The U.S. Trustee assigned to the Energy Future Holdings case and Delaware Trust Company filed with the U.S. Bankruptcy Court a separate final objection and reservation of rights, respectively, to Energy Future Holdings’ First Amended Joint Plan of Reorganization.
The Trustee asserts, “The E-Side Plan may be otherwise confirmed but only to the extent that approval of the payment of the reasonable fees and expenses of the EFH Notes Trustee, and any other such other party, are authorized by the Bankruptcy Code under section 503(b) and such allowance and payment is consistent with applicable bankruptcy law and prior rulings by this Court in these Chapter 11 cases.”
In addition, “Although the E-Side Plan provides for the payment of EFH Notes Trustee’s reasonable professional fees and expenses in accordance with prior rulings of this Court and specifically pursuant to section 503(b)(3)(D), 503(b)(4) and 503 (b)(5) of the Bankruptcy Code, the highlighted language of the above-cited E-Side Plan provision potentially opens a door to the possibility that in the event that this Court does not find that the EFH Notes Trustee (or other party seeking such fees) has made a substantial contribution in these cases subsequent to February 17, 2017, such fees and expenses may otherwise be allowed as an administrative expense. The quandary engendered by this particular caveat in Article IV. Section N.1. of the E-Side Plan is such fees and expenses might be allowed and paid without an underlying valid legal basis or justification for such payment under the Bankruptcy Code. This caveat also conflicts with prior rulings by this Court in these cases.”
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