Interim Order (I) Authorizing The Debtors
- Date
- 2012-02-29
Summary
An interim order of the U.S. Bankruptcy Court for the District of Delaware in the jointly administered Chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), entered as Doc 92 on June 11, 2024 in response to the motion at Docket No. 9. The order grants the debtors' motion on an interim basis, authorizing but not directing them to maintain prepetition insurance policies and surety bonds, pay related obligations, and renew, supplement, modify or purchase coverage. Payments may not exceed $900,000 in the aggregate pending a final order. It sets a final hearing for July 9, 2024, with objections due July 2, 2024, and states the relief is subject to any DIP Order. The order is signed by United States Bankruptcy Judge Brendan L. Shannon.
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Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 1 of 6
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al., 1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
) Re: Docket No. 9
INTERIM ORDER (I) AUTHORIZING THE DEBTORS
TO (A) MAINTAIN INSURANCE AND SURETY COVERAGE
ENTERED INTO PREPETITION AND PAY RELATED PREPETITION
OBLIGATIONS, AND (B) RENEW, SUPPLEMENT, MODIFY OR PURCHASE
INSURANCE AND SURETY COVERAGE, AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”) 2 of the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) for entry of an interim order (this “Interim Order”), (a) authorizing,
but not directing, the Debtors to (i) maintain coverage under the Insurance Policies and the Surety
Bonds and pay related obligations and (ii) renew, supplement, modify or purchase insurance and
surety coverage in the ordinary course, (b) scheduling a final hearing to consider approval of the
Motion on a final basis, and (c) granting related relief, all as more fully set forth in the Motion;
and upon the First Day Declaration; and the United States District Court for the District of
Delaware has jurisdiction over this matter pursuant to 28 U.S.C. § 1334, which was referred to the
Court under 28 U.S.C. § 157 and the Amended Standing Order of Reference from the United States
District Court for the District of Delaware, dated February 29, 2012; and this Court having found
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ proposed claims and noticing agent at
https://omniagentsolutions.com/Vyaire. The location of Debtor Vyaire Medical, Inc.’s principal place of business
and the Debtors’ service address in these chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa,
Illinois, USA 60045.
2
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Motion.
Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 2 of 6
that this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2); and this Court having found that
venue of this proceeding and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408
and 1409; and this Court having found that the relief requested in the Motion is in the best interests
of the Debtors’ estates, their creditors, and other parties in interest; and this Court having found
that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion were
appropriate under the circumstances and no other notice need be provided; and this Court having
reviewed the Motion and having heard the statements in support of the relief requested therein at
a hearing before this Court (the “Hearing”); and this Court having determined that the legal and
factual bases set forth in the Motion and at the Hearing establish just cause for the relief granted
herein; and upon all of the proceedings had before this Court; and after due deliberation and
sufficient cause appearing therefor, it is HEREBY ORDERED THAT:
1. The Motion is granted on an interim basis as set forth herein.
2. The final hearing (the “Final Hearing”) on the Motion shall be held on July 9, 2024,
at 10:00 a.m., prevailing Eastern Time. Any objections or responses to entry of a final order on
the Motion shall be filed on or before 4:00 p.m., prevailing Eastern Time, on July 2, 2024 and shall
be served on: (a) the Debtors, 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045,
Attn.: Charles Braley (cbraley@alixpartners.com); (b) proposed co-counsel to the Debtors
(i) Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, Attn.: Joshua A.
Sussberg, P.C. (joshua.sussberg@kirkland.com), Chris Ceresa (chris.ceresa@kirkland.com), and
Tiffani Chanroo (tiffani.chanroo@kirkland.com), (ii) Kirkland & Ellis LLP, 333 West Wolf Point
Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters (spencer.winters@kirkland.com) and
Yusuf U. Salloum (yusuf.salloum@kirkland.com), (iii) Cole Schotz P.C., 500 Delaware Avenue,
Suite 1410, Wilmington, Delaware 19801,Attn.: Patrick J. Reilley, Esq.
2
Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 3 of 6
(preilley@coleschotz.com), Stacy L. Newman (snewman@coleschotz.com), Michael E.
Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com),and Jack M. Dougherty, Esq.
(jdougherty@coleschotz.com), and (iv) Cole Schotz P.C., Court Plaza North, 25 Main Street,
Hackensack, New Jersey 07601, Attn.: Michael D. Sirota, Esq. (msirota@coleschotz.com) and
Warren A. Usatine, Esq. (wusatine@coleschotz.com);(c) counsel to the 1L Ad Hoc Group,
(i) Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193,
Attn.: Scott J. Greenberg (SGreenberg@gibsondunn.com), Jason Zachary Goldstein
(JGoldstein@gibsondunn.com), Joshua Brody (JBrody@gibsondunn.com), and Kevin Liang
(KLiang@gibsondunn.com) and (ii) Pachulski Stang Ziehl & Jones LLP, 919 North Market Street,
17th Floor, Wilmington, DE 19801, Attn.: Laura Davis Jones (ljones@pszjlaw.com);
(d) the United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware
19801, Attn.: Benjamin A. Hackman (Benjamin.A.Hackman@usdoj.gov); and (e) any statutory
committee appointed in these chapter 11 cases.
3. The Debtors shall serve a copy of the Motion and this Interim Order on each
Insurance Carrier and the Surety listed in Exhibit C and Exhibit D to the Motion within two
business days after entry of this Interim Order.
4. The Debtors are authorized, but not directed, to: (a) continue and maintain the
Insurance Policies 3 and the Surety Bonds and pay any related prepetition or postpetition amounts
or obligations in the ordinary course of business, including any amounts or obligations that may
be owed to the Broker; and (b) renew, amend, supplement, extend or purchase insurance policies
and surety bonds, in each case, to the extent that the Debtors determine that such action is in the
3
For the avoidance of doubt, the term Insurance Policies shall include all insurance policies issued or providing
coverage at any time to the Debtors or their predecessors and any agreements related thereto, whether or not listed
on Exhibit C attached to the Motion.
3
Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 4 of 6
best interest of their estates, provided, that such payments shall not exceed $900,000 in the
aggregate pending entry of a final order.
5. The banks and financial institutions on which checks were drawn or electronic
payment requests made in payment of the prepetition obligations approved herein are authorized
to receive, process, honor, and pay all such checks and electronic payment requests when presented
for payment, and all such banks and financial institutions are authorized to rely on the Debtors’
designation of any particular check or electronic payment request as approved by this Interim
Order.
6. Nothing contained in the Motion or this Interim Order, and no action taken pursuant
to the relief requested or granted (including any payment made in accordance with this Interim
Order), is intended as or shall be construed or deemed to be: (a) an admission as to the amount,
validity or priority of or basis for any claim against the Debtors under the Bankruptcy Code or
other applicable nonbankruptcy law; (b) a waiver of the Debtors’ or any other party in interest’s
right to dispute any claim on any grounds; (c) a promise or requirement to pay any particular claim;
(d) an implication, admission or finding that any particular claim is an administrative expense
claim, other priority claim or otherwise of a type specified or defined in the Motion or this Interim
Order; (e) a request or authorization to assume, adopt or reject any agreement, contract or lease
pursuant to section 365 of the Bankruptcy Code; (f) an admission as to the validity, priority,
enforceability or perfection of any lien on, security interest in or other encumbrance on property
of the Debtors’ estates; or (g) a waiver or limitation of any claims, causes of action or other rights
of the Debtors or any other party in interest against any person or entity under the Bankruptcy
Code or any other applicable law.
4
Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 5 of 6
7. The Debtors are authorized, but not directed, to issue postpetition checks or to effect
postpetition fund transfer requests, in replacement of any checks or fund transfer requests that are
dishonored as a consequence of these chapter 11 cases with respect to prepetition amounts owed
in connection with the relief granted herein.
8. Nothing in the Motion or this Interim Order waives or modifies the requirements
of the Restructuring Support Agreement, including, without limitation, the consent and
consultation rights contained therein, provided, however, that nothing in the Motion or this Interim
Order constitutes Court approval of the Restructuring Support Agreement.
9. Notwithstanding anything to the contrary contained in the Motion or this Interim
Order herein, any payment to be made hereunder, and any authorization contained herein, shall be
subject to any interim and final orders, as applicable, approving the use of such cash collateral
and/or the Debtors’ entry into any postpetition financing facilities or credit agreement, and any
budgets in connection therewith governing any such postpetition financing and/or use of cash
collateral (each such order, a “DIP Order”). To the extent there is any inconsistency between the
terms of the DIP Order and any action taken or proposed to be taken hereunder, the terms of the
DIP Order shall control.
10. The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
11. Nothing in this Interim Order authorizes the Debtors to accelerate any payments
not otherwise due prior to the date of the Final Hearing.
12. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
5
Case 24-11217-BLS Doc 92 Filed 06/11/24 Page 6 of 6
13. Notice of the Motion as provided therein shall be deemed good and sufficient notice
of such Motion, and the requirements of Bankruptcy Rule 6004(a) and the Local Rules are satisfied
by such notice.
14. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Interim
Order are immediately effective and enforceable upon its entry.
15. The Debtors are authorized, but not directed, to take all actions necessary to
effectuate the relief granted in this Interim Order in accordance with the Motion.
16. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Interim Order.
Dated: June 11th, 2024 BRENDAN L. SHANNON
Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
6
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