Vyaire - COC -Omni Admin Agent App KE Comments 7.25.2024
- Date
- 2024-07-26
Summary
Doc 319-2, filed July 26, 2024 in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 2, a blackline of an order authorizing the Debtors to employ and retain Omni Agent Solutions, Inc. as administrative agent effective as of the petition date. The order approves the application under sections 327(a) and 328(a) of the Bankruptcy Code and finds Omni a disinterested person under section 101(14). It requires Omni to apply to the Court for compensation, states that Section XI of the Engagement Agreement has no force or effect, and bars compensation for defending its fee applications. The blackline revises the indemnification paragraphs to refer to the Indemnified Parties and limits indemnity for claims such as bad faith, gross negligence or fraud, citing In re United Artists Theatre Co., 315 F.3d 217.
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Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 1 of 6
Exhibit 2
Blackline
Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 2 of 6
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. 237
ORDER AUTHORIZING DEBTORS TO
EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC. AS
ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE
Upon the application (the “Application”)2 of the Debtors in the Chapter 11 Cases for
entry of an order, pursuant to sections 327(a) and 328(a) of the Bankruptcy Code, Bankruptcy
Rules 2014(a) and 2016, and Local Rule 2014-1, (a) authorizing the Debtors to employ and
retain Omni Agent Solutions as the Administrative Agent in the Chapter 11 Cases effective as of
the Petition Date pursuant to the Engagement Agreement; and (b) granting related relief; and the
United States District Court for the District of Delaware having 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 the Court having authority to hear the matters raised in
the Application pursuant to 28 U.S.C. § 157; and venue being proper before this Court pursuant
to 28 U.S.C. §§ 1408 and 1409; and consideration of the Application and the requested relief
1
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 not otherwise defined herein shall have the meanings ascribed to such terms in the Application.
Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 3 of 6
being a core proceeding that the Court can determine pursuant to 28 U.S.C. § 157(b)(2); and due
and proper notice of the Application and opportunity for a hearing on the Application having
been given to the Notice Parties, and it appearing that no other or further notice need be
provided; and the Court having reviewed and considered the Application, the Deutch Declaration
and the First Day Declaration; and the Court having held, if necessary, a hearing on the
Application (the “Hearing”); and the Court having found that the legal and factual bases set forth
in the Application establish just cause for the relief granted herein; and the Court having found
that the terms and conditions of Omni’s employment are reasonable as required by section 328(a)
of the Bankruptcy Code; and the Court having found that Omni is a “disinterested person” as that
term is defined in section 101(14) of the Bankruptcy Code; and the Court having found that the
relief requested in the Application being in the best interests of the Debtors, their creditors, their
estates, and all other parties in interest; and upon all of the proceedings had before the Court; and
after due deliberation and sufficient cause appearing therefor, it is hereby
ORDERED, ADJUDGED AND DECREED THAT:
1. The Application is approved as set forth in this Order.
2. The Debtors are authorized to retain Omni as Administrative Agent effective as of
the Petition Date under the terms of the Engagement Agreement, and Omni is authorized to
perform the bankruptcy administration services described in the Application and set forth in the
Engagement Agreement.
3. Omni is authorized to take such other action to comply with all duties set forth in
the Application.
4. Omni shall apply to the Court for allowance of compensation and reimbursement
of expenses incurred after the Petition Date in accordance with the applicable provisions of the
Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 4 of 6
Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered in these cases
regarding professional compensation and reimbursement of expenses.
5. Section XI of the Engagement Agreement is of no force or effect during these
Chapter 11 Cases.
6. Notwithstanding anything contained in the Application, the Engagement
Agreement, or any document ancillary thereto, absent a change in controlling law, Omni shall
not be compensated or reimbursed for, or in connection with, the defense of its fee applications.
7. 5. The Debtors shall indemnify Omni (or the “Indemnified Parties”) under the
terms of the Engagement Agreement, as modified pursuant to this Order.
8. 6. OmniThe Indemnified Parties shall not be entitled to indemnification,
contribution, or reimbursement pursuant to the Engagement Agreement for services other than
the services provided under the Engagement Agreement, unless such services and the
indemnification, contribution or reimbursement therefor are approved by the Court.
9. 7. Notwithstanding anything to the contrary in the Engagement Agreement, the
Debtors shall have no obligation to indemnify Omnithe Indemnified Parties, or provide
contribution or reimbursement to Omnithe Indemnified Parties, for any claim or expense that is
either: (i) judicially determined (the determination having become final) to have arisen from
Omni’sthe Indemnified Parties’ bad faith, self-dealing, breach of fiduciary duty (if any), gross
negligence, willful misconduct or fraud; (ii) for a contractual dispute in which the Debtors allege
the breach of Omni’sthe Indemnified Parties’ contractual obligations if the Court determines that
indemnification, contribution or reimbursement would not be permissible pursuant to
In re United Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a judicial
determination under (i) or (ii), but determined by this Court, after notice and a hearing, to be a
Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 5 of 6
claim or expense for which Omnithe Indemnified Parties should not receive indemnity,
contribution or reimbursement under the terms of the Engagement Agreement as modified by
this Order.
10. 8. If, before the earlier of (i) the entry of an order confirming a chapter 11 plan in
the Chapter 11 Cases (that order having become a final order no longer subject to appeal), or
(ii) the entry of an order closing the Chapter 11 Cases, Omnithe Indemnified Parties believes that
it isthey are entitled to the payment of any amounts by the Debtors on account of the Debtors’
indemnification, contribution and/or reimbursement obligations under the Engagement
Agreement (as modified by this Order), including the advancement of defense costs, Omnithe
Indemnified Parties must file an application therefore in this Court, and the Debtors may not pay
any such amounts to Omnithe Indemnified Parties before the entry of an order by this Court
approving the payment requested therein. This paragraph is intended only to specify the period
of time under which the Court shall have jurisdiction over any request for fees and expenses by
Omnithe Indemnified Parties for indemnification, contribution or reimbursement, and not a
provision limiting the duration of the Debtors’ obligation to indemnify Omnithe Indemnified
Parties. All parties in interest shall retain the right to object to any demand by Omnithe
Indemnified Parties for indemnification, contribution, or reimbursement.
11. 9. The Debtors and Omni are authorized to take all actions necessary to effectuate
the relief granted pursuant to this Order in accordance with the Application.
12. 10. Notwithstanding any term in the Engagement Agreement to the contrary, the
Court retains jurisdiction with respect to all matters arising from or related to the implementation
of this Order.
Case 24-11217-BLS Doc 319-2 Filed 07/26/24 Page 6 of 6
13. 11. Notwithstanding any provision in the Bankruptcy Rules to the contrary, this
Order shall be immediately effective and enforceable upon its entry.
14. 12. In the event of any inconsistency between the Engagement Agreement, the
Application, and the Order, the Order shall govern.
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