UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION. Chapter 11

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1 0 Heinz Binder (SBN 0) Robert G. Harris (SBN ) Roya Shakoori (SBN ) BINDER & MALTER, LLP Park Avenue Santa Clara, CA 00 Tel: (0) -00 Fax: (0) - Heinz@bindermalter.com Rob@bindermalter.com Roya@bindermalter.com Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC. Entered on Docket February 0, 0 EDWARD J. EMMONS, ACTING CLERK U.S. BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA IT IS SO ORDERED. Signed February 0, 0 Arthur S. Weissbrodt U.S. Bankruptcy Judge UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re: MI PUEBLO SAN JOSE, INC., Debtor. Case No. --ASW Chapter Date: February, 0 Time: : p.m. Place: Courtroom: 00 0 South First Street San Jose, CA Judge: Hon. Arthur S. Weissbrodt 0 POSTPETITION FINANCING PURSUANT TO U.S.C. 0,,,, AND ; (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 Upon the motion [Docket No. ] (the Motion ) of Mi Pueblo San Jose, Inc. ( Mi Pueblo or the Debtor ), debtor and debtor in possession, for entry of an interim order (this Interim Order ) and a Final Order (as defined herein), pursuant to sections 0,,,, and of title of the United States Code, U.S.C. 0- (the Bankruptcy Code ) Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

2 0 0 and Rules 00, 00, 00, and 0 of the Federal Rules of Bankruptcy Procedure (the 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 0,,, and of the Bankruptcy Code and Bankruptcy Rules 00, 00, and 0, that certain Debtor-in-Possession Term Loan/Lender Sponsored Transaction Term Sheet attached as Exhibit 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 this Interim Order, and as hereafter amended, restated, or otherwise modified from time to time in accordance with the terms thereof and of this Interim Order, the DIP Financing Documents ), 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 (c)(), (c)(), and (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 (c)() 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 herein and in the DIP Financing Documents; (iii) authorization and approval, pursuant to sections and of the Bankruptcy Code, to use cash collateral as the term is defined in section (a) of the Bankruptcy Code Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the DIP Term Sheet. Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

3 ( Cash Collateral ); (iv) modification of the automatic stay under section of the Bankruptcy Code to 0 0 the extent necessary to implement and enforce the terms and provisions of the DIP Financing Documents and this Interim Order; and (v) scheduling of a final hearing for entry of an order granting the relief requested in the Motion on a final basis (the Final Order ) and approving the form of notice with respect to the Final Hearing (as defined herein) in accordance with Bankruptcy Rules 00, 00, and 0. The Court having reviewed the Motion and all matters brought to the Court s attention at the preliminary hearing on the Motion, which was held on February, 0, in accordance with Bankruptcy Rule 00 (the Interim Hearing ), there having been due and sufficient notice under the circumstances of the Motion and the relief requested therein and the Interim Hearing, after due deliberation and consideration of all the pleadings filed with the Court, the record presented at the Interim Hearing and prior hearings in the Debtor s chapter case (the Bankruptcy Case ), 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, 0 (the Petition Date ), the Debtor filed a voluntary petition for relief under chapter of the Bankruptcy Code. The Debtor is now operating its businesses and managing its properties as debtor in possession pursuant to sections 0(a) and 0 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. Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

4 0 0 C. The Court has jurisdiction over this matter pursuant to U.S.C. (b) and. This is a core proceeding pursuant to U.S.C. (b)(). Venue of the Bankruptcy Case and the Motion in this District is proper pursuant to U.S.C. 0 and 0. D. The Debtor is obligated to repay certain prepetition obligations owing to Wells Fargo Bank, N.A. (the Prepetition Lender ) in the approximate amount of $,,. as detailed in the Declaration of Juvenal Chavez served and filed on February, 0 [Docket No. 0] (the Prepetition Debt Obligations ). 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 00 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 00 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. F. Subject to the provisions of the DIP Financing Documents and this Interim 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 0, 0, between, inter alia, the Debtor and the Prepetition Lender (the DPO Agreement ), and permit the Debtor to pursue a restructuring in accordance therewith. G. An immediate and critical need exists 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 will avoid irreparable harm to, among Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

5 0 0 other entities, the Debtor s estate, creditors, vendors, suppliers, customers, and employees. At this time, 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 0(b)() of the Bankruptcy Code; an administrative expense pursuant to section (a) or (b) of the Bankruptcy Code; unsecured debt having the priority afforded by section (c)() of the Bankruptcy Code; or secured debt as described in section (c)() or (c)() of the Bankruptcy Code except as set forth in this Interim Order. I. Good cause has been shown for the entry of this Interim Order. Among other things, entry of this Interim Order will minimize disruption of the Debtor s businesses and operations and permit 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 authorized hereunder 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. J. Upon entry of this Interim Order, the DIP Financing Documents (upon execution and delivery in accordance with this Interim Order, in the case of any DIP Financing Documents executed after entry of this Interim Order) shall constitute legal, valid, and binding obligations of the Debtor, enforceable in accordance with the terms of the DIP Financing Documents and this Interim 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

6 0 0 by the Court of this Interim Order. K. 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 this Interim 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 (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:. The Motion is granted on an interim basis and on the terms set forth herein. Any objections to the Motion with respect to the entry of this Interim Order that have not previously been withdrawn, waived, or resolved, and all reservations of rights included therein, are hereby denied and overruled on their merits. This Interim Order shall be valid, binding on all entities, and fully effective immediately upon its entry.. The Debtor is hereby 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 and this Interim 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 Interim Order and otherwise in accordance with the terms and conditions of this Interim Order), and to perform their obligations hereunder and thereunder, solely in accordance with, and subject to, the terms of this Interim Order, in compliance with (on a line-by-line basis) and for the purposes of funding those expenses set forth in the budget Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

7 0 0 attached as Exhibit A to the Notice of Filing [Docket No. 0] (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 weekending 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 (0%) of the amounts provided for in the Budget for each respective four-week period and (ii) no less than ninety percent (0%) 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 (0%) of the amount provided for in the Budget for each respective four-week period and (ii) no less than ninety percent (0%) 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 Interim Order shall not violate the provision in the DIP Term Sheet at Covenants in paragraph.c thereof.. From and after entry of this Interim 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 Interim 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

8 0 0 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.. Provided that the Debtor is not in default under the terms of this Interim Order or the DIP Financing Documents, the Debtor is hereby authorized to borrow up to an aggregate amount of $,,. pursuant to the DIP Financing Documents; provided, however, borrowings prior to entry of the Final Order shall be limited to an initial disbursement of $,,. (the Initial Disbursement ), which shall be funded by the DIP Lenders provided the conditions precedent to the closing of the DIP Facility are satisfied promptly after entry of this Interim Order, but no later than two days after entry of such order. Notwithstanding any other provision of this Interim Order, the DIP Agent and the DIP Lenders shall not have any obligation or commitment to make any DIP Loan pursuant to this Interim Order until the conditions precedent provided for herein and in the DIP Financing Documents, including, without limitation, the entry of an order (the Cha Cha Order ) in the chapter 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.. The DIP Financing Documents (upon execution and delivery in accordance with this Interim Order, in the case of any DIP Financing Documents executed after entry of this Interim 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 and this Interim Order.. Prior to entry of the Final Order, the DIP Financing Documents and this Interim Order shall govern the financial and credit accommodations to be provided to the Debtor by the DIP Agent and the DIP Lenders. Upon entry of the Final Order, the DIP Lenders shall fund the Debtor as provided in the DIP Financing Documents, subject to the DIP Term Sheet and the Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

9 0 0 Budget. Notwithstanding any other provision of this Interim Order or the DIP Financing Documents, the DIP Agent and the DIP Lenders shall be under no obligation to fund the DIP Loan, for any purpose, in an amount greater than the Initial Disbursement until entry of the Final Order.. 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.. 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 of this Interim Order.. 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. 0. The Debtor is authorized to use $,0,. (the Payoff Amount ) of the proceeds of the DIP Loan to 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, 0, 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, 0, by and between the Debtor and the Prepetition Lender, and all other agreements and documents Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

10 0 0 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 shall be deemed paid in full, (b) all Letters of Credit that remain outstanding as of the Prepetition Debt Payoff and fees associated therewith shall be fully cash collateralized, (c) the Prepetition Debt Documents shall be 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) shall be released without further order of the Court as provided in the DPO Agreement, and the Prepetition Lender shall promptly take all reasonable actions to effect the removal of any such 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 of the Bankruptcy Code is hereby vacated to effect any such filings.. As consideration for the DIP Loan, except for the Carve-Out, no other costs or administrative expenses, pursuant to sections 0(c) (except as set forth in this Interim Order), (b), and/or 0(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 case, and no priority claims are or will be prior to or on parity with the Superpriority Claims. In no event Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page 0 of POSTPETITION FINANCING Page 0

11 0 0 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 Interim 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.. As security for the DIP Loan, the DIP Agent, on behalf of the DIP Lenders, is hereby granted (collectively, the Priming Liens ), subject only to the Carve-Out: (a) except as otherwise set forth in this paragraph, pursuant to sections (c)(), (c)(), and (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 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 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

12 0 0 (d)(), 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 (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 (c)(), 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 (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 nonbankruptcy law; (ii) security interest of the Prepetition Lender in the cash that collateralizes the letters of credit (collectively, the Letters of 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. filed February, 0 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 this Interim Order or Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

13 0 0 the DIP Financing Documents to the contrary (but remaining subject to paragraph of this Interim 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; provided, that at the Final Hearing, the DIP Agent and the DIP Lenders reserve their rights with respect to the scope of any perfected security interest in the Excluded Leases, including, without limitation, the right to request that the Court approve the Priming Liens on the Excluded Leases, and all entities reserve all of their rights with respect thereto.. Except as expressly set forth in this Interim 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 of the Bankruptcy Code; and (b) the Priming Liens shall not be subordinated to or made pari passu with any other lien under section (d) of the Bankruptcy Code.. As used in this Interim Order, Carve-Out means: (a) unpaid fees of the Clerk of the Court and the U.S. Trustee pursuant to U.S.C. 0; (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,, or 0(a) of the 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 0,, or 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

14 0 0 aggregate amount not to exceed $00,000 in the aggregate, to the extent such fees and expenses are (i) subsequently allowed by the Court under sections 0,, or 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 or the appointment of a chapter trustee in the Bankruptcy Case, (i) the commissions and expenses of such trustee appointed in such chapter 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 of the Bankruptcy Code in an aggregate for the amounts in (i) and (ii) hereof not to exceed $0,000, to the extent such commissions, fees, disbursements, costs, and expenses in (i) and (ii) are (A) subsequently allowed by the Court under sections 0,, or 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 this Interim 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 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 this Interim Order or the DIP Financing Documents other than to Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

15 0 0 enforce the terms of this Interim Order, the 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 this Interim Order or the DIP Financing Documents. As long as no Event of Default (as defined herein) 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 0 and of the Bankruptcy Code.. For the entire amount of the DIP Loan Obligations, the DIP Agent, on behalf of the DIP Lenders, is granted superpriority claims, in accordance with the provisions of section (c)() of the Bankruptcy Code, over any and all administrative expenses, including, without limitation, all of the kind specified in sections 0,,, 0,, (c), 0(a), 0(b), 0(c), 0(a), 0(b), (c),,, or of the Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment lien or other consensual or nonconsensual 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 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 of the Bankruptcy Code, the DIP Loan shall also have superpriority over all administrative expenses of a chapter trustee and any chapter professionals to the extent such expenses exceed $0,000. 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

16 0 0 been or may be incurred in the Bankruptcy Case, in any conversion of the Bankruptcy Case to a proceeding pursuant to chapter 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 or any provision of this Interim Order or with the liens and security interests granted herein on, in and to the DIP Collateral.. The Debtor and its estate (and any entity acting on behalf of the Debtor) hereby 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 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 (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 (b)() of the Bankruptcy Code or otherwise; (iii) to seek a surcharge of the DIP Collateral under section 0(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 under section 0(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 this Interim 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.. 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

17 0 0 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 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 Interim Order.. 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 this Interim Order and the 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 Term Sheet or this Interim 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.. The automatic stay extant under section (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 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 this Interim Order. 0. 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 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

18 0 iii. iv. accordance with the DIP Financing Documents, this Interim Order, or the Final Order shall have been incorrect in any material respect when made or deemed made; The failure of the Debtor to comply in all material respects with any covenant, agreement, representation, warranty, term, or condition of this Interim Order, the Final Order, or the DIP Financing Documents; 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 () 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 () 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; 0 vi. vii. viii. 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 this Interim Order, the 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 this Interim Order, the Final Order, or the Cha Cha Order; provided, however, that any terms in the Final Order that are different from this Interim Order shall not constitute an Event of Default; The conversion of the Bankruptcy Case or the Cha Cha Bankruptcy Case to a case under Chapter of the Bankruptcy Code; 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 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

19 0 0 xii. xiii. xiv. xv. 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; 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; 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, this Interim Order, and the 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, this Interim Order, and the Final Order); (c) except as permitted by the DIP Financing Documents, this Interim Order, and the Final Order, permitting the use of any of the DIP Collateral or the Cha Cha Collateral pursuant to section (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 0(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; The filing or confirmation of a chapter 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 that does not indefeasibly repay the DIP Loan Obligations in full in cash on the effective date of such plan; or 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, this Interim Order, or the Final 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. Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page

20 (b) The Debtor making any payments or distributions, of any kind, to Juvenal 0 0 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 or this Interim 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 () 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 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 () business days notice, requesting relief from the automatic stay otherwise imposed pursuant to section 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page 0 of POSTPETITION FINANCING Page 0

21 0 0 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 this Interim 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 and this Interim 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.. Notwithstanding anything in this Interim 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 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 () 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 () 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 Case: - Doc# 0 Filed: 0/0/ Entered: 0/0/ :: Page of POSTPETITION FINANCING Page