable, out of the DIP Loan, any provision of the Interim Order, or any provision of this

Final Order or with the liens and security interests granted herein on, in, and to the DIP

Collateral.

16. The Debtor and its estate (and any entity acting on behalf of the Debtor) by the

Interim Order and this Final Order irrevocably waive, and are barred from asserting or

exercising, any right (a) without the DIP Agent’s prior written consent (which may be withheld

in its sole discretion) or (b) without prior indefeasible payment and satisfaction in full in cash of

the DIP Loan Obligations: (i) to grant or impose, or request that the Court grant or impose, under

section 364 of the Bankruptcy Code or otherwise, liens on or security interests in any of the DIP

Collateral, that are pari passu with or senior to the Priming Liens; (ii) to return goods pursuant to

section 546(h) of the Bankruptcy Code to any creditor of the Debtor or to consent to any creditor

taking any setoff against any of such creditor’s prepetition indebtedness based upon any such

return pursuant to section 553(b)(1) of the Bankruptcy Code or otherwise; (iii) to seek a

surcharge of the DIP Collateral under section 506(c) of the Bankruptcy Code and no such costs

or expenses shall be charged against or recovered from the DIP Collateral other than a surcharge



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under section 506(c) of the Bankruptcy Code when the Debtor is not authorized to use Cash

Collateral, provided the entity seeking to surcharge does not use DIP Collateral for the costs and

expenses of preserving or disposing of the property subject to the surcharge; (iv) to modify or

affect any of the rights of the DIP Agent or the DIP Lenders under the Interim Order, this Final

Order, or any DIP Financing Documents by any order entered in the Bankruptcy Case or any

successor case; or (v) propose a plan of reorganization or liquidation that does not indefeasibly

repay the DIP Loan Obligations in full in cash on the effective date of such plan.

17. The Debtor may not propose a sale of any of the DIP Collateral outside the

ordinary course of business (whether under a plan of reorganization or otherwise) unless (a) the

DIP Agent consents to such sale or the proceeds of such sale will indefeasibly repay the DIP

Loan Obligations in full in cash on the effective date of such sale close, (b) all proceeds realized

from any Court-approved sale are to be transferred to the DIP Agent for immediate application in

reduction of the DIP Loan Obligations, until indefeasible payment in full in cash of all amounts

owed to the DIP Agent the DIP Lenders, and (c) the sale application expressly provides that the

DIP Agent may exercise their respective rights to credit bid the DIP Loan Obligations in

accordance with this Final Order.

18. The proceeds of the DIP Loan and the DIP Collateral shall not be used to pay

expenses of the Debtor or otherwise disbursed except for: (a) those expenses, payments, and/or

disbursements that are expressly set forth in the Budget or otherwise permitted under the Interim

Order and this Final Order; (b) amounts due to the DIP Agent and the DIP Lenders; and (c)

amounts due to the Prepetition Lender as set forth in the Letter of Credit Agreement (as defined

in the DPO Agreement) or as otherwise set forth in the DPO Agreement; provided that nothing in

the DIP Financing Documents, the Interim Order, or this Final Order is intended or shall be

construed to waive any of the DIP Agent’s or the DIP Lenders’ rights to object to or otherwise

contest the reasonableness of the fees and expenses of the Professionals.

19. The automatic stay extant under section 362(a) of the Bankruptcy Code shall be,

and it hereby is, modified to the extent necessary to permit the DIP Agent to retrieve, collect, and



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apply payments and proceeds in respect of the DIP Collateral in the ordinary course of

administration of the DIP Loan, and to take all acts authorized by the terms and provisions of the

Interim Order or this Final Order.

20. The term “Termination Event” shall mean the occurrence of the earliest of:

(a) Any of the following “Events of Default,” unless otherwise waived in

writing by the DIP Agent in its sole discretion:

i. The Debtor shall fail to indefeasibly pay any DIP Loan Obligation

in cash after such payment has become due;

ii. Any representation, warranty, report, certificate, or other document made or delivered to the DIP Agent or the DIP Lenders in accordance with the DIP Financing Documents, the Interim Order, or this Final Order shall have been incorrect in any material respect when made or deemed made;

iii. The failure of the Debtor to comply in all material respects with any covenant, agreement, representation, warranty, term, or condition of the Interim Order, this Final Order, or the DIP Financing Documents;

iv. The Debtor or the Guarantor is enjoined, restrained, or in any way prevented by the order of any court or any governmental authority from conducting all or any material part of its business for more than three (3) consecutive days;

v. Any material damage to, or loss, theft, or destruction of, any DIP Collateral or Cha Cha Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, whether or not insured, that causes, for more than three (3) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Debtor or the Guarantor, if any such event or circumstance could reasonably be expected to have a material adverse effect;

vi. The entry of an order in the Bankruptcy Case or the Cha Cha Bankruptcy Case that stays, modifies (in any manner adverse to the DIP Agent or the DIP Lenders), or reverses the Interim Order, this Final Order, or the Cha Cha Order or that otherwise materially adversely affects, as determined by the DIP Agent in its reasonable discretion or the effectiveness of the Interim Order, this Final Order, or the Cha Cha Order; provided, however, that any terms in this Final Order that are different from this Interim Order shall not constitute an Event of Default;



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vii. The conversion of the Bankruptcy Case or the Cha Cha Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code;

viii. The appointment of a trustee for the Debtor or in the Cha Cha Bankruptcy Case;

ix. The dismissal of the Bankruptcy Case or the Cha Cha Bankruptcy Case;

x. The entry of any order that provides relief from the automatic stay otherwise imposed pursuant to section 362 of the Bankruptcy Code that permits any creditor (i) to realize upon, or to exercise any right or remedy with respect to, any material portion of the DIP Collateral or the Cha Cha Collateral, or (ii) to terminate any license, franchise, or similar agreement, wherein either case the exercise of such right or remedy or such realization or termination would be reasonably likely to have a material adverse effect;

xi. Subject to the allowance and payment of any amounts due under the Carve-Out, the filing of any application by the Debtor or Cha Cha without the express written consent of the DIP Agent for the approval of a superpriority claim in the Bankruptcy Case that is pari passu with or senior to the priority of the claims of the DIP Agent or the DIP Lenders, or there shall arise any such superpriority claim under the Bankruptcy Code;

xii. The payment or other discharge by the Debtor or Cha Cha of any prepetition indebtedness without the written consent of the DIP Agent or the DIP Lenders;

xiii. The filing of any motion by the Debtor or Cha Cha seeking, or the entry of any order in the Bankruptcy Case: (a) permitting working capital or other financing (other than ordinary course trade debt or unsecured debt) for the Debtor or Cha Cha from any entity other than the DIP Agent (unless the proceeds of such financing are to be used to pay in full in cash all obligations arising under the DIP Financing Documents, the Interim Order, and this Final Order); (b) granting a lien on, or security interest in, any of the DIP Collateral or the Cha Cha Collateral, other than with respect to the DIP Financing Documents (unless such liens are granted in connection with a financing, the proceeds of which are to be applied to the payment in full in cash of all obligations arising under the DIP Financing Documents, the Interim Order, and this Final Order); (c) except as permitted by the DIP Financing Documents, the Interim Order, and this Final Order, permitting the use of any of the DIP Collateral or the Cha Cha Collateral pursuant to section 363(c) of the Bankruptcy Code without the prior written consent of the DIP Agent, or permitting recovery from any portion of the DIP Collateral or the Cha Cha Collateral any costs or expenses of preserving or disposing of such collateral under section 506(c) of the Bankruptcy Code; or (d) dismissing the Bankruptcy Case or the Cha Cha Bankruptcy Case, unless the DIP Agent has sought or consented in writing to such relief by the Court;



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xiv. The filing or confirmation of a chapter 11 plan (and/or approving a disclosure statement related thereto) in the Bankruptcy Case or the Cha Cha Bankruptcy Case containing terms to which the DIP Agent has not consented in writing or that does not indefeasibly repay the DIP Loan Obligations in full in cash on the effective date of such plan; or

xv. The filing of any pleading by the Debtor or Cha Cha challenging the validity, priority, perfection, or enforceability of the DIP Financing Documents or the obligations thereunder or hereunder, or any lien granted pursuant to the DIP Financing Documents, the Interim Order, this Final Order, or the Cha Cha Order is determined to be null and void, invalid, or unenforceable by the Court or another court of competent jurisdiction in any action commenced or asserted by any other party in interest in the Bankruptcy Case or the Cha Cha Bankruptcy Case.

(b) The Debtor making any payments or distributions, of any kind, to Juvenal

Chavez or any family member other relative of Juvenal Chavez other than reasonable salaries

paid for employment of such individual in the ordinary course of business;

(c) The Debtor making any payments or distributions, of any kind, in cash or

otherwise other than in connection with payments of ordinary course operating expenses of the

Debtor as set forth in and in compliance with the Budget;

(d) The Debtor or Cha Cha’s failure to comply with the terms and conditions

of the DIP Financing Documents, the Interim Order, this Final Order, or the Cha Cha Order

(including, without limitation, the Debtor’s failure to comply with the Budget, subject to the

Variance); and

(e) The Debtor or Cha Cha’s failure to take, to the extent it is able, in

consultation with the DIP Agent, all reasonable actions necessary to pursue and consummate the

Lender Sponsored Transaction (as defined in the DIP Term Sheet) to the extent such actions are

not inconsistent with such entity’s fiduciary duties.

Immediately upon the occurrence and during the continuation of a Termination Event, the

DIP Agent, on behalf of the DIP Lenders, may declare a termination, reduction, or restriction of

the DIP Loan and the DIP Loan Obligations, effective five (5) business days following such

declaration (any such declaration, shall be referred to herein as a “Termination Declaration”).

The Termination Declaration shall be given by facsimile or electronic mail to counsel to the



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Debtor, counsel to Cha Cha, counsel to the Committee, and the U.S. Trustee (the date on which

the termination, reduction, or restriction of the Debtor to use Cash Collateral becomes effective

shall be referred to herein as the “Termination Date”). The DIP Agent shall be entitled to seek

an emergency hearing (an “Emergency Hearing”) upon five (5) business days’ notice, requesting

relief from the automatic stay otherwise imposed pursuant to section 362 of the Bankruptcy Code

to permit the DIP Agent to realize upon or to exercise any right or remedy with respect to the

DIP Collateral or the Cha Cha Collateral, and the Debtor, Cha Cha, and the Committee shall be

deemed to have consented to such hearing being on an emergency basis. In any hearing

following such request for an Emergency Hearing, the only issue that may be raised by any party

in opposition to the actions proposed or available to be taken by the DIP Agent shall be whether

an Event of Default has occurred and is continuing; provided, however, that immediately upon

the occurrence of an Event of Default and thereafter, and subject to the terms of the DIP

Financing Documents, (a) the Debtor shall no longer, pursuant to the Interim Order, this Final

Order, or otherwise, be authorized to borrow funds hereunder or to use Cash Collateral (without

further order of the Court authorizing the use of Cash Collateral) or any proceeds of the DIP

Loan already received (except for payment of the Carve-Out and the DIP Loan Obligations in

accordance with the DIP Financing Documents, the Interim Order, and this Final Order), and any

obligation of the DIP Agent, on behalf of the DIP Lenders, to make loans or advances hereunder

shall be terminated, (b) the DIP Agent, on behalf of the DIP Lenders, is authorized and

empowered to accelerate the DIP Loan and charge default rates of interest, and (c) the DIP

Agent, on behalf of the DIP Lenders, is authorized and empowered to hold any balances in any

accounts of the Debtor. Nothing in this paragraph shall prohibit the filing of a motion to approve

the use of Cash Collateral after an Event of Default, and all entities, including the DIP Agent and

the DIP Lenders, shall have all of their rights to object to any such request.

21. Notwithstanding anything in the Interim Order, this Final Order, or the DIP

Financing Documents to the contrary, after a Termination Event, the DIP Agent, on behalf of the

DIP Lenders, will consent to allowing the Debtor to use Cash Collateral and proceeds of the DIP



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Facility, if necessary, in compliance with (on a line-by-line basis) and for purposes of funding

those expenses set forth in the Budget, conditioned on the Debtor taking the following actions

(collectively, the “Sale Process”):

(a) no later than three (3) business days after a Termination Event, file and

serve a motion and accompanying pleadings for authority to sell substantially all of its assets free

and clear of liens, claims, and encumbrances;

(b) have the deadline to receive bids as no later than fourteen (14) calendar

days after the Termination Event, except as otherwise extended by the DIP Agent or the DIP

Lenders in their sole discretion, which bids must be delivered to the DIP Agent at the same time

they are delivered to the Debtor and must: (i) be for cash consideration or, in the case of the DIP

Agent on behalf of the DIP Lenders, cash consideration or a credit bid; (ii) be from a bidder with

the authority and financial capability to close its proposed transaction on the timing set forth in

the Sale Process; (iii) be accompanied by an executed asset purchase agreement; (iv) include a

good faith deposit of 10% of the cash purchase price included in the bid that the bidder will

forfeit if it is selected as the winning bidder at the auction and fails to consummate its bid

because of a breach or failure to perform on the part of such bidder (each, a “Qualifying Bid”);

(c) no later than seventeen (17) calendar days after the Termination Event,

except as otherwise extended by the DIP Agent or the DIP Lenders in their sole discretion, hold

an open auction if any Qualifying Bids are received, at which the DIP Lenders may participate;

(d) no later than twenty-one (21) calendar days after the Termination Event,

except as otherwise extended by the DIP Agent or the DIP Lenders in their sole discretion, or as

soon thereafter as the Court is available to hold a hearing (the “Sale Hearing Date”), receive an

order to approve the sale of substantially all of its assets to the DIP Lenders or an entity that

submitted a Qualifying Bid and submitted at the auction a higher and better offer than the offer

from the DIP Lenders at the auction; and

(e) no later than three (3) business days after the Sale Hearing Date, close the

sale consistent with the order entered by the Court;



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and the entry of this Final Order shall be approval of the Sale Process; provided, that

automatically upon the Debtor failing to comply with the Sale Process in any respect (except as

may be waived by the DIP Agent in its sole discretion), the Debtor shall no longer, pursuant to

the Interim Order, this Final Order, or otherwise, be authorized to borrow funds hereunder or to

use Cash Collateral (without further order of the Court authorizing the use of Cash Collateral) or

any proceeds of the DIP Loan already received (except for payment of the Carve-Out and the

DIP Loan Obligations in accordance with the DIP Financing Documents, the Interim Order, and

this Final Order), and any obligation of the DIP Agent, on behalf of the DIP Lenders, to make

loans or advances hereunder shall be terminated and the DIP Agent and the DIP Lenders shall

have the right to pursue all of their rights and remedies under the DIP Financing Documents, the

Interim Order, this Final Order, and applicable law.

22. Any and all obligations and commitments of the DIP Agent and the DIP Lenders

hereunder shall terminate and all DIP Loan Obligations shall become due and payable in full in

cash upon the earliest of the following (the “Due Date”): (a)August 19, 2014; (b) the substantial

consummation (as defined in section 1101 of the Bankruptcy Code and which for purposes

hereof shall be no later than the effective date) of a confirmed chapter 11 plan; (c) conversion of

the Bankruptcy Case or the Cha Cha Bankruptcy Case to a case under chapter 7 of the

Bankruptcy Code; (d) appointment of a trustee for the Debtor or in the Cha Cha Bankruptcy

Case; (e) dismissal of the Bankruptcy Case or the Cha Cha Bankruptcy Case; (f) March 24, 2014,

if a final Cha Cha Order has not been entered prior to March 24, 2014; (g) the date on which the

Court enters an order approving a post-petition financing between the Debtor or Cha Cha and

another lender(s) or investor(s) (as the case may be) (other than the DIP Lenders); (h)

consummation of a sale of substantially all of the Debtor’s or Cha Cha’s assets under section 363

of the Bankruptcy Code; (i) repayment in full in cash of the DIP Loan Obligations; and (j) five

(5) business days after the DIP Agent notifies the Debtor and its counsel in writing of an Event

of Default that is not subsequently cured or waived by the end of such notice period. The DIP

Agent and the DIP Lenders may extend the Due Date in their sole discretion.



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23. The DIP Agent, on behalf of the DIP Lenders, shall use its reasonable best efforts

to realize upon the DIP Collateral with respect to the DIP Facility in order to satisfy the DIP

Loan Obligations prior to realizing upon the Cha Cha Collateral under the guaranty from Cha

Cha supporting the DIP Loan Obligations.

24. Subject to applicable state law, notwithstanding anything contained in the Interim

Order or this Final Order to the contrary and without limiting any other rights or remedies of the

DIP Lender contained in the Interim Order, this Final Order, or the DIP Financing Documents, or

otherwise available at law or in equity, upon written notice to the landlord of any leased premises

that an Event of Default has occurred and is continuing under the DIP Financing Documents, the

DIP Agent, on behalf of the DIP Lenders, may, subject to any valid, enforceable separate

agreement by and between such landlord and the DIP Agent (the “Separate Agreement”), enter

upon any leased premises of the Debtor for the purpose of exercising any remedy with respect to

the DIP Collateral located thereon and, subject to the Separate Agreement, shall be entitled to all

of the Debtor’s rights and privileges as lessee under such lease without interference from such

landlord; provided that except as otherwise agreed to by the DIP Agent, on behalf of the DIP

Lenders, and a landlord in a Separate Agreement, the DIP Lender shall only pay rent of the

Debtor that first accrues after the written notice referenced above and that is payable during the

period of such occupancy by the DIP Agent, calculated on a per diem basis. Nothing herein shall

require the DIP Agent or the DIP Lenders to assume any lease as a condition to the rights

afforded to the DIP Agent in this paragraph. Without limiting any of the rights or remedies of

the DIP Agent or the DIP Lenders (including, without limitation, all rights afforded under

applicable state law) provided in the Interim Order, this Final Order, or in any of the DIP

Financing Documents, upon or after the acceleration of the DIP Loan Obligations, the DIP Agent

shall have the right, in its sole discretion, to demand that the Debtor immediately file and

diligently pursue and prosecute any motion or other appropriate pleading with the Court seeking

the assumption and assignment of any lease of the real property of the Debtor (each, a “Lease”)

to the DIP Agent or its designee. If such demand is made by the DIP Agent, the Debtor shall (a)



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not seek to reject or otherwise terminate any such Lease, (b) immediately withdraw any

previously filed rejection motion or termination notice with respect to such Lease, and (iii) file,

within one (1) business day (or such longer period as may be agreed to by the DIP Agent in its

reasonable discretion or such shorter period as is reasonably required to avoid a rejection of such

Lease under section 365(d)(4) of the Bankruptcy Code), a motion seeking expedited relief and a

court hearing within seven calendar days (or such longer period or with any adjournments as

requested by the DIP Agent in its reasonable discretion) of such demand for the purpose of

assuming such Lease and assigning it to the DIP Agent or its designee. Such assignment shall be

on terms and conditions as are acceptable to the DIP Agent and subject to the affected lessor’s

rights under any such Lease (to the extent such rights are enforceable or effective under section

365 of the Bankruptcy Code) and the Bankruptcy Code. The Debtor (or the DIP Agent as the

Debtor’s true and lawful agent and attorney-in-fact) are authorized and directed to execute and

deliver such agreements, documents, and instruments as the DIP Agent may request to effectuate

the foregoing. Nothing herein shall require the DIP Agent or the DIP Lenders to assume any

Lease as a condition to the rights afforded to the DIP Agent in this Final Order. Notwithstanding

the foregoing, the DIP Agent’s rights are limited to those: (a) granted under applicable non-

bankruptcy law; (b) consented to in writing by the applicable landlord; or (c) granted by the

Court in this Final Order or on motion, notice, and an opportunity for the affected landlord to

respond thereto. Except as may be agreed to in writing by the DIP Agent, on behalf of the DIP

Lenders, and The Estate of Marion Flapan, this paragraph is subject to the rights under section

365 of the Bankruptcy Code of The Estate of Marion Flapan as lessor for the location at 1745

Story Road, San Jose, California 95122. Notwithstanding anything to the contrary in the Interim

Order or this Final Order, the provisions of this paragraph with respect to the rights of the DIP

Agent and the DIP Lenders to access premises for the purpose of disposing of DIP Collateral or

other disposition of DIP Collateral shall not apply with respect to Fleming Business Park, LLC

or the premises that is the subject of the Fleming Business Park Lease (as defined herein)



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because of the existence of a Separate Agreement between the DIP Agent and Fleming Business

Park, LLC.

25. The rights, remedies, powers, and privileges conferred upon the DIP Agent and

the DIP Lenders pursuant to the Interim Order or this Final Order shall be in addition to and

cumulative with those contained in the DIP Financing Documents or available under applicable

law.

26. Notwithstanding the occurrence of a Termination Event or anything herein to the

contrary, all of the rights, remedies, benefits, and protections provided to the DIP Agent and the

DIP Lenders under the DIP Financing Documents, the Interim Order, and this Final Order shall

survive the Termination Event. Upon a Termination Event, the DIP Loan shall be immediately

due and payable and the DIP Agent and the DIP Lenders shall have all rights and remedies

provided in the DIP Financing Documents, the Interim Order, and this Final Order. If it shall be

necessary by law or to preserve collateral for the DIP Agent or the DIP Lenders, at any time, to

exercise any of their respective rights and remedies hereunder or under applicable law in order to

effect repayment of the DIP Loan, or to receive any amounts or remittances due hereunder, the

DIP Agent and the DIP Lenders shall, unless an order has been entered by the Court to the

contrary within the five (5) business day notice period provided below, have the right without

any further action or approval of the Court to exercise such rights and remedies as to all or such

part of the DIP Collateral as the DIP Agent shall, in its sole discretion, elect, having provided the

Debtor, the Committee, and any other official committee that may be appointed in the

Bankruptcy Case with at least five (5) business days’ advance notice.

27. The “equities of the case” exception contained in section 552(b) of the

Bankruptcy Code is deemed waived with respect to the DIP Collateral.

28. From and after the date of the entry of the Interim Order and the date of the entry

of this Final Order, all collections and proceeds of the DIP Collateral or services provided by the

Debtor and all other cash or cash equivalents that shall at any time come into the possession or

control of the Debtor, or to which the Debtor shall become entitled at any time, shall be



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deposited in accounts as designated by the DIP Agent from time to time. The DIP Agent shall

be deemed to have control of all bank accounts of the Debtor, and all financial institutions in

which such accounts of the Debtor are located are hereby directed to comply with any request of

the DIP Agent to turnover funds therein without offset or deduction of any kind.

29. The Priming Liens and all other liens and security interests granted herein shall

be, and they hereby are, deemed perfected by operation of law upon the entry of the Interim

Order and continuing upon the entry of this Final Order, and no further notice, filing, or other act

shall be required to effect such perfection, and the DIP Agent and the DIP Lenders shall not be

required to file or enter into financing statements, security agreements, control agreements,

pledge agreements, mortgages, deeds of trust, security deeds, notices of lien, or similar

instruments in any jurisdiction, or take any other action, to attach or perfect the security interests

and liens granted under the DIP Financing Documents, the Interim Order, or this Final Order

(including, without limitation, taking possession of or obtaining control over any of the DIP

Collateral, or taking any action to have security interests or liens noted on certificates of title or

similar documents), and the failure of the DIP Agent or the DIP Lenders to file or enter into any

such financing statement, security agreement, control agreement, pledge agreement, mortgage,

deed of trust, security deed, notice of lien, or other instrument, or to otherwise confirm perfection

of such liens, security interests, or mortgages or make any other such request shall not affect

either the perfection or priority of the Priming Liens; provided, however,

(a) If either the DIP Agent or the DIP Lenders, each in their sole discretion,

choose to file the Interim Order, this Final Order, or any financing statements, mortgages, deeds

of trust, security deeds, notices of lien, or similar instruments, all such financing statements,

mortgages, deeds of trust, security deeds, notices of lien, or similar instruments shall be deemed

to have been filed or recorded at the time and on the date of entry of the Interim Order, and the

automatic stay of section 362 of the Bankruptcy Code is hereby vacated to effect such filings.

The Debtor shall execute and deliver to the DIP Agent or the DIP Lenders all such agreements,



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financing statements, instruments, and other documents as the DIP Agent or the DIP Lenders

may reasonably request to evidence perfection of the liens and security interests granted herein.

(b) A certified copy of the Interim Order or this Final Order may, in the sole

discretion of the DIP Agent, be filed with or recorded in filing or recording offices in addition to

or in lieu of such financing statements, mortgages, deeds of trust, security deeds, notices of lien,

or similar instruments, and all filing offices are hereby authorized to accept such certified copy

of the Interim Order or this Final Order for filing and recording.

(c) The DIP Agent or the DIP Lenders, each in their sole discretion, are

authorized to require the Debtor to enter into a deposit account control agreement or agreements

and to enforce such deposit account control agreement and agreements, and the automatic stay of

section 362 of the Bankruptcy Code is hereby vacated to effect such requirement and

enforcement, provided the terms of such deposit account control agreement or agreements are

consistent with the provisions of the Interim Order, this Final Order, and the DIP Financing

Documents. The depository bank party to such deposit account control agreement or agreements

is authorized to honor any instructions of the DIP Agent or the DIP Lenders delivered to the

depository bank pursuant thereto with respect to the deposit accounts that are covered thereby in

order to permit the DIP Agent or the DIP Lenders to enforce such deposit account control

agreement or agreements and its or their rights and remedies thereunder in accordance with the

preceding sentence and the applicable deposit account control agreement or agreements, and the

automatic stay of such section 362 of the Bankruptcy code is hereby vacated to effect such

requirement and enforcement.

(d) Any provision of any lease or license, contract, or other agreement of the

Debtor (each, an “Agreement”) that requires (i) the consent or approval of one or more landlords

or other entities or (ii) the payment of any fees or obligations to any governmental entity for the

Debtor to pledge, grant, sell, assign, or otherwise transfer any such leasehold interest, or the

proceeds thereof, or other postpetition collateral related thereto, is hereby deemed to be

inconsistent with the applicable provisions of the Bankruptcy Code and shall have no force and



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effect with respect to the transactions granting postpetition liens in such leasehold interest, or the

proceeds of any assignment and/or sale thereof, by the Debtor in favor of the DIP Agent or the

DIP Lenders in accordance with the terms of the DIP Financing Documents, the Interim Order,

or this Final Order. Notwithstanding anything to the contrary herein, the provisions of the

Interim Order or this Final Order shall not (i) render any Agreement unable to be assumed and/or

assigned by the Debtor (or by the DIP Agent, as the Debtor’s true and lawful agent and attorney-

in-fact) or (ii) impair or limit the ability or right of (A) the Debtor (or the DIP Agent, as the

Debtor’s true and lawful agent and attorney-in-fact) to assume and/or assign any Agreement or

(B) any lessor under any Lease to object to such relief on any other grounds, including, without

limitation, sections 365(b)(3) or 1123 of the Bankruptcy Code.

(e) The Debtor shall not transfer or otherwise direct any cash to any deposit or

other account with respect to which the DIP Agent, for the benefit of the DIP Lenders, does not

have a fully executed deposit account control agreement in effect, except as otherwise agreed to

in writing by the DIP Agent.

30. Except as otherwise provided in this Final Order, pursuant to section 552(a) of the

Bankruptcy Code, all property acquired by the Debtor after the Petition Date, including, without

limitation, all DIP Collateral pledged or otherwise granted to the DIP Agent, on behalf of the

DIP Lender, pursuant to the DIP Financing Documents, the Interim Order, or this Final Order, is

not and shall not be subject to any lien of any entity (as defined in the Bankruptcy Code)

resulting from any security agreement entered into by the Debtor prior to the Petition Date,

except to the extent that such property constitutes proceeds of property of the Debtor that is (a)

subject to a valid, enforceable, perfected, and unavoidable lien as of the Petition Date (or

perfected after the Petition Date pursuant to section 546(b) of the Bankruptcy Code) and (b) not

subject to subordination under section 510(c) of the Bankruptcy Code or other provision of the

Bankruptcy Code or principles of applicable law.

31. The DIP Agent, on behalf of the DIP Lenders, have the right to “credit bid” the

full amount of any outstanding DIP Loan Obligations for the DIP Collateral in connection with



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any sale of all or any portion of such assets, property, or DIP Collateral, including, without

limitation, any sale occurring pursuant to section 363 of the Bankruptcy Code or included as part

of any chapter 11 plan subject to confirmation under section 1129(b)(2)(A)(iii) of the

Bankruptcy Code. The DIP Agent, on behalf of the DIP Lenders, has the absolute right to

assign, sell, or otherwise dispose of such right to credit bid.

32. The Debtor shall permit representatives, agents, and/or employees of the DIP

Agent and the DIP Lenders to have reasonable access to its premises and its records (to make

copies and take extracts therefrom) and shall cooperate with, consult with, and provide to such

persons all such non-privileged information as they may reasonably request. In addition to the

reports required by the DIP Financing Documents, the Debtor shall, by 5:00 p.m. (CDT) on the

Wednesday of each week, provide to the DIP Agent, and its counsel, reports (in form and

substance satisfactory to the DIP Agent) illustrating the updated weekly actual performance

compared to the Budget, line-item by line-item, and stating all variances.

33. The Debtor shall timely comply with all of the covenants and conditions set forth

in the Interim Order, this Final Order, or the DIP Financing Documents including, without

limitation, each of the covenants and conditions set forth in the DIP Term Sheet.

34. The Debtor and its estate and all creditors and parties in interest, including,

without limitation, the Committee, any subsequently appointed committee or successor, any

subsequently appointed chapter 11 trustee, chapter 7 trustee, and any liquidating trustee hereby

release and waive any and all claims, causes of action, counterclaims, setoffs, defenses, charges,

suits, liabilities, damages, contracts, agreements, and promises, of any kind or nature whatsoever,

known or unknown, foreseen or unforeseen, suspected or unsuspected, latent or patent, fixed or

contingent, existing or hereafter arising, in law, equity, or otherwise, against the DIP Agent, the

DIP Lenders, and each of the existing and former general partners, shareholders, directors,

officers, fiduciaries, principals, managers, investment managers, members, employees, investors,

representatives, agents, subsidiaries, predecessors, successors, assigns, affiliates, affiliated funds

and managed accounts, portfolio companies, and related entities of the foregoing (collectively,



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the “Releasees”) that the Debtor would have been legally entitled to assert in its own right or on

behalf of any other entity against any of the Releasees, whether or not any of the facts or legal

bases therefor were known or existed on or before the date of this Final Order, based upon or

related to, in whole or in part, the DIP Loan, the DIP Financing Documents, the DIP Facility, or

any transaction contemplated thereby, or any other acts, omissions, or aspect of the relationship

between any of the Releasees and the Debtor; provided, however, that nothing in this paragraph

34 shall operate as a release of any claim, cause of action, counterclaim, setoff or defense that

arises after the date of entry of this Final Order.

35. In making decisions to advance money or extend financial accommodations of

any nature under the Interim Order, this Final Order, or the DIP Financing Documents, in

administering any advances, loans, or financial accommodations of any sort under the Interim

Order, this Final Order, or the DIP Financing Documents, or in taking any other action related to

or in connection with any of the foregoing, the DIP Agent and the DIP Lenders shall not owe any

fiduciary duty to the Debtor, its creditors, or its estates, and the DIP Agent and the DIP Lenders’

relationship with the Debtor shall not constitute nor be deemed to constitute a joint venture or

partnership with the Debtor.

36. The DIP Agent, on behalf of the DIP Lenders, shall be, and shall be deemed to be,

without any further action or notice, named as additional insured and loss payee on each

insurance policy maintained by the Debtor that in any way relates to the DIP Collateral and each

liability insurance policy maintained by the Debtor. Any insurance proceeds or other receipts

from any source that relate to the DIP Collateral shall be immediately delivered to the Debtor

and subject to the Priming Liens, the Superpriority Claims, and the terms of the Interim Order,

this Final Order, and the DIP Financing Documents.

37. Nothing in the Interim Order, this Final Order, or in any of the DIP Financing

Documents shall in any way be construed or interpreted to impose or allow the imposition upon

the DIP Agent or any of the DIP Lenders of any liability for any claims arising from any or all



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activities by the Debtor or any of its subsidiaries or affiliates in the operation of its business or in

connection with its restructuring efforts.

38. The Court has considered and determined the matters addressed herein pursuant

to its powers under the Bankruptcy Code, including the power to authorize the Debtor to obtain

credit on the terms and conditions upon which the Debtor and the DIP Agent and the DIP

Lenders have agreed. Thus, each of such terms and conditions constitutes a part of the

authorization under section 364 of the Bankruptcy Code, and is, therefore, subject to the

protections contained in section 364(e) of the Bankruptcy Code. If any or all of the provisions of

the Interim Order, this Final Order, or the DIP Financing Documents are hereafter reversed,

modified, vacated, amended, or stayed by subsequent order of the Court or any other court: (a)

such reversal, modification, vacatur, amendment, or stay shall not affect (i) the validity of any

obligation of the Debtor to the DIP Agent or the DIP Lenders pursuant to the Interim Order or

this Final Order that is or was incurred prior to such entity receiving written notice of the

effective date of such modification, vacatur, amendment, or stay (the “Effective Date”) or (ii) the

validity, enforceability, or priority of the Superpriority Claims, Priming Liens, or other grants

authorized or created by the Interim Order, this Final Order, or the DIP Financing Documents

that is or was incurred prior to such entity receiving written notice of the Effective Date; (b) the

DIP Loan Obligations pursuant to the Interim Order, this Final Order, or the DIP Financing

Documents arising prior to the Effective Date shall be governed in all respects by the provisions

of the Interim Order, this Final Order, and the DIP Financing Documents in effect immediately

prior to the Effective Date; and (c) the validity of any financing provided or security interest

granted pursuant to the Interim Order, this Final Order, or the DIP Financing Documents is and

shall be protected by section 364(e) of the Bankruptcy Code.

39. The provisions of the Interim Order and this Final Order and any actions taken

pursuant hereto shall survive the entry of any order (a) confirming any plan under chapter 11 of

the Bankruptcy Code in the Bankruptcy Case (and, to the extent not indefeasibly satisfied in full

in cash, the DIP Loan Obligations shall not be discharged by the entry of any such order or,



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pursuant to section 1141(d)(4) of the Bankruptcy Code, the Debtor having hereby waived such

discharge) and (b) approving any sale under section 363 of the Bankruptcy Code, and,

notwithstanding the entry of any such order, the terms and provisions of the Interim Order and

this Final Order shall continue in full force and effect, including, without limitation, the

Superpriority Claims and the Priming Liens granted pursuant to the Interim Order, this Final

Order, or the DIP Financing Documents, and shall maintain their priority as provided by the

Interim Order, this Final Order, and the DIP Financing Documents to the maximum extent

permitted by law until all of the DIP Loan Obligations are indefeasibly paid in full in cash.

40. If the Bankruptcy Case is dismissed, converted, otherwise superseded, or

substantively consolidated with another debtor’s case, the rights of the DIP Agent and the DIP

Lenders under the Interim Order, this Final Order, and the DIP Financing Documents shall be

and remain in full force and effect as if the Bankruptcy Case had not been dismissed, converted,

superseded or substantively consolidated, and, notwithstanding any such dismissal, conversion,

supercission, or substantive consolidation, the terms and provisions of the Interim Order and this

Final Order, shall continue in full force and effect, including, without limitation, the

Superpriority Claims and the Priming Liens granted pursuant to the Interim Order, this Final

Order, or the DIP Financing Documents and shall maintain their priority as provided by the

Interim Order, this Final Order, and the DIP Financing Documents to the maximum extent

permitted by law until all of the DIP Loan Obligations are indefeasibly paid in full in cash. If an

order dismissing the Bankruptcy Case is at any time entered, such order shall provide (in

accordance with sections 105 and 349 of the Bankruptcy Code and otherwise) that (a) the

Priming Liens and the Superpriority Claims granted to and conferred upon the DIP Agent, on

behalf of the DIP Lenders, and the protections afforded to the DIP Agent and the DIP Lenders

pursuant to the Interim Order, this Final Order, or the DIP Financing Documents shall continue

in full force and effect and shall maintain their priorities as provided in the Interim Order and

this Final Order until all DIP Loan Obligations shall have been indefeasibly paid in full in cash

(and that such Priming Liens, the Superpriority Claims, and other protections shall,



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notwithstanding such dismissal, remain binding on all entities) and (b) the Court shall retain

jurisdiction, notwithstanding such dismissal, for the purpose of enforcing the Priming Liens and

the Superpriority Claims.

41. The provisions of the Interim Order and this Final Order shall be binding upon

and inure to the benefit of the DIP Agent and the DIP Lenders, the Debtor, the Committee, and

each of their respective successors and assigns, including, without limitation, any trustee or other

fiduciary hereafter appointed as a legal representative of the Debtor or with respect to the

property of the estate of the Debtor, whether in the Bankruptcy Case or any successor case,

including, without limitation, the conversion of the Bankruptcy Case to a case under chapter 7 of

the Bankruptcy Code. Such binding effect is an integral part of this Final Order.

42. Based on the findings set forth in the Interim Order and this Final Order and in

accordance with section 364(e) of the Bankruptcy Code, which is applicable to the postpetition

financing arrangement contemplated by the Interim Order and this Final Order, in the event any

or all of the provisions of the Interim Order or this Final Order are hereafter modified, amended,

or vacated by a subsequent order of this or any other court, no such modification, amendment, or

vacation shall affect the validity and enforceability of any lien, security interest or priority

authorized or created hereby. Notwithstanding any such modification, amendment, or vacation,

any claim granted hereunder arising prior to the effective date of such modification, amendment,

or vacation shall be governed in all respects by the original provisions of the Interim Order and

this Final Order, the DIP Agent, and/or the DIP Lenders, as the case may be, shall be entitled to

all of the rights, remedies, privileges, and benefits, including the liens and priorities granted

herein, with respect to any such claim.

43. The Debtor is authorized to do and perform all acts, to make, execute, and deliver

all instruments and documents (including, without limitation, the execution of the DIP Financing

Documents and additional security agreements, mortgages, and financing statements) and to pay

any amount constituting DIP Loan Obligations that may be required or necessary for the

Debtor’s full and timely performance under the DIP Facility, the Interim Order, and this Final



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Order, including, without limitation, fees and expenses that may be required or necessary for the

Debtor’s performance hereunder, including, without limitation:

(a) the execution of any of the DIP Financing Documents;

(b) the payment of the fees, costs, and other expenses described in the Interim

Order, this Final Order, or the DIP Financing Documents as such become due, including, without

limitation, agent fees, commitment fees, letter of credit fees and facility fees and reasonable

attorneys’, financial advisers,’ accountants’, and other professionals’ fees and disbursements;

(c) the modification or amendment of the DIP Financing Documents and the

Budget without further order of the Court, in each case, in such form as the Debtor and the DIP

Agent, on behalf of the DIP Lenders, may agree, in accordance with the terms of the DIP

Facility; provided, however, that notice of any material modification or amendment shall be

provided to counsel for the Committee and the U.S. Trustee, each of which will have three (3)

business days from the date of delivery of such notice within which to object in writing by

sending a written objection setting forth specific objections to the DIP Agent, on behalf of the

DIP Lenders, and counsel to the DIP Agent; provided further, that if a proper objection is timely

delivered, such modification or amendment shall be permitted only pursuant to an order of the

Court or following withdrawal of such objection; and

(d) the performance of all other acts required under or in connection with the

DIP Financing Documents, the Interim Order, or this Final Order.

44. Notwithstanding anything to the contrary in this Final Order, with respect to the

lease and sublease between Fleming Business Park, LLC as lessor, Cha Cha as lessee, and the

Debtor as sublessee for the property in Milpitas, California (together, the “Fleming Business

Park Lease”), DIP Agent, on behalf of the DIP Lenders, shall have a Priming Lien limited to the

proceeds, if any, of the prospective assignment or other disposition of the Fleming Business Park

Lease, and the DIP Agent, on behalf of the DIP Lenders, shall not have a Priming Lien or other

lien on the Fleming Business Park Lease or the subject real property pursuant to the Interim

Order, this Final Order, or the DIP Financing Documents. Unless such agreement has already



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been consummated, the DIP Agent, on behalf of the DIP Lenders, and Fleming Business Park,

LLC will continue to negotiate in good faith on the form of a collateral access and removal

agreement with respect to the premises leased under the Fleming Business Park Lease and the

non-real property DIP Collateral located at the subject premises.

45. Notwithstanding any other provision of the Interim Order, this Final Order, or the

DIP Financing Documents, all money or monetary value, less fees, at any time received by the

Debtor or Cha Cha for money transmission as an agent of MoneyGram Payment Systems, Inc.

(collectively, the “MoneyGram Funds”), (a) do not constitute DIP Collateral, (b) do not

constitute Cash Collateral, (c) are not subject to the Priming Liens, and (d) are not available for

the payment of the Superpriority Claims. Notwithstanding any other provision of the Interim

Order, this Final Order, or the DIP Financing Documents, to the extent of the MoneyGram Funds

in such account, the DIP Agent and the DIP Lenders do not have and shall not be deemed to have

control of that certain deposit account maintained by the Debtor with Wells Fargo Bank, N.A.,

Account No. xxxxxx5835, identified as the “MoneyGram Account.” Notwithstanding any other

provision of the Interim Order, this Final Order, or the DIP Financing Documents, that certain

Order to Establish Procedures and Allow Payments of MoneyGram Trust Funds, entered by the

Court on July 26, 2013 in the Bankruptcy Case [Docket No. 47], remains in full force and effect.

46. Upon the Initial Disbursement, the following amounts were deposited into a

separate, segregated account with counsel for the Committee for distribution after entry of this

Final Order only to holders of allowed claims entitled to priority under Bankruptcy Code section

503(b)(9) (the “503(b)(9) Claims”) as determined by the Committee, in consultation with the

Debtor: (a) $350,000 from the Prepetition Lender’s discounted debt payoff amount; (b) $120,000

from the waived Facility Fee; and (c) $20,000 from the waived Maintenance Fee of the DIP

Lender, the total of which is the “Initial 503(b)(9) Fund.”

47. The terms for repayment of the $1.9 million debtor in possession loan made from

Juvenal Chavez to the Debtor (the “Chavez DIP Loan”) are modified as follows: (a) $475,000 of

the Chavez DIP Loan shall remain a secured loan retaining its lien against the collateral of the



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Pre-Petition Lender and the DIP Lender; and (b) the remaining $1,425,000 of the Chavez DIP

Loan shall be treated pari passu with the 503(b)(9) Claims; provided, however, that Mr. Chavez

shall, by agreement, not participate in distributions from the 503(b)(9) Fund created by this Final

Order up to an amount not to exceed $490,000. Nothing in this Final Order reduces the amounts

owing to Mr. Chavez on the Chavez DIP Loan or allows or permits non-payment on any

distributions to holders of 503(b)(9) Claims other than with respect to the Initial 503(b)(9) Fund.

48. All prepetition claims of affiliates or members of the family of Juvenal Chavez

against the Debtor or affiliates of the Debtor against the Debtor, other than prepetition claims of

Cha Cha against the Debtor are permanently and irrevocably waived.

49. Notwithstanding anything to the contrary in such orders, any rights of the

Prepetition Lender or counsel to the Prepetition Lender in any of the following orders shall be

vested in the DIP Agent, on behalf of the DIP Lenders, and any rights for the Prepetition Lender

or counsel to the Prepetition Lender to receive notice, that are to be provided in any of the

following orders shall be replaced with notice to counsel to the DIP Agent at: (a) with respect to

notice by electronic mail, to [email protected] and

[email protected]; and (b) with respect to notice by overnight mail or first class

mail, to Paul Hastings LLP, 191 North Wacker Drive, Chicago, Illinois 60606, Attn: Marc

Carmel and Paul Hastings LLP, 1117 South California Avenue, Palo Alto, California 94304,

Attn: Todd Schwartz: (i) Order to Establish Procedures and Allow Payments of MoneyGram

Trust Funds [Docket No. 47]; (ii) Amended Order (I) Granting Administrative Expense Status to

Debtor’s Undisputed Obligations to Vendors Arising from Postpetition Delivery of Goods

Ordered Pre-Petition and Authorizing Debtor to Pay Such Obligations in the Ordinary Course of

Business; (II) Authorizing Payment for Goods Received within Twenty Days of Filing and

Establishing Administrative Claims Bar Date for Section 503(b)(9) Claims; and (III)

Establishing Procedures and to Allow Claims of Perishable Agricultural Commodities Act and

Packers and Stockyard Act Claimants [Docket No. 74]; (iii) Order Granting Motion to Amend

Prior Order Regarding Pre-Petition Wages [Docket No. 117]; (iv) Interim Order Granting



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Motion to Approve Premium Financing Agreement for Purchase of Insurance [Docket No. 384];

(v) Order Establishing Procedures for Interim Payment of Fees and Reimbursement of Expenses

[Docket No. 457]; (vi) Order Pursuant to 11 U.S.C. §§ 327(a) and 328(a) and Fed. R. Bankr. P.

2014 Approving Employment of Piper Jaffray & Co., as Investment Banker, Effective as of

December 9, 2013 [Docket No. 519]; and (vii) Order: (1) Authorizing Debtor to Enter Into

Section 365(d)(4)(B)(ii) Stipulations to Further Extend the Deadline to Assume or Reject

Nonresidential Real Property Leases, and (2) Approving Proposed Procedures for Such

Stipulations [Docket No. 541].

50. Notwithstanding anything to the contrary in the Interim Order or this Final Order,

the entry of the Interim Order and the entry of this Final Order are without prejudice to, and does

not constitute a waiver of, expressly or implicitly, or otherwise impair, (a) any of the rights of the

DIP Agent or the DIP Lenders under the Bankruptcy Code or under non-bankruptcy law,

including, without limitation, the right to (i) adequate protection of its interests in the DIP

Collateral or relief from or modification of the automatic stay under section 362 of the

Bankruptcy Code, (ii) request conversion of the Bankruptcy Case to chapter 7, and (iii) propose,

subject to the provisions of section 1121 of the Bankruptcy Code, a chapter 11 plan or plans or

(b) any other rights, claims or privileges (whether legal, equitable, or otherwise).

51. Neither the DIP Agent nor the DIP Lenders shall be required to file proofs of

claim in the Bankruptcy Case for any claim under the DIP Financing Documents. This Final

Order shall be deemed to constitute a timely filed proof of claim for the DIP Agent or DIP

Lenders on account of the DIP Loan Obligations, to the extent that any proof of claim would

otherwise be required, and DIP Agent and the DIP Lenders shall be treated under section 502(a)

of the Bankruptcy Code as if they has filed a proof of claim. Notwithstanding the foregoing, the

DIP Agent and DIP Lenders are authorized, but not required, to file a proof of claim for any

claim, whether allowed hereunder or otherwise.

52. Any time period referenced herein shall be calculated in accordance with

Bankruptcy Rule 9006.



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53. To the extent any provisions in this Final Order conflict with any provisions of the

Motion, the Interim Order, or any DIP Financing Document, the provisions of this Final Order

shall control.

54. The Court has and will retain jurisdiction to implement, interpret, and enforce the

Interim Order, this Final Order, and the DIP Financing Documents according to their terms.

55. This Final Order shall constitute findings of fact and conclusions of law and shall

take effect and be fully enforceable immediately upon execution hereof. There is no just reason

to delay enforcement or appeal of this Final Order.

***** END OF ORDER *****


CERTIFICATE OF SERVICE

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Heinz Binder (SBN 87908) Robert G. Harris (SBN 124678) Roya Shakoori (SBN 236383) BINDER & MALTER, LLP 2775 Park Avenue Santa Clara, CA 95050 Tel: (408) 295-1700 Fax: (408) 295-1531 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC.



SAN JOSE DIVISION

In re: MI PUEBLO SAN JOSE, INC., Debtor.

Case No. 13-53893-ASW

Chapter 11

Final Hearing: Date: March 6, 2014 Time: 10:30 a.m. Place: Courtroom: 3020 280 South First Street San Jose, CA 95113 Judge: Hon. Arthur S. Weissbrodt


I, Brandy Garrison, declare:

I am employed in the County of Santa Clara, California. I am over the age of eighteen

(18) years and not a party to the within entitled cause; my business address is 2775 Park Avenue,

Santa Clara, California 95050.

On March 4, 2014, I served a true and correct copy of the following document(s):

NOTICE OF LODGING OF PROPOSED FINAL ORDER (I) AUTHORIZINGDEBTOR IN POSSESSION TO OBTAIN POSTPETITION



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FINANCING ANDPROVIDING GUARANTY PURSUANT TO 11 U.S.C. §§ 105, 361, 362, 363, AND 364; (II) GRANTING LIENS, SECURITY INTERESTS, AND SUPERPRIORITYCLAIMS; (III) AUTHORIZING USE OF CASH COLLATERAL; (IV)MODIFYING THE AUTOMATIC STAY; (V) SCHEDULING A FINAL HEARING; AND (VI) GRANTING RELATED RELIEF

by sending via electronic transmission or via the Court’s CM/ECF Noticing systems to

those parties registered to receive notice as addressed as follows:

***PLEASE ALSO SEE ATTACHED SERVICE LIST***

I declare under penalty of perjury that the foregoing is true and correct, and that this

Declaration was executed on March 4, 2014, at Santa Clara, California.

By: /s/ Brandy Garrison Brandy Garrison


Mi Pueblo San Jose, Inc.Chapter 11 Case No.: 13-53893-ASW

Limited NoticeSERVICE LIST

Creditors Comm ittee Yosemite Meat Company

Attn: Johnnie Lau, CEO

P.O. Box 580008

Modesto, CA 95358

Seacatch Market Fresh Advantage

Attn: Zosimo A. Regal, CFO

710 Epperson Drive

City of Industry, CA 91748

La Rosa Tortilla Factory, Inc.

Attn: Jimm ie D. Hicks, CFO

142 Second St.

W atsonville, CA 95076

Marquez Brothers International, Inc.

Attn: David Villanueva, CFO

5801 Rue Ferrari

San Jose, CA 95138-1857

Pepsi Cola, Inc.

Attn: Chad New, National Credit

Manager

1100 Reynolds Blvd.

W inston-Salem, NC 27105

National Security Guard

National Security Industries & Services

Attn: Michael Gerami, President

940 Park Ave.

San Jose, CA 95126

The Coca-Cola Company

Attn: W illiam Kaye

Senior Bankruptcy Advisor

P.O. Box 1734, Nat 2008 Mail Stop

Atlanta, GA 30313

Counsel for Creditors Committee Eric D. Goldberg Gabriel I. Glazer Danielle A. Pham

Stutman, Treister & Glatt1901 Avenue of the Stars, 12th Fl.

Los Angeles, CA 90067

U.S. Trustee John W esolowski, Esq.

Office of the U.S. Trustee / SJ

U.S. Federal Bldg.

280 S 1st St. #268

San Jose, CA 95113-3004

Responsible Individual Juvenal Chavez

1775 Story Road

San Jose, CA 95112

Amended 20 Largest Unsecured

Creditors

BAY AREA SEAFOOD

30248 SANTUCCI COURT

HAYW ARD, CA 94544

BOG,LLP

333 W. SAN CARLOS ST.

SAN JOSE, CA 95110

CDS DISTRIBUTING, INC.

C/o Agent for Service of Process

RODNEY J DACQUISTO

1000 BRANNAN STREET SUITE 504

SAN FRANCISCO CA 94103-4831

COCA COLA BOTTLING

NORCAL

P.O. BOX 53158

LOS ANG ELES, CA 90074

FRITO LAY INC

75 REMITTANCE DR SUITE #1217

CHICAGO, IL 60675

LA ROSA TORTILLA FACTORY

142 SECOND ST

W ATSONVILLE, CA 95076

MARQUEZ BROS. INC

DEPARTMENT #34375

SAN FRANCISCO, CA 94139

MISSION FOODS CORPORATION

Attn: David Salazar

1159 Cottonwood Lane

Irving, TX 75038


NUCAL FOODS INC

P.O. BOX 742336

LOS ANG ELES, CA 90074

OK Produce

1762 G Street

Fresno, CA 93706

Pacific Meat Company

11120 Commercial Pkwy

Castroville, CA 95012

PG & E

P.O. BOX 997300

SACRAM ENTO, CA 95899

PREMIUM VALLEY PRODUCE INC

8241 E. GELDING DRIVE, SUITE B

SCOTTSDALE, AZ 85260

PRODUCER'S DAIRY

PRODUCTS

250 E. BELMONT ST

FRESNO, CA 93701

RIZO-LOPEZ FOODS, INC.

201 S MCCLURE RD

MODESTO CA 95357

SEACATCH MARKET FRESH

ADVANTAG

710 EPPERSON DR.

CITY OF INDUSTRY, CA 91748

SUKARNE

4500 E. PACIFIC COAST HW Y, Ste.

320

LONG BEACH, CA 90804

TONY'S FINE FOODS

P.O. BOX 1501

W EST SACRAMENTO, CA

95605

YOSEMITE MEAT COMPANY

P.O. BOX 580008

MODESTO , CA 95358

Yosemite Meat Company

601 Zeff Rd

Modesto, CA 95351

Request for Notice

NON-ECF RECIPIENTSVIA FIRST CLASS M AIL

Managing Agent for White Road Partners, LLC,landlord for White Road Plaza Shopping Center

c/o Cherrie Johnson and Allen LynchDoerken Properties, Inc.1448 15th Street, #100

Santa Monica, CA 90404

JV Investments Town Plaza, LLC

Attn: Joseph Gagliardi, Jr.

PO Box 1659

Gilroy, CA 95021

Brian Riparbelli

Pacific Agri-Products

477 Forbes Blvd

S. San Francisco, CA 94080

Christopher P. Tessitore

National Retail Properties, Inc.

450 S. Orange Ave.

Suite 900

Orlando, FL 32801

Bankruptcy AdministrationGE Information Technology Solutions, Inc.

f/d/b/a IKON Financial Services1738 Bass RoadP.O. Box 13708

Macon, GA 31208

Stephen D. Marks, Esq.Law Offices of Stephen D. Marks

Counsel for Bernard Berger, Trustee of theMarian Flapan Trust

601 S. Figueroa Street, Suite 2610Los Angeles, CA 90017

Richard L. Barnett, Esq.Barnett & Rubin, P.C.

Counsel for Nafta Distributors, LLCJeffrey Corporate Centre

5450 Trabuco RoadIrvine, CA 92620

Renee R. Dehesa, Esq.

Schneiders & Associates, LLP

Counsel for B&H Bakery Distribution Corporation

300 E. Esplanade Drive, Ste. 1980

Oxnard, CA 93036

Robert Chau

President of B&H Bakery Distribution Corporation

30754 San Antonio Street

Hayward, CA 94544

National Labor Relations Board

Region 32

George Velastegui, Regional Director

1301 Clay Street, Suite 300N

Oakland, CA 94612-5224

Simvest Real Estate II, LLC

C/o Mr. Russ P ito

655 Montgomery Street, Suite 1190

San Francisco, CA 94111


Request for Special NoticeVIA CM/ECF NOTICING and/or

ELECTRONIC TRANSMISSION

Attorney for Cha Cha Enterprises, LLC Paul J. Pascuzzi

Jennifer E. Niemann

FELDERSTEIN FITZGERALD

W ILLOUGHBY & PASCUZZI LLP

400 Capitol Mall, Suite 1750

Sacramento, CA 95814

E-m ail: [email protected]

E-mail jniemann@ ffwplaw.com

Special Counsel for Mi Pueblo San

Jose, Inc.

W illiam Thomas Lewis

Law Offices of Robertson and Lewis

150 Almaden Blvd. #950

San Jose, CA 95113

Email: [email protected]


Attorney for W ells Fargo Bank, N.A. c/o Robert B. Kaplan

c/o Nicolas De Lancie

Jeffer Mangels Butler Mitchell LLP

Two Em barcadero Center, 5th Floor




Attorney for CDS Distributing, Inc. c/o Lawrence H. Meuers

5395 Park Central Court

Naples, FL 34109

E-mail: [email protected]


Attorney Charlie's Enterprises, Inc. d/b/a

OK Produce

c/o Lawrence H. Meuers

5395 Park Central Court

Naples, FL 34109

E-mail: [email protected]


Attorney Travelers Express Company,

Inc.

c/o Robert L. Rentto

Rentto and Rentto Prof. Law Corp.

110 W est "C" St. #1503

San Diego, CA 92101-7901



Attorney for RM Produce Corporation Michael B. Reynolds

Snell and W ilmer LLP

600 Anton Bl. #1400

Costa Mesa, CA 92626



Attorney for Bay Area Seafood, Inc. Judy C. Tsai

Law Offices of Judy Tsai

101 Metro Dr. #250

San Jose, CA 95110

Em ail: [email protected]


Attorney for Horizon Marketing

Steven Koch

Koch, Degn and Gomez LLP

1148 N Chinowth St., Ste B

Visalia, CA 93291



mailto:[email protected]

Brian Riparbelli/ Pacific Agri-Products Brian Riparbelli

Pacific Agri-Products

477 Forbes Blvd

S. San Francisco, CA 94080


Attorneys for George Perry & Sons, Inc. Daniel A. McDaniel

Nomellini, Grilli and McDaniel

235 E W eber Ave.

P.O. Box 1461

Stockton, CA 95201

Em ail: dam plc@ pacbell.net


Attorney for Index Fresh Inc Marion I. Quesenbery

Rynn and Janowsky LLP

P.O. Box 20799

Oakland, CA 94620


Attorney for Overra Associates II, LLC W illiam Shepard

Miller Starr Regalia

1331 N California Blvd. 5th Fl

W alnut Creek, CA 94596


Attorney for Pacific Meat Company Bernard S. Greenfield

Greenfield Sullivan Draa & Harrington

55 S Market St. #1500

San Jose, CA 95113

Em ail:

[email protected]

Email:[email protected]


Pacific Meat Company

P.O. Box 1049

Castroville, CA 95012

Attorney for Tony's Fine Foods c/o Robert S. McW horter

Nossaman LLP

621 Capitol Mall, 25th Floor



Email: dbardon@nossm an.com

Robert S. McW horter

Nossaman LLP

777 S Figueroa St. 34th Floor



Attorney for Bottling Group, LLC Joseph D. Frank

Law Offices of Frank and Gecker

325 N LaSalle St. #625

Chicago, IL 60610


Raymond R. Miller Law Office of Raymond R. Miller

PO Box 2177

Castro Valley, CA 94546



Attorney for Progreso Financiero c/o Law Offices of Martha J. Simon

155 Montgomery St. #1004

San Francisco

Email: mjsimon@m jsimonlaw.com


Attorney for Edulis, Inc. c/o Kaipo K.B. Young, Esq.

Bartlett, Leader-Picone & Young, LLP

2201 Broadway #803

Oakland, CA 94612


Attorney for Marquez Brothers

International, Inc.

c/o Maureen Harrington, Esq.

Greenfield Sullivan Draa & Harrington

150 California Street Suite 2200

San Francisco, Ca 94111

Em ail:

[email protected]

Em ail:

[email protected]

Emma Madrid, Esq.

Marquez Brothers International, Inc.

5801 Rue Ferrari

San Jose, CA 95138

Attorney for Bernard Berger, Trustee for

Marian Flapan Trust

c/o Stephen D. Marks, Esq.

Law Office Stephen D. Marks, APC

601 S Figueroa St #2610


Email: smarks@sdm arkslaw.com

Attorney for Bar-S Foods Company c/o Gary B. Elmer, Esq.

Ciardi Ciardi & Astin

402 W . Broadway, Suite 400

San Diego, CA 92101


Attorney for National Retail Properties,

Inc.

Christopher P. Tessitore

National Retail Properties, Inc.

450 S. Orange Avenue, #900

Orlando, Florida 32801


Attorney for Viz Cattle Corporation SOUTH BAY LAW FIRM

MICHAEL D. GOOD (SBN 176033)

21535 Hawthorne Blvd., Suite 210

Torrance, California 90503

Em ail: mgood@ southbaylawfirm.com

Em ail: goodm2@ roadrunner.com

Attorney for Candies Tolteca Mark A. Gorton

McDonough, Holland and Allen

500 Capitol Mall18th Fl




Attorney for Barcel USA, LLC c/o Garcia Sullivan Lopez LLP

695 Town Center Drive

Suite 700



Michael A. W allin

Sheppard, Mullin, Richter and Hampton

650 Town Center Drive, 4th Fl












Attorney for NUCP Turlock, LLC c/o Robert F. Kidd

1999 Harrison Street, 25th Floor

Oakland, CA 94590


Attorneys for Official Committee of

Unsecured Creditors

Gabriel I. Glazer

Stutman, Treister and Glatt P.C.

1901 Avenue of the Stars #1200



Eric Goldman

Stutm an, Treister and Glatt

1901 Avenue of the Stars 12th F l.


Email: egoldman@ stutman.com

Danielle A. Pham

Stutman Treister & Glatt PC

1901 Avenue of the Stars 12th Fl



Attorney for GE Information Technology

Solutions, Inc. f/d/b/a IKON Financial

Services

c/o Christine R. Etheridge

Bankruptcy Administration

1738 Bass Road

P.O. Box 13708

Macon, GA 31208-3708

Attorney for Bar-S Foods Company c/o Isaac M. Gabriel

Quarles and Brady LLP

2 N Central Ave.

Phoenix, CA 85004


Attorney for Darigold, Inc. c/o Bria LaSalle Mertens

Stoel Rives LLP

201 S. Main Street, Suite 1100

Salt Lake City, UT 84111



Attorney for Rizo Lopez Foods, Inc. c/o Robert S. McWhorter, Esq.Allan H. Ickowitz, Esq.

Jennifer L. Meeker, Esq.NOSSAMAN LLP

621 Capitol Mall, 25th FloorSacramento, CA 95814


aickowitz@nossam an.com

[email protected]

Email: dbardon@nossm an.com

Attorney for Toyota Motor Credit

Corporation

c/o Scott D. Fink

W eltm an, W einberg & Reis Co., LPA

Lakeside Place, Suite 200

323 W . Lakeside Avenue

Cleveland, OH 44113-1099




Attorneys for Creditors Che Chen Liu

and Shu Fen Liu, Individually and as

Trustees of the Che Chen Liu and Shu

Fen Liu Revocable Trust dated October

9, 2012

c/o Gina Sharron

Rentschler/Tursi, LLP

411 Borel Avenue, Suite 510

San Mateo, CA 94402













Attorneys for Creditor Wells Fargo Bank,

N.A.

c/o Walter W. Gouldsbury III, Esq.

Jeffer, Mangels, Butler & Mitchell LLP

Two Em barcadero Center, 5th Fl.



Attorneys for Creditor JV Investm ents

Town Plaza, LLC

LUCY A. LOFRUMENTO, Esq.

TERRI D. MOLINARO, Esq.

Silicon Valley Law Group

25 Metro Drive, Suite 600

San Jose, CA 95110


[email protected]

JV Investments Town Plaza, LLC Attn: Joseph Gagliardi, Jr.

PO Box 1659

Gilroy, CA 95021


Attorneys for Landlord

Fleming Business Park, LLC

c/o W illiam W . Huckins, Esq.

Allen Matk ins Leck Gam ble Mallory &

Natsis LLP

3 Em barcadero Center, 12th Floor

San Francisco, CA 94111-4074

E-Mail: [email protected]


Attorneys for Creditor NuCal Foods, Inc. c/o Walter J. Schmidt, Esq.

Crabtree Schmidt

P.O. Box 3307

Modesto, CA 95353



NuCal Foods, Inc. Attn: Scott Hennecke

Chief Financial Officer

720 S. Stockton Ave.

Ripon, CA 95366


Attorneys for Bottomley Distributing

Company

Bottom ley Distr ibuting Company

Henry G. Rendler

Law Offices of Henry G. Rendler

1550 The Alameda #308

San Jose, CA 95126


Attorneys for Grum a Corporation d/b/a

Mission Foods and Azteca Milling L.P.

c/o Bruce Zabarauskas

Katharine B. Clark

THOMPSON & KNIGHT LLP

10100 Santa Monica Blvd., Ste. 950




Attorney’s for Unified Grocers, Inc. c/o Erica A. Nyberg, Esq.Chris D. Kuhner, Esq.

Kornfield, Nyberg, Bendes & Kuhner, P.C.1970 Broadway, Suite 225

Oakland, CA 94612




Attorneys for Creditor W est Vista

Communications, Inc.

c/o DeeAnn Dugan

Mission Law Center

P.O. Box 55396

Hayward, CA 94544

Em ail: [email protected],















mailto:[email protected],


Attorneys for Nafta Distributors, Inc. c/o Richard L. Barnett, Esq.BARNETT & RUBIN

A Professional CorporationJeffrey Corporate Centre

5450 Trabuco RoadIrvine, CA 92620


Attorneys for Creditor B&H Distribution

Corporation

c/o Rennee R. Dehesa, Esq.

SCHNEIDERS & ASSOCIATES, L.L.P.

300 E. Esplanade Drive, Ste. 1980

Oxnard, CA 93036


Robert Chau

President of B&H Bakery Distribution

Corporation

30754 San Antonio Street

Hayward, CA 94544

Email: NONE PROVIDED

Attorneys for August B. Landis, Acting

United States Trustee for Region 17

c/o John S. W esolowski

Office of the United States Trustee

U.S. Department of Justice

280 S. First St., Suite 268

San Jose, CA 95113-0002


Attorneys for Yosemite Meat Co., Inc. c/o Tracy Green

W endel, Rosen, Black & Dean LLP

1111 Broadway, 24th Fl.

Oakland, CA 94607




Attorneys for Nafta Distributors, Inc. c/o Richard L. Barnett, Esq.

BARNETT & RUBIN

A Professional Corporation

5450 Trabuco Road

Irvine, CA 92620


Islay Investments

A California Limited Partnership

Attn: Ms. Betty L. Jeppesen, General

Counsel

800 Garden St., Suite K

Santa Barbara, CA 93101

E-mail:

[email protected]

Attorneys for Sim Vest Real Estate II c/o Michael St. James, Esq.

ST. JAMES LAW, P.C.

155 Montgomery St., Suite 1004



Co-Counsel for Creditor Moneygram

Payment Systems, Inc.

c/o Phillip Bohl

GRAY PLANT MOOTY

MOOTY & BENNETT, P.A.

80 S. 8th St., Ste. 500

Minneapolis, MN 55402

E-m ail: phillip.bohl@gpm law.com

National Labor Relations Board National Labor Relations Board

Region 32

George Velastegui, Regional Director

1301 Clay Street, Suite 300N

Oakland, CA 94612-5224












Special Counsel for Mi Pueblo San

Jose, Inc.

Attn: Hilary L. Barnes, Esq.

The Cavanagh Law Firm, P.A.

1850 North Central Avenue, Suite 2400

Phoenix, AZ 82004


Attorney for Bernard Berger, Trustee of

the Marian Flapan Trust

Peter J. Gurfein, Esq.Landau Gottfried & Berger

1801 Century Park East, Suite 700Los Angeles, CA 90067


Attorney for Interested Party, Victory

Park Management, LLC

Todd M. Schwartz, Esq.

Paul Hastings LLP

1117 S. California Avenue

Palo Alto, CA 94304


Marc J. Carmel, Esq.

PAUL HASTINGS LLP

191 North W acker Drive

30th Floor

Chicago, IL 60606







Mi Pueblo San Jose, Inc. Chapter 11 Case No.: 13-53893-ASW

LANDLORD SERVICE LIST

Bedford Plaza Associates, LLC C/O Cecilia Yen 2090 Warm Springs Ct. Fremont, CA 94539 John and Peggy Lynch 1221 Jones St Apt D-1. San Francisco, CA 94109 Loan Vu 3568 Benton St Santa Clara, CA 95051 Castello, Castello & Teresi C/O Raymon V. Castello 1790 S. Winchester Blvd. Ste #1 Campbell, CA 95008 1630 High St, LLC C/o Nancy French 7050 Sunrise Blvd Citrus Heights, CA 95610 Fries Properties, Inc C/o Jamie Fries 39678 Mission Blvd Fremont, CA 94539 Albertsons, LLC Legal Department 250 Parkcenter Blvd Boise, ID 83706 Capitol Square Partners C/o Ana Tobar 1388 Sutter St San Francisco, CA 94109


Overaa Associates, LLC C/o John Jay 10700 Macarthur Blvd Oakland, CA 94601 Seaside Retail Property, LLC C/o Joe Byrne 19159 Iron Mountain Dr. Grass Valley, CA 95949 Pritam, Dev & Manjeet Grewal C/o Pritam Grewal 4219 Chaboya Hills Ct San Jose, CA 95122 Maurice A Ladrech, Nicole A Ladrech C/o Eric Ladrech 15 Corte Fedora Greenbrae, CA 94904 Stuart Limited Partnership, Tracy LLC C/o Stuart Sobek P.O. Box 4699 Oceanside, CA 92052 GWC Milpitas, LLC C/o Ned Mccall 5480 Nw Front Ave Portland, OR 97210 WP Investments C/o David Denton 2101 Woodside Rd Woodside, CA 94062 OW Gilroy Town Plaza, LLC 1601 41st Avenue #202 Capitola, CA 95010


Mi Pueblo San Jose, Inc. Chapter 11 Case No.: 13-53893-ASW

SECURED CREDITORS LIST Gaytan Foods Attn: Ryan Gaytan PO Box 3385 Industry, CA 91744-0385 Wells Fargo Bank Financial Leasing P.O. BOX 7777 San Francisco, CA 94120 Mex Tamale Foods Attn: Alejandro Arreola 2003 Story Rd. Ste. 100 San Jose, CA 95122 Bay Cities Produce, Inc. Attn: Kenneth W. Jenner, Attorney 2109 Williams Street San Leandro, CA 94577 Freska Produce International, LLC. Attn: Jose Rodriguez 511 Mountain View Ave. Oxnard, CA 93030 Contra Costa County Treasurer-Tax Collector Attn: Eric Moe PO Box 967 Martinez, CA 94553 Markstein Beverage Co. Attn: Barbara Sady, Adm. Mgr. 60 Main Ave. Sacramento, CA 95838 Great America Financial Services Corp. Attn: Peggy Upton PO Box 609 Cedar Rapids, IA 52406


Crown Lift Trucks 1400 Crocker Hayward, CA 94544 TOYOTA FINANCIAL SERVICES DEPT 2431 Carol Stream, IL 60132 Wells Fargo Equipment Finance, A Division of Wells Fargo Bank, N.A. Attn: Robert E. Condon 300 Tri-State International, Ste. 400 Lincolnshire, IL 60069
