Application to Employ Omni Agent Solutions as Administrative Agent — In re Vyaire Medical, Inc.

Summary

The Debtors file an application (Doc 237, filed 07/09/24, Case No. 24-11217 (BLS)) for entry of an order authorizing the Debtors to employ and retain Omni Agent Solutions, Inc. as Administrative Agent effective as of the Petition Date. The application states that it supplements the Section 156(c) Application to retain Omni as claims and noticing agent, and seeks approval for Omni to perform duties outside the scope of that application. The Debtors request relief under sections 327(a) and 328(a) of the Bankruptcy Code, on the terms set forth in the Engagement Agreement. It states that Omni's professionals have acted as claims and noticing agent and/or administrative agent in many large bankruptcy cases, and that the application is supported by the Declaration of Paul H. Deutch, attached as Exhibit B.

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

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)
)
)
Hearing Date: July 31, 2024 at 2:00 p.m. (ET)
)
Obj Deadline: July 23, 2024 at 4:00 p.m. (ET)
APPLICATION OF DEBTORS
FOR ENTRY OF AN ORDER AUTHORIZING
DEBTORS TO EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC.
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE
The above-captioned debtors
and debtors
in
possession (the “Debtors”)
in the
above-captioned
chapter
11
cases
(the “Chapter
11
Cases”)
file
this
application
(the “Application”) for entry of an order, substantially in the form of Exhibit A hereto
(the “Order”), granting the relief described below.  This Application is supported by the
Declaration of John Bibb, Group Chief Executive Officer of Vyaire Medical, Inc., in Support of
Debtors’ Chapter 11 Petitions and First Day Motions [Docket No. 15] (the “First Day
Declaration”),2 and the Declaration of Paul H. Deutch in Support of the Application of Debtors
for Entry of an Order (I) Authorizing and Approving the Appointment of Omni Agent Solutions,
Inc. as Claims and Noticing Agent and (II) Granting Related Relief (the “Deutch Declaration”),
which is attached hereto as Exhibit B and incorporated by reference herein.  In further support of
this Application, the Debtors respectfully represent as follows:
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 shall have the meanings ascribed in the First Day
Declaration.
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 1 of 10

2
JURISDICTION AND VENUE
1.
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 United States Bankruptcy Court
for the District of Delaware (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.  This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Pursuant to
Rule 9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the “Local Rules”), the Debtors consent to the
entry of a final order by the Court in connection with this Application to the extent that it is later
determined that the Court, absent consent of the parties, cannot enter final orders or judgments
consistent with Article III of the United States Constitution.
2.
Venue of the Chapter 11 Cases and related proceedings is proper in this district
pursuant to 28 U.S.C. §§ 1408 and 1409.
3.
The legal predicates for the relief requested herein are sections 327(a) and 328(a)
of title 11 of the United States Code, 11 U.S.C. §§ 101, et seq. (the “Bankruptcy Code”). The
relief is also appropriate under Rules 2014(a) and 2016 of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”), and Local Rule 2014-1.
BACKGROUND
4.
On June 9, 2024 (the “Petition Date”), Vyaire Medical, Inc. and certain of its
subsidiaries filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The
Debtors are operating their businesses and managing their properties as debtors in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On June 11, 2024, the Court
entered an order authorizing the procedural consolidation and joint administration of these chapter
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 2 of 10

3
11 cases pursuant to Bankruptcy Rule 1015(b) and Local Rule 1015-1.  See Docket No. 84.  On
June 26, 2024, the United States Trustee for the District of Delaware (the “U.S. Trustee”)
appointed an official committee of unsecured creditors [Docket No. 121] (the “Committee”).  No
trustee or examiner has been appointed in these chapter 11 cases.
5.
Additional factual background regarding the Debtors, including their business
operations, their capital and debt structure, and the events leading to the filing of these Chapter 11
Cases, is set forth in the First Day Declaration, which is fully incorporated here by reference.
RELIEF REQUESTED
6.
By this Application, pursuant to sections 327(a) and 328(a) of the Bankruptcy
Code, Bankruptcy Rules 2014(a) and 2016, and Local Rule 2014-1, the Debtors request entry of
an order (a) authorizing the Debtors to employ and retain Omni Agent Solutions, Inc. (“Omni”) as
administrative agent (the “Administrative Agent”) in the Chapter 11 Cases effective as of the
Petition Date pursuant to that certain engagement agreement (the “Engagement Agreement”) by
and between the Debtors and Omni, a copy of which is annexed as Exhibit C hereto; and (b)
granting related relief.  This Application supplements the Debtors’ application, pursuant to
28 U.S.C. § 156(c) (the “Section 156(c) Application”), to retain Omni to serve as claims and
noticing agent in the Chapter 11 Cases. This Application seeks approval for Omni to perform
duties outside of the scope of 28 U.S.C. § 156(c).
OMNI’S QUALIFICATIONS
7.
Omni is a chapter 11 administrator comprised of leading industry professionals with
significant experience in the administrative aspects of large, complex chapter 11 cases.  Omni’s
professionals have experience in noticing, claims administration, solicitation, balloting and
facilitating other administrative aspects of chapter 11 cases and experience in matters of this size
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 3 of 10

4
and complexity. Omni’s professionals have acted as debtors’ claims and noticing agent and/or
administrative agent in many large bankruptcy cases in this district and in other districts
nationwide, including In re Never Slip Holdings, Inc., No. 24-10663 (LSS) (Bankr. D. Del. Apr. 3,
2024); In re Sunlight Fin. Holdings Inc., No. 23-11794 (MFW) (Bankr. D. Del. Nov. 1, 2023);
In re UpHealth Holdings, Inc., No. 23-11476 (LSS) (Bankr. D. Del. Oct. 24, 2023);
In re Desolation Holdings LLC, No. 23-10597 (BLS) (Bankr. D. Del. May 10, 2023);
In re Lannett Co., Inc., No. 23-10559 (JKS) (Bankr. D. Del. May 5, 2023); In re Lincoln Power,
L.L.C., No. 23-10382 (LSS) (Bankr. D. Del. Apr. 3, 2023); In re Indep. Pet Partners Holdings,
LLC, No. 23-10153 (LSS) (Bankr. D. Del. Feb. 7, 2023); In re Performance Powersports Grp.
Inv., LLC, No. 23-10047 (LSS) (Bankr. D. Del. Jan. 18, 2023); In re Vesta Holdings, LLC,
No. 22-11019 (LSS) (Bankr. D. Del. Nov. 1, 2022); In re Kabbage, Inc. d/b/a KServicing,
No. 22-10951 (CTG) (Bankr. D. Del. Oct. 6, 2022); In re Gold Standard Baking, LLC, No.
22-10559 (JKS) (Bankr. D. Del. June 23, 2022).3
SERVICES TO BE PROVIDED
8.
The Debtors propose to engage Omni to act as their Administrative Agent.  The
terms of retention and employment of Omni are set forth in the Engagement Agreement. Pursuant
to the Engagement Agreement, the Debtors seek to retain Omni to provide, among other things,
the following bankruptcy administration services (collectively, the “Administrative Services”), if
and to the extent requested:
(a)
Assist with, among other things, solicitation, balloting and tabulation of votes, and
preparation of any related reports, as required in support of confirmation of a
chapter 11 plan, and in connection with such services, process requests for
documents from parties in interest, including, if applicable, brokerage firms, bank
back-offices and institutional holders;
3
Because of the voluminous nature of the orders cited herein, such orders have not been attached to
this Application. Copies of these orders are available upon request to the Debtors’ proposed counsel.
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 4 of 10

5
(b)
Prepare an official ballot certification and, if necessary, testify in support of the
ballot tabulation results;
(c)
Assist with the preparation of the Debtors’ schedules of assets and liabilities and
statements of financial affairs and gather data in conjunction therewith;
(d)
Provide a confidential data room, if requested;
(e)
Manage and coordinate any distributions pursuant to a chapter 11 plan; and
(f)
Provide such other processing, solicitation, balloting, and other administrative
services described in the Engagement Agreement, but not included in the Section
156(c) Application, as may be requested from time to time by the Debtors, the
Court, or the Office of the Clerk of the Bankruptcy Court (the “Clerk”).
9.
The Debtors chose Omni to perform the Administrative Services because of Omni’s
experience, reputation, familiarity with the Chapter 11 Cases, and the competitiveness of its fees.
The Debtors submit that using Omni to provide the Administrative Services has provided, and will
continue to provide, the most cost-effective and efficient administration of the Chapter 11 Cases.
Further, retaining Omni to perform the Administrative Services has allowed, and will continue to
allow, the Debtors and their other professionals to focus on key aspects of the Debtors’
restructuring efforts.  Accordingly, the Debtors believe that Omni is qualified to provide the
Administrative Services and that Omni’s retention in such capacity is in the best interests of the
Debtors’ estates and creditors.
PROFESSIONAL COMPENSATION
10.
The fees Omni will charge in connection with providing services to the Debtors are
set forth in the Engagement Agreement. The Debtors respectfully submit that Omni’s rates are
competitive and comparable to the rates its competitors charge for similar services. Indeed, the
Debtors conducted a review and competitive comparison of other firms and reviewed the rates of
other firms before selecting Omni as Administrative Agent. The Debtors believe Omni’s rates are
reasonable given the quality of Omni’s services and Omni’s bankruptcy expertise. Additionally,
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 5 of 10

6
Omni will seek reimbursement from the Debtors for reasonable expenses in accordance with the
terms of the Engagement Agreement.
11.
Omni intends to apply to the Court for allowance of compensation and
reimbursement of expenses incurred after the Petition Date in connection with the services it
provides as Administrative Agent pursuant to the Engagement Agreement. Omni will comply
with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules,
and any orders entered in these Chapter 11 Cases regarding professional compensation and
reimbursement of expenses.
12.
Additionally, under the terms of the Engagement Agreement, the Debtors have
agreed to indemnify, defend and hold harmless Omni and its affiliates, members, directors,
officers, employees, consultants, subcontractors, representatives and agents under certain
circumstances specified in the Engagement Agreement, except in circumstances resulting solely
from Omni’s gross negligence or willful misconduct or as otherwise provided in the Engagement
Agreement. The Debtors believe that such an indemnification obligation is customary, reasonable,
and necessary to retain the services of an Administrative Agent in these Chapter 11 Cases.
OMNI’S DISINTERESTEDNESS
13.
Omni has reviewed its electronic database to determine whether it has any
relationships with the creditors and parties in interest provided by the Debtors, and, to the best of
the Debtors’ knowledge, information and belief, and except as disclosed in the Deutch Declaration,
Omni is a “disinterested person” within the meaning of section 101(14) of the Bankruptcy Code,
as required by section 327(a) of the Bankruptcy Code, and does not hold or represent any interest
materially adverse to the Debtors’ estates in connection with any matter on which it would be
employed.
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 6 of 10

7
14.
Omni believes that it does not have any relationships with creditors or parties in
interest that would present a disqualifying conflict of interest. Omni will supplement its disclosure
to the Court if any facts or circumstances are discovered that would require such additional
disclosure.
BASIS FOR RELIEF
A. Retention and Employment of Omni as Administrative Agent Is Permitted Under
Sections 327 and 328 of the Bankruptcy Code.
15.
Section 327(a) of the Bankruptcy Code provides that a debtor, subject to Court
approval:
[M]ay employ one or more attorneys, accountants, appraisers, auctioneers, or other
professional persons, that do not hold or represent an interest adverse to the estate,
and that are disinterested persons, to represent or assist the [debtor] in carrying out
the [debtor]’s duties under this title.
11 U.S.C. § 327(a).
16.
Bankruptcy Rule 2014(a) requires that an application for retention include:
[S]pecific facts showing the necessity for the employment, the name of the [firm]
to be employed, the reasons for the selection, the professional services to be
rendered, any proposed arrangement for compensation, and, to the best of the
applicant’s knowledge, all of the [firm’s] connections with the debtor, creditors,
any other party in interest, their respective attorneys and accountants, the United
States trustee, or any person employed in the office of the United States trustee.
Fed. R. Bankr. P. 2014.
17.
In light of the size of the Chapter 11 Cases, the Debtors respectfully submit that
retaining and employing Omni pursuant to the terms of the Engagement Agreement is necessary
and in the best interests of the Debtors’ estates and all parties in interest to the Chapter 11 Cases.
The Debtors also believe that the terms and conditions of the Engagement Agreement are
reasonable in light of the anticipated high volume of creditors and other parties in interest that will
be involved in these cases.
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 7 of 10

8
18.
Accordingly, to help manage administrative tasks with respect to the thousands of
creditors and other parties in interest that are expected to be involved in the Debtors’ Chapter 11
Cases, the Debtors respectfully request the Court enter an order appointing Omni as the
Administrative Agent in the Chapter 11 Cases pursuant to sections 327(a), 330 and 331 of the
Bankruptcy Code, Bankruptcy Rule 2014 and Local Rule 2014-1.
B. Nunc Pro Tunc Relief Is Appropriate.
19.
Pursuant to the Debtors’ request, Omni has agreed to serve as Administrative Agent
on and after the Petition Date with assurances that the Debtors would seek approval of its
employment and retention effective as of the Petition Date, so that Omni may be compensated for
its pre-Application services. The Debtors believe that no party in interest will be prejudiced by
the granting of the nunc pro tunc employment, as provided in this Application, because Omni has
provided and continues to provide valuable services to the Debtors’ estates in the interim period.
The Local Rules empower courts in this district to approve nunc pro tunc employment, and the
Debtors submit that such approval is justified here. See, e.g., Local Rule 2014-1(b) (“If the
retention motion is granted, the retention shall be effective as of the date the motion was filed,
unless the Court orders otherwise.”).
20.
Courts in this jurisdiction have routinely approved nunc pro tunc employment,
similar to that requested herein, in matters comparable to this matter.  See, e.g., In re Nw.
Hardwoods, Inc., Case No. 20-13005 (CSS) (Bankr. D. Del. Jan. 4, 2021); In re Pa. Real Estate
Inv. Tr., Case No. 20-12737 (KBO) (Bankr. D. Del. Nov. 23, 2020); In re Chaparral Energy, Inc.,
Case No. 20-11947 (MFW) (Bankr. D. Del. Aug. 18, 2020); In re Exide Holdings, Inc., No.
20-11157 (CSS) (Bankr. D. Del. May 21, 2020); In re Art Van Furniture, LLC, No. 20-10553
(CSS) (Bankr. D. Del. March 10, 2020); In re RentPath Holdings, Inc., No. 20-10312 (BLS)
(Bankr. D. Del. Feb. 13, 2020); In re Bayou Steel BD Holdings, L.L.C., No. 19-12153 (KBO)
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 8 of 10

9
(Bankr. D. Del. Oct. 3, 2019); In re VER Tech. Holdco LLC, No. 18-10834 (KG) (Bankr. D. Del.
April 6, 2018); In re Rand Logistics, Inc., No. 18-10175 (BLS) (Bankr. D. Del. Jan. 31, 2018);
In re ExGen Tex. Power, LLC, No. 17-12377 (BLS) (Bankr. D. Del. Nov. 8, 2017).
NOTICE
21.
Notice of this Application will be given to: (a) the U.S. Trustee for the District of
Delaware; (b) counsel to the Committee; (c) counsel to the lenders under the Debtors’ postpetition
financing facility; (d) the United States Attorney’s Office for the District of Delaware; (e) the
Internal Revenue Service; (f) the state attorneys general for all states in which the Debtors conduct
business; and (g) any party that has requested notice pursuant to Bankruptcy Rule 2002. The
Debtors submit that, under the circumstances, no other or further notice is required.
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 9 of 10

WHEREFORE, the Debtors respectfully request that the Court enter the order,
substantially in the form annexed hereto as Exhibit A, granting the relief requested in the
Application and such other and further relief as may be just and proper.
Dated: July 9, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C.
KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451)
KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410
Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801
601 Lexington Ave
Telephone:
(302) 652-3131
New York, New York 10022
Facsimile:
(302) 652-3117
Telephone:
(212) 446-4800
Email:
preilley@coleschotz.com
Facsimile:
(212) 446-4900
Email:
joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice)
Spencer A. Winters, P.C. (admitted pro hac vice)
Court Plaza North, 25 Main Street
Yusuf U. Salloum (admitted pro hac vice)
Hackensack, New Jersey 07601
333 West Wolf Point Plaza
Telephone:
(201) 489-3000
Chicago, Illinois 60654
Facsimile:
(201) 489-1536
Telephone:
(312) 862-2000
Email:
msirota@coleschotz.com
Facsimile:
(312) 862-2200
wusatine@coleschotz.com
Email:
spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors
Proposed Co-Counsel to the Debtors
and Debtors in Possession
and Debtors in Possession
Case 24-11217-BLS    Doc 237    Filed 07/09/24    Page 10 of 10

File and source

File

gov.uscourts.deb.193283.237.0.pdf

Size

255,219 bytes

SHA-256

b38c8aadf9896acfcda5ea12777c39e89e2d7e11c33b9b2671b7bd275946ae3b

Our copy

gov.uscourts.deb.193283.237.0.pdf

Original

PACER (login required)