Interim Order (I) Authorizing
- Date
- 2012-02-29
Summary
Interim Order (I) Authorizing the Debtors to Maintain and Administer Their Existing Customer Programs and Honor Certain Prepetition Obligations and (II) Granting Related Relief, filed June 11, 2024 as Doc 87 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware. The order grants the Debtors' motion on an interim basis and sets a final hearing for July 9, 2024, with objections due July 2, 2024. It authorizes, but does not direct, the Debtors to continue their Customer Programs and honor undisputed prepetition obligations, with cash outlays capped at $775,000 in the aggregate pending a final order. It provides that payments remain 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 87 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. 8
INTERIM ORDER (I) AUTHORIZING
THE DEBTORS TO MAINTAIN AND ADMINISTER THEIR
EXISTING CUSTOMER PROGRAMS AND HONOR CERTAIN PREPETITION
OBLIGATIONS RELATED THERETO 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, but not directing, the Debtors to maintain and administer the Customer Programs
and to honor certain prepetition obligations related thereto, (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 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
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 87 Filed 06/11/24 Page 2 of 6
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; 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.
(preilley@coleschotz.com), Stacy L. Newman (snewman@coleschotz.com), Michael E.
Fitzpatrick, Esq. (mfitzpatrick@coleschotz.com),and Jack M. Dougherty, Esq.
2
Case 24-11217-BLS Doc 87 Filed 06/11/24 Page 3 of 6
(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, but not directed, to continue to administer the
Customer Programs (including, but not limited to, those discussed in the Motion) currently in
effect and honor any undisputed prepetition obligations related to the Customer Programs, in each
case in the ordinary course of business, on an interim basis, consistent with prepetition practices,
and to modify, replace, or terminate any Customer Program in the ordinary course of business;
provided, that such cash outlays shall not exceed $775,000 in the aggregate pending entry of a
final order.
4. 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’
3
Case 24-11217-BLS Doc 87 Filed 06/11/24 Page 4 of 6
designation of any particular check or electronic payment request as approved by this Interim
Order.
5. 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.
6. 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.
7. Nothing in the Motion or this Interim Order waives or modifies the requirements
of the Restructuring Support Agreement, including, without limitation, the consent and
4
Case 24-11217-BLS Doc 87 Filed 06/11/24 Page 5 of 6
consultation rights contained therein, provided, however, that nothing in the Motion or this Interim
Order constitutes Court approval of the Restructuring Support Agreement.
8. 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,
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 or proposed to be taken hereunder, the terms of the DIP Order shall control.
9. The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
10. Nothing in this Interim Order authorizes the Debtors to accelerate any payments
not otherwise due prior to the date of the Final Hearing.
11. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
12. 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.
13. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Interim
Order are immediately effective and enforceable upon its entry.
14. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Interim Order in accordance with the Motion.
5
Case 24-11217-BLS Doc 87 Filed 06/11/24 Page 6 of 6
15. 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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