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12-50073-lmc Doc#146 Filed 03/12/12 Entered 03/12/12 07:48:33 Main Document Pg 1 of 7

SO ORDERED. SIGNED this 09th day of March, 2012.

________________________________________ LEIF M. CLARK UNITED STATES BANKRUPTCY JUDGE

____________________________________________________________

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1.

IBC is a secured creditor of the estate having extended prepetition loans

on the following basis: 1. 11. 111.


IV.

Delta- Note in the amount of$1,500,000.00 dated April23, 2007; Delta- Note in the amount of $2,000,000.00 dated April1, 2007; Delta- Note in the amount of$6,000,000.00 dated June 8, 2010; Staci Produce (Superior) - Note in the amount of $2,000,00.00 dated March 3, 2005;

v.

Staci Properties (Superior) -Note in the amount of $2,400,000.00 dated March 3, 2005; and

v1.

Alted, Ltd.- Note in the amount of$1,300,000.00 dated December 12,2005.

2.

As of January 4, 2012, IBC asserts that the combined outstanding balance

owed to IBC by the Debtors amounts to $6,455,615.00. IBC asserts a security interest that globally attaches to all of Debtors' real and personal property except Debtors rolling stock, including real property, furniture, fixtures and equipment, inventory, account receivables, general intangibles and funds on deposit at IBC. IBC's security interest constitutes a first and prior security interest above all other collateral rights of creditors and parties-in-interest, and attaches to Debtors receivables/cash, proceeds and deposits within Debtors' bank accounts at IBC as it applies to non-trust creditors. This order does not establish or assign priority to any of the liens asserted to IBC as to PACA trust assets.
3.

On December 27, 2011, IBC made a $450,000.00 loan advance to the

Delta Produce, L.P. operating account with IBC, Account number ****9601 (the "Delta Produce Operating Account"). From December 27, 2011 through the Petition Date, a

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number of suppliers made ACH deposits into this account. As of December 30, 2011, the total amount in this account was $1,387.74. 4. On December 28, 2011, the Debtors transferred $730,000.00 to a Delta

Produce, L.P. bank account number ******7101 from the Delta Produce Operating account. 5. On December 28, 2011, the Debtors transferred $63,000.00 to account

******801 from the Delta Produce Operating Account. As of December 30, 2011, there was $153,064.18 in this account. 6. *******7101. As of December 30, 2011, there was $1,032,488.51 in account Debits from December 28, 2011 through December 30, 2011 were

$8,037.35. No debits were made after that date until the accounts were frozen. 7. Under any test, the $450,000.00 advanced by IBC, less $8,037.35, remain

identifiable from IBC Loan proceeds. 7. The Debtors shall return this $450,000.00, less the $8,037.25, plus the

prepetition cashier's check issued by IBC in the approximate amount of $27,000.00 and any funds of the Debtors within accounts at IBC under the name of Staci Property and/or Atled to IBC and shall return to IBC any additional IBC cash collateral - not subject to claims of PACA Trust Fund claimants - save and except that amount required to fund authorized cash collateral expenditures. IBC consents to the Debtors' use of cash

collateral as agreed to the terms and conditions herein. IBC and Debtors will file a motion seeking approval to enter into a Debtor-in-Possession Loan Agreement providing for loan advances by IBC in amounts required to fund the approved cash collateral budget for a term agreeable to the parties. The Court makes no findings at this time as to the

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ownership or collateral rights to the cash within the IBC accounts maintained by Atled, Ltd. and Staci Properties, Ltd. All parties-in-interest reserve all claims to the proceeds in the Atled, Ltd. and Staci, Ltd. accounts to a later date. 8. Debtors will segregate and account for all cash within the IBC accounts

and distinguish funds which are subject to PACA Trust Fund claims - and shall create and maintain separate DIP accounts for the PACA/\IBC cash collateral. It is therefore, ORDERED, ADJUDGED and DECREED that the Debtors are authorized to use IBC's cash collateral to pay the post-petition operating expenses of the business as specifically listed on Exhibit "A", including taxes, fuel, rentals, insurance, payroll, payroll expenses, utility charges, and the costs of supplies used in the operation of the business; it is further, ORDERED, ADJUDGET and DECREED that Debtors shall be entitled to use IBC cash collateral on a monthly basis in concurrence with the Budget attached hereto as Exhibit "A". IBC, as DIP Lender, will make monthly deposits into the post-petition DIP operating accounts at Frost Bank pending an Order from the Court approving DIP Financing. The Debtors shall only be permitted to spend the cash collateral of IBC on the items listed in the 90 day budget attached hereto as Exhibit "A"; it is further, ORDERED, ADJUDGED and DECREED that IBC is automatically granted a perfected first and priming lien on all the Debtors' real property and real property income generated in the form of rents and a lien on all automobiles and trucks and other equipment to the extent the cash collateral of IBC is used to pay any insurance costs; IBC shall have no priority or primary liens or claim to or against any property that constitutes trust property under the Perishable Agricultural Commodities Act ("P ACA"), but it shall

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retain its lien on cash, accounts receivables and proceeds (to the extent that such assets are not PACA trust funds) except unto the extent that Debtors' PACA claims are subject to the IBC prepetition security interest, and a second lien on all PACA trust assets not necessary to pay PACA claims, these liens shall be deemed perfected in compliance with state law; it is further, ORDERED, ADJUDGED and DECREED that the Debtors agree to maintain key man life insurance, health insurance and insurance on all business assets as provided in the attached Exhibit "A" or through IBC's forced insurance; it is further ORDERED, ADJUDGED and DECREED that Debtors shall provide to IBC, any and all financial records data and documents required by the International Bank of Commerce to the extent such information is required to confirm the necessity for use of cash collateral and provide details related to any expense listed within the budget; it is further ORDERED, ADJUDGED and DECREED that the Debtors shall begin marketing the Debtors' assets for sale as a going concern immediately. The Debtors shall hire CBRE, subject to Court Order approving such retention, to list the real property and operational assets in conjunction with this marketing effort. The Debtors shall hire a broker, to be determined, to sell all trucks, trailers and other unencumbered rolling stock. The Debtors shall return all leased trucks and rolling stock and all purchased rolling stock with no equity to the lessor or financer where appropriate within fourteen (14) days of entry of this Order or as soon as those vehicles can be accepted by lenders or lessors. Debtors shall provide regular reports to IBC of Debtors marketing and sales efforts, including any conversations with CBRE; it is further

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ORDERED, ADJUDGED and DECREED that IBC shall retain rights to reject any decision of the Debtors to surrender a leased or financed piece of rolling stock prior to the Debtors' ultimate surrender to the lessor or financer of that rolling stock; it is further ORDERED, ADJUDGED and DECREED that IBC retain all rights to reject Debtors proposal to lease any real property of Debtors. In the event Debtor does enter into a lease of real property to a third-party lease, IBC security interest shall be perfected and attach to all rents, proceeds or income generated by said rental agreement except to the extent that such rentals are deemed to constitute PACA trust assets.
It is further

ORDERED, ADJUDGED and DECREED that the Debtors shall propose a marketing plan for selling all other office furniture, equipment and other miscellaneous personal property, except for items that relate to the sale of the Debtors' business operations as a going concern (produce coolers, sorters, etc.), within twenty-one (21) days of entry of this Order. All miscellaneous equipment related to the preservation or sale of produce will be sold by CBRE in connection with the Debtors' real property. IBC shall be provided with the identity and contact information of the CBRE employee in charge of the Debtors marketing effort, and IBC shall be entitled to communicate with CBRE; it is further ORDERED, ADJUDGED and DECREED that Debtors shall, within sixty (60) days hereof, provide to IBC a list of potential buyers and terms of purchase for all or part of the IBC real property collateral, who have made offers, at least one of which is acceptable to IBC; it is further

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ORDERED, ADJUDGED and DECREED that if the Debtors default on any of the conditions listed above within sixty (60) days from the date hereof, IBC is required to notify the Debtors and Debtors' attorneys of the default. If the default is not cured within five (5) days of the date of the notice, the Debtors are denied further use of cash collateral. The Debtors shall be allowed to cure three (3) notice of defaults; however, upon the fourth notice of default, the default cannot be cured without the consent of the International Bank of Commerce. Following the expiration of sixty (60) days of the date of this order - IBC may elect at its own discretion, to terminate the agreement for use of the IBC cash collateral, and may terminate financing under the DIP agreement. The International Bank of Commerce reserves all rights including dismissal, conversion to Chapter 7 of the Debtors' cases and/or termination of the automatic stay upon notice and hearing; it is further ORDERED, ADJUDGED and DECREED that the parties agree that any relief herein shall be without prejudice to the rights of any of the parties hereto to seek any other relief provided under the Bankruptcy Code; and it is further IT IS SO ORDERED ### Submitted by:
R. Glen Ayers Allen M. DeBard LANGLEY & BANACK, INC. 745 E. Mulberry, Suite 900 San Antonio, TX 78212

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