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 DEBTORS FOR ENTRY OF AN ORDER
UNDER 11 U.S.C. 327(a) AND 328(a) AUTHORIZING THE RETENTION
AND EMPLOYMENT OF GA KEEN REALTY ADVISORS, LLC
AS REAL ESTATE ADVISOR TO THE DEBTORS
The above-captioned debtors and debtors-in-possession (collectively, the "Debtors")
hereby submit this application (the "Application") pursuant to sections 327(a) and 328(a) of title
11 ofthe United States Code, 11 U.S.C. 101-1532 (the "Bankruptcy Code"), Rule 2014 of
the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Rule 2014-1 of the
Local Rules of the United States Bankruptcy Court for the District of Delaware (the "Local
Rules") for entry of an order authorizing the retention and employment of GA Keen Realty
Advisors , LLC ("GA Keen") as real estate advisor to the Debtors. The facts and circumstances
supporting this Application are as set forth herein and in the Declaration of Mark P. Naughton
(the "Naughton Declaration"), which is attached hereto as Exhibit A and incorporated herein
by reference. In further support of this Application, the Debtors respectfully state as follows:
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 3 7219.
Status of the Case and Jurisdiction
1. On the date hereof (the "Petition Date"), each of the Debtors filed a voluntary
petition for relief under chapter 11 of the Bankruptcy Code.
2. The Debtors have continued in possession of their properties and are operating
and managing their business 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 Motion 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 predicate for the relief sought herein are sections 327(a) and 328(a)
ofthe Bankruptcy Code and Bankruptcy Rule 2014.
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
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neighborhood back yards. Meal offerings include chicken sandwiches, turkey burgers, hot dogs,
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. On the Petition Date, the Debtors' filed the Motion for Entry of Order
Authorizing the Debtors to Reject Certain Executory Contracts and Unexpired Leases Nunc Pro
Tunc as of the Petition Date (the "Rejection Motion"). The Rejection Motion requested
authority, inter alia, to conduct store closings for certain locations.
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11. In connection with the foregoing, the Debtors seek to conduct an analysis of their
leases at various other stores, to determine whether to assume, reject or seek to renegotiate the
terms of such leases.
12. 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.
Relief Requested
13. By this Application, the Debtors seek the entry of an Order, pursuant to sections
327(a) and 328(a) of the Bankruptcy Code and Bankruptcy Rule 2014, authorizing them to retain
and employ GA Keen as their real estate advisor in these chapter 11 cases to perform
professional services as set forth herein.
14. The Debtors believe that GA Keen will provide them with invaluable knowledge
regarding the various markets in which their restaurants and other business locations are located,
and provide them with critical assistance in renegotiating numerous burdensome unexpired
leases. Thus, the Debtors believe that GA Keen's services will assist them in maximizing
recovery for their creditors.
15. GA Keen has indicated a willingness to act on behalf of the Debtors in accordance
with the terms of this Application. Further, GA Keen will work closely with Greenberg Traurig,
LLP ("Greenberg Traurig") and the Debtors are confident that the assignment of tasks will be
maintained efficiently and with a clear delineation of duties in order to prevent the duplication of
efforts. The Debtors believe that rather than resulting in any extra expense to their estates, the
4
efficient coordination of efforts between GA Keen and Greenberg Traurig will greatly add to the
effective administration of the Cases.
16. The Debtors believe that it is necessary and in the best interests of their estates
and creditors to employ and retain GA Keen to render the professional services described herein
on their behalf.
Basis for Relief Requested
17. GA Keen has extensive experience in similar chapter 11 retail cases and offers a
variety of services, including valuation, marketing and disposal of excess real estate and leases,
as well as negotiating lease modifications, rental reductions and lease terminations. GA Keen
has served as real estate broker and special real estate GA Keen in many complex chapter 11
cases in this district, including In re Hancock Fabrics, Inc., No. 07-10353 (BLS) (Bankr. D. Del.
April 5, 2007); In re The Lovesac Corp., No. 06-10080 (CSS) (Bankr. D. Del. Feb. 27, 2006); In
re The Brown Schools Inc., et al., No. 05-10841 (MFW) (Bankr. D. Del. May 27, 2005); In re
Pillowtex Corporation, No. 03-12339 (NW) (Bankr. D. Del. 2003); and In re Cable & Wireless
USA, Inc., No. 03-13711 (KJC) (Bankr. D. Del. 2003). For these reasons, the Debtors believe
that GA Keen is well qualified to act as the Debtors' real estate advisor.
18. On or about September 25, 2012, the Debtors entered into an agreement (the
"Retention Agreement") with GA Keen outlining the terms and conditions upon which GA
Keen would be retained, a copy of which is attached hereto as Exhibit B.
2
19. The Debtors' anticipate that GA Keen will provide the following services?
a. GA Keen will organize the lease information for each property identified in
Schedule A to the Retention Agreement (the "Properties") in a manner that
In the event of any conflict between this summary and the Retention Agreement, the terms of the Retention
Agreement shall control. Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Retention Agreement.
5
clearly displays the site-level business and lease economics. GA Keen and the
Debtors will jointly establish negotiating goals and parameters, such as rent
reductions, lease term modifications and other leasehold concessions;
b. GA Keen will contact the landlords for the Properties and will seek to
negotiate reductions with each landlord for modifications in accordance with
the parameters established by the Debtors;
c. GA Keen will work with the landlords, the Debtors and the Debtors' counsel
to document all lease modification proposals; and
d. GA Keen will have sole and exclusive authority represent Back Yard Burgers,
Inc. ("BYB") in the negotiation of any transaction involving BYB' s pecuniary
interests arising from or relating to GA Keen's services under the Retention
Agreement, including, but not limited to the modification, amendment, or
termination of a Property lease (a "Transaction");
Professional Compensation
20. For the work described above, subject to this Court's approval, the Debtors have
agreed to compensate GA Keen as set forth in Section III of the Retention Agreement. In
summary, GA Keen will be compensated as follows:
a. All reasonable out of pocket costs and expenses incurred by GA Keen in
connection with performing the services required by the Retention Agreement,
including but not limited to travel, lodging, FedEx, postage, telephone
charges, photocopying charges, and the fees and reasonable expenses of
counsel, etc. shall be borne by BYB;
b. On the Effective Date of the Retention Agreement (as defined therein), BYB
provided GA Keen with a ten thousand dollar ($1 0,000) advance against out
of pocket expenses. GA Keen shall on a regular basis provide BYB with an
accounting for its expenses and BYB agrees to reimburse GA Keen promptly
upon request from time to time for all out of pocket expenses so that GA Keen
shall maintain on account the $10,000 advance. GA Keen shall seek BYB's
prior written approval for any single expense that exceeds $2,500. At the
conclusion of its engagement, GA Keen shall promptly return the remaining
balance of the expense account following the payment of GA Keen of all fees
due and owing;
c. On the Effective Date of the Retention Agreement, BYB paid GA Keen an
earned, non-refundable engagement fee of fifteen thousand dollars ($15,000),
which fee shall be set-off against subsequently earned transaction fees; and
d. On the date of full execution of an agreement between BYB and a landlord,
which results in the modification of the terms of a Property lease (a "Lease
Modification Agreement"), by among other things, a reduction in rent and/or
other occupancy costs, modification of the remaining term of the lease, a
modification of the size of the Property, or a Property lease termination (a
"Lease Modification Agreement Date"), BYB shall pay GA Keen, on a per
6
Property basis, the greater of four thousand dollars ($4,000) (the "Base Fee")
or five percent (5%) of Savings.
3
If the Lease Modification Agreement
creates non-monetary value but does not generate Savings, then GA Keen
shall have earned and shall be paid, on a per Property basis, the Base Fee.
21. Given the transactional nature of GA Keen's engagement, except with respect to
any fees under the Retention Agreement which are based on hourly billings, GA Keen will not
bill the Debtors by the hour and will not keep records of time spent for professional services
rendered in these cases, except to the extent required by Court order. GA Keen will, however,
keep reasonably detailed descriptions of the services that were rendered pursuant to its
engagement.
22. GA Keen requested that the Debtors seek an order relieving GA Keen from
complying with the monthly and interim fee application requirements of the proposed
Administrative Order Under 11 U.S.C. 1 05(a) and 331 Establishing Procedures for Interim
Compensation and Reimbursement of Expenses for Professionals and Official Committee
Members. Instead, GA Keen proposes to receive compensation in accordance with the terms set
forth immediately above and in the Retention Agreement.
23. Other than as set forth herein, there is no proposed arrangement to compensate
GA Keen. GA Keen has not shared, nor agreed to share, (a) any compensation it has received or
may receive with any other party or person, other than with the directors and associates of GA
Keen, or (b) any compensation another person or party has received or may receive.
GA Keen's Disinterestedness
24. To the best of the Debtors' knowledge, GA Keen (i) does not have any connection
with any of the Debtors, their affiliates, their creditors or any other party in interest, or their
Pursuant to the Retention Agreement, "Savings" shall be calculated as the difference between (a) the
Remaining Leasehold Liability (as defined in the Retention Agreement) payable by BYB prior to the
7
respective attorneys and accountants, (ii) is a "disinterested person," as that term is defined in
section 101(14) of the Bankruptcy Code, as modified by section 1107(b) of the Bankruptcy
Code, and (iii) does not hold or represent any interest adverse to the Debtors or their estates,
except as set forth in the Naughton Declaration, attached hereto as Exhibit A.
Notice
25. 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'
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;
and (g) the Internal Revenue Service. The Debtors submit that, in light of the nature of the relief
requested, no other or further notice need be given.
No Prior Request
26. 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
granting the relief requested herein and that it grant the Debtors such other and further relief as is
just and proper.
execution of the applicable Lease Modification Agreement, and (b) the Remaining Leasehold Liability
payable by BYB following the Lease Modification Agreement Date.
8
Dated: October 17, 2012
9
FTL 108919276v5
BACKYARD BURGERS, INC.,
BYB PROPERTIES, INC.,
NASHVILLE BYB, LLC, and
LITTLE ROCK BACKYARD BURGERS,
INC.
Exhibit A
Naughton Declaration
In re
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
BACK YARD BURGERS, INC., et a/.
1
Case No. 12-Ji!J18l.C!J!l!J
Debtors.
(Joint Administration Pending)
DECLARATION OF MARK P. NAUGHTON IN SUPPORT OF THE
DEBTORS' APPLICATION FOR AN ORDER AUTHORIZING THE
RETENTION OF GA KEEN REALTY, LLC AS REAL ESTATE ADVISOR
Mark P. Naughton, offull age, under penalty of perjury pursuant to 28 USC 1746, declares and
states:
1. I am General Counsel and Senior Vice President of Great American Group, LLC,
the owner and member of GA Keen Realty Advisors, LLC ("GA Keen"), maintaining offices at
Nine Parkway Nmih, Suite 300, Deertield, IL 60015. I submit this Declaration in support of the
application ("Application") of Back Yard Burgers, Inc. et al. (the "Debtors'') for entry of an
Order authorizing the Debtors to retain GA Keen as its real estate advisor.
2. GA Keen is a "disinterested person" within the meaning of 11 U.S.C. Section
101(14). GA Keen has no business, professional or other connection with the Debtors herein or
with their attorneys, and does not represent, nor will it represent, any interest adverse to the
estate in the matters in which it is to be engaged.
3. GA Keen and Great American Group maintain records of all of its clients. I have
reviewed such records as well as the entities listed on the Debtors' list of creditors provided to
GA Keen to determine any connections with the Debtors. The aforementioned list of creditors
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 3 7219.
was provided by Debtors' counsel and is attached hereto as Exhibit A. This Declaration is based
on the information available to me on the date hereof.
4. Neither GA Keen nor Great American Group is employed or connected with the
Debtors, any creditor, or other party in interest, their respective attorneys and accountants except
as follows:
a. Great American Appraisal and Valuation Services, LLC ("GAA V''), a majority
owned subsidiary of the Great American Group and an affiliate of GA Keen as a result of
the ownership interests of Great American Group, has performed appraisal work on
matters unrelated to these chapter 11 cases for Regions Bank, Fifth Third Bank and First
Tennessee, each of which is listed as a bank to one or more of the Debtors.
b. Great American Group and its subsidiaries cany medical insurance for their
employees through AETNA, which is listed as a creditor of the Debtors.
5. GA Keen may have represented in the past, may cunently represent, and likely in
the future will represent patties in interest in connection with matters unrelated to the Debtors
and these Chapter 11 Cases. As part of its practice, GA Keen also appears in cases, proceedings
and transactions involving many different attorneys and accountants, some of which may
represent claimants and parties-in-interest in these Chapter 11 Cases. GA Keen does not
represent any such entity in connection with these Chapter 11 Cases or have any relationship
with any such entity, attorneys, accountants or advisors that would be adverse to the Debtors or
their estates.
6. GA Keen is a "disinterested person'' as that term is defined in Bankruptcy Code
section 101(14), as modified by section 1107(b), in that, to the best of my knowledge, GA Keen,
its members and employees:
(a) are not creditors, equity security holders, or insiders;
(b) are not and were not investment bankers for any outstanding security of
the Debtors;
(c) have not been, within three years before the date of the ti I ing of the
petition, investment bankers for a security of the debtors, or attorneys for
such an investment bankers in connection with the offer, sale, or issuance
of a security of the Debtors;
(d) are not and were not, within two years before the date of the filing of the
petition, a director, ofticer, or employee of the Debtors or of an investment
banker specified in subparagraph (b) or (c) above; and
(e) do not have an interest materially adverse to the interest of the estate or of
any class of creditors or equity security holders, by reason of any direct or
indirect relationship to, connection with, or interest in, the Debtors or an
investment banker speci tied in the subparagraph (b) or (c) above, or for
any other reason.
7. Despite the efforts described above to identify and disclose GA Keen's
connections with parties in interest in these Chapter 11 Cases, GA Keen is unable to state with
certainty that every client relationship or other connection has been disclosed. In this regard, if
GA Keen discovers additional material information that it determines requires disclosure, it will
promptly tile a supplemental disclosure with this Couti.
8. The scope of the services to be performed by GA Keen and the fee structure are
accurately set fot1h in the Retention Agreement as are the other terms of GA Keen s retention.
9. I have not agreed to share with any person, except members and consultants of
my tirm, the compensation to be paid for the services rendered in this case.
I declare under penalty of petj ury that the foregoing is true and correct.
Dated: October 10,2012
ark P. Naughton
Exhibit B
Retention Agreement
RETENTION AGREEMENT
Between
Back Yard Burgers, Inc.
and
GA Keen Realty Advisors, LLC
Date: September 25, 2012
In consideration of the mutual agreements herein contained and subject to the entry of the "Order" (as
defined below), "Company" (as defined below) hereby retains "GA Keen Realty" (as defined below) to
act as Company's real estate advisor upon the terms and conditions set forth herein.
I. Definitions
The following terms as used herein have the following meanings.
A. "Bankruptcy Court" means if and when Company files Chapter 11, then the United
States Bankruptcy Court in the district in which such Chapter 11 is filed.
B. //Code" means the United States Bankruptcy Code, 11 U.S.C. 101, et seq.
C. means Back Yard Burgers, Inc.
D. "GA Keen Realty" means GA Keen Realty Advisors, LLC the real estate division of Great
American Group, LLC.
E. "Effective Date" means the date of mutual execution of this Agreement.
F. "Order" shall mean an Order issued by the Bankruptcy Court approving this Agreement.
G. "Property" and "Properties" refers to Company's real property leaseholds listed on
Schedule "A" attached hereto and incorporated by reference, which list may be
supplemented without a further Order of the Bankruptcy Court.
H. "Transaction" means any transaction involving the Company's pecuniary interests
arising from or relating to GA Keen Realty's services rendered under this Agreement,
including, but not limited to the modification, amendment or termination of a Property
lease.
11. Services
Company hereby engages GA Keen Realty to perform the services provided on Schedule "B"
attached hereto and incorporated by reference.
Ill. Expenses
A. All reasonable out of pocket costs and expenses incurred by GA Keen Realty in
connection with performing the services required by this Agreement, including but not
limited to travel, lodging, FedEx, postage, telephone charges, photocopying charges,
and the fees and reasonable expenses of counsel, etc., shall be borne by Company.
B. On the Effective Date, the Company shall provide GA Keen Realty with a ten thousand
dollar ($10,000) advance against out of pocket expenses. GA Keen Realty shall on a
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page2of 15
regular basis provide Company with an accounting for its expenses and Company
agrees to reimburse GA Keen Realty promptly upon request from time to time for all
out-of-pocket expenses so that GA Keen Realty shall maintain on account the $10,000
advance. GA Keen Realty shall seek the Company's prior written approval for any
single expense that exceeds $2,500. At the conclusion of this engagement, GA Keen
Realty shall promptly return the remaining balance of the expense account following
the payment toGA Keen Realty of all fees due and owing.
IV. Company Responsibilities
A. Company shall deal with GA Keen Realty fairly and in good faith so as to allow GA Keen
Realty to perform its duties and earn the benefits of this Agreement and shall not
interfere, prevent or prohibit GA Keen Realty, in any manner, prior to or during the
term of this Agreement from carrying out its duties and obligations under the
Agreement.
B. Company shall make available to GA Keen Realty all information reasonably requested
by GA Keen Realty for the purpose of enabling GA Keen Realty to perform its
obligations pursuant to this Agreement. All information provided by Company shall be
materially accurate and complete at the time it is furnished and Company shall, as soon
as it becomes aware of any inaccuracy or incompleteness in any information then or
later provided to GA Keen Realty, promptly advise GA Keen Realty in writing of such
inaccuracy or incompleteness and correct the same. In performing its services
hereunder, GA Keen Realty shall under all circumstances be entitled to rely upon and
assume, without independent verification, the accuracy and completeness of all
information that has been furnished to it by, or on behalf of, the Company and shall
have no obligation to verify the accuracy or completeness of any such information and
shall not be responsible for the inaccuracy or incompleteness of any information
provided toGA Keen Realty.
C. If and when Company becomes subject to the jurisdiction of the Bankruptcy Court,
then within 3 business days Company shall file an application with the Bankruptcy
Court for, and will use its best efforts to obtain, an Order. With respect to the
application and Order:
1. Company acknowledges that this Agreement in its entirety will be attached to
and made a part of Company's application to the Bankruptcy Court and will be
referenced to in the Order.
2. The application shall seek an Order authorizing the employment of GA Keen as
of the date of this Agreement, as professional persons pursuant to Section 327
of the Code (with compensation subject to the standard of review of
Section 328(a) of the Code and not any other standard, including that provided
in Section 330 of the Code). The employment application and the Order shall
be provided to GA Keen Realty sufficiently in advance of their filing, and must
be acceptable to GA Keen Realty in its sole discretion. In the event that the
Bankruptcy Court does not enter an order acceptable to GA Keen Realty, GA
Keen Realty shall have no further obligations under the terms of this
Agreement.
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page3 of15
3. An acceptable Order shall include, without limitation, the following terms and
conditions, each of which shall be deemed incorporated by reference into the
Order approving this Agreement (even if not specifically mentioned in the
Order):
a) a finding that none of the fees payable to GA Keen Realty
hereunder shall constitute a "bonus" under applicable law;
b) a finding that with respect to any Transaction Fee payable for the
closing of a Transaction, that GA Keen Realty is exempt from the
requirement to keep time records (unless GA Keen Realty services
are being billed by the hour);
c) a finding that that all of GA Keen Realty's fees and expenses shall
be treated as administrative expense claims in the Company's
bankruptcy case;
d) a finding that all of GA Keen Realty's fees and expenses shall be
entitled to a carve-out for payment pursuant to Section 506(c) of
the Bankruptcy Code; and
e) a finding that the terms and conditions of this Agreement are
If reasonable." If the Order authorizing the employment of GA Keen
Realty is obtained, Company shall pay all fees and expenses as
promptly as possible in accordance with the terms of this
Agreement and the Order.
f) a statement that the Bankruptcy Court has and shall retain
jurisdiction to hear and determine all matters arising from the
implementation of this Agreement, and neither the Company nor
GA Keen Realty shall be required to seek authorization from any
other jurisdiction with respect to the relief granted by the Order
approving this Agreement.
4. If Company obtains an order of the Bankruptcy Court authorizing financing or
cash collateral use and such order requires the submission of a budget by
Company delineating its post-petition expenditures, such budget shall
expressly include all amounts projected to be paid to GA Keen Realty pursuant
to the terms of this Agreement. In addition, any stipulation or order for
financing or cash collateral use shall include all amounts to be paid toGA Keen
Realty pursuant to the terms of this Agreement among any carve-out to be
provided professionals in the Company's bankruptcy case.
5. The terms of Section IV.C are solely for the benefit and protection of GA Keen
Realty and may be waived, in whole or in part, only by GA Keen Realty.
V. Term of Agreement
A. The term of GA Keen Realty's retention shall be from the date of Company's execution
of this Agreement through the confirmation of a plan of reorganization, the closing of
all Transactions contemplated by this Agreement or for a period of twelve (12) months,
whichever comes first, which term can be extended pursuant to the same terms and
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Poge4 of15
conditions and by the mutual consent of the parties without the need for further
application to the Bankruptcy Court.
B. If and when Company becomes subject to the jurisdiction of the Bankruptcy Court,
then this Agreement shall be binding upon the Company only upon approval of the
Bankruptcy Court. In the event this Agreement is not so approved for any reason, then
this Agreement shall be deemed to be terminated and GA Keen Realty shall have an
allowed quantum meruit claim for its services. The provisions of this section of the
Agreement shall survive the termination of this Agreement.
VI. Dispute Resolution
A. Choice of Law; Jury Trial. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to any principles of
conflict of laws. To the extent permitted by law, the parties to this Agreement waive
any right to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) related to or arising out of the engagement of GA Keen
Realty pursuant to, or the performance by GA Keen Realty of the services contemplated
by, this Agreement.
B. Attorneys' Fees. If any party to this Agreement brings an action directly or indirectly
based upon this Agreement or the matters contemplated hereby against any other
party, the prevailing party shall be entitled to recover from the non-prevailing party, in
addition to any other appropriate amounts, its reasonable costs and expenses in
connection with such proceeding, including, but not limited to, reasonable attorneys'
fees and arbitration and/or court costs.
C. Jurisdiction.
1. Arbitration. Unless and until Company becomes subject to the jurisdiction of a
Bankruptcy Court, any controversy or claim arising out of or related or
pertaining to this Agreement or the services of GA Keen Realty Advisors, shall
be determined by arbitration upon the initiation of either party, and shall be
settled and conclusively resolved by a single, mutually-acceptable arbitrator
who shall be experienced in closing Transactions. The cost of such arbitrator
shall be borne equally by the parties. The arbitration shall be conducted under
the auspices of, and subject to the rules of, the American Arbitration
Association under its Arbitration Rules for the Real Estate Industry. If the
parties are unable to agree upon an arbitrator, the arbitrator shall be selected
in accordance with AAA rules. The arbitration shall be conducted in New York,
New York, and the written decision of the arbitrator shall be final and binding
on the parties and enforceable in any court of competent jurisdiction. If the
dispute or controversy between the parties concerns the determination or
calculation of fees payable to Consultant hereunder, Consultant and the
Company agree that the amounts in dispute shall be placed in a third party
escrow account pending the outcome of the arbitration {with any amounts not
in dispute being paid to Consultant pursuant to the terms of this Agreement).
The provisions of this section of the Agreement shall survive the termination
of this Agreement.
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
PageS o/15
2. Bankruptcy Court Jurisdiction. Once Company becomes subject to the
jurisdiction of a Bankruptcy Court, such court shall have and retain exclusive
jurisdiction to hear and determine all matters arising from the implementation
or execution of this Agreement. Any and all issues, disputes, claims or causes
of action which relate or pertain to, or result or arise from, this Agreement or
GA Keen Realty Advisors' services hereunder, shall be settled by the
Bankruptcy Court. The Bankruptcy Court shall be limited to awarding
compensatory damages and the parties hereto hereby waive their right to
seek punitive, consequential, exemplary or similar types of special damages.
D. Survival. The provisions of this section of the Agreement shall survive the termination
of this Agreement.
VII. Miscellaneous
A. Indemnity, Contribution, Reimbursement, and Limitation of Liability. Company agrees
to the indemnity, contribution, reimbursement and limitation of liabilities provisions as
set forth in Schedule C attached hereto and incorporated by reference. The provisions
of this section of the Agreement shall survive the termination of this Agreement.
B. Relationship. GA Keen Realty is providing its services hereunder as an independent
contractor and the parties agree that this Agreement does not create an agency or
fiduciary relationship between GA Keen Realty and the Company. Any advice rendered
by GA Keen Realty pursuant to this Agreement, written or oral, will be solely for the
information of the Company and may not be disclosed publicly in any manner without
GA Keen Realty's prior written approval and will be treated by the Company as
confidential. The provisions of this section of the Agreement shall survive the
termination ofthis Agreement.
C. No Time Records. The services to be provided by GA Keen Realty pursuant to this
Agreement are transactional in nature and except with respect to hourly fees, if any,
for which GA Keen Realty will maintain contemporaneous time records in half-hour
increments and not on a project category basis, GA Keen Realty will not be billing
Company by the hour nor keeping a record of its time spent on behalf of Company.
D. Notice. Any correspondence or required notice shall be addressed as follows and shall
be sent by Certified Mail, Return Receipt Requested, or by FedEx, either of which
notices shall be supplemented by facsimile and/or email transmission, and shall be
effective as of the date of actual receipt of the Certified Mail or FedEx. Such notice
shall be addressed as follows:
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 6of 15
If toGA Keen Realty, to: GA Keen Realty Advisors, LLC
130 West 42"d Street, Suite 1001
New York, NY 10036
With a copy to:
If to Company:
With a copy to:
ATIN: Harold Bordwin
Telephone: (646) 3819222
Email: hbordwin@greatamerican.com
Great American Group LLC
9 Parkway North, Suite 300
Deerfield, IL 60015
ATIN: Mark Naughton
Telephone: (847) 444-1400
Email: mnaughton@greatamerican.com
Back Yard Burgers, Inc.
St. Cloud Corner
500 Church Street, Suite 200
Nashville, TN 37219
ATIN: Laura S. DeRise, Esq.
Telephone: 615.620.2300 @ ext. 118
Facsimile: 615.620.2301
Email: lderise@backyardburgers.com
Greenberg Traurig, LLP
Met Life Bldg
ZOO Park Ave
New York, NY 10166
ATIN: Maria DiConza
Telephone: 212-801-9278
Email: diconzam@gtlaw.com
E. Successors and Assigns. Upon the commencement of this Agreement, it shall be
binding upon and shall inure to the benefit of the parties hereto, their successors and
assigns. The provisions of this section of the Agreement shall survive the termination
of this Agreement.
F. Entire Agreement. This Agreement contains the entire agreement between the parties
hereto, and no representations, inducements, promises or agreements, oral or
otherwise, entered into prior to the execution of this Agreement will alter the
covenants, agreements and undertakings herein set forth. This Agreement shall not be
modified in any manner, except by an instrument in writing executed by the parties.
G. Change in Control. Company's obligations hereunder shall survive any change in
control or ownership of Company. In the event that in a bankruptcy proceeding the
proceeding is converted from the Chapter 11 to Chapter 7, this Agreement shall remain
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 7 of15
in full force and effect. The provisions of this section of the Agreement shall survive the
termination of this Agreement.
H. Construction.
1. Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
2. This Agreement shall be construed fairly as to all parties and there shall be no
presumption against the party who drafted this Agreement in the
interpretation of this Agreement. By executing or otherwise accepting this
Agreement, Company and GA Keen Realty acknowledge and represent that
they are represented by and have consulted with legal counsel with respect to
the terms and conditions contained herein.
I. Force Majeure. GA Keen Realty shall have no liability for delays, failure in performance,
or damages due to fire, explosion, lighting, power surges or failures, strikes or labor
disputes, water, acts of god, the elements, war, civil disturbances, acts of civil or
military authorities, telecommunications failure, fuel or energy shortages, acts or
omissions of communications carriers, or other causes beyond GA Keen Realty's control
whether or not similar to the foregoing.
J. Electronic Communications. GA Keen Realty and Company may communicate by
electronic mail or otherwise transmit documents in electronic form during the course
of this engagement. The parties hereto accept the inherent risks of these forms of
communication (including the security risks of interception of or unauthorized access to
such communications, the risks of corruption of such communications and the risks of
viruses or other harmful devices).
K. Announcements. Upon the closing of a Transaction, GA Keen Realty may, at its option
and expense, place announcements and advertisements or otherwise publicize GA
Keen Realty's role (which may include the reproduction of the Company's logo) on GA
Keen Realty's internet web site and in such newspapers and periodicals and in its
marketing materials as it may choose stating that GA Keen Realty has acted as advisor
to the Company.
L. Multiple Clients. From time to time, GA Keen Realty, or one of its related entities, may
and shall have the right to advise or provide services to several industry participants,
some of which may be competitors of the Company. The Company, its directors and
shareholders, waive any right to commence any action, suit or proceeding or make any
demand, complaint or claim against GA Keen Realty, its subsidiaries or affiliates, or
their partners, directors, officers or other personnel, that arises out of GA Keen
Realty's, or one of its related entities', right to advise or provide services to industry
competitors of the Company.
M. Counterparts. This Agreement may be executed in two or more counterparts, and by
the different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall constitute one
and the same agreement. Facsimile and electronic transmission (including the email
delivery of documents in Adobe PDF format) of any signed original counterpart or
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
PageBaf 15
retransmission of any signed facsimile transmission shall be deemed the same as the
delivery of the original
If the foregoing correctly sets forth the agreement between the Company and GA Keen Realty, please
sign and return the enclosed copy of this Agreement, whereupon it shall become our binding
agreement.
Very truly yours,
GA KEEN REAL TV ADVISORS, LLC

JJ{ Bordwin, as Managing Director of Great
American Group, LLC, the Managing Member of GA
(!!/ Keen Realty Advisors, LLC
Date: September4, 2012
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 9 of 15
Store
#
1
7
8
9
12
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Address
185 House Carlson Dr
2931 Kirby Whitten Rd
8079 Trinity Road
5091 Park Avenue
1723 Union Avenue
436 Perkins Extended
2110 West Street
9000 Highway 64
18 1685 N Germantown Pkwy
--
21 6466 Poplar Avenue
22 165 Goodman Road W
23 7545 Goodman Road
30 1015 Center Point Place
31 1711 Galleria Blvd
SCHEDULE A
Properties
..
City State
Batesville MS
Bartlett TN
----
Cordova TN
Memphis TN
-
Memphis TN
Memphis TN
Germantown TN
Lakeland TN
Cordova (Dexter) TN
Memphis TN
Southaven MS
Olive Branch MS
Franklin TN
Franklin (Cool Springs) TN
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page lOo/15
32
34
38
40
5004 Maryland Way
2744 Elm Hill Pike
1425 Hwy96
4935 New Airline Road
42 3662 S. Houston levee Rd
17 7073 Winchester Rd
19 1709 Whitten Road (C-store)
---
28 12 Stonebridge Blvd
35 208 N Anderson lane
60 4600 Opa Locka Lane
61 10260 Front Beach Road
HQ 500 Church Street
-
Brentwood TN
Nashville TN
Fairview
Arlington
Collierville TN
----
Memphis TN
Memphis TN
-
Jackson TN
Hendersonville TN
Destin Fl
Panama City Beach Fl
Nashville TN
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 11 ofl5
I. Authority.
SCHEDULE B:
Lease Renegotiation Services & Fees
A. GA Keen Realty shall have the sole and exclusive authority to represent Company in the
negotiation of Transactions.
B. In order to coordinate our efforts with respect to possible Transactions, during the
term of this Agreement neither the Company nor any representative thereof (other
than GA Keen Realty) will initiate discussions with a landlord regarding a Transaction
except through GA Keen Realty. If the Company, its management, or any of its
professional advisors receives an inquiry regarding a Transaction, it will promptly advise
GA Keen Realty of such inquiry in order that GA Keen Realty may evaluate the inquiry
and assist the Company in any resulting negotiations. The foregoing in no way restricts
the Company's normal communications with its landlords regarding lease
administration or other matters other than a Transaction.
C. Company shall retain the complete discretion to accept or reject any proposed
Transaction.
II. Services. During the term of this Agreement, GA Keen Realty shall provide the following services
with respect to the Properties:
A. GA Keen Realty will organize the lease information for each Property in a manner that
clearly displays the site-level business and lease economics. GA Keen Realty and
Company will jointly establish negotiating goals and parameters, such as rent
reductions, lease term modifications, and other leasehold concessions.
B. GA Keen Realty will contact the landlord for each Property and will seek to negotiate
with the landlord for modifications in accordance with the parameters established by
Company.
C. GA Keen Realty will work with the landlords, the Company, and the Company's counsel
to document all lease modification proposals.
111. Definitions Related to Transactional Fees:
A. Modification Agreement: The term "Modification Agreement" shall refer to a fully
executed agreement between Company and a landlord, which agreement results in the
modification of the terms of a Property lease by, among other things, a reduction in
rent and/or other occupancy costs, modification of the remaining term of the lease, a
modification of the size of the Property, or a Property lease termination.
B. Lease Modification Agreement Date: The term "Lease Modification Agreement Date"
shall be the date of full execution of a Modification Agreement.
C. Remaining Leasehold Liability: The parties hereto shall together calculate the total
remaining occupancy costs, pursuant to the applicable lease, for each Property. The
parties agree that such calculation shall subsequently be adjusted (A) so as to be
calculated as of the "Lease Modification Agreement Date" (as defined above), and (B)
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page12 o/15
so as to take into account any updated or corrected data. This calculation of total
remaining occupancy costs shall include all base rent and additional charges projected
to be paid directly to the landlord for the remaining term of the applicable lease
(excluding any options to renew or extend the term of the lease, unless the terms of
the renewal option provisions are a subject of the lease modification, in which event
the calculation of Remaining Leasehold Liability shall extend into such renewal option
term), including but not limited to percentage rent, unamortized construction
allowances, common area maintenance, real estate taxes, insurance and other related
expenses, to be determined at the rate in effect at execution of the applicable
Modification Agreement, taking into account any future increases set forth in the lease
(but without taking into account inflation). The aggregate remaining occupancy costs,
on a lease by lease basis, shall be referred to as the "Remaining Leasehold Liability".
D. Savings: "Savings" shall be calculated as the difference between (a) the Remaining
Leasehold Liability payable by Company prior to the execution of the applicable
Modification Agreement, and (b) the Remaining Leasehold Liability payable by
Company following the Lease Modification Agreement Date.
IV. Advisory Fee: Company agrees to pay GA Keen Realty on the Effective Date an earned, non-
refundable engagement fee of fifteen thousand dollars ($15,000), which fee shall be set-off
against subsequently earned transaction fees.
V. Transactional Fees: On the Lease Modification Agreement Date, GA Keen Realty shall have
earned and Company shall pay GA Keen Realty, on a per Property basis, the greater of four
thousand dollars ($4,000) (the "Base Fee") or five percent (5%) of "Savings". If the Modification
Agreement creates non-monetary value but does not generate Savings, then GA Keen Realty
shall have earned and shall be paid, on a per Property basis, the Base Fee.
VI. Survival: If Company and a landlord execute a Modification Agreement within twelve (12)
months of the expiration of this Agreement, then GA Keen Realty shall be entitled to a fee in
accordance with the terms of this Agreement. Within ten (10) days following the expiration of
this Agreement, GA Keen Realty will provide Company with a list indicating the status of pending
landlord negotiations. Company covenants that in the event that it sells its business or business
assets and such sale includes Properties where GA Keen Realty has substantially completed
negotiating a Transaction, that it will require the buyer to assume this Agreement so that such
buyer does not receive the benefits of GA Keen Realty's services without paying for same.
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 13of15
1. Indemnification
SCHEDULE C
The Company shall defend, indemnify and hold harmless GA Keen Realty, Great American Group, LLC,
their respective affiliates, and their respective directors, officers, employees, agents, representatives
and controlling persons (GA Keen Realty and each such entity or person being an "Indemnified Party")
from and against any and all losses, claims, damages, expenses and liabilities (collectively, "losses"), as
incurred, to which such Indemnified Party may become subject, related to or arising out of activities
performed by or on behalf of an Indemnified Party pursuant to this Agreement, any transactions
contemplated hereby, or the Indemnified Party's role in connection therewith. The Company shall have
no obligation to indemnify and hold harmless an Indemnified Party for any Losses found in a final
judgment by a Court of competent jurisdiction to have resulted primarily from actions taken or omitted
to be taken by the Indemnified Party in bad faith or from the Indemnified Party's gross negligence or
willful misconduct in performing the services described.
Promptly after receipt by an Indemnified Party of notice of any claim or the commencement of any
action, suit or proceeding with respect to which an Indemnified Party may be entitled to indemnity
hereunder, the Indemnified Party will notify the Company in writing of such claim or of the
commencement of such action or proceeding, provided that the failure to notify the Company shall not
relieve it from any liability under this Agreement except to the extent it has been materially prejudiced
by such failure. The Company may, upon written notice to the Indemnified Party, assume the defense of
such claim, action, suit or proceeding, will employ counsel satisfactory to the Indemnified Party to
represent the Indemnified Party, and will pay the fees and disbursements of such counsel, as incurred.
Each Indemnified Party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the Company shall not have the right to assume the defense of such
claim, action, suit or proceeding and shall pay or reimburse as incurred the fees and expenses of not
more than one separate law firm per relevant jurisdiction (including local counsel) representing such
Indemnified Party if (a) the Company shall have failed to timely assume the defense of such claim,
action, suit, or proceeding, or (b) the named parties to any such claim, action, suit, or proceeding
(including any impleaded parties) include one or more Indemnified Parties and the Company and the
Indemnified Party shall have reasonably concluded that a conflict may arise between the positions of
the Indemnified Party and the Company or that there may be legal defenses available to it that are
different from or additional to those available to the Company.
The Company shall not be liable for any settlement of any claim, action, suit, or proceeding without its
consent (which consent shall not be unreasonably withheld), but, if settled with its consent or if there be
final judgment for a plaintiff in any claim, suit, action, or proceeding, the Company shall defend,
indemnify, and hold harmless each Indemnified Party from and against any and all losses by reason of
such settlement or judgment to the extent provided in this Agreement. Notwithstanding the
immediately preceding sentence, if at any time an Indemnified Party shall have requested the Company
to reimburse such Indemnified Party for legal or other expenses in connection with investigating,
responding to, or defending any claim, action, suit, or proceeding as contemplated by this Agreement,
the Company shall be liable for any settlement of any such claim, action, suit, or proceeding without its
consent if (a) such settlement is entered into more than 30 days after receipt by the Company of such
request for reimbursement and (b) the Company shall not have reimbursed such Indemnified Party in
accordance with such request prior to the date of such settlement. The Company shall not, without the
Indemnified Party's prior written consent, settle, compromise or consent to the entry of any judgment
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page14 of15
in any pending or threatened claim, action or proceeding in respect of which indemnification could be
sought under this Agreement (whether or not any Indemnified Party is an actual or potential party to
such claim, action or proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising out of such claim, action or
proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Party.
In the event any Indemnified Party is requested or required to appear as a witness in any action, suit or
proceeding brought by or on behalf of or against the Company or any affiliate or any participant in a
Transaction covered hereby in which such Indemnified Party is not named as a party, the Company
agrees to reimburse the Indemnified Party for all reasonable expenses incurred by it in connection with
such Indemnified Party's appearing and preparing to appear as a witness, including, without limitation,
the fees and disbursements of its legal counsel, and to compensate GA Keen Realty in an amount to be
mutually agreed upon.
Bankruptcy Protocol: Notwithstanding anything to the contrary:
A. All requests of GA Keen Realty for payment of indemnity pursuant to the Engagement Letter
shall be made by means of an application (interim or final as the case may be) and shall be subject to
review by the Court to ensure that payment of such indemnity conforms to the terms of the
Engagement Letter and is reasonable based on the circumstances of the litigation or settlement in
respect of which indemnity is sought, provided, however, that in no event shall GA Keen Realty be
indemnified in the case of its own bad-faith, self dealing, breach of fiduciary duty (if any), gross
negligence or willful misconduct;
B. In no event shall GA Keen Realty be indemnified if the Company or a representative of the
estate, asserts a claim for, and a court determines by final order that such claim arose out of, GA Keen
Realty's own bad-faith, self-dealing, breach of fiduciary duty (if any), gross negligence or willful
misconduct;
C. In the event that GA Keen Realty seeks reimbursement for attorneys' fees from the Company
pursuant to the indemnity provisions in the Engagement Letter, the invoices and supporting time
records from such attorneys shall be included in GA Keen Realty's own applications for approval of
indemnity payments (both interim and final) and such invoices and time records shall be subject to the
United States Trustee's guidelines for compensation and reimbursement of expenses and the approval
of the Bankruptcy Court under the standards of Sections 330 and 331 of the Bankruptcy code without
regard to whether such attorney has been retained under Section 327 of the Bankruptcy Code and
without regard to whether such attorney's services satisfy Section 330(a)(3)(C) of the Bankruptcy Code.
2. Contribution
If for any reason the indemnification provided in this Agreement is unavailable to an Indemnified Party
or insufficient to hold an Indemnified Party harmless, the Company shall contribute to the amount paid
or payable by such Indemnified Party as a result of such Losses (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative benefits received or proposed to be
received by the Company on one hand and the Indemnified Party on the other hand in connection with
services provided by GA Keen Realty under this Agreement. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or otherwise, the Company shall
Back Yard Burgers, Inc.
GA Keen Realty Advisors
September 25, 2012
Page 15 of15
contribute to such amount paid or payable by any Indemnified Party to reflect not only the relative
benefits but also the relative fault of the Company on the one hand and the Indemnified Parties on the
other hand in connection with any actions or omissions or any other matters that result in any such
Losses as well as any other relevant equitable considerations. Relative benefits to the Company, on the
one hand, and to an Indemnified Party, on the other hand, shall be deemed to be in the same
proportion as (a) the total Transaction Value of the Transaction or proposed Transaction bears to (b) all
fees actually received by GA Keen Realty under the Agreement. Notwithstanding the foregoing, the
aggregate contribution of all Indemnified Parties to all Losses shall not exceed the amount of fees
actually received by GA Keen Realty under this Agreement.
3. Reimbursement of Litigation Expenses
The Company also agrees to reimburse GA Keen Realty, its affiliates, and their respective directors,
officers, employees, agents, representatives and controlling persons for all expenses (including counsel
fees and disbursements) as they are incurred by such entity or person in connection with the
investigation of, preparation for, or defense of any pending or threatened claim, or any action,
investigation, suit or proceeding related to or arising out of activities performed by or on behalf of such
entity or person pursuant to this Agreement, any transactions contemplated hereby, or its or his role in
connection therewith, whether or not such entity or person is a party and whether or not such claim,
action or proceeding is initiated or brought by or on behalf of the Company.
4. Limitation of Liability
The Company also agrees that GA Keen Realty, its affiliates, and their respective directors, officers,
employees, agents, representatives and controlling persons shall not be liable (whether directly or
indirectly, in contract or tort or otherwise) to the Company or its security holders or creditors, for any
matter, cause or thing related to or arising out of the engagement of GA Keen Realty pursuant to, or the
performance by GA Keen Realty of the services contemplated by, this Agreement except to the extent
that GA Keen Realty is found in a final judgment by a Court of competent jurisdiction to have acted or
failed to act in bad faith or with gross negligence or willful misconduct in performing the services
described in this Agreement.
The provisions of Schedule C shall be in addition to any liability that the Company may otherwise have
and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal
representatives of the Company. These provisions shall be governed by the law of the State of New
York, without regard to its conflict of law principles, and shall be operative in full force and effect
regardless of any termination or expiration of this Agreement.
In re
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
BACKYARD BURGERS, INC., et al.
1
Case No. 12-12882 (PJW)
Debtors.
(Joint Administration Pending)
Ref. Docket No.
ORDER UNDER 11 U.S.C. 327(a) AND 328(a) AUTHORIZING
THE RETENTION AND EMPLOYMENT OF GA KEEN REALTY ADVISORS, LLC
AS REAL ESTATE ADVISOR TO THE DEBTORS
Upon the application (the "Application")
2
of the above-captioned debtors and debtors-in-
possession (collectively, the "Debtors"), pursuant to sections 327(a), 328(a) of title 11 of the
United States Code, 11 U.S.C. 101-1532 (the "Bankruptcy Code"), Rule 2014 ofthe Federal
Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), and Rule 2014-1 ofthe Local Rules
of the United States Bankruptcy Court for the District of Delaware (the "Local Rules"), for entry
of an order authorizing the retention and employment of GA Keen Realty Advisors, LLC ("GA
Keen") as real estate advisor to the Debtors; the Court, having reviewed the Application and the
Affidavit of Matthew Bordwin in Support of the Debtors' Application for Entry of an Order
Authorizing the Retention and Employment of GA Keen Realty Advisors, LLC (the "Bordwin
Affidavit") finds that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157
and 1334, this is a core matter pursuant to 28 U.S.C. 157(b)(2), notice of the Application was
sufficient under the circumstances and that no further notice need be given, GA Keen is
"disinterested" and eligible for retention pursuant to sections 101(14) and 327(a) of the
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 3 7219.
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Application.
Bankruptcy Code, the terms of the engagement are reasonable and appropriate, and the legal and
factual bases set forth in the Application and Declaration establish just cause for the relief
granted herein,
THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Application is granted.
2. The Debtors are authorized, pursuant to sections 327(a) and 328(a) of the
Bankruptcy Code, Rule 2014 and Local Rule 2014-1, to retain and employ GA Keen as real
estate advisor to the Debtors in the above-captioned Cases upon the terms and conditions as set
forth in the Application.
3. GA Keen shall not be required to submit fee applications and shall be
compensated in accordance with the procedures set forth in the Application and such other
procedures as may be fixed by order of this Court.
4. With respect to any success fees payable for the closing of a Transaction, GA
Keen is exempt from keeping time records (unless GA Keen's services are being billed by the
hour).
5. None of the fees payable toGA Keen under the Retention Agreement constitute a
"bonus" under applicable law.
6. All fees payable to GA Keen shall be deemed administrative expenses of the
Debtors' estate, and paid to GA Keen without further application to or Order of the Court.
7. The Debtors are authorized and empowered to take such actions as may be
necessary and appropriate to implement the terms of this Order.
8. The Bankruptcy Court has and shall retain jurisdiction to hear and determine all
matters arising from the implementation of this Agreement, and neither the Debtors nor GA
2
Keen shall be required to seek authorization from any other jurisdiction with respect to the relief
granted by the Order approving this Agreement.
Dated: Wilmington, Delaware
_____ ,2012
HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE
3