Vyaire - COC - Insurance Motion Final Order FINAL
- Date
- 2024-07-03
Summary
Doc 147-2, filed July 3, 2024 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 2, a blackline of a Final Order on the debtors' insurance and surety motion. The order form authorizes, but does not direct, the debtors to maintain coverage under the Insurance Policies and Surety Bonds, pay related prepetition or postpetition obligations, and renew, amend, supplement, extend or purchase coverage. It requires service of the motion and order on each Insurance Carrier and Surety within two (2) business days, and adds a paragraph stating that the order does not alter the policies or create a direct right of action against any carrier. Other paragraphs address bank processing of checks, reservation of rights, the Restructuring Support Agreement, any DIP Order, and Bankruptcy Rule 6004(h).
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Case 24-11217-BLS Doc 147-2 Filed 07/03/24 Page 1 of 6
Exhibit 2
Blackline
Case 24-11217-BLS Doc 147-2 Filed 07/03/24 Page 2 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 Administerationed
Requested)
)
) Re: Docket NoNos. __9, 92
FINAL ORDER (I) AUTHORIZING THE DEBTORS
TO (A) MAINTAIN INSURANCE AND SURETY COVERAGE
ENTERED INTO PREPETITION AND PAY RELATED PREPETITION
OBLIGATIONS, AND (B) RENEW, SUPPLEMENT, MODIFY OR PURCHASE
INSURANCE AND SURETY COVERAGE, 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 a final order (this “Final Order”),
(a) authorizing, but not directing, the Debtors to (i) maintain coverage under the Insurance
Policies and the Surety Bonds and pay related obligations and (ii) renew, supplement, modify or
purchase insurance and surety coverage in the ordinary course 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
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 147-2 Filed 07/03/24 Page 3 of 6
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
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 on a final basis as set forth herein.
2. The Debtors shall serve a copy of the Motion and this Final Order on each
Insurance Carrier3 and Surety listed in Exhibit C and Exhibit D attached to the
Motion within two (2) business days after entry of this Final Order.
3. The Debtors are authorized, but not directed, to: (a) continue and
maintain the Insurance Policies24 and the Surety Bonds and pay and satisfy any
3
For the avoidance of doubt, the term Insurance Carrier shall include all insurers and third-party administrators
that have issued or entered into an Insurance Policy and any of their affiliates and predecessors whether or not
listed on Exhibit C attached to the Motion.
24
For the avoidance of doubt, the term Insurance Policies shall include all insurance policies issued or providing
coverage at any time to the Debtors or their predecessors, whether expired, current or prospective, and any
agreements related thereto, whether or not listed on Exhibit C attached to the Motion.
2
Case 24-11217-BLS Doc 147-2 Filed 07/03/24 Page 4 of 6
related prepetition or postpetition amounts or obligations in the ordinary course of
business, including any amounts or obligations that may be owed to the Broker; and
(b) renew, amend, supplement, extend or purchase Insurance Policies and Surety
Bonds, in each case, to the extent that the Debtors determine that such action is in the
best interest of their estates, and pay any amounts and satisfy all obligations in
connection therewith without further order of this Court.
4. Nothing in the Motion or this Final Order (a) alters or amends the terms
and conditions of the Insurance Policies; (b) relieves the Debtors of any of their
obligations under the Insurance Policies; (c) creates or permits a direct right of action
against any Insurance Carrier; or (d) precludes or limits, in any way, the rights of any
Insurance Carrier to contest and/or litigate the existence, primacy and/or scope of
available coverage under the Insurance Policies.
5. 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’ designation of any
particular check or electronic payment request as approved by this Final Order.
6. 5. 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
3
Case 24-11217-BLS Doc 147-2 Filed 07/03/24 Page 5 of 6
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.
7. 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.
8. 7. Nothing in the Motion or this InterimFinal Order waives or modifies the
requirements of the Restructuring Support Agreement, including, without limitation,
the consent and consultation rights contained therein, provided, however, nothing in
the Motion or this Final Order constitutes Court approval of the Restructuring
Support Agreement.
9. 8. Notwithstanding anything to the contrary contained in the Motion or
this InterimFinal Order herein, any payment to be made hereunder, and any
authorization contained herein, shall be subject to any interim and final orders, as
4
Case 24-11217-BLS Doc 147-2 Filed 07/03/24 Page 6 of 6
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.
10. 9. 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.
11. 10. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions
of this Final Order are immediately effective and enforceable upon its entry.
12. 11. The Debtors are authorized, but not directed, to take all actions
necessary to effectuate the relief granted in this Final Order in accordance with the
Motion.
13. 12. This Court retains jurisdiction with respect to all matters arising from
or related to the implementation, interpretation, and enforcement of this Final Order.
5
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