Interim Order (I) Authorizing The Payment

Source document: Interim Order (I) Authorizing The Payment; document type: inspector-general-sigpr-reports.

Full text

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. 13
INTERIM ORDER (I) AUTHORIZING THE PAYMENT
OF CERTAIN TAXES AND FEES AND (II) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of the above-captioned debtors and debtors in possession
(collectively, the “Debtors”) for the entry of an interim order (this “Interim Order”),
(a) authorizing the Debtors to (i) negotiate, remit, and pay (or use tax credits to offset) prepetition
Taxes and Fees and postpetition Taxes and Fees as they become due and owing in the ordinary
course of business that become payable during these chapter 11 cases, including obligations arising
on account of an Audit or Assessment, and (ii) undertake the Tax Planning Activities;
(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 that this is a core proceeding pursuant to 28

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 88    Filed 06/11/24    Page 1 of 7

2

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.
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 2 of 7

3

(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 are authorized on an interim basis to:  (a) negotiate, pay, and remit
(or use tax credits to offset), or otherwise satisfy the Taxes and Fees (including corresponding
Assessments) that arose or accrued prior to the Petition Date and that will become due and owing
in the ordinary course of business during the pendency of these chapter 11 cases at such time when
the Taxes and Fees are payable, provided that such payments shall not exceed $1,130,000 in the
aggregate pending entry of the Final Order; (b) negotiate, pay, and remit (or use tax credits to
offset) Taxes and Fees that arise or accrue in the ordinary course of business during the interim
period on a postpetition basis— until the date a Final Order on the Motion is entered, including,
for the avoidance of doubt, posting collateral or a letter of credit in connection with any dispute
related to the Audits or Assessments or paying any Taxes and Fees arising as a result of the Audits
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 3 of 7

4

or Assessments; provided that notwithstanding anything to the contrary herein or in the Motion, in
the event the Debtors make a payment with respect to any Taxes and Fees for the prepetition
portion of any “straddle” amount, and this Court subsequently determines such amount was not
entitled to priority or administrative treatment under section 507(a)(8) or 503(b)(1)(B) of the
Bankruptcy Code, the Debtors may (but shall not be required to) seek an order from the Court
requiring a return of such amounts.
4.
To the extent the Debtors pay any Taxes and Fees on behalf of certain of their
non-Debtor affiliates, the Debtors are authorized to continue paying in the ordinary course of
business during these chapter 11 cases, including any prepetition amounts related thereto,
consistent with historical practices, provided that the Debtors keep clear records of all such
payments.
5.
The Debtors are further authorized to settle some or all of the prepetition Taxes and
Fees for less than their face amount without further notice or hearing.
6.
Notwithstanding anything to the contrary herein or in the Motion, the Debtors are
authorized to file amended tax returns, including for prepetition periods, and pay any Taxes and
Fees in connection therewith.
7.
Notwithstanding the relief granted herein or any actions taken hereunder, nothing
contained in this Interim Order shall create any rights in favor of or enhance the status of any claim
held by any of the Authorities.
8.
Nothing in this Interim Order authorizes the Debtors to accelerate any payments
not otherwise due and, for the avoidance of doubt, the Debtors shall not pay any Taxes and Fees
before such Taxes and Fees are due to the applicable Authority.
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 4 of 7

5

9.
To the extent that the Debtors have overpaid any Taxes and Fees, the Debtors are
authorized to seek a refund or credit.
10.
The Debtors, in consultation with the Ad Hoc Group, are authorized, but not
directed, to undertake the Tax Planning Activities as set forth in the Motion provided, however,
that the Debtors will give the U.S. Trustee and advisors to any statutory committee appointed in
these chapter 11 cases five business days’ notice before effectuating any such Tax Planning
Activity, during which time the U.S. Trustee or any such statutory committee may object to such
Tax Planning Activities and request a hearing before the Court.
11.
The Debtors’ rights to contest the validity or priority of any Taxes and Fees on any
grounds they deem appropriate are reserved and extend to the payment of Taxes and Fees relating
to Audits that have been completed, are in progress, or arise from prepetition periods.
12.
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.
13.
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.
14.
Notwithstanding anything to the contrary contained herein, any payment to be made
hereunder, and any authorization contained herein, shall be subject to any interim and final orders,
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 5 of 7

6

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.
15.
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.
16.
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.
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 6 of 7

7

17.
The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
18.
Nothing in this Interim Order authorizes the Debtors to accelerate any payments
not otherwise due prior to the date of the Final Hearing.
19.
The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
20.
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.
21.
The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Interim Order in accordance with the Motion.
22.
This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Interim Order.
BRENDAN L. SHANNON
UNITED STATES BANKRUPTCY JUDGE
Dated: June 11th, 2024
Wilmington, Delaware
Case 24-11217-BLS    Doc 88    Filed 06/11/24    Page 7 of 7

File and source

File

gov.uscourts.deb.193283.88.0.pdf

Size

337,240 bytes

SHA-256

8953b37a9f3e2ce32f84ac9aec119e97a7302c7ca6aefe80e283a21fc4edbd17

Our copy

gov.uscourts.deb.193283.88.0.pdf

Original

PACER (login required)