Vyaire - COC - Tax Motion Final Order FINAL
- Date
- 2024-07-03
Summary
Exhibit 2, a blackline of a final order authorizing the payment of certain taxes and fees and granting related relief, filed July 3, 2024 as Doc 140-2 in In re Vyaire Medical, Inc., et al., Case No. 24-11217, a Chapter 11 case in the United States Bankruptcy Court for the District of Delaware. The order grants the debtors' motion on a final basis and authorizes them to pay prepetition and postpetition Taxes and Fees, including amounts arising from Audits or Assessments, and to undertake Tax Planning Activities in consultation with the Committee and the Ad Hoc Group. It requires the debtors to maintain a schedule of payments made under the order. The order also reserves the debtors' rights to contest taxes and states that it does not approve the Restructuring Support Agreement. The blackline is seven pages.
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Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 1 of 7
Exhibit 2
Blackline
Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 2 of 7
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. __13, 88
FINAL ORDER (I) AUTHORIZING THE PAYMENT
OF CERTAIN TAXES AND FEES 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 the Debtors to (i) negotiate, remit, and pay (or use tax credits to offset)
prepetition Taxes and Fees and postpetition Taxes and Fees as they become due and owing in the
ordinary course of business that become payable during these chapter 11 cases including
obligations arising on account of an Audit or Assessment, and (ii) undertake the Tax Planning
Activities; 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,
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 140-2 Filed 07/03/24 Page 3 of 7
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 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 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 are authorized on a final basis to: (a) negotiate, pay, and remit
(or use tax credits to offset), or otherwise satisfy the Taxes and Fees (including corresponding
Assessments) that arose or accrued prior to the Petition Date and that will becoame due and
owing in the ordinary course of business during the interim period; and (b) negotiate, pay, and
remit
(or use tax credits to offset) Taxes and Fees that arise or accrue in the ordinary course of
business on a postpetition basis—including, for the avoidance of doubt, posting collateral or a
letter of credit in connection with any dispute related to the Audits or Assessments or paying any
Taxes and Fees arising as a result of the Audits or Assessments; provided that notwithstanding
2
Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 4 of 7
anything to the contrary herein or in the Motion, in the event the Debtors make a payment with
respect to any Taxes and Fees for the prepetition portion of any “straddle” amount, and this
Court subsequently determines such amount was not entitled to priority or administrative
treatment under section 507(a)(8) or 503(b)(1)(B) of the Bankruptcy Code, the Debtors may (but
shall not be required to) seek an order from the Court requiring a return of such amounts.
3. The Debtors are authorized to continue paying Taxes and Fees on behalf of
certain of their non-Debtor affiliates, including any prepetition amounts related thereto, in the
ordinary course of business during these chapter 11 cases, consistent with historical practices.
4. The Debtors are further authorized to settle some or all of the prepetition Taxes
and Fees for less than their face amount without further notice or hearing.
5. Notwithstanding anything to the contrary herein or in the Motion, the Debtors are
authorized to file amended tax returns, including for prepetition periods, and pay any Taxes and
Fees in connection therewith.
6. Notwithstanding the relief granted herein or any actions taken hereunder, nothing
contained in this Final Order shall create any rights in favor of, or enhance the status of any
claim held by, any of the Authorities.
7. Nothing in this Final Order authorizes the Debtors to accelerate any payments not
otherwise due and, for the avoidance of doubt, the Debtors shall not pay any Taxes and Fees
before such Taxes and Fees are due to the applicable Authority.
8. To the extent that the Debtors have overpaid any Taxes and Fees, the Debtors are
authorized to seek a refund or credit.
3
Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 5 of 7
9. The Debtors, in consultation with the official committee of unsecured creditors
(the “Committee”) and the Ad Hoc Group, are further authorized to undertake the Tax Planning
Activities, as more fully described in the Motion.
10. The Debtors’ rights to contest the validity or priority of any Taxes and Fees on
any grounds they deem appropriate are reserved and extend to the payment of Taxes and Fees
relating to Audits that have been completed, are in progress, or arise from prepetition periods.
11. 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.
12. The Debtors shall maintain a schedule of payments made pursuant to this Order,
including the following information: (a) the name(s) of the payee; (b) the date of the amount of
the payment; (c) the category or type of payment, and (d) the Debtor or Debtors that made the
payment. The Debtors shall provide a copy of such schedule to the Committee and the Ad Hoc
Group upon a reasonable request.
13. 12. 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, that nothing in the Motion or this Final
Order constitutes Court approval of the Restructuring Support Agreement.
14. 13. 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
4
Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 6 of 7
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.
15. 14. 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.
16. 15. 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.
5
Case 24-11217-BLS Doc 140-2 Filed 07/03/24 Page 7 of 7
16. Nothing in this Interim Order authorizes the Debtors to accelerate any payments not
otherwise due prior to the date of the Final Hearing.
17. The contents of the Motion satisfy the requirements of Bankruptcy Rule 6003(b).
17. 18. 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.
18. 19. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Final Order are immediately effective and enforceable upon its entry.
19. 20. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Final Order in accordance with the Motion.
20. 21. This Court retains jurisdiction with respect to all matters arising from or
related to the implementation, interpretation, and enforcement of this Final Order.
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File and source
- File
- gov.uscourts.deb.193283.140.2.pdf
- Size
- 194,052 bytes
- SHA-256
- ac38bd7f1960b73e69b400cea8233f7971fb814b06d4c1e14d81d8b64ef049f7
- Original
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