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IN THE COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION

) In re: ) Chapter 11 ) LE TOTE, INC., et al., ) Case No. 20-33332 (KLP) ) Debtors.1 ) Jointly Administered )

FASHION CENTER LLC’S AND KMO-361 (PARAMUS) LLC’S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION AND TO ALTER OR AMEND THE ORDER APPROVING THE ASSUMPTION AND ASSIGNMENT OF A CERTAIN UNEXPIRED LEASE

Pursuant to the Court’s Order For New Hearing Pursuant to Federal Rule of Civil

Procedure 59 entered on April 6, 2021, sua sponte (“Order For New Hearing”), Fashion Center

LLC (“Fashion Center”) and KMO-361 (Paramus) LLC (“KMO” and, together with Fashion

Center, the “Movants” or “Appellants”), by and through their undersigned counsel, hereby submit

this Supplemental Memorandum in Support (“Supplemental Memorandum”) of their Motion for

Reconsideration and to Alter or Amend (the “Motion”) the Order Approving the Assumption and

1 A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’ claims and noticing agent at http://cases.stretto.com/letote. The location of the Debtors’ service address in these chapter 11 cases is 250 Vesey Street, 22nd Floor, , New York 10281.

______Augustus C. Epps, Jr., Esquire (VSB No. 13254) Michael D. Mueller, Esquire (VSB No. 38216) Jennifer M. McLemore, Esquire (VSB No. 47164) Bennett T. W. Eastham, Esquire (VSB No. 93484) WILLIAMS MULLEN 200 South 10th Street, Suite 1600 Richmond, Virginia 23219 Telephone: (804) 420-6000 Facsimile: (804) 420-6507 Email: [email protected] [email protected] [email protected] [email protected]

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Assignment of a Certain Unexpired Lease (the “Assignment Order”) [Docket No. 896]. In further

support of their Motion, the Movants respectfully state the following:

FACTS

1. On December 11, 2021, Debtors Le Tote, Inc., et al. (the “Debtors”)2 filed their

“Notice of Assumption and Assignment of Unexpired Lease” (the “Notice”) [Docket No. 662].

Pursuant to the Notice, the Debtors sought to assign their Master Lease to an HBC-affiliated entity,

Assignee Propco. One of the Debtors’ landlords under the Master Lease is another HBC-affiliated

entity, Landlord Ridgewood. Although the Movants, themselves, are not parties to the Master

Lease, they Objected to the relief requested in the Notice (the “Objections”) on January 15, 2021

[Docket No. 815], and January 22, 2021 [Docket No. 8131], because the proposed order in the

Notice sought to interfere with the Movants’ rights with respect to Landlord Ridgewood under the

Shopping Center Plan, 3 a series of contracts and recorded agreements to which the Debtors are

not a party. A hearing on the Objections was held on January 28, 2021, at which the Court

overruled the Objections, and a subsequent order approving the assumption and assignment

pursuant to the terms of the Notice was entered by the Court (the “Assignment Order”) [Docket

No. 896].

2. On February 16, 2021, the Movants filed the Motion, requesting the Court to

reconsider its ruling because the Assignment Order invalidated the Movants’ Purchase Option and

a Retail Use Covenant contained in the Shopping Center Plan [Docket No. 918]. A hearing on the

2 Upon information and belief, the Debtors are 27.64% owned indirect subsidiaries of HBC L.P. (“HBC Bermuda”); the “HBS Landlords” (see Amended Assignment Order, Exhibit A), including LT Ridgewood LLC (“Landlord Ridgewood”), are approximately 60% owned indirect subsidiaries of, and are controlled by, HBC Bermuda; and LT Propco LLC (“Assignee Propco”) and its apparent designee, HBS Leasehold LLC (“Tenant Leasehold”), are affiliates of HBC Bermuda. HBC Bermuda, Landlord Ridgewood, Assignee Propco and Tenant Leasehold, collectively, are referred to herein as “HBC”). See Docket No. 747 (Wilmington Trust’s Objection to the Notice), ¶ 1.

3 Capitalized terms not otherwise defined herein shall have the meanings assigned to them by the Motion for Reconsideration (defined below) and Request for Certification (defined below). 2

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Motion was held on February 23, 2021, at which the Court granted the Motion in part, with respect

to the Retail Use Covenant, and denied it in part, with respect to the Purchase Option. The Court

thereafter entered an amended order incorporating the terms of its ruling (the “Amended Order”)

[Docket Nos. 1000 and 1013].

3. On March 16, 2021, the Movants timely filed a notice of appeal of the Amended

Order (the “Appeal”) [Docket No. 1031], and on March 19, 2021, filed a request for certification

of the Appeal to the Fourth Circuit (the “Request for Certification”) [Docket No. 1061].

4. Following the Request for Certification, the Court entered the New Hearing Order,

sua sponte, after it determined that cause existed to grant a new hearing on the Motion to decide

the limited issue of whether “11 U.S.C. § 365(f) may be used to invalidate a provision in a contract

between two non-debtor entities.”

5. The legal issue set forth by the Court concerns the Movants’ Purchase Option. The

Amended Assignment Order invalidates the Purchase Option as an unenforceable anti-assignment

clause under section 365(f) of the Bankruptcy Code and provides that the relief granted extends to

the Shopping Center Plan and inures to Landlord Ridgewood. Amended Assignment Order, ¶¶ 5,

7–8. The Movants seek to preserve their respective rights under the Shopping Center Plan to

enforce their Purchase Option against only Landlord Ridgewood. Once again, although Landlord

Ridgewood is a party to the Master Lease, the Movants are not. Similarly, the Debtors are not

parties to the Shopping Center Plan containing the Purchase Option.

6. The Purchase Option, as amended, provides the Movants with the right to purchase

the “Lord & Taylor Parcel” at “the fair and reasonable market value of the premises . . . determined

by arbitration” (Operating Agreement, § 3.02) “in the event that either party shall discontinue store

3

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operations under said names, for any reason . . . .”Amendment Agreement, Art. II (emphasis

added).

7. The Master Lease incorporates by reference portions of the Shopping Center Plan,

and various other “Reciprocal Easement Agreements” and “Ground Leases” (see Master Lease §§

2.5, Ex. C, 2.6, Ex. D), but provides that “nothing in this Lease shall create, or be construed as

creating, any privity of contract or privity of estate between the Ground Landlord and [the

Debtors].” Id. § 2.5(b).

ARGUMENT

I. 11 U.S.C. § 365(f) May Not Be Used to Invalidate a Provision in a Contract Between Two Non-Debtor Entities.

8. While section 365 may be used to relieve a debtor from burdensome contracts that

hinder its reorganization, it cannot be used—as has occurred in this case—to allow a non-debtor

entity to strategically shed obligations that it owes to other non-debtor entities in a contract

between only non-debtors. Such use of section 365 would transform the shield of bankruptcy into

a sword and put an undeserving non-debtor in a catbird seat in violation of the plain language of

the Bankruptcy Code and without precedent.

a. The Plain Language of the Bankruptcy Code Demonstrates that Section 365(f) May Not Be Used to Invalidate a Provision in a Contract Between Two Non- Debtor Entities.

9. The plain language of the Bankruptcy Code demonstrates that the Court’s power to

invalidate contractual provisions under section 365(f) is confined to provisions in contracts of the

debtor. As an initial matter, section 365(f) is best read within the greater context of section 365.

Section 365(a) permits a trustee or debtor-in-possession to “assume or reject any executory

contract or unexpired lease of the debtor.” 11 U.S.C. § 365(a) (emphasis added). The logical

inference from the plain language of section 365(a) is that if a debtor is not a party to a contract,

4

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then that contract cannot be assumed or rejected. Id. Section 365(f)(2) permits a trustee or debtor-

in-possession to “assign an executory contract or unexpired lease of the debtor . . . .” 11 U.S.C. §

365(f)(2). The logical inference from the plain language of section 365(f)(2) is that if a debtor is

not a party to a contract, then that contract cannot be assigned. Id.

10. Despite the fact that the ability to assume, assign or reject a contract plainly is

confined to contracts of the debtor, the Debtors and HBC assert that section 365(f)(1) and/or (f)(3)4

somehow may be used to invalidate provisions in contracts between only non-debtors. The plain

language of sections 365(f)(1), (f)(3) and 365(c)(1)(A), however, demonstrate that one may use

these sections only to invalidate provisions in contracts of the debtor and applicable law that

enforce and depend upon such provisions in contracts of the debtor. Sections 365(f)(1) and (f)(3)

permit the assignment of an executory contract or unexpired lease “notwithstanding a provision in

an executory contract or unexpired lease of the debtor, or in applicable law, that prohibits, restricts

or conditions the assignment of such contract or lease” or “that terminates or modifies . . . such

contract or lease . . . on account of an assignment of such contract or lease.” 11 U.S.C. § 365(f)(1),

(3) (emphasis added). As with sections 365(a) and 365(f)(2), the scope of sections 365(f)(1) and

(f)(3) is confined to contracts of the debtor. And, as with sections 365(a) and 365(f)(2), the logical

inference is that sections 365(f)(1) and (f)(3) do not extend to contracts between only non-debtors.

11. The Debtors and HBC have baldly suggested that the phrase “applicable law”

authorizes the Court to invalidate provisions in contracts between only non-debtors. This is a red

herring for at least two reasons. First, the Debtors and HBC never have bothered to identify a

provision in applicable law that they believe should be invalidated. Second—even if one

reasonably could interpret the phrase applicable law broadly enough to include private rights

4 The Debtors and HBC never have clarified whether they are relying on section 365(f)(1), (f)(3) or both for their assertion that the Purchase Option may be invalidated as an anti-assignment provision. 5

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conferred by contracts between only non-debtors, as opposed to rights conferred to the public by

statute or under common law—the Debtors’ and HBC’s proposed application ignores the plain

language of section 365(c)(1), which section 365(f)(1) specifically carves-out. 11 U.S.C. §

365(f)(1) (“Except as provided in subsections (b) and (c) of this section . . . .”). Section

365(c)(1)(A) provides that one “may not assume or assign any executory contract or unexpired

lease of the debtor, whether or not such contract or lease[5] prohibits or restricts assignment of

rights or delegation of duties if–”

(1)(A) applicable law excuses a party, other than the debtor, to such contract or lease from accepting performance from or rendering performance to an entity other than the debtor or the debtor in possession, whether or not such contract or lease prohibits or restricts assignment of rights or delegation of duties[.]

11 U.S.C. § 365(c)(1)(A) (emphasis added). In other words, if applicable law excuses a party from

dealing with an entity other than the debtor and does so independent of any specific anti-

assignment provision in the contract that the debtor is seeking to assign, then section 365(c)(1)(A)

trumps section 365(f)(1). See Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy, ¶

365.07[1][c] (16th ed. 2020) (“Section 365(c) is directed to contracts that, regardless of their

provisions with respect to assignment or performance, would be nonassignable under applicable

nonbankruptcy law.”) (emphasis added).6 On the other hand, “[i]f a contract or lease is

nonassignable solely because it contains a nonassignment clause, section 365(c) does not prevent

5 Section 365(c)(1)(A)’s inclusion of the phrases “of the debtor” and “such contract or lease” further demonstrate that section 365 is concerned only with anti-assignment provisions contained in contracts of the debtor.

6 See also In re Supernatural Foods, LLC, 268 B.R. 759 (Bankr. M.D. La. 2001) (“If, however, the applicable law is dependent upon the inclusion [of a contractual provision] within the Agreement . . . to prohibit or restrict such a transfer, it is not covered by § 365(c)(1), and such law (along with any transfer restrictions contained within the Agreement) can be ignored by the Trustee and the Agreement can be transferred) (emphasis added); In re Pioneer Ford Sales, Inc., 729 F.2d 27 (1st Cir. 1984) (“[365](f)(1) includes state laws that prohibit assignment only when the contract is not silent about assignment; that is to say, state laws that enforce contract provisions prohibiting assignment) (emphasis added). 6

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the assumption or assignment of the contract or lease,” and section 365(f)(1) governs. Id.

(emphasis added).

12. Once more, the phrase applicable law cannot reasonably be interpreted to include a

provision in contracts between non-debtors, such as the Purchase Option. However, even if

applicable law could be interpreted so broadly, the Purchase Option would be protected by section

365(c)(1)(A) because it does not enforce and depend upon a specific anti-assignment provision

contained in the Master Lease, a contract of the Debtor. See In re Adelphia Commc’ns Corp., 359

B.R. 65, 76–77 (Bankr. S.D.N.Y. 2007) (endorsing the idea that a “provision of generally

applicable law, which operate[s] without reference to the particulars of the lease contract or the

lease itself . . . [is] of the kind contemplated by § 365(c)(1)(A), and therefore, excepted from the

operation of § 365(f)(1).”) (internal citations omitted). Rather, the Purchase Option operates

independent of the Master Lease and, in fact, was agreed to between only non-debtor entities

decades before the Master Lease even existed.

13. The Debtors and HBC also attempt to conjure authority for the relief sought by

mischaracterizing the Purchase Option and, apparently, the Shopping Center Plan, as executory

contracts. See Docket No. 847 (Debtor’s Reply to Movants’ Objections to Notice), ¶ 17.7 As

discussed above, however, section 365 uniformly modifies the term “executory contract” with the

phrase “of the debtor.” 11 U.S.C. §§ 365(a), (c)(1)(A), (f)(1), (f)(2) and (f)(3). Thus, for purposes

7 (citing In re Kellstrom Indus., Inc., 286 B.R. 833, 835 (Bankr. D. Del. 2002) (noting that a right of first refusal was an executory contract capable of rejection because the debtor and the contract-counterparty owed continuing obligations to each other)); In re Chesapeake Energy Corp., 622 B.R. 274, 282 (Bankr. S.D. Tex. 2020) (noting that a purchase agreement “require[d] ongoing future performance to some extent on both sides”); In re Coordinated Financial Planning Corp., 65 B.R. 711, 713 (9th Cir. BAP 1986) (finding that a right of first refusal was an executory contract after stating that “executory contracts are those in which the obligations of both parties are so far unperformed that the failure of either party to complete performance would constitute a material breach excusing the performance of the other”) (citing Countryman, Executory Contracts in Bankruptcy, 57 Minn. L. Rev. 439, 460 (1973)); In re Waldron, 36 B.R. 633, 637 (Bankr. S.D. Fla. 1984), rev’d on other grounds, 785 F.2d 936 (11th Cir. 1986) (noting that a purchase option was executory because the debtor and the contract-counterparty owed continuing obligations to each other). 7

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of section 365, it is not enough for a contract to be executory, the contract also must be one to

which the debtor is a party. Id. Because the Debtors are not parties to the Purchase Option or the

Shopping Center Plan, the Purchase Option and Shopping Center Plan cannot qualify as executory

contracts under section 365.

14. The Purchase Option and Shopping Center Plan also do not qualify as executory

contracts under the well-known “Countryman” test. The Countryman test defines an executory

contract as “[a] contract under which the obligation of both the bankrupt and the other party to the

contract are so far unperformed that the failure of either to complete performance would constitute

a material breach excusing performance of the other.” Alan N. Resnick & Henry J. Sommer,

Collier on Bankruptcy, ¶ 362[2][a] (16th ed. 2017) (quoting Countryman, Executory Contracts in

Bankruptcy, 57 Minn. L. Rev. 439, 446 (1973). Because the Movants owe no contractual

obligations whatsoever to the Debtors under the Purchase Option or Shopping Center Plan, or vice

versa, the Purchase Option and Shopping Center Plan cannot qualify as executory contracts under

section 365.

15. Furthermore, even if the Purchase Option or Shopping Center Plan somehow could

be construed as executory contracts subject to section 365, the plain language and purpose of

sections 365(f)(1) and (f)(3) still would not allow the Court to invalidate the Purchase Option.

Section 365(f)(1) is concerned with provisions in contracts of the debtor that prohibit, restrict, or

condition the assignment of such contract or lease. 11 U.S.C. § 365(f)(1); Haggen Holdings, LLC

v. Antone Corp, 739 F. App’x 153, 156 (3d Cir. 2018) (emphasis added) (internal citations omitted)

(“Section 365(f)(1) was designed to prevent anti-alienation or other clauses in leases and executory

contracts assumed by the Trustee from defeating his or her ability to realize the full value of the

debtor’s assets in a bankruptcy case.”). Section 365(f)(3) is concerned with provisions in contracts

8

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of the debtor that terminate or modify the assignment of such contract or lease. 11 U.S.C. §

365(f)(3); In re E-Z Serve Convenience Stores, Inc., 289 B.R. 45, 52 (Bankr. M.D.N.C. 2003)

(emphasis added) (internal citations omitted) (“The clear import of section 365(f)(3) is to

invalidate any provision of an executory contract or unexpired lease which burdens the debtor’s

ability to make an effective assignment by modifying its terms so that the assignee receives a

different agreement than the debtor had . . . Congress adopted this policy favoring the assumption

and assignment of contracts as a means of assisting a debtor in its rehabilitation or liquidation

effort”).

16. It is hornbook law that, absent some recognized exception, one cannot enforce a

contract right against a stranger to that contact. 17A Am. Jur. 2d Contracts § 405. Indeed, in

contextually similar landlord-tenant contexts, , and every other state to the Movants’

knowledge, have accepted the following principle:

It is well established that a subletting creates the relationship of landlord and tenant between the sublessor and the sublessee. There is no privity of contract, or estate between the landlord and the subtenant with the lessee standing as a buffer between the landlord and the subtenant. The sublease vests no right in the sublessee to enforce the sublessor’s agreement contained in the original lease. Therefore, the insulation that exists between the prime tenant and the subtenant prevents the subtenant from enforcing against the landlord any rights given in the prime lease to the prime tenant.

Berkeley Dev. Co. v. Great Atl. & Pac. Tea Co., 214 N.J. Super. 227, 235 (Law. Div. 1986)

(internal citations omitted).

17. With the added context above, it is obvious why the power to invalidate contractual

provisions under section 365(f) is confined to provisions in contracts of the debtor; if the debtor is

not a party to a contract, then any provision in that contract may not be enforced against the debtor.

The Movants are incapable of prohibiting, restricting or conditioning the assignment of the Master

Lease and of terminating or modifying the Master Lease on account of such assignment under basic

9

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contract law. Any contractual right that the Movants possess under the Purchase Option may be

enforced only against the Landlord Ridgewood. Because the Purchase Option is incapable of

frustrating the Debtors’ assignment of the Master Lease, it also must be incapable of being

invalidated under section 365(f).8

18. In fact, the Master Lease itself provides that “nothing in this Lease shall create, or

be construed as creating, any privity of contract or privity of estate between the Ground Landlord

and [the Debtors].” Master Lease § 2.5(b). While this language specifically concerns ground

easements and not reciprocal easements,” it stands to reason that the same is true for reciprocal

easement agreements to which the Debtors are not a party. This is because reciprocal easement

agreements are, by their nature, creatures of property rather than merely contract. See Docket No.

747 (Wilmington Trust’s Objection to the Notice), ¶¶ 26, 55–63.

19. The Movants have not taken, and do not intend to take, any action whatsoever that

would result in the destruction of the Master Lease. In fact, even if the Movants wanted to

terminate the Master Lease following the execution of the Purchase Option—which, once more,

they do not—they could not do so under longstanding New Jersey property law.9 See Zurick v.

8 Even if, hypothetically, the Debtors were in contractual privity and the Purchase Option could be enforced against the Debtors (which, as demonstrated above, is not the case), the Purchase Option still would not run afoul of section 365(f). See In re E-Z Serve Convenience Stores, Inc., 289 B.R. 45, 52 (Bankr. M.D.N.C. 2003) (“The right of first refusal in this case does not restrict or burden the assignment of the lease. The holder of a right of first refusal can merely require the owner, when and if he decides to sell, to offer the property at the price he is willing to sell to a third party. The right of first refusal does not limit bidding on Store 48, nor does it compel the owner of property to sell at a price below that which may be offered in the open market. In order to exercise the right of first refusal, [the Landlord] must equal or better the terms of a competing offer. There is no uncertainty as to whether the Trustee may assign the lease. Under the terms of the lease, the Trustee is free to assign the lease at any time, pursuant to the most favorable terms offered by any interested buyer, and the Debtors’ estate is entitled to the full benefit of the best offer the Trustee can negotiate. [The Landlord] merely has the right to match or better the best offer the Trustee can obtain. [The Landlord’s] right does not thwart the underlying policies of the Bankruptcy Code or hamper the Debtors’ ability to reorganize.”).

9 Although it is convenient, conceptually, to analogize the relationship of the parties in this case to that of a prime landlord, prime tenant/sublandlord and subtenant, the Movants are not Landlord Ridgewood’s prime landlord; the Purchase Option merely provides them with the right to purchase the Leased Premises from Landlord Ridgewood. 10

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Perlmutter, 94 N.J.L. 328, 826–27 (Sup. Ct. 1920) (“The ordinary rule is that the purchaser of

rented property takes subject to the terms of the letting.”).

20. To date, the Debtors and HBC have failed to provide a cogent explanation as to

how the Purchase Option frustrates the assignability of the Master Lease. Because the Debtors lack

contractual privity with the Movants, no such explanation exists. Rather, the relief sought by the

Debtors and HBC merely is the product of irreconcilable conflicts of interest: HBC is the proposed

assignee, HBC is the landlord, and—as HBC is so eager to remind everyone—HBC is funding the

case. HBC cannot have its cake and eat it too; if HBC wants to avail itself of the benefits of the

bankruptcy process, then it must abide by the plain language of the Bankruptcy Code.

b. The Invalidation of a Provision in a Contract Between Only Non-Debtors Under Section 11 U.S.C. § 365(f) is Unprecedented.

21. As a likely consequence of the points raised above, there is no precedent for the

invalidation of a provision in a contract between only non-debtors under section 365(f).

Nevertheless, the Debtors and HBC continue to assert that “bankruptcy courts routinely find that

provisions like the Purchase Option in non-debtor agreements are unenforceable [and that t]his is

not a novel concept, nor does it present a controversial or unresolved question of law.” Docket No.

1137 (HBC’s Objection to Movants’ Request for Certification), ¶ 19; see also Docket No. 847

(Debtor’s Reply to Movants’ Objections to Notice), ¶ 8 (“It is clear that bankruptcy courts

routinely invalidate contractual provision in agreements to which a debtor is not a party when the

exercise of such provisions would have an adverse impact on the bankruptcy estate.”). When

pressed on this point during the Reconsideration Hearing, however, the Debtors conceded that

“there[ are] not very many reported decisions on this area at all” and to their knowledge, “the only

reported decision that actually decide[d] this issue [was In re Bradlees Stores, Inc.], which

admittedly was in dicta.” See Reconsideration Hearing Transcript, at 67.

11

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22. Contrary to the Debtors’ assertion otherwise, however, Bradlees Stores did not

decide the issues present in this case. In re Bradlees Stores, Inc., 2001 WL 34809984 (Bankr.

S.D.N.Y. Mar. 28, 2001), aff’d, 2001 WL 1112308 (S.D.N.Y. Sept. 20, 2001). In Bradlees Stores,

a shopping center owner (“SWCC”) objected to the assignment of the debtor’s (“Bradlees”) sub-

lease free and clear of “Bradlees-only use provisions” that were contained in three documents: (a)

the over-lease between SWCC and its tenant (“Stop & Shop”), an affiliate of Bradlees; (b) the

sublease between Stop & Shop and Bradlees; and (c) a settlement agreement between SWCC and

Bradlees executed prior to the proposed assignment. Id. at *2–4. Specifically, the over-lease

“provided that the Premises would be used, if at all, as a department store under the name of

‘Bradlees’ or such other name as the tenant might use for its department store line of business.”

Id. at *2. The over-lease also provided that the premises could be assigned or sublet only to an

affiliate or successor of Stop & Shop, who, once more, was an affiliate of Bradlees. Id. The

sublease contained a cross-reference to the over-lease that extended the Bradlees-only use

provisions to the sublease. Finally, under the settlement agreement,10 Bradlees “agreed to operate

the premises only under the name ‘Bradlees’ and agreed that it could only assign its rights to

occupy the Premises to one of its affiliates and/or subsidiaries of Bradlees.” Id. at *4. Bradlees

further agreed that, “in the event that Bradlees seeks to assign its rights to occupancy in a manner

not specifically permitted under the Settlement Agreement, [the shopping center owner] would be

free to assert that such events are grounds to terminate the Overlease.” Id.

23. The sole issue before the court in Bradlees Stores was “whether the ‘Bradlees-only’

use provisions contained in the Sublease and Settlement Agreement [were] unenforceable under

10 The settlement agreement partially resolved a conflict that arose after an entity (“Wellons”) with no affiliation to Stop & Shop and Bradlees purportedly acquired Stop & Shop’s rights and interests in the over-lease in violation of the Bradlees-only restriction contained in the over-lease.

12

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section 365(f) of the Bankruptcy Code.” Id. at *5 (emphasis added). After determining that the

settlement agreement—to which SWCC and Bradlees were parties—constituted an executory

contract under the “Countryman Test,” the court held that “the ‘Bradlees only’ use restriction

provisions contained in both the Sublease and the Settlement Agreement [were] anti-assignment

provisions and thus, unenforceable.” Id. at *7 (emphasis added).

24. Following the court’s holding, it stated—in dicta and without any legal analysis—

that “to the extent that the [Bradlees-only use provisions] in the Overlease would serve to govern

and inform the provisions of the Sublease and the Settlement Agreement [], they are, of course,

anti-assignment provisions which are unenforceable and not applicable to an appropriate

assignee.” The Debtors and HBC primarily rely on this this single sentence, taken out of context,

to support their assertion that section 365(f) may be used to invalidate contracts between only non-

debtors.

25. Once more, however, whether the Bradlees-only use provisions contained in the

over-lease were unenforceable under section 365(f) was not an issue before the court. Bradlees

Stores, at *5. In fact, the court was careful to note that “nothing here shall constitute an adjudication

of the issues pending in the Wellons Action which issues are specifically carved out of the

Settlement Agreement.” Id. at *7. As discussed above (see fn. 7.), Wellons had no affiliation with

either Stop & Shop or Bradlees, but purportedly acquired Stop & Shop’s rights and interests in the

over-lease in violation of the Bradlees-only use restriction. Bradlees, at *2. One of the “carved

out” issues in the Wellons Action was whether SWCC could terminate the over-lease. Id. at *4.

Furthermore, the court noted that the proposed assignment did not seek “to have the Court limit

Stop & Shop’s obligations [to SWCC] under the Overlease.” Id. at *2. Because the court

specifically preserved the right of SWCC to enforce the Bradlees-only use provision against

13

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Wellons and Stop & Shop under the over-lease, the court could not have intended to invalidate the

Bradlees-only use provisions contained in the over-lease. Rather, a more contextualized reading

of the court’s dicta supports the conclusion that the court intended to invalidate only the Bradlees-

only use provisions contained in the sublease and settlement agreement. Therefore, Bradlees

Stores did not decide the issue of whether section 365(f) may be used to invalidate provisions

contained in agreements to which a debtor is not a party.

26. The Debtors and HBC also rely on In re 48th St. Steakhouse, Inc., 835 F.2d 427

(2nd Cir. 1987) to support their assertion that section 365(f) may be used to invalidate contracts

between only non-debtors. The issue in 48th St. was whether a prime landlord’s attempt to

terminate a prime lease for nonpayment of rent unilaterally and without prior relief from the

bankruptcy court violated the subtenant-debtor’s protections under the automatic stay. Because the

prime lease’s termination necessarily “would have resulted in the destruction of the [debtor’s]

tenancy” under New York law, the bankruptcy court found that the prime-landlord’s termination

attempt violated the automatic stay. Id. at 431.

27. The Debtors’ and HBC’s reliance on 48th St., however, is even more misplaced than

their reliance on Bradlees. As an initial matter, 48th St. concerned the scope of a debtor’s

protections under the automatic stay of section 362(a) of the Bankruptcy Code; it did not concern

a proposed assumption or assignment under section 365, and certainly did not hold that one may

invalidate a provision in a contract between only non-debtors under section 365(f). Notably, even

the wide web of the automatic stay rarely extends so far as to capture provisions in contracts

between only non-debtors See McCartney v. Integra Nat’l Bank N., 106 F.3d 506, 509–510 (3rd

Cir.1997) (noting that the automatic stay normally “may not be invoked by entities such as sureties,

guarantors, co-obligors, or others with a similar legal or factual nexus to the . . . debtor”); see also

14

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A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4th Cir.1986) (“Subsection [362](a)(1) is

generally said to be available only to the debtor, not third party defendants or co-defendants.”).

Indeed, the Fourth Circuit repeatedly has characterized such an occurrence as an “unusual

situation.” See Kreisler v. Goldberg, 478 F.3d 209, 213 (4th Cir. 2007) (“an ‘unusual situation . .

. arises when there is such identity between the debtor and the third-party defendant that the debtor

may be said to be the real-party defendant and that a judgment against the third-party defendant

will in effect be a judgment or finding against the debtor.’”) (quoting A.H. Robins, 788 F.2d at

999).

28. On the other hand, there are cases, albeit outside of the section 365(f) context, that

support the position that bankruptcy courts may not rely on section 365(f) to render unenforceable

or invalidate the rights and performance obligations of non-debtor third parties. See, e.g., Cromwell

Field Assocs., LLP v. May Dep’t Stores Co., 5 F. App’x 186, 188–89 (4th Cir. 2001) (noting that

“the lessor can still look to the person or entity that guaranteed the debtor’s lease obligations”

following the debtor’s rejection of the lease) (citing In re Modern Textile, Inc., 900 F.2d 1184,

1191 (8th Cir.1990) (finding that the rejection of a sublease by the trustee did not discharge the

liability of a guarantor of the lease obligation; “This conclusion is supported by the fact that, under

the Bankruptcy Code, even the “discharge of a debt of the debtor does not affect the liability of

any other entity on . . . such debt. 11 U.S.C. § 524(e)”); Green Tree Servicing, LLC v. DBSI

Landmark Towers, LLC, 652 F.3d 910, 914 (8th Cir. 2011) (“[N]othing in section 365(h) indicates

that a debtor-lessor’s rejection of a lease extinguishes a third party’s rights and obligations under

the lease.”).

29. Finally, the Debtors and HBC continue to rely on orders for their assertion that

bankruptcy courts routinely invalidate provisions in contracts between only non-debtors under

15

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section 365(f). As the Movants have stated before, however, such orders do not bind this Court,

provide any legal analysis, or reveal the particular factual and procedural circumstances from

which they arose. Nor do such orders implicate the Movants’ rights. Therefore, as was the case

with Bradlees and 48th St., the Debtors’ and HBC’s reliance on such orders is misplaced.

CONCLUSION

WHEREFORE, the Movants respectfully request that the Court reconsider and alter or

amend the Assignment Order and the Amended Assignment Order to preserve their Purchase

Option under the Shopping Center Plan in a manner consistent with their Motion and this

Supplemental Memorandum to prevent a clear error of law and manifest injustice, and for such

other and further relief as the Court deems just and proper.

Date: April 12, 2021 Respectfully submitted,

By: /s/ Michael D. Mueller Augustus C. Epps, Jr., Esquire (VSB No. 13254) Michael D. Mueller, Esquire (VSB No. 38216) Jennifer M. McLemore, Esquire (VSB No. 47164) Bennett T. W. Eastham, Esquire (VSB No. 93484) WILLIAMS MULLEN 200 South 10th Street, Suite 1600 Richmond, Virginia 23219 Telephone: (804) 420-6330 Facsimile: (804) 697-6112 Email: [email protected] [email protected] [email protected] [email protected]

Counsel for the Movants

16

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CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of April 2021, I caused a copy of the foregoing to be served through the Court’s EM/ECF system on all parties receiving notices in these cases. I also caused a copy of the foregoing to be served by email on the Core/2002 List, in the form attached hereto as Exhibit A, where an email address is indicated and by U.S. First Class Mail, on April 12, 2021, to the recipients where only a mailing address is indicated.

/s/ Michael D. Mueller Michael D. Mueller

4421306v4

17

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EXHIBIT A

Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 19 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address AMERICAN EXPRESS C/O BACKET & LEE NATIONAL BANK LLP PO BOX 3001 MALVERN PA 19355-0701 AMEX TRS CO., C/O BECKET & LEE INC. LLP PO BOX 3001 MALVERN PA 19355-0701

B.H. MULTI COM CORP. D/B/A EFFY, B.H. MULTI COLOR C/O KLESTADT CORP. D/B/A EFFY, WINTERS ATTN: IAN R IWINTERS@KLEST RICHLINE GROUP, JURELLER WINTERS AND ADT.COM; INC., AND LEVIAN SOUTHARD & ANDREW C 200 WEST 41ST ABROWN@KLEST CORP STEVENS, LLP BROWN STREET NEW YORK NY 10036-7203 212-972-3000 ADT.COM

B.H. MULTI COM CORP. D/B/A EFFY, DARRELL.CLARK B.H. MULTI COLOR @STINSON.COM; CORP. D/B/A EFFY, ATTN: DARRELL W MICHAEL.TUCCI@ RICHLINE GROUP, CLARK, MICHAEL 1775 STINSON.COM; INC., AND LEVIAN E TUCCI, TRACEY PENNSYLVANIA TRACEY.OHM@STI CORP C/O STINSON LLP M OHM AVENUE NW SUITE 800 WASHINGTON DC 20006 202-785-9100 NSON.COM BETSY & ADAM C/O PICK & ATTN: DOUGLAS J. 369 LEXINGTON DPICK@PICKLAW. SALES INC ZABICKI LLP PICK AVENUE 12TH FLOOR NEW YORK NY 10017 212-695-6000 212-695-6007 NET BLONDIE NITES C/O PICK & ATTN: DOUGLAS J. 369 LEXINGTON DPICK@PICKLAW. LTD ZABICKI LLP PICK AVENUE 12TH FLOOR NEW YORK NY 10017 212-695-6000 212-695-6007 NET C/O TROUTMAN ATTN: ANDREW PEPPER BUXBAUM AND ANDREW.BUXBAU BP PRUCENTER HAMILTON MEAGAN A 1001 HAXALL [email protected] ACQUISITION LLC SANDERS LLP MIHALKO POINT SUITE 1500 RICHMOND VA 23219 804-697-1200 804-697-1339 OM DROSNER@GOUL ATTN: DOUGLAS STONSTORRS.CO B. ROSNER AND M; BP PRUCENTER C/O GOULSTON & VANESSA P. 400 ATLANTIC VMOODY@GOULS ACQUISITION LLC STORRS PC MOODY AVENUE BOSTON MA 02110-3333 617-482-1776 TONSTORRS.COM BROOKFIELD C/O BROOKFIELD PROPERTIES PROPERTIES BK@BROOKFIELD RETAIL, INC., AS ATTN: KRISTEN N. RETAIL, INC., AS 350 N ORLEANS PROPERTIESRETA AGENT PATE AGENT STREET SUITE 300 CHICAGO IL 60654-1607 312-960-2940 312-442-6374 IL.COM C/O HUNTON ANDREWS KURTH ATTN: TARA L 951 EAST BYRD TELGIE@HUNTON CAPITAL ONE, N.A. LLP ELGIE STREET RICHMOND VA 23219 804-788-8200 804-788-8218 AK.COM C/O HUNTON ANDREWS KURTH ATTN: GREGORY 1445 ROSE GHESSE@HUNTO CAPITAL ONE, N.A. LLP G HESSE AVENUE SUITE 3700 DALLAS TX 75202-2799 214-979-3000 214-880-0011 NAK.COM CARLYLE GLOBAL CREDIT ATTN: KEVIN J. KSIMARD@CHOAT INVESTMENT C/O CHOATE, SIMARD AND M. TWO E.COM; MANAGEMENT HALL & STEWART HAMPTON INTERNATIONAL HFOUSHEE@CHO LLC LLP FOUSHEE PLACE BOSTON MA 02110 617-248-5000 ATE.COM CARLYLE GLOBAL CREDIT DFOLEY@MCGUIR INVESTMENT C/O ATTN: DOUGLAS EWOODS.COM; MANAGEMENT MCGUIREWOODS M. FOLEY AND 800 EAST CANAL SBOEHM@MCGUI LLC LLP SARAH B. BOEHM GATEWAY PLAZA STREET RICHMOND VA 23219 804-775-1000 REWOODS.COM CIGNA HEALTH AND LIFE INSURANCE C/O TROUTMAN COMPANY AND PEPPER ANDREW.BUXBAU CIGNA DENTAL HAMILTON ATTN: ANDREW 1001 HAXALL [email protected] HEALTH SANDERS LLP BUXBAUM POINT SUITE 1500 RICHMOND VA 23219 804-697-1200 804-697-1339 OM

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 1 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 20 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address CIGNA HEALTH AND LIFE INSURANCE COMPANY AND JWISLER@CONNO CIGNA DENTAL C/O CONNOLLY ATTN: JEFFREY C 1201 NORTH LLYGALLAGHER.C HEALTH GALLAGHER LLP WISLER MARKET STREET 20TH FLOOR WILMINGTON DE 19801 302-757-7300 302-658-0380 OM COMPASS GROUP USA, INC. D/B/A ATTN: COREY S CBOOKER@WTPL FLIK C/O WHITEFORD, BOOKER AND 1021 EASY CARY AW.COM; INTERNATIONAL TAYLOR & VERNON E. INGE TWO JAMES STREET, SUITE 804-977-3302; 804- 804-977-3292; 804- VINGE@WTPLAW. CORP PRESTON, L.L.P. JR. CENTER 1700 RICHMOND VA 23219 977-33 977-32 COM DEPARTMENT OF REVENUE C/O RONALD ATTN: RONALD A. RPAGE@RPAGEL SERVICES PAGE, PLC PAGE JR PO BOX 73087 N CHESTERFIELD VA 23235 804-562-8704 804-482-2427 AW.COM STATE OF CONNECTICUT CONNECTICUT, DEPARTMENT OF OFFICE OF REVENUE ATTORNEY ATTN: DENISE 165 CAPITOL DENISE.MONDELL SERVICES GENERAL MONDELL AVENUE HARTFORD CT 06106 860-808-5150 860-808-5389 @CT.GOV C/O WILMORITE 1265 EASTVIEW MALL, MANAGEMENT ATTN: JUDITH SCOTTSVILLE JLABOMBARDA@ LLC. GROUP, LLC LABOMBARDA ROAD ROCHESTER NY 14624 585-464-9400 585-464-8419 WILMORITE.COM

AEPPS@WILLIAMS MULLEN.COM; ATTN: AUGUSTUS MMUELLER@WILLI C EPPS, MICHAEL AMSMULLEN.COM; D MUELLER, JMCLEMORE@WIL JENNIFER M LIAMSMULLEN.CO FASHION CENTER MCLEMORE, & 200 SOUTH 10TH M; LLC & KMO-361 C/O WILLIAMS BENNETT T W STREET SUITE 804-420-6332; 804- BEASTHAM@WILLI (PARAMUS) LLC MULLEN EASTHAM 1600 RICHMOND VA 23219-3095 420-60 804-420-6507 AMSMULLEN.COM HANESBRANDS ATTN: JAMES C NOTICE@WALDRE INC. C/O WALDREP LLP LANIK 1076 W 4TH ST STE 100 WINSTON SALEM NC 27101-2440 336-717-1440 336-717-1340 PLLP.COM JLONGMIRE@WILL KIE.COM; JKORN@WILLKIE. ATTN: JOHN C. COM; LONGMIRE, ABERRO@WILLKIE JEFFREY B. KORN, .COM; AGUSTINA G. BWAGONHEIM@W BERRO, & ILLKIE.COM; HBS GLOBAL C/O WILLKIE FARR BRITTANY M. 787 SEVENTH WEGUCHI@WILLKI PROPERTIES LLC & GALLAGHER LLP WAGONHEIM AVENUE NEW YORK NY 10019 212-728-8000 E.COM ATTN: CAJONES@WTPL CHRISTOPHER A. AW.COM; JONES, VERNON VINGE@WTPLAW. C/O WHITEFORD, E. INGE, JR., & 1021 E. CARY COM; HBS GLOBAL TAYLOR & COREY S. TWO JAMES STREET, SUITE CBOOKER@WTPL PROPERTIES LLC PRESTON L.L.P. BOOKER CENTER 1700 RICHMOND VA 23219 804-977-3300 AW.COM JLONGMIRE@WILL ATTN: JOHN C. KIE.COM; LONGMIRE, JKORN@WILLKIE. JEFFREY B. KORN, COM; AGUSTINA G. ABERRO@WILLKIE HBS LANDLORDS BERRO, & .COM; AND HBS GLOBAL C/O WILLKIE FARR BRITTANY M. 787 SEVENTH BWAGONHEIM@W PROPERTIES LLC & GALLAGHER LLP WAGONHEIM AVENUE NEW YORK NY 10019 212-728-8000 ILLKIE.COM

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 2 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 21 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address ATTN: CAJONES@WTPL CHRISTOPHER A. AW.COM; JONES, VERNON VINGE@WTPLAW. HBS LANDLORDS C/O WHITEFORD, E. INGE, JR. & 1021 E. CARY COM; AND HBS GLOBAL TAYLOR & COREY S. TWO JAMES STREET, SUITE CBOOKER@WTPL PROPERTIES LLC PRESTON L.L.P. BOOKER CENTER 1700 RICHMOND VA 23219 804-977-3300 AW.COM HILCO MERCHANT CHRISDICKERSON RESOURCES, LLC @PAULHASTINGS. AND GORDON ATTN: CHRIS L. COM; BROTHERS DICKERSON AND BRENDANGAGE@ RETAIL C/O PAUL BRENDAN M. 71 SOUTH PAULHASTINGS.C PARTNERS, LLC HASTINGS LLP GAGE WACKER DRIVE SUITE 4500 CHICAGO IL 60606 312-499-6045 312-499-6145 OM HILCO MERCHANT RESOURCES, LLC ATTN: ANNEMARIE AND GORDON DINARDO CLEARY ACLEARY@ECKER BROTHERS C/O ECKERT AND TSEAMANS.COM; RETAIL SEAMANS CHERIN CHRISTOPHER L. 919 EAST MAIN CPERKINS@ECKE PARTNERS, LLC & MELLOTT, LLC PERKINS STREET SUITE 1300 RICHMOND VA 23219 804-788-7768 804-698-2950 RTSEAMANS.COM JLONGMIRE@WILL HUDSON’S BAY ATTN: JOHN C. KIE.COM; COMPANY ULC, LONGMIRE, WEGUCHI@WILLKI HBC US WESTON T. E.COM; HOLDINGS INC., EGUCHI, ABERRO@WILLKIE AND HBC US AGUSTINA BERRO .COM; PROPCO C/O WILLKIE FARR & ROBERT 787 SEVENTH 212-391-3344; 212- RENGELKE@WILL HOLDINGS LLC & GALLAGHER LLP ENGELKE AVENUE NEW YORK NY 10019 728-80 KIE.COM HUDSON’S BAY COMPANY ULC, CAJONES@WTPL HBC US ATTN: AW.COM; HOLDINGS INC., CHRISTOPHER A VINGE@WTPLAW. AND HBC US C/O WHITEFORD, JONES, VERNON E 1021 E CARY COM; PROPCO TAYLOR & INGE JR, AND TWO JAMES STREET, SUITE CBOOKER@WTPL HOLDINGS LLC PRESTON LLP COREY S BOOKER CENTER 1700 RICHMOND VA 23219 804-977-3300 AW.COM M.S. MANAGEMENT ASSOCIATES, INC. KVOGEL@VOGEL AND ITS C/O VOGEL & ATTN: CHRISTIAN 513 FOREST AVE ANDCROMWELL.C AFFILIATES CROMWELL, LLC K VOGEL SUITE 205 RICHMOND VA 23229 804-728-1574 804-728-1625 OM M.S. MANAGEMENT C/O PAUL WEISS, ATTN: BRIAN S BHERMANN@PAU ASSOCIATES, INC. RIFKIND, HERMANN & LWEISS.COM; AND ITS WHARTON & ALEXANDER 1285 AVENUE OF AWOOLVERTON@ AFFILIATES GARRISON LLP WOOLVERTON THE AMERICAS NEW YORK NY 10019 212-373-3000 212-757-3990 PAULWEISS.COM MAZZA FAMILY FRIENDSHIP C/O HOLLAND & ATTN: RICHARD E 800 17TH STREET RICHARD.LEAR@H HEIGHTS LLC KNIGHT LLP LEAR NW SUITE 1100 WASHINGTON DC 20006 202-457-7049 202-955-5564 KLAW.COM MISSOURI DEPARTMENT OF C/O BANKRUPTCY ATTN: JOHN [email protected] REVENUE UNIT WHITEMAN PO BOX 475 JEFFERSON CITY MO 65105-0475 573-751-5531 573-751-7232 O.GOV

NATIONAL REALTY 1270 AVENUE OF SFLEISCHER@BA & DEVELOPMENT C/O BARCLAY ATTN: SCOTT L THE AMERICAS RCLAYDAMON.CO CORP. DAMON LLP FLEISCHER SUITE 501 NEW YORK NY 10020 212-784-5810 212-784-5799 M DEPARTMENT OF OFFICE OF LABOR AND UNEMPLOYMENT INDUSTRY, COMPENSATION COMMONWEALTH RA-LI-UCTS- TAX SERVICES OF ATTN: DEB 651 BOAS STREET BANKRUPT@STAT (UCTS) PENNSYLVANIA SECREST ROOM 925 HARRISBURG PA 17121 717-787-7627 717-787-7671 E.PA.US

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 3 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 22 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address JINDYKE@COOLE Y.COM; ISHAPIRO@COOL OFFICIAL ATTN: JAY EY.COM; COMMITTEE OF INDYKE, IAN ELAZEROWITZ@C UNSECURED SHAPIRO, EVAN OOLEY.COM; CREDITORS OF LE LAZEROWITZ, AND 55 HUDSON PSPRINGER@COO TOTE, INC., ET AL. C/O COOLEY LLP PAUL SPRINGER YARDS NEW YORK NY 10001 212-479-6000 212-479-6275 LEY.COM

OFFICIAL COMMITTEE OF UNSECURED 1299 CREDITORS OF LE ATTN: CULLEN D PENNSYLVANIA CSPECKHART@C TOTE, INC., ET AL. C/O COOLEY LLP SPECKHART AVENUE, NW SUITE 700 WASHINGTON DC 20004 202-842-7800 202-842-7899 OOLEY.COM DSCHULTZ@CWM- ATTN: DONALD C LAW.COM; SCHULTZ, W WRSNOW@CWM- RESTRUCTURING RYAN SNOW, LAW.COM; COMMITTEE OF DAVID C DHARTNETT@CW THE BOARD OF C/O CRENSHAW, HARTNETT, 150 WEST MAIN M-LAW.COM; DIRECTORS OF LE WARE AND DARIUS K. STREET SUITE DDAVENPORT@C TOTE, INC. MARTIN, PLC DAVENPORT 1500 NORFOLK VA 23510 757-623-3000 757-623-5735 WM-LAW.COM ATTN: 9801 ANTOINETTE.YOU ANTOINETTE WASHINGTONIAN [email protected] ROTH BROS., INC. C/O SODEXO, INC. YOUNG BLVD 12TH FLOOR GAITHERSBURG MD 20878 301-987-4521 301-830-6103 M 6 NORTH BROAD SAP AMERICA, C/O BROWN & ATTN: DONALD K. STREET, SUITE DLUDMAN@BROW INC. CONNERY, LLP LUDMAN 100 WOODBURY NJ 08096 856-812-8900 856-853-9933 NCONNERY.COM 225 WEST SIMON PROPERTY ATTN: RONALD M WASHINGTON RTUCKER@SIMON GROUP, INC. TUCKER STREET INDIANAPOLIS IN 46204 317-263-2346 317-263-7901 .COM STATE OF MICHIGAN, DEPARTMENT OF ATTN: KATHERINE 3030 W GRAND KAKISHK@MICHIG TREASURY KAKISH CADILLAC PLACE BLVD STE 10-200 DETROIT MI 48202 313-456-0140 AN.GOV C/O TROUTMAN PEPPER ANDREW.BUXBAU THE TAUBMAN HAMILTON ATTN: ANDREW 1001 HAXALL [email protected] LANDLORDS SANDERS LLP BUXBAUM POINT SUITE 1500 RICHMOND VA 23219 804-697-1200 804-697-1339 OM THE TAUBMAN ATTN: ANDREW S. 200 EAST LONG BLOOMFIELD ACONWAY@TAUB LANDLORDS CONWAY LAKE ROAD SUITE 300 HILLS MI 48304 248-258-7427 MAN.COM C/O TN ATTORNEY GENERAL'S OFFICE, TN DEPT OF BANKRUPTCY LAURALEA.MCCLO REVENUE DIVISION PO BOX 20207 NASHVILLE TN 37202-0207 615-532-8933 615-741-3334 [email protected]

WELLS FARGO BANK, NATIONAL AEPPS@WILLIAMS ASSOCIATION, IN ATTN: AUGUSTUS MULLEN.COM; ITS CAPACITIES C. EPPS, JR., MMUELLER@WILLI AS MICHAEL D. AMSMULLEN.COM; ADMINISTRATIVE MUELLER, JMCLEMORE@WIL AGENT, L/C JENNIFER M. LIAMSMULLEN.CO ISSUER AND MCLEMORE, AND M; SWING LINE C/O WILLIAMS BENNETT T. W. 200 SOUTH 10TH BEASTHAM@WILLI LENDER MULLEN EASTHAM STREET SUITE 1600 RICHMOND VA 23219 804-420-6000 804-420-6507 AMSMULLEN.COM

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 4 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 23 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address WELLS FARGO BANK, NATIONAL ASSOCIATION, IN ITS CAPACITIES AS DFIORILLO@OTTE ADMINISTRATIVE ATTN: DANIEL F. RBOURG.COM; AGENT, L/C FIORILLO, CHAD B. CSIMON@OTTERB ISSUER AND SIMON, AND OURG.COM; SWING LINE C/O OTTERBOURG KATHLEEN M. KMCGONIGLE@OT LENDER PC MCGONIGLE 230 PARK AVENUE NEW YORK NY 10169-0075 212-661-9100 TERBOURG.COM

WELLS FARGO FKA GE CAPITAL C/O A RICOH USA VENDOR INFORMATION PROGRAM F/D/B/A FINANCIAL TECHNOLOGY IKON FINANCIAL SERVICES, LLC SOLUTIONS SERVICES PO BOX 13708 MACON GA 31208-3708 800-480-6513 WESTFIELD, LLC, WESTLAND SOUTH SHORE MALL, L.P., WESTLAND GARDEN STATE PLAZA LIMITED MHASTINGS@WO PARTNERSHIP, ODSROGERS.COM AND TRUMBULL ATTN: MICHAEL E. ; SHOPPING C/O WOODS HASTINGS & JON 901 EAST BYRD JHOLLIS@WOODS CENTER #2 LLC ROGERS PLC HOLLIS STREET SUITE 1550 RICHMOND VA 23219 804-956-2049 540-322-3417 ROGERS.COM WESTFIELD, LLC, WESTLAND SOUTH SHORE MALL, L.P., WESTLAND GARDEN STATE PLAZA LIMITED PARTNERSHIP, NFERLAND@BAR AND TRUMBULL ATTN: NICLAS A. CLAYDAMON.COM; SHOPPING C/O BARCLAY FERLAND & LLAN 545 LONG WHARF IMARKUS@BARCL CENTER #2 LLC DAMON LLP MARKUS DRIVE NINTH FLOOR NEW HAVEN CT 06511 203-672-2661 203-654-3265 AYDAMON.COM WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE IN TRUST FOR HOLDERS OF HUDSON’S BAY SIMON JV TRUST 2015-HBS, COMMERCIAL MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2015-HBS, ACTING BY AND THROUGH SITUS ABEHLMANN@LO HOLDINGS, LLC, ATTN: ANDREW WENSTEIN.COM; ITS SPECIAL C/O LOWENSTEIN BEHLMANN AND ONE LOWENSTEIN CMAKER@LOWEN SERVICER SANDLER, LLP COLLEEN MAKER DRIVE ROSELAND NJ 07068 973-597-2500 973-597-2400 STEIN.COM

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 5 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 24 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address

WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE IN TRUST FOR HOLDERS OF HUDSON’S BAY SIMON JV TRUST 2015-HBS, COMMERCIAL PASS-THROUGH CERTIFICATES, SERIES 2015-HBS, ACTING BY AND THROUGH SITUS HOLDINGS, LLC, AS ITS SPECIAL C/O ZEMANIAN ATTN: PAUL A. 223 EAST CITY PAUL@ZEMANIAN SERVICER LAW GROUP DRISCOLL HALL AVENUE SUITE 201 NORFOLK VA 23510 757-622-0090 757-622-0096 LAW.COM HLAZARUS@LAZA RUSANDLAZARUS. 240 MADISON COM; C/O LAZARUS & ATTN: HARLAN M. AVENUE 8TH HARLAN.LAZARUS XCEL BRANDS LAZARUS, P.C. LAZARUS FLOOR NEW YORK NY 10016 212-889-7400 212-684-0314 @GMAIL.COM XSCAPE C/O PICK & ATTN: DOUGLAS J. 369 LEXINGTON DPICK@PICKLAW. EVENINGS LTD ZABICKI LLP PICK AVENUE 12TH FLOOR NEW YORK NY 10017 212-695-6000 212-695-6007 NET

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 6 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 25 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address AMERICAN EXPRESS C/O BACKET & LEE NATIONAL BANK LLP PO BOX 3001 MALVERN PA 19355-0701 AMEX TRS CO., C/O BECKET & LEE INC. LLP PO BOX 3001 MALVERN PA 19355-0701 HBC US HOLDINGS LLC AND HBC US PROPCO 225 LIBERTY HOLDINGS LLC STREET 31ST FLOOR NEW YORK NY 10281 212-391-3344 INTERNAL REVENUE SERVICE PO BOX 7346 PHILADELPHIA PA 19101-7346 855-772-3156 C/O KIRKLAND & 300 NORTH LA LE TOTE, INC. ELLIS LLP SALLE STREET CHICAGO IL 60654 312-862-2000 312-862-2200 JEREMY.WILLIAMS @KUTAKROCK.CO M; BRIAN.RICHARDS C/O KUTAK ROCK ON@KUTAKROCK. LE TOTE, INC. LLP 901 EAST BYRD Suite 1000 RICHMOND VT 23219-4071 804-644-1700 804-783-6192 COM NATIONAL ASSOCIATION OF ATTORNEYS 1850 M STREET GENERAL NW, 12TH FLOOR WASHINGTON DC 20036 202-326-6000 OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF 441 4TH ST NW, COLUMBIA STE 1100 WASHINGTON DC 20001 (502) 696-5300 502-564-2894 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 501 WASHINGTON ALABAMA AVE MONTGOMERY AL 36104 (808) 586-1500 808-586-1239 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 1031 W 4TH AVE, attorney.general@al ALASKA STE 200 ANCHORAGE AK 99501 (404) 656-3300 404-657-8733 aska.gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 2005 N CENTRAL ARIZONA AVE PHOENIX AZ 85004 (208) 334-2400 208-854-8071 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 323 CENTER ST, [email protected] ARKANSAS STE 200 LITTLE ROCK AR 72201 (515) 281-5164 515-281-4209 v OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA PO BOX 944255 SACRAMENTO CA 94244-2550 312-814-3000 OFFICE OF THE ATTORNEY GENERAL FOR RALPH L. CARR THE STATE OF JUDICIAL 1300 BROADWAY, COLORADO BUILDING 10TH FL DENVER CO 80203 (317) 232-6201 317-232-7979

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 1 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 26 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF attorney.general@ct. CONNECTICUT 55 ELM ST HARTFORD CT 06106 (785) 296-2215 785-296-6296 gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF DEPARTMENT OF CARVEL STATE 820 N FRENCH attorney.general@d DELAWARE JUSTICE OFFICE BUILDING STREET WILMINGTON DE 19801 (225) 326-6000 225-326-6499 elaware.gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF THE CAPITOL PL- FLORIDA 01 TALLAHASSEE FL 32399 (302) 577-8400 850-488-5106 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 40 CAPITOL SQ [email protected] GEORGIA SW ATLANTA GA 30334 (410) 576-6300 404-657-8733 s OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 425 QUEEN [email protected] HAWAII STREET HONOLULU HI 96813 (207) 626-8800 808-586-1239 v OFFICE OF THE ATTORNEY GENERAL FOR 700 W. THE STATE OF JEFFERSON ST, IDAHO SUITE 210 BOISE ID 83720 651-296-3353 208-854-8071 OFFICE OF THE ATTORNEY GENERAL FOR JAMES R. THE STATE OF THOMPSON 100 W. RANDOLPH attorney.general@ag ILLINOIS CENTER ST CHICAGO IL 60601 (573) 751-3321 573-751-0774 o.mo.gov OFFICE OF THE ATTORNEY GENERAL FOR INDIANA 302 W THE STATE OF GOVERNMENT WASHINGTON ST INDIANA CENTER SOUTH 5TH FL INDIANAPOLIS IN 46204 (601) 359-3680 317-232-7979 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF HOOVER STATE 1305 E. WALNUT IOWA OFFICE BUILDING STREET RM 109 DES MOINES IA 50319 (517) 373-1110 517-373-3042 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 120 SW 10TH AVE, KANSAS 2ND FL TOPEKA KS 66612 (406) 444-2026 406-444-3549 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 700 CAPITOL AVE attorney.general@ag KENTUCKY CAPITOL BUILDING STE 118 FRANKFORT KY 40601 (919) 716-6400 919-716-6050 .ky.gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF LOUISIANA 1885 N. THIRD ST BATON ROUGE LA 70802 (701) 328-2210 701-328-2226 [email protected]

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 2 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 27 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 6 STATE HOUSE MAINE STATION AUGUSTA ME 04333 (609) 292-8740 609-292-3508 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF attorneygeneral@doj MARYLAND 200 ST. PAUL PL BALTIMORE MD 21202 (603) 271-3658 603-271-2110 .nh.gov OFFICE OF THE ATTORNEY GENERAL FOR 1 ASHBURTON THE STATE OF PLACE, 20TH MASSACHUSETTS FLOOR BOSTON MS 02108 (402) 471-2683 402-471-3297 OFFICE OF THE ATTORNEY G. MENNEN GENERAL FOR WILLIAMS THE STATE OF BUILDING, 7TH ofir-ins- MICHIGAN FLOOR 525 W OTTAWA ST LANSING MI 48933 (505) 490-4060 505-827-5826 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 445 MINNESOTA MINNESOTA ST, STE 1400 ST. PAUL MN 55101 (775) 684-1100 775-684-1108 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF WALTER SILLERS 550 HIGH ST STE 601-359-4231; 601- MISSISSIPPI BUILDING 1200 JACKSON MS 39201 (614) 466-4986 359-35 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF SUPREME COURT MISSOURI BUILDING 207 W HIGH ST JEFFERSON CITY MO 65101 (518) 474-7330 866-413-1069 OFFICE OF THE ATTORNEY GENERAL FOR JUSTICE THE STATE OF BUILDING, THIRD MONTANA 215 N. SANDERS FL HELENA MT 59601 (405) 521-3921 405-521-6246 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 2115 STATE NEDOJ@NEBRAS NEBRASKA CAPITOL LINCOLN NE 68509 (401) 274-4400 402-471-3297 KA.GOV OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF OLD SUPREME NEVADA COURT BUILDING 100 N CARSON ST CARSON CITY NV 89701 (512) 463-2100 512-475-2994 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF NH DEPARTMENT [email protected]. NEW HAMPSHIRE OF JUSTICE 33 CAPITOL ST. CONCORD NH 03301 (803) 734-3970 603-223-6202 nh.us OFFICE OF THE ATTORNEY GENERAL FOR RICHARD J. 25 MARKET ST THE STATE OF HUGHES JUSTICE 8TH FL, WEST askconsumeraffairs NEW JERSEY COMPLEX WING TRENTON NJ 08611 (605) 773-3215 605-773-4106 @lps.state.nj.us

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 3 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 28 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 408 GALISTEO VILLAGRA NEW MEXICO STREET BUILDING SANTA FE NM 87501 615-741-3491 615-741-2009 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF [email protected] NEW YORK THE CAPITOL ALBANY NY 12224 (800) 244-4636 801-538-1121 y.gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 114 W EDENTON NORTH CAROLINA ST RALEIGH NC 27603 (503) 378-4400 503-378-4017 OFFICE OF THE ATTORNEY GENERAL FOR STATE CAPITOL, THE STATE OF 600 E BOULEVARD NORTH DAKOTA AVE DEPT. 125 BISMARCK ND 58505 (717) 787-3391 717-787-3391 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF STATE OFFICE 30 E BROAD ST OHIO TOWER 14TH FL COLUMBUS OH 43215 (804) 786-2071 804-225-4378 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF ConsumerProtection OKLAHOMA 313 NE 21ST ST OKLAHOMA CITY OK 73105 (802) 828-3171 802-304-1014 @oag.ok.gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 1162 COURT ST DOJ.Webmaster@d OREGON NE SALEM OR 97301 (206) 464-6684 503-947-7862 oj.state.or.us OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF STRAWBERRY PENNSYLVANIA SQUARE 16TH FL HARRISBURG PA 17120 (608) 266-1221 608-267-2223 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF [email protected] 150 S MAIN ST PROVIDENCE RI 02903 (304) 558-2021 304-558-0140 v OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF REMBERT C. 1000 ASSEMBLY scdca@scconsumer SOUTH CAROLINA DENNIS BLDG ST RM 519 COLUMBIA SC 29201 (307) 777-7841 307-777-6869 .gov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 1302 E HIGHWAY SOUTH DAKOTA 14, STE 1 PIERRE SD 57501 605-773-4400 605-773-7163 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF TENNESSEE 301 6TH AVE N NASHVILLE TN 37243 615-741-1671 615-741-2009

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 4 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 29 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF TEXAS 300 W. 15TH ST AUSTIN TX 78701 800-621-0508 512-475-2994 OFFICE OF THE ATTORNEY GENERAL FOR UTAH STATE THE STATE OF CAPITOL 350 NORTH STATE 801-366-0260; 801- UTAH COMPLEX ST STE 230 SALT LAKE CITY UT 84114 538-96 801-538-8894 [email protected] OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 800-649-2424; 802- [email protected] VERMONT 109 STATE ST. MONTPELIER VT 05609 656-31 ov OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 804-786-0991; 804- VIRGINIA 202 N. NINTH ST. RICHMOND VA 23219 1-800-370-0459 786-20 OFFICE OF THE ATTORNEY GENERAL FOR 1125 THE STATE OF WASHINGTON ST 1-800-551-4636; WASHINGTON SE OLYMPIA WA 98501 360-763- 360-664-2258 OFFICE OF THE ATTORNEY GENERAL FOR STATE CAPITOL, THE STATE OF 1900 KANAWHA BUILDING 1 RM E- WEST VIRGINIA BLVD E 26 CHARLESTON WV 25305 304-558-2021 304-558-0140 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF 114 E STATE WISCONSIN CAPITOL MADISON WI 53702 608-266-1221 608-267-2779 OFFICE OF THE ATTORNEY GENERAL FOR THE STATE OF KENDRICK WYOMING BUILDING 2320 CAPITOL AVE CHEYENNE WY 82002 307-777-7841 307-777-6869 OFFICE OF THE UNITED STATES ATTN: KATHRYN R. KATHRYN.MONTG TRUSTEE FOR MONTGOMERY, [email protected] THE EASTERN SHANNON F. OV; DISTRICT OF PECORARO AND 701 EAST BROAD 804-771-2327; 804- SHANNON.PECOR VIRGINIA LYNN A. KOHEN STREET SUITE 4304 RICHMOND VA 23219 771-23 804-771-2330 [email protected] C/O KEPLEY SAP AMERICA, BROSCIOUS & ATTN: WILLIAM A. INC. BIGGS, PLC BROSCIOUS 2211 PUMP ROAD RICHMOND VA 23233 804-741-0400 804-741-7165 SECURITIES & EXCHANGE SECRETARY OF COMMISSION THE TREASURY 100 F STREET, NE WASHINGTON DC 20549 202-772-9295 SECURITIES & EXCHANGE ATTN: REGIONAL NEW YORK 200 VESEY BROOKFIELD COMMISSION DIRECTOR REGIONAL OFFICE STREET, STE 400 PLACE NEW YORK NY 10281-1022 ONE VANDERBILT C/O THE CARLYLE AVENUE SUITE TCG BDC, INC. GROUP 3400 NEW YORK NY 10017 212-813-4900 ATTN: KEVIN J. C/O CHOATE, SIMARD AND TWO TCG BDC, INC. HALL & STEWART STEPHEN INTERNATIONAL (“CARLYLE”) LLP TONKOVICH PLACE BOSTON MA 02110

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 5 of 6 Case 20-33332-KLP Doc 1151 Filed 04/12/21 Entered 04/12/21 15:46:01 Desc Main Document Page 30 of 30 Creditor Name Attention Address 1 Address 2 Address 3 City State Zip Country Phone Fax Email Address THE CIT GROUP/COMMERC IAL SERVICES, 11 W 42ND INC. STREET NEW YORK NY 10036 UNITED STATES ATTORNEY’S JUSTIN W. OFFICE FOR THE ATTN: U.S. WILLIAMS UNITED EASTERN ATTORNEY G. STATES DISTRICT OF ZACHARY ATTORNEY'S 2100 JAMIESON Usavae.Webmaster VIRGINIA TERWILLIGER BUILDING AVE ALEXANDRIA VA 22314 703-299-3700 @usdoj.gov

WELLS FARGO FKA GE CAPITAL C/O A RICOH USA VENDOR INFORMATION PROGRAM F/D/B/A FINANCIAL TECHNOLOGY IKON FINANCIAL SERVICES, LLC SOLUTIONS SERVICES PO BOX 13708 MACON GA 31208-3708 800-480-6513 WELLS FARGO, ATTN: JOSEPH 125 HIGH STREET, N.A. BURT SUITE 1100 BOSTON MA 02110

In re: Le Tote, Inc. et al. Case No. 20‐33332 (KLP) Page 6 of 6