The U.S. Trustee assigned to the GenOn Energy case filed with the U.S. Bankruptcy Court an objection to the Debtors’ motion for entry of an order approving marketing process procedures, notes offering procedures and related forms and authorizing the Debtors to pay reasonable documented fees and expenses of the noteholder advisors.
The Trustee asserts, “Under the Motion, the Ad Hoc GenOn Notes Committee and the Ad Hoc GAG Notes Committee (collectively the ‘Noteholder Groups’) would reap the benefits of section 503(b)’s administrative status without subjecting themselves to its burdens. Debtors argue that because the Noteholder Advisors will ‘undertake significant analysis and efforts to support decision-making by the Debtors,’ the Debtors need only show they used their business judgment under section 363 of the Bankruptcy Code to obtain approval of these fees and expenses, as well as their administrative status. However, the plain meaning of the Bankruptcy Code’s text is clear and determinative….In addition, in this case, the Debtors are seeking reimbursement of Fees and Expenses incurred by non-statutory committees, which is specifically addressed in section 503(b) of the Bankruptcy Code.”
In addition, “The payment provisions sought in the Motion conflict with the statutory standards and procedures for payment of administrative expenses because they authorize certain creditors to be paid administrative expenses without the necessity of filing an application and meeting their evidentiary burden for payment under section 503(b)….The Court cannot disregard its duty under the Bankruptcy Code and pre-approve all the fees, no matter what they may be, and without a showing that the party made a substantial contribution. This case is yet unconfirmed. If the Motion were approved, but the deal between the noteholders, NRG, and the Debtors collapsed and the current Plan was not confirmed, the Noteholder Advisors could be paid without any showing that their clients made a substantial contribution to the case.”
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