IN THE UNITED STATES BANKRUPTCY COURT DISTRICT OF … Motion and Attachments.… · interests pursuant to §§ 363(b), 363(f), and 363(m) of the Bankruptcy Code; (c) assuming and

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4438557.6

IN THE UNITED STATES BANKRUPTCY COURT

DISTRICT OF COLORADO

IN RE:

Y&K SUN, INC.,

Debtor.

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)

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)

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Case No. 16-14761 MER

Chapter 11

TRUSTEE’S MOTION FOR ORDER (A) APPROVING PURCHASE AGREEMENT

AND AUTHORIZING THE SALE OF SUBSTANTIALLY ALL OF THE DEBTOR’S

ASSETS; (B) AUTHORIZING THE SALE OF ASSETS FREE AND CLEAR OF ALL

LIENS, CLAIMS, RIGHTS, ENCUMBRANCES AND OTHER INTERESTS

PURSUANT TO BANKRUPTCY CODE SECTIONS 363(b), 363(f) AND 363(m); (C)

ASSUMING AND ASSIGNING CERTAIN EXECUTORY CONTRACTS AND

UNEXPIRED LEASES PURSUANT TO BANKRUPTCY CODE SECTION 365; AND

(D) GRANTING RELATED RELIEF

Jeffrey A. Weinman, Chapter 11 Trustee (the “Trustee”) for debtor Y&K Sun, Inc.

(“Debtor”) files this motion (the “Sale Motion”) for the entry of an order, in substantially the

same form as Exhibit A (the “Sale Order”): (a) approving the Purchase Agreement dated

April 2, 2018 (the “Purchase Agreement,” a copy of which is attached hereto as Exhibit 1 to

the Sale Order), between the Trustee, as seller, and Broad Street Acquisitions, LLC (“Broad

Street” or the “Stalking Horse Bidder”), as buyer, and authorizing the sale (the “Sale”) of

substantially all of Debtor’s assets (the “Assets” or the “Property”); (b) authorizing the sale of

the Debtor’s assets free and clear of all liens, claims, rights, encumbrances, and other

interests pursuant to §§ 363(b), 363(f), and 363(m) of the Bankruptcy Code; (c) assuming

and assigning certain executory contracts and unexpired leases (the “Assigned Contracts”)

pursuant to § 365 of the Bankruptcy Code; and, (d) granting related relief.1 In support of this

Sale Motion, the Trustee respectfully states as follows:

1 Concurrently herewith, the Trustee is filing the Motion for Entry of An Order (a) Approving

Bid Procedures for the Sale of Substantially all of the Debtor’s Assets, (b) Approving Bid

Case:16-14761-MER Doc#:309 Filed:04/04/18 Entered:04/04/18 14:07:43 Page1 of 21

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JURISDICTION AND VENUE

1. The United States Bankruptcy Court for the District of Colorado has jurisdiction

over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding

within the meaning of 28 U.S.C. § 157(b)(2).

2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.

3. The grounds for the relief sought herein are sections 363, 365, 503, 1107, and

1108 of Title 11 of the United States Code (the “Bankruptcy Code”), Rules 2002, 6004, 6006,

and 9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rules

2002-1, 6004-1, and 9013-1 of the Local Rules of Bankruptcy Practice and Procedure of the

United States Bankruptcy Court for the District of Colorado (the “Local Rules”).

BACKGROUND

4. This Chapter 11 case was commenced by the filing of a Voluntary Petition on

May 12, 2016. By order entered October 18, 2017, this Court ordered the appointment of a

Chapter 11 Trustee. On October 23, 2017, the Office of the United States Trustee filed its

application for approval of the appointment of Jeffrey A. Weinman as the Chapter 11 Trustee,

which application was approved October 25, 2017. No official committee has yet been appointed

by the Office of the United States Trustee.

Protections; (c) Approving Amendment to Exclusive Brokerage Agreement; (d) Scheduling a

Sale Hearing, (e) Approving the Form and Manner of Notice; (f) Approving Procedures for the

Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (g)

Granting Related Relief (the “Bid Procedures Motion”), which seeks approval of certain bid

procedures and bidder protections (the “Bid Procedures”) with respect to the Sale, approval of the

amendment to the Trustee’s brokerage agreement with its marketing agent, scheduling a hearing

approving the sale of the Debtor’s Assets (the “Sale Hearing”), and approving certain assignment

procedures (the “Assumption Procedures”), for the assumption and assignment of the Assigned

Contracts, as more particularly set forth therein. All capitalized terms used but not otherwise

defined herein shall have the meanings in the Bid Procedures Motion and Bid Procedures


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5. In 2006, Debtor purchased a portion of the JCRS shopping center located at 6451,

6553, and 6579 West Colfax Avenue, Lakewood, Colorado (the “Property”).2 The Property

consists of approximately 43,000 square feet of retail space divided into 15 units, which include

a Family Dollar, nail salon, Blackjack Pizza, and liquor store. 3 The Property is Debtor’s only

substantial asset. The Trustee continues to operate the Property.

6. Situated between Debtor’s property located at 6553 and 6579 West Colfax

Avenue is a vacant retail strip center structure, located at 6575 West Colfax Avenue, owned by a

third-party (the “Adjacent Property”). The Adjacent Property once housed an Albertson’s

grocery store. Upon information and belief, it is currently owned by third-party SFCA, LLC, an

affiliate of the Rocky Mountain College of Art and Design.

7. Debtor’s purchase of the Property was financed in part with a $3,000,000 loan

from First National Bank (“FNB”). The Property is subject to a Deed of Trust for the benefit of

FNB, which secures a promissory note in the original amount of $3,000,000, as amended (the

“FNB Note”). The current balance on the FNB Note is approximately $2,550,000. FNB has

agreed to extend the maturity date of the FNB Note to July 14, 2018 and Debtor is current on its

payments to FNB, which includes an escrow for real estate taxes and insurance.

8. Prior to the appointment of the Trustee, Debtor previously attempted to sell the

Property. Debtor was at one time under contract with CK Acquisitions, LLC (“CK

Acquisitions”) to sell the Property, but CK Acquisitions failed to close the sale after more than a

year. Thus, Debtor’s prior attempts to sell the property, without engaging a marketing agent and

conducting a public bidding and auction process, have proven unsuccessful.

2 The legal description of the property is set forth in Exhibit A to the Purchase Agreement, a

copy of which is attached as Exhibit 1 to the Sale Order. 3 Casa Bonita, a notable Denver restaurant, is located in the shopping center directly adjacent to

the Property to the west.


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9. The Trustee has determined that a sale of substantially all of Debtor’s assets

would maximize the value of the estate for all stakeholders. The Trustee has been in contact

with several parties interested in purchasing Debtor’s Assets. One such party, Broad Street, has

agreed to serve as a stalking horse bidder and has entered into a Purchase Agreement with the

Trustee, dated as of April 2, 2018, whereby the Broad Street proposes to purchase the Assets for

cash consideration of $3.5 million (the “Purchase Price”), which will serve as a competitive

baseline of recovery for the Debtor’s stakeholders. The proposed transaction, if approved, will

generate significant value for the Debtor’s estate, and among other things, satisfy a significant

portion of the prepetition claims against the Debtor in a manner that maximizes value. As

consideration for serving as a stalking horse bidder and subject to approval by the Court, the

Purchase Agreement provides that, if the Trustee sells to a purchaser other than Broad Street, the

Trustee shall pay Broad Street a breakup fee of $125,000 and expense reimbursement not to

exceed $25,000.

10. In the Bid Procedures Motion, the Trustee seeks approval of the bidding and

auction procedures as well as the overbid protections for Broad Street in connection with the sale

of substantially all of the Assets to Broad Street, all as more fully set forth in Bidding

Procedures Motion and Bid Procedures attached thereto.

11. The Trustee, with Court approval, retained NRC Realty & Capital Advisors of

CO, LLC (“NRC”) as its real estate and marketing agent in this chapter 11 bankruptcy case. The

Trustee, with the assistance of NRC, seeks authority to market test the Broad Street transaction

contemplated by the Purchase Agreement to ensure that the Trustee obtains the highest or

otherwise best offer for the Debtor’s Assets. If approved, the Bid Procedures will enable the

Trustee to move expeditiously towards a sale of the Assets in a manner that will maximize value

for the estate. As set forth in further detail below, the sale, the Purchase Agreement, the Bidding


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Procedures, and the related relief requested in this Motion are in the best interests of the Debtor’s

estate and its stakeholders.

12. The Court has approved the Trustee’s application to retain NRC and the Exclusive

Brokerage Agreement (“Brokerage Agreement”) between the Trustee and NRC, under which

NRC agreed to serve as the Trustee’s marketing agent. Docket No. 305. The Brokerage

Agreement required, among other things, that the Trustee pay a minimum 4% commission to

NRC upon sale of the Assets to a buyer arranged by NRC. When the Trustee and NRC entered

into the Brokerage agreement, however, the Trustee had not engaged a stalking horse bidder.

Thus, the Trustee’s entry into the Purchase Agreement with Broad Street requires amendment to

the Brokerage Agreement to reflect that the Trustee has engaged a stalking horse bidder and to

ensure that NRC is compensated for its marketing efforts in the event that Broad Street is the

Successful Bidder. Thus, the Trustee and NRC have agreed to amend the Brokerage Agreement

to provide that, if Broad Street is the Successful Bidder (as defined below), the Trustee will pay

NRC a fee of $50,000 plus reimbursement of NRC’s actual expenses incurred up to $10,000. The

Trustee is seeking approval of the amended Brokerage Agreement in the Bid Procedures Motion

filed concurrently herewith.

13. The Trustee intends to assume and assign to Broad Street (or other Successful

Purchaser) certain unexpired leases with Debtor’s tenants and is proposing procedures to notify

the counterparties to such leases of the proposed assumption and assignment and cure amounts.

RELIEF REQUESTED

14. The Trustee will seek entry of an order at the conclusion of the Sale Hearing,

substantially in the form attached hereto as Exhibit A (the “Sale Order”):

(a) authorizing and approving the Sale of Debtor’s Assets to Broad Street or

the Successful Bidder (as defined in the Bidding Procedures) on the terms

substantially set forth in the Purchase Agreement or Successful Bid;


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(b) authorizing and approving the Sale of substantially all of Debtor’s Assets

free and clear of liens, claims, encumbrances, and other interests to the

extent set forth in the Purchase Agreement or Successful Bid;

(c) authorizing the assumption and assignment of the Assigned Contracts;

(d) authorizing disbursement of sale proceeds upon closing to pay

commissions of NRC; and

(e) granting any related relief.

15. Trustee reserves the right to file and serve any supplemental pleading or

declarations that the Trustee deems appropriate or necessary in its reasonable business judgment,

including any pleading summarizing the competitive bidding and sale process and the results

thereof, in support of their request for entry of the Sale Order before the Sale Hearing.

PROPOSED SALE

16. The Trustee entered into arm’s-length negotiations with the Broad Street to

finalize agreeable terms of the Purchase Agreement for the sale of Debtor’s Assets. The Trustee

believes a prompt Sale of Debtor’s Assets provides the best alternative available for all

stakeholders in this chapter 11 case.

17. The Trustee respectfully request that the Court approve the following general

timeline:

a. Entry of the Bid Procedures Order: no later than May 4, 2018.

b. Contract Cure Objection Deadline: 4:00 p.m. (prevailing Mountain Time)

fourteen (14) seven calendar days from service of the Contract Notice (as defined

in the Bid Procedures Order), as the deadline to, object to the cure amounts listed

in the Contract Notice;

c. Bid Deadline: 3:00 p.m. (prevailing Mountain Time), on or before May 30, 2018,

as the deadline by which bids for Debtor’s Assets (as well as the deposit and all

other documentation required under the Bidding Procedures for Qualified Bidders

(as defined in the Bidding Procedures)) must be actually received (the “Bid

Deadline”);


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d. Sale Objection Deadline: May 30, 2018, at the close of business (prevailing

Mountain Time) as the deadline to object to the Sale;

e. Auction (if necessary): June 6, 2018 at 2:00 p.m. (prevailing Mountain Time), as

the date and time the Auction, which will be held at the offices of Davis Graham

& Stubbs LLP, located at 1550 17th Street, Suite 500, Denver, CO 80202, if the

Trustee and NRC receive one or more Qualified Bids and determine that an in-

person auction is the best means of ensuring the best and highest offer;

f. Sale Hearing: the week of June 11, 2018, or otherwise as the Court’s calendar

permits, as the date and time for the Sale Hearing.

18. The Trustee believes that this timeline maximizes the prospect of receiving a

higher or otherwise better offer without unduly prejudicing the chapter 11 estate. To further

ensure that the Trustee’s proposed Sale process maximizes value to the benefit of the Debtor’s

estate, the Trustee, with the assistance of NRC, will use the time following entry of the Bidding

Procedures Order to actively market the Assets in an attempt to solicit higher or otherwise better

bids in an effort to market test the transaction contemplated by the Purchase Agreement. The

Trustee believes the relief requested by this Motion is in the best interests of its creditors, its

other stakeholders, and all other parties in interest, and should be approved.

PURCHASE AGREEMENT

19. The Trustee believes that the consummation of the Sale to the Broad Street or a

Successful Bidder at auction will provide Debtor’s creditors and other stakeholders with the

best opportunity possible for maximizing the value of Debtor’s Assets.

20. Pursuant to Local Rule 6004-1(d), the key terms of the Purchase Agreement and

the proposed Sale Order, are summarized below:4

4 This summary is qualified in its entirety by the Purchase Agreement attached as Exhibit 1 to the

Sale Order. All capitalized terms used in this summary but not otherwise defined herein shall

have the meanings in the Purchase Agreement. To the extent there are any conflicts between this

summary and the Purchase Agreement, the terms of the Purchase Agreement shall govern.


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Purchase Agreement

Provision Summary Description

Local Rule 6004-1(d)

Material Term:

Acquired Asset

Sale and Purchase:

Buyer shall purchase all right, title, and interest of Debtor in and to certain real

property located at 6451, 6553, and 6579 West Colfax Avenue, Lakewood,

Colorado, State of Colorado, more particularly described in Exhibit A.

Purchase Agreement, § 1


Material Term

Assigned Contracts

Sale and Purchase:

Purchase Agreement, § 1; identified in Exhibit B to the Purchase Agreement


Material Term

Purchase Price

Purchase Price:

Buyer shall pay $3.5 million for Debtor’s Assets.


Local Rule 6004-

1(d)(A)

Agreements with

Management

None

Local Rule 6004-

1(d)(B)

Releases

Buyer agrees to accept the Property in “as-is,” “where-is,” and “with all faults”

condition at the time of closing, without any representation or warranty as to its

condition, fitness for any particular purpose, merchantability or any other

warranty.

Buyer releases Seller from any and all claims arising from defects or omissions in

the design or construction of the Property or any other conditions affecting the

Property.

Purchase Agreement, § 6(a)-(c)

Local Rule 6004-

1(d)(C)

Private

Sale/Competitive

Bidding

As described in the Bidding Procedures Motion and Order, the Trustee is

conducting a public, competitive bidding process in order to ensure that the

Debtor’s estate receives the highest and best offer for the assets.

Local Rule 6004-

1(d)(D)

Closing and Other

The closing of the sale of the Assets shall take place no later than fifteen (15)

days following the entry of the Sale Order. However, the parties may, in their sole

discretion and contingent on the Court approving a waiver of applicable Fed. R.

Bankr. P. 6004 time periods, complete the sale of the Property prior to the Sale


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Purchase Agreement


Deadlines Order becoming a final non-appealable order of the Bankruptcy Court, but only to

the extent the Sale Order provides that Buyer is a “Good Faith Purchaser”

pursuant to section 363(m) of the Bankruptcy Code.

Closing shall be conditioned, among other things, on (a) the Court’s entry of its

final Sale Order, which shall be in full force and effect and shall not have been

modified, amended, rescinded, or vacated in any material respect and shall not be

subject to any stay pending appeal and (b) the time for filing a notice of appeal of

the Sale Order under Fed. R. Bankr. P. 8002 shall have expired, subject to the

parties’ ability to waive such condition.

Purchase Agreement, §§ 7, 8

Local Rule 6004-

1(d)(E)

Good Faith Deposit

On or before the third business day after the mutual execution of the Purchase

Agreement, Buyer shall pay to the Escrow Agent a deposit in the amount of

$87,500. Absent termination of the Purchase Agreement, within three business

days of the expiration of the Feasibility Period, Buyer shall pay the Escrow Agent

a deposit of $162,500. If Closing occurs, the Deposit shall be credited against the

amount required to be paid by Buyer at Closing.

If Buyer breaches the Purchase Agreement, Seller may, after written notice of

default to Buyer, declare a forfeiture and retain the Deposit as liquidated damages

for breach of the Agreement.

Purchase Agreement, §§ 2, 17(a)

Local Rule 6004-

1(d)(F)

Interim Arrangements

with Proposed Buyer

None.


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Purchase Agreement


Local Rule 6004-

1(d)(G)

Use of Proceeds

If the Property is sold to an Alternate Buyer, proceeds from the sale will be used

to pay a break-up fee of $125,000 plus expense reimbursement for Buyer’s out of

pockets costs incurred in entering into the Purchase Agreement and performing

diligence on the Property in the amount of $25,000.


The amount owed under the FNB Note shall be satisfied out of the proceeds of the

sale.

Commissions and fees payable to NRC under the Exclusive Brokerage

Agreement, as amended, between NRC and the Trustee shall be paid out of sale

proceeds.

Sale Order ¶¶ 5, 6

Local Rule 6004-

1(d)(H)

Tax Exemption

While the Purchase Agreement contains provisions regarding the allocation of

taxes and tax risks between the parties, the Purchase Agreement does not attempt

to have the sale declared exempt from taxes in any manner.


Local Rule 6004-1(d)(I)

Record Retention

None. The Trustee and Buyer will cooperate to ensure that Buyer obtains the

necessary records to operate the Assets.

Local Rule 6004-1(d)(J)

Sale of Avoidance

Actions

None.

Local Rule 6004-

1(d)(K)

Requested Findings as

to Successor Liability

Purchaser is not a “successor” to the Debtor or its estate by reason of any theory

of law or equity, and the Purchaser shall not assume, nor be deemed to assume, or

in any way be responsible for any liability or obligation of any of the Debtor

and/or its estate with respect to the Assets or otherwise, including, but not limited

to, under any bulk sales law, doctrine or theory of successor liability, or similar

theory or basis of liability except for the assumption of the Assigned Contracts as

expressly provided in the Purchase Agreement.

Sale Order ¶ 8.

Local Rule 6004-

1(d)(L)

Sale Free and Clear of

The Trustee shall request that the Bankruptcy Court enter a Sale Order approving

the sale and transfer and assignment of the Property to Buyer in accordance with

the terms and conditions of the Purchase Agreement, free and clear of all liens,

claims, and encumbrances.


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Purchase Agreement


Unexpired Leases

Purchase Agreement, § 3(c)

Except as otherwise provided for in the Purchase Agreement, the transfer of the

Assets shall vest the Purchaser, or its assignees or designees, with all right, title,

and interest of the Debtor in the Assets pursuant to section 363(f) of the

Bankruptcy Code, free and clear of any and all Interests or adverse claims,

whether arising by statute or otherwise and whether arising before or after the

commencement of this Chapter 11 Case, whether known or unknown, including,

but not limited to, Interests or adverse claims of or asserted by any of the

creditors, vendors, employees, suppliers, or lessors of the Debtor or any other

third party.

Sale Order ¶ 6

Local Rule 6004-

1(d)(M)

Credit Bid

None.

Local Rule 6004-

1(d)(N)

Rule 6004(h)

None.

21. The Trustee believes that the sale of the Debtor’s Assets to Broad Street or other

Successful Bidder is in the best interests of the Debtor’s estate and its creditors. The Trustee

further believes that obtaining the stalking horse bid, marketing Debtor’s Assets on their own

and/or in conjunction with the Adjacent Property with the assistance of NRC, and holding the

Auction on the date specified by the Court will result in the highest or otherwise best

consideration for the Debtor’s Assets.

22. The Trustee has examined the alternatives to a sale of the Debtor’s Assets and has

determined that, in light of the Debtor’s financial situation, and value of the Debtor’s Assets, a

more viable alternative to sale of the Debtor’s Assets does not exist. The Trustee has determined

that the sale of the Debtor’s Assets optimizes value for its estate and creditors.


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23. For the reasons stated above, and in light of the obvious benefits to the estate, the

Trustee has determined, in the exercise of its business judgment, to consummate the proposal

submitted under the Purchase Agreement with Broad Street or, if applicable, another

Successful Bidder in the event that the Trustee receives a higher or otherwise better bid

to the transaction set forth in the Purchase Agreement.

BASIS FOR RELIEF

I. The Sale Should Be Approved as an Exercise of Sound Business Judgment.

24. Section 363(b)(1) of the Bankruptcy Code provides that a debtor, “after notice and

a hearing, may use, sell or lease, other than in the ordinary course of business, property of the

estate.” 11 U.S.C. § 363(b)(1). The sale of a debtor’s assets should be authorized pursuant to

section 363 of the Bankruptcy Code if a sound business purpose exists for doing so. See,

e.g., In re Allen, 607 Fed.Appx. 840 (10th Cir. 2015) (citing In re Caste, Inc., 312 B.R. 426,

428 (Bankr. D. Colo. 2004); In re Martin, 91 F.3d 389, 395 (3d Cir. 1996) (citing In re

Schipper, 933 F.2d 513, 515 (7th Cir. 1991)); In re Abbotts Dairies of Pa., Inc., 788 F.2d

143 (3d Cir. 1986); Stephens Indus., Inc. v. McClung, 789 F.2d 386, 390 (6th Cir. 1986); In re

Lionel Corp., 722 F.2d 1063 (2d Cir. 1983).

25. The Trustee has proposed the sale of Debtor’s Assets after thorough

consideration of all viable alternatives and has concluded that the sale is supported by many sound

business reasons. Debtor’s Assets have been the subject of prior sale attempts and the Trustee

has proposed Bid Procedures designed to maximize the purchase price realized from the sale of

Debtor’s Assets. Further, the Trustee believes the post-petition marketing of Debtor’s Assets up

to the proposed deadline to submit competing bids for the Purchased Assets will provide a

sufficient opportunity to generate any potential overbids and maximize recovery for the Debtor’s

creditors. Specifically, other potential buyers and parties that have expressed interest in the


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acquisition of Debtor’s Assets will be served with this Sale Motion and/or notice thereof.

Consequently, the ultimately successful bid, after being subject to a “market check” in the form

of the Auction, will constitute, in the Trustee’s reasonable business judgment, the highest or

otherwise best offer for the Assets and will provide a greater recovery for its estate than any

available alternative. See, e.g., In re Trans World Airlines, Inc., No. 01-00056, 2001 WL

1820326, at *4 (Bankr. D. Del. 2001) (noting that, while a “§ 363(b)sale transaction does not

require an auction procedure,” “[t]he auction procedure has developed over the years as an

effective means for producing an arm’s length fair value transaction.”).

26. Based on the foregoing, the sale of the Assets is supported by sound business

reasons and is in the best interests of the Debtor and its estate. Accordingly, the Trustee requests

approval under section 363(b) of the Bankruptcy Code of the Sale to the Purchaser or other

successful bidder, as set forth herein.

II. The Sale Has Been Proposed in Good Faith and Without Collusion and the Stalking

Horse Bidder or Successful Bidder Is a “Good-Faith Purchaser.”

27. Section 363(m) of the Bankruptcy Code provides:

The reversal or modification on appeal of an authorization under subsection (b)

or (c) of this section of a sale or lease of Property does not affect the validity of a

sale or lease under such authorization to an entity that purchased or leased

such Property in good faith, whether or not such entity knew of the

pendency of the appeal, unless such authorization and such sale or lease were

stayed pending appeal.

11 U.S.C. § 363(m).

28. Section 363(n) of the Bankruptcy Code, among other things, provides, in turn, that

a trustee may avoid a sale if the sale price was controlled by an agreement among potential

bidders at the sale. See 11 U.S.C. § 363(n). Although the Bankruptcy Code does not define

“good faith,” the Third Circuit in In re Abbotts Dairies of Pennsylvania, Inc., held that:

[t]he requirement that a purchaser act in good faith . . . speaks to the integrity


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of his conduct in the course of the sale proceedings. Typically, the misconduct

that would destroy a purchaser’s good faith status at a judicial sale involves

fraud, collusion between the purchaser and other bidders or the trustee, or an

attempt to take grossly unfair advantage of other bidders.

788 F.2d at 147 (citations omitted).

29. Broad Street, or any other Successful Bidder at the Auction, will be a good faith

purchaser within the meaning of § 363(m) and no circumstances are present that would implicate

§ 363(n) of the Bankruptcy Code.5 First, the consideration to be received by the Trustee is

substantial, fair, and reasonable. Second, the parties entered into the Purchase Agreement in

good faith and after extensive, arm’s-length negotiations, during which all parties were

represented by competent counsel, and any sale agreement with a Successful Bidder will be the

culmination of a competitive bidding and Auction process in which all parties will presumably

be represented by counsel and all negotiations will be conducted on an arm’s-length, good-faith

basis. Third, there is no indication of any “fraud, collusion between the purchaser and other

bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders” or similar

conduct that would cause or permit the Sale or Purchase Agreement to be avoided under section

363(n)of the Bankruptcy Code. And, with respect to potential bidders, the Bidding Procedures

are designed to ensure that no party is able to exert undue influence over the process. Finally,

Broad Street’s offer was evaluated and approved by the Trustee in consultation with its advisors,

and any other bids that the Trustee ultimately determines to be a successful bid will have been

5 The Trustee believes that a finding of good faith within the meaning of section 363(m) of the

Bankruptcy Code will be appropriate for any Successful Bidder at the Auction. Pursuant to the

Bidding Procedures, any Successful Bidder will have had to present a proposal in accordance

with the Bidding Procedures. In addition, the Trustee will not choose as the Successful Bidder or

Backup Bidder (as defined in the Bidding Procedures) any entity whose good faith under section

363(m) of the Bankruptcy Code it reasonably doubts, and will be prepared to present the Court

with sufficient evidence to allow the Court to find that the “good faith” standard of section

363(m)of the Bankruptcy Code has been satisfied.


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evaluated in a similar fashion. Accordingly, the Trustee believes that Broad Street (or another

Successful Bidder arising from the bidding and Auction process, if any) and the Purchase

Agreement (or an approved modified version thereof) should be entitled to the protections of

section 363(m) of the Bankruptcy Code.

III. The Proposed Sale Satisfied the Requirements of Section 363(f) for a Sale Free and

Clear of Liens, Claims, and Interests.

30. 363(f) of the Bankruptcy Code provides:

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 a 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).

31. Section 363(f) is drafted in the disjunctive. Thus, satisfaction of any of the

requirements enumerated therein will suffice to warrant the sale of Debtor’s Assets free and

clear of all of the applicable liens, claims and encumbrances, except with respect to any liens,

claims and encumbrances permitted under the Purchase Agreement. See Citicorp

Homeowners Servs., Inc. v. Elliot, 94 B.R. 343, 345 (E.D. Pa. 1988).

32. Pursuant to Local Rule 6004-1(e), section 363(f)(2) and (3) apply. FNB, which

holds a valid, first-priority perfected liens against the Assets to secure repayment of an

outstanding balance of approximately $2.5 million, has consented, or will have consented, to the


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Sale and the Purchase Price of $3.5 million is greater than the aggregate value of such lien. FNB

will be paid at closing. The Debtor’s schedules show that Stripe A Lot has a second-priority lien

against the Assets to secure repayment of $12,000. The Trustee has not yet been able to

investigate this claim. To the extent its debt is undisputed, Stripe A Lot will be paid at closing.

A title search revealed a deed of trust on the Assets, dated May 24, 2011 in favor of Bokin Im, as

lender, to secure repayment of $120,000. The Trustee has not yet been able to investigate this

claim and the extent to which any amounts are owed Bokin Im. To the extent any amounts owed

Bokin Im are undisputed, Bokin Im will be paid at closing. The Trustee will also attempt to

obtain the consent of Stripe A Lot and Bokin Im to the Sale and, in any event, the purchase price

of $3.5 million exceeds the aggregate value of the known liens on the Assets.

33. The Trustee will serve each known lienholder with a copy of this Motion, its

attachments, and a notice in accordance with Fed. R. Bankr. P. 7004. The Trustee accordingly

requests authority to convey Debtor’s Assets to Broad Street or another Successful Bidder as a

result of the bidding process or Auction, if any, free and clear of all liens, claims, rights,

interests, charges, and encumbrances, with any such liens, claim’s, rights, interests, charges, and

encumbrances to attach to the proceeds of the Sale.

IV. The Assumption and Assignment of Contracts Should Be Approved.

34. As required by the Purchase Agreement, and in order to enhance the value to

the Debtor’s estate, the Trustee requests approval of the potential assumption and assignment of

the unexpired leases that have been identified as Assigned Contracts to Broad Street or another

Successful Bidder.

a. Sound Business Judgment.

35. Section 365 of the Bankruptcy Code authorizes a debtor to assume and/or assign

executory contracts and unexpired leases, subject to the approval of the court, provided that the


17

defaults under such contracts and leases are cured and adequate assurance of future performance

is provided. The Trustee’s decision to assume or reject an executory contract or unexpired lease

must only satisfy the “business judgment rule” and will not be subject to review unless such

decision is clearly an unreasonable exercise of such judgment. See, e.g., Group of Institutional

Investors v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 318 U.S. 523 (1943) (applying

Bankr. Act section 77(b), predecessor to Bankruptcy Code section 365, and rejecting test of

whether executory contract was burdensome in favor of whether rejection is within debtor’s

business judgment); Matter of Talco, Inc., 558 F.2d 1369, 1173 (10th Cir. 1977); In re J.H.

Land & Cattle Co., Inc., 8 B.R. 237, 238 (Bankr. W.D. Okla. 1981); In re Crescent Oil Co., Inc.,

2010 WL 2721878, 3 (Bankr. D. Kan. 2010). A Trustee satisfies the “business judgment” test

when it determines, in good faith, that assumption of an executory contract will benefit the estate

and the unsecured creditors. In re FCX, Inc., 60 B.R. 405, 411 (Bankr. E.D.N.Y. 1986).

36. Pursuant to the Purchase Agreement, Broad Street is responsible for payment

of all cure amounts required to be paid to the counterparties to the Assigned Contracts (“Contract

Counterparties”) under section 365(b)(1) of the Bankruptcy Code.

37. The Assigned Contracts are those contracts or leases that are to be assumed by the

Debtor and assigned to Broad Street or the other Successful Bidder as part of the sale transaction

under the Agreement. The Trustee further requests that the Sale Order provide that the

Assigned Contracts will be assigned to, and remain in full force and effect for the benefit of,

Broad Street or the Successful Bidder, notwithstanding any provisions in the Assigned Contracts,

including those described in sections 365(b)(2) and (f)(1) and (3) of the Bankruptcy Code, that

prohibit such assignment.


18

38. Pursuant to the Bid Procedures Motion, the Trustee proposes that an initial list

(or lists) of Assigned Contracts be served on all counterparties to such contracts and leases no

later than three (3) business days after entry of the Bid Procedures Order.

39. The potential assumption and assignment of the A s s i g n ed Contracts is a

necessary part of the deal that the Trustee struck with the Broad Street (or will strike with any

Successful Purchaser) and is a sound exercise of the Trustee’s business judgment. First, the

Assigned Contracts produce rental income and are essential to inducing the best offer for

Debtor’s Assets. Second, it is unlikely that any purchaser would want to acquire Debtor’s assets

unless the Assigned Contracts are included in the transaction. Third, the Purchase Agreement

provides that the assumption and assignment of the Assigned Contracts is integral to, and

inextricably integrated in, the Sale. Finally, the Assigned Contracts will be assumed and

assigned through the process approved by the Court pursuant to the Bidding Procedures Order

and, thus, will be reviewed by key constituents in this chapter 11 case.

b. Cure Procedures

40. Any defaults under the Assigned Contracts will be cured through the Sale. The

Trustee has or will send the Contract Notices to all Con t rac t Counterparties in connection

with the Court’s approval of the Bid Procedures, thereby notifying such Contract Counterparties

of the potential assumption by the Debtor and assignment to Broad Street or the Successful

Bidder of the Assigned Contracts. The Contract Notices shall set forth any “cure” amounts

owing on each Assigned Contract, according to Debtor’s books and records and, in accordance

with the provisions set forth in the Bid Procedures, shall be the amounts required to be paid

pursuant to section 365(b)(1) of the Bankruptcy Code (“Cure Amounts”). The Bid Procedures

Motion proposes that objections, if any, to either (i) the Cure Amounts or the assumption or

assignment of contracts and leases that are identified as Assigned Contracts or (ii) adequate


19

assurance of future performance be filed on or before the objection deadline to the proposed sale.

Objections to the adequate assurance of future performance of a successful bidder (other than

the Purchaser), may be raised at the Sale Hearing.

41. Cure Amounts disputed by any Contract Counterparty will either be considered by

the Court either at the Sale Hearing or at some later date as may be scheduled by the Court to

determine contested objections regarding Cure Amounts, that have not been resolved in

advance or at the Sale Hearing. With respect to payment of Cure Amounts, Broad Street shall

bear and pay the entire amount of such cure costs.

c. Adequate Assurance of Future Performance.

42. The meaning of “adequate assurance of future performance” for the purpose of

the assumption of executory contracts and unexpired leases pursuant to section 365 of the

Bankruptcy Code depends on the facts and circumstances of each case, but should be given

“practical, pragmatic construction.” See Carlisle Homes, Inc. v. Arrari (In re Carlisle Homes,

Inc.), 103 B.R. 524, 538 (Bankr. D.N.J. 1989); In re Natco Indus., Inc., 54 B.R. 436, 440 (Bankr.

S.D.N.Y. 1985) (adequate assurance of future performance does not mean an absolute assurance

that debtor will thrive and pay rent); In re Bon Ton Rest. & Pastry Shop, Inc., 53 B.R. 789, 803

(Bankr. N.D. Ill. 1985). If necessary, Broad Street or any Successfu l Bidder shall

provide evidence of its ability to provide adequate assurances to Counterparties to the

Assigned Contracts at the Sale Hearing. As required by the Bidding Procedures, the Trustee

will evaluate the financial wherewithal of potential bidders before designating such party as a

Qualified Bidder (e.g., financial credibility, willingness, and ability of the interested party to

perform under the Assigned Contracts) and will demonstrate such financial wherewithal,


20

willingness, and ability to perform under the Assigned Contracts assigned to Broad Street or any

Successful Bidder arising from the Auction. Further, the Assumption Procedures provide the

Court and other interested parties ample opportunity to evaluate and, if necessary, challenge the

ability of Broad Street or any Successful Bidder arising from the Auction to provide adequate

assurance of future performance and object to the assumption of the Assigned Contracts or

proposed cure amounts.

MARKETING COMMISSIONS AND FEES

43. Upon the selection of a Successful Bidder, the Trustee will file a notice detailing

the amount of commissions and fees owed NRC upon closing of the Sale with the Successful

Bidder. Any objections to the payment of such commissions and fees out of sale proceeds shall

be submitted prior to the Sale Hearing and resolved by the Court at that time. Upon resolution of

any objections, the Court shall authorize payment of commissions and fees owed NRC under the

Brokerage Agreement, as amended, upon Closing and out of Sale Proceeds as a reasonable and

necessary administrative expense of the Debtor’s estate.

NOTICE

44. Notice of this Motion and the Sale Motion shall be served on (a) the U.S. Trustee,

(b) counsel for FNB, (c) counsel to Broad Street, (d) state and local taxing authorities, (e) all

parties known to assert a lien against the Assets, (f) parties listed on the Creditor Address

Mailing Matrix, and (g) any other parties entitled to notice under Fed. R. Bankr. P. 2002.

CONCLUSION

WHEREFORE, the Trustee respectfully requests that this Court grant this Sale Motion by

entering the Sale Order the attached proposed order: (i) approving the Purchase Agreement and

the sale of substantially all of the Debtor’s assets; (ii) authorizing the sale of the Debtor’s assets

free and clear of all liens, claims, rights, encumbrances and other interests pursuant to


21

Bankruptcy Code Sections 363(b), 363(f) and 363(m); (iii) assuming and assigning certain

unexpired leases pursuant to Bankruptcy Code Section 365; and, (iv) granting related relief.

Dated: April 4, 2018

/s/ Jeffrey A Weinman

Chapter 11 Trustee

DAVIS GRAHAM & STUBBS LLP

By: /s/ Christopher Richardson

Christopher L. Richardson, Reg. No. 13437

Kyler K. Burgi, Reg. No. 46479

Davis Graham & Stubbs LLP

Denver, Colorado 80202

Telephone: 303.892.9400

Facsimile: 303.893.1379

Attorneys for Chapter 11 Trustee


4448764.8

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO

In re ) Case No. 16-14761 MER ) Y&K SUN, INC. ) Chapter 11 ) Debtor. )

ORDER (A) APPROVING PURCHASE AGREEMENT AND AUTHORIZING THE SALE OF SUBSTANTIALLY ALL OF THE DEBTOR’S ASSETS; (B) AUTHORIZING

THE SALE OF ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, RIGHTS, ENCUMBRANCES AND OTHER INTERESTS PURSUANT TO BANKRUPTCY CODE

SECTIONS 363(b), 363(f) and 363(m); (C) ASSUMING AND ASSIGNING CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES PURSUANT TO

BANKRUPTCY CODE SECTION 365; AND (D) GRANTING RELATED RELIEF

Upon the motion (the “Sale Motion”)1 of the above-captioned debtor and debtor in

possession (“Debtor”), for entry of an order (the “Sale Order”): (a) approving that certain

Purchase Agreement (as amended from time to time, the “Purchase Agreement”), a copy

substantially in the form of which is attached hereto as Exhibit 1, dated as of April 2, 2018, by

and between the Trustee and Broad Street Acquisitions, LLC (the “Purchaser”), (b) authorizing

and approving the sale (the “Sale”) of Debtor’s Assets free and clear of all liens, liabilities,

claims, interests, and other encumbrances as set forth in the Purchase Agreement, (c)

authorizing the Trustee to assume and assign the contracts set forth on Exhibit 2 attached hereto

(the “Assigned Contracts”) to the Purchaser as set forth in the Purchase Agreement, and (d)

granting certain related relief; and this Court, in furtherance of the Motion, having entered an

order on ___________, 2018 at [Docket No. ____] (the “Bidding Procedures Order”)

approving, among other things, the proposed Bidding Procedures appended to the Bidding

Procedures Order, the notice of the Sale, and procedures for determining and fixing cure costs

1 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Sale Motion or the Purchase Agreement (as defined herein), as applicable.

Case:16-14761-MER Doc#:309-1 Filed:04/04/18 Entered:04/04/18 14:07:43 Page1 of 35

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to be paid in respect of Assigned Contracts; and the Trustee having determined, after an

extensive marketing process, that the Purchaser has submitted the highest and best bid for the

Assets; and upon adequate and sufficient notice of the Sale Motion, the Bidding Procedures, the

Purchase Agreement, and all other related transactions contemplated thereunder and in this Sale

Order having been given in the manner directed by the Court in the Bidding Procedures Order;

and all interested parties having been afforded an opportunity to be heard with respect to the

Sale Motion and all relief related thereto; and the Court having reviewed and considered (i) the

Sale Motion and all relief related thereto and (ii) the objections thereto; and the Court having

heard and considered statements of counsel and the evidence presented in support of the relief

requested by the Trustee in the Sale Motion at a hearing before the Court on ________, 2018

(the “Sale Hearing”); and the Court having jurisdiction over this matter; and it appearing that

the legal and factual bases set forth in the Sale Motion and at the Sale Hearing establish just

cause for the relief granted herein; and it appearing that the relief requested in the Sale Motion

is in the best interests of the Debtor, its estate, its creditors, and all other parties in interest; and

upon the record of the Sale Hearing and all other pleadings and proceedings in this chapter 11

case, including the Sale Motion; and after due deliberation thereon; and good and sufficient

cause appearing therefor,


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THE COURT HEREBY FINDS AND DETERMINES THAT:2

A. This Court has jurisdiction to hear and determine the Sale Motion pursuant to 28

U.S.C. §§ 157(b)(1) and 1334(a). This is a core proceeding pursuant to 28 U.S.C. §

157(b)(2)(A), (N) and (O). Venue is proper in this District and in the Court pursuant to 28

U.S.C. §§ 1408 and 1409.

B. The predicates for the relief requested in the Sale Motion are sections 105(a), 363,

and 365 of the Bankruptcy Code and Bankruptcy Rules 2002(a)(2), 6004, 6006, 9007, and 9014.

C. This Sale Order constitutes a final order within the meaning of 28 U.S.C.

§ 158(a). and to any extent necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal

Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, the Court expressly

finds that there is no just reason for delay in the implementation of this Sale Order, waives any

stay and expressly directs entry of judgment as set forth herein., subject to Bankruptcy Rules

6004(h) and 6006(d).

D. Proper, timely, adequate and sufficient notice of the Sale Motion and the relief

requested therein, the Auction, the Sale Hearing, the assumption and assignment of the Assigned

Contracts and related transactions described in the Purchase Agreement has been provided in

accordance with sections 102(1), 363 and 365 of the Bankruptcy Code and Bankruptcy Rules

2002, 6004 and 6006 and in compliance with the Bid Procedures Order, and such notice was

good, sufficient, and appropriate under the particular circumstances. No other or further notice

2 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. All findings of fact and conclusions of law announced by the Court at the Sale Hearing in relation to the Sale Motion are hereby incorporated herein to the extent not inconsistent herewith. To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such.


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of the Sale Motion, the relief requested therein and all matters relating thereto, the Auction, the

Sale Hearing, the assumption and assignment of the Assigned Contracts and related transactions

in the Purchase Agreement or entry of this Sale Order is or shall be required. Creditors, parties-

in-interest and other entities have been afforded a reasonable opportunity to object to the Sale. A

reasonable opportunity to object or be heard with respect to the Sale Motion and the relief

requested therein has been afforded to all interested persons and entities.

E. The Trustee has complied in all respects with Local Bankruptcy Rule 6004-1 of

the Local Rules of Bankruptcy Practice and Procedures of the United States Bankruptcy Court

for the District of Colorado (the “Local Rules”), establishing guidelines for the conduct of asset

sales.

F. It is in the best interests of the Debtor and its estate to sell the Purchased Assets

and assume and assign the Assigned Contracts within the time constraints set forth in the Sale

Motion and the Purchase Agreement. The Sale must be approved and consummated promptly as

provided herein in order to maximize the value of the Assets for the Debtor’s estate.

G. As demonstrated by (i) the testimony and/or other evidence proffered or adduced

at the Sale Hearing and (ii) the representations of counsel made on the record at the Sale

Hearing, the Trustee has marketed the Assets and conducted the sale process in compliance with

the Bid Procedures Order.

H. The marketing and bidding processes implemented by the Trustee, as set forth in

the Sale Motion, the Bid Procedures Order, and supporting documentation filed in connection

therewith, were fair, proper, complete, provided an adequate opportunity for interested parties to

submit improved bids, and were reasonably calculated to result in the best value received for the

Assets.


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I. The Trustee has full corporate power and authority to consummate the Sale

pursuant to the Purchase Agreement, and all other documents contemplated thereby, and no

consents or approvals, other than those expressly provided for in the Purchase Agreement, are

required for the Trustee to consummate the Sale.

J. The Trustee has articulated good, sufficient, and sound business reasons for

entering into the Purchase Agreement and consummating the Sale outside a plan of

reorganization. It is a reasonable exercise of the Trustee’s business judgment to consummate the

Sale.

K. Approval of the Purchase Agreement and the consummation of the Sale are in the

best interests of the Debtor, its estate, its creditors and other parties-in-interest under applicable

bankruptcy and nonbankruptcy law.

L. The Purchaser’s bid for the Assets, as memorialized in the Purchase Agreement,

is the highest or otherwise best offer received for the Assets and will provide a greater recovery

for the Debtor’s creditors than would be provided by any other practical available alternative.

The Purchase Price to be paid by the Purchaser pursuant to the Purchase Agreement is fair

consideration and constitutes reasonably equivalent value under applicable bankruptcy and

nonbankruptcy law for the Assets, as determined by the marketing and auction process.

M. The Agreement was negotiated, proposed and entered into by the Trustee and the

Purchaser without collusion, in good faith and from arm’s-length bargaining positions. Broad

Street is not an “insider” of the Debtor, as that term is defined in section 101(31) of the

Bankruptcy Code. Neither the Trustee nor Purchaser have engaged in any conduct that would

cause or permit the Purchase Agreement to be avoided or be the basis for an award for monetary

damages under Bankruptcy Code section 363(n). Specifically, the Purchaser has not acted in a


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collusive manner with any person and the purchase price was not controlled by any agreement

among bidders.

N. All of the actions taken by the Purchaser and its representatives, employees,

counsel and other professionals in connection with the Purchase Agreement, the auction process

and this proceeding have been taken in good faith. The Purchaser is a good faith purchaser of

the Assets within the meaning of Bankruptcy Code section 363(m) and is entitled to all of the

protections afforded thereby. The Purchaser proceeded in good faith in all respects in connection

with the Sale in that: (i) the Purchaser in no way induced or caused the chapter 11 filing of the

Debtor; (ii) the Purchaser recognized that the Trustee was free to deal with any other party

interested in acquiring the Assets; (iii) the Purchaser complied with the provisions in the Bid

Procedures Order; (iv) the Purchaser agreed to subject its bid to the competitive bid procedures

set forth in the Bid Procedures Order; and (v) all payments to be made by the Purchaser pursuant

to the Purchase Agreement in connection with the Sale have been disclosed.

O. The Assets constitute property of the Debtor’s estate. The transfer of the Assets

to the Purchaser will be a legal, valid, and effective transfer of the Purchased Assets, and will

vest the Purchaser with all right, title, and interest of the Debtor in and to the Purchased Assets

free and clear of all liens, claims, interests, obligations, rights and encumbrances, except as

otherwise specifically provided in the Purchase Agreement. Except as specifically provided in

the Purchase Agreement (including but not limited to liabilities arising under the Assigned

Contracts arising on and after the Closing Date) or as otherwise set forth in this Sale Order, the

Purchaser shall have no liability for any claims against the Debtor or its estate or any liabilities

or obligations of the Debtor or its estate. Accordingly, the Trustee may sell the Assets free and

clear of all liens, encumbrances, pledges, mortgages, deeds of trust, security interests, claims,


-7-

leases, charges, options, rights of first refusal, rights of first offer, hypothecations,

encroachments, retentions of title, conditional sale arrangements, restrictive covenants,

easements, servitudes, proxies, voting trusts or agreements, and transfer restrictions under any

agreement in each case, whether known or unknown, choate or inchoate, filed or unfiled,

scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or

unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated,

matured or unmatured, material or non-material, disputed or undisputed (collectively, the

“Interests”) and adverse claims, except as provided in the Purchase Agreement or in this Sale

Order, because one or more of the standards set forth in sections 363(f)(1)–(5) of the Bankruptcy

Code has been satisfied with regard to each such Interest or adverse claim. Those non-Debtor

parties with Interests or adverse claims in or with respect to the Assets who did not object, or

who withdrew their objections, to the Sale or the Sale Motion are deemed to have consented to

the sale of the Assets free and clear of those non-Debtor parties’ Interests or adverse claims in

the Assets pursuant to section 363(f) of the Bankruptcy Code. Those holders of Interests or

adverse claims in any Assets who did object fall within one or more of the other subsections of

section 363(f) of the Bankruptcy Code and are adequately protected by having their Interests or

adverse claims, if any, attach to the proceeds derived from the Sale. The Purchaser would not

have entered into the Purchase Agreement, and would not consummate the Sale, thus adversely

affecting the Debtor, its estate, and its creditors, if the sale of the Assets to the Purchaser, and the

assumption and assignment of the Assigned Contracts to the Purchaser were not free and clear of

all Interests or adverse claims of any kind or nature whatsoever, or if the Purchaser would, or in

the future could, be liable for any of the Interests or adverse claims.

P. The assumption and assignment of the Assigned Contracts pursuant to the terms


-8-

of the Assignment and Assumption Procedures and this Sale Order is integral to the Sale and is

in the best interests of the Debtor and its estate, creditors and all other parties-in-interest, and

represents the reasonable exercise of sound and prudent business judgment by the Trustee. The

Purchaser provided adequate assurance of its future performance under the Assigned Contracts

within the meaning of sections 365(b)(1)(c) and (f)(2)(B) of the Bankruptcy Code. Any

counterparty to any of the Assigned Contracts that has not objected to the assumption and

assignment to the Purchaser of the applicable contract or lease, or that has withdrawn its

objection, is deemed to have consented to the assumption and assignment of such Assigned

Contracts.

Q. The transfer of the Assets (including any individual elements of the Sale) to the

Purchaser (i) does not constitute any avoidable transfers under the Bankruptcy Code or under

applicable bankruptcy or non-bankruptcy law, and (ii) except as otherwise set forth in the

Purchase Agreement, does not, and will not, subject the Purchaser to any liability whatsoever

with respect to the operation of the Debtor’s business prior to the closing of the Sale or by reason

of such transfer under the laws of the United States, any state, territory, or possession thereof, or

the District of Columbia, based, in whole or in part, directly or indirectly, on any theory of law or

equity including, without limitation, any laws affecting antitrust, successor, transferee or

vicarious liability.

R. In satisfaction of sections 363(d) and 541(f) of the Bankruptcy Code, the transfer

of property as contemplated by the Sale complies with applicable non-bankruptcy law governing

such a transfer.

S. The legal and factual bases set forth in the Sale Motion and at the Sale Hearing

establish just cause for the relief granted herein.


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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Sale Motion. The Sale Motion is hereby granted as provided herein.

2. Objections. All objections to the Sale Motion and the relief requested therein that

have not been withdrawn, waived or settled, and all reservations of rights included in such

objections are hereby overruled on the merits and denied.

3. Sale Approval. The Sale and all of the terms and conditions and transactions

contemplated by the Purchase Agreement are hereby authorized and approved pursuant to

sections 363(b), 363(f) and 365(a) of the Bankruptcy Code. Pursuant to section 363(b) of the

Bankruptcy Code, the Trustee is authorized to consummate the Sale pursuant to and in

accordance with the terms and conditions of the Purchase Agreement. The Trustee is authorized

to execute and deliver, and empowered to perform under, consummate, and implement the

Purchase Agreement, together with all additional instruments and documents that may be

reasonably necessary or desirable to implement the Sale, and to effectuate the provisions of this

Sale Order and the transactions approved hereby, and to take all further actions as may be

required of the Trustee under the Purchase Agreement or requested by the Purchaser for the

purpose of assigning, transferring, granting, conveying and conferring to the Purchaser, or its

assignees or designees, or reducing to possession, the Purchased Assets and the Assigned

Contracts, or as may be necessary or appropriate to the performance of the obligations as

contemplated by the Purchase Agreement. The failure to specifically include any particular

provision of the Purchase Agreement in this Sale Order shall not diminish or impair the efficacy

of such provision, it being the intent of this Court that the Purchase Agreement and each and

every provision, term and condition thereof be authorized and approved in its entirety.

4. Transfer of the Purchased Assets. As of the closing date under the Purchase

Agreement (the “Closing”), the Sale effects a legal, valid, enforceable and effective sale and


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transfer of the Assets to the Purchaser, and shall vest the Purchaser with all right, title, and

interest of the Debtor in and to the Purchased Assets.

5. Marketing Commissions and Fees. The commissions and fees owed NRC under

the Brokerage Agreement, as amended, are reasonable and necessary administrative expenses of

the Debtor’s estate. The Trustee is authorized to pay commissions and fees owed NRC at or

after the Closing.

6. Free and Clear. Except as otherwise provided for in the Purchase Agreement, the

transfer of the Assets shall vest the Purchaser, or its assignees or designees, with all right, title,

and interest of the Debtor in the Assets pursuant to section 363(f) of the Bankruptcy Code, free

and clear of any and all Interests or adverse claims, whether arising by statute or otherwise and

whether arising before or after the commencement of this Chapter 11 Case, whether known or

unknown, including, but not limited to, Interests or adverse claims of or asserted by any of the

creditors, vendors, employees, suppliers, or lessors of the Debtor or any other third party. Any

and all such Interests or adverse claims shall attach to the net proceeds of the Sale, with the same

priority, validity, force, and effect as they now have against the Assets, it being understood that

at the Closing of the Sale, proceeds from the Sale shall be used to pay the First National Bank

debt and any other lienholders with undisputed debts in full. Except as set forth in the Purchase

Agreement, the Sale will not subject the Purchaser to any liability for any Interests or adverse

claims whatsoever, including, without limitation, statutory claims, that any of the foregoing

parties or any other third party may have against the Debtor with respect to the operation of the

Debtor’s business prior to the closing of the Sale. All persons and entities asserting or holding

any Interests or adverse claims in or with respect to the Assets (whether legal or equitable,

secured or unsecured, matured or unmatured, contingent or non-contingent, senior or


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subordinated), howsoever arising, including, but not limited to, all debt security holders, equity

security holders, governmental, tax, and regulatory authorities, lenders, employees, authors,

investors, trade and other creditors, shall be forever barred, estopped, and permanently enjoined

from asserting, prosecuting or otherwise pursuing such Interests or adverse claims against the

Purchaser and/or successors, their respective properties or Assets. Subject to the Interests or

adverse claims attaching to the proceeds of the Sale, this Sale Order shall be effective as a

determination that, as of the Closing, all Interests or adverse claims of any kind or nature

whatsoever existing against the Assets prior to the Closing have been unconditionally released,

discharged and terminated as to the Purchased Assets, and that the conveyances described herein

have been effected.

7. Surrender of the Purchased Assets. All entities who are presently, or who as of

the Closing may be, in possession of some or all of the Assets (except those entities with a

contractual right to occupy or use the Assets pursuant to the Assigned Contracts) hereby are

directed to surrender possession of the Assets to the Purchaser as of the Closing. On the Closing

and subject to the Interests or adverse claims attaching to the proceeds of the Sale as provided for

in this Sale Order, each of the Debtor’s creditors is authorized to execute such documents and

take all other actions as may be reasonably necessary to release its Interests or adverse claims in

the Assets, if any, as such Interests or adverse claims may have been recorded or may otherwise

exist.

8. No Successor Liability. Purchaser is not a “successor” to the Debtor or its estate

by reason of any theory of law or equity, and the Purchaser shall not assume, nor be deemed to

assume, or in any way be responsible for any liability or obligation of any of the Debtor and/or

its estate with respect to the Assets or otherwise, including, but not limited to, under any bulk


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sales law, doctrine or theory of successor liability, or similar theory or basis of liability except

for the assumption of the Assigned Contracts as expressly provided in the Purchase Agreement.

Except to the extent the Purchaser assumes the Assigned Contracts and liabilities pursuant to the

Purchase Agreement, neither the purchase of the Assets by the Purchaser or any of its affiliates

nor the fact that the Purchaser or any of its affiliates are using any of the Purchased Assets

previously operated by the Debtor will cause the Purchaser or any of its affiliates to be deemed a

successor in any respect to the Debtor’s business or incur any liability derived therefrom within

the meaning of any foreign, federal, state or local revenue, pension, the Employee Retirement

Income Security Act of 1974 (ERISA), tax, labor, employment, environmental, or other law, rule

or regulation (including, without limitation, filing requirements under any such laws, rules or

regulations), or under any products liability law or doctrine with respect to the Debtor’s liability

under such law, rule or regulation or doctrine.

9. Bulk Sale Laws Inapplicable. No bulk sale law or any similar law of any state or

other jurisdiction shall apply in any way to the Sale and the transactions contemplated by the

Purchase Agreement.

10. Good Faith. The Sale has been undertaken by the Trustee and the Purchaser at

arm’s-length, without collusion. The Purchaser will acquire the Purchased Assets pursuant to the

Purchase Agreement and other documents necessary to effect the Sale in good faith under section

363(m) of the Bankruptcy Code and the Purchaser, or its assignees or designees, shall be entitled

to all of the protections in accordance therewith. The consideration provided by the Purchaser

for the Assets under the Purchase Agreement is fair and reasonable, and neither the Sale nor any

element of the Sale, may be avoided or be the basis for an award of monetary damages under

section 363(n) of the Bankruptcy Code. The sale of the Assets and the consideration provided by


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the Purchaser shall be deemed for all purposes to constitute a transfer for reasonably equivalent

value and fair consideration under the Bankruptcy Code and any other applicable law.

11. Required Permits. To the extent authorized under applicable non-bankruptcy law,

the Trustee is hereby authorized to assign all state and federal licenses and permits used in

connection with the Purchased Assets to the Purchaser in accordance with the terms of the

Purchase Agreement.

12. Assumption and Assignment of Assigned Contracts. Pursuant to section 365(b),

(c) and (f) of the Bankruptcy Code, the Trustee is authorized to assume and assign the Assigned

Contracts as more fully set out in Exhibit B to the Purchase Agreement (appended as Exhibit 1 to

this Order), which is attached hereto designated for assignment to the Purchaser pursuant to the

Purchase Agreement, subject to the Assignment and Assumption Procedures approved in the Bid

Procedures Order. In accordance with sections 365(b)(2) and (f) of the Bankruptcy Code, upon

transfer of the Assigned Contracts to the Purchaser, (i) the Purchaser shall have all of the rights

of the Trustee thereunder and each provision of such Assigned Contracts shall remain in full

force and effect for the benefit of the Purchaser notwithstanding any provision in any such

contract, lease, or in applicable law that prohibits, restricts or limits in any way such assignment

or transfer, and (ii) none of the Assigned Contracts may be terminated, or the rights of any party

modified in any respect, including pursuant to any “change of control” clause, by any other party

thereto as a result of the Sale.

13. Exercise of Renewal Options. All options to renew applicable to the Assigned

Contracts that have not expired and can be exercised as of the date of this Sale Order have been

validly exercised. All rights are reserved as to future options to renew the Assigned Contracts.


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14. Assignment Shall Not Constitute a Default. The assignment by the Trustee of

Assigned Contracts to the Purchaser shall not constitute a default under any of the Assigned

Contracts. Any provisions in any Assigned Contracts that prohibit or condition the assignment

of such Assigned Contracts or allows the party to such Assigned Contracts to terminate,

recapture, impose any penalty, condition on renewal or extension or modify any term or

condition upon the assignment of such Assigned Contracts constitute unenforceable anti-

assignment provisions that are void and of no force and effect. All other requirements and

conditions under sections 363 and 365 of the Bankruptcy Code for the assumption by the Trustee

and assignment to the Purchaser of the Assigned Contracts have been satisfied.

15. No Assignment Fees. There shall be no assignment fees, increases, rent-

acceleration, or any other fees charged to the Purchaser or the Trustee as a result of the

assumption and assignment of the Assigned Contracts.

16. Payment of Undisputed Cure Amounts. On or as promptly after the Closing as is

practical, the Cure Amounts to which no objections have been filed, or to which the Purchaser,

the Trustee, and an applicable non-Debtor contract party have agreed as to the allowed Cure

Amount (collectively, the “Undisputed Cure Amounts”), shall be paid pursuant to the Purchase

Agreement. On or as promptly after the determination by the Court of any disputed Cure

Amounts as is reasonably practical (collectively, the “Disputed Cure Amounts” and together

with the Undisputed Cure Amounts, the “Cure Amounts”), shall be paid pursuant to the Purchase

Agreement.

17. Cure Payments. The payment of the Undisputed Cure Amounts and the Disputed

Cure Amounts (i) shall be deemed to discharge the Trustee’s obligation to cure any defaults

under the Assigned Contracts under section 365 of the Bankruptcy Code; (ii) shall effect a cure


-15-

of all defaults existing as of the date that such Assigned Contracts are assumed as required by

section 365 of the Bankruptcy Code; and (iii) compensate, or provide adequate assurance of

prompt compensation to any non-debtor party to any of the Assigned Contracts for any actual

pecuniary loss resulting from any default under any of the Assigned Contracts.

18. Cooperation by Counterparties. All counterparties to the Assigned Contracts shall

cooperate and expeditiously execute and deliver, upon the reasonable requests of a Purchaser,

and shall not charge such Purchaser for, any instruments, applications, consents, or other

documents which may be required or requested by any public or quasi-public authority or other

party or entity to effectuate the applicable transfers in connection with the Sale.

19. Modifications. The Agreement and any related agreements, documents, or other

instruments may be modified, amended, or supplemented by the parties thereto, in writing signed

by both parties, and in accordance with the terms thereof, without further order of this Court, to

the extent that any such modification, amendment, or supplement is not material.

20. Binding Order. This Sale Order and the Purchase Agreement shall be binding

upon and govern the acts of all persons and entities, including, without limitation, the Debtor, its

estate, members, managers and shareholders of the Debtor, all creditors of the Debtor (whether

known or unknown), the Purchaser, all interested parties, and their respective successors and

permitted assigns, including, without limitation, any trustee appointed in a Chapter 7 case if this

case is converted from Chapter 11 and all non-Debtor counterparties identified in Annex 3 and

all other non-Debtor parties asserting any Interests or adverse claims in the Purchased Assets.

21. Non-Severability. The provisions of this Sale Order are non-severable and

mutually dependent.


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22. Successful Bidder’s Failure To Close. In the event that the Successful Bidder

fails to close under the Purchase Agreement, the Trustee is authorized to proceed to sell the

Purchased Assets to a designated Backup Bidder in accordance with the Bid Procedures Order

and Bid Procedures. In such circumstance, the Trustee shall submit a revised proposed Sale

Order and Purchase Agreement with the applicable Backup Bidder.

23. Retention of Jurisdiction. This Court shall retain jurisdiction on all matters

pertaining to the relief granted herein, including to interpret, implement, and enforce the terms

and provisions of this Sale Order and the Purchase Agreement, all amendments thereto, any

waivers and consents thereunder, and of each of the agreements executed in connection therewith

in all respects, including, but not limited to, retaining jurisdiction to adjudicate any dispute

relating to the Sale or the proceeds thereof, the assumption, assignment and cure of any of the

Assigned Contracts, to compel delivery of the Assets to the Purchaser or the Purchaser’s

assignees or designees, and to protect the Purchaser or the Purchaser’s assignees or designees

against any Interests or adverse claims against or in the Assets.

Dated: _____________, 2018.

BY THE COURT: Honorable Michael E. Romero United States Bankruptcy Judge


Exhibit 1

Stalking Horse Bidder Purchase Agreement


PURCHASE' AGREEMENT

This Purchase Agreement ("Agreement") is made and entered into this 2"d day of April, 2018 (the

"Effective Date"), by and between Jeffrey A. Weinman, not individually, but solely in his capacity as

Chapter 11 Trustee for Y&K Sun, Inc. ("Seller"), and Broad Street Acquisitions, LLC, a Maryland

limited liability company ("Bauer").

RECITALS

A. On May 12, 2016, Y&K Sun, Inc. ("Debtor") filed a voluntary petition for relief, Case No. 16-

14761-MER ("Bankruntcv Case"), which is currently pending in the United States Bankruptcy

Court for the District of Colorado ("Bankruptcy CourY').

B. By order entered October 18, 2017, Bankruptcy Court ordered the appointment of Seller as

Chapter 11 Trustee and, on October 23, 2017, the Office of the United States Trustee filed its

application for approval of the appointment of the Chapter 11 Trustee, which application was

approved October 25, 2017.

C. Upon the terms and subject to the conditions contained in this Agreement, and. as authorized

under sections 363 and 365 of the Bankruptcy Code, Seller wishes to sell to Buyer, and Buyer

wishes to purchase from Seller, all right, title, and interest in the Property (as defined below).

AGREEMENT

In consideration of the mutual-covenants and agreements hereinafter set forth and for other good and

valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto

agree as follows:

1. Sale and Purchase. Pursuant to this Agreement, Seller shall sell and Buyer shall purchase all of

Seller's right, title, and interest in and to that certain real property located at 6451, 6553, and

6579 West Colfax Avenue, Lakewood, Colorado, State of Colorado, as more particularly

described on Exhibit A attached hereto ("Pro e "). Buyer shall also assume the unexpired

leases described in Exhibit B attached hereto ("Assigned Contracts"), with Buyer responsible

for any cure costs associated with such Assigned Contracts.

2. Purchase Price; Deposit and Closin~Date. The purchase price for the Property shall be Three

Million Five Hundred Thousand Dollars ($3,500,000.00) (the "Purchase Price"). The sum of

Eighty Seven Thousand five Hundred and 00/100 Dollars ($87,500.00) ("Initial Deaosit") shall

be paid by Buyer in good funds into an interest-bearing escrow account ("Escrow") on or before

the third (3rd) business day after the mutual execution hereof and held by Stewart Title, 55.

Madison Street, Suite 400, Denver CO 80206, Attn: Suzanne Killmer ("Title Comaanv").

Absent Buyer's termination of this Agreement in accordance with Section 11 or Section 13

below, within three (3) business days of the expiration of the Feasibility Period, as defined below,

Buyer shall deposit into Escrow with the Title Company, the additional sum of One Hundred

Sixty Two Thousand Five Hundred and 00/100 Dollars ($162,500.00) ("Additional Deaosit" and

collectively with the Initial Deposit, the "Deposit"). At Closing, Buyer shall deposit into Escrow

by wire transfer or certified funds the remainder of the Purchase Price, net of all prorations and

adjustments as provided "in this Agreement.

4449921.5


3. Bankruptcy Matters.

a. Bid Procedures Order. Seller plans tb conduct a competitive sale process and solicit bidsfor the sale and purchase of the Property according to certain pre-defined procedures("Bid Procedures") and shall seek and an Order of the Bankruptcy Court approving andauthorizing the Bid Procedures ("Bid Procedures Order"). Upon entry of the BidProcedures Order, Seller shall solicit bids and, subject to the Bid Procedures, hold apublic auction ("Auction Process").

b. Buyer's Protections. In conjunction with its requests for entry of the Bid ProceduresOrder, Seller shall seek approval of Buyer as a Stalking Horse Bidder and shall seekauthorization from the Bankruptcy Court to grant Buyer the following protection's,defined below: (a) Break-Up Fee and (b) Expense Reimbursement.

c. Sale Order. Seller shall seek an entry of an Order of the Bankruptcy Court, in a formacceptable to Buyer, issued pursuant to section 363 and 365 of the Bankruptcy Code,authorizing and approving, among other things, (a) the sale and transfer and assignmentof the Property to the Buyer in accordance with the terms and conditions of thisAgreement, free and clear of all liens, claims, and encumbrances, (b) the assumption andassignment of the Assigned Contracts in connection herewith, and (c) that Buyer is a"good faith" purchaser entitled to the protections of section 363(m) of the BankruptcyCode ("Sale Order").

d. Auction Process. The Auction Process shall proceed in accordance with the approvedBid Procedures.' Bidders will he required to become a qualified bidder (" ualifiedBidder") and each bid must meet additional requirements in order to submit a qualifiedbid ("Oualitied Bid"), including among other provisions, that a Qualified Bidder has thefinancial ability to close the sale transaction in a timely manner and that such QualifiedBid does not contain any financial contingencies for. performance by the QualifiedBidder. Each Qualified Bid for the Property must, among other things, meet Seller'sreserve amount of $3,800,000.00 ("Reserve Amount'). [n the event Seller selects aQualified Bid at the end of the Auction Process, such bidder shall become the successfulbidder ("Successful Bidder") and its bid the successful bid ("Successful Bid").

e. Buver's Participation in Auction Process.

(i) Qualified Bidder. Buyer shall participate in the Auction Process. So long asBuyer is not in default of this Agreement beyond any applicable cure period,Seller agrees that Buyer shall be automatically considered a Qualified Bidder;provided, however, that any bid submitted by Buyer during the Auction Arocessmust comply with the Bidding Procedures' requirements for a Qualified Bid tothe extent such additional bid increases the financial commitment of the Buyerbeyond the amount of the Purchase Price hereunder. Notwithstanding anythingcontained herein to the contrary, during the Auction Process, Buyer shall not berequired to bid an amount greater than the Purchase Price under this Agreement.

In the event of a conflict between the following description of the Bidding Procedures and the Bidding Proceduresthemselves, the Bidding Procedures control.

2


(ii) Back Up Bidder. Buyer agrees to serve and Seller shall automatically designateBuyer as a backup bidder ("Backup Bidder") during the Auction Process shouldthe Seller enter into an alternative transaction with another Qualifted Bidder (the"Alternate Buver") that represents a higher and better offer than Buyer's.Buyer's backup bid ("Backup Bid") shall be on the terms set forth in thisAgreement or any higher offer presented by Buyer that still is less than the offeror offers submitted by one or more Qualified Bidders and results in the Sellerentering into a higher Alternative Transaction. If tl~e Alternate Buyer fails toconsummate the approved transaction contemplated by its Successful Bid, thenSeller may select a Backup Bidder as the Successful Bidder. Buyer herebyagrees that if it is selected as the Backup Bidder that its Backup Bid shall remainopen and irrevocable (except as set forth in this Agreement) until the Closing ofthe sale of the Property to a Successful Bidder. Buyer's Deposit shall be held inescrow until Closing of the sale of the Property to a Successful Bidder or theClosing of the sale of the Property to Buyer pursuant to the terms of thisAgreement.

Compliance.

(i) Assigned Contracts. Seller shall move to assume and assign to Buyer theAssigned Contracts that are executory contracts capable of being assumed andassigned pursuant to section 365 of the Bankruptcy Code and shall provide noticethereof to (a) all counterparties to such contracts, (b) any other persons thatBuyer reasonably requests, and (c) any other person as may be required byapplicable Bankruptcy Rules and any applicable local rules of the BankruptcyCourt.

(ii) Approval. This Agreement and the transactions contemplated hereby arecontingent upon and subject to approval cif the Bankruptcy Court through itsentry of a Bid Procedures Order and a Sale Order. Seller shall promptly file aMotion for Entry of an Order (A) Approving Bid Procedures for the Sale ofSubstantially All of Debtor's Assets; (B) Approving Bid Protections; (C)Approving Amendment to Exclusive Brokerage Agreement; (D) Scheduling aSale Hearing; (E) Approving the Form and Manner of Notice; (F) ApprovingProcedures for the Assumption and Assignment of Certain Executory Contractsand Unexpired Leases; and (G) Granting Related Relief to obtain Court approvalof the contemplated Bidding Procedures and Breakup Fee and ExpenseReimbursement protections for the benefit of Buyer. In the event that theBankruptcy Court does not (1) enter the Bid Procedures Order approving theBreak-Up Fee and Reimbursement, as defined below, or (2) enter the Sale Orderin accordance with Section 8.a below, this Agreement shall terminate, theDeposit shall be returned to Buyer and the parties shall be relieved of allobligations hereunder except such obligations as expressly survive terminationpursuant to this Agreement.

Auction ContingencX. Buyer acknowledges that its right to purchase the Property pursuant to theterms hereof is contingent upon Seller not closing on the sale of the Property at a higher purchaseprice with a Successful Bidder in the Auction Process at a purchase price that exceeds theReserve Amount or any subsequent Qualified Bid higher submitted by Buyer at the Auction. Ifthe Property is sold to an Alternate Buyer at a purchase price at or higher than the ReserveAmount (before reductions for brokerage fees, pro-rated taxes and other standard reductions) as a


result of the Auction Process, then upon the Closing of such sale, this Agreement shall terminate(other than Buyer's indemnification obligations .pursuant to Section 14 below), the Deposit willbe returned to Buyer; and Seller shall pay Buyer the Break-Up Fee and Reimbursement (each asdefined below) concurrently with the closing of the sale to the Alternate Buyer.

5. Break Up Fee. If Seller closes on the sale of the Property to an Alternate Buyer, then Seller shallpay abreak-up fee of $125,000 (the "Break-Ub Fee") plus expense reimbursement for Buyer'sout of pockets costs incurred in entering into this Agreement and performing diligence on theProperty in the amount of $25,000 (the "Reimbursement") at closing on the sale of the Propertyfrom the sale proceeds, which Break-Up Fee and Reimbursement will have administrative claimstatus in the Debtor's case pursuant to section 503(b) of the Bankruptcy Code. The Break-Up Feeand Reimbursement will be payable to Buyer only (a) in the event of Buyer's termination due toSeller's default in accordance with Section 17.b below, or (b) upon the sale of the Property to anAlternate Buyer. The Break-Up Fee and Reimbursement will not be payable in any othercircumstance, including, but not limited to, the termination of this Agreement pursuant to Section3(fl(ii), Section 1 ] or Section 13(l).

6. Disclaimer; Release of Claims.

a. Buyer acknowledges and understands that Seller was appointed as the Chapter 1 I Trusteeover the estate of Debtor Y&K Sun, Inc., in the Bankruptcy Case and Seller consequentlyhas little or no direct knowledge concerning the condition of the Property. As a materialpart of the consideration to be received by Seller under this Agreement as negotiated andagreed to by Buyer and Seller, Buyer acknowledges and agrees to accept the Property in"as-is," "where-is" condition at the time of closing, including, without limitation, zoning,land use or building code requirements or compliance with any law, rules, ordinances orregulations of any government authority; any hidden defects, environmental conditionsaffecting the Property,- or the existence of mold, whether known or unknown, whethersuch defects or conditions were discoverable through inspection or not.

b. THE PROPERTY IS BEING SOLD "AS IS," "WHERE IS" AND "WITH ALLFAULTS" AS OF CLOSING, WITHOUT ANY REPRESENTATION ORWARRANTY WHATSOEVEK AS TO ITS CONDITION, FITNESS FOR ANYPARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY,EXPRESS OR IMPLIED. SELLER SPECIFICALLY DISCLAIMS ANYWARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PASTOR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY. BUYERACKNOWLEDGES THAT BUYER IS PURCHASING THE PROPERTY BASEDSOLELY UPON BUYER'S OWN INDEPENDENT INSPECTIONS,INVESTIGATIONS AND FINDINGS AND NOT IN RELIANCE UPON ANYINFORMATION PROVIDED BY SELLEROR SELLER'S AGENTS.

Without limiting the provisions of Section 6(a) and 6(b) above, Buyer releases Sellerfrom any and all claims, demands, causes of action, judgments, losses, damages,liabilities, costs and expenses (including without limitation attorney's fees whether suit isinstituted or not), whether known or unknown, liquidated or contingent (collectively"Claims") arising from or related to (a) any defects, errors or omissions in the design orconstruction of the Property, whether the same are a result of negligence or otherwise; or(b) other conditions (including environmental conditions) affecting the Property, whetherthe same are a result of negligence or otherwise. The release set forth in this Sectionspecifically includes any Claims under any Environmental Laws, under the Americans

4


with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., or with respect to anyenvironmental risk. "Environmental Laws" includes, but is not limited to, the SolidWaste Disposal Act, as amended by the Resource Conservation and Recovery Act(42 U.S.C. §§ 6901 et seq.), the Comprehensive Environmental Response, Compensationand Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.), the Emergency Planning andCommunity Right to Know Act (42 U.S.C. §§l]OOl et seq.), the Clean Air Act(42 U.S.C. §§ 7401 et seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the ToxicSubstances Control Act (15 U.S.C. §§2601 et seq.), the Hazardous MaterialsTransportation Act (49 U.S.C. §§1801 et seq.), the Occupational Safety and Health Act(29 U.S.C. §§ 651 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act(7 U.S.C. §§ 136 et seq.), and the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), asany. of the same may be amended from time to time, and any state or local law dealingwith environmental matters, and any regulations, orders, rules, procedures, guidelines andthe like promulgated. in connection therewith, regardless of whether the same are inexistence on the date of this Agreement.

7. Closin~Date. Subject to the provisions of this Agreement, the Closing shall take place at theTitle Company on the date that is no later than fifteen (l5) days following the entry of the SaleOrder. Notwithstanding anything herein to the contrary: (a) the hearing on the Sale Order shalloccur no earlier than ten (10) business days subsequent to the Auction Process; and (b) the partiesmay, in their sole and absolute discretion and contingent on the Court approving a waiver ofapplicable Fed. R. Bankr. P. 6004 time periods, complete the sale of the Property prior to the SaleOrdEr becoming a final non-appealable order of the Bankruptcy Court, but only to the extent theSale Order provides that Buyer is a "Good Faith Purchaser" pursuant to section 363(m) of theBankruptcy Code and is entitled to all of the protections afforded to such purchasers by thatsection of the Bankruptcy Code. As used herein, the following terms shall have the followingmeanings: (i) "Closing" shall mean payment of the Purchase Price and the recordation of theDeed in the official records of Jefferson County, Colorado (the "Official Records"); and (ii) the"Closing Date" shall mean the date upon which the Closing actually occurs.

Conditions of Closing.

a. The Bankruptcy Court shall have entered its final Sale Order, in form reasonablysatisfactory to the parties, approving the sale of the Property and assignment of theAssigned Contracts to the Buyer, which order shall be in full force and effect and shallnot have been modified, amended, rescinded, or vacated in any material respect and shallnot be subject to any stay pending appeal.

b. The time for filing a notice of appeal of the Sale Order under Fed.. R. Bankr. P. 8002 shallhave expired, subject to the parties' ability to waive this condition in Section 7.

Seller shall execute and deliver the Deed; allon-Foreign Affidavit; a counterpart to anassignment and assumption of leases; the Title Company's customary owner's affidavit;and such other items, documents and instruments as may be reasonably required byEscrow Agent.

d. Buyer shall deliver the balance of the Purchase Price; a counterpart to an assignment andassumption of leases and such items, documents and instruments as may be reasonablyrequired by Escrow Agent.


9. Survev. Seller shall turn over to Buyer an Improvement Location Plat for the Property. Buyer, atits expense, may obtain a new or updated survey of the Property (the "Survey").

10. Due Diligence Documents.

a. Seller's Deliveries. Prior to execution of this Agreement, Seller provided Buyer access toa data room containing various documents relating to the Property for Buyer's review("Due Diligence Documents"). Seller disclaims all representations and warranties inrelation to the accuracy or completeness of the Due Diligence Documents. During theFeasibility Period, as defined below, Seller shall request estoppel certificates (insubstantially that form set forth in Exhibit C attached hereto) from current tenants of theProperty. Seller shall use commercially reasonable efforts to obtain Estoppel Certificatesfrom the current tenants of the Property including, without limitation, from CoinLaundry, Family Dollar, M&M Furnishing and Discount Liquor, and will deliver toBuyer such Estoppel Certificates as are obtained, if any, on or before three (3) days priorto the expiration of the Feasibility Period. Seller's inability to obtain estoppel certificatesfrom all or any one or more of the tenants set forth herein shall not be deemed a defaultby Seller nor shall it be a condition to Closing.

b. Buyer's Deliveries. Within ten (] 0) days of the Effective Date, but in no event later thanthree (5) days prior to the expiration of the Feasibility Period, Buyer shall deliver toSeller evidence (e.g., financials or other similar documentation or substantiation in suchform as is reasonably acceptable to Seller and approved by the Court) of its financialability to consummate this transaction.

1 ] . Title Review. Within five (5) business days after the Effective Date, Seller shall cause the TitleCompany, at Seller's expense, to provide Buyer with a commitment tor. an owner's title policy onthe Property (the "Commitment") issued by the Title Company, and copies of all instrumentsshown by the Commitment as exceptions. Buyer shall have fifteen (15) days after receipt of theCommitment (the "Review Period"), including copies of all documents constituting exceptions totitle, to review the Commitment. Within the Review Period Buyer may (i) terminate thisAgreement and receive a refund of the Initial Deposit if Buyer is not satisfied, in the exercise ofits sole judgment, with matters disclosed in the Commitment or (ii) waive any defects andproceed with this transaction, in which case such defects shall be deemed approved by Buyer.

12. Title Insurance and Deed. At Closing, Seller shall convey title to the Property to Buyer by a quitclaim deed (the "Deed"). Seller, at its sole expense, will cause the Title Company to deliver toBuyer at Closing, a standard form Owner's Title Insurance Policy (the "Policy") issued by theTitle Company pursuant to the Commitment, insuring marketable fee simple title to Buyer in thefull amount of the Purchase Price; provided that any requirement for the Policy to be issuedwithout Standard Survey Exceptions shall be subject to Buyer's requirement to obtain .the Surveyand the Title Company's willingness to accept an Owner's Affidavit in form satisfactory to Sellerin its sole and absolute discretion. The cost to issue a lender's title insurance policy shall be paidby Buyer. The cost to record the Deed shall be paid by Buyer. Any closing fee charged by theTitle Company to close the transaction shall be shared by the parties equally.

13. Feasibility Period. Buyer shall have from the date of mutual execution of this Agreement throughthe date that is the earlier of thirty (30) days after the Effective Date or three (3) days prior to thedate of the hearing for the Bid Procedures Order (the "Feasibility Period") to review the DueDiligence Documents, the Estoppel Certificates (if any) and any other due diligence relating tothe Property provided by Seller including any leases within the data room that will remain in

C~


place after Closing, and satisfy the Conditions (as hereafter defined). At any time prior to the endof the Feasibility Period, Buyer may, for any reason in its sole and absolute discretion, cancel thisAgreement by providing written notice thereof to Seller prior to the end of the Feasibility Periodand receive a refund of the Initial Deposit and neither party shall have any further obligation tothe other except those that expressly survive termination. The term "Conditions" means (a) theProperty is suitable to Buyer, in its sole and absolute discretion, for its intended use, (b) Buyer issatisfied, in its sole and absolute discretion with the Inspections. In the event Buyer shall notprovide notice of termination prior to the expiration of the Feasibility Period, then the Buyershall, in accordance with Section 2 above, deposit the Additional Deposit into Escrow, and theentire Deposit shall be deemed nonrefundable and Buyer shall be obligated to close in accordancewith the terms of this Agreement, except: (1) in the event of termination pursuant to Section3.f(ii) above, in which case the Deposit shall be returned to Buyer in accordance with saidsection; or (2) in the case of a default by Seller hereunder or in the event of the Closing of the saleto an Alternate Buyer, in which case and upon the occurrence of either such event, the Deposit,Breakup Fee and Expense Reimbursement will be paid to Buyer pursuant to the terms of thisAgreement.

l4. Right of End and Inspection. At any time prior to the expiration of the Feasibility Period (ashereafter defined), with Seller's prior approval, not to be unreasonably withheld, conditioned ordelayed, at Buyer's sole expense, Buyer or its authorized agents may enter upon the Property toinspect same. Buyer may select qualified professionals to make "Inspections" (including tests,borings, surveys, studies, inspections, investigations and interviews of persons familiar with theProperty) concerning the Property, including but not limited to tests of structures, wells, septictanks, underground storage tanks, soils, geologic hazards, utility lines and systems andenvironmental hazards (including Phase I and Phase II environmental assessments); provided thatBuyer shall not conduct any soil borings or other physically invasive tests of the Property withoutSeller's prior written consent (which may be withheld in.Seller's sole discretion), and providedfurther that all Inspections shall be performed in a manner that shall not unreasonably interferewith the ongoing use of the Property by the Seller or the tenants. Buyer shall keep the Propertyfree of any liens, and repair any material physical damage caused by Buyer, its agents,employees, contractors or subcontractors and restore the Property to its condition prior toInspections. Buyer agrees to indemnify, protect, defend, and hold Se(ler harmless from andagainst any and all liabilities suffered or incurred as a result of or in connection with Buyer'sinspection of the Property (including activities of any of Buyer's employees, consultants,contractors, or other agents relating to the Property), including, without limitation, mechanics'liens, damage to the Property, or injury to persons or property resulting from such activities.

a. If the Property is disturbed or altered in any way as a result of such activities, Buyer shallpromptly restore the Nroperty to its condition existing prior to the commencement of suchactivities which disturb or alter the. Property.

b. Buyer agrees its contractors and consultants shall maintain and have in effect commercialgeneral liability insurance, containing a waiver of subrogation acceptable to Seller in itssole discretion and with limits of at least Two Million Dollars ($2,000,000.00), for bodilyor personal injury or death covering any accident arising in connection with theirpresence at the Property, which insurance shall:

(i) name as additional insureds thereunder Seller and such other parties holdinginsurable interests as Seller may designate,

7


(ii) be written by a reputable insurance company having a rating of at least "A-VIl"by Best's Rating Guide (or a comparable rating by a successor rating service),and

(iii) otherwise be subject to Seller's prior approval, which, in either case, shall not beunreasonably withheld, delayed or conditioned.

c. Buyer shall deliver to Seller copies of the certificate of insurance effectuating theinsurance required under Section 14(b) prior to the commencement of such activities,which certificate shall provide that such insurance shall not be terminated or modifiedwithout at least thirty (30) days' prior written notice to Seller.

d. The provisions of this Section 14 shall survive the Closing or termination of thisAgreement.

] 5. Risk of Loss and Condemnation. Risk of loss by damage or destruction to the Property prior toClosing shall be borne by Seller. In the event any damage or destruction is not fully repairedprior to Closing, Buyer, at its option, may either cancel this Agreement and receive a refund ofthe Deposit or elect to close the transaction, in which event Seller's right to all insurance proceedsnot yet applied to repair of the damage or destruction shall be assigned in writing by Seller toBuyer at Closing. If all or any part of the Property is condemned or any condemnation action orproceeding is commenced prior to Closing, Buyer may, at its option, either (a) terminate thisAgreement and receive a refund of the Deposit, or (b) complete the purchase, with allcondemnation proceeds and claims being assigned to Buyer.

16. Taxes and Assessments. Seller shall ~av all delinquent real pro,~erty taxes, water rates, sewercharges, assessments, special and otherwise, and other charges which are a lien against theProperty as of the Closing Date. Current real estate taates and current installments of specialassessments, if any, shall be prorated on a due date basis to the date of Closing, in accordancewith the local custom for the county in which the Property is located. Any federal, state and localdocumentary or revenue stamps, transfer, sales and other tomes relating to the sale of the Propertyshall be paid by Buyer at Closing and both parties agree to execute any tax forms required.

17. Remedies.

a. In the event of a breach or default hereunder by Buyer, Seller may, after written notice ofdefault to Buyer specifying the nature of such defaults) and the failure of Buyer to curesuch defaults) within five (5) days after Buyer's receipt of such notice, as its sole andexclusive remedy declare a forfeiture hereunder and retain the Deposit as liquidateddamages for the breach of this Agreement, it being agreed between the parties hereto thatthe actual damages to Seller in the event of such breach are impractical to ascertain andthe liquidated damage amount is a reasonable estimate thereof. Nothing contained in thisAgreement, however, shall limit, restrict or impair the liability of Buyer under anyindemnity provided by Buyer under this Agreement or under any of the documents andinstruments as are to be executed by Buyer and delivered to Seller 'pursuant to the termsand conditions hereof.

b. [n the event of a breach or default hereunder by Seller, Buyer may after written notice ofdefault to Seller specifying the nature of such defaults) and the failure of Seller to curesuch defaults) within five (5) days after Seller's receipt of such notice, terminate thisAgreement and be entitled to an immediate refund of the Deposit, plus the


Reimbursement and Break-Up Fee, as Buyer's sole remedies for any breach or defaulthereunder by Seller. Buyer waives any rights to consequential, special, punitive or otherdamages with regard to any claims under or related to the Property, this Agreement or thetransaction described herein, whether in contract or tort, law or equity.

18. Representations and Warranties.

a. Seller hereby represents and warrants to Buyer that:

(i) Seller has the power, right and authority to enter into and perform all of theobligations required of Seller under this Agreement, to execute the instrumentsand documents referenced herein, and to consummate the transaction hereincontemplated; and

(ii) To its actual knowledge without inquiry, the only leases, tenancies or licenses tooccupy the Property are the Assigned Contracts listed on Exhibit B.

Seller's representations and warranties shall expire as of Closing or the termination ofthis Agreement in accordance with the terms hereof.

b. Buyer hereby represents and warrants to Seller that:

(i) Buyer has the power, right and authority to enter into and perform all of theobligations required of Buyer under this Agreement and the instruments anddocuments referenced herein, and to consummate the transaction hereincontemplated;

(ii) Buyer has made and relied upon its own evaluation and decision to purchase theProperty;

(iii) Buyer has not relied upon any oral or written information or statements fromSeller, other than as expressly set forth in this Agreement; and

(iv) Buyer has contracted to purchase the Property on a cash sale basis, without anycontingency for financing, and that it is Buyer's sole responsibility to havesufficient funds to close this transaction when required.

(v) Buyer represents that it has sufficient funds to close on the. Property and Buyer'sobligations hereunder are not contingent upon or subject to financing, loanapproval, the availability of any loan, or the availability of any particular loanterms.

19. Notices. All notices and communications required or permitted to be given hereunder shall be inwriting and (i) hand delivered, or (ii) mailed by certified or registered mail, postage prepaid, or(iii) by FedEx, Airborne Express, or similar overnight delivery service, or (iv) by facsimiletransmission or electronic mail, if such transmission is immediately followed by any of the othermethods for giving notice, addressed as follows:


If to Seller:

Jeffrey A. Weinman, Chapter ] 1 Trusteec/o Weinman &Associates PC730 17th Street, Suite 240Denver, CO 80202Email: [email protected] ,

With a Copy To:

Davis Graham &Stubbs LLP1550 17th Street, Suite 500Denver, CO 80202Attn: Chris RichardsonEmail: [email protected]

If to Buyer:

Broad Street Acquisitions, LLC7250 Woodmont Avenue, Suite 350Bethesda, Maryland 20814Attention: Michael Z. JacobyEmail: [email protected] a Copy To:

Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12505 Park Potomac Avenue, Sixth FloorPotomac, Maryland 20854Attention: Alexis H. Peters; Esq.Email: [email protected]

Notice shall be deemed to have been delivered upon receipt or refusal by the intended recipient. If suchnotice is provided by facsimile transmission, the notice shall be deemed delivered if confirmed by thesender's facsimile's automatic confirmation report, if sent during regular business hours of the intendeddestination; if such notice is delivered by electronic mail, it shall be deemed delivered on the day of suchtransmission if sent during regular business hours of the intended destination.

20. Possession and Assi~:ned Contracts. Seller shall deliver possession of the Property to Buyer atClosing subject to the rights of tenants in possession. At Closing, Buyer and Seller shall enterinto an assignment and assumption of the Assigned Contracts in a form mutually agreed upon bythe parties.

21. Bankruptcy Court Approval. This Agreement is subject to approval by the Bankruptcy Courtand, if not approved, shall be of no force and effect between the parties.

22. Time of Essence. Time is of the essence of this Agreement.

23. Entire Agreement. This Agreement contains the entire agreement between Seller and Buyer, andthere are no other terms, conditions, promises, undertakings, statements or representations, eitherwritten or oral or express or implied, concerning the sale contemplated by this Agreement.

[[~]


24. Headings. The Paragraph headings are for convenience of reference only and do not modify orrestrict any provisions hereof and shall not be used to construe any provisions.

25. Modifications and Waiver. This Agreement may be amended only by an instrument in writingsigned by both Seller and Buyer. This Agreement may be terminated only in accordance with theterms of this Agreement or by an instrument in writing signed by both Seller and Buyer. Nowaiver of any of the provisions of this Agreement shall constitute a waiver of any other provision,nor shall any waiver be a continuing waiver. Except as expressly provided in this Agreement, nowaiver shall be binding unless executed in writing by the party making the waiver.

26. Successors. This Agreement shall inure to the benefit of and bind the parties hereto and theirrespective executors, heirs, administrators, successors and assigns. Buyer may not assign thisAgreement without the prior written consent of Seller. No assignment shall relieve the assigningparty from its obligations hereunder.

27. Governin~w. This Agreement shall be governed and enforced by, and construed inaccordance with the laws of the state of Colorado.

28. Computin~AnxTime Period. Wherever this Agreement requires that something be done withina specified period of days, the period shall (a) not include the day from which the periodcommences, (b) include the day upon which the period expires, (c) expire at 5:00 p.m. local timeon the day upon which the period expires and (d) unless otherwise specified in this Agreementshall be construed to mean calendar days, provided, that if the final day of the period falls on aSaturday or Sunday or legal holiday (limited to the day set aside by statute for observing NewYear's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day,Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or ChristmasDay), it shall be extended to first business day thereafter.

29. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall bedeemed to be an original, but all of which, together, shall constitute one and the same instrument.Executed counterparts of this Agreement may be delivered via facsimile or electronic mail andshall be deemed originals for the purposes hereof.

Signatures Contained on Next Page


IN WITNESS WHEREOF, the parties hove executed t1~is Agreement as of the E,,~'ective ate.

S~L.LER:

Jeffrey A. Weinman, in his capacity as Chapter l ITrustee for the Debtor, Y&K Sun, Inc.

By:Na e• effre~A. ~Neinman. Chapter 11 Trustee forDebtor Y&K Sun, Inc.

S YER:

BROAD STREET ACQUISITIONS, LLCa Maryland limited Liability company

Hy. _rra,~~:i~:

l2


IN WIT11'ESS AJHEREQF, the parties have executed this ~.greement as of the Effective Dafe.

SELLER:

Jeffrey A. Weinman, in his capacity as Chapter 11Trustee for the Debtor, Y&K Sun, Inc,

Name: Jeffrey A. Weinman, Chapter 11 Trustze foi•Debtor Y&K Sun, Inc.

. .

BROAD STREET ACQUISITIONS, LLCa

B'NIt:

12


Exhibit A

I,ECAL llESCKIPTION

PARCEL I:

Lots 2, 4 and 8,MAJOR ERROR CORRECTION PLAT OF JCRS COMMERCIAL PLAZA,County of Jefferson,State of Colorado.

PARCEL II:

The beneficial easements created by Declaration of Covenants and Restrictions and Reciprocal Easements

recorded February 10, 1984, at Reception No. 84013261,County of Jefferson,State of Colorado.

PARCEL III:

The bene.ficia] easements created by Declaration of Restrictions and Grant of Easements recordedFebruary 10, 1984, at Reception No. 84013263, as modified by Amendment recorded June 6, 1984, at

Reception No. 84052222, and as modified by Amendment recorded October 17, 1984, at Reception No.

84097687,County of Jefferson,State of Colorado.

A-1


Exhibit B

Assigned Contracts

(See Attached Rent Roll — To Be Updated and Confirmed)

IC


JCRS Rent Roll (as of Sep. 7, 2

017)

Monthly NNN

monthly

Annual base

and CAM +base

Annual Cam +

Unit

tenantSqft

Base PSF

base rentrent

rentRent

Lease startLease e

nd

M&M Furnishing

3,85413.08

4,200.0050,400.00

5,759.0869,108.96

4/1/2015

3/31/2018 5 Year option

Telcel

723

16.00964.00

11,568.00-

6/1/2016

5/31/2021

Coin Laundry

2,35213.26

2,598.9631,187.52

5,155.6261,867.44

4/1/2016

3/31/2025 10 year option

Blackjack Pizza

1,45015.30

1,848.7522,185.00

2,435.3329,223.96

9/1/2014

8/31/2019

Hair salon

1,16715.00

1,458.7517,505.00

1,930.8523,170.20

6/1/2013

5/31/2018

Man T. Lee

1,36513.00

1,478.7517,745.00

1,478.7517,745.00

6/7/2017

5/31/2019

6555 vacant

9,175-

--

6569 Discount Liquor

4,000

17.255,750.00

69,000.007,368.15

88,417.802/1/2008

1/31/2018

6571 vacant

1,949-

--

6579 Family Dollar

7,0549.25

5,432.9265,195.04

8,288.5199,462.12

1/1/2016

12/31/2020 5 year option

6583 Vacant

2,008-

--

-

6585 EI Milagro

1,28013.00

1,386.6716,640.04

1,904.4722,853.64

6587 Calzamundo

1,66911.50

1,559.4618,713.52

2,274.6327,295.56

3/1/2016

2/28/2019

6593 Pho 2 love

2,92014.00

3,406.6740,880.04

5,067.9360,815.16

6/1/2013

5/31/2018

6597 Lovely nail

1,92014.50

2,320.0027,840.00

3,096.7237,160.64

8/1/2014

7/31/2019

Totals

42,886

388,859.1644,760.04

537,120.48

vacant14,497

-


Fsl~ibit C

I+orm of Estoppel Certificate

TENANT ESTOPPEL CERTIFICATE

RE: Lease dated ("Lease") between("Landlord") and ("Tenant") for Suite _ ("Premises")located within that building known as West Colfax Avenue,Denver, Colorado 80214 ('Building").

The Tenant hereby certifies to Landlord, and to Broad Street Acquisitions, LLC, a Marylandlimited liability company, a prospective purchaser of the Building ("B~ryer"), that the followinginformation with respect to the Lease is true and correct and will be relied upon by Buyer in making itsdecision to purchase the Building:

1. The Lease is in full force and effect and has not been modified or amended except asspecifically set forth in Paragraph 4 below. 'there are no other agreements, understandings, contracts, orcommitments of any kind whatsoever with respect to the Lease or the Premises except as expresslyprovided in the Lease or in any amendment or supplement set forth below.

2. The Lease has been guaranteed as follows (if none, so state):

guarantees, if any, are in full force and effect.All such

2. The Tenant asserts no claim of default or offset or defense against the .payment of rent orother charges payable by the Tenant and assets no claim against the Landlord under the Lease in regardto the operation or maintenance of the property of which the Premises are a past. To the best of Tenant'sknowledge and belief, there is no default by Landlord under the Lease and there is no event that wouldwith the giving of notice or passing of time be a default by Landlord under the- Lease.

3. All base rent, rent escalations, and additional rent under the Lease has been paid through2018. No rent of any type under the Lease has been paid more than one month in

advance of its due date.

4. The following are the names and dates of amendments or modifications to the Lease (ifnone, so state):

Current monthly payments under the Lease are.:

a. Monthly base rent is currently:

b. Monthly payments of estimated operating costs are currently

C-1


6. Lease expiration date:

7. The Lease contains no option to renew, first right of refusal, option to expand, option toterminate, or option to decrease the amount of space leased and there are no automatic expansions orreductions except as follows (if none, so state):

8. The Tenant has full possession of the Premises and has not assigned the Lease or subletany part of the Premises, except as follows (f none, so state):

9. Landlord is holding Tenant's security deposit of $

10. Tenant is not in default under the Lease nor is there any condition, or any event whichhas occurred, which, with the-passage of time or the giving of notice or both, would constitute a default orbreach under the Lease, except (if none, so state):

l4. The improvements and space required to be furnished according to the Lease have beenduly delivered by Landlord and accepted by Tenant.

15. The undersigned has all requisite authority to execute this Estoppel Certificate on behalfof Tenant.

Dated: .2018

By:Name:

C-2
