In the United States Bankruptcy Court for the District of Delaware
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Case 17-11722 Doc 5 Filed 08/10/17 Page 1 of 13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Chapter 11 PEEKAY ACQUISITION, LLC, et al.,l Case No. 17-11722 ( \ Debtors (Joint Administration Requested) APPLICATION OF THE DEBTORS FOR ENTRY OF AN ORDER APPOINTING RUST CONSULTING/OMNI BANKRUPTCY AS CLAIMS AND NOTICING AGENT NUNC PRO ZUNC TO THE PETITION DATE The above-captioned debtors and debtors-in-possession (collectively, the "Debtors"), hereby submit this Application of the Debtors þr Entry of an Order Appointíng Rust Consulting/Omni Bankruptcy as Claims and Noticing Agent Nunc Pro Tunc to the Petition Date (the "section 156(c) Application"). In support of the Section 156(c) Application, the Debtors rely on the Declaration of Albert Altro in Support of Chapter I I Petition and First Day Pleadings (the "First Da)'Declaration"),' u, well as the Declaration of Paul Deutch in Support of the Application of the Debtors þr Entry of an Order Appointing Rust Consulting/Omni Bankruptcy as Claims and Noticing Agent Nunc Pro Tunc to the Petition Date (the "Deutch Declaration") attached hereto as "Exhibit 4," and respectfully represents and sets forth as follows: t The Debtors, along with the last four digits of each Debtor's tax identifìcation number, are: Peekay,Inc. (3429); Peekay Boutiques, lnc. (7972); Christals Acquisition, LLC (0391); Peekay Acquisition, LLC (0923); Peekay SPA, LLC (2765); ConRev,Inc. (2441); Condom Revolution, Inc. (6019); Charter Smith Sanhueza Retail,lnc. (8963);ZJ Gifts F-2, L.L.C. (3565); ZJ Gifts F-3, L.L.C. (3562); ZJ Gifts F-4, L.L.C. (8006); ZI Gifts F-5, L.L.C. (7062); ZI Gifts F-6, L.L.C. (a381); ZJ Gifts I-1, L.L.C. (5099);ZJ Gifts M-3, L.L.C. (8925);ZJ Glfts M-1, L.L.C. (7202); and ZI GiftsM-2,L.L.C. (6643). The Debtors' corporate headquarters and mailing address is 901 West Main Street, Suite A, Auburn, V/A 98001. 2 Except where otherwise indicated, capitalized terms used but not defined in this Section 156(c) Application have the meanings ascribed to them in the First Day Declaration. {1097.001-v/0041 960.} Case 17-11722 Doc 5 Filed 08/10/17 Page 2 of 13 JURISDICTION AND VENUE 1. The United States Bankruptcy Court for the District of Delaware (the "Court") has jurisdiction over this Section 156(c) Application pursuant to 28 U.S.C. $$ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29,2012. This matter is a core proceeding within the meaning of 28 U.S.C. $ 157(bX2), and the Court may enter a final order consistent with Article III of the United States Constitution.3 Venue is proper in this District pursuant to 28 U.S.C. $$ 1408 and 1409. 2. The predicates for the relief requested herein are section 156(c) of title 28 of the United States Code, rule 2002(f) of the Federal Rules of Bankruptcy Procedure (the'oBsnkluptçY Rules"), and Local Rule 2002-1(f). GENERAL BACKGROUND 3. On the date hereof (the oo&lili.eg-Darte"), the Debtors commenced the above- captioned chapter 11 cases (the "Chapter 11 Cases") by each filing a voluntary petition for relief under chapter l l of the Bankruptcy Code with the Court. 4. The Debtors continue to operate their business and manage their properties as debtors-in-possession, pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. As of the date of this Section 156(c) Application, no trustee, examiner or statutory committee has been appointed in these Chapter 11 Cases. 5. Additional information regarding the circumstances leading to the commencement of these Chapter 1 1 Cases and information regarding the Debtors' business and capital structure 3 Pursuant to rule 9013-1(Ð of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the "LeçA!-RulË"), the Debtors hereby con{irm their consent to entry of a final order by the Court in connection with this Section 156(c) Application if it is later determined that the Court, absent consent of the parties, cannot enter final orders or judgments consistent with Article III of the United States Constitution. { 1097.001-w0041960.} 2 Case 17-11722 Doc 5 Filed 08/10/17 Page 3 of 13 is set forth in detail in the First Day Declaration filed contemporaneously with this Section 156(c) Application and incorporated herein by reference. RELIEF' REOUESTED 6. By this Section 156(c) Application, the Debtors seek entry of an ordet, substantially in the form attached hereto, authorizing the employment and retention of Rust Consulting/Omni Bankruptcy ("Rust/Omni") as its claims and noticing agent (in such capacity, the "Claims Agent") for these Chapter 11 Cases pursuant to the terms of that certain services agreement, dated as of July 5,2017, by and between Rust/Omni and the Debtors (such agreement together with all amendments, modifications, renewals thereof and all documents ancillary thereto or otherwise entered into in connection therewith, are collectively referred to herein as the 'oservices Agreement"), a copy of which is attached hereto as "Exhibit B" and incorporated by reference herein. RUST/OMNI'S OUALIFICATIONS AND SERVICES A. Rust/Omni's Oualifications 7, Rust/Omni is one of the nation's leading chapter 11 administrators, with extensive experience in claims and notice processing. Indeed, Rust/Omni has developed efficient and cost- effective methods to handle properly the voluminous mailings associated with the claims and noticing portions of chapter 11 cases to ensure the orderly and fair treatment of all creditors, equity security holders, and other parties in interest. Further, Rust Omni will work with the Clerk's Office for the United States Bankruptcy Court for the District of Delaware (the 'oClerk's Office") to ensure that such methodology conforms with all of the Court's procedures, the Local Rules, and the provisions of any orders entered by the Court. Rust/Omni has acted as Claims Agent in numerous chapter 11 cases filed in this District and in other jurisdictions nationwide. { 1097.001-1v0041960. } J Case 17-11722 Doc 5 Filed 08/10/17 Page 4 of 13 See, e.g., In re Karmaloop, Inc., Case No. 15-10635 (MFW) (Bankr. D. Del. Mar.25,2015); In re Ultura (LA), Inc., Case No. 14-12382 (KG) (Bankr. D. Del. Oct. 23,2014); In re S.B. Restaurant Co., CaseNo. 14-13778 (Bankr. C.D. Cal. July 15, 201\; In re HDOS Enterpriseso Case No. 14- 12028 (Bankr. C.D. Cat. Mar. 19, 201Ð; In re American Suzuki Motor Corp., Case No. 12- 22808 (Bankr. C.D. Cal. Nov. 28, 2012); In re Allied Sys. Holdings, Inc., Case No' 12-11654 (CSS) (Bankr D. Del. June 6, 2012); In re Perkins & Marie Callender's Inc., Case No' 1 1-1 1795 (KG) (Bankr. D. Del. June 14, 20ll); In re Innkeepers USA Trust, Case No. 10-13800 (KG) (Bankr. S.D.N.Y. July 19,2010); In re ACT Crunch Acquisition, LLC, Case No. 09-12889 (Bankr. S.D.N.Y., May 6, 2009); In re Pacific Energt Res., Ltd., Case No. 09-10785 (KJC) (Bankr. D. Del. Mar. 10, 2009); In re Estate Fin, Mortgage Fund LLC, Case No. 08-11535 (Bankr. C.D. Cal. Oct. 8,2003); In re Mervyn's Holdings, LLC, Case No. 08-11586 (KG) (Bankr.. D. Del. July 29,200S); In re Com(Jni Lending, Inc., Case No. 08- 50030 (Bankr. N.D. Cal. Jan. 22,2008); In re Refco Commodi Mgmt., Inc.,Case No. 06-12436 (Bankr. S.D.N'Y. Nov. 15, 2006); In re Owens Coming Sales, LLC, Case No. 00-3837 (KG) (Bankr. D. Del. Oct. 5, 2000). 8. The Debtors' estates, and particularly the Debtors' creditors, will benefit from Rust/Omni's significant experience in acting as Claims Agent in other cases and the efficient and cost-effective methods that Rust/Omni has developed as a result. g. Rust/Omni is fully equipped to manage the volume involved in properly sending the required notices to, and processing the claims, of creditors and other interested parties in these Chapter 11 Cases. Rust/Omni will follow the notice and claim procedures that conform to the guidelines promulgated by the Clerk of Court and the Judicial Confþrence of the United States for the implementation of 28 U.S.C. $ 156(c) (the "Judicial Conference")' { r 097.00r-w0041960.} 4 Case 17-11722 Doc 5 Filed 08/10/17 Page 5 of 13 B. Rust/Omni's Disinterestedness 10. To the best of the Debtors' knowledge, and as disclosed in the Deutch Declaration: (a) Rust/Omni is a "disinterested person" within the meaning of Bankruptcy Code section 101(1a); (b) Rust/Omni holds no interest materially adverse to the Debtors and their estates with respect to matters that the Debtors seek to employ Rust/Omni to handle; and (c) Rust/Omni has no material connection to the Debtors, their creditors, or related parties set forth herein, except as disclosed in the Deutch Declaration. Rust/Omni may have relationships with certain of the Debtors' creditors as vendors or in connection with cases in which Rust/Omni serves or has served in a neutral capacity as Claims Agent for another chapter 11 debtor. 1 1. Rust/Omni represents, among other things, that: (a) it will not consider itself employed by the United States govemment and shall not seek any compensation from the United States govemment in its capacity as Claims Agent; (b) by accepting employment in these bankruptcy cases, Rust/Omni waives any right to receive compensation from the United States government in its capacity as Claims Agent; (c) in its capacity as Claims Agent, Rust/Omni will not be an agent of the United States and will not act on behalf of the United States; and (d) Rust/Omni will not employ any past or present employees of the Debtors in connection with its work as Claims Agent.