In re

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE
Chapter 11
BACK YARD BURGERS, INC., et al.
1
Case No. 12-12882 (PJW)
Debtors.
(Joint Administration Pending)
APPLICATION OF THE DEBTORS FOR ORDER AUTHORIZING
RETENTION AND EMPLOYMENT OF CERTAIN PROFESSIONALS
UTILIZED BY THE DEBTORS IN THE ORDINARY COURSE OF BUSINESS
The above-captioned debtors and debtors-in-possession (collectively, the "Debtors")
hereby submit this application (the "Application") pursuant to sections 1 OS( a), 327, 328, 330,
and 363 of title 11 of the United States Code 101, et seq. (the "Bankruptcy Code"), Rules
2014 and 6003 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and
Rule 2014-1 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 retention and employment of certain professionals utilized by the debtors in the
ordinary course of business. In support of this Application, the Debtors respectfully state as
follows:
Status of the Case
1. On the date hereof (the "Petition Date"), each of the Debtors filed a voluntary
petition for relief under the Bankruptcy Code.
The Debtors in these chapter II cases, along with the last four digits of each Debtor's federal tax
identification number, are: Back Yard Burgers, Inc. (7163), BYB Properties, Inc. (9046), Nashville BYB,
LLC (6507) and Little Rock Back Yard Burgers, Inc. (9133). The mailing address of the Debtors is: St.
Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219.
FTL 108875077v7
2. The Debtors have continued in possession of their properties and are operating
and managing their businesses as debtors-in-possession pursuant to sections 1107(a) and 1108 of
the Bankruptcy Code.
3. No request has been made for the appointment of a trustee or examiner and a
creditors' committee has not yet been appointed in these cases.
Jurisdiction, Venue, and Statutory Predicates
4. The Court has jurisdiction over this Application pursuant to 28 U.S.C. 157 and
1334. Venue is proper in this district pursuant to 28 U.S.C. 1408. This matter is core within
the meaning of28 U.S.C. 157(b)(2).
5. The statutory predicates for the relief requested herein are sections 1 05(a), 327,
328, 330, and 363 of the Bankruptcy Code, Rules 2014 and 6003 of the Bankruptcy Rules, and
Rule 2014-1 ofthe Local Rules.
Background
6. The Debtors are an established quick-service restaurant chain with approximately
90 locations concentrated in the Southeast United States. The Debtors operate company owned
locations and maintain a franchise network of individually owned restaurants which collectively
employ approximately five hundred and twelve (512) employees. Back Yard Burgers began as a
single restaurant in Cleveland, Mississippi in 1987, and today, the Debtors pride themselves on
having a strong reputation for offering big and bold backyard tastes served straight from the grill
at value prices. The Debtors compete for business by offering black-angus hamburgers and
chicken grilled on-site on charcoal grills, providing savory flavors most usually found only in
neighborhood back yards. Meal offerings include chicken sandwiches, turkey burgers, hot dogs,
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FTL 108875077v7
salads, sides, and desserts; however, the main focus of the menu is centered on the Debtors'
premium Black Angus burgers.
7. The Debtors own and operate approximately 25 restaurants (excluding franchised
locations), positioned as quick-service dining destinations where families and children can enjoy
a wide variety of freshly prepared meals and desserts for lunch and dinner. Restaurant
operations generated $18.4 million in revenue in the first eight (8) months of 2012 with a $2.4
million EBITDA loss.
8. The Debtors also have contracted with approximately forty-two ( 42) franchisees
to operate more than sixty-four ( 64) restaurants under franchise agreements. Franchisees are
offered the right to operate a Back Yard Burgers restaurant for an upfront fee, and franchised
locations are operated under strict guidelines to present and preserve a unified brand image.
Franchising offers stable cash flows from the collection of royalties and product purchases,
accounting for approximately $1.3 million in revenue in the first eight (8) months of 2012.
9. In the first nine months of 2012, the Debtors reported a 0.8 percent decline and
1.8 percent incline in same store sales of franchise and company -operated stores, respectively.
In the same segments, the Debtors reported declines of 4.0 percent and 5.7 percent, respectively,
in 2011. These decreases were driven by a decline in guest traffic.
10. A detailed factual background of the Debtors' businesses and operations, as well
as the events precipitating the commencement of these cases, is more fully set forth in the
Declaration of James E. Boyd, Jr. in Support of the Debtors' Chapter 11 Petitions and Requests
for First Day Relief (the "First Day Declaration"), filed contemporaneously herewith and
incorporated herein by reference.
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FTL 108875077v7
Ordinary Course Professionals
11. The Debtors customarily retain the services of various attorneys, accountants,
consultants, and other professionals and experts to assist them in matters arising in the ordinary
course of their business unrelated to these chapter 11 cases (each an "Ordinary Course
Professional," and collectively, the "Ordinary Course Professionals"). A list of the Ordinary
Course Professionals expected to be utilized by the Debtors during these cases is attached hereto
as Exhibit A.
2
12. In contrast, the Debtors have filed (or will file) individual retention applications
for any professionals that the Debtors seek to employ in connection with administration of these
chapter 11 cases (the "Chapter 11 Professionals"). The Chapter 11 Professionals will be
permitted to be compensated and reimbursed only in accordance with related procedures to be
approved by this Court, including by interim and final fee applications.
13. The Ordinary Course Professionals will not be involved in the administration of
these chapter 11 cases, but rather will provide services in connection with the Debtors' ongoing
business operations or services. As a result, the Debtors believe that the Ordinary Course
Professionals are not "professionals" as that term is used in sections 327 or 328 of the
Bankruptcy Code, whose retention must be approved by this Court, subject to the limitations
contained below. Nevertheless, out of an abundance of caution, the Debtors hereby seek an
order authorizing the retention and payment of all Ordinary Course Professionals during the
pendency of these chapter 11 cases pursuant to the procedures described herein.
Relief Requested
As discussed more fully below, the Debtors reserve the right to amend the list in the future in their sole
discretion, pursuant to the procedures set forth herein.
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FTL 108875077v7
14. The Debtors seek entry of an order authorizing them to retain and employ the
Ordinary Course Professionals on an "as needed" basis without the submission of separate,
formal retention applications for each Ordinary Course Professional, subject to the monthly caps
detailed herein, and establishing procedures to compensate the Ordinary Course Professionals
under sections 328, 330, and 331 of the Bankruptcy Code for postpetition services rendered and
expenses incurred.
Basis for Relief Requested
15. The Debtors cannot continue to operate their business as debtors-in-possession
unless they retain and pay for the services of the Ordinary Course Professionals. Moreover, the
work of the Ordinary Course Professionals, albeit ordinary course, is directly related to the
preservation of the value of the Debtors' estates (even though the amount of fees and expenses
incurred by the Ordinary Course Professionals represents only a fraction of that value).
16. The operation ofthe Debtors' business would be severely hindered ifthe Ordinary
Course Professionals were delayed or precluded from performing their work on behalf of the
Debtors while the Debtors: (a) submitted to this Court an application, affidavit, and proposed
retention order for each Ordinary Course Professional; (b) waited until such order was approved
before such Ordinary Course Professional continued to render services; and (c) withheld
payment of the normal fees and expenses of the Ordinary Course Professionals until they
complied with the compensation procedures applicable to the Chapter 11 Professionals.
17. Further, some of the Ordinary Course Professionals are unfamiliar with the fee
application procedures employed in bankruptcy cases. Some of the Ordinary Course
Professionals might be unwilling or unable to assume the administrative cost and burden of such
procedures, and may therefore be unwilling to work with the Debtors if these requirements are
5
FTL 108875077v7
imposed, forcing the Debtors to incur additional and unnecessary expenses to retain other
professionals without such background and expertise and at potentially higher rates. The
uninterrupted services of the Ordinary Course Professionals are vital to the Debtors' continuing
operations. More importantly, the cost of preparing and prosecuting these retention applications
and fee applications would be significant and such costs would be borne by the Debtors' estates.
18. Moreover, a requirement that the Ordinary Course Professionals each file
retention pleadings and follow the usual fee application process required of the Chapter 11
Professionals would flood the bankruptcy clerk's office, this Court, and the U.S. Trustee's office
with unnecessary fee applications while significantly adding to the administrative costs of these
cases without a corresponding benefit to the Debtors' estates. This Application proposes a
procedure to alleviate such burdens.
Proposed Retention Procedure
19. The Debtors propose that they be permitted to continue to employ and retain the
Ordinary Course Professionals. Pursuant to the requirements imposed by FED. R. BANKR. P.
2014 and LOCAL R. 2014-1 and to provide the interested parties and this Court with appropriate
comfort and assurances, each Ordinary Course Professional will be required to file with this
Court, and to serve upon: (a) proposed counsel for the Debtors, (i) Greenberg Traurig, LLP,
Greenberg Traurig, LLP, The Nemours Building, 1007 North Orange Street, Suite 1200,
Wilmington, Delaware 19801 (Attn: Dennis A. Meloro, Esq.) and Greenberg Traurig, LLP, 200
Park Avenue, New York, New York 10166 (Attn: Nancy A. Mitchell, Esq. and Maria J. DiConza,
Esq.); (b) Office of the United States Trustee, 844 King Street, Suite 2207, Lockbox 35,
Wilmington, Delaware, 19801; (c) counsel to any Official Committee of Unsecured Creditors
appointed in these cases; (d) Harbert Mezzanine Partners II, L.P., as the prepetition Senior
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FTL 108875077v7
Lender, (e) Pharos Capital Partners II, L.P. and Pharos Capital Partners II-A, L.P., as the
postpetition lender, and (f) all parties requesting notice in these cases pursuant to FED. R. BANKR.
P. 2002 (collectively, the "Notice Parties"), a disclosure affidavit of such proposed professional
(the "Affidavit," a form of which is attached hereto as Exhibit B and incorporated herein by
reference) on the later of: (a) thirty (30) days after entry of an order of this Court granting the
Application; or (b) prior to the payment of any such Ordinary Course Professional for services
provided to the Debtors.
20. The Affidavit shall set forth the following information: (a) a description of the
effort(s) that were taken to search for connections with parties-in-interest; (b) a description ofthe
proposed scope of services to be provided by the Ordinary Course Professional; (c) the rate(s)
proposed to be charged for the services; (d) all information otherwise required to be disclosed
pursuant to FED. R. BANKR. P. 2014; and (e) to the extent that the Ordinary Course Professional
was not providing services as of the Petition Date, the date on which such services began
postpetition. The Debtors will not make any payments to any Ordinary Course Professionals
until they have filed such an Affidavit.
21. The Debtors further request that the Notice Parties have ten (10) days from the
date of the filing and service of the Affidavit (the "Objection Period") to object to the retention
of the Ordinary Course Professional in question. Any such objection must be timely filed with
this Court and served upon the Ordinary Course Professional, the Debtors, and the Notice
Parties. If an objection is filed and cannot be resolved and/or withdrawn within twenty (20) days
after service of such objection, this Court shall adjudicate the matter at the next omnibus hearing
scheduled in these cases, or such later hearing as agreed to by the Debtors and the objecting party
7
FTL 108875077v7
or parties.
3
If no timely objection is filed and received, or if an objection is withdrawn, the
Debtors will be authorized to retain and compensate the Ordinary Course Professional without
further order of this Court.
22. The Debtors also request that they be authorized to employ and to retain
additional Ordinary Course Professionals not currently listed on Exhibit A from time to time, as
necessary, without the need to file individual retention applications or have a further hearing by
filing with this Court one or more supplemental exhibits (a "Supplemental Notice") and serving
a copy of any such Supplemental Notice upon the Notice Parties. The Debtors propose that, as
with the Ordinary Course Professionals, each additional Ordinary Course Professional be
required to file and serve an Affidavit on the later of: (a) thirty (30) days after the Supplemental
Notice is filed; or (b) prior to the payment of any such Ordinary Course Professional for services
provided to the Debtors. The Notice Parties then would be given ten (1 0) days after service of
each required Affidavit to object to the retention of such professional. Any objection would be
handled as set forth above. If no timely objection is submitted, or the objection is withdrawn,
then the professionals listed on such Supplemental Notice would be deemed to be Ordinary
Course Professionals within the purview of this Court's order on this Application without the
necessity of a hearing or further notice or order.
Proposed Payment Procedure
23. The Debtors seek authority to pay, without formal application to or order from
this Court, one hundred percent (1 00%) of the fees and expenses of each Ordinary Course
If after a hearing, the retention of an Ordinary Course Professional is not approved, such professional may
still apply to this Court, pursuant to sections 330 and 331 of the Bankruptcy Code, for compensation for all
work performed on behalf of the Debtors from the Petition Date through the date of an order denying such
retention.
8
FTL 108875077v7
Professional upon submission to, and approval by, the Debtors of an appropriate billing
statement setting forth in reasonable detail the nature of the postpetition services rendered and
expenses actually incurred; provided, however, that such interim fees and expenses do not
exceed the maximum authority under the authorized caps established herein. Further, the
Debtors will not pay any fees and expenses to an Ordinary Course Professional until the
professional has filed its Affidavit, and the Objection Period has expired with no related
objection having been filed. If an objection is filed, no payment will be made until such
objection is resolved and withdrawn, or such retention is approved by the Court.
Monthly Payment Caps Proposed by the Debtors
24. For purposes of this Application the Debtors propose that each Ordinary Course
Professional be limited to monthly fees and expenses of $30,000.
25. If in any given month the fees and expenses for any one Ordinary Course
Professional exceeds $30,000, the Debtors request authority to pay such Ordinary Course
Professional the amount in excess of the respective monthly cap only after an application is made
for approval by the Court of such Ordinary Course Professional's fees and expenses in excess of
the monthly fee cap for such month under sections 330 and 331 of the Bankruptcy Code and an
order of the Court is entered approving such fee application.
26. The Debtors also request an exception from the monthly limitations for Ordinary
Course Professionals for any contingent fee amounts received by Ordinary Course Professionals
from recoveries realized on the Debtors' behalf.
27. As a routine matter prior to the commencement of these cases, the Debtors
carefully reviewed all billing statements received from the Ordinary Course Professionals to
ensure that the fees charged were reasonable and that the expenses incurred were necessary.
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FTL 108875077v7
This type of review will continue postpetition and, coupled with the proposed monthly payment
caps, will protect the Debtors' estates against any excessive or improper billings.
Retention of Ordinary Course Professionals is Authorized
28. Section 327(e) of the Bankruptcy Code provides, in relevant part:
The trustee, with the court's approval, may employ, for a specified
special purpose ... an attorney that has represented the debtor, if
in the best interest of the estate, and if such attorney does not
represent or hold any interest adverse to the debtor or to the estate
with respect to the matter on which such attorney is to be
employed.
11 U.S.C. 327(e). Further, section 328(a) of the Bankruptcy Code provides, in relevant part:
The trustee ... with the court's approval, may employ or authorize
the employment of a professional person under Section 327 ... on
any reasonable terms and conditions of employment, including on
a retainer, on an hourly basis, on a fixed or percentage fee basis, or
on a contingent fee basis.
11 U.S.C. 328(a). Also, section 330 of the Bankruptcy Code provides, in relevant part:
After notice to the parties-in-interest and the United States Trustee
and a hearing ... the court may award to a ... professional person
employed under Section 327 ... reasonable compensation for
actual, necessary services rendered ... and ... reimbursement for
actual, necessary expenses.
11 U.S.C. 330(a)(l).
29. Finally, section 363(b)(1) of the Bankruptcy Code provides, in relevant part:
The trustee, after notice and a hearing, may use, sell, or lease, other
than in the ordinary course of business, property ofthe estate ....
11 U.S.C. 363(b)(l).
30. The Debtors and their estates will be well served by authorizing the retention and
compensation of the Ordinary Course Professionals because of such professionals' past
relationship with and understanding of the Debtors and their operations. It is in the best interest
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FTL 108875077v7
of all of the parties and the creditors to avoid any disruption in the professional services rendered
by the Ordinary Course Professionals in the day-to-day operations of the Debtors' business.
Moreover, the Ordinary Course Professionals are all to provide services customarily rendered to
the Debtors in the ordinary course of the Debtors' business.
31. In determining whether an entity is a "professional" within the meaning of section
327 of the Bankruptcy Code and, therefore, must be retained by express approval of the court,
courts consider the following:
a. whether the entity controls, manages, administers, invests, purchases, or sells
assets that are significant to the debtor's reorganization;
b. whether the entity is involved in negotiating the terms of a plan of reorganization;
c. whether the entity is directly related to the type of work carried out by the debtor
or to theroutine maintenance of the debtor's business operations;
d. whether the entity is given discretion or autonomy to exercise his or her own
professional judgment in some part of the administration of the debtor's estate;
e. the extent of the entity's involvement in the administration of the debtor's estate;
and
f. whether the entity's services involve some degree of special knowledge or skill,
such that it can be considered a "professional" within the ordinary meaning of the
term.
See, e.g., In re First Merchs. Acceptance Corp., 1997 WL 873551, at *3 (D. Del. Dec. 15, 1997);
In re Sieling Assocs. Ltd. P'ship, 128 B.R. 721, 723 (Bankr. ED. Va. 1991) (authorizing the
debtor to retain an environmental consultant in the ordinary course of business); In re Riker
Indus., Inc., 122 B.R. 964, 973 (Bankr. N.D. Ohio 1990) (not requiring section 327 approval of
the fees of a management and consulting firm that performed only "routine administrative
functions" and whose "services were not central to [the] bankruptcy case"); In re Fretheim, 102
B.R. 298, 299 (Bankr. D. Conn. 1989) (only those professionals involved in the actual
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FTL 108875077v7
reorganization effort, rather than debtor's ongoing business, require approval under section 327);
In re Johns-Manville Corp., 60 B.R. 612, 619 (Bankr. S.D.N.Y. 1986) (only those professionals
involved in the actual reorganization effort, rather than debtor's ongoing business, require
approval under section 327); see also Elstead v. Nolden (In re That's Entm 't Mktg. Group, Inc.),
168 B.R. 226, 230 (N.D. Cal. 1994) (only the retention of professionals whose duties are central
to the administration of the estate require prior court approval under section 327).
32. The foregoing factors must be considered in totality (i.e., no factor alone IS
dispositive). Considering all of the factors, the Debtors do not believe that the Ordinary Course
Professionals are "professionals" within the meaning of section 327 of the Bankruptcy Code,
whose retention must be approved by the Court.
33. Numerous courts, including courts in this district, have routinely granted the same
or similar relief to chapter 11 debtors in other chapter 11 cases. See, e.g., In re Game Tech Int '1,
Inc., Case No. 12-11964 (PJW) (Bankr. D. Del. Aug. 7, 2012); In re Northstar Aerospace (USA),
Inc., Case No. 12-11817 (MFW) (Bankr. D. Del. Jul. 3, 2012); In re Beacon Power Corp., Case
No. 11-13450 (KJC) (Bankr. D. Del. Dec. 15, 2011); In re ChemRx Corp., Case No. 10-11567
(MFW) (Bankr. D. Del. July 7, 2010); In re Stant Parent Corp., Case No. 09-12647 (BLS)
(Bankr. D. Del. Aug. 17, 2009); In re Leiner Health Prods. Inc., Case No. 08-10446 (KJC)
(Bankr. D. Del. Apr. 7, 2008).
Notice
34. Notice of this Motion has been given to the following parties or, in lieu thereof, to
their counsel, if known: (a) the Office of the United States Trustee for the District of Delaware;
(b) counsel to Harbert Mezzanine Partners, L.P ., as the Debtors' prepetition lender; (c) counsel to
Pharos Capital Partners II, L.P. and Pharos Capital Partners II-A, L.P., as the Debtors'
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FTL 108875077v7
postpetition lenders; (d) creditors holding the thirty (30) largest unsecured claims as set forth in
the consolidated list filed with the Debtors' petitions; (e) those parties requesting notice pursuant
to Rule 2002; (f) the Office of the United States Attorney General for the District of Delaware;
(g) the Internal Revenue Service; and (h) the Ordinary Course Professionals listed on Exhibit A
hereto. The Debtors submit that, in light of the nature of the relief requested, no other or further
notice need be given.
No Prior Request
35. No previous application for the relief sought herein has been made to this or any
other court.
Conclusion
WHEREFORE, the Debtors respectfully request that this Court enter an order, substantially in
the form attached hereto, granting the relief requested herein and that it grant the Debtors such
other and further relief as is just and proper.
Dated: October 17, 2012
FTL 108875077v7
GREENBERG TRAURIG, LLP
Is/ Dennis A. Meloro
Dennis A. Meloro (DE Bar No. 4435)
1007 North Orange Street, Suite 1200
Wilmington, Delaware 19801
Telephone: (302) 661-7000
Facsimile: (302) 661-7360
Email: melorod@gtlaw.com
-and-
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FTL 108875077v7
Nancy A. Mitchell (pro hac vice pending)
Maria J. DiConza (pro hac vice pending)
Matthew L. Hinker (DE Bar No. 5348)
GREENBERG TRAURIG, LLP
200 Park A venue
New York, New York
Telephone: (212) 801-9200
Facsimile: (212) 801-6400
Email: mitchelln@gtlaw.com
14
diconzam@gtlaw.com
hinkerm@gtlaw.com
Proposed Counsel for the Debtors and Debtors-
in-Possession
Legal Counsel:

.. TYPE OF
.. .Fim\1:'
$ERVICE
c
.
Gordon & Rees, General corporate
LLP representation
Bone McAllester Employment
NortonPLLC litigation
representation
Littler Mendelson Employment
litigation
representation
Other Professionals:
..

SERVICE
Grant Thornton LLP Accounting
Sitrick & Company
William R.
Carmichael
Arris Management
Group, LLC
John Harris, Jr.
Sells Development,
Inc.
Radiant Systems,
Inc.
Royalties, Inc.
QSROnline.com,
INc.
FTL 108875077v7
Public Relations
Training
consultant.
Management of
Back Yard
Burger, Inc. FL
restaurants.
Franchise
consulting
IT services
Royalty
compliance
inspections
Processing of
Point -of-Sale
(POS) Data
EXHIBIT A
CONTACT
NAME
Alonzo L.
Llorens
James A.
Crumlin, Jr.
John Simmons
CONTACT
NAME.
ADDRESS
3445 Peachtree Rd., Suite 450
Atlanta, GA 30326
Nashville City Center, Suite 1600
511 Union St.
Nashville, TN 37219
3 725 Champion Hills Dr.
Memphis, TN 38125
ADDRESS
.. ".
Robert M. Eperjesy 200 South 6th St., Suite 500
Minneapolis, MN 55402
Thomas Becker
William R.
Carmichael
John Harris, Jr.
Robert Sells
Ernie Simon
Becky Arnold
Jeremy Schuler
7 Times Square, Suite 2600
New York, New York 10036
5001 Head Ct.
Fairfax, VA 22032
P.O. Box 18693
Atlanta, GA 30305
2000 Mallory Lane, Suite 130-399
Franklin, TN 37067
3925 Brookside Pkwy.
Aplharetta, GA 30022
3400 Blue Springs Rd., Suite 302
Kennesaw, GA 30144
1201 Prince Dr.
Corpus Christi, TX 78412
EXHIBITB
Form of Affidavit of Disinterestedness
FTL 108875077v7
In re
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
BACKYARD BURGERS, INC., et a/.
1
Case No. 12-12882 (PJW)
Debtors.
(Joint Administration Pending)
AFFIDAVIT AND DISCLOSURE STATEMENT OF _____ , AS ORDINARY
COURSE PROFESSIONAL
STATE OF ___ _ )
) ss:
COUNTY OF __ _ )
________ , being duly sworn, upon his/her oath, deposes and says:
1. I am a [position] of [Name of Firm or Company], located at [Street, City, State zip
code] (the "Firm").
2. [INSERT], as debtors and debtors-in-possession (collectively, the "Debtors"),
have requested that the Firm provide [SPECIFIC DESCRIPTION OF SERVICES] to the
Debtors, and the Firm has consented to provide such services.
3. The Firm [CHOOSE ONE: did/did not] represent the Debtors prior to their
bankruptcy filings.
4. The Firm may have performed services m the past, may currently perform
services and may perform services in the future, in matters unrelated to these chapter 11 cases,
for persons that are parties in interest in the Debtors' chapter 11 cases. The Firm does not
perform services for any such person in connection with these chapter 11 cases, or have any
The Debtors in these chapter II cases, along with the last four digits of each Debtor's federal tax
identification number, are: Back Yard Burgers, Inc. (7163), BYB Properties, Inc. (9046), Nashville BYB,
LLC (6507) and Little Rock Back Yard Burgers, Inc. (9133). The mailing address of the Debtors is: St.
Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219.
FTL 108875077v7
relationship with any such person, their attorneys, or accountants that would be adverse to the
Debtors or their estates.
5. As part of its customary practice, the Firm is retained in cases, proceedings, and
transactions involving many different parties, some of whom may represent or be employed by
the Debtors, claimants, and parties-in-interest in these chapter 11 cases.
6. In the ordinary course of its business, the Firm maintains a database for purposes
of performing "conflicts checks." The Firm's database contains information regarding the
Firm's present and past representations. Pursuant to FED. R. BANKR. P. 2014(a), I obtained a list
of the entities identified in FED. R. BANKR. P. 2014(a) from counsel to the Debtors for purposes
of searching the aforementioned database and determining the connection(s) which the Firm has
with such entities. The Firm's search of the database identified the following connections:
7. [DISCLOSE CONNECTIONS HERE]
8. Neither I nor any [principal, partner, director, officer, etc.] of, or professional
employed by, the Firm has agreed to share or will share any portion of the compensation to be
received from the Debtors with any other person other than the principal and regular employees
ofthe Firm.
9. Neither I nor any [principal, partner, director, officer, etc.] of, or professional
employed by, the Firm, insofar as I have been able to ascertain, holds or represents any interest
adverse to the Debtors or their estates with respect to the matter(s) upon which this Firm is to be
employed. Furthermore, neither I nor any [principal, partner, director, officer, etc.] of, or
professional employed by, the Firm, insofar as I have been able to ascertain, holds or represents
any interest adverse to the Debtors.
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FTL 108875077v7
10. The Debtors owe the Firm $ [ _____ ] for prepetition services, the payment
of which is subject to limitations contained in the United States Bankruptcy Code, 11 U.S.C.
101-1532.
11. As of _____ , which was the date on which the Debtors commenced these
chapter 11 cases, the Firm [was/was not] party to an engagement or services agreement with the
Debtors. [A copy of such agreement is attached as Exhibit "1" to this Affidavit].
12. The Firm is conducting further inquiries regarding its retention by any creditors of
the Debtors, and upon conclusion of that inquiry, or at any time during the period of its
employment, if the Firm should discover any facts bearing on the matters described herein, the
Firm will supplement the information contained in this Affidavit.
I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
SWORN TO AND SUBSCRIBED before
me this _ day of , 20_.
Notary Public
FTL 108875077v7
3
[NAME]
[ADDRESS]
In re
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
BACK YARD BURGERS, INC., et al.
1
Case No. 12-12882 (PJW)
Debtors.
(Joint Administration Pending)
Ref. Docket No.
ORDER AUTHORIZING RETENTION
AND EMPLOYMENT OF CERTAIN PROFESSIONALS
UTILIZED BY THE DEBTORS IN THE ORDINARY COURSE OF BUSINESS
Upon the application (the "Application")
3
ofthe above-captioned debtors and debtors-in-
possession (collectively, the "Debtors") seeking entry of an order pursuant to sections 105(a),
327, 328, 330 and 363 of title 11 of the United States Code, 11 U.S.C. 101, et seq. (the
"Bankruptcy Code"), authorizing the Debtors to retain and employ certain professionals in the
ordinary course of business without further order of the Court; and upon the Declaration of
James E. Boyd, Jr. in Support of the Debtors' Chapter II Petitions and Requests for First Day
Relief(the "First Day Declaration"); and it appearing that this Court has jurisdiction to consider
the Application pursuant to 28 U.S.C. 157 and 1334; and it appearing that venue of these
cases and the Application in this district is proper pursuant to 28 U.S.C. 1408 and 1409; and it
appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b); and this Court
having determined that the relief requested in the Application is in the best interests of the
Debtors, their estates, their creditors and other parties in interest; and it appearing that proper and
2
The Debtors in these chapter II cases, along with the last four digits of each Debtor's federal tax
identification number, are: Back Yard Burgers, Inc. (7I63), BYB Properties, Inc. (9046), Nashville BYB,
LLC (6507) and Little Rock Back Yard Burgers, Inc. (9133). The mailing address of the Debtors is: St.
Clouds Building, 500 Church Street, Suite 200, Nashville, TN 3 7219.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Application.
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adequate notice of the Application has been given and that no other or further notice is
necessary; and after due deliberation thereon; and good and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. For the reasons set forth on the record, the Application is GRANTED.
2. The Debtors are authorized to retain and to employ, pursuant to sections 1 05(a),
327, 328, and 330 of the Bankruptcy Code, effective as of the Petition Date, the Ordinary Course
Professionals listed on Exhibit A to the Application, or with respect to professionals not listed
on Exhibit A, such later date identified in this Order, without the need to file separate, formal
retention applications or obtain retention ordersO for each such Ordinary Course Professional.
3. Within five (5) business days after the date of entry of this Order, the Debtors
shall serve this Order and the form of Affidavit attached to the Application as Exhibit B upon
each Ordinary Course Professional.
4. By the later of: (a) thirty (30) days after entry of this Order for Ordinary Course
Professionals listed on Exhibit A, or thirty (30) days after the filing of a Supplemental Notice for
Ordinary Course Professionals not listed on Exhibit A; or (b) prior to the payment of any such
Ordinary Course Professional for services provided to the Debtors, each Ordinary Course
Professional shall file with this Court, and serve upon: (a) proposed counsel for the Debtors, (i)
Greenberg Traurig, LLP, The Nemours Building, 1007 North Orange Street, Suite 1200,
Wilmington, Delaware 19801 (Attn: Dennis A. Meloro, Esq.) and Greenberg Traurig, LLP, 200
Park Avenue, New York, New York 10166 (Attn: Nancy A. Mitchell, Esq. and Maria J. DiConza,
Esq.); (b) Office of the United States Trustee, 844 King Street, Suite 2207, Lockbox 35,
Wilmington, Delaware, 19801; (c) counsel to any Official Committee of Unsecured Creditors
appointed in these cases; and (e) all parties requesting notice in these cases pursuant to FED. R.
BANKR. P. 2002 (collectively, the "Notice Parties"), a disclosure affidavit of the proposed
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professional (the "Affidavit") in the form attached to the Application as Exhibit B.
Notwithstanding the foregoing, the time limits for filing the Affidavit shall not preclude the
Debtors from seeking to employ an Ordinary Course Professional nunc pro tunc to a date that is
more than thirty (30) days prior to the filing of its Affidavit, provided that the request for nunc
pro tunc relief is specifically referenced in the title of the Affidavit and in the corresponding title
of the docket entry for the filed Affidavit.
5. The Notice Parties shall have ten (10) days after service of each Ordinary Course
Professional's Affidavit (the "Objection Period") to object to the retention of such professional.
Any such objections shall be timely served upon the Ordinary Course Professional to whom the
objection applies, the Debtors, and the Notice Parties. If any such objection is filed and cannot
be resolved and/or withdrawn within twenty (20) days after service of such objection, this Court
shall adjudicate the matter at a regularly scheduled omnibus hearing. If no timely objection is
filed and received, or if any objection is withdrawn, the Debtors shall be authorized to retain the
Ordinary Course Professional without further order of this Court.
6. The Debtors may not make any payments to any Ordinary Course Professionals
until (a) the Ordinary Course Professional has filed the Affidavit in accordance with the
provisions of this Order and the Objection Period has expired with no related objections having
been filed, or (b) if a properly-filed Affidavit and a related objection are filed, until such
objection is resolved or withdrawn, or such retention is approved by the Court.
7. The Debtors are authorized, without need for further hearing or order from this
Court, to employ and retain Ordinary Course Professionals not currently listed on Exhibit A to
the Application by filing with this Court, and serving on the Notice Parties, Supplemental
Notices listing the name of the professionals, together with the properly filed Affidavit, and by
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3
otherwise complying with the terms of this Order (including providing for an Objection Period
for each such Affidavit to the Notice Parties).
8. Without further order of this Court, the Debtors are authorized, but not required,
to pay to each Ordinary Course Professional properly retained pursuant to this Order one
hundred percent (1 00%) of each Ordinary Course Professional's fees and expenses, not to exceed
$[30,000] in any given month, in the manner customarily made by the Debtors prepetition. Each
Ordinary Course Professional must submit reasonably detailed billing statements indicating the
nature of the services rendered, calculated in accordance with such professional's standard
billing practices (without prejudice to the rights of parties in interest to dispute any such billing
statements).
9. In the event an Ordinary Course Professional seeks more than the Monthly Cap in
a single month, then such Ordinary Course Professional shall file a fee application for the
amount in excess of the Monthly Cap for the month at issue in accordance with the Federal Rules
of Bankruptcy Procedure, the Local Rules of Bankruptcy Practice and Procedure for the United
States Bankruptcy Court for the District of Delaware, the Fee Guidelines Promulgated by the
Executive Office of the United Trustee, and any order entered by the Court governing the
payment of compensation and reimbursement of expenses in these chapter 11 cases.
10. Every ninety (90) days (commencing on the first day of the month following the
ninetieth (90th) day after the entry of this Order), the Debtors shall file with the Court a report
summarizing payments to Ordinary Course Professionals (an "Ordinary Course Professionals
Report"), and serve the Ordinary Course Professionals Report on the Notice Parties.
11. The Ordinary Course Professionals Report shall include the following information
for each Ordinary Course Professional receiving payments from the Debtors during the
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4
applicable Reporting Period (as defined below): (a) the name of such Ordinary Course
Professional; (b) the aggregate amounts paid as compensation for services rendered and
reimbursement of expenses incurred by such Ordinary Course Professional during the preceding
ninety (90) day period ending at the conclusion of the prior calendar month (the "Reporting
Period"); and (c) a general description of the services rendered by such Ordinary Course
Professional.
12. Notwithstanding anything to the contrary contained herein, any payment to be
made, or authorization contained, hereunder shall be subject to the requirements imposed on the
Debtors under any approved debtor-in-possession financing facility, or any order regarding the
Debtors' postpetition financing or use of cash collateral.
13. This Order shall not apply to any professional retained by the Debtors pursuant to
a separate order of the Court.
14. This Court shall retain jurisdiction to hear and determine all matters arising from
or relating to the interpretation or implementation of this Order.
Dated: _____ , 2012
HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE
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