Vyaire - COC - Louisville Stipulation
- Date
- 2024-10-17
Summary
Doc 637-1, filed October 17, 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 A: a proposed order approving a Joint Stipulation authorizing the Debtors to assume and assign a lease agreement to SunMed Group Holdings, LLC (d/b/a AirLife), with the stipulation attached as Exhibit 1. The stipulation, among the Debtors, the Assignee and Exeter 6201 Distribution, LLC as lessor, concerns a lease entered January 11, 2018 for premises in Louisville, Kentucky. The lessor asserts $344,813.78 owed and holds a security deposit of $91,389.57. Within three (3) days of the Effective Date the Assignee pays the Lessor Claim and a replacement deposit, after which prior defaults are deemed satisfied and the Lessor returns the deposit to the Debtors.
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Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 1 of 11
Exhibit A
Order
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 2 of 11
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)
)
)
ORDER APPROVING JOINT STIPULATION AUTHORIZING THE DEBTORS TO
ASSUME AND ASSIGN LEASE AGREEMENT TO SUNMED GROUP HOLDINGS,
LLC (D/B/A AIRLIFE)
Upon consideration of the Joint Stipulation Authorizing the Debtors to Assume and
Assignee Lease Agreement to SunMed Group Holdings, LLC (d/b/a AirLife) (the “Joint
Stipulation”)2 a copy of which is attached hereto as Exhibit 1; and the Court having determined
that the Joint Stipulation is in the best interests of the Debtors, their estates, their creditors, and all
parties in interest; and the Court having found that it has jurisdiction over this matter pursuant to
28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States
District Court for the District of Delaware, dated February 29, 2012, that venue is proper in this
District pursuant to 28 U.S.C. §§ 1408 and 1409, and that this is a core proceeding pursuant to 28
U.S.C. § 157(b); and it appearing that no other or further notice is required; and after due
deliberation, and good and sufficient cause appearing therefor,
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’ proposed 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 to such terms in the
Joint Stipulation.
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 3 of 11
IT IS HEREBY ORDERED THAT:
1. The Joint Stipulation is hereby approved.
2. This Court shall retain jurisdiction over any and all matters arising from or related
the implementation or interpretation of the Joint Stipulation and this Order.
2
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 4 of 11
Exhibit 1
Joint Stipulation
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 5 of 11
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)
)
)
JOINT STIPULATION AUTHORIZING THE DEBTORS TO ASSUME AND ASSIGN
LEASE AGREEMENT TO SUNMED GROUP HOLDINGS, LLC (D/B/A AIRLIFE)
The above captioned debtors, Vyaire Medical, Inc., et al., (collectively, the “Debtors”),
SunMed Group Holdings, LLC (d/b/a AirLife) (the “Assignee”), and Exeter 6201 Distribution,
LLC, as landlord (the “Lessor” and together with the Debtors and the Assignee, the “Parties”),
hereby stipulate as follows (this “Joint Stipulation”):
RECITALS
A. On June 9, 2024 (the “Petition Date”), the Debtors commenced voluntary cases
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”).
B. On January 11, 2018, debtor Vyaire Medical, Inc. entered into a lease agreement
with the Lessor for premises located at 6201 Global Distribution Way, Louisville, Kentucky
40228 (the “Lease”).
C. The Lessor is in possession of a security deposit from the Debtors in the amount
of $91,389.57 (the “Security Deposit”).
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 637-1 Filed 10/17/24 Page 6 of 11
D. Debtors and Assignee represent that prior to the Petition Date, the Debtors entered
into that certain Stock and Asset Purchase Agreement dated as of March 27, 2023, by and
between Vyaire Holding Company and the Assignee (the “SAPA”) and that certain Transition
Services Agreement, dated as of May 1, 2023, by and between Vyaire Holding Company and the
Assignee (the “TSA”).
E. Debtors and Assignee represent that under the TSA, the Debtors agreed to
maintain the Lease on behalf of the Assignee and the Assignee agreed to pay certain obligations
and costs associated with maintaining the Lease.
F. Following the Petition Date, the Assignee and Lessor agreed to terms on an
assignment and assumption of the Lease.
G. The Lessor consents to the assumption and assignment of the Lease to the
Assignee on and subject to the terms set forth herein.
H. As of the filing of this Joint Stipulation, the Lessor asserts that there is
$344,813.78 owed to the Lessor under the terms of the Lease, inclusive of prepetition and
postpetition obligations (the “Lessor Claim”).
NOW, THEREFORE, THE PARTIES STIPULATE AND AGREE AS FOLLOWS:
1. The recitals set forth above are hereby made an integral part of the Joint
Stipulation and are incorporated herein.
2. This Joint Stipulation shall have no force or effect unless and until approved by
order (the “Order”) of the Bankruptcy Court, in form and substance acceptable to Lessor and
Assignee (the “Effective Date”).
3. Upon and effective as of the Effective Date, the Lease shall be assumed and
assigned to the Assignee pursuant to sections 105(a) and 365 of the Bankruptcy Code, the
2
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 7 of 11
assignment of the Lease shall constitute a legal, valid, and effective transfer of the Lease and vest
the Assignee with all rights, titles, and interests to the Lease, and the Debtors are authorized to
execute and deliver to Assignee such documents or other instruments as may be reasonably
necessary to assign and transfer the Lease to the Assignee.
4. Pursuant to section 365(f) of the Bankruptcy Code, and other than the obligations
of Assignee under paragraph 5 of this Joint Stipulation, the assignment of the Lease shall be free
and clear of all liens, claims, encumbrances, obligations, demands, guaranties, debts, rights,
contractual commitments, restrictions, interests, and matters of any kind and nature, whether
arising prior to or subsequent to the commencement of the chapter 11 cases, and whether
imposed by agreement, understanding, law, equity, or otherwise (including, without limitation,
claims and encumbrances that purport to give to any party a right or option to effect any
forfeiture, modification, or termination of the interest of any Debtor or Assignee, as the case may
be, in the Lease in connection with the assignment by the Debtor to the Assignee).
5. Within three (3) days of the Effective Date, the Assignee shall pay to the Lessor
by wire transfer (i) the amount of the Lessor Claim, and (ii) a replacement security deposit in the
amount of $91,389.57 (the “Assignee Payment”). Except for the Assignee Payment, the
Assignee shall have no liability or obligation with respect to defaults relating to the Lease
arising, accruing, or relating to a period prior to the Effective Date.
6. Upon receipt of the Assignee Payment, all defaults or other obligations under the
Lease arising prior to the Effective Date, if any, shall be deemed satisfied or waived by the
Lessor, and the Lessor shall be forever barred, estopped, and permanently enjoined from
asserting, imposing, charging or claiming against the Debtors and the Assignee for the period
prior to the Effective Date (i) that any amounts are due or any defaults exist, (ii) any
3
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 8 of 11
counterclaim, defense, setoff, or any other claim asserted or assertable against the Debtors or the
Assignee, and (iii) any accelerations, assignment fees, increases, or any other fees as a result of
the Debtors’ assumption and assignment of the Lease.
7. Upon the Effective Date, all obligations under the TSA, the SAPA, or any other
agreement between the Debtors and the Assignee relating to the Lease, if any, shall be deemed
satisfied or waived by the Debtors, and the Debtors shall be forever barred, estopped, and
permanently enjoined from asserting, imposing, charging or claiming against the Assignee: (i)
that any amounts are due or any defaults exist relating to or concerning the Lease, (ii) any
counterclaim, defense, setoff, or any other claim asserted or assertable against the Assignee
relating to or concerning the Lease, and (iii) any accelerations, assignment fees, increases, or any
other fees relating to or concerning the Lease.
8. Upon the Effective Date, all obligations under the TSA, the SAPA, or any other
agreement between the Debtors and the Assignee relating to the Lease, if any, shall be deemed
satisfied or waived by the Assignee, and the Assignee shall be forever barred, estopped, and
permanently enjoined from asserting, imposing, charging or claiming against the Debtors: (i) that
any amounts are due or any defaults exist relating to or concerning the Lease, (ii) any
counterclaim, defense, setoff, or any other claim asserted or assertable against the Debtors
relating to or concerning the Lease, and (iii) any accelerations, assignment fees, increases, or any
other fees relating to or concerning the Lease.
9. Within three (3) days of receipt of the Assignee Payment, the Lessor shall return
the Security Deposit to the Debtors.
10. The Assignee has demonstrated adequate assurance of future performance and has
satisfied the requirements set forth in section 365(b)(1) of the Bankruptcy Code.
4
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 9 of 11
11. The Lessor shall be deemed to have consented to the assumption and assignment
of the Lease under section 365(c)(1) of the Bankruptcy Code, section 365(e)(2) of the
Bankruptcy Code, or otherwise, and the Assignee shall enjoy all of the rights and benefits under
the assumed and assigned Lease as of the Effective Date.
12. The Assignee shall be obligated to perform obligations, arising from or after the
Effective Date (as may be modified in any agreement between the Lessor and Assignee). The
Debtors shall be relieved of any liability resulting from any subsequent breach of the Lease
pursuant to section 365(k) of the Bankruptcy Code.
13. The Debtors and their estates waive any and all claims or causes to avoid any
payments or transfers made by the Debtors to Lessor prior to the Effective Date, including under
chapter 5 of the Bankruptcy Code and any applicable non-bankruptcy law or rule.
14. This Joint Stipulation shall constitute the entire agreement and understanding
of the Parties relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to the subject matter hereof.
15. The undersigned who execute this Joint Stipulation by or on behalf of each
respective Party represents and warrants that he or she has been duly authorized and empowered
to execute and deliver this Joint Stipulation on behalf of such Party.
16. This Joint Stipulation may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument, and it
shall constitute sufficient proof of this Joint Stipulation to present any copies, electronic copies,
or facsimiles signed by the Parties here to be charged.
17. This Joint Stipulation shall not be modified, altered, amended or vacated without
the written consent of all Parties hereto or by further order of the Bankruptcy Court.
5
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 10 of 11
18. Notwithstanding the provisions of Bankruptcy Rule 6006(d), this Joint Stipulation
shall be effective immediately upon the Effective Date.
19. Each Party represents and warrants to the other Party that it: (i) made this Joint
Stipulation freely and voluntarily and with full knowledge of its significance, and (ii) has been
represented by counsel of its own choice in the negotiations preceding the execution of this Joint
Stipulation and in connection with the preparation and execution of this Joint Stipulation.
20. The Bankruptcy Court shall retain jurisdiction to resolve any disputes or
controversies arising from this Joint Stipulation.
[Remainder of Page Intentionally Left Blank – Signatures to Follow]
6
Case 24-11217-BLS Doc 637-1 Filed 10/17/24 Page 11 of 11
Dated: October 17, 2024
/s/ Patrick J. Reilley
COLE SCHOTZ P.C.
Patrick J. Reilley, Esq. (No. 4451)
500 Delaware Avenue, Suite 1410
Wilmington, Delaware 19801
Telephone: (302) 652-3131
Email: preilley@coleschotz.com
Co-Counsel for the Debtors and Debtors in
Possession
/s/ Kizzy L. Jarashow
GOODWIN PROCTER LLP
Kizzy L. Jarashow (admitted pro hac vice)
New York Times Building
620 Eighth Avenue
New York, New York 10018
Telephone: 212 459 7338
Email: kjarashow@goodwinlaw.com
Counsel for the Assignee
/s/ Ira Herman
BLANK ROME LLP
Ira Herman, Esq.
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 885-5000
Email: ira.herman@blankrome.com
Counsel for the Lessor
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