In re:

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ('-----')
Debtor.
DEBTOR'S APPLICATION FOR AN ORDER AUTHORIZING
AND APPROVING THE APPOINTMENT OF RUST CONSUL TING/OMNI
BANKRUPTCY AS CLAIMS AND NOTICING AGENT PURSUANT TO
28 U.S.C. 156(c), SECTION lOS(a) OF THE BANKRUPTCY CODE,
AND LOCAL RULE 2002-l(f)
Cordillera Golf Club, LLC, the debtor and debtor in possession in the above-
captioned case (the "Debtor"), by and through its proposed undersigned counsel, hereby submits
this application (the "Application") to the Court for entry of an order pursuant to section 156( c)
oftitle 28 ofthe United States Code and section 105(a) oftitle 11 of the United States Code,
11 U.S.C. 101-1532 (the "Bankruptcy Code"), appointing Rust Consulting/Omni Bankruptcy
("Rust Omni") as claims and noticing agent in the Debtor's case. The facts and circumstances
supporting this Application are set forth in the concurrently filed Declaration of DanielL.
Fitchett in Support of Chapter 11 Petitions and First Day Relief (the "First Day Declaration").
In further support of this Application, the Debtor relies upon and incorporates by reference the
Declaration of Paul H. Deutch in Support of the Debtor's Application for an Order Appointing
Rust Consulting/Omni Bankruptcy as Claims and Noticing Agent Pursuant to 28 U.S.C.
156(c), Section 105(a) ofthe Bankruptcy Code, and Local Rule 2002-1(), attached hereto as
Exhibit A (the "Deutch Declaration"), and respectfully states as follows:
1
The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-
XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.
01:12213634.3
JURISDICTION AND VENUE
1. The Court has jurisdiction over this matter 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 is a core proceeding pursuant
to 28 U.S.C. 157(b)(2), and the Court may enter a final order consistent with Article III of the
United States Constitution. Venue is proper in this Court pursuant to 28 U.S.C. 1408 and
1409. The statutory and legal predicates for the relief sought herein are 28 U.S.C. 156(c),
section 105 ofthe Bankruptcy Code, 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").
BACKGROUND
2. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary
petition for relief under chapter 11 of the Bankruptcy Code. Concurrently with this Motion, the
Debtor has also filed motions or applications seeking certain "first day" relief.
3. The Debtor has continued in possession of its properties and has continued
to operate and maintain its business as a debtor in possession pursuant to sections 1107(a) and
1108 ofthe Bankruptcy Code.
4. No request has been made for the appointment of a trustee or examiner
and no official committee has been established in this case.
5. Additional information about the Debtor's business and the events leading
up to the Petition Date can be found in the First Day Affidavit, which is incorporated herein by
reference.
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01:12213634.3
RELIEF REQUESTED
6. By this Application, pursuant to 28 U.S.C. 156(c), section 105(a) of the
Bankruptcy Code, and Local Rule 2002-1 (f), the Debtor respectfully requests the entry of an
order appointing Rust Omni as its claims and noticing agent for the Court (the "Claims and
Noticing Agent") in this chapter 11 case, nunc pro tunc to the Petition Date and pursuant to the
terms of the Engagement Agreement annexed hereto as Exhibit B (the "Engagement
Agreement").
7. Prior to selecting Rust Omni to act as the Claims and Noticing Agent, the
Debtor obtained and reviewed engagement proposals from at least two other court-approved
claims and noticing agents to ensure selection from a competitive process. The Debtor submits,
based on the three engagement proposals obtained and reviewed, that Rust Omni's rates are
competitive and reasonable given Rust Omni's quality of service and expertise. Accordingly, the
Debtor's selection of Rust Omni as the Claims and Noticing Agent satisfies the Court's Protocol
for the Employment of Claims and Noticing Agents Under 28 US. C. 156(c), dated February 1,
2012.
BASIS FOR RELIEF REQUESTED
8. Pursuant to 28 U.S.C. 156(c), which governs the staffing and expenses
of the Court, this Court is authorized to utilize facilities other than those of the Office of the
Clerk of the Court (the "Clerk's Office") for the administration of bankruptcy cases. It provides,
in relevant part, that:
[a ]ny 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 for out of the
assets of the estates and are not charged to the United States.
28 U.S.C. 156(c).
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01:12213634.3
9. Rule 2002 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy
Rules") generally regulates what notices must be provided to creditors and other parties in
interest in bankruptcy cases. Specifically, Bankruptcy Rule 2002() provides that"[ s ]orne other
person, as the court may direct shall give the debtor, all creditors, and indenture trustees" notice
of various matters. Fed. R. Bankr. P. 2002(). Local Rule 2002-1() provides, in relevant part,
that:
[u]pon motion of the debtor or trustee, at any time without notice
or hearing, the Court may authorize the retention of a notice and/or
claims clerk under 28 U.S.C. 156(c).
Del. Bankr. L.R. 2002-1(). Further, unless the Court orders otherwise, Local Rule 2002-1()
requires in all cases with more than 200 creditors that the debtor file a motion to retain a noticing
agent on the first day of the case or within ten days thereafter. This rule also specifies the
functions the claims agent is to perform and provides that the Court may authorize the retention
of a claims agent at any time without notice or hearing, upon motion by the debtor.
10. Although the Debtor has yet to file its schedules of assets and liabilities, it
anticipates that there will be in excess of 5,000 entities to be noticed. In view of the number of
anticipated claimants and the complexity of the Debtor's business, the Debtor submits that the
appointment of a claims and noticing agent is both necessary and in the best interests of the
Debtor's estate and its creditors.
RUST OMNI'S QUALIFICATIONS
11. Rust Omni has acted as the claims and noticing agent in numerous cases
of comparable size, including several cases currently pending in this district and others. See,
e.g., In re Allied Sys. Holdings, Inc., Case No. 12-11654 (Bankr D. Del. June 6, 2012); In re
Perkins & Marie Callender's Inc., Case No. 11-11795 (Bankr. D. Del. June 14, 2011); In re
Innkeepers USA Trust, Case No. 10-13800 (Bankr. S.D.N.Y. July 19, 2010); In re AGT Crunch
4
01:12213634.3
Acquisition, LLC, Case No. 09-12889 (Bankr. S.D.N.Y., May 6, 2009); In re Pacific Energy
Res., 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 Mervyn's Holdings, LLC, et al.,
Case No. 08-11586 (Bankr. D. Del. July 29, 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).
12. The Debtor believes that the retention of Rust Ornni as the Claims and
Noticing Agent in this chapter 11 case will expedite service of Bankruptcy Rule 2002 notices,
streamline the claims administration process, and permit the Debtor to focus on its reorganization
efforts. Accordingly, the Debtor's estate, and especially its creditors, will benefit as a result of
Rust Omni's experience and cost-effective methods.
SCOPE OF RETENTION
13. This Application pertains only to the work to be performed by Rust Omni
under the Clerk's delegation of duties permitted by 28 U.S.C. 156( c) and Local Rule 2002-1 (f).
By separate application, the Debtor will seek authority pursuant to section 327(a) of the
Bankruptcy Court to retain and employ Rust Omni to provide additional administrative services.
14. Subject to further order of this Court, by this Application, the Debtor seeks
to retain and employ Rust Omni to provide, among other things, the following notice and claims
agent services, if and to the extent requested (the "Claims and Noticing Services"):
01:12213634.3
(a) prepare and serve required notices in the Debtor's chapter 11 case, which
may include:
(i) notice ofthe commencement ofthe Debtor's chapter 11 case and
the initial meeting of creditors pursuant to section 341 (a) of the
Bankruptcy Code;
(ii) notice of the claims bar date, if any;
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01:12213634.3
(iii) notice of objections to claims;
(iv) notice of any hearings on a disclosure statement and confirmation
of a plan of reorganization;
(v) notice of transfers of claims;
(vi) notice of any motion to convert, dismiss, appoint a trustee, or
appoint an examiner filed by the Office of the United States
Trustee for the District of Delaware (the "U.S. Trustee"); and
(v) other miscellaneous notices to any entities, as the Debtor may
deem necessary or appropriate for an orderly administration of the
Debtor's chapter 11 case;
(b) maintain an official copy of the Debtor's schedules of assets and liabilities
and statement of financial affairs (collectively, "Schedules"), listing the
Debtor's known creditors and the amounts owed thereto;
(c) maintain: (i) a list of all potential creditors, equity security holders, and
other parties-in-interest; and (ii) a "core" mailing list consisting of all
parties described in sections 2002(i), G), and (k) and those parties that
have filed a notice of appearance pursuant to Bankruptcy Rule 9010;
update said lists and make said lists available upon request by a party-in-
interest or the Clerk;
(d) furnish a notice to all potential creditors of the last date for the filing of
proofs of claim and a form for the filing proofs of claim, after such notice
and form are approved by this Court, and notify said potential creditors of
the existence, amount and classification of their respective claims as set
forth in the Schedules, which may be affected by inclusion of such
information (or the lack thereof, in cases where the Schedules indicate no
debt due to the subject party) on a customized proof of claim form
provided to potential creditors;
(e) maintain a post office box or address for the purpose of receiving claims
and returned mail, and process all mail received;
(f) for all notices, motions, orders, or other pleadings or documents served,
prepare and file or cause to be filed with the Clerk an affidavit or
certificate of service within seven (7) business days of service which
includes (i) either a copy of the notice served or the docket number(s) and
title(s) of the pleading(s) served, (ii) a list of persons to whom it was
mailed (in alphabetical order) with their addresses, (iii) the manner of
service, and (iv) the date served;
(g) process all proofs of claim received, including those received by the
Clerk's Office, and check said processing for accuracy, and maintain the
original proofs of claim in a secure area;
(h) maintain the official claims register for the Debtor (the "Claims Register")
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01:12213634.3
on behalf of the Clerk; upon the Clerk's request, provide the Clerk with a
certified, duplicate unofficial Claims Register; and specify in the Claims
Register the following information for each claim docketed (i) the claim
number assigned, (ii) the date received, (iii) the name and address of the
claimant and agent, if applicable, who filed the claim, (iv) the amount
asserted, (v) the asserted classification(s) ofthe claim (e.g., secured,
unsecured, priority, etc.), and (vi) any disposition of the claim;
(i) implement necessary security measures to ensure the completeness and
integrity of the Claims Register and the safekeeping of the original claims;
G) allow public access to claims and the Claims Register at no charge;
(k) maintain an up-to-date mailing list for all creditors and entities that have
filed a proofs of claim or interest and/ or request for notices in the chapter
11 case and provide such list to the Court or any interested party upon
request (within forty-eight (48) hours);
(1) record all transfers of claims and provide any notices of such transfers as
required by Bankruptcy Rule 3001(e);
(m) relocate, by messenger or overnight delivery, all of the court-filed proofs
of claim to the officers of the Claims and Noticing Agent, not less than
weekly;
(n) upon completion of the docketing process for all claims received to date
for each case, tum over to the Clerk a copy of the Claims Register for the
Clerk's review (upon the Clerk's request);
( o) monitor the Court's docket for all notices of appearance, address changes,
and claims-related pleadings and orders filed and make necessary
notations on and/or changes to the Claims Register;
(p) assist in the dissemination of information to the public and respond to
requests for administrative information regarding the case as directed by
the Debtor or the Court, including through the use of a case website and/or
call center;
( q) if the case is converted to chapter 7, contact the Clerk's Office within
three (3) days of the notice to Claims and Noticing Agent of entry of an
order converting the case;
(r) thirty (30) days prior to the close of the chapter 11 case, to the extent
practicable, request that the Debtor submit to the Court a proposed order
dismissing the Claims and Noticing Agent and terminating the services of
such agent upon completion of its duties and responsibilities and upon the
closing of this case;
( s) within seven (7) days of notice to the Claims and Noticing Agent of entry
7
of an order closing the chapter 11 case, provide to the Court the final
version of the Claims Register as of the date immediately before the close
ofthe case;
(t) at the close of this case, box and transport all original documents, in
proper format, as provided by the Clerk's Office, to (i) the Federal
Archives Administration, located at Central Plains Region, 200 Space
Center Drive, Lee's Summit, MO 64064 or (ii) any other location
requested by the Clerk's Office; and
(u) comply with applicable federal, state, municipal, and local statutes,
ordinances, rules, regulations, orders, and other requirements.
RUST OMNI'S DISINTERESTEDNESS
15. The Debtor has many creditors, and accordingly, Rust Ornni may have
rendered and may continue to render services to certain of these creditors. Rust Omni has not
and will not represent the separate interests of any such creditor in this case. Additionally, Rust
Ornni employees may, in the ordinary course of their personal affairs, have relationships with
certain creditors of the Debtor. Except as may be disclosed in the Deutch Declaration, Rust
Omni has represented that it neither holds nor represents any interest adverse to the Debtor's
estate in connection with any matter on which it would be employed and that it is a "disinterested
person," as referenced in section 327(a) of the Bankruptcy Code and as defined in section
101(14) ofthe Bankruptcy Code, as modified by section 1107(b).
16. Rust Ornni will conduct an ongoing review of its files to ensure that no
conflicts or other disqualifYing circumstances exist or arise. If any new facts or relationships are
discovered, Rust Ornni will supplement its disclosure to the Court.
17. In connection with its retention as the Claims and Noticing Agent, Rust
Omni represents, among other things, that:
01:12213634.3
(a) Rust Ornni 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 Claims and Noticing Agent in the
chapter 11 case;
8
(b) by accepting employment in the chapter 11 case, Rust Omni waives any
rights to receive compensation from the United States government in its
capacity as the Claims and Noticing Agent in the chapter 11 case;
(c) in its capacity as the Claims and Noticing Agent in this chapter 11 case,
Rust Omni will not be an agent of the United States and will not act on
behalf of the United States;
(d) Rust Omni will not employ any past or present employees of the Debtor in
connection with its work as the Claims and Noticing Agent in the chapter
11 case;
(e) in its capacity as the Claims and Noticing Agent in the chapter 11 case,
Rust Omni will not intentionally misrepresent any fact to any person;
(f) Rust 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
(g) none of the services provided by Rust Omni as the Claims and Noticing
Agent in the chapter 11 case shall be at the expense of the Clerk's Office.
TERMS OF RETENTION
18. The Debtor proposes to retain Rust Omni at the rates and under the terms
set forth in the Engagement Agreement. The Debtor believes these rates and terms are consistent
with the market for comparable services. Compensation for Rust Omni's services as Claims and
Noticing Agent will be paid from the Debtor's estate in the ordinary course of business without
further application to this Court as provided by 28 U.S.C. 156(c) and section 503(b)(1)(A) of
the Bankruptcy Code. Rust Omni will maintain records of all services showing dates, categories
of services, fees charged, and expenses incurred and will serve monthly invoices for services
rendered by Rust Omni in its capacity as the Claims and Noticing Agent on the Debtor, the U.S.
Trustee, counsel for the Debtor, counsel for any official committee appointed in this case, and
any party who specifically requests service of the monthly invoices. If any dispute arises relating
to the Engagement Agreement or monthly invoices, the parties shall meet and confer in an
attempt to resolve the dispute. If resolution is not achieved, the parties may seek resolution of
the matter by the Court.
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01:12213634.3
19. Prior to the Petition Date, the Debtor provided Rust Omni a retainer in the
amount of $15,000. Rust Omni may apply its retainer to all prepetition invoices, which retainer
shall be replenished to the original retainer amount, and thereafter, Rust Omni may hold its
retainer under the Engagement Agreement during the chapter 11 case as security for the payment
of fees and expenses incurred under the Engagement Agreement.
20. If Rust Omni's services are terminated, Rust Omni shall perform its duties
until a complete transition with the Clerk's Office or any successor claims and noticing agent
occurs, provided, however, that the provision of such transition services shall be subject to the
terms of the Engagement Agreement, including with respect to payment.
21. Rust Omni shall perform the duties within the scope of its appointment
under 28 U.S.C. 156(c) regardless of whether Rust Omni has received payment in accordance
with the Engagement Agreement. To the extent Rust Omni requires redress for non-payment of
its fees and expenses, it will seek relief from the Court.
22. Rust 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
of28 U.S.C. 156(c).
23. This Application complies with the Court's Protocol for the Employment
of Claims and Noticing Agents under 28 US. C. 156(c) and conforms to the standard
Application in use in this Court.
24. For the foregoing reasons, the Debtor believes that granting the relief
requested herein is appropriate and in the best interests of its estate and creditors.
25. The Debtor further submits that because the reliefrequested in this
Application is necessary to avoid immediate and irreparable harm to the Debtor, for the reasons
set forth herein, Bankruptcy Rule 6003 has been satisfied.
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01:12213634.3
NOTICE
26. Notice of this Application has been provided to: (i) the Office of the
United States Trustee; (ii) the United States Securities and Exchange Commission; (iii) the
Office of the United States Attorney for the District of Delaware; (iv) the Internal Revenue
Service; (v) the Debtor's twenty (20) largest unsecured creditors; (vi) the Debtor's cash
management banks, (vii) counsel to prepetition secured lenders, and (viii) counsel to proposed
post-petition secured lender. Notice of this Application and any order entered hereon will be
served in accordance with Local Rule 9013-l(m). In light of the nature of the relief requested
herein, the Debtor submits that no other or further notice is necessary.
NO PRIOR REQUEST
27. The Debtor has not previously sought the relief requested herein from this
or any other Court.
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01:12213634.3
WHEREFORE, the Debtor respectfully seeks entry of an order, in the form
annexed hereto as Exhibit C, authorizing Rust Omni to act as the Claims and Noticing Agent for
the maintenance and processing of claims and the distribution of notices.
Dated: June 26, 2012
01:12213634.3
CORDILLERA GOLF CLUB, LLC
Is/ Daniel L. Fitchett Jr.
Daniel L. Fitchett, Jr.
ChiefExecutive Officer
On Behalf of the Debtor and Debtor in Possession
12
EXHIBIT A
Deutch Declaration
01:12213634.3
In re:
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ( ~ _ ~ )
Debtor.
DECLARATION OF PAUL H. DEUTCH IN SUPPORT OF
DEBTOR'S APPLICATION FOR AN ORDER AUTHORIZING
AND APPROVING THE APPOINTMENT OF
RUST CONSULTING/OMNI BANKRUPTCY AS CLAIMS AND
NOTICING AGENT PURSUANT TO 28 U.S.C. 156(c),
SECTION lOS(a) OF THE BANKRUPTCY CODE,
AND LOCAL RULE 2002-1(0
I, Paul H. Deutch, hereby state and declare as follows:
1. I am an Executive Managing Director of Rust Consulting/Omni Bankruptcy
("Rust Omni"), whose offices are located at 1120 Avenue ofthe America's, 4th Floor, New York,
NY 10036. 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
2. I am duly authorized to make this Declaration (the "Declaration") on behalf of
Rust Omni. I submit this Declaration in support of the Debtor's Application for an Order
Authorizing and Approving the Appointment of Rust Consulting/Omni Bankruptcy as Claims
and Noticing Agent Pursuant to 28 U.S.C. 156(c), section 105(a) of title 11 of the United States
Code, 11 U.S.C. 101-1532 (the "Bankruptcy Code"), 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"), appointing Rust Consulting/Omni Bankruptcy to act as an official
1
The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-
XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.
2
Certain of the disclosures herein relate to matters within the knowledge of other professionals at Rust Omni and
are based on information provided by them.
01:12213634.3
claims and noticing agent of the Court (the "Application")
1
, effective as of the Petition Date and
on terms and conditions set forth in the Debtor's Engagement Agreement with Rust Omni
attached to the Application as Exhibit B.
3. As agent and custodian of the Court records pursuant to 28 U.S.C. 156(c), Rust
Omni will perform, at the request of the Office of the Clerk of the Court (the "Clerk's Office"),
the Noticing and Claims Services specified in the Application. In addition, at the Debtor's
request, Rust Omni will perform such other noticing, claims, administrative, technical, and
support services specified in the Application and the Engagement Agreement.
4. Rust Omni is one of the country's leading chapter 11 administrators, with
experience in noticing, claims administration, solicitation, balloting, and facilitating other
administrative aspects of chapter 11 cases. Rust Omni has provided administrative services and
has acted as the claims and noticing agent in numerous cases of comparable size in a variety of
jurisdictions, such as: In re Allied Sys. Holdings, Inc., Case No. 12-11654 (Bankr D. Del. June
12, 2012), In re Perkins & Marie Callender's Inc., Case No. 11-11795 (Bankr. D. Del. June 14,
2011); 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 Res., 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 Mervyn's
Holdings, LLC, et al., Case No. 08-11586 (Bankr. D. Del. July 29, 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. Rust Omni represents, among other things, that:
Capitalized terms not otherwise defmed herein shall have the meaning ascribed thereto in the Application.
01:12213634.3
a. Rust Omni is not a creditor of the Debtor;
b. Rust 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 an agent in this chapter 11 case;
c. by accepting employment in this chapter 11 case, Rust Omni waives any
rights to receive compensation from the United States government;
d. in its capacity as the agent in this chapter 11 case, Rust Omni will not be
an agent of the United States and will not act on behalf of the United
States;
e. in its capacity as the agent in this chapter 11 case, Rust Omni will not
misrepresent any fact to any person;
f. Rust Omni will not employ any past or present employees of the Debtor in
connection with its work as the agent in this chapter 11 case;
g. Rust 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
h. none of the services provided by Rust Omni as agent shall
be at the expense of the Clerk's Office.
6. The Debtor has many creditors, and accordingly, Rust Omni may have rendered
and may continue to render services to certain of these creditors in matters umelated to this case,
either as vendors or in cases where Rust Omni serves in a neutral capacity as a bankruptcy
claims and noticing agent or class action settlement administrator. Rust Omni has not and will
not represent the separate interest of any such creditor in this case. To the best of my knowledge,
neither Rust Omni, nor any of its professional personnel, has any relationship with the Debtor
that would impair Rust Omni's ability to perform claims and noticing services. Rust Omni has
working relationships with certain of the professionals retained by the Debtor and other parties
herein, but such relationships are completely umelated to the Debtor's case. In addition, Rust
Omni personnel may have relationships with some of the Debtor's creditors. Such relationships
are, however, of a personal, financial nature and are wholly umelated to the Debtor's case. Rust
Omni has and will continue to represent clients in matters umelated to the Debtor's case and has
01:12213634.3
had and will continue to have relationships in the ordinary course of its business with certain
vendors and professionals in connection with matters umelated to this case.
7. To the best of my knowledge and except as provided herein, Rust Omni neither
holds nor represents any interest materially adverse to the Debtor's estate in connection with any
matter on which it would be employed and that it is a "disinterested person," as that term is
defined in section 101(14) of the Bankruptcy Code, as modified by section 1107(b). Rust Omni
will supplement its disclosure to the Court if any facts or circumstances are discovered that
require additional disclosure.
8. In performing the services set forth in the Application, Rust Omni will charge the
Debtor the rates set forth in the Engagement Agreement.
9. Prior to the Petition Date, Rust Omni received a retainer totaling $15,000 for
services to be performed for the Debtor. Rust Omni has applied these funds to amounts due for
services rendered and expenses incurred prior to the Petition Date.
01:12213634.3
10. Rust 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 of28 U.S.C.
156(c).
I declare under penalty of peljury pursuant to 28 U.S.C. 1746 that the foregoing is true
and correct.
Dated:
01:12213634.3
EXHIBITB
Engagement Agreement
01:12213634.3
June 20,2012
DI/JJ L. h{alr.--rT) J IL.
Ghief Finaneial-Q;l;ioor C.. CD
CordilleraGolfClub; LLC
01:12215383.2.
101 Legends Drive
Edwards, co 81632
DearMr. Wilhelm:
Re: Rust Omlii Management Group
-Retention letter
This letter (the "Agreement'') will aclmowledge that you have requested Rust
Consulting Rust Omni Barikluptcy ("Rust Omni'') to provide serv'ices to Cordillera Golf
Club, LLC ("CGC" or. the "Company") in preparation of, and in connection with, the
Company's anticipated chapter 11 filing. Rust Omni will make its.eif available to the
Company, as requested, for the purposes of assisting the Co1npany With pre- and post.:.
petition case administration fuattets including preparation and management of the creditor
matrix, of schedules of aSsets and liabilities and statement of affairs,
claims management, noticing, plan solicitation and tabulation, distribution, the
d,evelopthent and maintenance ofah infotmational website and any other services as may
be requested by the Company,
The services to he rendered by Rust Omni will be billed at our normal hl'>urlyrates
which range from $25,00 to $195.00 per hour. as per the attached rate sheet. Rates are
adjusted annually on January 2nd of each year, and are subjectto increases not to exceed
ten (10%) percentper annum. Increases greaterthan teil (10%) petcentperannUinwill be
discussed. With you, and be subject to your ptior before becdiriing effective.
Fot all such services rendered, we requite a $15,000 deposit, which sttch deposit
must be replenished immediately prior to the Corrll:nencemeht ofthe chapter
11 proceedings. All charges will be 011 a to po1tal basis plus out-of-pocket
expenses. Rust Omni shall compensated on a monthly basis for those servjces
perfonned by Rust Onmi during the preceding month. Invoices are payable
upon submission.
01:12215383.2
Patrick Wilhelm
June 20, 2012
Page2
Each of Rust Omni and the Company, 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 infotmation
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 Rust Omni pursuant to this Agreement and/or developed during the course of this
Agreement by Rust Omni are the sole property of Rust Omni. The term "program" shall
include, without limitation, data processing programs, specifications, applications,
routines, and documentation. The Company's 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 Company's further agree that any ideas, concepts,
know-how or techniques relating to data processing or Rust Omni's performance of its
services developed during the course of its Agreement by Rust Omni shall be the
exclusive property of Rust Omni. Upon the Company's' request at any time or times
while this Agreement is in effect, Rust Omni shall immediately deliver to the Company's
and/or the Company's' retained professionals, at the Company's' expense, any or all of
the non-proprietary data and records held by Rust Omni pursuant to this Agreement, in
the form requested by the Company's.
The Debtors shall indemnify and hold Rust Omni harmless (the "Indemnification
Agreement"):
a. Subject to the provisions of subparagraphs (c) and (d) below,
the Debtors shall indemnifY Rust Omni for any claim arising from,
related to or in connection with their performance of the services
described in this Agreement;
01:12215383.2
Patrick Wilhelm
June 20,2012
Page3
b. Rust Omni shall not be entitled to indemnification,
contribution or reimbursement for services other than the services to be
provided under this Agreement, unless such services and the
indemnification, contribution or reimbursement therefore are approved
by the Court;
c. Notwithstanding anything to the contrary in this Agreement,
the Debtors shall have no obligation to indemnify any person, or
provide contribution or reimbursement to any person, for any claim or
expense that is either (i) judicially determined (the determination
having become final) to have arisen primarily from that person's gross
negligence or willful misconduct; (ii) for a contractual dispute in
which the Debtors allege breach of Rust Omni's contractual
obligations under this Agreement unless the Court determines that
indemnification, contribution or reimbursement would be permissible
pursuant to In re United Artists Theatre Co., 315 F.3d 217 (3d Cir.
2003); or (iii) settled prior to a judicial determination as to that
person's gross negligence or willful misconduct, but determined by
this Court, after notice and a hearing, to be a claim or expense for
which that person should not receive indemnity, contribution, or
reimbursement under the tenns of the Indemnification Agreement as
modified by the Debtors' application seeking to approve this
Agreement (the "Application") and any order of this Court approving
the Application;
d. If, before the earlier of (i) the entry of an order confirming a
chapter 11 plan in the Chapter 11 Cases (that order having become a
final order no longer subject to appeal) and (ii) the entry of an order
closing the Chapter ll Cases, Rust Omni believes that it is entitled to
the payment of any amounts by the Debtors on account of the Debtors'
indemnification, contribution and/or reimbursement obligations under
the Indemnification Agreement (as modified by the Application and
any order of this Court approving the Application), including without
limitation the advancement of defense costs, Rust Onmi must file an
01:12215383.2
Patrick Wilhelm
June 20, 2012
Page4
application befere this Court, and the Debtors may not pay any .such
amou.Ilts bef0re the entry of an order by tbis Court approving the
payi.Tieht. This subparagraph (d) is intended only to specify the period
of time under which the court shall havejutisdiction over any request
for fees and expenses for indemnification, conhibution or
reiilibursenierit, ancl not a provision limiting the duration of the
Debtors' obligation to indefui:lify Rust Otnnl.
This Agreement is terminable at will by the parties hereto upon thirty (30) days
written notice. In the event that this Agreement is term:inated, regardless of the reason for
such termination, Rust Omni shall cooperate with the Company'$ to mainta.ih an orderly
transfer of all records; data and information and record keeping functions; and shall
provide aU necessary staff, serVices and assistance requil:ed for an orderly transfer, The
Company's agree to pay for such services in accordance with Rust Omni' s then existing
prices for such services.
Please aclmowledge the above by signing and retutlling a copy of this letter.
Shmild you have any questions regarding the above, please do not hesitate to call me.
Enc.
cc: Christopher Celentino
Joseph Barry
EI'ic Schwarz
Date:, _______ _
Sincerely,
Brian Osborne
By:
RUST CONSUL TING/OMNI BANKRUPTCY
www.omnimgt.com 2012 Rate Sheet
HOURLY RATES FOR STANDARD AND CUSTOM SERVICES RATE/COST
Senior Consultants $195.00 per hour
Consultants $125-$175 per hour
Project Specialists $67.50-$125.00 per hour
Programming $117.00- $157.50 per hour
Clerical Support/Quality Assurance $25.00- $67.50 per hour
PRINTING AND NOTICING SERVICES
Copy $.08 per image
Document folding and insertion No Charge
Labels/Envelope Printing $.035 each
E-mail noticing $50.00 per 1,000
Certified Email Quote upon request
Facsimile noticing $.10/image
Postage At cost
(Advance payment required for postage charges
over $10,000)
Envelopes Varies by size
NEWSPAPER LEGAL NOTICE PUBLISHING
Coordinate and Publish Legal Notice Quote prior to publishing
CLAIMS MANAGEMENT
Inputting proofs of claim $1.50 per claim
(These are flat rate charges; no hourly rates are
applied to the inputting of claims)
Scanning $.10/image
Remote Internet Access for claims management
Setup No charge
Access $250 per month, unlimited users
CREDITOR DATABASE
Under 10,000 records - No charge,
Over 10,000 records- .05 per record,
Data Storage Over 100,000 records- .04 per record
Per Image Storage No charge
INFORMATIONAL WEBSITE
Creation, configuration and initial setup No charge
Data entryfinformation updates $75.00 per hour
Programming and customization $117-$157.50 per hour
Debtor Website Hosting No charge
Committee Website Hosting No charge
Scanning $.10/image
VIRTUAL DATA ROOMS Quote upon request
CALL CENTERS I DEDICATED LINE
Creation, configuration and initial setup No charge
Hosting Fee $5.50 per month
Usage $.0825 per minute
Service rates (actual talk and log-entry time) $67.50 per hour
CASE DOCKET/CLAIMS REGISTER No charge
SOLICITATION AND TABULATION
Plan and Disclosure Statement Mailings Quoted prior to printing
Ballot Tabulation Standard hourly rates apply
SCHEDULES/SoFA
Preparation and updating of Schedules and SoFAs $58.50 - $195.00 per hour
PRE-PETITION CONSULTING SERVICES
(e.g., preparation of cash flow, analysis of cash management system,
evaluation of insurance coverage, assist with payroll, assist
procurement and distribution of cashiers checks) Standard hourly rates apply
1 of 2
RUST CONSUL TING/OMNI BANKRUPTCY
www.omnimgt. com 2012 Rate Sheet
UST REPORTING COMPLIANCE Standard hourly rates apply
(e.g., assist debtors to meet satisfy jurisdicational requirements,
preparation of monthly operating and post-confirmation reports)
LIQUIDATING/DISBURSING AGENT Standard hourly rates apply
(e.g., comply with Plan requirements, preparation of disbursement
reports, payout calculations, check generation, bank reconciliations)
MISCELLANEOUS
Telephone charges At cost
Delivery At cost
Archival DVD/CD-Rom $40.00 per copy
REAL TIME REPORTS
Claims Dashboard No charge
Claim Reports $25.00
Solicitation Dashboard No charge
Tabulation Dashboard No charge
Solicitation Reports $25.00
Service List Manager $0.05 per party, per generated list
2 of2
Omni Management Group, LLC
Claims & Noticing Agent Proposal
SERVICES PRICING DESCRIPTION OF SERVICES
PRE-PETITION SERVICES
General Preparations Hourly rates $25-$195 per Meet with the debtors and professionals to facilitate gathering of information and to determine
hour responsible parties
Pre-petition Preparations (Interface with client, attorneys and Included Frequent communication with debtors and professionals to organize the data into its appropriate
estate professionals re familiarization of case requirements categories for use in the Consolidated Matrix, Consolidated List of 20 - 50 Unsecured Creditors, First
and Omni's preparations) Day Motion Exlubits and Service Lists.
Preparation of Consolidated Mailing Matrix Included Available for any other required administrative tasks
Preparation of Consolidated List of Unsecured Creditors Included
Preparation of First Dav Lists Included
Assist preparation of First Day Motion Exhibits (Utilities, Included
etc.)
Assist with any requested administrative items Included
POST PETITION SERVICES -
Potential To All Matrix Parties Apply USPS best practices to prepare service lists including Master Mailing Matrix
Examples include: Common sizes/prices Cleanse mailing lists of bad or incomplete addresses while correcting addresses and completing zip
include: codes (including insertion of additional4 digit postal stop codes)
34\(a) Notice with POC form Omni will further create service lists organized by the eight (8) different domestic portal zones and
Notice of Motion to Limit Notice Two-sided notices = approx. international zones
$0.7&/notice (including
Search for duplicates within the master list and remove both exact and non-exact duplicate addresses
(reduces return mail and service to bad and incomplete addresses, thereby reducing the cost of
envelope,
postage to bare minimwn for first class mail)
reoroduction and labor)
Bar Date Notice
Notice ofDisclosure Statement notices =
approx. $0.&6 per notice
Confirmation Hearing Notice
Compromises of Controversy Four-sided notices= approx.
$0.94 per notice.
N orice of Final Decree
Same USPS best practices, as described above, for everyday noticing service
Limited Partv Mailin.-s
Cognizant of cost and time efficiencies for emergency and everyday mailings, Omni uses Email or
Examples include:
First Day Motions (Including Fax, Email, First Class Email $50 per
Facsimile service whenever available and authorized
and Overnight Expenses) 1000 parties Complete capability to handle mass overnight mail requests as well as facsimile requests
Ongoing Sen-ices (Entered Orders, Additional Motions
West coast mail facilities to provide latest possible deadlines for mailing services
& Notices, Objections, etc.)
Plan Solicitation Packages
Omni Management Group, LLC
Claims & Noticing Agent Proposal
SERVICES PRICING
Notice Administration Services
Service Address maintenance, return mail and mail to be Rates of$25.00- $67.50 per
forwarded hour
Updating (Ongoing) and File (Quarterly) Amended Master Rates of$58.50- $135 per
Mailing Matrix hour
Publication Notices (sale notice, bar date & plan notice) At cost
Schedules and SOFA's
Preparation of Schedules and SOP A's for debtors Rates of$25.00- $195 per
hour
Amendments to Schedules and SOFA's as necessary Rates of$25.00 -$195 per
hour
Claims Manae:ement
Claims Inputting $1.50 per claim flat rate
(i.e.
1
no hourly mte imposed
in addition to inputting
charge)
Scan Claims $0.12/image
Creditor Contact and Miscellaneous Rates of$25.00- $135.00
Services per hour
Assist with Claims Reconciliation (Reports, Exhibits, Service Rates of $58.50- $195
Lists)
Process claim transfers and assignments Rates of$58.50- $195 per
hour
DESCRIPTION OF SERVICES
Track and record all returned mail
Work with debtors to correct any return mail deficiencies and eliminate repeat mailings
.. Return mail parties can appear as strike through addresses on appropriate docmnent service lists
with a footnote of their deficient address status
Update Master Mailing list and other applicable service lists on periodic basis
Omni uses a publication service which obtains volume discount pricing and has greater fle:xtbility
with ublication deadlines
Educate debtors regarding requirements and information necessary to complete Schedules/SoFA
Compile and convert data to required Court formats
Guide debtors tlu-ough process and available to provide on-site help as needed
Frequent communication with debtors and professionals apprising them of progress and timing
Maintain calendar to provide multiple drafts of the documents for review and comment by all
All claim information entered into claims management database providing data to public Claims
Register and Omni
1
s proprietary claims database
Scan all proofs of claim (available to the public via the debtors website and to professionals through
their secure database access)
Secure database provides access to aU claims management information and tools
Create Claims Workbook with Jive hyperlinks to assist reconciliation process
o Al1ows for instant access to any claim without leaving workbook
o All work product within workbook can a1so be imported into Omni's database for future use and
sharing with other professionals
Provide Claim Reconciliation Worksheets, Claim Resolution Reports, Claim Objection Exhibits and
Service Lists
o Omni systems are built to allow the debtor and/or professionals to perform the reconciliation
SERVICES
Plan Solicitation
Services include:
Prepare Plan Ballot Analysis including claimant detail
Create Individualized Ballots
Ballot Tabulation
Tabulation Declaration
Website. Data and Database Access
Website Creation
Debtor's Website Hosting
Website Updates Maintain Court Docket
Creditors' Corrunittee Website Creation
Creditors' Committee Website Hosting
Website Customization {Adding Video, Images, etc.)
Monthly Data Storage (.07 per creditor)
Database Access
800 Call Center
Creation configuration aod initial setup
Hosting Fee ($5.50 per month for 12 months)
Usage (.0825 per minute based on I 000-2,000 minutes)
Operator rates (actual talk and log-entry time)
Virtual Data Room
Omni Management Group, LLC
Claims & Noticing Agent Proposal
PRICING DESCRIPTION OF SERVICES
With debtors and professionals, use information in claim database to prepare Plan Ballot Analysis
("PBA
11
) based on the proposed classes in Disclosure Statement
Rates of$85.50- $195 o PBA provides detailed breakdown by claimant and amount of each c1ass of voting and non-voting
claimants
Rate of$135- $175 per o Also includes documents to be served upon each voting and non-voting class,
bout
Create complex mailing analysis to ensure that production, postal zoning and shipping costs are
Rates o$58.50- $195 per
properly managed to ensure accuracy and reduce costs
hout
Significant experience dealing with public equity/debt issues for service of plan solicitation packages
Rates of$135- $195 per
Work with Debtor, transfer agent, the DTC and Street Name Brokerages to ensure that all relevant
hour
parties arc identified and served with the appropriate docwnentation in a timely manner
Customized plan ballots increases accuracy and reduces balloting errors
..
Informative, and easily customizable debtor and committee websites
No
No charge
Provide relevant case information, professional contact information, critical documents, complete
$67.50- $85.50 per hour
No charge
Court Dockets, Claims Dockets, debtor communications, claim forms, case calendars, court links,
No charge direct creditor inquiry contact capability and more
$117- $157.50 per hour
Updated and customized in minutes
Under 10,000 records- No
charge, Creditors' Committee websitgs developed and hosted at no charge (except customization, if
Over 10,000 records- $0.05
requested)
per record,
Over 100,000 records-
o Single database provides information to both web sites, thereby reducing costs
$0.04 perrecord
$250 per month, unlimited
users
800 Call Center Services for all levels of creditor inquiries
No Charge Live personnel or voicemail capable
$5.50 per month o (i) Work with script-directed materials using the specific instruction provided, (ii) simply take a
.0825 per minute message, or (iii) provide a voicemail box which can be transcribed into a call log and/or accessed by
$67.50 per hour the Debtor
Quoted upon request Omni's proprietary technology provides for a user-friendly, web-based virtual file room that
EXHIBIT C
Order
01:12213634.3
In re:
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC,
1
dba The Club at Cordillera
Case No. 12-11893 ( ~ _ ~ )
Ref. Docket No.:
Debtor.
ORDER GRANTING DEBTOR'S APPLICATION FOR AN ORDER
AUTHORIZING AND APPROVING THE APPOINTMENT OF RUST
CONSUL TING/OMNI BANKRUPTCY AS CLAIMS AND NOTICING AGENT
PURSUANT TO 28 U.S.C. 156(c), SECTION 105(a) OF THE
BANKRUPTCY CODE, AND LOCAL RULE 2002-l(f)
Upon the application (the "Application"i of the debtor and debtor-in-possession
in the above-captioned case (the "Debtor") for entry of an order authorizing and approving the
retention and appointment of Rust Consulting/Omni Bankruptcy ("Rust Omni") as claims and
noticing agent under 28 U.S.C. 156(c), section 105(a) of the Bankruptcy Code and Local Rule
2002-1(f) to, among other things, (i) distribute required notices to parties in interest, (ii) receive,
maintain, docket, and otherwise administer the proofs of claim filed in the Debtor's case, and
(iii) provide such other noticing, claims, and administrative services-as required by the
Debtor-that would fall within the purview of services to be provided by the Clerk's Office; and
upon consideration of the Application and all pleadings related thereto, including the First Day
Declaration and the Deutch Declaration; and due and proper notice of this Application having
been given; and it appearing that no other or further notice is required; and it appearing that the
Court has jurisdiction to consider the Application in accordance with 28 U.S.C. 157 and 1334;
and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); and it appearing
1
The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is: XX-
XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, CO 81632.
2
Capitalized terms not otherwise defmed herein shall have the meanings ascribed to such terms in the Application.
01:12213634.3
that venue ofthis proceeding and this Application is proper pursuant to 28 U.S.C. 1408 and
1409; and it appearing that the relief requested is in the best interest of the Debtor, its estate, and
creditors and after due deliberation, and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. The Application is GRANTED.
2. The Debtor is authorized to retain Rust Ornni as Claims and Noticing Agent
effective as of the Petition Date under the terms of the Engagement Agreement, and Rust Ornni
is authorized and directed to perform the Claims and Noticing Services as set forth in the
Application.
3. Rust Omni shall serve as the custodian of court records, is designated as the
authorized repository for all proofs of claim filed in this case, and is authorized and directed to
maintain the official claims register for the Debtor and to provide the Clerk with a certified
duplicate thereof upon the request of the Clerk.
4. Rust Ornni is authorized and directed to obtain a post office box or address for
the receipt of proofs of claim.
5. Rust Omni is authorized to take any such other action to comply with the
Claims and Noticing Services and related duties set forth in the Application and the Engagement
Agreement.
6. Pursuant to section 503(b)(1)(A) of the Bankruptcy Code, the fees and
expenses ofRust Omni shall be administrative expenses of the Debtor's estate, and the Debtor is
authorized to pay Rust Omni's fees and expenses for Claims and Noticing Services, as set forth
in the Engagement Agreement and in the ordinary course of business, without further Court
order and without the necessity of Rust Ornni filing fee applications with this Court.
2
7. Rust Omni shall maintain records of all services showing dates, categories of
services, fees charged, and expenses incurred and shall serve monthly invoices on the Debtor, the
Office of the United States Trustee, counsel for the Debtor, counsel for any official committee, if
any, and any party-in-interest who specifically requests service of the monthly invoices.
8. Rust Omni may apply its retainer to all prepetition invoices, which retainer
shall be replenished to the original retainer amount, and, thereafter, Rust Omni may hold its
retainer under the Engagement Agreement during this chapter 11 case as security for the
payment of fees and expenses incurred in relation to the Claims and Noticing Services.
9. Parties shall meet and confer in an attempt to resolve any dispute that may
arise relating to the Engagement Agreement or monthly invoices, and the parties may seek
resolution of the matter from the Court if resolution is not achieved.
10. The Debtor shall indemnifY Rust Omni under the terms of the Engagement
Agreement, provided, however, that Rust Omni shall not be entitled to indemnification,
contribution, or reimbursement pursuant to the Engagement Agreement for services other than
the services provided under the Engagement Agreement, the Application, and this Order unless
such additional services and the indemnification, contribution, or reimbursement therefore are
approved by the Court.
11. Notwithstanding anything to the contrary in the Engagement Agreement,
the Debtor shall have no obligation to indemnifY Rust Omni, or provide contribution or
reimbursement to Rust Omni, for any claim or expense that is: (i) judicially determined (the
determination having become final and no longer subject to appeal) to have arisen from Rust
Omni's gross negligence, willful misconduct, or fraud; (ii) for a contractual dispute in which the
Debtor alleges the breach of Rust Omni's contractual obligations if the Court determines that
3
indemnification, contribution, or reimbursement would not be permissible pursuant to In re
United Artists Theatre Co., 315 F .3d 217 (3d Cir. 2003 ), or (iii) settled prior to a judicial
determination under (i) or (ii) but determined by this Court, after notice and a hearing, to be a
claim or expense for which Rust Omni should not receive indemnity, contribution, or
reimbursement under the terms of the Engagement Agreement, as modified by this Order.
12. If, before the earlier of (i) the entry of an order confirming a chapter 11
plan in this case (that order having become a final order no longer subject to appeal) or (ii) the
entry of an order closing this case, Rust Omni believes that it is entitled to the payment of any
amounts by the Debtor on account of the Debtor's indemnification, contribution, and/or
reimbursement obligations under the Engagement Agreement (as modified by this Order),
including without limitation the advancement of defense costs, Rust Omni must file an
application for such amounts in this Court, and the Debtor may not pay any such amounts to Rust
Omni before the entry of an order by this Court approving the payment. This paragraph is
intended only to specify the period of time under which the Court shall have jurisdiction over
any request for fees and expenses by Rust Omni for indemnification, contribution, or
reimbursement and not a provision limiting the duration of the Debtor's obligation to indemnify
Rust Omni. All parties in interest shall retain the right to object to any demand by Rust Omni for
indemnification, contribution, or reimbursement.
13. In the event Rust Omni is unable to provide the Claims and Noticing
Services set out in the Application, Rust Omni will immediately notify the Clerk and Debtor's
counsel and cause to have all original proofs of claim and relevant creditor information turned
over to another claims and noticing agent with the advice and consent of the Clerk and Debtor's
counsel.
4
14. The Debtor may submit a separate retention application, pursuant to
section 327 of the Bankruptcy Code and/or any applicable law, for work that is to be performed
pursuant to the Engagement Agreement by Rust Omni that is not specifically authorized by this
Order.
15. The Debtor and Rust Omni are authorized to take all actions necessary to
effectuate the relief granted pursuant to this Order in accordance with the Application.
16. The Court retains jurisdiction with respect to all matters arising from or
related to the implementation and enforcement of this Order and the Engagement Agreement.
1 7. Rust Omni shall not cease providing claims processing services during the
case for any reason, including nonpayment, without an order of the Court.
18. In the event of any inconsistency between the Engagement Agreement, the
Application, and this Order, this Order shall govern.
Dated: Wilmington, Delaware
June , 2012
United States Bankruptcy Judge
5