Vyaire - COC - Insurance Motion Final Order Final — In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS) (Jointly Administered) (2024-07-03, 2)

Source document: Vyaire - COC - Insurance Motion Final Order FINAL; document type: proposed final order (agreed/revised).

Full text

Exhibit 1
Revised Final Order
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 1 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 Administered)
)
)
Re:  Docket Nos. 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 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
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.
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 2 of 6

2
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 Policies4 and the Surety Bonds and pay and satisfy any 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
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.
4
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.
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 3 of 6

3
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.
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.
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,
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 4 of 6

4
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.
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.
Nothing in the Motion or this Final 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.
Notwithstanding anything to the contrary contained in the Motion or this Final
Order 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.
10.
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.
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 5 of 6

5
11.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Final
Order are immediately effective and enforceable upon its entry.
12.
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.
This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Final Order.
Case 24-11217-BLS    Doc 147-1    Filed 07/03/24    Page 6 of 6

File and source

File

gov.uscourts.deb.193283.147.1.pdf

Size

167,361 bytes

SHA-256

96323a3e00b1520bd83d32b37cbb4ee948ba31c90b0f8828ee5d1aec73000db9

Our copy

gov.uscourts.deb.193283.147.1.pdf

Original

No public link identified.