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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. 119
ORDER (I) AUTHORIZING THE DEBTORS TO
RETAIN AND COMPENSATE PROFESSIONALS UTILIZED IN THE
ORDINARY COURSE OF BUSINESS 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 order (this “Order”) (a) authorizing, but not directing,
the Debtors to retain and compensate professionals utilized in the ordinary course of business and
(b) granting related relief, all as more fully set forth in the Motion; 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 this Court may enter a final order consistent with
Article III of the United States Constitution; 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
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’ 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.
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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 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 as set forth herein.
2.
The Debtors are authorized, but not directed, to retain and compensate the
professionals identified on the OCP List (collectively, the “OCPs”), attached hereto as Schedule 1,
Schedule 2, and Schedule 3, in the ordinary course of business pursuant to the following OCP
Procedures:
a. Within 30 days after the later of (i) the date of entry of the Order or (ii) the date
on which an OCP commences work for the Debtors, such OCP shall file, or
cause to be filed, a declaration of disinterestedness, substantially in the form
attached hereto as Exhibit 1 (each, a “Declaration of Disinterestedness”), with
the Court and served upon: (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) and Chris
Ceresa (chris.ceresa@kirkland.com), (ii) Kirkland & Ellis LLP, 333 West Wolf
Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com),
Yusuf
U.
Salloum
(yusuf.salloum@kirkland.com),
and
Rebecca
Marston
(rebecca.marston@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.
Case 24-11217-BLS Doc 225 Filed 07/09/24 Page 2 of 6
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(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) and
Timothy P. Cairns (tcairns@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) proposed
counsel to the official committee of unsecured creditors (the “Committee”),
(i) McDermott Will & Emery LLP, The Brandywine Building, 1000 N. West
Street, Suite 1400, Wilmington, Delaware 19801, Attn.: David Hurst
(dhurst@mwe.com) and Maris Kandestin (mkandestin@mwe.com) and
(ii) McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY
10017-3852, Attn: Darren Azman (dazman@mwe.com) and Kristin Going
(kgoing@mwe.com) (collectively, the “Notice Parties”).
b. The Notice Parties shall have 14 days after the date of filing of each OCP’s
Declaration of Disinterestedness (the “Objection Deadline”) to object to the
retention of such OCP. The objecting party shall file any such objection and
serve such objection upon the Notice Parties and the respective OCP on or
before the Objection Deadline. If any such objection cannot be resolved within
14 days of its receipt, the matter shall be scheduled for hearing before the Court
at the next regularly scheduled omnibus hearing date that is no less than 14 days
from that date or on a date otherwise agreeable to the parties. The Debtors shall
not be authorized to retain and compensate such OCP until all outstanding
objections have been withdrawn, resolved, or overruled by order of the Court.
c. If no objection is received from any of the Notice Parties by the Objection
Deadline with respect to any particular OCP, the Debtors shall be authorized,
but not directed, to: (i) retain such OCP as of the date such OCP commenced
providing services to the Debtors and (ii) compensate such OCP as set forth
below.
d. The Debtors are authorized, but not directed, to pay, without formal application
to the Court by any OCP, 100% of fees and disbursements to each of the OCPs
retained by the Debtors pursuant to the OCP Procedures upon submission to the
Debtors of an appropriate invoice setting forth in reasonable detail the nature of
the services rendered after the Petition Date; provided that fees paid to each
OCP set forth on Schedule 1 attached hereto, excluding costs and
disbursements, may not exceed $50,000 per month per OCP, calculated as an
average over a rolling three-month period, while these chapter 11 cases are
pending (the “Tier 1 OCP Monthly Cap”) and the fees of each OCP set forth in
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Schedule 2 attached hereto, excluding costs and disbursements, may not exceed
$25,000 per month per OCP, calculated as an average over a rolling
three-month period, while these chapter 11 cases are pending (the “Tier 2 OCP
Monthly Cap”) and the fees of each OCP set forth in Schedule 3 attached
hereto, excluding costs and disbursements, may not exceed $15,000 per month
per OCP, calculated as an average over a rolling three-month period, while
these chapter 11 cases are pending (the “Tier 3 OCP Monthly Cap”); provided,
further, that the total amount disbursed per quarter, for each OCP set forth on
Schedule 1 attached hereto, does not exceed $150,000 per OCP (the “Tier 1
OCP Quarterly Cap”) and the total amount disbursed per quarter, for each OCP
set forth on Schedule 2 attached hereto, does not exceed $75,000 per OCP
(the “Tier 2 OCP Quarterly Cap”) and the total amount disbursed per quarter,
for each OCP set forth on Schedule 3 attached hereto, does not exceed $45,000
per OCP (the “Tier 3 OCP Quarterly Cap” and, together with the Tier 1 OCP
Monthly Cap, Tier 1 OCP Quarterly Cap, Tier 2 OCP Monthly Cap, Tier 2 OCP
Quarterly Cap, and Tier 3 Monthly Cap, the “OCP Caps”). The OCP Caps may
be increased by mutual agreement between the Debtors, the U.S. Trustee, the
DIP Agent (acting at the direction of the required lenders under and pursuant to
the DIP Credit Agreement), and the Committee; provided that the Debtors shall
file a notice with the Court and submit notice to the Notice Parties of any such
agreed increase.
e. To the extent that fees payable to any OCP exceed the applicable OCP Cap, the
OCP shall file a fee application (a “Fee Application”) with the Court for the
amount in excess of the applicable OCP Cap pursuant to sections 330 and 331
of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the fee
guidelines promulgated by the Office of the United States Trustee, and any
applicable orders of the Court, unless the United States Trustee agrees
otherwise.
f. Beginning on the quarter ending September 30, 2024, and for each quarter
thereafter during which these chapter 11 cases are pending, the Debtors shall,
within thirty days thereof, file with the Court and serve on the Notice Parties a
statement with respect to each OCP paid during the immediately preceding
quarterly period (the “Quarterly Statement”). Each Quarterly Statement shall
include: (i) the name of the OCP; (ii) the aggregate amounts paid as
compensation for services rendered and reimbursement of expenses incurred by
that OCP during the reported quarter; and (iii) a general description of the
services rendered by that OCP.
g. The Debtors reserve the right to retain additional OCPs from time to time during
these chapter 11 cases by including such OCPs on an amended version of the
OCP List that is filed with the Court and served on the Notice Parties and having
such OCPs comply with the OCP Procedures.
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3.
The Debtors are authorized, but not directed, to supplement the OCP List as
necessary to add or remove OCPs, from time to time without the need for any further hearing and
without the need to file individual retention applications for newly added OCPs, provided that the
fees paid to any additional OCPs do not exceed the OCP Caps. The Debtors shall file any amended
OCP List with this Court and serve such list on the Notice Parties. Each additional OCP listed in
the OCP List shall file with this Court and serve a Declaration of Disinterestedness on the Notice
Parties as provided in the OCP Procedures. If no objections are filed within 14 days to any such
additional OCP’s Declaration of Disinterestedness, then retention of such OCPs shall be deemed
approved by this Court pursuant to this Order without a hearing or further order.
4.
Nothing contained herein shall affect the Debtors’ or any appropriate party in
interest’s ability to dispute any invoice submitted by an OCP, and nothing contained herein shall
preclude the Debtors from seeking authority to pay any OCP in an amount greater than the OCP
Caps, subject to the rights of any party in interest to oppose any such request. Nothing in this
Order shall be deemed to authorize the Debtors to pay prepetition claims of any non-attorney OCP.
5.
This Order shall not apply to any professional retained by the Debtors pursuant to
a separate order of the Court.
6.
Nothing contained in the Motion or this Order, and no action taken pursuant to the
relief requested or granted (including any payment made in accordance with this 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
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claim, other priority claim, or otherwise of a type specified or defined in the Motion or this 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.
7.
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.
8.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
9.
The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
10.
This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
BRENDAN L. SHANNON
UNITED STATES BANKRUPTCY JUDGE
Dated: July 9th, 2024
Wilmington, Delaware
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