Opinion
Proceedings Jointly Administered under Case No. 3:01-12036
November 6, 2001
Gary M. Brown, Charles K. Grant, Dinsmore Shohl LLP, Nashville, TN, and Kim Martin Lewis, Tim J. Robinson, Dinsmore Shohl LLP, Cincinnati, Ohio, for Debtors and Debtors-in-Possession.
Upon the motion, dated October 31, 2001 (the "Motion"). of Phoenix Restaurant Group, Inc. ("PRG") and its above-captioned direct and indirect subsidiaries (the "Subsidiary Debtors"), debtors and debtors-in-possession in the above-captioned cases (PRG and the Subsidiary Debtors collectively, the "Debtors"). for an order, under 11 U.S.C. § 105(a) and 331, establishing procedures for interim compensation and reimbursement of expenses of professionals specifically retained by order of this Court; and upon the Affidavit of Jeffrey Pate in Support of Chapter 11 Petitions and First Day Orders; and this Court having determined that granting the relief requested in this Motion is in the best interest of the Debtors, their estates, and creditors; and it appearing that proper and adequate notice has been given and that no other or further notice is necessary; and upon the record herein; and after due deliberation thereon; and good and sufficient cause appearing therefore, it is hereby:
ORDERED, ADJUDGED AND DECREED:
1. Except as may otherwise be provided in Court orders authorizing the retention of specific professionals, all professionals in these cases may seek interim compensation in accordance with the following procedure:
(a) On or before the 30th day of each month following the month for which compensation is sought (the "Monthly Statement Date"), each professional will submit a monthly statement (each, a "Monthly Statement") to (i) Phoenix Restaurant Group, Inc., 1210 Briarville Road, Building F, Madison, TN 37115, Attn: Jeffrey Pate, (ii) counsel for the Debtors, Dinsmore Shohl, LLR, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, OH 45202, Attn: Kim Martin Lewis, (iii) counsel for the Debtors' pre- and postpetition primary secured lenders, CNL APF Partners, L.P., (Attn: Matt Beal, Lowndes Drosdick Doster Kantor Reed, P.A., 450 South Orange Avenue, Suite 800, Orlando, FL 32801) ("CNL"), (iv) counsel to the statutory committee of unsecured creditors (the "Committee"), once appointed, (v) the chair or co-chairs of the Committee, once appointed, and (vi) the Office of the United States Trustee. Each such person receiving such a statement will have twenty (20) days after the Monthly Statement Date to review the statement. At the expiration of the twenty (20) day period, the Debtors shall promptly pay eighty-five percent (85%) of the fees and one hundred percent (100%) of the disbursements identified in each Monthly Statement, except such fees or disbursements as to which an objection shall be served by the Debtors, the United States Trustee, CNL, or the Committee (once appointed) as provided in paragraph (b) below. Any professional who fails to submit a Monthly Statement shall be ineligible to receive further payment of fees and expenses as provided herein until such time as the Monthly Statement is submitted;
(b) In the event the Debtors, the United States Trustee, CNL, or the Committee has an objection to the compensation or reimbursement sought in a particular statement, they or it shall, within twenty (20) days of the Monthly Statement Date, serve upon (i) the professional whose statement is objected to, and (ii) except to the extent duplicative of the foregoing clause (i), the other persons designated to receive Monthly Statements in paragraph (a) above, a written "Notice of Objection to Fee Statement," setting forth the precise nature of the objection and the amount at issue. Thereafter, the objecting party and the professional whose statement is objected to shall attempt to reach an agreement regarding the correct payment to be made. If the parties are unable to reach an agreement on the objection within fifteen (15) days after receipt of such objection, the objecting party may file its objection and serve such objection on the parties listed in clauses (i) and (ii) above, and the Court shall consider and dispose of the objection at the next interim fee hearing. The Debtors will be required to pay promptly that percentage set forth above of any portion of the fees and disbursements requested that are not the subject of a Notice of Objection to Fee Statement;
(c) The first statements shall be submitted by each of the professionals by December 30, 2001 and shall cover the period from the commencement of this case through November 30, 2001.
(d) Approximately every four (4) months, each of the professionals shall file with the court and serve on the parties identified in paragraph (a) above, one or before the 45th day following the last day of the compensation period for which compensation is sought an application for interim Court approval and allowance pursuant to section 331 of the Bankruptcy Code of the compensation and reimbursement of expenses requested for the prior four (4) months. The first such application shall be filed on or before April 15, 2002 and shall cover the period from the commencement of these cases through February 28, 2002. Any professional who fails to file an application when due shall be ineligible to receive further interim payments of fees or expenses as provided herein until such time as the application is submitted. The failure by the Debtors, the U.S. Trustee, CNL or the Committee to object to a monthly statement shall not prejudice such parties from filing an objection to an interim or final application;
(e) The pendency of an application or a court order that payment of compensation or reimbursement of expenses was improper as to a particular statement shall not disqualify a professional from the future payment or compensation or reimbursement of expenses as set forth above; and
(f) Neither the payment of, nor the failure to pay, in whole or in part, monthly interim compensation and reimbursement as provided herein shall bind any party-in-interest or this Court with respect to the allowance of applications for compensation and reimbursement of professionals.
2. Each member of the Committee (once appointed) in these cases shall be permitted to submit statements of expenses and supporting vouchers to counsel for the Committee who shall collect and submit such requests for reimbursement in accordance with the foregoing procedure for monthly and interim compensation and reimbursement of professionals.
3. Sending notice of the hearing to consider interim applications to: (i) the United States Trustee; (ii) counsel for the Debtors; (iii) counsel for the Committee; (iv) counsel for CNL; (vi) the Debtors; and (vi) all parties who have filed a notice of appearance with the Clerk of this Court and requested such notice shall be good and sufficient notice.
4. The Debtors shall include all payments to professionals on its monthly operating reports, detailed so as to state the amount paid to each of the professionals.
5. All time periods set forth in this Order shall be calculated in accordance with Federal Rule of Bankruptcy Procedure 9006(a).
6. Service of the Debtors' Motion as described in that Motion, and the notice of hearing on emergency motions described in this Court's Order Setting Emergency Hearing on Selected First Day Motions and Shortening the Time Period of Notice and Setting Expedited Hearing Upon Selected First-Day Motions, entered in these cases as a separate order dated November 1, 2001, is deemed adequate and appropriate under the circumstances and in full compliance with applicable provisions of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the Local Rules of the Middle District of Tennessee.
7. In the absence of any timely and proper objections, this Order shall become a final order without the necessity of a hearing date and shall be effective as of October 31, 2001.
IT IS SO ORDERED.