Interim Order (I) Authorizing The Debtors To

Summary

This interim order grants on an interim basis the Debtors' motion (Docket No. 5) to continue operating the Cash Management System, honor certain prepetition obligations, maintain existing Business Forms and continue Intercompany Transactions. It authorizes, but does not direct, the Debtors to keep using existing Bank Accounts and to pay prepetition Bank Fees, with any postpetition fees entitled to administrative expense priority. The final hearing is scheduled for July 9, 2024, at 10:00 a.m., with objections due by 4:00 p.m. on July 2, 2024. The Debtors have 30 days to bring noncompliant Bank Accounts into compliance with section 345(b) of the Bankruptcy Code, and new intercompany loans to non-Debtor entities require further court order. The order is dated June 11th, 2024.

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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. 5
INTERIM ORDER (I) AUTHORIZING THE DEBTORS TO
(A) CONTINUE TO OPERATE THE CASH MANAGEMENT SYSTEM,
(B) HONOR CERTAIN PREPETITION OBLIGATIONS RELATED THERETO,
(C) MAINTAIN EXISTING BUSINESS FORMS, (D) CONTINUE TO PERFORM
INTERCOMPANY TRANSACTIONS, 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) continue to operate the Cash Management System, (ii) honor
certain prepetition or postpetition obligations related thereto, (iii) maintain existing Business
Forms in the ordinary course of business, and (iv) continue to perform Intercompany Transactions
consistent with historical practices, and granting administrative expense status to postpetition
intercompany balances, (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

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.
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2
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 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.
1.
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
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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.
(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.
2.
The Debtors are authorized, but not directed, to, on an interim basis, subject to any
modifications set forth herein:  (a) continue operating the Cash Management System, substantially
as identified on Exhibit 1 attached hereto and as described in the Motion; (b) honor their
prepetition obligations related thereto; (c) use, in their present form, all correspondence and
Business Forms, as well as checks and other documents related to the Bank Accounts existing
immediately before the Petition Date, without reference to the Debtors’ status as debtors in
possession; (d) continue to perform Intercompany Transactions consistent with historical practice,
and granting administrative expense status to postpetition intercompany balances; (e) continue to
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use, with the same account numbers, the Bank Accounts in existence as of the Petition Date,
including those accounts identified on Exhibit 2 attached hereto without the need to comply with
certain guidelines set forth in the U.S. Trustee Operating Guidelines; (f) treat the Bank Accounts
for all purposes as accounts of the Debtors as debtors in possession; (g) deposit funds in and
withdraw funds from the Bank Accounts by all usual means, including checks, wire transfers, and
other debits; (h) open new debtor-in-possession Bank Accounts; (i) pay the prepetition Bank Fees;
and (j) pay any Bank Fees incurred in the ordinary course in connection with the Bank Accounts,
and to otherwise perform their obligations under the documents governing the Bank Accounts;
provided that once the Debtors’ preprinted Business Forms have been exhausted, the Debtors shall,
when reordering their Business Forms, add the designation “Debtor in Possession” and
corresponding bankruptcy case number thereon; provided, further, that within ten business days
of the entry of this Interim Order, the Debtors will update any electronically produced checks to
reflect their status as debtors in possession.  Any postpetition fees, costs, charges, and expenses,
including Bank Fees, or charge-backs payable to the banks that are not so paid shall be entitled to
priority as administrative expenses pursuant to section 503(b)(1) of the Bankruptcy Code.
3.
The Cash Management Bank is authorized to continue to maintain, service, and
administer the Bank Accounts as accounts of the Debtors as debtors in possession, without
interruption and in the ordinary course and in a manner consistent with prepetition practices, and
to receive, process, honor, and pay, to the extent of available funds, any and all checks, drafts,
wires, credit card payments, and ACH transfers issued and drawn on the Bank Accounts after the
Petition Date by the holders or makers thereof, as the case may be.  No bank shall incur, and each
bank is hereby released from, any liability for relying upon any Debtor’s instruction as to which
checks, drafts, wire transfers or ACH transfers should be honored or dishonored or for such bank’s
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inadvertence in honoring any check, draft, wire transfer or ACH transfer at variance from a
Debtor’s instructions, unless such inadvertence constituted gross negligence or willful misconduct
on the part of such bank.  Each Debtor and the Cash Management Bank are authorized to continue
to perform pursuant to the terms of any prepetition agreement that exists between them relating to
any Bank Accounts or other cash management services except to the extent otherwise expressly
provided in this Interim Order, and the parties to such agreements shall continue to enjoy the rights,
benefits, liens, offset rights, privileges and remedies afforded them under such agreement.  The
Debtors and the Cash Management Bank may, without further order of this Court, agree to and
implement changes to the Cash Management System and procedures related thereto in the ordinary
course of business, including the closing of any Bank Account or the opening of new bank
accounts.
4.
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 taken or proposed to be taken hereunder, the terms of the DIP Order shall control.
5.
The Debtors are authorized, but not directed, in the ordinary course of business and
consistent with historical practices, and after consultation with the Required DIP Lenders (as
defined in the DIP Orders), to open any new bank account or close any existing Bank Account and
enter into any ancillary agreements, including deposit control agreements, related to the foregoing,
as they may deem necessary and appropriate; provided that the Debtors shall give notice within 15
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days to the U.S. Trustee and any statutory committee appointed in these chapter 11 cases of the
opening of any new bank account or closing any existing Bank Account; provided, further, that
the Debtors shall open any such new bank accounts only at banks that have executed a UDA (as
defined below) with the U.S. Trustee, or at such banks that are willing to immediately execute
such agreement.  The relief granted in this Interim Order is extended to any new bank account
opened by the Debtors after the date hereof, which account shall be deemed a Bank Account, and
to the bank at which such account is opened, which bank shall be deemed a Cash Management
Bank.
6.
All banks provided with notice of this Interim Order maintaining any of the Bank
Accounts shall not honor or pay any bank payments drawn on the listed Bank Accounts or
otherwise issued before the Petition Date for which the Debtors specifically issue stop payment
orders in accordance with the documents governing such Bank Accounts.
7.
In the course of providing cash management services to the Debtors, each of the
banks at which the Bank Accounts are maintained is authorized, without further order of this Court
and consistent with prepetition practices, to deduct the applicable fees (whether arising prior to or
after the Petition Date) from the appropriate accounts of the Debtors, and further, to charge back
to the appropriate accounts of the Debtors any amounts resulting from returned checks or other
returned items, including returned items that result from ACH transactions, wire transfers, or other
electronic transfers of any kind, regardless of whether such items were deposited or transferred
prepetition or postpetition and regardless of whether the returned items relate to prepetition or
postpetition items or transfers.  Any such fees arising after the Petition Date that are charged by
the Banks consistent with established practice are entitled to administrative expense priority status
pursuant to section 503(b) of the Bankruptcy Code.
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8.
Any banks, including the Cash Management Bank, are further authorized to honor
the Debtors’ directions with respect to the opening and closing of any Bank Account and accept
and hold, or invest, the Debtors’ funds in accordance with the Debtors’ instructions; provided that
the Cash Management Bank shall not have any liability to any party for relying on such
representations to the extent such reliance otherwise complies with applicable law.
9.
As soon as possible after entry of this Interim Order, the Debtors shall contact the
Cash Management Bank as a party to a Uniform Depository Agreement (“UDA”) with the U.S.
Trustee and:  (a) provide the Cash Management Bank with the Debtors’ employer identification
number and lead case number for these chapter 11 cases; (b) identify each of their bank accounts
as being held by a debtor in possession; and (c) serve a copy of this Interim Order on the Cash
Management Bank.
10.
Notwithstanding any other provision of this Interim Order, the Cash Management
Bank may rely upon the representations of the Debtors, without a duty of inquiry, with respect to
whether any check, draft, wire, or other transfer drawn or issued by the Debtors prior to the Petition
Date should be honored pursuant to any order of this Court (but such check, draft, wire or other
transfer shall only be honored to the extent of available funds), and no bank that honors a
prepetition check or other item drawn on any account that is the subject of this Interim Order (a) at
the direction of the Debtors or (b) in a good-faith belief that this Court has authorized such
prepetition check or item to be honored shall be deemed to be nor shall be liable to the Debtors or
their estates or any other person or entity on account of such prepetition check or other item being
honored postpetition, or otherwise deemed to be in violation of this Interim Order.
11.
To the extent any of the Debtor Bank Accounts are not in compliance with
section 345(b) of the Bankruptcy Code or any of the U.S. Trustee’s requirements or guidelines,
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the Debtors shall have until a date that is 30 days from the date of this Interim Order, without
prejudice to seeking an additional extension, to either come into compliance with section 345(b)
of the Bankruptcy Code and any of the U.S. Trustee’s requirements or guidelines or to make such
other arrangements as are agreed to by the U.S. Trustee or approved by the Court.
12.
The Debtors are authorized, but not directed, to continue using the Corporate Credit
Cards, Purchasing Credit Cards, and Virtual Credit Card in the ordinary course of business and
consistent with prepetition practices, including by paying to American Express Company
prepetition and postpetition credit card obligations outstanding with respect thereto, subject to the
limitations of this Interim Order and any other applicable interim and/or final orders of this Court.
13.
Notwithstanding anything to the contrary set forth herein, but subject to the terms
of the DIP Orders, the Debtors are authorized to continue Intercompany Transactions arising from
or related to the operation of their business in the ordinary course during these chapter 11 cases
and settle, in cash, any prepetition Intercompany Claims; provided that, for the avoidance of doubt,
the Debtors shall not be authorized by this Interim Order to undertake any Intercompany
Transactions that are materially inconsistent with the Debtors’ ordinary course practices during
the prepetition period.  All postpetition payments from a Debtor under any postpetition
Intercompany Transactions authorized hereunder are hereby accorded administrative expense
status under section 503(b) of the Bankruptcy Code.  Any and all Intercompany Transactions will
be undertaken in accordance with the DIP Credit Agreement (as defined in the DIP Orders) and
any and all subordination or other requirements included therein.  In connection with the
Intercompany Transactions, the Debtors shall continue to maintain, current, accurate, and detailed
records with respect to all transfers of cash so that all Intercompany Transactions may be readily
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ascertained, traced, and properly recorded on intercompany accounts; provided that such records
shall distinguish between prepetition and postpetition transactions.
14.
Nothing contained in the Motion or this Interim Order shall be construed to
(a) create or perfect, in favor of any person or entity, any interest in cash of a Debtor that did not
exist as of the Petition Date or (b) alter or impair any security interest or perfection thereof, in
favor of any person or entity, that existed as of the Petition Date.
15.
Notwithstanding the Debtors’ use of a consolidated cash management system, the
Debtors shall calculate quarterly fees under 28 U.S.C. § 1930(a)(6) based on the disbursements of
each Debtor, regardless of which entity pays those disbursements.
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.
17.
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.
18.
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
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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.
19.
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.
20.
The Debtors have agreed with the Office of the United States Trustee that (i) cash
will only be maintained or pooled in the JPM Account ending in 6750; and (ii) all remaining Bank
Accounts, including without limitation those identified on Exhibit 1 to this Interim Order, will
only be used for the temporary collection and disbursement of funds, as reasonably practicable and
necessary to meet the Debtors’ operational needs (including with respect to projected transfers in
accordance with the DIP Budget) and to ensure proper and effective collections and disbursements
in and from such Bank Accounts.
21.
The Debtors shall not enter into any new intercompany loans to non-Debtor entities
absent further court order.
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22.
The Debtors have demonstrated that the requested relief is “necessary to avoid
immediate and irreparable harm,” as contemplated by Bankruptcy Rule 6003.
23.
Nothing in this Interim Order authorizes the Debtors to accelerate any payments
not otherwise due prior to the date of the Final Hearing.
24.
The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
25.
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.
26.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Interim
Order are immediately effective and enforceable upon its entry.
27.
The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Interim Order in accordance with the Motion.
28.
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
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