Certification of Counsel Regarding Joint Stipulation Between the Debtors and Ewald Fleet Solutions LLC in Connection with Trudell Sale — In re Vyaire Medical, Inc. (Doc 726)

Summary

A certification of counsel regarding a joint stipulation between the debtors and Ewald Fleet Solutions LLC in connection with the Trudell sale, filed November 12, 2024 as Doc 726 in In re Vyaire Medical, Inc., et al., Chapter 11 Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware. It recounts that the debtors filed for Chapter 11 on June 9, 2024, that Ewald leased multiple vehicles to Vyaire under Master Lease No. 19-17941 dated February 13, 2019, that the court approved the asset purchase agreement with Trudell Medical Limited for certain respiratory diagnostic assets, and that Ewald objected on September 6, 2024 to a notice of potentially assumed contracts. Counsel asks the court to enter the stipulation order attached as Exhibit A. Signed by Matthew P. Austria of Austria Legal, LLC, counsel to Ewald.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
  Chapter 11
  Case No. 24-11217 (BLS)
  (Jointly Administered)
  Re: Docket No. 310 and 505

CERTIFICATION OF COUNSEL REGARDING JOINT STIPULATION
BETWEEN THE DEBTORS AND EWALD FLEET SOLUTIONS LLC
IN CONNECTION WITH TRUDELL SALE

The undersigned hereby certifies as follows:
1.
On June 9, 2024 (the “Petition Date”), the above-captioned debtors, Vyaire
Medical, Inc., et al. (collectively, the “Debtors”) commenced voluntary cases under chapter 11 of
title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court
for the District of Delaware (the “Court”).
2.
Prior to the Petition Date, Ewald Fleet Solutions, LLC (“Ewald”), as Lessor, and
Vyaire Medical, Inc. (“Vyaire”), as Lessee, entered into Master Lease No. 19-17941 dated
February 13, 2019 (including any modifications, amendments, addendums, schedules, or related
documents) (collectively, the “Ewald Master Lease Agreement) whereby Ewald leased multiple
vehicles to Vyaire as set forth on various Schedule A’s that were expressly incorporated by
reference and made part of the Ewald Master Lease Agreement. The Ewald Master Lease

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.
In re:
VYAIRE MEDICAL, INC., et al.,1
Debtors,

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Agreement remains in effect and subject to assumption, assumption and assignment, or rejection
by the Debtors.
3.
On July 11, 2024, the Court entered the Order (I) Approving Bidding Procedures
in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors
to Enter into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form
and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 249] (the “Bidding
Procedures Order”).
4.
Also on July 11, 2024, the Debtors filed the First Notice to Contract Parties of
Potentially Assumed and Assigned Executory Contracts and Unexpired Leases [D.I. 256] (the
“First Notice”). Exhibit A thereto listed Potentially Assumed and Assigned Contracts. Rows 2413
to 2428 on Exhibit A to the Notice of Potential Assumption and Assignment asserted multiple
executory contracts and unexpired leases between Ewald and Vyaire.
5.
On July 24, 2024, Ewald filed the Limited Objection of Ewald Fleet Solutions LLC
to First Notice to Contract Parties of Potentially Assumed and Assigned Executory Contracts and
Unexpired Leases [D.I. 310] (“Ewald’s Limited Objection to the First Notice of Potential
Assumption and Assignment”). In sum, the Limited Objection asserted that: 1) the First Notice of
Assumption and Assignment did not accurately identify the potentially assumed and assigned
executory contract and unexpired lease which is the Master Lease Agreement; 2) the Debtors’
asserted cure amounts of $0.00 as to Ewald were incorrect; and 3) any assumption and assignment
of the Master Lease Agreement must be cum onere.
6.
Thereafter, Ewald and the Debtors discussed appropriate revisions to the First
Notice which resulted in the Debtors adding the Ewald Master Lease Agreement to the list of
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Potential Assumed and Assigned Contracts, removing all of the Schedule A’s therefrom, and
removing the purported “Vehicle Lease” dated 2-08-2019. Ewald confirmed that no such vehicle
lease was entered by the parties on 2-08-2019.
7.
On August 24, 2024, the Debtors filed the First Supplemental Notice to Contract
Parties of Potentially Assume and Assigned Executory Contracts and Unexpired Leases [Docket
No. 462]. The Ewald Master Lease Agreement appears at Row 8249 thereon and the Debtors assert
a cure amount of $0.00.
8.
On September 4, 2024, the Court entered the Order (I) Approving the Trudell Asset
Purchase Agreement and Authorizing the Sale of Certain Respiratory Diagnostic Assets of the
Debtors Outside the Ordinary Course of Business, (II) Authorizing the Sale of Assets Free and
Clear of All Liens, Claims, Interests, and Encumbrances, (III) Authorizing the Assumption and
Assignment of Executory Contracts and Unexpired Leases in Connection Therewith, and (IV)
Granting Related Relief [Docket No. 497] (the “Trudell Sale Order”), which among other things
approved the entry into the asset purchase agreement between the Trudell Medical Limited
(“Trudell”) and the Debtors (the “Trudell APA”).
9.
On September 6, 2024, Ewald filed the Objection of Ewald Fleet Solutions LLC to
First Supplemental Notice to Contract Parties of Potentially Assumed and Assigned Executory
Contracts and Unexpired Leases and Reservation of Rights [Docket No. 505] (“Ewald’s Objection
to the Supplemental Notice of Assumption and Assignment”) (together with Ewald Limited
Objection to the First Notice of Assumption and Assignment, “Ewald’s Objections”)
10.
The Debtors have advised Ewald that the Debtors intend to reject the Ewald Master
Lease Agreement upon closing of the sale to Trudell (the “Trudell Closing”) or November 30,
2024, whichever occurs first.
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11.
Pursuant to the Trudell APA, it is anticipated that certain Transferred Employees,
as defined therein, will have their employment transferred from Vyaire Medical, Inc., to Trudell,
or an affiliate of Trudell, effective immediately after the Trudell Closing.
12.
The Debtors understand from Ewald, that Ewald has finalized terms to enter a new
master lease agreement with Jaeger Medical America, Inc., an affiliate of Trudell (“Jaeger”) (the
“Master Lease Agreement with Jaeger”) on the effective date of rejection of the Ewald Master
Lease Agreement. The Master Lease Agreement with Jaeger will enable Transferred Employees
to continue uninterrupted use of the Ewald vehicles identified on the Schedule A’s thereto upon
closing of the Trudell Sale while avoiding the unnecessary costs and process of the Debtors having
to return those vehicles to Ewald upon rejection.
13.
On July 11, 2024, the Court entered an order approving procedures for the rejection
of executory contracts and unexpired leases and granting related relief [Docket No. 250] (the
“Rejection Procedures Order”). Pursuant to the Rejection Procedures Order [Docket No. 250]
entered on July 11, 2024, the Debtors are required to file a Rejection Notice and parties objecting
to a proposed rejection thereon must file and serve a written objection so that such objection is
filed with this Court on the docket of the Debtors’ chapter 11 cases no later than fourteen (14) days
after the date the Debtors file and serve the relevant Rejection Notice. If no objection to the
rejection of any Contract is timely filed, then the Debtors shall submit a proposed form of order
substantially in the form attached as Exhibit B to the Rejection Notice approving the rejection of
each Contract listed in the applicable Rejection Notice, for entry by the Court under certification
of counsel.
14.
In light of the foregoing circumstances regarding the timing of the Trudell
Closing, the anticipated rejection of the Ewald Master Lease Agreement, and Ewald’s entry into
a new Master Lease Agreement with Jaeger upon the Trudell Closing, the Debtors and Ewald
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(together, the “Parties”) have entered the Joint Stipulation Between the Debtors and Ewald Fleet
Solutions LLC in Connection with Trudell Sale (the “Stipulation”). The Stipulation and Order
seek to establish an Effective Date of Rejection of the Ewald Master Lease Agreement on the
Trudell Closing or November 30, 2024, whichever occurs first, and resolve Ewald’s Objections.
15.
A copy of the Stipulation is attached as Exhibit 1 to the proposed order (the
“Order”) attached hereto as Exhibit A approving the Stipulation.
16.
The Order has been reviewed by the Debtors and both Parties support entry of
the Order.
WHEREFORE, the Parties respectfully request that the Court enter the Order approving
the Joint Stipulation, substantially in the form attached hereto as Exhibit A at its earliest
convenience.

Dated: November 12, 2024
Wilmington, Delaware

Respectfully submitted,
AUSTRIA LEGAL, LLC
/s/ Matthew P. Austria
Matthew P. Austria (No. 4827)
1007 North Orange Street, 4th Floor
Wilmington, DE 19801
Telephone: (302) 521-5197
Facsimile: (302) 291-1772
Email: maustria@austriallc.com

Counsel to Ewald Fleet Solutions, LLC

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