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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
VYAIRE MEDICAL, INC., et al.,1
Debtors.
Chapter 11
Case No. 24-11217 (BLS)
(Jointly Administered)
Re: D.I. 256, 462
DECLARATION OF KEVIN RAMIREZ IN SUPPORT OF THE LIMITED OBJECTION
OF SALESFORCE, INC. TO THE PROPOSED ASSUMPTION AND ASSIGNMENT OF
CERTAIN EXECUTORY CONTRACTS AND CURE COSTS, IN CONNECTION
WITH THE SALE AND RESERVATION OF RIGHTS
I, Kevin Ramirez, declare as follows:
1. I am the Manager, Global Bad Debt for Salesforce, Inc. (f/k/a salesforce.com, inc.)
("Salesforce") and I am authorized to execute this Declaration on behalf of Salesforce (as
identified hereinafter). If called to testify, I could and would competently testify to the facts
set forth herein based on my personal knowledge of those facts, events and transactions.2
2. Salesforce is a Delaware corporation, and, among other activities, it provides on-
demand customer relationship management and software application services (collectively,
the “Salesforce Services”) to Salesforce’s business customers (individually, a “Salesforce
Customer” and, collectively, “Salesforce Customers”).
3. Salesforce provides the Salesforce Services pursuant to the agreements and orders
identified on Exhibit “A” attached hereto (collectively, the “Salesforce Contracts”) and
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.
2 Capitalized terms used in this Declaration, but which are not defined herein, shall have the meanings ascribed to
them in the Assumption and Assignment Objection filed by Salesforce concurrently herewith.
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Exhibit “A” is incorporated by referenced into this Declaration as if fully set forth.
4. This Declaration is filed in support of the Limited Objection of Salesforce, Inc. to
the Proposed Assumption and Assignment of Certain Executory Contracts and Cure Costs, in
Connection with the Sale and Reservation of Rights (the “Assumption and Assignment
Objection”) filed by Salesforce with respect to: (A) the potential assumption and/or
assignment of the Salesforce Contracts by the Debtors; (B) Salesforce’s reservation of rights
related to the assumption and/or assignment of the any executory contract (i) to which
Salesforce is a counterparty and (ii) is not identified on Exhibit “A” attached to this
Declaration) or in the Notices of Assumption and Assignment of Contracts (the “Cure
Notices”); and (C) any and all monetary and other defaults that exist with respect to the
Salesforce Contracts to the extent that the assumption and/or assignment of the Salesforce
Contracts and/or an Additional Salesforce Contracts is approved without providing the relief
requested by the Assumption and Assignment Objection.
MAINTENANCE OF BUSINESS RECORDS
5.
In my official capacity, I have personal knowledge of the method by which
Salesforce maintain permanent records of their transactions (individually, a “Transaction”
and, collectively, the “Transactions”) with their customers and, thereupon, I declare and
state that Salesforce maintains permanent records of all Transactions in a computerized
accounting system. All amounts due and owing to Salesforce with respect to any Transaction
with a Salesforce Customer including, but not limited to, payments related to Salesforce
Services, taxes, interest owed with respect to any Salesforce Services or agreement, fees, and
other charges (individually, an “Obligation” and, collectively, the “Obligations”), are
entered in this accounting system at, or near, the time such Obligations are incurred.
Likewise, all payments made by a Salesforce Customer with respect to any Obligation or
Transaction, and all other credits and debits related to any Obligation or Transaction, are
entered in this accounting system at, or near, the time such payment is received and/or such
credit or debit is made or incurred. Each such entry is made in the regular course of business
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by employees of Salesforce who process these payments, receipts, credits, and debits. If
necessary, Salesforce can print hard copies of all entries.
6.
I have personal knowledge of the manner by which Salesforce maintain
records of their written contracts, statements of work, schedules and any other documents
related to such contracts, and all amendments to any contract, statement of work, schedule,
and/or any other document (individually, a “Salesforce Agreement” and, collectively, the
“Salesforce Agreements”) with their customers. As a regular part of its business, Salesforce
maintain permanent records of the Salesforce Agreements and these records are compiled at
the time, or near the time, that a Salesforce Agreement is received or processed.
THE SALESFORCE CONTRACT
7. I have personally reviewed Salesforce’ records relating to the Debtors, including
the Transactions, the Obligations, the Salesforce Agreements, the Salesforce Contracts, and I
am personally familiar with Salesforce’s account(s) with the Debtor.
8. The Debtors entered into those certain Order Forms (which are identified on the
Cure Amount Summary attached hereto as Exhibit “A”)3 with Salesforce that are governed
by certain Master Subscription Agreements (the “MSAs” and, together with the Order
Forms, collectively referred to as the “Salesforce Contracts”).4
9. Pursuant to the Salesforce Contracts: (i) the Debtors ordered certain Salesforce
Services and became obligated to pay in full the aggregate amounts due pursuant to this
contract with respect to such services; (ii) Salesforce became obligated to provide
Salesforce Services to the Debtors; (iii) Salesforce have provided such services to the
Debtors; and (iv) the Debtors accepted and utilized Salesforce Services provided pursuant
to the Salesforce Contract.
3 The Cure Amount Summary is attached hereto as Exhibit A and is incorporated by reference as if fully set forth
herein.
4 Due to the confidentiality provisions of the MSAs, a copy of the Salesforce Contract and related invoices (the
“Invoices”) are not attached to this Declaration. However, subject to appropriate non-disclosure protections, a
copy of the Salesforce Contract and the Invoices will be made available to the Debtors and the Official
Committee of Unsecured Creditors (the “Committee”) in connection with this Assumption Objection.
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BANKRUPTCY CASE
10.
Based upon information and belief, I am informed that, on June 9, 2024,(the
“Petition Date”) Vyaire Medical, Inc. and the above captioned Debtors each filed a
voluntary petition for relief under chapter 11 of title 11 of the United States Code in the
United States Bankruptcy Court for the District of Delaware (the “Court”) and, thereby,
commenced their individual cases under chapter 11 (collectively, the “Bankruptcy Cases”).
On June 11, 2024, the Court entered the Joint Administration Order5 directing the joint
administration of the Debtors’ cases.
11.
Based on information and belief, I am informed that, on or about July 11,
2024, the Court entered an order (the “Sale Procedures Order”)6 authorizing the Debtors to
establish procedures for sale of certain of the Debtors’ assets and procedures related to the
assumption, assumption and assignment, and/or transfer of executory contracts and unexpired
leases in connection with a sale of the Debtors’ assets.
12.
Based on information and belief, I am informed that, on or about July 11,
2024, the Court entered an order (the “Sale Order”)7 authorizing the sale of certain of the
Debtors’ assets and the assumption, assumption and assignment, and/or transfer of executory
contracts and unexpired leases in connection with a sale of the Debtors’ assets.
13.
Based on information and belief, I am informed that, on or about July 11,
2024, pursuant to the Sale Procedures Order, the Debtors filed the: First Notice to Contract
Parties of Potentially Assumed and Assigned Executory Contracts and Unexpired Leases [D.I.
5 See, Order (I) Directing Joint Administration of Chapter 11 Cases And (II) Granting Related Relief [D.I. 84] (the
“Joint Administration Order”).
6 See, Order (I) Approving Bidding Procedures and Bid Protections, (II) Scheduling Certain Dates and Deadlines
with Respect Thereto, (III) Approving the Form and Manner of Notice Thereof, (IV)Establishing Notice and
Procedures for the Assumption and Assignment of Contracts and Leases, (V) Authorizing the Assumption and
Assignment of Contracts and Leases, (VI) Authorizing the Sale of Assets; and (VII) Granting Related Relief [D.I.
249], (the “Sale Procedures Order”).
7 See, Order (I) Authorizing and Approving Procedures to Reject Executory Contracts and Unexpired Leases and
(II) Granting Related Relief [D.I. 250]. (the “Sale Order”).
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256] (“First Cure Notice”). Salesforce informally objected to the First Cure Notice and the
Debtors agreed to modify the contract descriptions, and the Debtors and Salesforce agreed upon
the correct cure amount.
14.
Based upon information and belief, I am informed that on August 24. 2024, the
Debtors filed the First Supplemental Notice of Contract Parties of Potentially Assumed and
Assigned Executory Contracts [D.I. 462] (“Supplemental Cure Notice”) (collectively, with the
the First Cure Notice, the “Assumption and Assignment Notices”).
15.
The Assumption and Assignment Notices filed by the Debtors identify: (A)
certain Contracts that the Debtors have designated for assumption and assignment including
the following executory contracts to which Salesforce are counterparties (the “Cure Notices
Contracts”), and (B) the amount of any monetary default (the “Debtors’ Proposed Cure
Amount”) that it contends must be cured as a condition of the assumption of these Cure
Notice Contracts:
FIRST CURE NOTICE (D.I. 256 Filed July 11, 2024).
NO.
CONSOLIDAT
E VENDOR
NAME
VENDOR/AGE
NCY/COMPA
NY
DESCRIPTION
WORKS
TREAM
PROPOSED
CURE
AMOUNT
ASSIGNEE
ASSUMPTI
ON DATE
6235
SFDC
SFDC
SalesForce 2017‐ 07‐ 14 IT Master Service
$267,052.43
7/11/2024
6236
SFDC
SFDC
Salesforce.com, Inc. 2020‐ 08‐ 14‐ 2020
$ 0.00
7/11/2024
6237
SFDC
SFDC
Salesforce.com, Inc. 2020‐ 07‐ 16 Order For
$ 0.00
7/11/2024
6238
SFDC
SFDC
Salesforce 2017‐ 07‐ 17 IT Order
$ 0.00
7/11/2024
6239
SFDC
SFDC
Purchase Order PO PS 070689
$ 0.00
7/11/2024
6240
SFDC
SFDC
Purchase Order PO PS 070690
$ 0.00
7/11/2024
6241
SFDC
SFDC
Purchase Order Quote Q‐ 07416306
$ 0.00
7/11/2024
6242
SFDC
SFDC
Purchase Order Quote Q‐ 07764587
$ 0.00
7/11/2024
SUPPLEMENTAL CURE NOTICE (D.I. 462 Filed August 24, 2024.
NO.
CONSOLIDAT
E VENDOR
NAME
VENDOR/AGE
NCY/COMPA
NY
DESCRIPTION
WORKS
TREAM
PROPOSED
CURE
AMOUNT
ASSIGNEE
ASSUMPTI
ON DATE
8265
SFDC
SFDC
Purchase Order Quote Q-07842041
$ 0.00
8/24/2024
8266
SFDC
SFDC
Purchase Order Quote Q-07187278
$ 0.00
8/24/2024
8267
SFDC
SFDC
Purchase Order Quote Q-07114790
$ 0.00
8/24/2024
16.
The Supplemental Cure Notice states that counterparties to the Cure Notices
Contracts must file an objection to the proposed assumption and assignment of the Cure
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Notices Contracts (including to the proposed Cure Amount) no later than September 6, 2024
(the “Assumption and Assignment Objection Deadline”). The Debtors further extended
Salesforce’s objection deadine to September 13, 2024 (the “Assumption and Assignment
Objection Deadline”).
THE CURE AMOUNT
17.
Based upon my review of Salesforce’ books and records that are pertinent to
the Debtor’s account, I declare and state that: (A) the Cure Notice Contracts scheduled on
the Assumption and Assignment Notices do not match the description of the Salesforce
Contracts as listed on Salesforce’ records8; (B) the Salesforce Contracts are correctly
identified on the Cure Amount Summary attached to this Declaration as Exhibit “A” and
incorporated herein by this reference; and (C) as of the date of this Declaration, Salesforce’
records show that the Debtor has failed to pay all amounts due and owing pursuant to the
Salesforce Contracts and, accordingly, the Debtor must cure the aggregate amount of not
less than US$ 277,052.76 (the “Salesforce Cure Amount”) with respect to Salesforce
Services, and such amount must be paid by the Debtor as a condition of the assumption of the
Salesforce Contracts.
18.
Additionally, with respect to the Salesforce Services to be provided in the
future, not less than an aggregate amount of US$ 19,327.03 (i.e., the Future Payments) will
become due and owing pursuant to the Salesforce Contracts.
19.
Further, it is possible that the Salesforce Cure Amount may be increased
once executory contracts to be assumed are determined by Salesforce, the Debtor and the
Buyer.9
8 Accordingly, the Salesforce Assumption Objection requests the Debtors provide further information concerning all
of the Orders, and any professional service agreement and/or master subscription agreement that they propose may
be assumed pursuant to the Sale.
9 By the Salesforce Assumption Objection, Salesforce reserves all rights with respect to any and all executory
contracts not identified in the Cure Notice that, ultimately, are assumed and assigned to the Buyer pursuant to the
Sale.
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I declare under penalty of perjury that the foregoing is true and correct.
Executed this ___ day of September 2024 at San Francisco, California
____________________________________
Kevin Ramirez
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9/9/2024
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