Case 18-11625-KJC Doc 195 Filed 08/22/18 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TINTRI, INC. Debtor. Chapter 11 Case No. 18-11625-KJC LIMITED OBJECTION OF GROUPWARE TECHNOLOGY, INC. AND RESERVATION OF RIGHTS TO DEBTOR S PROPOSED CURE NOTICE COMES NOW Groupware Technology, Inc. ( Groupware ), and files this Limited Objection (the Objection ) to the Notice to Counterparties to Executory Contracts and Unexpired Leases That May be Assumed and Assigned [Docket No. 122] ( Cure Notice ) and proposed cure amounts in connection with the potential assumption and assignment of the Debtors executory contracts with Groupware. In support of the Objection, Groupware respectfully states as follows: I. RELEVANT BACKGROUND 1. Debtor seeks to sell substantially all of its assets through a proposed sale governed by Court approved procedures. As part of the sale process, the Court has approved certain procedures ( Procedures ) for the potential assumption and assignment of certain executory contracts and unexpired leases to DataDirect Networks, Inc. (the Stalking Horse Bidder ) or the successful bidder at the auction for Debtor s assets. 2. Pursuant to the Procedures, Debtor served the Cure Notice on Groupware. The Cure Notice designates two executory contracts a distributor agreement and a support agreement (collectively, the Designated Contracts ) between Debtor and Groupware for 853\3088273.1
Case 18-11625-KJC Doc 195 Filed 08/22/18 Page 2 of 3 potential assumption and assignment. [See Cure Notice, Ex. A-1, Ex. A-4.] The Cure Notice provides a cure amount of zero for each of the Designated Contracts (the Cure Amounts ). II. LIMITED OBJECTION AND RESERVATION OF RIGHTS 3. Groupware objects to the Cure Amounts because Debtor fails to accurately identify the amounts owing from Debtor to Groupware that must be cured upon assumption of the Designated Contracts. See 11 U.S.C. 365(b)(1). As of the date of this pleading, Debtor owes Groupware no less than $154,030.87 based on Groupware s provision of certain Amazon Web Services ( AWS ) covering the period of February through July, 2018 pursuant to a pre-petition purchase order delivered by Debtor to Groupware. Groupware s invoices constituting the documentation and records that support its cure amount are attached hereto as collective Exhibit A. Furthermore, additional amounts due from Debtors to Groupware may arise between now and the time of any sale closing and/or post-closing. Groupware therefore objects to the proposed assumption and assignment of the Designated Contracts to the extent that the Cure Amounts do not include the cure of current amounts due as well as additional amounts that may become due under the Designated Contracts. Groupware further expressly reserves the right to raise additional objections based on the lack of adequate assurance and reserves the right to amend and/or supplement this Objection in the event it is determined additional cure amounts are owed under the Designated Contracts. 4. In addition, Groupware objects to the assumption of either Designated Contract to the extent that Debtor does not propose to assume and assign such contract in full. See In re Abitibibowater Inc., 418 B.R. 815 (Bankr. D. Del. 2009) (an executory contract cannot be assumed in part or rejected in part). 853\3088273.1-2 -
Case 18-11625-KJC Doc 195 Filed 08/22/18 Page 3 of 3 5. Finally, Groupware concurrently files the Declaration of its counsel Monique D. Jewett-Brewster to address the filing of the instant Objection one (1) day late. WHEREFORE, Groupware requests that the Court sustain its Objection and reservation of rights with respect to the potential assumption and assignment of the Designated Contracts, and grant it such other relief as the Court deems just and proper. Respectfully submitted, Dated: August 22, 2018 By:/s/ Monique D. Jewett-Brewster Ernest M. Malaspina, Bar No. 187946 Monique D. Jewett-Brewster, Bar No. 217792 HOPKINS & CARLEY The Letitia Building 70 S. First Street San Jose, CA 95113-2406 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Creditor Groupware Technology, Inc. 853\3088273.1-3 -
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Case 18-11625-KJC Doc 195-2 Filed 08/22/18 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TINTRI, INC. Debtor. Chapter 11 Case No. 18-11625-KJC DECLARATION OF COUNSEL MONIQUE D. JEWETT-BREWSTER IN SUPPORT OF LIMITED OBJECTION OF GROUPWARE TECHNOLOGY, INC. AND RESERVATION OF RIGHTS TO DEBTOR S PROPOSED CURE NOTICE I, Monique D. Jewett-Brewster, hereby declare: 1. I am an associate with the law firm of Hopkins & Carley, a Law Corporation, one of the counsel for creditor Groupware Technology, Inc. ( Groupware ) in the above-referenced case. I submit this declaration in support of Groupware s limited objection and reservation of rights to the Notice to Counterparties to Executory Contracts and Unexpired Leases That May be Assumed and Assigned [Docket No. 122] ( Cure Notice ) filed by debtor and Debtor-in- Possession TinTri, Inc. ( Debtor ). 2. Beginning on July 18, 2018, I took medical leave from my office under the California Family and Medical Leave Act for a documented major surgery. I returned to the office in or around the first week of August and resumed full duties in or around the second week of August. 3. On July 18, 2018, the date of my surgery, Debtor filed its Motion For Entry Of An Order (I) (A) Authorizing Entry Into Asset Purchase Agreement With Respect To The Sale Of Substantially All Of The Debtors Assets, (B) Approving Bid Procedures For The Sale Of 853\3088498.1
Case 18-11625-KJC Doc 195-2 Filed 08/22/18 Page 2 of 3 Substantially All Of The Debtors Assets, (C) Scheduling An Auction And Hearing To Consider The Sale And Approve The Form And Manner Of Notices Related Thereto, (D) Establishing Procedures Relating To The Assumption And Assignment Of Certain Contracts And Leases, Including Notice Of Proposed Cure Amounts, (E) Approving Certain Breakup Fee And Expense Reimbursement Provisions; (II) Authorizing And Approving (A) The Sale Of Certain Assets Free And Clear Of All Liens, Claims And Encumbrances, And Other Interests, And (B) The Assumption And Assignment Of Certain Contracts And Leases; And (III) Granting Related Relief [Docket No. 71] ( Sale Motion ). 4. On August 3, 2018, Debtor filed its Cure Notice, which pursuant to the Court s approved procedures as requested in the Sale Motion, set August 21, 2018 at 4:00 p.m. Eastern Prevailing Time as the deadline for the filing and service of objections to the Cure Notice. 5. On August 22, 2018, I learned that, despite our firm s internal calendaring processes, the deadline to object to the Cure Notice had not been calendared in our docketing system. Upon learning of calendaring omission, I immediately prepared and caused to be filed Groupware s objection to the proposed Cure Amounts set forth in the Cure Notice. 6. I respectfully submit that this calendaring error constitutes excusable neglect sufficient to waive Groupware s one (1) day delay in filing and serving its objection to the Cure Notice, and further has not resulted in any prejudice to the Debtor. I respectfully request that the /// /// /// /// /// 853\3088498.1-2 -
Case 18-11625-KJC Doc 195-2 Filed 08/22/18 Page 3 of 3 accept the filing of Groupware s objection to the Cure Notice one day late, and apologize to the Court and Debtor for any inconvenience due to the delay. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on August 22, 2018, at San Jose, California. /s/ Monique D. Jewett-Brewster Monique D. Jewett-Brewster 853\3088498.1-3 -
Case 18-11625-KJC Doc 195-3 Filed 08/22/18 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: TINTRI, INC. Debtor. Chapter 11 Case No. 18-11625-KJC CERTIFICATE OF SERVICE I, Monique D. Jewett-Brewster, hereby certify that on August 22, 2018, I caused a copy of the concurrently filed Limited Objection of Groupware Technology, Inc. and Reservation of Rights to Debtor s Proposed Cure Notice to be served on (i) all parties who are scheduled to receive notice through the Court s ECF system, and (ii) the following parties via e-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 853\3088475.1
Case 18-11625-KJC Doc 195-3 Filed 08/22/18 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 Bidder 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 Bidder Dated: August 22, 2018 By:/s/ Monique D. Jewett-Brewster Ernest M. Malaspina, Bar No. 187946 Monique D. Jewett-Brewster, Bar No. 217792 HOPKINS & CARLEY The Letitia Building 70 S. First Street San Jose, CA 95113-2406 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Creditor Groupware Technology, Inc. 853\3088475.1-2 -