Vyaire - COC - Customer Program Motion Final Order FINAL
- Date
- 2024-07-03
Summary
Exhibit 2, a blackline of the Final Order authorizing the debtors to maintain and administer their existing Customer Programs and honor certain related prepetition obligations, filed July 3, 2024 as Doc 146-2 in In re: Vyaire Medical, Inc., et al., Case No. 24-11217, in the U.S. Bankruptcy Court for the District of Delaware. The blackline shows changes against an earlier form of the order. The order grants the debtors' motion on a final basis, authorizing but not directing them to continue Customer Programs and to modify or terminate them on no fewer than five (5) days' written notice to the official committee of unsecured creditors and the Ad Hoc Group. It authorizes banks to honor related checks, preserves parties' rights on claims, and makes payments subject to any DIP Order.
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Full text
Case 24-11217-BLS Doc 146-2 Filed 07/03/24 Page 1 of 5
Exhibit 2
Blackline
Case 24-11217-BLS Doc 146-2 Filed 07/03/24 Page 2 of 5
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 Administerationed
Requested)
) Re: Docket NoNos. __8, 87
FINAL 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 a final order (this “Final Order”),
(a) authorizing, but not directing, the Debtors to maintain and administer the Customer Programs
and honor certain prepetition obligations related thereto, and (b) 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 this Court may enter a final order consistent with
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 146-2 Filed 07/03/24 Page 3 of 5
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
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 this Court having determined that the legal and factual bases set forth in the
Motion 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 a final basis as set forth herein.
2. 1. 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 a final basis, consistent with prepetition
practices, and to modify, replace, or terminate any Customer Program in the ordinary course of
business, provided that the Debtors shall provide no fewer than five (5) days’ written notice of
any modification, replacement, or termination of any Customer Program to the official
committee of unsecured creditors and the Ad Hoc Group.
3. 2. 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
2
Case 24-11217-BLS Doc 146-2 Filed 07/03/24 Page 4 of 5
Debtors’ designation of any particular check or electronic payment request as approved by this
Final Order.
4. 3. Nothing contained in the Motion or this Final Order, and no action taken
pursuant to the relief requested or granted (including any payment made in accordance with this
Final 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 Final 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.
5. 4. 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.
6. 5. Nothing in the Motion or this Final Order waives or modifies the requirements
of the Restructuring Support Agreement, including, without limitation, the consent and
3
Case 24-11217-BLS Doc 146-2 Filed 07/03/24 Page 5 of 5
consultation rights contained therein; provided, however, that nothing in the Motion or this Final
Order constitutes Court approval of the Restructuring Support Agreement.
7. 6. 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.
8. 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.
9. 8. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Final Order are immediately effective and enforceable upon its entry.
10. 9. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Final Order in accordance with the Motion.
11. 10. This Court retains jurisdiction with respect to all matters arising from or
related to the implementation, interpretation, and enforcement of this Final Order.
4
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