BRYAN CAVE LLP Michelle McMahon (MM-8130)
1290 Avenue of the Americas New York, New York 10104 (212) 541-2000
Counsel to Workday, Inc.
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
) GRUBB & ELLIS COMPANY, et al., ) Case No. 12-10685 (MG)
)
Debtors. ) (Jointly Administered)
) WORKDAY, INC.’S OBJECTION TO PROPOSED
ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACT
Workday, Inc. (“Workday”), by and through the undersigned counsel, hereby objects to the proposed assumption and assignment of the Workday Agreement (defined below) pursuant to the terms set forth in the Motion to Approve /Debtors' Motion for Entry of (I) An Order (A) Approving Bidding Procedures and Bid Protections in Connection with the Sale of Substantially All of the Debtors' Assets (B) Approving the Form and Manner of Notice, (C) Scheduling An Auction and A Sale Hearing and (D) Approving Procedures for Determining Cure Amounts and (II) An Order Authorizing and Approving the Sale of Substantially All of the Debtors' Assets [Docket No. 12] (the “Sale Motion”) and the Notice to Counterparties to Potentially Assumed Executory Contracts and Unexpired Leases (the “Cure Notice”), filed and served, respectively, by the above-captioned debtors (the “Debtors”). In support of this Objection, Workday states as follows:
BACKGROUND
1. On February 20, 2012 (the “Petition Date”), the Debtors filed with this Court voluntary petitions for relief commencing cases under Chapter 11 of Title 11, United States Code.
2. Since the Petition Date, the Debtors have remained in possession of their businesses and properties pursuant to sections 1107 and 1108 of the Bankruptcy Code.
3. Workday provides services to the Debtors pursuant to the terms of that certain Master Agreement dated March 15, 2010, including Order Form #1 and Order Form #2 thereunder (the “Workday Agreement”).1 The Master Agreement is an executory contract.
4. On February 20, 2012, the Debtors filed the Sale Motion.
5. On March 7, 2012, the Court entered its Order (A) Approving Bidding Procedures and Bid Protections in Connection with the Sale of Substantially All of the Debtors' Assets (B) Approving the Form and Manner of Notice, (C) Scheduling An Auction and A Sale Hearing and (D) Approving Procedures for Determining Cure Amounts and (II) An Order Authorizing and Approving the Sale of Substantially All of the Debtors' Assets [Docket No. 94] (the “Bidding Procedures Order”).
6. Pursuant to the Bidding Procedures Order, on March 8, 2012, the Debtors served on Workday the Cure Notice identifying the Workday Agreement as an executory contract that may be assumed and assigned pursuant to the Sale Motion and proposing to pay $142,418 to cure defaults under the Workday Agreement, pursuant to section 365(b)(1)(A) of the Bankruptcy Code (the “Proposed Cure Amount”).
1
The Debtors must assume the Workday Agreement in its entirety, including Order Form # 1 and Order Form #2, which are incorporated therein. See, e.g., NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984) (“If an executory
OBJECTION
7. Workday objects to the proposed assumption and assignment of the Workday Agreement on the basis that the Proposed Cure Amount is insufficient to cure the defaults under Workday Agreement, and reserves its right to assert additional objections regarding the ability of the proposed purchaser, if other than BGC Partners, Inc., to perform under the Workday
Agreement, if appropriate.
8. As set forth in the invoices attached hereto as Exhibit A, the Debtors owe Workday $279,836.00 under the terms of the Workday Agreement. The Debtors must pay or provide adequate assurance that they will promptly pay this amount in order to cure the defaults under the Workday Agreement as a condition to its assumption and assignment pursuant to section 365(b)(1)(A) of the Bankruptcy Code.
9. Additionally, to the extent that a bidder other than BGC is determined to be the successful bidder at the auction of the Debtors’ assets, and the Workday Agreement is proposed to be assumed and assigned to such bidder, Workday reserves its right to submit a further objection to the Debtors’ provision of adequate assurance of such bidder’s ability to perform under the Workday Agreement, if appropriate.
10. Workday reserves its right to amend and supplement this Objection, and
incorporate to the extent applicable objections to the Sale Motion filed by other parties in interest WHEREFORE, for all the foregoing reasons, Workday respectfully requests that the Court condition any proposed assumption and assignment of the Workday Agreement on the payment or provision of adequate assurance of prompt payment of $279,836.00 in order to cure the defaults under the Workday Agreement and grant such other and further relief as is
Dated: March 16, 2012
/s/ Michelle McMahon BRYAN CAVE LLP
Lawrence P. Gottesman, Esq. Michelle McMahon (3900) 1290 Avenue of the Americas New York, New York 10104-3300
(212) 541-2000 (tel); (212) 541-4630 (fax)
CERTIFICATE OF SERVICE
I, Michelle McMahon, hereby certify that on March __, 2012, a true and correct copy of the foregoing Objection was served on all parties in interest through the Court’s ECF system and via first class mail to the parties listed below:
Dated: March 16, 2012 New York, New York
/s/ Michelle McMahon
Michelle McMahon (3900)
Grubb & Ellis Company, et al. 1551 N. Tustin Avenue #300 Santa Ana, CA 92705
Attn: Thomas D’Arcy Michael Rispoli Togut, Segal & Segal LLP One Penn Plaza, Suite 3335 New York, NY 10119
Attn: Frank A. Oswald, Esq.
Zakerman Gore Brandeis & Crossman LLP Eleven Times Square
New York, NY 10036
Attn: Clifford Brandeis, Esq. Alston & Bird LLP
90 Park Avenue New York, NY 10016 Attn: Mark Bunin, Esq.
Craig Freeman, Esq. Office of the United States Trustee 33 Whitehall Street
21st Floor
New York, NY 10004 Attn: Susan Golden, Esq.
Nazar Khodorovsky, Esq. Goodwin Proctor, LLP
The New York Times Building 620 Eighth Avenue
New York, NY 10018
Attn: Emanuel C. Grillo, Esq.
6230 Stoneridge Mall Road Pleasanton, CA 94588
Grubb & Ellis Company Michael Hansen
1551 N. Tustin Ave. Suite 300
Santa Ana, CA 92705
Workday, Inc.
Attn: Accounts Receivable 6230 Stoneridge Mall Road Pleasanton, CA 94588 Via Wire Transfer:
Bank: Wells Fargo Bank, Palo Alto, CA ABA #: 121 000 248
ACH #: 321 270 742 Account #: 765-5094592 Account Name: Workday, Inc. Federal Tax ID: 20-2480422
Invoice #8171 Date: 11/11/11 Terms: Net 30
Project: Grubb & Ellis - Subscription Fees
Description Total
Pleasanton, CA 94588
Grubb & Ellis Company Accounts Payable
1551 North Tustin Avenue Santa Ana, CA 92705
Attn: Accounts Receivable 6230 Stoneridge Mall Road Pleasanton, CA 94588 Via Wire Transfer:
Bank: Wells Fargo Bank, Palo Alto, CA ABA #: 121 000 248
ACH #: 321 270 742 Account #: 765-5094592 Account Name: Workday, Inc. Federal Tax ID: 20-2480422
Invoice #9386 Date: 01/31/12 Terms: Net 30
Project: Grubb & Ellis - Subscription Fees
Description Total
