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Full title: Objection of Q34, LLC f/k/a Stapleton 3401, LLC to Supplemental Notice of Cure Costs and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction (related document(s)552) Filed by Q34, LLC f/k/a Stapleton 3401, LLC (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C Through H # 4 Certificate of Service) (Hazeltine, William) (Entered: 04/19/2021)

Document posted on Apr 18, 2021 in the bankruptcy, 12 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

1 The Debtors in these chapter 11 cases, along with the last four digits of each debtor’s tax identification number, as applicable, are as follows: EHT US1, Inc.(6703); 5151 Wiley Post Way, Salt Lake City, LLC (1455); ASAP Cayman Atlanta Hotel LLC (2088); ASAP Cayman Denver Tech LLC (7531); ASAP Cayman Salt Lake City Hotel LLC (7546); ASAP Salt Lake City Hotel, LLC (7146); Atlanta Hotel Holdings, LLC (6450); CI Hospitality Investment, LLC (7641); Eagle Hospitality Real Estate Investment Trust (7734); Eagle Hospitality Trust S1 Pte.UCCONT1, LLC (0463); UCF 1, LLC (6406); UCRDH, LLC (2279); UCHIDH, LLC (6497); Urban Commons 4th Street A, LLC (1768); Urban Commons Anaheim HI, LLC (3292); Urban Commons Bayshore A, LLC (2422); Urban Commons Cordova A, LLC (4152); Urban Commons Danbury A, LLC (4388); Urban Commons Highway 111 A, LLC (4497); Urban Commons Queensway, LLC (6882); Urban Commons Riverside Blvd., A, LLC (4661); and USHIL Holdco Member, LLC (4796).The Stapleton Hotel Property and the Office Property share certain services and areas, including without limitation, common curb cuts, common landscaped areas, common roadways, common aisles, common parking areas, common loading areas, common sidewalks and a ground level breezeway connecting the Stapleton Hotel Property and the Office Property (collectively, the “Common Property”), all as set forth in that certain Amended and Restated Reciprocal Easement Agreement dated as of November 10, 2016 (the “REA”).2 In order to avoid the uncertainty of the estimation procedures set forth in Section 13.a of the REA, Holualoa and the Debtor entered into that certain Agreement for Hotel Owner’s Consent and Approval to Work and Payment Under Amended and Restated Reciprocal Easement Agreement dated July 31, 2019 (the “Consent and Approval”).3 The Consent and Approval acknowledges that Q34 remains obligated to pay for 67% of the costs of the Garage Repairs consistent with the REA.

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) EHT US1, Inc., et al.,1 ) Case No. 21-10036 (CSS) ) Debtor. ) Related Docket No. 552 OBJECTION OF Q34, LLC F/K/A STAPLETON 3401, LLC TO SUPPLEMENTAL NOTICE OF CURE COSTS AND POTENTIAL ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH SALE TRANSACTION Q34, LLC f/k/a Stapleton 3401, LLC (“Q34”), by and through its undersigned counsel, objects to the Debtors’ Supplemental Notice of Cure Costs and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction (the “Supplemental Notice”) [Docket No. 552]. In support of its Objection, Q34 states as follows: BACKGROUND A. The Development and the REA. 1. Debtor UCHDIH LLC (the “Debtor”) owns and operates a hotel located near the old Stapleton Airport in Denver, Colorado (the “Stapleton Hotel Property” or “Stapleton Hotel”). 1 The Debtors in these chapter 11 cases, along with the last four digits of each debtor’s tax identification number, as applicable, are as follows: EHT US1, Inc.(6703); 5151 Wiley Post Way, Salt Lake City, LLC (1455); ASAP Cayman Atlanta Hotel LLC (2088); ASAP Cayman Denver Tech LLC (7531); ASAP Cayman Salt Lake City Hotel LLC (7546); ASAP Salt Lake City Hotel, LLC (7146); Atlanta Hotel Holdings, LLC (6450); CI Hospitality Investment, LLC (7641); Eagle Hospitality Real Estate Investment Trust (7734); Eagle Hospitality Trust S1 Pte. Ltd. (7669); Eagle Hospitality Trust S2 Pte. Ltd. (7657); EHT Cayman Corp. Ltd. (7656); Sky Harbor Atlanta Northeast, LLC (6450); Sky Harbor Denver Holdco, LLC (6650); Sky Harbor Denver Tech Center, LLC (8303); UCCONT1, LLC (0463); UCF 1, LLC (6406); UCRDH, LLC (2279); UCHIDH, LLC (6497); Urban Commons 4th Street A, LLC (1768); Urban Commons Anaheim HI, LLC (3292); Urban Commons Bayshore A, LLC (2422); Urban Commons Cordova A, LLC (4152); Urban Commons Danbury A, LLC (4388); Urban Commons Highway 111 A, LLC (4497); Urban Commons Queensway, LLC (6882); Urban Commons Riverside Blvd., A, LLC (4661); and USHIL Holdco Member, LLC (4796). The Debtors’ mailing address is 3 Times Square, 9th Floor New York, NY 10036 c/o Alan Tantleff (solely for purposes of notices and communications).

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Q34 owns and operates an office building (the “Office Property”) adjacent to the Stapleton Hotel Property. Q34 also owns a subterranean parking garage located at the Office Property (the “Parking Garage”). 2. The Stapleton Hotel Property and the Office Property share certain services and areas, including without limitation, common curb cuts, common landscaped areas, common roadways, common aisles, common parking areas, common loading areas, common sidewalks and a ground level breezeway connecting the Stapleton Hotel Property and the Office Property (collectively, the “Common Property”), all as set forth in that certain Amended and Restated Reciprocal Easement Agreement dated as of November 10, 2016 (the “REA”).2 The REA was recorded with the Recorder’s Office for the City and County of Denver Colorado on November 15, 2016. The parties entered into the REA because they recognized that the most favorable use of the Stapleton Hotel Property and the Office Property would be “as a unified and coordinated Development.” REA Recital D. 3. The REA, among other things, grants reciprocal access easements, utility easements, parking easements, drainage easements, easements for lateral and subjacent support, and easements for incidental encroachments. The REA further establishes the rights and obligations of the parties with respect to the Common Property, including maintenance of the Common Property. 4. The REA is particularly beneficial to the Debtor and the Stapleton Hotel Property because it grants the Debtor an easement to use certain parking spaces in the Parking Garage. 2 The REA was entered into by and between the Debtor and Holualoa Stapleton Office, LLC (“Holualoa”), Q34’s predecessor in interest. A copy of the REA is attached as Exhibit A.

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See REA § 3.b. Upon information and belief, the Debtor would not be permitted to operate the Stapleton Hotel as a hotel without the right to use these parking spaces. 5. Section 11.b of the REA requires Q34 to maintain the Parking Garage in good repair. REA § 1.b. Section 11.b further requires the Debtor to reimburse Q34 for 33% of its costs and expenses incurred in maintaining and repairing the Parking Garage as provided in section 13 of the REA. Id. 6. Section 13.a.1 of the REA sets forth a detailed procedure requiring the party obligated to perform maintenance and repairs on a particular parcel of Common Property to provide an estimate of the costs and expenses by the first calendar day of each year. Section 13 further provides the other party the right to dispute the estimate, which dispute could result in arbitration if not resolved consensually. See REA §§ 13.a.i and ii. Section 13.a.iv sets forth a similar procedure in the event that the actual costs and expenses exceed the estimate by ten percent. REA § 13.a.iv. B. The Consent and Approval and Parking Garage Repairs. 7. Q34 acquired the Office Property on October 22, 2019. Prior to the acquisition, Holualoa and Q34 determined that significant repairs were needed to the Parking Garage. In order to avoid the uncertainty of the estimation procedures set forth in Section 13.a of the REA, Holualoa and the Debtor entered into that certain Agreement for Hotel Owner’s Consent and Approval to Work and Payment Under Amended and Restated Reciprocal Easement Agreement dated July 31, 2019 (the “Consent and Approval”).3 Pursuant to the Consent and Approval, the Debtor consented to and approved of Holualoa (and Q34, as its successor) performing the garage repairs set forth in a proposal attached thereto (the “Garage Repairs”). Consent and Approval ¶ 3 A copy of the Consent and Approval is attached as Exhibit B.

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2. The Debtor (i) acknowledged its obligation pursuant to Paragraph 11.b of the REA to pay 33% of the cost of the Garage Repairs and (ii) agreed to pay the estimated amount of $751,9024 for its share of the Garage Repairs periodically within 15 days of receipt of invoices. Id. at ¶ 3. The Consent and Approval further acknowledges “that Office Owner shall remain responsible for payment of 67% of the Garage Repairs …, consistent with the REA.” Id. 8. The Consent and Approval provides that the Debtor’s payment obligations thereunder “are secured by the lien referred to in Section 18 of the REA, and Office Owner shall have the benefit of all rights and remedies afforded under Section 18 and all other applicable provisions of the REA in the event of nonpayment of the Hotel Owner’s share of the Garage Repairs as provided herein.” Id. The Consent and Approval further provides that “to the extent the REA requires or contemplates any other or different procedures for Hotel Owner’s approval for the Garage Repairs …, or payment of Hotel Owner’s share of the Garage Repairs (including any rights to object to the making of the Garage Repairs), such provisions are deemed waived.” Id. 9. Paragraph 5 of the Consent and Approval provides as follows: Ratification. The terms and conditions of the REA are hereby affirmed and ratified and reaffirmed in their entirety and remain in full force and effect, subject only to the terms of this Consent and Approval. In the event of any conflict between the terms of this Consent and Approval and the terms of the REA, the terms of the Consent and Approval shall Control. Id. at ¶ 5. 10. The Debtor has defaulted on its obligations under the Consent and Approval and the REA. Specifically, the Debtor has failed to pay past due invoices for its share of the Parking Garage repair in the amount of $284,452.20 for the period prior to the Petition Date. The Debtor 4 The estimate has increased to $796,423.75 due to an increase in the scope of work.

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also owes Q34d $11,494.17 for unbilled work performed prior to the Petition Date and $87,821.02 for work performed subsequent to the Petition. In the coming year, Q34 expects to invoice the Debtor approximately $328,0005 for additional work to complete the Parking Garage repairs.6 Q34 filed lien notices recorded with the Recorder’s Office for the City and County of Denver Colorado on December 10, 2020 and January 6, 2021 following the non-payment of two separate invoices. Upon information and belief, Q34’s liens are first priority liens.7 C. Other Provisions of the REA. 11. The REA entitles a party to specific performance if the other party breaches, attempts to breach, or threatens to breach the REA. REA § 18.b. Specifically, this section provides that In the event of a breach, or attempted or threatened breach, of any obligation of this Agreement, the other Party shall be entitled forthwith, upon prior written notice to the Defaulting Party unless an emergency exists in which case no notice shall be required, to obtain an injunction to specifically enforce the performance of such obligation, the Parties hereby acknowledging the inadequacy of legal remedies and the irreparable harm which would be caused by any such breach, and/or to relief by all other available legal and equitable remedies from the consequences of such breach. Id. 12. The REA cannot be terminated by either party in the event of a breach by the other party. Specifically, Section 18.d of the REA provides that It is expressly agreed that no breach of the provisions of this Agreement shall entitle any Party to cancel, rescind or otherwise terminate this Agreement; but such limitation shall not affect, in any manner, any other rights or remedies which any Party may have hereunder by reason of any breach of the provisions of this Agreement. 5 This amount does not include the unbilled $11, 494.17 for work performed prior to the Petition Date. 6 The Debtor also owes Q34 $4,331.75 for regular cost sharing and maintenance work. 7 Pursuant to Colorado law, the priority and perfection of Q34’s liens relates back to the filing of the REA.

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REA § 18.b. 13. The REA runs with the land. Section 19 of the REA provides that Agreement Runs with the Land; Successors and Assigns. The rights granted and obligations imposed by this Agreement shall run with the Hotel Property and the Office Property and shall be binding upon and inure to the benefit of Hotel Owner and Office Owner and their respective successors, assigns and legal representatives. REA § 19. Moreover, the parties expressly acknowledged that the reciprocal easements granted by the REA are appurtenant to the land: Hotel Owner and Office Owner recognize that for the most favorable operation of the Hotel Property and the Office Property as a unified and coordinated Development, it is desirable that they agree and cooperate with respect to the operation and maintenance of their respective Parcels and in connection therewith, they desire to burden their respective Parcels with certain easements appurtenant to the other's Parcel and to obtain the benefit of certain easements appurtenant over the other's Parcel, all on the terms and conditions set forth in this Agreement. REA ¶ D. D. The Debtor’s Bankruptcy and Sale Motion. 14. The Debtor and certain affiliates (the “Debtors”) filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code on January 18, 2021. The Debtors filed their Motion for Entry of Orders (i) Approving (a) Bidding Procedures, (b) Designation of Stalking Horse and Stalking Horse Projections, (c) Form and Manner of Notice of Sale, Auctions and Sale Hearing and (d) Assumption and Assignment Procedures, (ii) Scheduling Auctions and Sale Hearing, (iii) Approving (a) Sale of Substantially All of Debtors’ Assets Free and Clear of Liens, Claims, Interests and Encumbrances and (b) Assumption and Assignment of Executory Contacts and Unexpired Leases, and (iv) Granting Related Relief (the “Sale Motion”) [Docket No. 334] on March 9, 2021. The Court entered on order approving the procedures portion of the Sale Motion on March 24, 2021 (the “Procedures Order”) [Docket No. 503].

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15. The Debtors filed their Notice of Cure Costs and Potential Assumption and Assignment of Executory Contracts and Unexpired Leases in Connection with Sale Transaction (the “Notice”) [Docket No. 521] on March 26, 2021 in accordance with the Procedures Order. Neither the REA nor the Consent and Approval is identified in the Notice as a contract that may be assumed and assigned. 16. The Debtors filed the Supplemental Notice on April 5, 2021. The Supplemental Notice identifies two contracts between the Debtor and Holualoa, Q34’s predecessor in interest, as follows:
Table 1 on page 7. Back to List of Tables
Debtor Name Counterparty Claim Contract Service Description Cure
Amount
UCHDIH LLC Holualoa Stapleton Office,
LLC
Parking Lot Easement Agreement $0
UCHDIH LLC Holualoa Stapleton Office,
LLC
Parking Lot Maintenance Consent
and Approval
$357,323.14
OBJECTION A. The REA and Consent and Approval Together Constitute One Agreement that Must Be Assumed and Assigned in its Entirety. 17. It is axiomatic that Bankruptcy Code Section 365(f) “requires a debtor to assume a contract subject to the benefits and burdens thereunder.” In re Fleming Companies, Inc., 499 F.3d 300, 308 (3d. Cir. 2007) (citing In re ANC Rental Corp., 277 B.R. 226, 238 (Bankr. D. Del. 2002)). “’The [debtor] ... may not blow hot and cold. If he accepts the contract he accepts it cum onere. If he receives the benefits he must adopt the burdens. He cannot accept one and reject the other.’” Fleming, 499 F.3d at 308 (quoting In re Italian Cook Oil Corp., 190 F.2d 994, 997 (3d Cir.1951). “The cum onere rule ‘prevents the [bankruptcy] estate from avoiding obligations that are an integral part of an assumed agreement.”” Fleming, 499 F.3d at 308 (quoting United Air Lines, Inc v. U.S. Bank Trust Nat’l Ass’n (In re UAL Corp.), 346 B.R. 456,

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468 n. 11 (Bankr. N.D. Ill. 2006)). The principal of cum onere applies where separately drafted agreements embody a single contract. See In re Physiotherapy Holdings, Inc., 538 B.R. 225, 233 (D. Del 2015). 18. A fundamental rule contract law is that the court should strive to ascertain and effectuate the mutual intent of the parties. Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 365 (Colo. 1988). Intent may be determined by reference to separate ancillary instruments. Id. Under Colorado law,8 “[i]t is elementary that contracts may consist of two or more writings when they are so intended and by their terms are related to the same subject matter of agreement.” Grizzly Bar, Inc. v. Hartman, 454 P.2d 788, 791 (Colo. 1969); see also Meredith v. Ramsdell, 365 P.2d 941, 944 (Colo. 1963).(“an agreement may be evidenced by several writings, which, when connected, show the parties, subject matter, terms, and consideration”). 19. An incorporation by reference of a separate document into a contract is effective if it is “’clear that the parties to the agreement had knowledge of and assented to the incorporated terms.’” Memory Ten, Inc. v. LV Administrative Services, Inc., 942 F. Supp.2d 1157, 1169 (D. Colo. 2013) (quoting Taubman Cherry Creek Shopping Ctr., LLC v. Neiman–Marcus Grp., Inc., 251 P.3d 1091, 1095 (Colo. App. 2010). “’So long as it is clear what document is being referred to and that the parties intended for it to be a part of the [agreement], ... it is as effectively a part thereof as if recited therein.” Memory Ten, 942 F. Supp. at 1169 (quoting In re Seymour's Marriage, 536 P.2d 1172, 1175 (Colo. App. 1975). 20. It is readily apparent from its express terms that the parties intended the REA and the Consent and Approval to constitute one agreement. The Consent and Approval’s two pages 8 Section 25 of the REA provides that “[t]his Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without regard to any conflicts of laws provisions.” REA § 25.

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of text substantively references the REA ten times as follows:  In the opening paragraph of the Agreement portion of the Consent and Approval, the Debtor acknowledges that the Consent and Approval is in consideration of the covenants and conditions set forth in the REA. See Opening paragraph of Agreement potion of the Consent and Approval.  Capitalized terms not set forth in the Consent and Approval shall have the meanings set forth in the REA. Consent and Approval, ¶ 1.  The Debtors’ approval of the scope of work for the Garage Repairs is deemed to satisfy all requirements under the REA for issuance, review and approval of a Cost Estimate. Id., ¶ 2.  The Debtor acknowledges its obligation under Section 11.b of the REA to pay 33% of the actual costs of the Garage repairs and “acknowledges, ratifies and agrees to such payment obligation.” Id., ¶ 3.  The Consent and Approval acknowledges that Q34 remains obligated to pay for 67% of the costs of the Garage Repairs consistent with the REA. Id.  The Debtor’s payment obligations under the Consent and Approval are secured by the lien referred to in Section 18 of the REA. Id.  Q34 has “the benefit of all rights and remedies afforded under Section 18 and all other applicable provisions of the REA in the event of nonpayment of the Hotel Owner's Share of the Garage Repairs.” Id.  The Debtor waives any other provisions in the REA that require or contemplate any other or different procedures for the Debtor’s approval for the Garage Repairs or payment of the Debtor’s share of the Garage Repairs, including any rights to object to the making of the Garage Repairs. Id.  The Consent and Approval ratifies and reaffirms the terms and conditions of the REA in their entirety and acknowledges that they remain in full force and effect subject only to terms of the Consent and Approval. Id., ¶ 5.  The Consent and Approval provides that the terms of the Consent and Approval shall control in the event of any conflict between the terms of this Consent and Approval and the terms of the REA. Id. 21. These provisions read together clearly evidence the parties’ intention that the Consent and Approval be incorporated into the REA in order to amend the REA solely with respect to the REA’s provisions and procedures for the Debtor’s approval of and payment for the

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Garage Repairs. Accordingly, the Debtor should not be permitted to assume one agreement and not the other in order to sever its rights and obligations under the Consent and Approval from its rights and obligations under the REA. B. The Debtor’s Proposed Cure Amounts are Incorrect. 22. In order to assume and assign the REA/Consent and Approval, the Debtor is required to cure defaults existing thereunder pursuant to section 365(b)(l)(A) of the Bankruptcy Code, which provides, in relevant part, that “[i]f there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee . . . cures, or provides adequate assurance that the trustee will promptly cure, such default[.]” 11 U.S.C. § 365(b)(l)(A). 23. The Debtor’s proposed cure amounts of $0 for the REA and $357,323.14 for the Consent and Approval are not correct. As of the date hereof, the Debtor is in default of its payment obligations under the REA/Consent and Approval in the amount of $388,090.14 as set forth below:
Table 1 on page 10. Back to List of Tables
Description Amount
Billed Prepetition Garage Repairs9 $284,452.20
Unbilled Prepetition Garage Repairs10 $11,494.17
Postpetition Garage Repairs through 2/28/2111 $87,812.02
Billed Prepetition Maintenance Cost Sharing12 ($2,656.59)
Unbilled Prepetition Maintenance Cost Sharing13 $4,837.30
Postpetition General Maintenance and Cost Sharing $2,151.04
Total $388,090.14
9 A summary of these charges is attached as Exhibit C. 10 A summary of these charges is attached as Exhibit D. 11 A summary of these charges is attached as Exhibit E. 12 A summary of these charges is attached as Exhibit F. 13 A summary of these charges is attached as Exhibit G.

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These amounts continue to accrue as the Debtor ignores invoices sent by Q34 for work performed after the Petition Date. 24. Moreover, the Debtor is not correct that the cure amount for the REA is $0. The Debtor’s obligation to pay 33% of the costs of the Garage Repairs arises from Sections 11.b and 13.a of the REA. Section 11.b of the REA provides that the Debtor “will reimburse Office Owner for 33% of such costs and expenses related to the Parking Garage, all in the manner set forth in Section 13 of this Agreement. REA, § 11.b. Section 13.a sets forth the procedures for reimbursement. As discussed above, the Consent and Approval amends the REA to supplant the provisions of 13.a solely with respect to the REA’s provisions and procedures for the Debtor’s approval of and payment for the Garage Repairs. Accordingly, the Debtor must pay the cure amount set forth above to cure its defaults under the REA. 25. Section 15 of the REA requires the Debtor to maintain insurance and indemnify and hold the Q34 harmless with respect to any claim for injury or damages occurring on the Stapleton Hotel Property. Any order approving the cure amount and the assumption and assignment of the REA/Consent and Approval must provide that the assignee shall remain subject to the terms of the REA and Consent and Approval, including that any assignee continues to be responsible for all such insurance and indemnification obligations, regardless of when they arose. 26. Q34 is also entitled to payment of reasonable attorney’s fees as part of the Cure Amount. See REA, § 20. Attorney’s fees due under a contract are compensable if the contract specifically requires their payment. In re Crown Books Corp., 269 B.R. 12, 15 (Bankr. D. Del. 2001).

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RESERVATION OF RIGHTS 27. Q34 expressly reserves its right to object to the entry of an order approving thesale of the Debtors’ assets in accordance with any the Procedures Order. CONCLUSION WHEREFORE, Q34 respectfully requests that any order entered by the Court approving the assumption and assignment of the REA/Consent and Approval be consistent with this Objection and grant to Q34 such other and further relief as is just and proper. Date: April 19, 2021 SULLIVAN ∙ HAZELTINE ∙ ALLINSON LLC Wilmington, DE /s/ William A. Hazeltine William D. Sullivan (No. 2820) William A. Hazeltine (No. 3294) 919 North Market Street, Suite 420 Wilmington, DE 19801 Tel: (302) 428-8191 Email: bsullivan@sha-llc.com whazeltine@sha-llc.com and WEINMAN & ASSOCIATES, P.C. Jeffrey A. Weinman, Esq. 730 17th Street, Suite 240 Denver, CO 80202-3506 Telephone: (303) 572-1010 jweinman@epitrustee.com Attorneys for Q34, LLC f/k/a Stapleton 3401, LLC

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