Case 18-11625-KJC Doc 188 Filed 08/21/18 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TINTRI, INC., Debtor. 1 Chapter 11 Case No. 18-11625 (KJC Related Doc. Nos. 71, 122 LIMITED OBJECTION AND RESERVATION OF RIGHTS OF CONCUR TECHNOLOGIES, INC. TO THE DEBTOR S CURE NOTICE AND PROPOSED SUBSTANTIAL ASSET SALE Concur Technologies, Inc. ( Concur, by and through its undersigned counsel, hereby files this limited objection and reservation of rights (the Objection to the Notice to Counterparties to Executory Contracts and Unexpired Leases That May Be Assumed and Assigned [D.I. 122] (the Cure Notice and the substantial asset sale motion [D.I. 71] (the Sale Motion filed by debtor Tintri, Inc. ( Tintri. In support of this Objection, Concur hereby states as follows: BACKGROUND 1. On June 4, 2018, Tintri filed the Sale Motion. Pursuant to the Sale Motion, Tintri seeks approval of certain sale procedures and approval of the sale of substantially all of its assets to the Stalking Horse Bidder identified in the Sale Motion or the highest bidder at auction. 2. As of the date of the filing of this Objection, the auction has not been held, and the identity of the purchaser remains unknown. 3. On August 3, 2018, Tintri filed the Cure Notice. 1 The Debtor and the last four digits of its taxpayer identification numbers are (6978: The headquarters and service address for the above-captioned Debtor is 303 Ravendale Dr., Mountain View, CA 94043. 73B355602
Case 18-11625-KJC Doc 188 Filed 08/21/18 Page 2 of 4 4. The Cure Notice lists among those contracts that may be potentially assumed and assigned a Services Agreement with Concur Technologies, Inc. with a $0.00 cure amount. 2 5. Concur and Tintri are parties to a Business Services Agreement, which was entered into on or about April 30, 2012. That agreement and any and all related order forms, agreements, schedules, appendices, and amendments thereto are referred to herein as the BSA. 6. Pursuant to the BSA, Concur provides Tintri with certain software cloud services related to employee travel and expense reimbursement. 7. Currently, $13,706.88 is past due from Tintri to Concur for services arising under the Agreement. In addition, $1,478.01 will come due under Invoice 101900036047 on September 14, 2018. True and correct copies of the invoices evidencing such obligations are attached to this Objection as Exhibit A. LEGAL ARGUMENT THE BSA CANNOT BE ASSUMED AND ASSIGNED UNLESS IT IS IDENTIFIED WITH SUFFICIENT SPECIFICITY AND THE FULL CURE AMOUNT IS PAID. 8. The Cure Notice lists a single, undated Services Agreement with Concur. However, Concur and Tintri are parties to the Business Services Agreement, which is an integrated agreement that contains numerous order forms, addendums, etc. thereto. The BSA may be assumed and assigned only as a single, integrated document. See In re Exide Technologies, 340 B.R. 222, 228 (Bankr. D. Del. 2006. 18. Presuming that Tintri intends to assume and assign the entire BSA, as defined above, Concur nonetheless objects to assumption and assignment unless Tintri pays the full amount due. 2 However, Tintri included Concur on its Schedule E/F: Creditors Who Have Unsecured Claims with a debt of $11,940.55 that is neither contingent, unliquidated, nor disputed. See Schedules of Tintri [D.I. 169] at page 34. 73B355602 2
Case 18-11625-KJC Doc 188 Filed 08/21/18 Page 3 of 4 19. Pursuant to 365(b(1 of the Bankruptcy Code, a debtor may assume and assign an executory contract only if the debtor cures, or provides adequate assurance that it will promptly cure, all monetary defaults, and provides adequate assurance of future performance. 20. A cure under 365(b(1 of the Bankruptcy Code means that all unpaid amounts due under the contract have been paid. See In re Network Access Solutions Corp., 330 B.R. 67, 76 (Bankr. D. Del. 2005; see also In re Superior Toy & Manufacturing Co., Inc., 78 F. 3d 1169 (7 th Cir. 1996 ( [T]he language of 365(b(1 is unequivocal. A party to an executory contract must be paid all amounts due him under the contract before the contract may be assumed.. 21. A debtor is also obligated to provide adequate assurance of future performance under such contract prior to assumption. 11 U.S.C. 365(b(1(C. 22. Concur objects to the Debtors purported $0.00 cure amount to assume and assign the BSA. As demonstrated by the past due invoices included in the attached as Exhibit A, the total amount due to cure Tintri s defaults under the BSA is currently $13,706.88. Therefore, the assumption and assignment of the BSA requires payment of $13,706.88 under section 365(b(1(A of the Bankruptcy Code. 23. In addition, $1,487.01 will come due shortly after the scheduled sale hearing. Tintri has not provided Concur adequate assurance that any debts incurred by Tintri that will not come due until after the sale hearing will be paid. 24. Concur reserves the right to supplement this Objection if it discovers any further amounts due and owing, including, but not limited to, accruing, unpaid post-petition obligations arising under the BSA. WHEREFORE, Concur respectfully requests that this Court deny assumption and assignment of the BSA absent payment of the $13,706.88 cure amount and assurance of payment 73B355602 3
Case 18-11625-KJC Doc 188 Filed 08/21/18 Page 4 of 4 of all invoices that arise or come due after the sale hearing, and grant such other relief as it may deem appropriate. BROWN & CONNERY, LLP Dated: August 21, 2018 /s/ Donald K. Ludman Donald K. Ludman (DE Bar No. 4015 6 North Broad Street, Suite 100 Woodbury, NJ 08096 (856 812-8900 (856 853-9933 (fax dludman@brownconnery.com Attorneys for Concur Technologies, Inc. 73B355602 4
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Case 18-11625-KJC Doc 188-2 Filed 08/21/18 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TINTRI, INC., Chapter 11 Case No. 18-11625 (KJC Debtor. 1 CERTIFICATE OF SERVICE I, Donald K. Ludman, hereby certify that on this date I caused true and correct copies of Limited Objection and Reservation of Rights of Concur Technologies, Inc. to the Debtor s Cure Notice and Proposed Substantial Asset Sale to be served upon all parties receiving pleadings via the CM/ECF system in this case and upon the following via email and first class mail: Pachulski Stang Ziehl & Jones LLP Attn: John D. Fiero, Esquire Colin R. Robinson, Esquire 919 N. Market Street, 17th Floor P.O. Box 8705 Wilmington, DE 19899-8705 jfiero@pszjlaw.com crobinson@pszjlaw.com Counsel to the Debtor and Debtor-in-Possession Office of the United States Trustee for the District of Delaware Attn: Timothy J. Fox, Jr., Esquire J. Caleb Boggs Federal Building 844 N. King Street, Suite 2207 Lockbox 35 Wilmington, DE 19801 Timothy.Fox@usdoj.gov Counsel to the United States Trustee Womble Bond Dickinson (US LLP Attn: Matthew P. Ward, Esquire Ericka F. Johnson, Esquire 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801 matthew.ward@wbd-us.com ericka.johnson@wbd-us.com Counsel to the Official Committee of Unsecured Creditors Riemer & Braunstein LLP Attn: Steven E. Fox, Esquire Times Square Tower Seven Times Square, Suite 2506 New York, NY 10036 sfox@riemerlaw.com Counsel to SVB 1 The Debtor and the last four digits of its taxpayer identification numbers are (6978: The headquarters and service address for the above-captioned Debtor is 303 Ravendale Dr., Mountain View, CA 94043. 73B7904
Case 18-11625-KJC Doc 188-2 Filed 08/21/18 Page 2 of 2 Ashby & Geddes Attn: Gregory A. Taylor, Esquire 500 Delaware Avenue P.O. Box 1150 Wilmington, DE 19899 GTaylor@ashbygeddes.com Counsel to SVB McDermott Will & Emery Attn: Gary B. Rosenbaum, Esquire 2049 Century Park East, Suite 3800 Los Angeles, CA 90067 grosenbaum@mwe.com Counsel to TriplePoint Capital LLC Richards, Layton & Finger, P.A. Attn: John H. Knight, Esquire One Rodney Square 920 North King Street Wilmington, DE 19801 Knight@rlf.com Counsel to the Stalking Horse Purchaser McDermott Will & Emery Attn: Riley T. Orloff, Esquire 340 Madison Avenue New York, NY 10173 rorloff@mwe.com Counsel to TriplePoint Capital LLC Polsinelli PC Attn: Stephen J. Astringer, Esquire 222 Delaware Avenue, Suite 1101 Wilmington, DE 19801 sastringer@polsinelli.com Counsel to TriplePoint Capital LLC Manatt, Phelps & Phillips, LLP Attn: Blase Dillingham, Esquire 11355 W. Olympic Blvd. Los Angeles, CA 90064 bdillingham@manatt.com Counsel to the Stalking Horse Purchaser Dated: August 21, 2018 BROWN & CONNERY, LLP /s/ Donald K. Ludman. Donald K. Ludman (DE Bar No. 4015 6 North Broad Street, Suite 100 Woodbury, NJ 08096 (856 812-8900 (856 853-9933 FAX dludman@brownconnery.com Attorneys for Concur Technologies, Inc. 73B7904 2