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Full title: Objection of Q34, LLC to Motion of Debtors for Entry of Orders (I) Approving (A) Bidding Procedures, (B) Designation of Stalking Horse and Stalking Horse Protections, (C) Form and Manner of Notice of Sale, Auction 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 (related document(s)334) Filed by Q34, LLC f/k/a Stapleton 3401, LLC (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Certificate of Service) (Hazeltine, William) (Entered: 05/17/2021)

Document posted on May 16, 2021 in the bankruptcy, 23 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

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.The Supplemental Notice added the REA and Consent and approval as additional contracts that may be assumed and assigned as follows: Debtor Name Counterparty Claim Contract Service Description Cure Amount UCHDIH LLC Holualoa Stapleton Office, Parking Lot Easement Agreement $0 LLC UCHDIH LLC Holualoa Stapleton Office, The REA, among other things, (i) grants reciprocal access easements, utility easements, parking easements, drainage easements, easements for lateral and subjacent support, and easements for incidental encroachments and (ii) establishes the rights and obligations of the parties with respect to the Common Property, including maintenance of the Common Property.As set forth below, the Debtor cannot establish that it can satisfy even one of the subsections of Section 363(f) that would permit the sale of the Stapleton Hotel Property free and clear of the easements granted in the REA and Q34’s right to injunctive relief to enforce the Debtor’s obligations with respect to such easements.The REA is a bundle of reciprocal rights granted by and obligations imposed on both parties, including easements that are real property interests that necessarily will remain following a sale of the Stapleton Hotel Property.

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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 Nos. 334 OBJECTION OF Q34, LLC TO MOTION OF DEBTORS FOR ENTRY OF ORDERS (I) APPROVING (A) BIDDING PROCEDURES, (B) DESIGNATION OF STALKING HORSE AND STALKING HORSE PROTECTIONS, (C) FORM AND MANNER OF NOTICE OF SALE, AUCTION 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 Q34, LLC f/k/a Stapleton 3401, LLC (“Q34”), by and through its undersigned counsel, objects to the Motion of the Debtors for Entry of Orders (i) Approving (a) Bidding Procedures, (b) Designation of Stalking Horse and Stalking Horse Protections, (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 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

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Assignment of Executory Contacts and Unexpired Leases, and (iv) Granting Related Relief (the “Sale Motion”) [Docket No. 334]]. In support of its Objection, Q34 states as follows: INTRODUCTION 1. The Debtor and Q34 are adjacent commercial property owners on the site of the old Stapleton Airport in Denver, Colorado. In 2016, the Debtor and Q34’s predecessor-in-interest executed and recorded a Reciprocal Easement Agreement which, inter alia, provides Q34 with access rights to the surface parking lot on the Debtor’s hotel property and provides the Debtor with access rights to the parking garage on Q34’s office building property. The REA also imposes significant ongoing obligations on each party, including each party’s obligation to maintain the portion of their own property covered by the easement while requiring the other party to contribute to these maintenance costs in exchange for the access rights. Breaches of the obligations under the REA are enforceable by specific performance. Given the future performance obligations due on both sides, the REA is an executory contract which must be assumed by the Debtor and assigned to the Purchaser if the Purchaser want to obtain the continued benefit of the use of the parking garage on Q34’s premises. BACKGROUND A. The Development and the REA. 2. 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”). 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 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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“Parking Garage”). 3. 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. 4. 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. REA §§ 5-7. The REA further establishes the rights and obligations of the parties with respect to the Common Property, including the maintenance and repair of the Common Property. REA § 11. 5. 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. 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. 6. Section 11.b of the REA requires Q34 to maintain the Parking Garage in good 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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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. 7. 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. 8. Q34 acquired the Office Property on October 22, 2019. Prior to the acquisition, Holualoa (Q34’s predecessor in interest) 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 ¶ 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 3 A copy of the Consent and Approval is attached as Exhibit B.

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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. 9. 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.”5 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. 10. 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. 11. The Debtor has defaulted on its obligations under the Consent and Approval and the REA. Specifically, the Debtor has failed to pay past due amounts for its share of the Parking Garage repair in the amount of $388,099.14 consisting of $284,452.20 for billed work for the 4 The estimate has increased to $796,423.75 due to an increase in the scope of work. 5 Section 18.a of the REA provides, among other things, that any unpaid reimbursement obligation shall be secured by a lien on the defaulting party’s property.

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period prior to the Petition Date, $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 $328,0006 for additional work to complete the Parking Garage repairs and, accordingly, these additional amounts continue to accrue.7 The amounts due to Q34 are secured by a lien on the Stapleton Hotel Property granted pursuant to Section 18.a of the REA. 12. The REA’s prescribed remedy for the Debtor’s failure to pay its share of the maintenance obligations is for Q34 to seek an injunction (ii) specifically enforcing the obligation or (ii) enjoining the Debtor from using the Parking Garage until the Debtor satisfies its obligations. 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. C. The Debtor’s Bankruptcy and Sale Motion. 13. 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 the Sale Motion on March 9, 2021. The Court entered an order approving the procedures portion of the Sale Motion on March 24, 2021 (the “Procedures Order”) [Docket No. 503]. Pursuant to the Sale Motion the Debtors seek authority to sell substantially all of their assets free and clear of 6 This amount does not include the unbilled $11, 494.17 for work performed prior to the Petition Date.

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liens, claims, interests and encumbrances. 14. 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. 15. The Debtors filed their Supplemental Notice (the “Supplemental Notice”) modifying the Notice on April 5, 2021 [Docket No. 552]. The Supplemental Notice added the REA and Consent and approval as additional contracts that may be assumed and assigned as follows: Debtor Name Counterparty Claim Contract Service Description Cure Amount UCHDIH LLC Holualoa Stapleton Office, Parking Lot Easement Agreement $0 LLC UCHDIH LLC Holualoa Stapleton Office, Parking Lot Maintenance Consent $357,323.14 LLC and Approval 16. The Debtors filed their Second Supplemental Notice on May 6, 2021 removing the REA and Consent and Approval as contracts that may be assumed and assigned [Docket No. 648]. Purchaser’s counsel has informed undersigned counsel that the agreements were removed because they run with the land and are not executory contracts. Undersigned counsel understands that the Purchaser believes it will be able to use the Parking Garage without paying the amounts necessary to cure defaults under the REA and consent and approval regardless of whether they are executory contracts. 17. The Debtors filed its Third Supplemental Notice on May 12, 2021, which added 7 The Debtor also owes Q34 $4,331.75 for regular cost sharing and maintenance work.

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the REA and Consent and Approval back to the list of executory contracts that may be assumed and assigned. Undersigned counsel understands that the Debtors did so because they believe that the Debtor’s contractual obligations can be rejected while the Purchaser enjoys the benefits of the Parking Garage easement. ARGUMENT I. The Reciprocal Easements Granted in the REA Run with the Land. 18. Q34 agrees with the Purchaser that the REA runs with the land. Under Colorado law, a covenant runs with the land if the covenant satisfies three requirements: (i) The parties must intend to create a covenant running with the land; (ii) the covenant must touch and concern the land; and (iii) there must be privity of estate between the original covenanting parties. See, e.g. In re Extraction Oil & Gas, Inc., 662 B.R. 581, 596 (Bankr. D. Del. 2020). As set forth below, each of these requirements is satisfied here. Accordingly, the REA and the easements granted by the parties run with the land. A. The Debtor and Q34 intended that the REA and the easements granted by the parties to run with the land. 19. To create covenants running with the land under Colorado law , the parties must express their intent to create a covenant running with the land in clear and unambiguous terms. Id. at 597. Section 19 of the REA provides as follows: 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. The parties could not have chosen words to provide a more definitive expression of intent that the REA and the easements granted thereunder run with the land. Accordingly, this

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requirement is satisfied. B. The REA and the easements granted thereunder touch and concern the Stapleton Hotel Property and the Office Property. 20. A covenant touches and concerns the land if it closely relates to the land, its use, or its enjoyment.” Cloud v. Association of Owners, Satellite Apartment Bldg., Inc., 857 P.3d 435. “The ‘touch and concern’ requirement is fulfilled when the covenant operates to benefit the physical use of the land.” Bigelow v. Nottingham, 833 P.2d 764, 767 (Colo. App. 1991), rev’d in part sub nom. on other grounds Haberl v. Bigelow, 855 P.2d 1368 (Colo. 1993). 21. The REA and the easements granted thereunder closely relate to the use and enjoyment of the Stapleton Hotel Property and the Office Property. The REA, among other things, (i) grants reciprocal access easements, utility easements, parking easements, drainage easements, easements for lateral and subjacent support, and easements for incidental encroachments and (ii) establishes the rights and obligations of the parties with respect to the Common Property, including maintenance of the Common Property. Significantly, Q34 understands that the Debtors would be prohibited under local ordinances from operating the Stapleton Hotel Property as a hotel without the easement granting it the right to use the parking spaces in the Parking Garage. 22. Moreover, both the Debtor and Q34 acknowledged that the easements granted in the REA were essential to the most favorable use of the Stapleton Hotel Property and the Office Property. 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

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this Agreement. REA ¶ D. Based on the foregoing, it is clear that the REA and the easements granted thereunder touch and concern the Stapleton Hotel Property and the Office Property because they closely relate to the use and enjoyment of the properties and benefit the physical use of the properties. C. There is Privity of Estate between the Debtor and Q34. 23. The conveyance needed to satisfy privity of estate must be made between the covenanting parties and contemporaneously with the creation of the covenant running with the land. Extraction Oil, 662 B.R. at 606. This requires “the grant of a real property interest contemporaneous with the creation of the covenant intended to run. Id. at 606-07 (emphasis in original) (citing 3 Tiffany Real Property § 851 (3d ed. 2015)). 24. An easement is a real property interest under Colorado law. See Strole v. Guyman, 37 P.3d 529, 533 (Colo. App. 2001). “An easement is a right conferred by grant or acquired by prescription authorizing one to do or maintain something on the land of another. It is a privilege existing distinct from the ownership of the land itself; nevertheless, it is an interest in land.” Id; see also DeReus v. Peck,162 P.2d 404, 406 (Colo. 1945) (noting that “[a]n easement is a right conferred by grant or acquired by prescription authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter. It is a privilege existing distinct from the ownership of the land itself, nevertheless it is an interest in land.”). 25. Here, the Debtor and Q34’s predecessor in interest each granted interests in its real property, the reciprocal easements to the other party. The granting of the easements occurred simultaneously with the creation of the easements upon execution of the REA. Q34 is in privity of estate with the Debtor as a result of the Debtor’s acquisition of the Hotel Property

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Accordingly there is privity of estate between the Debtor and Q34. II. The REA is an Executory Contract.8 26. ‘A contract is executory if “’performance remains due to some extent on both sides.’” Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1658 (2019). (quoting NLRB v. Bildisco & Bildisco, 465 U. S. 513, 522, n. 6). “Such an agreement represents both an asset (the debtor's right to the counterparty's future performance) and a liability (the debtor's own obligations to perform).” Id. 27. Both Q34 and the Debtor have material remaining obligations to be perform under the REA. First and foremost, Q34 is obligated to complete the garage repairs at an estimated cost of $328,000 for work remaining to be performed. In return, the Debtor is obligated to pay the past due amounts of $383,767.39 plus amounts that become due through the completion of the garage repairs. Other material obligations include the following: • Each party is responsible for maintenance and repair of that portion of the Exterior Joint Use Area located on its respective Parcel. REA, § 14.a. • Each party is responsible for maintenance and repair of that portion of the Surface Parking Lot located on its respective Parcel as provided in Section 14 of this Agreement, including without limitation all curb cuts, entrances and exits to the same, in good repair and in a safe, sound, functional condition, smooth, free from cracks and potholes, and in conformity with all governmental regulations, such responsibility to include, without limitation, general maintenance, snow removal, general cleaning, repaving, restriping and replacing markings on the surface of the portion of the Surface Parking Lot and driveways located on its respective Parcel from time to time so as to provide for the orderly parking of automobiles, and repair and replacement of adequate exit and entrance and other traffic control signs to direct traffic in and out of the Surface Parking Lot. Id., § 11.b. • Each party is obligated to pay 50% of the costs of the surface parking lot maintenance and repair performed by the other party. Id. 8 The REA and the Consent and Approval together constitute one agreement. See Section III, below.

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• Each party is required to maintain insurance on its own parcel and name the other party as an additional insured. Id. § 15. • Each party is required to indemnify the other from all claims, costs, and liability for all claims, for damages occurring on the indemnitor’s parcel other than claims arising from the gross negligence or willful misconduct of the indemnitee. Id. 28. Moreover, these mutual obligations will continue for an indefinite period of time because (i) the REA has no definite term and (ii) neither party can cancel, rescind, or otherwise terminate the REA. Id. § 18.d. These significant and continuing mutual obligations clearly demonstrate that the REA is an executory contract. The fact that the REA grants easements that run with the land does not compel a different conclusion. See In re Extraction Oil & Gas, Inc., 662 B.R. 608, 620 (Bankr. D. Del. 2020) (“Consistent with Section 365, when considering whether real covenants or instruments creating real covenants can be rejected, courts have generally considered whether those covenants meet the definition of an executory contract”). III. The REA and Consent and Approval Together Constitute One Agreement that Must Be Assumed and Assigned or Rejected in its Entirety. 29. 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, 468 n. 11 (Bankr. N.D. Ill. 2006)). The principal of cum onere applies where separately drafted

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agreements embody a single contract. See In re Physiotherapy Holdings, Inc., 538 B.R. 225, 233 (D. Del 2015). 30. A fundamental rule of 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,9 “[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”). 31. 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). 32. It is readily apparent from its express terms of the consent and approval that the parties intended the REA and the Consent and Approval to constitute one agreement. The Consent and Approval’s two pages of text substantively references the REA ten times as follows:

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 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. 33. 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 9 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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respect to the REA’s provisions and procedures for the Debtor’s approval of and payment for the Garage Repairs. As such, it simply preapproves the identified repair charges and eliminates the Debtor’s ability to utilize the Section 13 of the REA to dispute the charges covered by the Consent and Approval. 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. IV. The Purchaser Cannot Use the Parking Garage Without Curing the Debtor’s Defaults Under the REA Because it Cannot Enjoy the Benefits of the REA Without Accepting the Burdens. 34. Pursuant to Bankruptcy Code Section 365(f)(2)(A), a debtor cannot assign an executory contract unless the debtor first assumes the contract consistent with the provisions of Section 365. 11 U.S.C. § 365(f)(2)(A). As the Purchaser is well aware, one requirement for a debtor to assume an executory contract is that the debtor cure all monetary defaults or provide adequate assurance that it will cure all monetary defaults under the contract. See 11 U.S.C. § 365(b)(1)(A). 35. Moreover, as discussed above, Section 365 “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)). 36. The Purchaser asserts that it can use the Parking Garage easement granted by Q34 without curing the existing monetary defaults under the REA simply because the easement grants an interest in land. Q34 agrees that the easement is an interest in land under Colorado law, but it disputes that the Purchaser can use the easement without taking assignment of the REA in compliance with Bankruptcy Code Section 365 and contrary to the cum onere requirement. 37. While the reciprocal easements granted in the REA are property interests, these property interests are embedded with contractual commitments that impose multiple obligations on each party. In particular, the Debtor’s easement to use the parking garage comes with the Debtor’s concomitant obligation to pay its share of the costs for maintaining and repairing the Parking Garage. Allowing the Purchaser to use the Parking Garage easement without assuming the Debtor’s obligations under the REA would allow the Purchaser to enjoy the benefits of the REA without the burdens in violation of the cum onere rule. 38. The Purchaser, relying on this Court’s November 2, 2020 opinion in Extraction Oil & Gas, Inc.,10 will likely argue that the Debtor’s property interest in the Parking Garage easement will continue following rejection. See Extraction Oil & Gas, Inc., 608 B.R. at 623 (“any covenant running with the land still exists (as the contract still exists”)). While Q34 does not dispute that the Purchaser will retain a property interest in the Parking Garage easement, the Court’s statement in Extraction Oil has no applicability here. In Extraction Oil, the Court found that, if any covenant did run with the land, the covenant would still exist, but the counter-contract parties could not enforce the covenants against the debtors following rejection. Id. By way of example, the rejection of the REA would prevent Q34 from enforcing the covenant

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requiring the Debtor or Purchaser to maintain the portion of the parking lot on the hotel premises which it owns. Here, however, the Purchaser wants to flip this principle on its head and ask the Court to rule that the Purchaser can retain the benefits granted by the REA--the right to use the Parking Garage-- despite the Debtor’s uncured breach of the REA, while prohibiting Q34 from exercising its injunctive remedies under the REA. The Purchaser’s requested relief flies in the face of the cum onere principle and the Court should reject it. 39. The effect of rejection of the REA would be analogous to the rejection of a real property lease. A real property lease grants an interest in land to the tenant and also grants contractual rights and imposes contractual obligations. The rejection of a real property lease is a breach of the lease but not a termination. See In re Teleglobe Communications Corp., 304 B.R. 79, 83 (D. Del 2004). Accordingly, the debtor’s property interest in the lease remains following rejection. But the debtor does not retain the right to use the leased property following rejection. Rather, the debtor is required to immediately surrender the leased premises. 11 U.S.C. § 365(a)(4)(A). See Schneiker v. Gordon, 732 P.2d 603 (Colo. 1987). 40. The REA similarly grants real property interests, the easements; grants contractual rights under the easements; and imposes contractual obligations such as the Debtor’s obligation to pay its share of the Parking Garage repairs. A rejection of the contractual obligations is a breach which does not eliminate the property interest, but permits enforcement of the obligation by injunctive relief, which would deny access to Q34’s property covered by the easement. 10 622 B.B. 608 (Bankr. D. Del. 2020).

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V. The Debtor Cannot Sell an Unfettered Easement to Use the Parking to The Purchaser Because The Debtor Does Not Own an Unfettered Easement to Use the Parking Garage. 41. The Purchaser cannot use the Parking Garage easement without payment of the Debtor’s past due obligations for the parking garage repairs regardless of whether the REA is an executory contract. “A debtor’s estate cannot possess anything more than the debtor possessed at the time of the bankruptcy filing.” Mission Product, 139 S. Ct. at 1663. “Whatever ‘limitation[s] on the debtor's property [apply] outside of bankruptcy[ ] appl[y] inside of bankruptcy as well. A debtor's property does not shrink by happenstance of bankruptcy, but it does not expand, either.’” Id. (quoting D. Baird, Elements of Bankruptcy 97 (6th ed. 2014). “So if the not-yet debtor was subject to a counterparty's contractual right (say, to retain a copier or use a trademark), so too is the trustee or debtor once the bankruptcy petition has been filed.’” Mission Product, 139 S. Ct. at 1663. Moreover, a debtor cannot sell property that is not property of the estate. See, e.g., In re Whitehall Jewelers Holdings, Inc., 2008 WL 2951974 at *4, Gross, J. (Bankr. D. Del. July 28, 2008). 42. The Debtor’s property interest created by the Parking Garage easement is not unfettered. Rather, it is subject to, among other things, the Debtor’s contractual obligation to pay its share of the costs for the maintenance and repair of the Parking Garage and Q34’s contractual right to seek the Debtor’s specific performance upon default on its obligations under the REA. Moreover, Q34’s contractual rights and the Debtor’s contractual obligations are not like liens, claims or other interests of third parties who are strangers to the conveyance of the property interest. Rather, these contractual rights and obligations are between the parties to the conveyance of the easements and embodied in the same document as the conveyance of the easements. As such, Debtor’s obligation to pay and Q34’s right to specific performance limit

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Debtor’s property interest granted by the Parking Garage easement and, accordingly, limit the property interest that the Debtor can convey to the Purchaser. VI. The Debtors Cannot Sell the Stapleton Hotel Property Free and Clear of the Reciprocal Rights and Obligations Granted to Q34 in the REA Pursuant to Bankruptcy Code Section 36 (f). 43. Bankruptcy Code Section 363(f) provides that (f) The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if— (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. 11 U.S.C § 363(f). As set forth below, the Debtor cannot establish that it can satisfy even one of the subsections of Section 363(f) that would permit the sale of the Stapleton Hotel Property free and clear of the easements granted in the REA and Q34’s right to injunctive relief to enforce the Debtor’s obligations with respect to such easements. 44. First, the Debtor cannot demonstrate that it would be permitted, under applicable nonbankruptcy law, to sell the Stapleton Hotel free and clear of the easements granted the REA and Q34’s enforcement rights. 45. Second, Q34 does not consent to the sale of the Stapleton Hotel Property free and clear of the easements and concomitant obligations.

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46. Third, Q34 does not dispute that the Debtor can sell the Stapleton Hotel Property free and clear of its lien. However, the Debtor cannot sell the Stapleton Hotel Property free and clear of Q34’s equitable remedies under the REA. 47. Fourth, there can no dispute regarding the parties’ rights and obligation under the REA given that it is a written agreement recorded with the Recorder’s Office for the City and County of Denver Colorado. 48. Finally, the Debtor cannot satisfy section 363 (f)(5). The REA is a bundle of reciprocal rights granted by and obligations imposed on both parties, including easements that are real property interests that necessarily will remain following a sale of the Stapleton Hotel Property. The parties entered into the REA because they recognized 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 (emphasis added). The parties clearly understood and agreed that the maintenance obligations under the REA were vital to the value of the easements and the most favorable operation of the properties. Accordingly, the maintenance obligations are intertwined with the easements and cannot be separated. 49. Moreover, Q34 understands that that Purchaser is not taking the position that the Stapleton Hotel Property can be sold free and clear of any of the myriad other obligations under the REA. The Purchaser has not explained to date how one obligation of one party to a reciprocal easement agreement that runs with the land can be stripped from that agreement.

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50. Even if the Debtor’s obligations under the REA can be separated from easements granted by Q34 to the Debtor, the Debtor cannot sell the Stapleton Hotel Property and appurtenant easements free and clear of the Debtor’s obligations to Q34 because Q34 cannot be compelled to accept a money judgment. The REA expressly provides that the remedy for its breach is an injunction for specific performance or other equitable relief. REA § 18.b. Given this binding provision, Q34 cannot be compelled to accept a money judgment in lieu of its equitable enforcement rights. See Gouveai v. Tazbir, 37 F.3d 295 (7th Cir. 1994) (holding that provision in restrictive covenant governing use of land which permitted enforcement by proceeding at law or in equity either to restrain violation or recover damages prevented the adjacent landowners from being forced to accept a cash award pursuant to section 363(f)(5)). See also In re Banning Lewis Ranch Company, LLC, 532 B.R. 335 (Bankr. Colo. 2015) (holding that election of remedies provision permitting equitable enforcement of Annexation Agreement governing provision of public utilities on Annexed Property prevented approval of proposed sale under section 363(f)(5)). Moreover, this Court has found that easements must be enforced by injunctive type relief. Extraction Oil, 608 B.R. at 622. 51. Specific performance is an integral and necessary remedy under the REA due to the nature of the future performance obligations imposed on each party. The remedy of specific performance prevents any party from avoiding its perpetual maintenance obligation on its own property and its cost-sharing obligations for maintenance of the adjacent property, while retaining uninterrupted access to the adjacent property granted by the easements. Since acceleration of the future amounts due under the cost-sharing provision is not possible, absent specific performance, the non-breaching party would potentially need to resort to repeated and

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periodic lawsuits and collection efforts to obtain its bargained for rights. This is an inadequate remedy, and a result the specific performance remedy was designed and intended to avoid. The payment obligations under the cost-sharing provisions of the REA cannot be excised from the specific performance remedy set forth in the agreement. 52. Moreover, given that the Debtor’s obligations under the REA continue into perpetuity, a money judgment would be an inadequate remedy here because it is impossible to calculate the monetary damages at this time. While the Purchaser may argue that it will step into the Debtor’s shoes and perform all of the Debtor’s obligations under the REA following closing, what may happen after closing is not the question. The question is whether Q34 can be compelled to accept a money judgment now for the Debtor’s breach of its obligations under the REA into perpetuity. The answer to that question is no. VII. The Sale Order Must Properly Allocate the Purchase Price Among the Debtor Properties. 53. Finally, Q34 objects to any apportionment of the purchase price that fails to match the relative values of the respective hotel properties. Manipulation of the purchase price allocation could result in the elimination or dilution of liens or claims that would otherwise be payable in full or in greater amounts under a proper allocation. In connection with any approval of the sale, this Court should require that the purchase price allocation be made solely based on demonstrated asset values to avoid any potential disparate impact on creditors.

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CONCLUSION WHEREFORE, Q34 respectfully requests that this Honorable Court enter an order consistent with this Objection and grant to Q34 such other and further relief as is just and proper. Date: May 17, 2021 SULLIVAN ∙ HAZELTINE ∙ ALLINSON LLC Wilmington, DE 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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