Vyaire - COC - Critical Vendor Motion Final Order FINAL
- Date
- 2024-07-08
Summary
Exhibit 1, a Revised Final Order filed July 8, 2024 as Doc 152-1 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, relating to Docket Nos. 7 and 89. The proposed order would authorize the debtors, on a final basis, to pay prepetition Critical Vendor, Foreign Vendor, 503(b)(9) and Lien Claims, and would grant administrative expense priority to undisputed obligations on outstanding orders. It conditions payments on vendors continuing Customary Trade Terms, treats payments to non-complying vendors as recoverable, and requires consultation with the Committee and the 1L Ad Hoc Group where aggregate critical vendor payments are expected to be less than $8 million. It also requires a monthly payment schedule for the Committee and makes payments subject to any DIP Order.
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Case 24-11217-BLS Doc 152-1 Filed 07/08/24 Page 1 of 8
Exhibit 1
Revised Final Order
Case 24-11217-BLS Doc 152-1 Filed 07/08/24 Page 2 of 8
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. 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, (ii) Foreign Vendor Claims, (iii) 503(b)(9) Claims, and
(iv) 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 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
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 152-1 Filed 07/08/24 Page 3 of 8
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
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.
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Case 24-11217-BLS Doc 152-1 Filed 07/08/24 Page 4 of 8
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 will 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.
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’ 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
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Case 24-11217-BLS Doc 152-1 Filed 07/08/24 Page 5 of 8
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
consultation 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,
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
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Case 24-11217-BLS Doc 152-1 Filed 07/08/24 Page 6 of 8
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. 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. 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.
15. 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.
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16. 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. 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 are dishonored
as a consequence of these chapter 11 cases with respect to prepetition amounts owed in
connection with the relief granted herein.
18. Nothing in this Final Order authorizes the Debtors to accelerate any payments not
otherwise due.
19. 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.
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20. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Final
Order are immediately effective and enforceable upon its entry.
21. The Debtors are authorized to take all actions necessary to effectuate the relief
granted in this Final Order in accordance with the Motion.
22. 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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