Vyaire - COC - OCP Order FINAL
- Date
- 2024-07-05
Summary
A blackline of a proposed order authorizing the debtors to retain and compensate professionals utilized in the ordinary course of business, filed July 5, 2024 as Exhibit 2 to Doc 149-2 in the jointly administered chapter 11 cases of Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware. The order sets procedures requiring each ordinary course professional to file a declaration of disinterestedness within 30 days and giving the notice parties 14 days to object. It caps fees at $50,000 per month and $150,000 per quarter for Tier 1 professionals, $25,000 and $75,000 for Tier 2, and $15,000 and $45,000 for Tier 3. It requires quarterly statements beginning with the quarter ending September 30, 2024, and attaches a form declaration of disinterestedness and three schedules listing the professionals by tier.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 1 of 14
Exhibit 2
Blackline
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 2 of 14
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. ___119
ORDER (I) AUTHORIZING THE DEBTORS TO
RETAIN AND COMPENSATE PROFESSIONALS UTILIZED IN THE
ORDINARY COURSE OF BUSINESS 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 an order (this “Order”) (a) authorizing, but
not directing, the Debtors to retain and compensate professionals utilized in the ordinary course
of business and (b) granting related relief, all as more fully set forth in the Motion; 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 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.
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 149-2 Filed 07/05/24 Page 3 of 14
§§ 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 as set forth herein.
2. The Debtors are authorized, but not directed, to retain and compensate the
professionals identified on the OCP List (collectively, the “OCPs”), attached hereto as
Schedule 1, Schedule 2, and Schedule 3, in the ordinary course of business pursuant to the
following OCP Procedures:
a. Within 30 days after the later of (i) the date of entry of the Order or (ii) the
date on which an OCP commences work for the Debtors, such OCP shall file,
or cause to be filed, a declaration of disinterestedness, substantially in the
form attached hereto as Exhibit 1 (each, a “Declaration of
Disinterestedness”), with the Court and served upon: (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) and
Chris Ceresa (chris.ceresa@kirkland.com), (ii) Kirkland & Ellis LLP, 333
West Wolf Point Plaza, Chicago, Illinois, 60654, Attn.: Spencer A. Winters
(spencer.winters@kirkland.com), Yusuf U. Salloum
(yusuf.salloum@kirkland.com), and Rebecca Marston
(rebecca.marston@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.
2
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 4 of 14
(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) and Timothy P. Cairns
(tcairns@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) counsel to any
statutory committee appointed in these chapter 11 casesproposed counsel to
the official committee of unsecured creditors (the “Committee”),
(i) McDermott Will & Emery LLP, The Brandywine Building, 1000 N. West
Street, Suite 1400, Wilmington, Delaware 19801, Attn.: David Hurst
(dhurst@mwe.com) and Maris Kandestin (mkandestin@mwe.com) and
(ii) McDermott Will & Emery LLP, One Vanderbilt Avenue, New York, NY
10017-3852, Attn: Darren Azman (dazman@mwe.com) and Kristin Going
(kgoing@mwe.com) (collectively, the “Notice Parties”).
b. The Notice Parties shall have 14 days after the date of filing of each OCP’s
Declaration of Disinterestedness (the “Objection Deadline”) to object to the
retention of such OCP. The objecting party shall file any such objection and
serve such objection upon the Notice Parties and the respective OCP on or
before the Objection Deadline. If any such objection cannot be resolved
within 14 days of its receipt, the matter shall be scheduled for hearing before
the Court at the next regularly scheduled omnibus hearing date that is no less
than 14 days from that date or on a date otherwise agreeable to the parties.
The Debtors shall not be authorized to retain and compensate such OCP until
all outstanding objections have been withdrawn, resolved, or overruled by
order of the Court.
c. If no objection is received from any of the Notice Parties by the Objection
Deadline with respect to any particular OCP, the Debtors shall be authorized,
but not directed, to: (i) retain such OCP as of the date such OCP commenced
providing services to the Debtors and (ii) compensate such OCP as set forth
below.
d. The Debtors are authorized, but not directed, to pay, without formal
application to the Court by any OCP, 100% of fees and disbursements to each
of the OCPs retained by the Debtors pursuant to the OCP Procedures upon
submission to the Debtors of an appropriate invoice setting forth in reasonable
detail the nature of the services rendered after the Petition Date; provided that
fees paid to each OCP set forth on Schedule 1 attached hereto, excluding
costs and disbursements, may not exceed $50,000 per month per OCP,
3
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 5 of 14
calculated as an average over a rolling three-month period, while these
chapter 11 cases are pending (the “Tier 1 OCP Monthly Cap”) and the fees of
each OCP set forth in Schedule 2 attached hereto, excluding costs and
disbursements, may not exceed $25,000 per month per OCP, calculated as an
average over a rolling three-month period, while these chapter 11 cases are
pending (the “Tier 2 OCP Monthly Cap”) and the fees of each OCP set forth
in Schedule 3 attached hereto, excluding costs and disbursements, may not
exceed $15,000 per month per OCP, calculated as an average over a rolling
three-month period, while these chapter 11 cases are pending (the “Tier 3
OCP Monthly Cap”); provided, further, that the total amount disbursed per
quarter, for each OCP set forth on Schedule 1 attached hereto, does not
exceed $150,000 per OCP (the “Tier 1 OCP Quarterly Cap”) and the total
amount disbursed per quarter, for each OCP set forth on Schedule 2 attached
hereto, does not exceed $75,000 per OCP (the “Tier 2 OCP Quarterly Cap”)
and the total amount disbursed per quarter, for each OCP set forth on
Schedule 3 attached hereto, does not exceed $45,000 per OCP (the “Tier 3
OCP Quarterly Cap” and, together with the Tier 1 OCP Monthly Cap, Tier 1
OCP Quarterly Cap, Tier 2 OCP Monthly Cap, Tier 2 OCP Quarterly Cap,
and Tier 3 Monthly Cap, the “OCP Caps”). The OCP Caps may be increased
by mutual agreement between the Debtors, the U.S. Trustee, the DIP Agent
(acting at the direction of the required lenders under and pursuant to the DIP
Credit Agreement), and counsel to any statutorythe cCommittee appointed in
these chapter 11 cases; provided that the Debtors shall file a notice with the
Court and submit notice to the Notice Parties of any such agreed increase.
e. To the extent that fees payable to any OCP exceed the applicable OCP Cap,
the OCP shall file a fee application (a “Fee Application”) with the Court for
the amount in excess of the applicable OCP Cap pursuant to sections 330 and
331 of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the fee
guidelines promulgated by the Office of the United States Trustee, and any
applicable orders of the Court, unless the United States Trustee agrees
otherwise.
f. Beginning on the quarter ending September 30, 2024, and for each quarter
thereafter during which these chapter 11 cases are pending, the Debtors shall,
within thirty days thereof, file with the Court and serve on the Notice Parties a
statement with respect to each OCP paid during the immediately preceding
quarterly period (the “Quarterly Statement”). Each Quarterly Statement shall
include: (i) the name of the OCP; (ii) the aggregate amounts paid as
compensation for services rendered and reimbursement of expenses incurred
by that OCP during the reported quarter; and (iii) a general description of the
services rendered by that OCP.
g. The Debtors reserve the right to retain additional OCPs from time to time
during these chapter 11 cases by including such OCPs on an amended version
4
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 6 of 14
of the OCP List that is filed with the Court and served on the Notice Parties
and having such OCPs comply with the OCP Procedures.
3. The Debtors are authorized, but not directed, to supplement the OCP List as
necessary to add or remove OCPs, from time to time without the need for any further hearing and
without the need to file individual retention applications for newly added OCPs, provided that
the fees paid to any additional OCPs do not exceed the OCP Caps. The Debtors shall file any
amended OCP List with this Court and serve such list on the Notice Parties. Each additional
OCP listed in the OCP List shall file with this Court and serve a Declaration of Disinterestedness
on the Notice Parties as provided in the OCP Procedures. If no objections are filed within 14
days to any such additional OCP’s Declaration of Disinterestedness, then retention of such OCPs
shall be deemed approved by this Court pursuant to this Order without a hearing or further order.
4. Nothing contained herein shall affect the Debtors’ or any appropriate party in
interest’s ability to dispute any invoice submitted by an OCP, and nothing contained herein shall
preclude the Debtors from seeking authority to pay any OCP in an amount greater than the OCP
Caps, subject to the rights of any party in interest to oppose any such request. Nothing in this
Order shall be deemed to authorize the Debtors to pay prepetition claims of any non-attorney
OCP.
5. This Order shall not apply to any professional retained by the Debtors pursuant to
a separate order of the Court.
6. Nothing contained in the Motion or this Order, and no action taken pursuant to the
relief requested or granted (including any payment made in accordance with this 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
5
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 7 of 14
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
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. 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.
8. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order
are immediately effective and enforceable upon its entry.
9. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Order in accordance with the Motion.
10. This Court retains jurisdiction with respect to all matters arising from or related to
the implementation, interpretation, and enforcement of this Order.
6
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 8 of 14
Exhibit 1
Form of Declaration of Disinterestedness
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 9 of 14
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. __119
DECLARATION OF DISINTERESTEDNESS
OF [ENTITY] PURSUANT TO THE ORDER
AUTHORIZING THE DEBTORS TO RETAIN AND COMPENSATE
PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS
I, [NAME], declare under penalty of perjury:
1. I am a [POSITION] of [ENTITY], located at [STREET, CITY, STATE, ZIP
CODE] (the “Firm”).
2. Vyaire Medical, Inc. and certain of its affiliates, as debtors and debtors in
possession (collectively, the “Debtors”), have requested that the Firm provide [SPECIFIC
DESCRIPTION] services to the Debtors, and the Firm has consented to provide such services.
3. The Firm may have performed services in the past, may currently perform
services, and may perform services in the future in matters unrelated to these chapter 11 cases for
persons that are parties in interest in the Debtors’ chapter 11 cases. The Firm does not, however,
perform services for any such person relating to these chapter 11 cases, or have any relationship
with any such person, their attorneys, or their accountants that would be adverse to the Debtors
or their estates.
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.
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 10 of 14
4. As part of its customary practice, the Firm is retained in cases, proceedings, and
transactions involving many different parties, some of whom may represent or be employed by
the Debtors, claimants, and parties in interest in these chapter 11 cases.
5. Neither I nor any principal, partner, director, or officer of, or professional
employed by, the Firm has agreed to share or will share any portion of the compensation to be
received from the Debtors with any other person other than the principal and regular employees
of the Firm.
6. Neither I nor any principal, partner, director, or officer of, or professional
employed by, the Firm, insofar as I have been able to ascertain, holds or represents any interest
adverse to the Debtors or their estates with respect to the matter(s) upon which the Firm is to be
employed.
7. [The Debtors owe the Firm $[●] for prepetition services, the payment of which is
subject to the limitations contained in title 11 of the United States Code, 11 U.S.C.
§§ 101–1532.] The Firm has waived, or will waive, any prepetition claims against the Debtors’
estates.
8. [As of the Petition Date, which was the date on which the Debtors commenced
these chapter 11 cases, the Firm was retained to provide professional services to the Debtors. //
The Firm was retained on [●].]
9. As of the Petition Date, which was the date on which the Debtors commenced
these chapter 11 cases, the Firm [was/was not] party to an agreement for indemnification with
certain of the Debtors. [A copy of such agreement is attached as Exhibit 1 to this Declaration.]
10. The Firm is conducting further inquiries regarding its retention by any creditors of
the Debtors, and upon conclusion of that inquiry, or at any time during the period of its
2
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 11 of 14
employment, if the Firm should discover any facts bearing on the matters described herein, the
Firm will supplement the information contained in this Declaration.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct.
Date: ___________, 2024
[DECLARANT’S NAME]
3
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 12 of 14
Schedule 1
Tier 1 OCP List
Name Address Service
Morgan Lewis 600 Anton Blvd., Suite 1800
Legal
& Bockius LLP Costa Mesa, CA 92626
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 13 of 14
Schedule 2
Tier 2 OCP List
Name Address Service
300 E. Randolph St., Suite 5000
Baker McKenzie LLP Legal
Chicago, IL 60601
850 10th St. NW
Covington & Burling LLP Legal
Washington, DC 20001
200 Plaza Dr., Suite 2222
Ernst & Young US LLP Audit Services
Seacaucus, NJ 07094
2000 Market St.
Fox Rothschild LLP Legal
Philadelphia, PA 19103
Columbia Square
Hogan Lovells US LLP 555 Thirteenth Street, NW Legal
Washington, DC 20004
Hyman Phelps & 700 13th St. NW, Ste 1200
McNamara PC Washington, DC 20005 Legal
Irwin Fritchie Urquhart & 400 Poydras St., Ste 2700
Moore LLC New Orleans, LA 70130 Legal
Taunusanlage 8
Linklaters LLP Frankfurt Am Main, 60329 Legal
Germany
Porzio Bromberg & 100 Southgate Pkwy
Newman PC Morristown, NJ Legal
Case 24-11217-BLS Doc 149-2 Filed 07/05/24 Page 14 of 14
Schedule 3
Tier 3 OCP List
Name Address Service
Fragomen, Del Rey, 11238 El Camino Real, Ste 100
Bernsen & Loewy San Diego, CA 92130 Legal
Gordon Rees Scully 1111 Broadway, Ste 1700
Mansukhani LLP Oakland, CA 94607 Legal
2301 McGee St., Ste 800
Littler Mendelson PC Legal
Kansas City, MO 64108
900 W 48th Pl., Ste 900
Polsinelli PC Legal
Kansas City, MO 64112
Level 33, 100 Bishopgate
Winston Strawn London EC2N 4AG, United Legal
Kingdom
File and source
- File
- gov.uscourts.deb.193283.149.2.pdf
- Size
- 302,959 bytes
- SHA-256
- 8acae29a2a83654ebd043a7ebc9d532c48a2827cea2eea2573644a5401621a6f
- Original
- No public link identified.