Case No. 05-12339 (MFW), Jointly Administered, Related to Docket No. 144.United States Bankruptcy Court, D. Delaware.
October 3, 2005
ORDER UNDER 11 U.S.C. §§ 105, 327, 330, AND 331 AUTHORIZING RETENTION AND PAYMENT OF PROFESSIONALS UTILIZED BY DEBTORS IN ORDINARY COURSE OF BUSINESS
MARY WALRATH, Bankruptcy Judge
Upon the Debtors’ motion, dated September 15, 2005 (the “Motion”),[1] for entry of an order (the “Order”) under sections 105, 327, 330, and 331 of the Bankruptcy Code authorizing the Debtors (i) to retain the professionals utilized in the ordinary course of business (the “Ordinary Course Professionals”) under sections 105(a) and 327 of the Bankruptcy Code without the necessity of separate, formal retention applications and (ii) to pay the Ordinary Course Professionals under sections 330 and
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331 of the Bankruptcy Code for post-petition services rendered and expenses incurred, subject to certain limits set forth below, without the necessity of additional Court approval; and the Court having determined that the relief requested in the Motion is in the best interests of the Debtors, their estates, 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 upon the record herein; and after due deliberation thereon; and good and sufficient cause appearing therefor, it is hereby
ORDERED, ADJUDGED, AND DECREED THAT:
1. The Motion is GRANTED, as modified herein.
2. The Debtors are authorized to employ and retain the Ordinary Course Professionals listed on the attached Exhibit A, without the need to file individual retention applications and obtain retention orders for each Ordinary Course Professional.
3. Within five (5) business days after the date of entry of this Order, the Debtors shall serve this Order upon each Ordinary Course Professional listed on Exhibit A hereto. Thereafter, no later than thirty (30)
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days after the date of entry hereof, each Ordinary Course Professional that is an attorney shall file with the Court, and serve upon the United States Trustee, the Purchaser, the Agent, and the Committee, a declaration of proposed professional and disclosure statement (the “Declaration”) in substantially the form attached hereto as Exhibit B. The Declaration shall include, among other things, an explanation of pre-petition services rendered and post-petition services to be provided, to the Debtors.
4. The United States Trustee, the Purchaser, the Agent, and the Committee shall have twenty (20) days after service of each Ordinary Course Professional’s Declaration (the “Objection Deadline”) to object to the retention of such professional. Any such objections shall be served by the Objection Deadline upon the Ordinary Course Professional, the Debtors, the United States Trustee, the Purchaser, the Agent, and the Committee. If any such objection cannot be resolved and withdrawn within twenty (20) days after service, the matter shall be scheduled for hearing before the Court at the next regularly-scheduled hearing date or date otherwise agreeable
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to the Ordinary Course Professional, the Debtors, and the objecting party. If no objection is made by the Objection Deadline, or if any objection is resolved or withdrawn, the Debtors shall be authorized to retain the Ordinary Course Professional as a final matter without further order of this Court.
5. Ordinary Course Professionals who are not attorneys shall not be required to file and serve a Declaration, and such professionals’ retention shall be fully effective and final upon approval of this Order.
6. The Debtors are authorized, without need for further hearing or order from the Court, to employ and retain Ordinary Course Professionals not currently listed on Exhibit A hereto (the “Additional Ordinary Course Professionals”) by filing with the Court, and serving on the United States Trustee, the Purchaser, the Agent, and the Committee, a supplement to Exhibit A (the “Supplement”), listing the name of the Additional Ordinary Course Professional, together with a brief description of the services to be rendered, and by otherwise complying with the terms of this Order. With respect to Additional Ordinary Course Professionals that are attorneys,
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for purposes of complying with the Declaration requirement above, the thirty (30)-day deadline for the filing of Declarations by the Additional Ordinary Course Professionals shall run from the filing of the Supplement with the Court, but all other requirements and deadlines shall remain the same.
7. The Debtors are authorized to make monthly payments up to $25,000 per month for each Ordinary Course Professional, for fees and expenses (on an average, rolling basis as described in the Motion), in the manner customarily made by the Debtors, upon receipt from the professional of reasonably detailed invoices indicating the nature of the services rendered and calculated in accordance with such professional’s standard billing practices (without prejudice to the Debtors’ normal right to dispute any such invoices); provided, however, that payment made to an Ordinary Course Professional shall not be final until the retention of such professional is authorized as a final matter pursuant to the provisions hereof; provided, further, that payments made to Ordinary Course Professionals shall be subject to disallowance and/or disgorgement under 11 U.S.C. § 328(c).
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8. All payments to any one Ordinary Course Professional shall be subject to the approval of the Court in accordance with sections 330 and 331 of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedures, the Local Rules of the United State Bankruptcy Court, and such procedures as may be approved by order of the Court for professionals involved in the conduct of these cases, if payments to such professional exceed $25,000 (on an average, rolling basis as described in the Motion), or exceed an aggregate of $300,000 during the pendency of these Chapter 11 cases.
9. Approximately every one-hundred and twenty (120) days, the Debtors shall file with this Court, and serve upon the United States Trustee, the Purchaser, the Agent, and the Committee, a statement that includes the following information for each Ordinary Course Professional: (a) the name of the Ordinary Course Professional, (b) the aggregate amounts paid as compensation for services rendered and reimbursement of expenses incurred by such Ordinary Course Professional during the statement period, and (c) a general description of the services rendered by such Ordinary Course Professional; provided,
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however, that no such summary statement shall be filed or served if the Debtors’ prepackaged plan of reorganization is confirmed and consummated prior to the expiration of the one-hundred and twenty day period.
10. This Order shall not apply to professionals who are retained by third parties to provide services on behalf of the Debtors or their assets, and with respect to which the Debtors have no direct relationships. Such professionals may be retained and paid by such third parties without regard to the requirements of the Bankruptcy Code.
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