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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
VYAIRE MEDICAL, INC. et al., 1
Debtors.
Chapter 11
Case No. 24-11217 (BLS)
(Jointly Administered)
Re: Docket Nos. 16, 249, 256
OBJECTION OF THE CHUBB COMPANIES TO (1) FIRST NOTICE TO CONTRACT
PARTIES OF POTENTIALLY ASSUMED AND ASSIGNED EXECUTORY
CONTRACTS AND UNEXPIRED LEASES AND (2) MOTION OF DEBTORS FOR
ENTRY OF AN ORDER (I) APPROVING BIDDING PROCEDURES IN CONNECTION
WITH THE SALE OF SUBSTANTIALLY ALL OF THE DEBTORS’ ASSETS, (II)
AUTHORIZING THE DEBTORS TO ENTER INTO A STALKING HORSE
AGREEMENT AND PROVIDE BID PROTECTIONS, (III) APPROVING THE FORM
AND MANNER OF NOTICE THEREOF, (IV) SCHEDULING AN AUCTION AND
SALE HEARING, (V) APPROVING PROCEDURES FOR THE ASSUMPTION AND
ASSIGNMENT OF CONTRACTS, (VI) APPROVING THE SALE OF THE DEBTORS’
ASSETS FREE AND CLEAR, AND (VII) GRANTING RELATED RELIEF
ACE American Insurance Company, Westchester Surplus Lines Insurance Company,
Illinois Union Insurance Company, Westchester Fire Insurance Company, Indemnity Insurance
Company of North America, Federal Insurance Company, Vigilant Insurance Company and each
of their U.S.-based affiliates and successors (collectively, the “Chubb Companies”), by and
through their undersigned counsel, hereby file this objection (the “Objection”) to the (I) First
Notice to Contract Parties of Potentially Assumed and Assigned Executory Contracts and
Unexpired Leases [Docket No. 256] (the “Assumption Notice”) and (II) proposed Sale
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 264 Filed 07/18/24 Page 1 of 14
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Transaction(s)2 set forth in Motion of Debtors for Entry of an Order (I) Approving Bidding
Procedures in Connection with the Sale Of Substantially All of the Debtors’ Assets, (II)
Authorizing the Debtors to Enter Into a Stalking Horse Agreement and Provide Bid Protections,
(III) Approving the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale
Hearing, (V) Approving Procedures for the Assumption and Assignment of Contracts, (VI)
Approving the Sale of the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief
[Docket No. 16] (the “Bid Procedures Motion”). In support of the Objection, the Chubb
Companies respectfully state as follows:
BACKGROUND
A.
The Bankruptcy Case
1.
On June 9, 2024 (the “Petition Date”), Vyaire Medical, Inc. and certain of its
affiliates (collectively, the “Debtors”) each filed a voluntary petition for bankruptcy relief under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the United States
Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).
2.
On the Petition Date, the Debtors filed the Bid Procedures Motion seeking entry of
an order approving, inter alia, one or more proposed Sale Transaction(s) and procedures for the
assumption and assignment of contracts in connection therewith.
3.
On July 11, 2024, the Bankruptcy Court entered the Order (I) Approving Bidding
Procedures in Connection with the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing
the Debtors to Enter into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving
the Form and Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V)
2
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Bid Procedures
Motion (as defined herein).
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Approving Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale
of the Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 249] (the
“Bid Procedures Order”) granting the relief requested in the Bid Procedures Motion.
4.
Pursuant to the Bid Procedures Order, on July 11, 2024, the Debtors filed the
Assumption Notice.
5.
On the Assumption Notice, the Debtors identify the following Policy (defined
herein) (the “Identified Chubb Policy”) that may be assumed and assigned to a Successful Bidder
in connection with a Sale Transaction and the proposed Cure Amount with respect to the same:
Row
#
Unique Vendor Name
Debtor Entity
Description
Cure
Amount
3300
.
Illinois Union Insurance Company
(Chubb_
Vyaire Medical, Inc.
Illinois Union Insurance Company
(Chubb) 2019‐03‐01 CDA
$0.00
6.
As evident above, the Assumption Notice fails to provide for any specificity with
respect to the Identified Chubb Policy, but asserts that, nevertheless, the Cure Amount is $0.00.
7.
As discussed herein, the Chubb Companies issued numerous Policies to the
Debtors.
8.
As of the date hereof, the Debtors have not filed any notice designating a Stalking
Horse Bidder or any proposed asset purchase agreement.
B.
The Insurance Program
9.
Prior to the Petition Date, the Chubb Companies issued certain insurance policies
(as renewed, amended, modified, endorsed or supplemented from time to time, collectively, the
“Policies”).
10.
Pursuant to certain Policies and any agreements related thereto (collectively, the
“Insurance Program”), the Chubb Companies provide, inter alia, certain products liability,
workers’ compensation, general liability, international, directors’ and officers’, private company,
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global accident, automobile, fiduciary liability, employment practices liability, umbrella, accident,
construction, package, cargo, export, crime and other insurance for specified policy periods subject
to certain limits, deductibles, retentions, exclusions, terms and conditions, as more particularly
described therein, and the insureds, including, if applicable, one or more of the Debtors, are
required to pay to the Chubb Companies certain amounts including, but not limited to, insurance
premiums (including audit premiums), deductibles, funded deductibles, expenses, taxes,
assessments and surcharges, as more particularly described in the Insurance Program (collectively,
the “Obligations”).3
11.
The Obligations are payable over an extended period of time and are subject to
future audits and adjustments.
OBJECTION
12.
Based on the Assumption Notice, the Debtors appear to contemplate a potential sale
or other transfer of at least a portion of the Insurance Program in connection with the proposed
Sale Transaction(s). The Chubb Companies, therefore, object to any Sale Transaction to the extent
that the Debtors seek to assume and assign or otherwise transfer any portion of the Insurance
Program and and/or any of the rights, benefits, interests, and/or proceeds thereunder.
13.
The Chubb Companies assert that (i) the Insurance Program must be assumed and
assigned or otherwise transferred, if at all, as a whole, and in order to be entitled to any of the
benefits of the Insurance Program, any Successful Bidder must remain liable for the Obligations
thereunder; (ii) to the extent that the Debtors seek to assume and assign or otherwise transfer the
Insurance Program and/or the rights, benefits, interests and/or proceeds thereunder, the Insurance
3
The Obligations include both monetary and non-monetary obligations that the insureds, including one or
more of the Debtors, may have.
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Program and/or the rights, benefits, interests and/or proceeds thereunder cannot be assigned
without the express written consent of the Chubb Companies, which written consent has not been
sought or given; (iii) the Chubb Companies should not be responsible for determining which entity,
as between the Debtors and any Successful Bidder, is entitled to coverage and/or the rights,
benefits, interests and/or proceeds under the Insurance Program; (iv) any proposed Cure Amounts
must be evaluated at the time of assumption; and (v) because the Chubb Companies cannot
determine whether any Successful Bidder will intend to seek assignment of the Insurance Program
and/or any of the rights, benefits, interests, and/or proceeds thereunder, the Chubb Companies lack
adequate assurance of future performance under the Insurance Program by any Successful Bidder.
I.
The Insurance Program Is Indivisible From the Obligations Thereunder.
14.
It is well-established that a party cannot receive the benefits of a contract without
being liable for the obligations thereunder. See Am. S. Ins. Co. v. DLM, LLC, No. GLR-16-3628,
2017 U.S. Dist. LEXIS 105716, at *14 (D. Md. July 10, 2017) (“If he receives the benefits he must
adopt the burdens. He cannot accept one and reject the other.”); Tavenner v. United States (In re
Vance), 298 B.R. 262, 268 (Bankr. E.D. Va. 2003) (“‘[A] debtor may not assume the favorable
aspects of a contract [ ] and reject the unfavorable aspects of the same contract. . . [.]’”) (citation
omitted); Tompkins ex. rel. A.T. v. Troy Sch. Dist., 199 Fed. App’x. 463, 468 (6th Cir. 2006)
(holding that it is a basic principle of contract law that a party to an agreement is constrained to
accept the burdens as well as the benefits of the agreement); St. Paul Fire & Marine Ins. Co. v.
Compaq Computer Corp., 457 F.3d 766, 773 (8th Cir. 2006) (finding that a party who accepts the
benefit of a contract must also assume its burdens); Bhushan v. Loma Alta Towers Owners Assoc.,
Inc., 148 Fed. App’x. 882, 888 (11th Cir. 2005) (stating “one who has accepted a contract’s benefit
may not challenge its validity in order to escape its burdens”); S & O Liquidating P’ship v. C.I.R.,
291 F.3d 454, 459 (7th Cir. 2002) (“A party who has accepted the benefits of a contract cannot
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‘have it both ways’ by subsequently attempting to avoid its burdens.”); Hughes Masonry Co. v.
Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 839 (7th Cir. 1981) (“In short, (plaintiff)
cannot have it both ways. (It) cannot rely on the contract when it works to its advantage, and
repudiate it when it works to (its) disadvantage.”) (citations and quotations omitted) (alterations in
original); Ricketts v. First Trust Co. of Lincoln, Neb., 73 F.2d 599, 602 (8th Cir. 1934) (finding
that “he who seeks equity must do equity, and that one may not accept the benefits and repudiate
the burdens of his contract”); Meierhenry Sargent Ltd. Liab. P’ship v. Williams, No. 16-4180, 2017
U.S. Dist. LEXIS 65739, at *20 (D.S.D. May 1, 2017) (“Various courts have held that a party may
not avail itself of a favorable aspect of the contract and then disavow a non-favorable aspect.”)
(citations omitted); Power Sys. & Controls, Inc. v. Schneider Elec. USA, Inc., No. 10-137, 2010
U.S. Dist. LEXIS 56671 at *3 (E.D. Va. June 9, 2010) (“[A] party may not avail itself of one aspect
of a contract and disavow another aspect of the contract in order to avoid its consequences.”); see
also In re Fleming Cos., 499 F.3d 300, 308 (3d Cir. 2007) (“The [debtor] . . . may not blow hot
and cold. If he accepts the contract he accepts it cum onere. If he receives the benefits he must
adopt the burdens. He cannot accept one and reject the other.”) (internal citations and quotations
omitted) (alterations in original); In re Texas Rangers Baseball Partners, 521 B.R. 134, 180
(Bankr. N.D. Tex. 2014) (“A debtor may not merely accept the benefits of a contract and reject
the burdens to the detriment of the other party.”).
15.
It is also well-established that courts cannot alter terms of contracts, and must
instead enforce them as written. See, e.g., Wilson v. Career Educ. Corp., 729 F.3d 665, 679 (7th
Cir. 2013) (“A court may not rewrite a contract to suit one of the parties but must enforce the terms
as written.”) (citation omitted); In re Coupon Clearing Serv., Inc., 113 F.3d 1091 (9th Cir. 1997)
(noting that a debtor’s estate has “no greater rights in property than those held by the debtor prior
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to the bankruptcy”); Trustmark Ins. Co. v. Transamerica Occidental Life Ins. Co., 484 F. Supp. 2d
850, 853 (N.D. Ill. 2007) (stating a “court cannot alter, change or modify the existing terms of a
contract or add new terms or conditions to which the parties do not appear to have assented, write
into the contract something which the parties have omitted or take away something which the
parties have included”) (citation omitted); In re Lloyd E. Mitchell, Inc., 06-13250-NVA, 2012
Bankr. LEXIS 5531 (Bankr. D. Md. Nov. 29, 2012) (noting that “insurance contracts cannot be re-
written by th[e] Court”); In re Best Mfg. Grp. LLC, 2012 WL 589643, at *6 (Bankr. D.N.J. 2012)
(“Where the terms of a contract are clear and unambiguous there is no room for interpretation or
construction and the courts must enforce those terms as written.”); In re Enterprise Lighting Inc.,
1994 Bankr. LEXIS 1307 at *7 (Bankr. E.D. Va. Jan. 21, 1994) (the generally broad equitable
powers of a bankruptcy court “have not been interpreted to go so far as to allow the Court to rewrite
contracts or create new contractual rights between the Debtor and a third party”).
16.
Moreover, the Insurance Program, which is an integrated insurance program, must
be read, interpreted and enforced together. See Huron Consulting Servs., LLC v. Physiotherapy
Hldgs., Inc. (In re Physiotherapy Hldgs., Inc.), 538 B.R. 225 (D. Del. 2015) (reversing bankruptcy
court decision which permitted debtor to assume one agreement between itself and another party,
and not the related agreements; holding that all agreements must be assumed or rejected together);
Allegheny Enters. v. J-W Operating Co., No. 10-02539, 2014 U.S. Dist. LEXIS 27998, at *18-19
(M.D. Pa. Mar. 5, 2014) (finding an integrated agreement where several contracts between the
same parties govern the parties’ relationship as to a particular subject); In re Aneco Elec. Constr.,
326 B.R. 197, 202 (Bankr. M.D. Fla. 2005) (finding “single, non-severable agreement” where
contracts were between same parties and obligations of each party are mutually dependent upon
the other); In re Karfakis, 162 B.R. 719 (Bankr. E.D. Pa. 1993) (stating that “two contracts which
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are essentially inseparable can be, and should be, viewed as a single, indivisible agreement
between the parties”).
17.
Accordingly, the Insurance Program must be assigned or otherwise transferred, if
at all, as a whole and, in order to be entitled to any of the rights, benefits, interests, and/or proceeds
under the Insurance Program, any Successful Bidder must also remain liable for the Obligations
thereunder.
18.
The Chubb Companies therefore object to the Sale Transaction and any purported
assumption and assignment or other transfer of any portion of the Insurance Program and/or any
of the rights, benefits, interests, and/or proceeds thereunder in connection therewith.
II.
The Insurance Program Cannot Be Assigned or Otherwise Transferred Without the
Prior Written Consent of the Chubb Companies, Which Has Not Been Sought or
Given.
19.
To the extent that the Debtors seek to assign or otherwise transfer the Insurance
Program in connection with any Sale Transaction, such assignment cannot occur without the
express written consent of the Chubb Companies.
20.
Section 365 of the Bankruptcy Code governs a debtor’s use of executory contracts
and unexpired leases and provides the basis by which a debtor may assume and assign said
contracts.
21.
Section 365(f)(1), which allows assignment of a contract or lease despite a
prohibition, restriction, or condition in the contract to the contrary, is not without limits. Section
365(f) is subject to and controlled in all respects by section 365(c). See 11 U.S.C. § 365(f)(1)
(“Except as provided in subsection (b) and (c) of this section[.]”); see also In re Trump Ent.
Resorts, Inc., 526 B.R. 116, 122 (Bankr. D. Del. 2015) (“Section 365(f)(1), though, is expressly
subject to any alternative rule provided in Section 365(c).”).
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22.
Pursuant to 11 U.S.C. § 365(c), a debtor may not assume or assign an executory
contract if applicable law excuses the counterparty from accepting performance from or rendering
performance to an entity other than the debtor and such party does not consent to the assumption
or assignment. 11 U.S.C. § 365(c)(1)(A) and (B).
23.
Therefore, under section 365(c)(1) “if non-bankruptcy law provides that the
[counterparty] would have to consent to an assignment of the [executory] contract to a third party,
i.e., someone ‘other than the debtor or the debtor in possession,’ then [the Debtor] . . . cannot
assume that contract” and, by extension, assign it. In re West Elecs. Inc., 852 F.2d 79, 83 (3d Cir.
1988); see also Trump Ent. Resorts, Inc., 526 B.R. at 122 (“The Section 365(c)(1) limitation on
the assumption of executory contracts applies whenever the contract is ‘subject to a legal
prohibition against assignment’ to a third party and the non-debtor party to the contract does no
consent to assignment.”).
24.
Applicable non-bankruptcy law does, in fact, prohibit the assignment of insurance
policies without the insurer’s consent. See, e.g., Banco Popular v. Kanning, No. A-13-CV-200
RP, 2015 U.S. Dist. LEXIS 175647, at *25 (W.D. Tex. Mar. 9, 2015) (finding that a purported
assignment of an insurance policy that did not comply with the express terms of the insurance
policy was not enforceable); Rotella v. Cutting, 2011 Tex. App. LEXIS 7116, Tex. App.—Fort
Worth 2011, no pet.) (where an insurer’s express written consent to any transfer of rights under an
insurance policy is required by the terms of the policy, failure to evidence the insurer’s express
written consent renders any purported transfer invalid); Mercedes-Benz of W. Chester v. Am.
Family Ins., Nos. CA2009-09-244, CA2009-09-245, CA2009-09-246, 2010 Ohio App. LEXIS
1898 at ¶ 22 (Ohio Ct. App. May 24, 2010) (finding that third party “cannot impute a legally
binding obligation to pay against [insurer]” where insureds assigned insurance contract without
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insurer’s consent, because to find otherwise “would place an undue risk and burden on [insurer]”);
Touchet v. Guidry, 550 So. 2d 308, 313 (La. App. 1989) (holding that an insurance policy is a
personal contract between the insurer and the named insured and that “coverage terminates when
the contract is assigned or transferred without the consent, permission, and approval of both
contracting parties”) (citations omitted); Shadid v. Am. Druggist Fire Ins. Co., 386 P.2d 311 (Okla.
1963) (noting the importance of an insurer’s consent to an assignment of an insurance policy, and
holding that the policy does not pass to the purchaser simply by a sale of the insured property).4
25.
Similarly, insurers cannot be compelled to provide insurance coverage to any entity.
See Atwood v. Progressive Ins. Co., No. 950051089S, 1997 Conn. Super. LEXIS 2450, at *18
(Conn. Super. Ct. Sept. 3, 1997) (stating that “[i]nsurers should not, for example, be forced to
assume coverage for a risk which at the time a policy was written was not fairly in its and the
insured’s contemplation”); King v. Meese, 43 Cal. 3d 1217, 1222 (Cal. 1987) (noting that “an
insurer may refuse to insure based on any permissible classification”); Cummins v. Nat’l Fire Ins.
Co., 81 Mo. App. 291, 296 (Mo. Ct. App. 1899) (“An insurance company may well refuse to insure
some persons. They, like any other entity, have a right of choice as to who they will contract with
and they can no more be forced to a change of the assured than the assured could be forced to
accept insurance from some other company (in which he may have no confidence) than the one
contracted with.”).
4
Some courts have found that insurance policies may be assigned to a trust created under § 524(g) pursuant to
a plan under § 1123 without the consent of the insurer. See, e.g., In re Fed.-Mogul Glob., 684 F.3d 355, 382
(3d Cir. 2012) (holding that anti-assignment provisions in insurance policies were “preempted by
§ 1123(a)(5)(B) [of the Bankruptcy Code] to the extent they prohibit transfer to a § 524(g) trust.”); In re W.R.
Grace & Co., 475 B.R. 34, 198-99 (D. Del. 2012) (holding that anti-assignment provisions in insurance
policies were preempted by § 1123(a)(5)(B) in the context of the establishment of a § 524(g) trust). The
present case does not involve an assignment to a trust created pursuant to § 524(g) nor an assignment under
a plan.
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26.
Therefore, the Insurance Program thereunder cannot be assigned without the prior
written consent of the Chubb Companies.
27.
Further, as a condition precedent for any consent that may be given by the Chubb
Companies to an assignment, sale, or other transfer of the Insurance Program and/or any of the
rights, benefits, interests, and/or proceeds thereunder, the Debtors and the assignee may be
required to execute one or more assumption agreements, in form and substance acceptable to the
Chubb Companies. These agreements have not yet been negotiated, let alone executed.
28.
Accordingly, because the Chubb Companies have not consented to any proposed
assignment of the Insurance Program and/or any of the rights, benefits, interests, and/or proceeds
thereunder, the Chubb Companies object to any and all such assignments at this time.
III.
The Chubb Companies Are Not Required to Make Coverage Determinations Between
the Debtors and any Successful Bidder.
29.
As of the date hereof, it is not clear exactly what, if any, portions of the Insurance
Program and/or any of the rights, benefits, interests, and/or proceeds thereunder the Debtors intend
to transfer to the Successful Bidder.
30.
While, as discussed above, any split of the rights, benefits, interests and/or proceeds
under the Insurance Program from the Obligations thereunder, or any split of the Insurance
Program that would purportedly require the Chubb Companies to insure separate, unrelated
entities, would be improper, any transfer of only a certain (as yet unspecified) portion of the
Insurance Program and/or any of the rights, benefits, interests, and/or proceeds thereunder in
connection with any Sale Transaction is likely to result in coverage disputes between the
Successful Bidder and the Debtors.
31.
To the extent any portion of the Insurance Program and/or any of the rights,
benefits, interests, and/or proceeds thereunder is assigned in connection with any Sale Transaction,
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the Chubb Companies should not be put in the position of determining, as between the Debtors
and any Successful Bidder, which entity is entitled to coverage under the Insurance Program in
connection with a particular claim. Similarly, the Chubb Companies should not be put in the
position of determining, as between the Debtors and any Successful Bidder, which entity is entitled
to any of rights, benefits, interests and/or proceeds under the Insurance Program.
IV.
Cure Amounts Must Be Evaluated at the Time of Assumption.
32.
On the Assumption Notice, despite failing to specifically identify the Policy
potentially subject to assumption and assignment, the Debtors state that there the Cure Amount
associated with the Identified Chubb Policy is $0.00.
33.
As more particularly described in the Insurance Program, the Debtors are required
to pay the Obligations, and, therefore, amounts may become due and owing under the Insurance
Program either prior to or after the assumption thereof.
34.
Indeed, the following liquidated amounts will become due and owing under the
Insurance Program after the Petition Date on account of Automobile Policy No. 73639604:
$1,319.72 which will become due and owing on August 20, 2024, $1,319.72 which will become
due and owing on September 20, 2024, $1,319.72 which will become due and owing on October
20, 2024, $1,319.72 which will become due and owing on November 20, 2024, $1,319.72 which
will become due and owing on December 20, 2024, and $1,319.72 which will become due and
owing on January 20, 2025.
35.
The Chubb Companies also have contingent, unliquidated claims against the
Debtors for the Obligations, given the nature of the Insurance Program and the Obligations. By
way of example and not limitation, premiums may be payable at audit under the terms of the
Insurance Program, based upon factors as they exist throughout the coverage period. Therefore,
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the Chubb Companies have contingent, unliquidated claims against the Debtors for any additional
premium that may become due upon completion of audit(s).
36.
The amounts owed by the Debtors on account of the Obligations may vary from
day to day, and are subject to ongoing reconciliation based on, among other things, claims funding
provided by the Debtors and claims submitted to the Chubb Companies.
37.
Accordingly, any Cure Amounts must be determined at the time of assumption and,
further, as a condition for the assignment of the Insurance Program and/or any of the rights,
benefits, interests, and/or proceeds thereunder, the assignee must remain liable for all of the
Debtors’ obligations and liabilities (including the Obligations), whether now existing or hereafter
arising, under the Insurance Program, including, without limitation, paying the Obligations as they
become due.
V.
Any Successful Bidder Must Provide Adequate Assurance of Future Performance.
38.
Pursuant to section 365(f)(2) of the Bankruptcy Code, any assignee of a contract
must provide adequate assurance of future performance.
39.
The Chubb Companies have not yet been definitively advised as to whether any
Successful Bidder intends to seek the assignment of the Insurance Program and/or any of the rights,
benefits, interests, and/or proceeds thereunder and therefore do not have, and the Debtors have not
supplied, any information—much less sufficient information or a reasonable amount of time—to
determine if any Successful Bidder would be capable of providing adequate assurance of future
performance and whether any Successful Bidder would satisfy the Chubb Companies’ credit and
underwriting criteria.
40.
Accordingly, the Chubb Companies are unable, at this time, to assess whether any
Successful Bidder would satisfy those criteria.
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VI.
Reservation Of Rights.
41.
The Chubb Companies specifically reserve all of their rights with respect to the
Insurance Program and their right to assert additional objections to the Assumption Notice and the
Sale Transaction(s).
42.
In addition, no Stalking Horse Bidder has yet been identified and no proposed asset
purchase agreement has yet been filed. Accordingly the Chubb Companies expressly reserve and
preserve all rights with respect thereto, including the right to amend or supplement this Objection
to address the same.
WHEREFORE, the Chubb Companies accordingly object to the Sale Transaction(s) and
Assumption Notice on the bases set forth herein and reserve their rights to assert any additional
objections to the Sale Transaction(s), the Assumption Notice and any other document related
thereto, and to the assignment of the Insurance Program.
Dated: July 18, 2024
Respectfully submitted,
DUANE MORRIS LLP
/s/ Drew S. McGehrin
Drew S. McGehrin (DE 6508)
DUANE MORRIS LLP
1201 North Market St, Suite 501
Wilmington, DE 19801
Telephone: (302) 657-4900
Facsimile: (302) 657-4901
Email: DSMcGehrin@duanemorris.com
-and-
Wendy M. Simkulak
30 South 17th Street
Philadelphia, PA 19103-4196
Telephone: (215) 979-1000
Email: wmsimkulak@duanemorris.com
Counsel for the Chubb Companies
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