Vyaire - COC - Critical Vendor Motion Final Order Final — In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS) (Jointly Administered) (2024-07-08)

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Exhibit 2
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Case 24-11217-BLS    Doc 152-2    Filed 07/08/24    Page 1 of 8

)
In re:
Case No. 24-11217 (___BLS)
)
)
Chapter 11
Debtors.
)
)
(Jointly
Administerationed
Requested)
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
)
Re:  Docket NoNos. __7, 89
FINAL ORDER (I) AUTHORIZING
DEBTORS TO PAY PREPETITION CLAIMS OF
CERTAIN CRITICAL VENDORS, FOREIGN VENDORS,
503(B)(9) CLAIMANTS, AND LIEN CLAIMANTS, (II) CONFIRMING
ADMINISTRATIVE EXPENSE PRIORITY TO ALL UNDISPUTED OBLIGATIONS ON
ACCOUNT OF OUTSTANDING ORDERS, AND (III) 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 the Debtors to pay, in the ordinary course of business, prepetition amounts owing
on account of (i) Critical Vendor Claims and, (ii) Foreign Vendor Claims, (iii) 503(b)(9) Claims,
and (iiiiv) Lien Claims; (b) confirming administrative expense priority to all undisputed
obligations on account of goods ordered by the Debtors prior to the date hereof that will not be
delivered until after the Petition Date and authorizing the Debtors to satisfy such obligations in
the ordinary course of business; and (c) granting related relief, all as more fully set forth in the
Motion; and upon the First Day Declaration; and this Court having the United States District
VYAIRE MEDICAL, INC., et al.,1
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.
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Court for the District of Delaware has jurisdiction over this matter pursuant to 28 U.S.C. § 1334,
which was referred to the United States Bankruptcy Court for the District of Delaware
(the “Court”)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. §§ 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 are authorized, but not directed, to pay all or part of, and discharge,
on a case-by-case basis, the Critical Vendor Claims on a final basis, absent further order of the
Court.; provided, that if the proposed payments to be made pursuant to this Final Order are
expected to be less than $8 million in the aggregate (inclusive of payments made pursuant to the
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Interim Order), the Debtors must consult with the official committee of unsecured creditors
(the “Committee”) and the 1L Ad Hoc Group.
3.
The Debtors are authorized, but not directed, to pay all or part of, and discharge,
on a case-by-case basis, the Foreign Vendor Claims on a final basis, absent further order of the
Court.
4.
The Debtors are authorized, but not directed, to pay all or part of, and discharge,
on a case-by-case basis, the Lien Claims on a final basis, absent further order of the Court.
5.
The Debtors are authorized, but not directed, to pay all or part of, and discharge,
on a case-by-case basis, the 503(b)(9) Claims on a final basis, absent further order of the Court.
6.
All undisputed obligations related to the Outstanding Orders are granted
administrative expense priority in accordance with section 503(b)(1)(A) of the Bankruptcy Code.
7.
The Debtors are authorized, but not directed, to pay all undisputed amounts
relating to the Outstanding Orders in the ordinary course of business consistent with the parties’
customary practices in effect prior to the Petition Date.
8.
As a condition to receiving payment hereunder, the Debtors at their discretion
maywill use reasonable best efforts to require, by written agreement, such parties to continue
supplying goods or services to the Debtors in accordance with trade terms at least as favorable to
the Debtors as those practices and programs (including credit limits, pricing, cash discounts,
timing of payments, allowances, product mix, availability, and other programs) consistent with
the parties’ ordinary course practice (collectively, the “Customary Trade Terms”).  The Debtors
reserve the right to require more favorable trade terms with any party as a condition to payment
of any prepetition claim.
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9.
If any party accepts payment hereunder for a prepetition obligation of the Debtors
premised on compliance with the above, and thereafter fails to comply with the Customary Trade
Terms, or other such terms as agreed to by the Debtors, then:  (a) any payment on account of a
prepetition claim received by such party shall be deemed, in the Debtors’ sole discretion, an
improper postpetition transfer and, therefore, immediately recoverable in cash upon written
request by the Debtors; (b) upon recovery by the Debtors, any prepetition claim of such party
shall be reinstated as if the payment had not been made; and (c) if there exists an outstanding
postpetition balance due from the Debtors to such party, the Debtors may elect to recharacterize
and apply any payment made pursuant to the relief requested by the Motion to such outstanding
postpetition balance and such supplier or vendor will be required to repay to the Debtors such
paid amounts that exceed the postpetition obligations then outstanding, without the right of any
setoffs, claims, provisions for payment of any claims, or otherwise.
10.
Any Critical Vendor, Foreign Vendor, 503(b)(9) Claimant, or Lien Claimant that
accepts payment from the Debtors on account of all or a portion of such party’s claim pursuant to
this Final Order shall be deemed to (a) agree to the terms and provisions of this Final Order and
(b) have waived, to the extent so paid, any and all prepetition claims, of any type, kind, or
priority (including any reclamation claim), against the Debtors, their assets, and properties.  The
Debtors shall provide a copy of this Final Order to any Critical Vendor, Foreign Vendor,
503(b)(9) Claimant, and/or Lien Claimant to whom a payment is made pursuant to this Final
Order.
11.
Nothing herein shall impair or prejudice the Debtors’ ability to contest, in their
sole discretionconsultation with the Committee and the 1L Ad Hoc Group, the extent, perfection,
priority, validity, or amounts of any claims held by any Critical Vendor, Foreign Vendor,
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503(b)(9) Claimant, or Lien Claimant.  The Debtors do not concede that any claims satisfied
pursuant to this Final Order are valid, and the Debtors expressly reserve all rights to contest the
extent, validity, or perfection, or to seek the avoidance of all such liens, or the priority of such
claims.
12.
The Debtors shall maintain a matrix/schedule of payments made pursuant to this
Final Order, including the following information: (a) the name of the payee; (b) the nature of the
payment; (c) the amount of the payment; (d) the category or type of payment; (e) the Debtor or
Debtors that made the payment; (f) the payment date; and (g) the purpose of the payment.  The
Debtors shall provide a copy of such matrix/schedule to the Committee and the 1L Ad Hoc
Group each month within the 15 business days following the end of the prior month following
the entry of this Final Order and ending upon entry of an order confirming a plan or dismissing
or converting these chapter 11 cases.
13.
12. 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.
14.
13. 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.
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15.
14. 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 taken or proposed to be taken hereunder, the terms of the DIP Order shall control.
16.
15. 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.
17.
16. The Debtors are authorized to issue postpetition checks, or to effect
postpetition fund transfer requests, in replacement of any checks or fund transfer requests that
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are dishonored as a consequence of these chapter 11 cases with respect to prepetition amounts
owed in connection with the relief granted herein.
18.
17. Nothing in this Final Order authorizes the Debtors to accelerate any payments
not otherwise due.
19.
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.
20.
19. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Final Order are immediately effective and enforceable upon its entry.
21.
20. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Final Order in accordance with the Motion.
22.
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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