Joint Stipulation Between the Debtors and Ewald Fleet Solutions LLC in Connection with Trudell Sale

Summary

This is Exhibit 1, a Joint Stipulation between the Debtors (Vyaire Medical, Inc., et al.) and Ewald Fleet Solutions LLC in connection with the Trudell sale, in Case No. 24-11217, in the U.S. Bankruptcy Court for the District of Delaware. It sets the Effective Date of Rejection of the Ewald Master Lease Agreement as the earlier of the Trudell Closing or November 30, 2024, and treats the agreement as rejected on that date. Ewald's two objections are deemed withdrawn, and Ewald is to return the pro rata portion of the $39,832.68 November Payment if rejection occurs before November 30, 2024. The stipulation is dated November 12, 2024, with /s/ Patrick J. Reilley for the Debtors and /s/ Matthew P. Austria for Ewald.

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

Exhibit 1
(Joint Stipulation)

Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 1 of 9

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
  Chapter 11
  Case No. 24-11217 (BLS)
  (Jointly Administered)

JOINT STIPULATION BETWEEN THE DEBTORS AND EWALD FLEET
SOLUTIONS LLC IN CONNECTION WITH TRUDELL SALE

The above captioned debtors, Vyaire Medical, Inc., et al., (collectively, the “Debtors”) and
Ewald Fleet Solutions, LLC (“Ewald” and together with the Debtors, each a “Party” and
collectively, 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 “Court”).
B.
Prior to the Petition Date, Ewald, as Lessor, and Vyaire Medical, Inc., as Lessee,
entered into Master Lease No. 19-17941 dated February 13, 2019 (including any modifications,
amendments, addendums, schedules, or related documents (collectively, the “Ewald Master Lease
Agreement) whereby Ewald leased multiple vehicles to Vyaire as set forth on various Schedule
A’s that were expressly incorporated by reference and made part of the Ewald Master Lease

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.
In re:
VYAIRE MEDICAL, INC., et al.,1
Debtors,
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 2 of 9

2

Agreement. The Ewald Master Lease Agreement remains in effect and subject to assumption,
assumption and assignment, or rejection by the Debtors.
C.
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 “Bidding
Procedures Order”).
D.
Also on July 11, 2024, the Debtors filed the First Notice to Contract Parties of
Potentially Assumed and Assigned Executory Contracts and Unexpired Leases [D.I. 256] (the
“First Notice”). Exhibit A thereto listed Potentially Assumed and Assigned Contracts. Rows 2413
to 2428 on Exhibit A to the Notice of Potential Assumption and Assignment appeared to assert
multiple executory contracts and unexpired leases between Ewald and Vyaire.
E.
On July 24, 2024, Ewald filed the Limited Objection of Ewald Fleet Solutions LLC
to First Notice to Contract Parties of Potentially Assumed and Assigned Executory Contracts and
Unexpired Leases [D.I. 310] (“Ewald’s Limited Objection to the First Notice of Potential
Assumption and Assignment”). In sum, the Limited Objection asserted that: 1) the First Notice of
Assumption and Assignment did not accurately identify the potentially assumed and assigned
executory contract and unexpired lease which is the Master Lease Agreement; 2) the Debtors’
asserted cure amounts of $0.00 as to Ewald were incorrect; and 3) any assumption and assignment
of the Master Lease Agreement must be cum onere.
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 3 of 9

3

F.
Thereafter, Ewald and the Debtors discussed appropriate revisions to the First
Notice which resulted in the Debtors adding the Ewald Master Lease Agreement to the list of
Potential Assumed and Assigned Contracts, removing all of the Schedule A’s therefrom, and
removing the purported “Vehicle Lease” dated 2-08-2019. Ewald confirmed that no such vehicle
lease was entered by the parties on 2-08-2019.
G.
On August 24, 2024, the Debtors filed the First Supplemental Notice to Contract
Parties of Potentially Assume and Assigned Executory Contracts and Unexpired Leases [Docket
No. 462]. The Ewald Master Lease Agreement appears at Row 8249 thereon and the Debtors assert
a cure amount of $0.00.
H.
On September 4, 2024, the Court entered the Order (I) Approving the Trudell Asset
Purchase Agreement and Authorizing the Sale of Certain Respiratory Diagnostic 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. 497] (the “Trudell Sale Order”), which among other things
approved the entry into the asset purchase agreement between the Trudell Medical Limited
(“Trudell”) and the Debtors (the “Trudell APA”).
I.
On September 6, 2024, Ewald filed the Objection of Ewald Fleet Solutions LLC to
First Supplemental Notice to Contract Parties of Potentially Assumed and Assigned Executory
Contracts and Unexpired Leases and Reservation of Rights [Docket No. 505] (“Ewald’s Objection
to the Supplemental Notice of Assumption and Assignment).
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 4 of 9

4

J.
The Debtors have continued to make monthly payments under the Ewald Master
Lease Agreement and have pre-paid Ewald $39,832.68 for the month of November 2024 pursuant
to the terms thereof (the “November Payment”).
K.
The Debtors have advised Ewald that the Debtors intend to reject the Ewald Master
Lease Agreement upon closing of the sale to Trudell (the “Trudell Closing”) or November 30,
2024, whichever occurs first.
L.
Pursuant to the Trudell APA, it is anticipated that certain Transferred Employees,
as defined therein, will have their employment transferred from Vyaire Medical, Inc., to Trudell,
or an affiliate of Trudell, effective immediately after the Trudell Closing.
M.
The Debtors understand from Ewald, that Ewald has finalized terms to enter a new
master lease agreement with Jaeger Medical America, Inc., an affiliate of Trudell (“Jaeger”) (the
“Master Lease Agreement with Jaeger”) on the effective date of rejection of the Ewald Master
Lease Agreement. The Master Lease Agreement with Jaeger will enable Transferred Employees
to continue uninterrupted use of the Ewald vehicles identified on the Schedule A’s thereto upon
closing of the Trudell Sale while avoiding the unnecessary costs and process of the Debtors having
to return those vehicles to Ewald upon rejection.
N.
On July 11, 2024, the Court entered an order approving procedures for the rejection
of executory contracts and unexpired leases and granting related relief [Docket No. 250] (the
“Rejection Procedures Order”). Pursuant to the Rejection Procedures Order [Docket No. 250]
entered on July 11, 2024, the Debtors are required to file a Rejection Notice and parties objecting
to a proposed rejection thereon must file and serve a written objection so that such objection is
filed with this Court on the docket of the Debtors’ chapter 11 cases no later than fourteen (14) days
after the date the Debtors file and serve the relevant Rejection Notice. If no objection to the
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 5 of 9

5

rejection of any Contract is timely filed, then the Debtors shall submit a proposed form of order
substantially in the form attached as Exhibit B to the Rejection Notice approving the rejection of
each Contract listed in the applicable Rejection Notice, for entry by the Court under certification
of counsel.
O.
In light of the foregoing circumstances regarding the timing of the Trudell Closing,
anticipated rejection of the Ewald Master Lease Agreement, and Ewald’s entry into a new Master
Lease Agreement with Jaeger upon the Trudell Closing, the Debtors and Ewald, with Court
approval, wish to stipulate to the Effective Date of Rejection occurring immediately upon closing
of the Trudell Sale or November 30, 2024, whichever occurs earlier, without the requirement of a
further order of the Court pursuant to the Rejection Procedures Order.
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 take effect on the “Effective Date of Rejection” which
is hereby defined for purposes of this Stipulation as the earlier of: a) the date of the Trudell Closing,
or b) November 30, 2024.
3.
Immediately upon the Effective Date of Rejection, the Ewald Master Lease
Agreement and, for the avoidance of doubt, any and all remaining Potentially Assumed and
Assigned Contracts listed on Exhibit A to the First Notice referencing Ewald Fleet Solutions, LLC
in the “Unique Vendor Name” column thereon, shall be deemed rejected pursuant to sections
105(a) and 365 of the Bankruptcy Code in accordance with the terms of this Stipulation.
4.
Upon: 1) the entry of an Order approving this Stipulation; and 2) the occurrence of
the Effective Date of Rejection as defined in this Stipulation, Ewald’s Limited Objection to the
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 6 of 9

6

First Notice of Assumption and Assignment and Ewald’s Objection to the Supplemental Notice of
Assumption and Assignment shall be deemed withdrawn.
5.
To the extent the Effective Date of Rejection occurs prior to November 30,
2024, Ewald shall return the remaining pro rata portion of the November Payment on a per
diem basis to the Debtors within three (3) days of the Effective Date of Rejection.
6.
If Ewald asserts a claim against the Debtors arising from the rejection of the
Ewald Master Lease Agreement, it must file a proof of claim on or before the later of (i) the
applicable deadline for filing proofs of claim established in these chapter 11 cases, and (ii)
thirty (30) days after the Effective Date of Rejection. If no proof of claim is timely filed within
this time period, Ewald shall be forever barred from asserting a claim for damages arising from
the rejection and from participating in any distributions on such a claim that may be made in
connection with these chapter 11 cases.
7.
Nothing contained in the Stipulation is intended as or shall be construed or
deemed to be: (a) an admission as to the amount, validity or priority of, or basis for any claim
against the Debtors under the Bankruptcy Code or other applicable nonbankruptcy law; (b) a
waiver of the Debtors’ or any other party in interest’s right to dispute any claim on any grounds;
(c) a promise or requirement to pay any particular claim; (d) an implication, admission, or
finding that any particular claim is an administrative expense claim, other priority claim or
otherwise of a type specified or defined in this Stipulation; (e) an admission as to the validity,
priority, enforceability, or perfection of any lien on, security interest in, or other encumbrance
on property of the Debtors’ estates; or (f) a waiver or limitation of any claims, causes of action,
or other rights of the Debtors or any other party in interest against any person or entity under
the Bankruptcy Code or any other applicable law.
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 7 of 9

7

8.
All rights and defenses of the Debtors are preserved, including all rights and
defenses of the Debtors with respect to a claim for damages arising as a result of the Ewald
Master Lease Agreement rejection, including any right to assert an offset, recoupment,
counterclaim, or deduction. Upon the occurrence of the Effective Date of Rejection, the Parties
agree that the Ewald Master Lease Agreement is terminated and is no longer an executory
contract or unexpired lease.
9.
The undersigned who execute this Joint Stipulation by or on behalf of each
respective Party represents and warrants that they have been duly authorized and empowered to
execute and deliver this Joint Stipulation on behalf of such Party and that this Joint Stipulation
constitutes a valid, binding agreement in accordance with its terms.
10.
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 Stipulation to present any copies, electronic copies, or
facsimiles signed by the Parties here to be charged.
11.
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 Court.
12.
This Joint Stipulation shall be binding upon and inure to the benefit of the Parties
and their respective successors, administrators, and assigns (including any successors or
administrators of the Debtors under the Plan).
13.
Until such time as the Effective Date of Rejection does occur, the Parties shall
maintain all rights, remedies, and defenses.
14.
The Court shall retain jurisdiction to resolve any disputes or controversies arising
from this Joint Stipulation.
Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 8 of 9

8

Date: November 12, 2024
Wilmington, DE

/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/ Matthew P. Austria
AUSTRIA LEGAL, LLC
Matthew P. Austria (No. 4827)
1007 North Orange Street, 4th Floor
Wilmington, Delaware 19801
Telephone: (302) 521-5197
Email:  maustria@austriallc.com

Counsel for Ewald Fleet Solutions, LLC

Case 24-11217-BLS    Doc 730-1    Filed 11/12/24    Page 9 of 9

File and source

File

gov.uscourts.deb.193283.730.1.pdf

Size

270,089 bytes

SHA-256

e712d834ebd2359a8dbf25a76c7b0c41f16784e7ec90fa050a8e96fec5cc765a

Our copy

gov.uscourts.deb.193283.730.1.pdf

Original

PACER (login required)