IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

Chapter 11 Case No. 11-11795 (KG)

PERKINS & MARIE CALLENDERS, INC., et al.,

Jointly Administered Related to Docket Nos. 1366, 1405 and 1406

Debtors.

RESPONSES TO CERTAIN SUBPOENAS ISSUED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS Northcott Hospitality International, LLC (NHI) and Brian J. Schwen (Schwen), for their objections and responses to the subpoenas [Docket Nos. 1405 and 1406] (the Subpoenas) to produce documents issued by the Official Committee of Unsecured Creditors (the Committee) in the above-captioned matter, state and allege as follows: PRELIMINARY STATEMENT A. NHI is an affiliate of Omega Trust and Schwen in an employee of NHI. 1

Further, the Subpoenas were issued to NHI and Schwen in connection with the Committees objection to Omega Trusts proof of claim [Docket No. 1366]. Because of the nature of the relationships among Omega Trust, NHI and Schwen, the context of the discovery sought by the Committee in connection with the Subpoenas, and for purposes of discovery only, counsel for Omega Trust has been asked to and have undertaken to respond to the Subpoenas on behalf of NHI and Schwen. (NHI, Schwen and Omega Trust hereafter sometimes shall be referred to as Respondents).

The Subpoena purportedly directed to NHI mistakenly was directed to Northcott Hospitality, Inc. at the address of NHI. As set forth herein, the correct name of NHI is Northcott Hospitality International, LLC.

1903085v1

12/15/2011 SL1 1118248v1 106745.00001

B.

The information and responses provided herein are based on information

presently available and is given subject to such refreshing recollection and such additional knowledge of facts as may result from discovery in this action or from other facts or investigation. In the event that discovery or other pre-hearing preparation develops further information with respect to responses to the subpoenas, Respondents hereby reserve the right to supplement, clarify, revise or correct any and all responses. Respondents, however, assume no duty or obligation to supplement these responses except as required by the applicable Rules of Procedure. C. Confidentiality Stipulation. Omega Trust, the Committee, Debtors and

Wayzata Investment Partners, LLC have entered into a confidentiality stipulation, dated October 17, 2011 (Confidentiality Stipulation), that will govern the use, disclosure, redaction requirements and other issues related to the confidential documents produced herewith. The Confidentiality Stipulation is hereby incorporated herein by reference. Counsel for Omega Trust herby asserts that all documents produced pursuant to the subpoenas served on NHI and Schwen are subject to the Confidentiality Stipulation and its requirements. D. Due to the accelerated nature of the discovery in the above-captioned

matter, it was not possible for counsel to redact all Personal Data Identifiers contained in the documents produced. Personal Data Identifiers is defined in the Confidentiality Stipulation as any type or classification of information that is required to be redacted in documents filed with the court by Federal Rule of Civil Procedure 5.2(a), or any other applicable rule, procedure or policy of similar import. Therefore, all documents produced herewith are subject to the redaction requirements of Personal Data

2
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

Identifiers as set forth in the Confidentiality Stipulation. Regardless of whether a document containing a Personal Data Identifier is designated as confidential, a Personal Data Identifier shall be considered Confidential Information. For avoidance of doubt, nothing in this response or the Confidentiality Stipulation shall affect a partys obligation to redact a Personal Data Identifier in accordance with any applicable rule, procedure or policy prior to filing a document containing such information with the Court. If a party seeks to file a document containing a Personal Data Identifier with the Court, that party must redact any and all Personal Data Identifiers from the document before filing it. E. Documents produced pursuant to any given document request of the

subpoenas may be responsive to one or more of the document requests. While reasonable effort was made to associate each document with a particular document request, it is possible that documents produced as responsive to one request may also be responsive to other requests despite there being no designation so stating. The association of a document with a particular document request does not necessarily mean it is not responsive to other document requests. F. Documents produced in response to the Subpoenas were produced

pursuant to the Fed. R. Civ. P. 26(b)(2)(B). Backup servers of NHI and/or Schwen that may or may not contain responsive documents or communications were not searched because information contained on such servers is not reasonably accessible without undue burden or cost.

3
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

GENERAL OBJECTIONS The following objections are incorporated herein to each response and also constitute objections to the instructions and definitions contained in the Subpoenas served on NHI and Schwen: 1. Respondents object to each and every item in the subpoenas to the extent

they seeks information which is protected from disclosure by the attorney-client privilege or which reflects the opinions, strategies, theories, mental impressions, or work product of lawyers and staff or any other applicable privilege. Responsive but privileged documents and information will not be produced. Further, Respondents may withdraw any such information as soon as it is identified. Any inadvertent disclosure of attorneyclient privileged, work product, or other privileged documents or information shall not be deemed a waiver of these privileges. 2. Respondents object to the definitions, instructions, duty to supplement and

document requests in the Subpoenas to the extent they seek to impose any obligations other than those found in the Federal Rules of Civil Procedure, Federal Rules of Bankruptcy Procedure, local bankruptcy court rules, and any decisional law regarding the proper scope of discovery. 3. Respondents object to the definitions, instructions, duty to supplement and

discovery requests to the extent they are vague or ambiguous. 4. Respondents object to the definitions, instructions, duty to supplement and

document requests to the extent they are overly broad, unduly burdensome or oppressive, including to the extent they seek information from public sources or third

4
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

parties, to the extent they seek information or documents already in the possession or control of the Committee and to the extent the requests are duplicative of one another. 5. Respondents object to the instructions to the extent they purport to require

that information be obtained from or with respect to persons or entities over which Respondents have no control on the ground that such requests exceed the permissible scope of discovery. 6. Respondents object to the requests included in the Subpoenas to the

extent they call for material that is private, confidential, proprietary, trade secret and otherwise not subject to disclosure. Subject to and without waiving said objections, to the extent that such information and documentation exists, is relevant and is not otherwise privileged, said information and documentation have been produced by Respondents in accordance with the mutually agreeable Confidentiality Stipulation as discussed supra. 7. Respondents expressly reserve the right to object at any stage of this

litigation to the introduction into evidence at trial, of documents or information protected by the attorney-client privilege, the attorney work product doctrine, or information or documents subject to any objection contained herein, and which have been produced inadvertently. 8. Respondents reserve any and all objections as to relevance, foundation,

competency, opinion, materiality and admissibility. 9. Respondents responses to the Subpoenas are not intended to waive any

objection they may have or may assert later, and they expressly reserve the right to object to further discovery into the subject matter of its responses.

5
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

10.

Respondents state that they do not and will not waive any of their general

or particular objections in the event it may furnish materials or information coming within the scope of any such objections. 11. Each of the above General Objections shall be deemed to apply, where

appropriate, to the responses set forth below, notwithstanding that responses have supplied to the document requests in the Subpoenas. 12. Referencing and expressly incorporating each of these general objections, Respondents hereby respond as follows: RESPONSES TO REQUESTS FOR DOCUMENTS 1. All Documents constituting or concerning any report, appraisal, analysis, or study of the value of the 1977 Agreement and/or the 1969 Franchise Development Agreement for the period of January 1, 2000 to the present. RESPONSE: Respondents object to this request as overly broad, unduly

burdensome and requiring them to produce documents that are in the possession of a person or entity other than itself. Respondents further object to this request as duplicative of the documents produced by Omega Trust in response to the First Set of Document Requests of the Committee to Omega Trust (the Committees Document Requests). The records of NHI and Schwen were already searched in connection with the Committees Document Requests and all documents responsive to request number 1 that were in NHI and Schwens possession, custody and control were produced in response to the Committees Document Request number 3 by Omega Trust. Thus, Respondents further object to this request as calling for the production of documents that are already in the Committees possession and refer the Committee to the

6
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

Document Production Index produced in connection with Omega Trusts response to the Committees Document Requests. 2. All Communications between or among any of Mr. Schwen, NHI, Omega Trust, and the Debtors concerning the value of the 1977 Agreement and/or the 1969 Franchise Development Agreement for the period of January 1, 2000 to the present. RESPONSE: Respondents object to this request as overly broad, unduly burdensome, and requiring them to produce documents that are in the possession of a person or entity other than itself. Respondents further object to this request as

duplicative of the documents requested by the Committee and produced by Omega Trust in response to the Committees Document Requests. The records of NHI and Schwen were already searched in connection with the Committees Document Requests and documents responsive to request number 2 that were in NHIs and Schwens possession, custody and control were produced in response to the Committees Document Request numbers, 3, 9 and 10 by Omega Trust. Respondents further object to this request to the extent that it seeks information that is protected by the attorney-client privilege or the work-product doctrine. Subject to and without waiving these objections and the general objections stated above, NHI and Schwen refer the Committee to the additional documents with bates labels 005428-005429; 005443. 3. All Documents and Communications concerning the $17 million estimated value of the 1977 Agreement pursuant to a net present value calculation performed by Mr. Schwen and/or NHI in or about May, 2006 including without limitation all work papers, analyses, and supporting documentation. RESPONSE: Respondents are unaware of and/or have no recollection of a $17 million estimated value of the 1977 Agreement or any net present value calculation pursuant to which a $17 million estimated value was allegedly determined. Respondents object to this request as requiring them to produce documents that are in the possession of a person or entity other than itself. Respondents further object to this

7
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

request as duplicative of document request numbers 1 and 2, and duplicative of the documents requested by the Committee and produced by Omega Trust in response to the Committees Document Requests. The records of NHI and Schwen were already searched in connection with the Committees Document Requests and documents responsive to request number 3 that were in NHIs and Schwens possession, custody and control were produced in response to the Committees Document Request numbers 3, 9 and 10 by Omega Trust. Respondents further object to this request to the extent that it seeks information that is protected by the attorney-client privilege or the workproduct doctrine. Subject to and without waiving these objections and the general

objections stated above, NHI and Schwen refer the Committee to the additional documents with bates labels 005430-005442. Respondents further state that the tabs referenced in the document with bates label 005442 are not in NHIs or Schwens possession, custody or control. 4. All Documents describing or concerning the transfer of territorial exclusivity rights for the states of Iowa and Wisconsin from Perkins Pancake Houses, Inc. to Mr. Wyman Nelson and/or his Affiliates, including without limitation all Documents describing or concerning the validity or enforceability of the 1969 Franchise Development Agreement. RESPONSE: Respondents object to this request as overly broad, unduly burdensome, and requiring them to produce documents that are in the possession of a person or entity other than itself. Respondents further object to this request to the extent it is duplicative of document requested by the Committee and produced by Omega Trust in response to the Committees Document Requests. The records of NHI and Schwen were already searched in connection with the Committees Document Requests and documents responsive to request number 4 that were in NHIs and Schwens possession, custody and control have already been produced in response to the Committees Document Request numbers 1, 3, and 10 by Omega Trust.

8
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

Respondents further object to this request to the extent that it seeks information that is protected by the attorney-client privilege or the work-product doctrine. Subject to and without waiving these objections and the general objections stated above, NHI and Schwen refer the Committee to the additional documents with bates labels 005426005427. 5. All Communications between or among any of Mr. Schwen, NHI, Omega Trust, and the Debtors concerning the transfer of territorial exclusivity rights for the states of Iowa and Wisconsin from Perkins Pancake Houses, Inc. to Mr. Wyman Nelson and/or his Affiliates, including without limitation all Documents describing or concerning the validity or enforceability of the 1969 Franchise Development Agreement. RESPONSE: Respondents object to this request as overly broad, unduly burdensome, and requiring them to produce documents that are in the possession of a person or entity other than itself. Respondents further object to this request to the extent it is duplicative of document requested by the Committee and produced by Omega Trust in response to the Committees Document Requests. The records of NHI and Schwen were already searched in connection with the Committees Document Requests and documents responsive to request number 5 that were in NHIs and Schwens possession, custody and control have already been produced in response to the Committees Document Request numbers 1, 3, and 10 by Omega Trust. Respondents further object to this request to the extent that it seeks information that is protected by the attorney-client privilege or the work-product doctrine. Subject to and without waiving these objections and the general objections stated above, NHI and Schwen refer the Committee to the additional documents with bates labels 005426005427.

9
1903085v1

12/15/2011 SL1 1118248v1 106745.00001

Dated: December 15, 2011

Respectfully submitted, STEVENS & LEE, P.C.

/s/ John D. Demmy John D. Demmy (DE Bar No. 2802) 1105 North Market Street, 7th Floor Wilmington, DE 19801 Telephone: (302) 425-3308 Facsimile: (610) 371-8515 E-mail: jdd@stevenslee.com -andJames A. Rubenstein Moss & Barnett, P.A. 4800 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Telephone: 612-877-5363 Facsimile: 612-877-5999 E-mail: rubenstein@moss-barnett.com Attorneys for Omega Trust #1 Omega Trust #2 and Omega Trust #3, responding on behalf of Northcott Hospitality International, LLC and Brian J. Schwen

10
1903085v1

12/15/2011 SL1 1118248v1 106745.00001