(CC) VYR - Motion for Leave to File Late Reply to UCC ROR(48379602.2) (003)
- Date
- 2024-08-30
Summary
A motion filed August 30, 2024 as Doc 483 by the debtors in In re Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the U.S. Bankruptcy Court for the District of Delaware, seeking leave to file a late reply in support of entry of the proposed sale orders. It recounts the sale process for the debtors' Ventilation Assets and Respiratory Diagnostics Assets, including the Bid Procedures Order entered July 11, 2024 and the adjournment of the sale hearing to August 30, 2024. The motion states the Official Committee of Unsecured Creditors filed a Reservation of Rights on August 22, 2024 and a limited objection on August 29, 2024, after the agenda deadline. It cites Local Rule 9006-1(d) and argues cause exists because the parties were negotiating and the objection was filed late. It is signed by co-counsel Cole Schotz P.C. and Kirkland & Ellis LLP.
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Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 1 of 7
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)
)
)
MOTION OF DEBTORS FOR
AN ORDER GRANTING LEAVE AND PERMISSION TO FILE
A REPLY IN SUPPORT OF THE ENTRY OF THE PROPOSED SALE ORDERS
The above-captioned debtors and debtors in possession (collectively, the “Debtors and,
each, a “Debtor”), state as follows in support of this motion:2
Relief Requested
1. The Debtors seek entry of an order, substantially in the form attached hereto as
Exhibit A (the “Proposed Order”), granting the Debtors leave to file their Reply of Debtors in
Support of Entry of the Proposed Sale Orders, filed contemporaneously herewith (the “Reply”).
Jurisdiction and Venue
2. 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
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
A detailed description of the Debtors and their business, including the facts and circumstances giving rise to the
Debtors’ chapter 11 cases, is set forth in 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”). Capitalized terms not defined herein shall have the meanings ascribed to such terms in the
First Day Declaration or the Bid Procedures Order, as defined herein.
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 2 of 7
of Reference from the United States District Court for the District of Delaware, dated February 29,
2012. The Debtors confirm their consent, 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”), to the entry of a final order by the Court in connection with this
motion to the extent that it is later determined that the Court, absent consent of the parties, cannot
enter final orders or judgments in connection herewith consistent with Article III of the United
States Constitution.
3. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
4. The statutory bases for the relief requested in this motion are section 105(a) of title
11 of the United States Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”) and Local Rule
9006-1(d).
Background
5. On June 9, 2024 (the “Petition Date”), Vyaire Medical, Inc. and certain of its
subsidiaries filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The
Debtors are operating their business and managing their property 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 11 cases pursuant
to Bankruptcy Rule 1015(b) and Local Rule 1015-1. See Docket No. 84. No request for the
appointment of a trustee or examiner has been made in these chapter 11 cases.
6. On June 26, 2024, the Office of the United States Trustee for the District of
Delaware (the “U.S. Trustee”) appointed the Official Committee of Unsecured Creditors
(the “Committee”). See Docket No. 121.
2
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 3 of 7
7. On July 11, 2024, the 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) 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”). The Bid Procedures Order approved, among other things, the Bidding
Procedures.
8. On August 15, 2024, the Debtors filed the Notice of (I) Successful Bidder for the Sale
of Certain of the Debtors’ Ventilation Assets, (II) Proposed Purchase Agreement in Connection
Therewith, and (III) Proposed Sale Order in Connection Therewith [Docket No. 388].
9. On August 20, 2024, the Debtors file the Notice of (I) Successful Bidder for the Sale
of Certain of the Debtors’ Respiratory Diagnostics Assets, (II) Proposed Purchase Agreement in
Connection Therewith, and (III) Proposed Sale Order in Connection Therewith [Docket No. 400].
10. Additionally on August 20, 2024, the Debtors filed the Notice of Debtors’ Proposed
Order (I) Approving the Zoll Asset Purchase Agreement and Authorizing the Sale of Certain
Ventilation Assets of the Debtors Outside the Ordinary Course of Business, (II) Authorizing the Sale
of Assets Free and Clear of All Liens, Claims, Interests, and Encumbrances, (III) Authorizing the
Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection Therewith,
and (IV) Granting Related Relief [Docket No. 399] and Notice of Debtors’ Proposed Order
(I) Approving the Trudell Asset Purchase Agreement and Authorizing the Sale of Certain Respiratory
Diagnostics Assets of the Debtors Outside the Ordinary Course of Business, (II) Authorizing the Sale
of Assets Free and Clear of All Liens, Claims, Interests, and Encumbrances, (III) Authorizing the
3
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 4 of 7
Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection Therewith,
and (IV) Granting Related Relief [Docket No. 401].
11. Pursuant to the Bidding Procedures and Fourth Notice of Extension of Certain Key
Dates and Deadlines [Docket No. 394], a hearing to consider the approval of the sale of the
Debtors’ Ventilation Assets and Respiratory Diagnostics Assets was scheduled by the Court for
Monday, August 26, 2024, at 10:00 a.m. (prevailing Eastern Time) (the “Original Hearing”).
12. On August 22, 2024, the Committee filed the Reservation of Rights Filed by the
Official Committee of Unsecured Creditors With Respect to the Sale of Assets [Docket No. 437]
(the “Reservation of Rights”).
13. The Original Hearing was held and adjourned by the Court until August 30, 2024,
at 10:30 a.m. (prevailing Eastern Time) (the “Rescheduled Hearing”).
14. On August 27, 2024, the Debtors filed a revised proposed Ventilation Assets Sale
Order [Docket No. 470] and revised proposed Respiratory Diagnostics Assets Sale Order [Docket
No. 471] (collectively, the “Revised Proposed Sale Orders”).
15. On August 29, 2024, the Committee filed an additional reservation of rights and
limited objection to the proposed sales less than 24 hours before the start of the Rescheduled Hearing
[Docket No. 480] (the “Objection”).
16. The Debtors intend to seek approval of the Revised Proposed Sale Orders at the
Rescheduled Hearing.
Basis for Relief
17. Pursuant to Local Rule 9006-1(d), “[r]eply papers by the movant, or any party that has
joined the movant, may be filed by 4:00 p.m. prevailing Eastern Time the day prior to the deadline
for filing the agenda.” DEL. BANKR. L.R. 9006-1(d). The agenda for the Rescheduled Hearing was
4
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 5 of 7
due on August 28, 2024, at 12:00 p.m. (prevailing Eastern Time). See Id. 9029-3(a)(i). Accordingly,
the deadline for the Debtors to file their reply to the Committee’s initial Reservation of Rights was
August 27, 2024, at 4:00 p.m. (prevailing Eastern Time).
18. Since the Committee filed its Reservation of Rights, Debtor and Committee advisors
have had discussions about the sale of the Debtors’ Ventilation Assets and Respiratory Diagnostics
Assets in an attempt to consensually resolve the Committee’s issues with the proposed sales.
19. Further, the Committee late-filed its Objection (without seeking leave of the Court)
after the date on which the agenda was due, so the Debtors could not have possibly timely-filed any
reply to the Objection absent leave of the Court.
20. Here, cause exists to allow the Debtors to file a Reply after the Reply Deadline. As
described above, the parties were having discussions after the Reservation of Rights was filed in hopes
of consensually resolving the Committee’s issues. Further, because the Committee late-filed its
Objection (without seeking leave of the Court) well after the date on which the agenda was due, the
Debtors could only timely-file any Reply to the Objection with leave of the Court.
21. By this Motion for Leave, the Debtors respectfully request that the Court enter an
order granting them leave and permission to file the Reply. The Reply addresses the issues raised
in the Reservation of Rights and Objection and will assist the Court in its consideration of contested
matters scheduled for the Rescheduled Hearing. The Debtors endeavored to complete the Reply
in as timely a manner as possible under the circumstances (in mere hours after the Objection was
filed), and the Debtors believe that the delay in filing the Reply after the deadline imposed under
the Local Rules will not prejudice any party and, further, that the Debtors would potentially be
prejudiced if it were left without the ability for the Court to consider their reply to the late-filed
5
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 6 of 7
Objection. Accordingly, the Debtors submit that leave is warranted under the circumstances and
request entry of the Proposed Order.
Notice
22. The Debtors will provide notice of this motion to: (a) the United States Trustee for
the District of Delaware; (b) counsel to the Committee; (c) counsel to the 1L Ad Hoc Group; (d) the
agent of the DIP Facility and counsel thereto; (e) the agent of the First Lien Credit Agreement and
counsel thereto; (f) the Second Lien Credit Agreement Agent and counsel thereto; (g) the agent of
the First Lien Notes and counsel thereto; (h) any party that has requested notice pursuant to
Bankruptcy Rule 2002. The Debtors submit that, in light of the nature of the relief requested, no
other or further notice need be given.
[Remainder of Page Intentionally Left Blank]
6
Case 24-11217-BLS Doc 483 Filed 08/30/24 Page 7 of 7
WHEREFORE, the Debtors respectfully request entry of the Proposed Order, substantially
in the form attached hereto as Exhibit A, (a) granting the relief requested herein and (b) granting
such other relief as the Court deems appropriate under the circumstances.
Dated: August 30, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C. KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (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
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
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