UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re BACK YARD BURGERS, INC., et a. The Debtors seek entry of interim and final orders prohibiting their Utility Providers from altering, refusing, OR DISCONTINUING SERVICE. This Court has jurisdiction to consider the motion pursuant to 28 U.S.C. SSSS 157 and 1334.
UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re BACK YARD BURGERS, INC., et a. The Debtors seek entry of interim and final orders prohibiting their Utility Providers from altering, refusing, OR DISCONTINUING SERVICE. This Court has jurisdiction to consider the motion pursuant to 28 U.S.C. SSSS 157 and 1334.
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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re BACK YARD BURGERS, INC., et a. The Debtors seek entry of interim and final orders prohibiting their Utility Providers from altering, refusing, OR DISCONTINUING SERVICE. This Court has jurisdiction to consider the motion pursuant to 28 U.S.C. SSSS 157 and 1334.
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In re BACK YARD BURGERS, INC., et a/. 1 Chapter 11 Case No. 1 2 - I J ~ cPJN) Debtors. (Joint Administration Pending) Ref. Docket No.3_ INTERIM ORDER UNDER SECTION 366 OF THE BANKRUPTCY CODE (A) PROHIBITING UTILITIES FROM ALTERING, REFUSING, OR DISCONTINUING SERVICE, (B) DEEMING UTILITIES ADEQUATELY ASSURED OF FUTURE PERFORMANCE, AND (C) ESTABLISHING PROCEDURES FOR DETERMINING ADEQUATE ASSURANCE OF PAYMENT Upon the motion (the "Motion") 2 filed by the above-captioned debtors and debtors-in- possession (collectively, the "Debtors") seeking entry of interim and final orders: (a) prohibiting their Utility Providers from altering, refusing, or discontinuing service; (b) deeming Utility Providers adequately assured of future performance; and (c) establishing procedures for determining adequate assurance of payment; and upon 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"); and it appearing that this Court has jurisdiction to consider the Motion pursuant to 28 U.S.C. 157 and 1334; and it appearing that venue of these cases and the Motion 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 2 The Debtors in these chapter 11 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. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion. FTL 1 08944889v2 requested in the Motion is in the best interests of the Debtors, their estate's, their creditors and other parties in interest; and it appearing that proper and adequate notice of the Motion 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 Motion is granted on an interim basis, as set forth herein. 2. Until such time that the Final Order is entered by the Court, all Utility Providers are prohibited from discontinuing, altering, or refusing service to the Debtors on account of any unpaid prepetition charges, or discriminating against the Debtors, or requiring payment of a deposit or receipt of any other security for continued service as a result of the Debtors' bankruptcy filing or any outstanding prepetition invoices other than as set forth in the Motion, provided the Debtors are in compliance with the terms of this Interim Order. 1. Within the later of twenty (20) days ofthe Petition Date or ten (10) days from the entry of this interim Order, the Debtors shall make the Adequate Assurance Deposits, into a separate bank account established for that purpose (the "Adequate Assurance Account"), in an amount equal to 50% of the Debtors' average monthly utility consumption cost over a six month period for each of the Utility Providers listed on Exhibit A hereto for the purpose of providing such Utility Providers with adequate assurance of their post-petition services to the Debtors (the "Adequate Assurance Deposit"). The amount of such Adequate Assurance Deposit for each such Utility provider is set forth in Exhibit A attached hereto. 2. Notwithstanding anything to the contrary in the Motion, the Debtors may not consider any pre-petition deposit held by a Utility Provider when determining the amount of post-petition deposit to be made on behalf of such Utility Provider. FTL 1 08944889v2 2 3. . If a Utility Provider believes adequate assurance is required beyond the adequate assurances provided by the Debtors under this Order, it must request such additional assurance pursuant to the following procedures (the "Adequate Assurance Procedures"): FTL 1 08944889v2 A. If a Utility Provider is not satisfied with the assurance of future payment provided by the Debtors, the Utility Provider must serve a written request (the "Additional Assurance Request") upon the Debtors setting forth the locations(s) for which Utility Services are provided, the account number(s) for such locations(s), the outstanding balance for each account, a summary of the Debtors' payment history on each account, and an explanation of why the Adequate Assurance Deposit is inadequate assurance of payment; B. The Additional Assurance Request must actually be filed with the Court and received by (i) the Debtors, c/o Back Yard Burgers, Inc., St. Clouds Building, 500 Church Street, Suite 200, Nashville, TN 37219 (Attn: Laura DeRise, Esq.), and (ii) the Debtors' counsel, 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: Maria J. Diconza, Esq (diconzam@gtlaw.com) and Matthew L. Rinker, Esq (hinkerm@gtlaw.com) (collectively, the "Notice Parties"); C. The Debtors may, in their discretion, resolve any Additional Assurance Request by mutual agreement with the Utility Provider and without further order of the Court, and may, in connection with any such agreement, in their discretion, provide a Utility Provider with additional adequate assurance of future payment including, but not limited to, cash deposits, prepayments, and/or other forms of security, without further order of this Court, if the Debtors believe such additional assurance is reasonable; D. If the Debtors determine that an Additional Assurance Request is not reasonable and are not able to reach an alternative resolution with the Utility Provider within 30 days of the Additional Assurance Request, the Debtors will request a hearing before this Court, to be held at a date and time to be scheduled promptly by the Debtors upon notice to the applicable Utility Provider, to determine the adequacy of assurances of payment with respect to a particular Utility Provider (the "Determination Hearing") pursuant to section 366(c)(3) ofthe Bankruptcy Code; E. Pending resolution of any such Determination Hearing, such particular Utility Provider shall be restrained from discontinuing, altering, or refusing service to the Debtors on account of unpaid charges for prepetition services or the Debtors' bankruptcy filing; 3 F. A Utility Provider shall be deemed to have adequate assurance of payment unless and until (a) the Debtors, in their sole discretion, agree to an Additional Assurance Request or agree to an alternative assurance of payment with the Utility Provider during the Resolution Period, or (b) this Court enters an order requiring that additional adequate assurance of payment be provided; G. The Adequate Assurance Deposit shall be deemed adequate assurance of payment for each Utility Provider unless and until such provider makes an Additional Assurance Request; and H. At any time, the Debtors may terminate service from any Utility Provider Such termination shall be effective immediately upon Debtors' written notice to the Utility Provider. At such time, Debtors shall no longer be required to make any more payments to such Utility Provider for any services provided after such termination, and shall be permitted to reduce the Adequate Assurance Deposit for such Utility Provider; provided however, that the funds may not be reduced until such time as the Debtors settle with the applicable Utility Provider on account of post-petition services, or any dispute regarding the same is resolved by the Court .. 3. The Motion and this Interim Order, along with the notice of hearing on the final order, shall be served, via first-class mail, on each Utility Provider the Debtors believe could be affected by the Motion and all other parties required to receive service under Del. Bankr. L.R. 2002-1 (b) within two (2) business days of entry of this Interim Order. 4. [lnkvrhoM\ 5. The deadline by which objections to the Motion and the Final Order must be filed is tJov. 5 , 2012 at 4:00p.m. (Prevailing Eastern Time). A final hearing, if required, on the Motion will be held on JJov. , 2012 -f.m. (Prevailing Eastern Time). Objections must be served on the Notice Parties listed in paragraph 3(B) above, and the Office of the United States Trustee, Attn; Juliet Sarkessian, 844 King Street, Suite 2207, Wilmington, DE 19801, Fax: 302-573-6497, Juliet.M.Sarkessian@usdoj.gov. 6. To the extent that the Debtors subsequently identify additional providers of Utility Services or determine that an entity was improperly included as a Utility Provider, the Debtors have the authority, in their sole discretion and without further order of Court, to amend the FTL 1 08944889v2 4 Utility Provider List to add or delete any Utility Provider. If the Debtors add any Utility Providers to the Utility Provider List, the Debtors will serve a copy of the Motion, this Interim Order, and Final Order (if entered), along with the applicable portion of the amended Utility Provider List, on such Utility Provider within 5 business days after the Debtors file the amended Utility Provider List (the "Subsequent Notice"). The Debtor will deposit into the Adequate Assurance Account an adequate assurance deposit in an amount equal to 50% of the Debtor's average monthly utility consumption over the course of 12 months for any added Utility Provider. Such subsequently added Utility Provider will be subject to the Adequate Assurance Procedures set forth in this Order and any Final Order entered on the Motion. For any entity that is removed from the Utility Provider List, the Debtors shall serve that entity with notice of removal and such entity shall have 5 business days from the date of service of such notice to object to that removal. 7. Notwithstanding the relief granted herein any actions taken pursuant thereto, nothing herein shall be deemed: (i) an admission as to the validity of any claim against the Debtors; (ii) a waiver of the Debtors' right to dispute any claim on any grounds; (iii) a promise or requirement to pay any claim; (iv) an implication or admission that any particular claim is of a type specified or defined hereunder; (v) a request or authorization to assume any agreement, contract or lease pursuant to section 365 of title 11 of the Bankruptcy Code; or (vi) a waiver of the Debtors' rights under the Bankruptcy Code or any other applicable law. 8. Rule 6003(b) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") has been satisfied because the relief requested in the Motion is necessary to avoid immediate and irreparable harm to the Debtors. FTL 1 08944889v2 5 9. Notwithstanding any applicability of Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 10. 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. 11. The Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Interim Order. Dated: 0 .;:1-Lf'/ cJ,t!J /-2. I / FTL 1 08944889v2 6 Exhibit "A" List of Utility Providers Vendor Type Address Phone AT&T Phone/Internet P.O. Box 105262, 877.438.0041 Atlanta, GA 30318- 5262 AT&T MOBILITY Phone P.O. Box 6463, Carol 800.331.0500 Stream, IL 60197- 6463 AT&T TELECONFERENCE Phone P.O. Box 2840, 800.722.3481 svcs Omaha, NE 68103- 2840 A TMOS ENERGY Gas P.O. Box 790311, St. 888.286.6700 Louis, MO 63179- 0311 BARTLETT WATER DEPT. Water P.O. Box 341027, 901.385.5585 Bartlett, TN 38184- 1027 CDE LIGHTBAND Electric P.O. Box 31509, 931.648.8153 Clarksville, TN 37040 CENTERPOINT ENERGY Gas P.O. Box 2628, 800.992.7552 Houston, TX 77252- 2628 CHARTER Internet, Phone, P.O. Box 742613, 800.314.7195 COMMUNICATIONS Cable Cincinnati, OH 45274 . CITY OF BATESVILLE GAS Gas & Water 103 College St., 662.563.4576 & WATER Batesville, MS 3 8606 CITY OF BRENTWOOD Water P.O. Box 875, 615.661.7061 Brentwood, TN 37024 --- CITY OF FRANKLIN Water P.O. Box 306097, 866.696.1916 Nashville, TN 37230 CITY OF GERMANTOWN Water P.O. Box 38809, 901.751.7605 Germantown, TN 38183-0809 CITY OF MILLINGTON Water P.O. Box 247, 901.872.2211 Millington, TN 38083 CITY OF OLIVE BRANCH Gas & Water 9200 Pigeon Roost, 662.892.9305 Olive Branch, MS 38654 --- - CITY OF PANAMA CITY Water 110 South Arnold 850.233.5100 BEACH Road, Panama City Bch, FL 32413 .. --- CITY OF SOUTHA YEN Water 5 813 Pepper Chase 662.393.7353 Drive, Southaven, MS 38671 CITY WATER & LIGHT Water & Electricity P.O. Box 1289, 870.930.3300 Jonesboro, AR 72403-1289 - CLARKSVILLE GAS & Gas & Water P.O. Box 31329, 931.645.7400 WATER Clarksville, TN 37040-0023 COM CAST Internet/Phone P.O. Box 105184, 800.229.7150 Atlanta, GA 30348- 5184 COM CAST Internet/Phone P.O. Box 37601, 866.511.6489 Philadelphia, P A 19101-0601 COX COMMUNICATIONS Internet P.O. Box 9001078, 850.796.1269 Louisville, KY 40290-1078 DIRECTTV Internet P.O. Box 60036, Los 888.388.4249 Angeles, CA 90060 ENTERGY Electric P.O. Box 8105, 800.368.3749 Baton Rouge, LA 70891-8105 GRANITE Phone 100 Newport Ave 866.547.5500 TELECOMMUNICATIONS Ext., Quincy, MA 02171 HENDERSONVILLE Water P.O. Box 180, 615.824.3717 UTILITY DISTRICT Hendersonville, TN 37077-0180 INFINITE ENERGY, INC Gas 7001 sw 24th 866.258.2290 A venue, Gainesville, FL 32607-3704 JACKSON ENERGY Electric, Gas, Water P.O. Box 2288, 731.422.7500 AUTHORITY Jackson, TN 38302- 2288 MALLORY VALLEY Water P.O. Box 306056, 615.628.0237 UTILITY DTST. Nashville, TN 37230- 6056 1------ MEMPHIS LIGHT, GAS, Electric, Gas, Water P.O. Box 388, 901.528.4270 AND WATER Memphis, TN 38145- 0388 - , - ~ - METRO WATER SERVICES Water P.O. Box 305225, 615.862.4600 Nashville, TN 37230- 5225 ------------- -- . - ----- ---- - - - - - - - ~ - - - - - - - - - - - - - MIDDLE TENNESSEE Electric P.O. Box 681709, 877.777.9020 ELECTRIC Franklin, TN 37068- 1709 ---------- MILLINGTON CATV INC Internet P.O. box 399, 901.872.3600 Millington, TN 38083-0399 2 MILLINGTON CITY Water 7930 Nelson, -1 901.872.2211 SERVICES Millington, TN 38053-2004 MILLINGTON TELEPHONE Phone P.O. Box 429, 901.872.3311 co Millington, TN 38083 MURFREESBORO Electric P.O. Box 9, 615.893.5514 ELECTRIC DEPT. Murfreesboro, TN 37133-0009 MURFREESBORO WATER Water P.O. Box 897, 615.848.3209 AND SEWER Murfreesboro, TN 37133-0897 NASHVILLE ELECTRIC Electric 1214 Church Street, 615.736.6900 SERVICE Nashville, TN 3 7246- 0003 NORTHCENTRAL Electric P.O. Box 405, 662.895.2151 MISSISSIPPI Byhalia, MS 3 8611- 0405 OKALOOSA GAS DISTRICT Gas P.O. Box 548, 850.729.4700 Valparaiso, FL 32580-0548 -- PIEDMONT NATURAL GAS Gas P.O. Box 660920, 800.752.7504 Dallas, TX 75266- 0920 SOUTH WALTON UTILITY Water 369 Miramar Beach 850.837.2988 COMPANY Drive, Miramar BCH, FL 32550 SPRINT Phone P.O. Box 219100, 800.877.4646 Kansas City, MO 64121-9100 SUDDENLINK Internet P.O. Box 660365, 800.490.9604 Dallas, TX 75266- 0365 - TALLAHATCHIE VALLEY Electric P.O. Box 513, 662.563.4742 ELECTRIC Batesville, MS 38606-0513 TECO PEOPLE GAS Gas P.O. Box 31017, 877.832.6747 Tampa, fL 33631- 3017 THE NEXUS GROUP Internet 1661 Murfreesboro 615.221.4200 Pike, Nashville, TN 37217 TOWN OF COLLIERVILLE Water 500 Polplar View 901.457.2240 Pkwy, Collierville, TN 38017-3440 ---WATER AUTHORITY OF -- Water 10 1 Cowan Road, 615.441.4188 DICKSON CTY Dickson, TN 37055 WIND STREAM Phone P.O. Box 580451, 800.600.5050 COMMUNICATIONS Charlotte, NC 28258- 0451 3 COOKS PEST CONTROL Pest Control PO Box 280390, 615.360.3777 Nashville TN 37228 ORKIN Pest Control 2014 Lewis Turner 850.863.1822 Blvd., Ft. Walton Bch, FL 32547-1352 TERMINIX Pest Control PO Box 742592, 870.935.4362 Cincinnati, OH 45274-2592 ALLIED WASTE Waste 850 E. Jefferson 615.895.3711 Pike, Murfreesboro, TN 37130 WASTE MANAGEMENT OF Waste 2555 Meridian Blvd 256.851.0067 ALABAMA Ste 200, Memphis, TN 37067 CITY OF JACKSON Waste 180 S. Conalco 731.425.8545 Drive, Jackson, TN 38302 CITY OF FRANKLIN Waste PO Box 487, 615.794.4572 Franklin, TN 37065- 0487 MARCK RECYCLING & Waste 6734 Hwy 141 870.935.1491 WASTE SERVICES North, Jonesboro, AR 72401 ACKERMAN SECURITY Security 1346 Oakbrook Drive #175, Atlanta, GA 30093 4