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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

PERKINS & MARIE CALLENDER’S INC., 1 et al.,

Debtors.

Chapter 11

Case No. 11-11795 (

___

)

Joint Administration Pending

DEBTORS’ APPLICATION PURSUANT TO 28 U.S.C. § 156(c), FED.R.BANKR.P. 2002 AND DEL.BANKR.L.R. 2002-1(f) FOR ENTRY OF AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF OMNI MANAGEMENT GROUP, LLC AS CLAIMS, BALLOTING, AND NOTICING AGENT

Perkins & Marie Callender’s Inc. (f/k/a The Restaurant Company) (“PMCI”) and its

above-captioned affiliated debtor entities (collectively, with PMCI, the “Debtors”), by and

through their undersigned proposed counsel, respectfully submit this application (the

“Application”), pursuant to 28 U.S.C. § 156(c), Rule 2002 of the Federal Rules of Bankruptcy

Procedure (the “Bankruptcy Rules”) and Rule 2002-1(f) of the Local Rules of Bankruptcy

Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the

“Local Rules”), for entry of an order authorizing the employment and retention of Omni

Management Group, LLC (“Omni”) as claims, balloting, and noticing agent in these chapter 11

cases (the “Claims Agent”). In support of the Application, the Debtors rely upon and incorporate

by reference the “Declaration of Brian Osborne in Support of the Debtors’ Application Pursuant

to 28 U.S.C. § 156(c), Fed.R.Bankr.P.2002 And Del.Bankr.L.R. 2002-1(f) For Entry of An Order

Authorizing the Employment and Retention of Omni Management Group, LLC as Claims,

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

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Balloting, and Noticing Agent” (the “Omni Declaration,” annexed hereto as Exhibit A). In

further support of this Application, the Debtors submit and incorporate by reference herein the

“Declaration of Joseph F. Trungale in Support of Debtors’ Chapter 11 Petitions and First Day

Motions”, filed contemporaneously with this Application, and respectfully state as follows:

Jurisdiction and Venue

  • 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and

1334. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2).

  • 2. Venue of the above-captioned cases and this Application are proper in this

District pursuant to 28 U.S.C. §§ 1408 and 1409.

  • 3. The statutory predicates for the relief requested herein are 28 U.S.C. § 156(c),

Bankruptcy Rule 2002 and Local Rule 2002-1(f).

Factual Background

  • 4. On June 13, 2011 (the “Petition Date”), each of the Debtors filed a voluntary

petition (collectively, the “Petitions”) for relief under chapter 11 of title 11 of the United States

Code, 11 U.S.C. §§101 et seq. (the “Bankruptcy Code”), and each thereby commenced chapter

11 cases (collectively, the “Chapter 11 Cases”) in this Bankruptcy Court (the “Court”). No

request has been made for the appointment of a trustee or examiner, and the Debtors continue to

operate their businesses and manage their properties as debtors-in-possession pursuant to

sections 1107(a) and 1108 of the Bankruptcy Code. As of the date hereof, no Official

Committee of Unsecured Creditors has been appointed in any of the Chapter 11 Cases.

  • A. The Debtors’ Businesses

    • 5. The Debtors are one of the leading operators of family-dining and casual-dining

restaurants, under their two (2) highly-recognized brands: (i) their full-service family dining

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restaurants located primarily in the Midwest, Florida and Pennsylvania under the name “Perkins

Restaurant and Bakery” (“Perkins”), and (ii) their mid-priced, full-service casual-dining

restaurants, specializing in the sale of pies and other bakery items, located primarily in the

western United States under the name “Marie Callender’s Restaurant and Bakery” (“Marie

Callender’s”).

  • 6. Through the Debtors’ Foxtail Foods bakery goods manufacturing operations

(“Foxtail”), the Debtors offer pies, muffin batters, cookie doughs, pancake mixes, and other

food products for sale to both company-owned and franchised Perkins and Marie Callender’s

restaurants, and to unaffiliated customers, such as food service distributors and supermarkets, as

well as on-line to the public.

  • 7. As of April 17, 2011, the Debtors owned and operated one hundred sixty (160)

Perkins restaurants located in thirteen (13) states, and franchised three hundred fourteen (314)

Perkins restaurants located in thirty-one (31) states and five (5) Canadian provinces. Similarly,

the Debtors owned and operated eighty-five (85) Marie Callender’s restaurants located in nine

(9) states, and franchised thirty seven (37) Marie Callender’s restaurants located in four (4)

states and Mexico. 2 Thus, the Debtors operate or franchise approximately six hundred (600)

restaurants throughout the United States, Canada and Mexico.*

  • 8. As of April 17, 2011, the Debtors employed approximately twelve thousand

three hundred fifty (12,350) employees, consisting of approximately five thousand three

  • 2 Included therein, MCPSI operates two (2) “Callender’s Grill” restaurants in Los Angeles, California and a single “East Side Mario’s” restaurant in Lakewood, California.

* Immediately prior to the Petition Date, the Debtors initiated a store reduction program to discontinue approximately sixty-five (65) corporate-operated restaurant locations, which will have the attendant effect of a reduction in workforce of approximately 2,500 people.

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hundred fifty (5,350) part-time employees and approximately seven thousand (7,000) full-time

employees.*

  • 9. The Debtors’ revenues for the year ended December 26, 2010 were

approximately $507 million.

  • B. Corporate Structure and Pre-Petition Capitalization

    • 10. Perkins & Marie Callender’s Holding Inc. (f/k/a The Restaurant Holding

Corporation) is a holding company that wholly owns PMCI. PMCI is the Debtors’ principal

operating entity and the primary obligor on the Debtors’ pre-Petition Date senior secured

working capital facility and their secured and unsecured bond debt. PMCI directly or indirectly

owns and operates the Debtors’ restaurant operations, oversees the Debtors’ franchised

restaurant operations, and owns and operates its Foxtail business.

  • 11. On September 24, 2008, PMCI issued $132 million in aggregate principal

amount of 14% Senior Secured Notes (the “Senior Secured Notes”), with a maturity date of

May 31, 2013 and interest payable semi-annually on May 31 and November 30 of each year.

Prior thereto, on September 21, 2005, PMCI issued $190 million of 10% Senior Notes (the

“Senior Notes”), with a maturity date of October 1, 2013 and interest payable semi-annually on

April 1 and October 1 of each year. Concurrently with the issuance of the Senior Secured

Notes, PMCI and PMC Holding entered into a Credit Agreement dated as of September 24,

2008 (as amended, the “Credit Agreement”) with Wells Fargo Capital Finance, LLC (f/k/a

Wells Fargo Foothill, LLC) as the lender and administrative agent (the “Credit Facility Agent”),

consisting of a revolving credit facility in favor of PMCI, as borrower, of up to $26,000,000,

with a sub-limit of $15,000,000 for the issuance of letters of credit (collectively, the “Credit

Facility”). As of the Petition Date, approximately $103,000,000 in aggregate principal amount

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of the Senior Secured Notes are outstanding, $190,000,000 in aggregate principal amount of the

Senior Notes are outstanding, and approximately $10,060,000 in principal amount is

outstanding under the Credit Facility (comprised solely of outstanding letters of credit).

  • 12. Effective April 30, 2011, PMCI and various of the other Debtors entered into

two (2) forbearance agreements (collectively, the “Forbearance Agreements”), one (1) with the

holders of in excess of eighty (80%) percent in aggregate principal amount of the Senior Notes

(the “Senior Note Forbearance Agreement”), and one (1) with the lender and Credit Facility

Agent under the Credit Agreement.

  • 13. In the weeks preceding the Petition Date, the Debtors entered into a

“Restructuring Support Agreement” dated as of June 6, 2011 with the holders of the Senior

Notes signatory to the Senior Note Forbearance Agreement and the holders of one hundred

(100%) percent of the Senior Notes (collectively, the “Restructuring Support Parties”) designed

to mutually and consensually develop and agree upon the parameters of a reorganization

program for the Debtors that will, among other things, delever the Debtors’ capital structure,

and thereby establish a pre-filing blueprint for an efficient and effective chapter 11

reorganization process. In connection with entering into the Restructuring Support Agreement,

the Debtors and the Restructuring Support Parties also negotiated the principal terms of the

Debtors’ plan of reorganization, and such plan of reorganization and the accompany disclosure

statement will be filed with the Court on or before July 14, 2011 in accordance with the

milestones contained in the Restructuring Support Agreement.

Relief Requested

  • 14. By this Application, the Debtors request the entry of an order pursuant to 28

U.S.C. § 156(c), Bankruptcy Rule 2002, and Local Rule 2002-1(f) authorizing and approving

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the employment and retention of Omni as claims, balloting, and noticing agent in the Chapter

11 Cases pursuant to the terms set forth in that certain letter agreement dated as of April 13,

2011 between the Debtors and Omni (the “Agreement”), 3 a copy of which is attached as Exhibit

B.

Basis for Relief Requested

  • 15. The relief requested herein is appropriate under 28 U.S.C. § 156(c), which

governs staffing and expenses of the Bankruptcy Court and states as follows:

Any court may utilize facilities or services, either on or off the court’s premises, which pertain to the provision of notices, dockets, calendars, and other administrative information to parties in cases filed under the provisions of title 11, United States Code, where the costs of such facilities or services are paid out of the assets of the estate and are not charged to the United States.

28 U.S.C. § 156(c).

  • 16. In addition, Local Rule 2002-1(f) requires a debtor to file an application to

retain a notice and/or claims clerk within ten (10) days of the Petition Date in all cases with more

than 200 creditors. The Debtors believe that the number of creditors in these cases will likely

exceed that number. Thus, pursuant to Local Rule 2002-1(f) and for the reasons set forth below,

the Debtors believe it is necessary and in the best interests of their creditors and estates to engage

Omni to act as the Claims Agent in order to assume full responsibility for, among other things,

the distribution of notices and proof of claim forms and the maintenance, secondary processing

and docketing of all proofs of claim filed in these cases.

  • 17. The Debtors have identified potentially hundreds of entities or persons to whom

notice must be given for various purposes in these Chapter 11 Cases, making utilization of an

  • 3 Any summary of, or reference to, the terms and conditions of the Agreement herein is qualified in its entirety by the actual terms and conditions of the Agreement. To the extent there is any inconsistency between any such summary or reference herein and the actual terms and conditions of the Agreement, the actual terms and conditions of the Agreement shall control.

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outside claims, noticing and balloting agent appropriate. It appears that noticing, receiving,

docketing and maintaining proofs of claim would impose heavy administrative and other

burdens upon the Court and the Office of the Clerk of the United States Bankruptcy Court for

the District of Delaware (the “Clerk”). Upon information and belief, preparing and serving the

notices on all such creditors and parties in interest, and docketing and maintaining the large

number of proofs of claim that may be filed in the Chapter 11 Cases, would strain the resources

of the Clerk.

  • 18. If approved, the employment of Omni as the Claims Agent will (i) relieve the

Clerk of significant administrative burdens, (ii) avoid delay in the management and processing

of proofs of claim, and (iii) effectively and efficiently assist the Debtors with the task of

sending notices to creditors and other parties in interest, including plan solicitation packages.

  • 19. Accordingly, the Debtors propose to engage Omni in these Chapter 11 Cases.

Services to Be Provided by Omni 4

  • 20. As the Claims Agent, Omni would be authorized, at the Debtors’ request, to

perform, without limitation, the following services listed in Local Rule 2002-1(f): (i) prepare

and serve some or all notices required in these Chapter 11 Cases, (ii) maintain copies of all

proofs of claim and proofs of interest filed in these cases, (iii) maintain the official claims

register, (iv) maintain an up-to-date mailing list for all entities who have filed proofs of claim

and/or requests for notices in these cases, (v) assist the Debtors with the reconciliation and

resolution of claims, and (vi) mail and tabulate ballots for purposes of voting on any plan in

these Chapter 11 Cases.

  • 4 This only serves as a summary of the services to be provided. If there are any discrepancies between the Application and the services identified in the Agreement, the Agreement shall govern.

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Omni’s Qualifications

  • 21. Omni is well qualified to perform the various services set forth herein. Omni

specializes in providing claims management consulting and computer services to chapter 11

debtors. In addition to providing such services to the Debtors in these Chapter 11 Cases, Omni

has performed similar services in many other chapter 11 cases.

Terms of Omni’s Engagement

  • 22. As compensation for services provided, the Debtors propose to compensate

Omni on the terms and conditions set forth in the Agreement. The Debtors and Omni (subject

to the Court’s authorization hereof) agree that Omni will bill the Debtors monthly for services

rendered to the Debtors during the preceding month as set forth in the Agreement and in the

proposed order approving this Application. The Debtors have also provided a deposit to Omni

in the amount of twenty-five thousand dollars ($25,000) in connection with these Chapter 11

Cases. The Debtors believe that the proposed rates to be charged by Omni are reasonable and

appropriate for services of this nature.

  • 23. Based upon Omni’s ability to provide claims, noticing and balloting services in a

cost-effective manner, the Debtors believe that Omni is qualified to serve in these Chapter 11

Cases and that the employment and retention of Omni as the Claims Agent is in the best interest

of the Debtors, their estates and creditors. As a result, the Debtors request authority to

compensate and reimburse Omni in accordance with the payment terms, procedures and

conditions set forth in the Agreement and in the proposed order approving this Application. In

an effort to reduce the administrative expenses related to Omni’s retention, no fee application or

other filing with this Court will be required prior to the payment of Omni’s fees and expenses.

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The prices set forth in the Agreement are at least as favorable as those charged by Omni to

other chapter 11 debtors for similar services under similar circumstances.

  • 24. Pursuant to section 503(b)(1)(A) of the Bankruptcy Code, the Debtors hereby

request that the fees to be charged by Omni, together with its necessary and actual expenses, be

allowed as administrative expenses of the Debtors’ estates. As an administrative agent and an

adjunct to the Court, the Debtors do not believe that Omni is a “professional” whose retention is

subject to approval under section 327 of the Bankruptcy Code or whose compensation is subject

to approval of the Court under sections 330 and 331 of the Bankruptcy Code. Specifically, the

Debtors propose to compensate Omni on a monthly basis for those services performed by Omni

during the preceding calendar month, on or after that date which is ten (10) calendar days

following service of the relevant monthly invoice on each of: (i) the Debtors, (ii) counsel for the

Debtors, (iii) the Office of the United States Trustee, and (iv) counsel for any statutory

creditors’ committee that has been appointed in these Chapter 11 Cases (collectively, the

“Notice Parties”).

  • 25. In the event that one or more of the Notice Parties objects to the invoice within

the ten (10) day period following service of a monthly invoice as provided for herein, the

Debtors will pay Omni only the undisputed portion of the invoice, if any. If an objection to an

invoice is made, the objecting party shall schedule a hearing before the Court to consider the

disputed invoice or the disputed portion thereof, as applicable. If any dispute arises between

Omni and the Debtors with respect to fees and expenses, such dispute shall be presented to the

Court for resolution. Unless otherwise consensually resolved between the Debtors and Omni,

the Debtors shall pay the disputed portion of any such invoice to Omni only upon authorization

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of the Court that such disputed portion, or a sub-portion thereof, shall be paid, following notice

and hearing thereon.

  • 26. Omni will comply with all requests of the Clerk and follow the guidelines

promulgated by the Judicial Conference of the United States for the implementation of 28

U.S.C. § 156(c).

  • 27. Notwithstanding any provision to the contrary in the Agreement, during the

pendency of these Chapter 11 Cases any limitation of liability or limitation on any amounts to

be contributed by Omni under the terms of the Agreement shall be eliminated in its entirety.

Omni’s Disinterestedness

  • 28. Although the Debtors do not propose to retain Omni under section 327 of the

Bankruptcy Code, to the best of the Debtors’ knowledge, and except as disclosed in the Omni

Declaration, the officers and employees of Omni: (a) do not have any adverse connection with

the Debtors, the Debtors’ creditors or any other party in interest or their respective attorneys

and accountants, the United States Trustee or any person employed in the office of the United

States Trustee, or any United States Bankruptcy Judge for the District of Delaware; and (b) do

not hold or represent an interest adverse to the Debtors’ estates with respect to the matters for

which Omni will be employed.

  • 29. To the best of the Debtors’ knowledge, Omni is a “disinterested person” as that

term is defined in 11 U.S.C. § 101(14), as modified by 11 U.S.C. § 1107(b), in that its officers

and employees:

  • a. are not creditors, equity security holders or insiders of the Debtors;

  • b. are not and were not, within two years before the date of the filing of the Debtors’ Chapter 11 Cases, directors, officers or employees of the Debtors; and

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  • c. do not have an interest materially adverse to the interests of the Debtors’ estates or any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the Debtors.

  • 30. If any new facts or relations are discovered, Omni will supplement its disclosure

to the Court.

Notice

  • 31. The Debtors will serve notice of this Application upon: (i) the Office of the

United States Trustee; (ii) the Debtors’ consolidated list of creditors holding the forty (40)

largest unsecured claims; (iii) counsel to the agent for the Debtors’ pre-petition Credit Facility

and post-petition debtor-in-possession financing facility; (iv) counsel to the indenture trustee

for the Senior Secured Notes; (v) counsel to the indenture trustee for the Senior Notes; and (vi)

counsel to the Restructuring Support Parties. Notice of this Application and any order entered

hereon will be served in accordance with Local Rule 9013-1(m). In light of the nature of the

relief requested, the Debtors submit that no other or further notice is necessary.

No Prior Request

  • 32. No prior application for the relief requested herein has been made to this or any

other court.

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WHEREFORE, the Debtors respectfully request that this Court enter an order, in

the form attached as Exhibit C, (i) authorizing the Debtors to employ and retain Omni as the

Claims Agent and (ii) granting such other and further relief as is appropriate.

Dated: June 13, 2011 Wilmington, Delaware

Respectfully submitted,

YOUNG CONAWAY STARGATT & TAYLOR, LLP

By:

 

/s/ Robert S. Brady Robert S. Brady (No. 2847) Robert F. Poppiti, Jr. (No. 5052) The Brandywine Building 1000 West Street, 17 th Floor P.O. Box 391 Wilmington, DE 19801 Telephone: (302) 571-6600

And

Facsimile:

(302) 571-1253

TROUTMAN SANDERS LLP

Mitchel H. Perkiel Brett D. Goodman The Chrysler Building 405 Lexington Avenue

New York, NY 10174 Telephone: (212) 704-6000

Facsimile:

(212) 704-6288

Proposed Counsel for Perkins & Marie Callender’s Inc., et al. Debtors and Debtors-in-Possession

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EXHIBIT A

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

PERKINS & MARIE CALLENDER’S INC., 1 et al.,

Debtors.

Chapter 11

Case No. 11-11795 (

___

)

Joint Administration Pending

DECLARATION OF BRIAN OSBORNE IN SUPPORT OF THE DEBTORS’ APPLICATION PURSUANT TO 28 U.S.C. § 156(C), FED.R.BANKR.P. 2002 AND DEL.BANKR.L.R. 2002-1(F) FOR ENTRY OF AN ORDER AUTHORIZING THE EMPLOYMENT AND RETENTION OF OMNI MANAGEMENT GROUP, LLC AS CLAIMS, BALLOTING, AND NOTICING AGENT

I, Brian Osborne, under penalty of perjury, declare as follows:

  • 1. I am a member of Omni Management Group, LLC (“Omni”), whose offices are

located at 1120 Avenue of the Americas, 4th Floor, New York, New York 10036, telephone

number (212) 302-3580. The matters set forth herein are made of my own personal knowledge

and, if called and sworn as a witness, I could and would testify competently thereto.

  • 2. This Declaration is made in support of the Debtors’ Application pursuant to 28

U.S.C. § 156(c), Rule 2002 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy

Rules”) and Rule 2002-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the

United States Bankruptcy Court for the District of Delaware (the “Local Rules”), for entry of an

order authorizing the employment and retention of Omni Management Group, LLC (“Omni”) as

claims, balloting, and noticing agent for the above captioned Debtors (collectively, the

“Debtors”), which has been filed contemporaneously herewith (the “Application”).

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

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3.

As agent and custodian of Court records pursuant to 28 U.S.C. § 156(c), Omni

will perform, at the request of the Office of the Clerk of the Court (the “Clerk’s Office”), the

noticing and claims related services specified in the Application. In addition, at the Debtors’

request, Omni will perform such other noticing, claims, technical, and support services specified

in the Application.

  • 4. Omni is one of the country’s leading chapter 11 administrators, with experience in

noticing, claims administration, solicitation, and facilitating other administrative aspects of

chapter 11 cases. Omni has substantial experience in matters of this size and complexity, and

has acted as the official notice and claims agent in many large bankruptcy cases pending in this

district and other districts nationwide. See, e.g., Mervyn’s Holdings, LLC, et al., Case No. 08-

11586 (Bankr. D. Del. July 29, 2008); In re Innkeepers USA Trust, Case No. 10-13800 (Bankr.

S.D.N.Y. July 19, 2010); In re AGT Crunch Acquisition, LLC, Case No. 09-12889 (Bankr.

S.D.N.Y., May 6, 2009); In re Pacific Energy Resources, Ltd., Case No. 09-10785 (Bankr. D.

Del. Mar. 10, 2009); In re Estate Fin. Mortgage Fund LLC, Case No. 08-11535 (Bankr. C.D.

Cal. Oct. 8, 2008); In re ComUnity Lending, Inc., Case No. 08-50030 (Bankr. N.D. Cal. Jan. 22,

2008); In re Refco Commodity Mgmt., Inc., Case No. 06-12436 (Bankr. S.D.N.Y. Nov. 15,

2006); In re Owens Corning Sales, LLC, Case No. 00-3837 (Bankr. D. Del. Oct. 5, 2000).

  • 5. As claims, noticing and balloting agent in the Chapter 11 Cases, Omni would be

authorized, at the Debtors’ request, to perform the following services listed in Local Rule 2002-

1(f): (i) prepare and serve some or all notices required in these Chapter 11 Cases, (ii) maintain

copies of all proofs of claim and proofs of interest filed in these cases, (iii) maintain the official

claims register, (iv) maintain an up-to-date mailing list for all entities who have filed proofs of

claim and/or requests for notices in these cases, (v) assist the Debtors with the reconciliation and

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resolution of claims, and (vi) mail and tabulate ballots for purposes of plan voting in these

Chapter 11 Cases. In addition, at the Debtors’ request, Omni will perform such other noticing,

claims, technical, and support services as needed.

  • 6. Omni represents, among other things, the following:

    • (a) Omni is not a creditor of the Debtors;

    • (b) No professional of Omni is related to or connected to any United States Bankruptcy Judge for the District of Delaware or the United States Trustee or to any employee in the offices thereof.

    • (c) Omni will not consider itself employed by the United States government and shall not seek any compensation from the United States government in its capacity as the notice and claims agent in these Chapter 11 Cases;

    • (d) By accepting employment in these Chapter 11 Cases, Omni waives any rights to receive compensation from the United States government;

    • (e) In its capacity as the notice agent and claims agent in these Chapter 11 Cases, Omni will not be an agent of the United States and will not act on behalf of the United States;

    • (f) Omni will not employ any past or present employees of the Debtors in connection with its work as the notice and claims agent in these Chapter 11 Cases;

    • (g) In its capacity as notice and claims agent in these Chapter 11 Cases, Omni will not intentionally misrepresent any fact to any person;

    • (h) Omni shall be under the supervision and control of the Clerk’s Office with respect to the receipt and recordation of claims and claim transfers; and

    • (i) None of the services provided by Omni as notice and claims agent shall be at the expense of the Clerk’s Office.

  • 7. Although the Debtors do not propose to retain Omni under 11 U.S.C. § 327, to the

  • best of my knowledge, Omni and each of its employees are “disinterested persons,” as that term

    is defined in 11 U.S.C. § 101(14), and neither Omni nor any of its employees hold or represent

    an interest adverse to the Debtors’ estates related to any matter for which Omni will be

    employed. To the best of my knowledge, neither Omni nor any of its personnel have any

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    relationship with the Debtors that would impair Omni’s ability to serve as notice and claims

    agent in these Chapter 11 Cases. Omni may have relationships with certain of the Debtors’

    creditors as vendors or in connection with cases in which Omni serves or has served as claims

    and noticing agent for another chapter 11 debtor. To the best of my knowledge, such

    relationships are completely unrelated to this chapter 11 case. Additionally, Omni employees

    may, in the ordinary course of their personal affairs, have relationships with certain creditors of

    the Debtors. For example, one or more of Omni’s employees may have obligations outstanding

    with financial institutions that are creditors of the Debtors or may have used the Debtors

    services. To the best of my knowledge, such relationships, if any, are completely unrelated to

    these Chapter 11 Cases.

    • 8. Omni may also have relationships with other professionals to be retained by the

    Debtors. One former associate of Troutman Sanders LLP (“Troutman”), proposed counsel to the

    Debtors, is currently employed by Omni. Paul H. Deutch was a Troutman associate from 1999 to

    2009. Mr. Deutch’s work at Troutman was unrelated to the Debtors and these chapter 11 cases

    • 9. If any new facts or relationships are discovered, Omni will supplement its

    disclosure to the Court.

    • 10. In performing the services of notice and claims agent, Omni will charge the

    Debtors the rates set forth in the Engagement Letter, which is attached as “Exhibit B” to the

    Application. The rates set forth therein are at least as favorable as the rates that Omni charges in

    cases in which it has been retained to perform similar services.

    • 11. The Debtors request that the fees and expenses of Omni incurred in performing

    the services described above be treated as an administrative expense of the Debtors’ chapter 11

    estates and be paid by the Debtors in the ordinary course of business. As an administrative agent

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    and an adjunct to the Court, the Debtors do not believe that Omni is a “professional” whose

    retention is subject to approval under section 327 of the Bankruptcy Code or whose

    compensation is subject to approval of the Court under sections 330 and 331 of the Bankruptcy

    Code. Specifically, the Debtors propose to compensate Omni on a monthly basis for those

    services performed by Omni during the preceding calendar month, on or after that date which is

    ten (10) calendar days following service of the relevant monthly invoice on each of: (i) the

    Debtors, (ii) counsel for the Debtors, (iii) the Office of the United States Trustee, and (iv)

    counsel for any statutory creditors’ committee that has been appointed in these chapter 11 cases

    (collectively, the “Notice Parties”). In the event that one or more of the Notice Parties objects to

    the invoice within the ten (10) day period following service of a monthly invoice as provided for

    herein, the Debtors will pay Omni only the undisputed portion of the invoice, if any. If an

    objection to an invoice is made, the objecting party shall schedule a hearing before the Court to

    consider the disputed invoice or the disputed portion thereof, as applicable. Unless otherwise

    consensually resolved between the parties, the Debtors shall pay the disputed portion of any such

    invoice to Omni only upon authorization of the Court that such disputed portion, or a sub-portion

    thereof, shall be paid, following notice and hearing thereon. If any dispute arises between Omni

    and the Debtors with respect to fees and expenses, such dispute shall be presented to the Court

    for resolution.

    • 12. Omni will comply with all requests of the Clerk’s Office and the guidelines

    promulgated by the Judicial Conference of the United States for the implementation of

    28 U.S.C. § 156(c).

    • 13. The services provided by Omni will be administrative in nature and Omni will not

    provide services in the nature of legal representation and/or advice to the Debtor.

    YCST01:11162227.1

    5

    070242.1001

    Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

    and correct.

    Date: June 13, 2011

    /s/ Brian Osborne

    Brian Osborne Member Omni Management Group, LLC

    YCST01:11162227.1

    6

    070242.1001

    EXHIBIT B

    YCST01:11162227.1

    070242.1001

    @

    OMNI

    MANAGEMENT GROUP

    April 13, 2011

    FredGmnt Chief Financial Officer Perkins & Marie Callender's Inc. 6075 Poplar Ave., Ste. 800 Memphis, TN 38119

    Re:

    Retention of Omni Management Group

    Dear Mr. Grant:

    This letter (the "Agreement") will acknowledge that you have requested Omni Management Group, LLC ("Omni") to provide services to Perkins & Marie Callender's Inc. ("P&MC") and its related entities (collectively with P&MC, the "Companies") in preparation of, and in connection with, the Companies' anticipated chapter 11 filings. Omni will make itself available to the Companies, as requested, for the purposes of assisting the Companies with pre- and post-petition case administration matters including preparation and management of the creditor matrix, preparation of schedules of assets and liabilities and statement of financial affairs, claims management, noticing, plan solicitation and tabulation, distribution, the development and maintenance of an informational website and any other services as may be requested by the Companies.

    The services to be rendered by Omni will be billed at our normal hourly rates which mnge frOm $35.00 to $275.00 per hour as per the attached rate sheet. Rates are adjusted annually on January 2 nd of each year, and are subject to increases not to exceed ten (10%) percent per annum. Increases greater than ten (10%) percent per annum will be discussed with you, and be subject to your prior approval, before becoming effective.

    For all such services rendered, we require a $25,000 deposit, which such deposit must be replenished immediately prior to the commencement of the Companies' chapter 11 proceedings. All charges will be on a portal to portal basis plus out-of-pocket expenses. Omni shall be compensated on a monthly basis for those services performed by Omni during the preceding calendar month. Invoices are payable upon submission.

    1120 AVENUE OF THE AMERICAS, 4TH FLooR. NEW YORK, NEW YORK 10036 212.302.3580 TEL

    212.302.3820 FAX

    16501 VENTURA BOULEVARD, SUITE 440. ENCINO, CALIFORNIA 91436-2068 818.906.8300 TEL WWVv.OMNIMGT.COM

    818.783.2737 FAX

    Fred Grant April 13, 2011 Page 2

    @

    OMNI

    MANAGEMENT GROUP

    Each of Omni and the Companies, on behalf of themselves and their respective employees, agents, professionals and representatives, agrees to keep confidential all non­ public records, systems, procedures, software and other information received from. the other party in connection with the services provided under this Agreement; provided, however, that if either party reasonably believes that it is required to produce any such information by order of any governmental agency or other regulatory body it may, upon not less than five (5) business days' written notice to the other party, release the required information.

    The parties understand that the software programs and other materials furnished by Omni pursuant to this Agreement and/or developed during the course of this Agreement by Omni are the sole property of Omni. The term "program" shall include, without limitation, data processing programs, specifications, applications, routines, and documentation. The Companies agree not to copy or permit others to copy the source code from the support software or any other programs or materials furnished pursuant to this Agreement. The Companies further agree that any ideas, concepts, know-how or techniques relating to data processing or Omni's performance of its services developed

    during the course of its Agreement by Omni shall be the exclusive property of Omni. Upon the Companies' request at any time or times while this Agreement is in effect, Omni shall iminediately deliver to the Companies and/or the Companies' retained professionals, at the Companies' expense, any or all of the non-proprietary data and

    records held by Omni pursuant to this Agreement, Companies.

    in the form requested by the

    This Agreement is terminable at will by the parties hereto upon thirty (30) days written notice. In the event that this Agreement is terminated, regardless of the reason for such termination, Omni shall cooperate with the Companies to maintain an orderly transfer of all records, data and infonnation and record keeping functions, and shall

    1120 AVENUE OF THE AMERlCAS, 4TH fLOOR. NEW YORK NEW YORK 10036

    212.302.3580 TEL

    212.302.3820 FAX

    16501 VENTURA BOULEVARD, SUITE 440. ENCINO. CAlIFORNIA

    91436-2068

    818.906.8300 TEl

    818.783.2737 FAX

    Fred Grant

    13,2011

    :-;

    @

    OMNI

    MANAGEMENT GROUP

    aU necessary staff, services and assistance required for an orderly tra.'lSfer. Cc.mjJanlies agree to pay for such services in accordance wi.th Omni's then existing for such services.

    The

    Please aclcnt1fwled,'e the above by signing and returning Ii copy of this letteL

    Sh01dd you have any

    regarding the above, please do not hesitate ~

    me.

    Ene.

    cc:

    Santar lasci ylitchel H. Perkiel

    Robert

    Eric Schwarz

    Brian K Osborne

    PERKINS & MARIE CALLENDER INC.

    H20 AVENUE Of THE AM15RlCAS, 4TH HoOR. NEW YORK NEW YORK 10036

    GOULiVARD. SUITE 440, ENCINO. CALtfORN1A 91436·2{)68 Viv\W.OMN1 MGTCOM

    2123023580 TEL

    212.302.3320 fAX

    818.906.8300 TEl.

    818.783.2737

    OMNI MANAGEMENT GROUP, LLC

    www.omnimgt.com

    Rate Sheet

    Rates Effective: January 2, 2011

    iUST REPORTING COMPUANCE

    Slandard senrice rates II~

    ;(e.g ., aSSist debtors to satisfy juriSdictiOnal requirements, preparation

    I

    ;of monthly oDe!3tiM and post-COnfirmation reports)

     

    I

       

    UQUIOATlNG/DISBURSING AGENT

    SIandard seNice rates apply!

    (e.g ., comply with Plan requirements, preparatlon of diSbursement

    1

    1

    reports, payout calculations. check generatiOn. bank reeonciflaliOns)

    1

     

    MISCE !.ANEOUS

     
     

    Telephone c\'IaI'Qe$

    At cost

     

    DeliverY

    At cost

    I

    Archival DVDlCD-Rom

    $40.00 oer coPli

    20f2

    EXHIBIT C

    YCST01:11162227.1

    070242.1001

    IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

    In re:

    PERKINS & MARIE CALLENDER’S INC., 1 et al.,

    Debtors.

    Chapter 11

    Case No. 11-11795 (

    ___

    )

    Jointly Administered

    Ref. Docket

    No.

    _____

    ORDER PURSUANT TO 28 U.S.C. § 156(c), FED.R.BANKR.P. 2002 AND DEL.BANKR.L.R. 2002-1(f) AUTHORIZING THE EMPLOYMENT AND RETENTION OF OMNI MANAGEMENT GROUP LLC AS CLAIMS, BALLOTING, AND NOTICING AGENT

    Upon consideration of the Debtors’ Application Pursuant to 28 U.S.C. § 156(c),

    Fed.R.Bankr.P. 2002 and Del.Bankr.L.R. 2002-1(f) for Entry of an Order Authorizing the

    Employment and Retention of Omni Management Group LLC as Claims, Balloting, and

    Noticing Agent (the “Application”) 2 the Court finds that: (i) it has jurisdiction over this matter

    pursuant to 28 U.S.C. §§ 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. §

    157(b)(2); (iii) venue of these cases and the Application are proper in this District pursuant to 28

    U.S.C. §§ 1408 and 1409; and (iv) notice of the Application and the hearing thereon was

    sufficient under the circumstances; and upon the Declaration of Jay Trungale in Support of

    Debtors' Chapter 11 Petitions and First Day Motions, the Omni Declaration, and the record

    herein, and after due deliberation, good and sufficient cause exists for the relief requested.

    Accordingly, it is hereby,

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

    • 2 Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Application.

    YCST01:11162227.1

    070242.1001

    ORDERED, ADJUDGED AND DECREED that,

    • 1. The Application is granted.

    • 2. Effective as of the Petition Date, Omni Management Group LLC (“Omni”) is

    appointed as the claims, noticing, and balloting agent in these Chapter 11 cases (the “Claims

    Agent”) pursuant to 28 U.S.C. § 156(c), Bankruptcy Rule 2002 and Local Rule 2002-1(f), and

    is authorized to perform the services set forth in the Application and the Agreement as

    requested by the Clerk or the Debtors on the terms and conditions of the Agreement, as

    modified by this Order; provided, however, that Omni’s assistance with the preparation of the

    Debtors’ schedules of assets and liabilities and statements of financial affairs to be filed by the

    Debtors in these Chapter 11 Cases is limited to ministerial functions.

    • 3. Notwithstanding any provision to the contrary in the Agreement, during the

    pendency of these Chapter 11 Cases any limitation of liability or limitation on any amounts to

    be contributed by Omni under the terms of the Agreement shall be eliminated in its entirety.

    • 4. If Omni is unable to provide the services set forth in the Agreement, Omni will

    immediately notify the Clerk, the Debtors and their counsel, and cause all original proofs of

    claim, computer information, and other records, data and information to be turned over to

    another claims agent with the advice and consent of the Clerk, the Debtors and their counsel.

    • 5. Omni shall continue to serve as the Claims Agent until relieved of such duties by

    order of the Court.

    • 6. The fees and expenses of Omni incurred in the performance of services in

    accordance with the Agreement and this Order shall be treated as administrative expenses of the

    Debtors’ chapter 11 estates and shall be paid by the Debtors in the ordinary course of business,

    without the need to file fee applications with this Court. The Debtors will compensate Omni on

    YCST01:11162227.1

    2

    070242.1001

    a monthly basis for those services performed by Omni during the preceding calendar month, on

    or after that date which is ten (10) calendar days following service of the relevant monthly

    invoice on each of the Notice Parties; provided, however, that in the event that one or more of

    the Notice Parties objects to the invoice within the ten (10) day period following service of a

    monthly invoice as provided for herein, the Debtors will pay Omni only the undisputed portion

    of the invoice, if any. If an objection to an invoice is made, the objecting party shall schedule a

    hearing before the Court to consider the disputed invoice or the disputed portion thereof, as

    applicable. Unless otherwise consensually resolved between the Debtors and Omni, the

    Debtors shall pay the disputed portion of any such invoice to Omni only upon authorization of

    the Court that such disputed portion, or a sub-portion thereof, shall be paid, following notice

    and hearing thereon. Omni shall first exhaust any and all prepetition deposits from the Debtors

    in satisfaction of any allowed fees and expenses in these Chapter 11 Cases prior to seeking

    further payments from the Debtors on account of such fees and expenses.

    • 7. Notwithstanding anything to the contrary in this Order, any payment made or to

    be made under this Order, and any authorization contained in this Order, shall be subject to the

    requirements imposed on the Debtors under any Order(s) of this Court approving the Debtors’

    debtor-in-possession financing facility and use of cash collateral and any budget in connection

    therewith.

    • 8. This Court shall retain jurisdiction to hear and determine all matters arising from

    or related to the interpretation and implementation of this Order.

    June

    _____

    , 2011

    YCST01:11162227.1

    UNITED STATES BANKRUPTCY JUDGE

    3

    070242.1001