20-12097-Scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 1 of 15

20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 1 of 15

Hearing Date: December 1, 2020 at 10:00 a.m. (ET) Objection Deadline: November 24, 2020 at 4:00 p.m. (ET)

WHITE AND WILLIAMS LLP James C. Vandermark, Esquire 7 Times Square, Suite 2900 New York, NY 10036-6524 Telephone: (212) 244-9500 Email: [email protected]

Counsel to Acro Display LLC

UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

In re: : Chapter 11 : CENTURY 21 DEPARTMENT STORES LLC, et al.,1: Case No. 20-12097 (SCC) : : Debtors. : (Jointly Administered)

ACRO DISPLAY LLC’S MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE PURSUANT TO SECTION 503(b) OF THE BANKRUPTCY CODE

Acro Display LLC (“Acro Display”), by and through its counsel, files this Motion for

Allowance of Administrative Expense Claim Pursuant to Section 503(b) of the Bankruptcy

Code (the “Motion”) and relies upon the Declaration of Paul Adams (the “Adams

Declaration”) submitted herewith and states the following in support thereof:

PRELIMINARY STATEMENT

1. During the course of these Chapter 11 bankruptcy proceedings, Century 21

Department Stores LLC and certain affiliated entities (collectively, the “Debtors”) have

continued to use and benefit from certain displays and custom shelving units provided by Acro

1 The Debtors in these chapter 11 proceedings, along with the last four digits of eac Debtor’s federal tax identification number, as applicable, are Century 21 Department Stores LLC (4073), L.I. 200, Inc. (9619), C21 Department Stores Holdings LLC (8952), Giftco 21 LLC (0347), Century 21 Fulton LLC (4536), C21 Philadelphia LLC (2106), Century 21 Department Stores of New Jersey, L.L.C. (1705), Century 21 Gardens of Jersey, LLC (9882), C21 Sawgrass Blue, LLC (8286), C21 GA Blue LLC (5776), and Century Paramus Realty LLC (5033).

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 2 of 15

Display and subject to the Reclamation Demand (as defined below). Acro Display respectfully

requests entry of an order substantially in the form attached hereto as Exhibit A (the

“Administrative Expense Order”), which: (a) allows an administrative expense in an amount

not less than $133,933.67 for the goods provided by Acro Display to the Debtors within the

forty-five (45) days preceding September 10, 2020 (the “Petition Date”), (b) directs the

Administrative Expense Claim be paid, in full, within five (5) business days after entry of the

Administrative Expense Order, or at such time as the Court otherwise orders, (c) approves the

Reservation of Rights (as defined below), and (d) grants such other and further relief as may be

deemed just and proper under the circumstances of this case.

JURISDICTION

2. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and

1334. Venue of the Debtor’s Chapter 11 case and this Motion in this district is proper

pursuant to 28 U.S.C. §§ 1408 and 1409.

3. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A)-(B) and (O).

4. The statutory predicates for the relief requested herein include Sections 105,

503(a) and (b)(1)(A) and 507 of title 11 of the United States Code (the “Bankruptcy

Code”) as well as section 2-702 of the New York Uniform Commercial Code; section 12A:2-

702 of the New Jersey Revised Statutes; and section 672.702 of the Florida Statutes Uniform

Commercial Code.

BACKGROUND

5. Acro Display is a family owned and operated company. Adams Declaration, ¶ 3.

With approximately 15 employees, Acro Display specializes in manufacturing custom displays

in the retail merchandising, point-of-purchase and consumer industries and has a long history of

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 3 of 15

providing some of the finest and most cost effective retail displays, fixtures, interiors and

environments. Adams Declaration, ¶ 3.

6. From January 2020 through September 2020 2020, pursuant to purchase orders

(the “POs”) from the Debtors and at the Debtors’ continued direction, Acro Display designed,

built, and installed custom shelving units at several of the Debtors’ stores. These units were

specialized for the unique needs of each of the stores and designed to maximize the consumer

appeal and efficient use of the available space.

7. On the Petition Date, the Debtors filed voluntary petitions for relief under

Chapter 11 of Title 11 of the Bankruptcy Code.

8. As of the Petition Date, the Debtors had failed to pay a number of invoices,

which totaled at least $375,341.89. Adams Declaration, ¶ 3. This includes the following

invoices for goods delivered to the Debtors within the forty-five (45) days preceding the Petition

Date (the “Reclamation Period Invoices”):

Invoice Invoice Install Location Invoice Portion for No. Date Date Amount Goods 1295 7/31/2020 8/5/2020 Green Acres, NY $25,031.70 $18,821.70 1296 7/31/2020 8/7/2020 Jersey Gardens, NJ $19,171.39 $11,920.20 1306 8/10/2020 8/12/2020 Dey St., NY $54,997.10 $46,517.10 1327 8/12/2020 8/15/2020 Lincoln Sq., NY $34,427.60 $28,347.60 1366 8/19/2020 9/3/2020 Sawgrass Mills, FL $35,687.07 $28,327.07 TOTALS $169,314.86 $133,933.67

Adams Declaration, ¶ 9.

9. Like many business, the Debtors have claimed significant losses due to COVID-

19 and knew they were failing financially as far back as June/July 2020. Despite having this

knowledge, they induced vendors, such as Acro Display, to continue to provide goods on the

promise of payment in full. Adams Declaration, ¶ 10. Based on these promises, Acro Display

continued to deliver and install custom shelving units for the Debtors as recently as just seven

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 4 of 15

(7) days before the Petition Date. Adams Declaration, ¶ 10. The promised payments were

never realized. Adams Declaration, ¶ 10. At the time that the Debtors were promising to pay

Acro Display for the Reclamation Goods, they knew they were going to file this bankruptcy

case – suggesting there was no intention to actually pay for the Reclamation Goods. Instead of

paying vendors such as Acro Display, the Debtors paid “insiders” millions of dollars.

10. Based on information and belief, the Debtors continue to use the Reclamation

Goods in their stores. Adams Declaration, ¶ 11. The Debtors, with the consent of the Lender

(as defined below), offered to allow Acro Display to reclaim the Reclamation Goods after their

store closings are complete. Adams Declaration, ¶ 11. However, the value of the custom

shelving units is unique to the Debtors and their stores. Adams Declaration, ¶ 11. By the time

the Debtors complete their store closings, they will have used the entire value of the

Reclamation Goods. Adams Declaration, ¶ 11.

BASIS FOR RELIEF REQUESTED

11. Acro Display respectfully requests that this Honorable Court grant an allowed

administrative expense in the amount of $133,933.67 and order the Debtors to pay such

administrative expense pursuant to Section 503(b)(1)(A) of the Bankruptcy Code.

A. Acro Display has the Right to Reclaim the Reclamation Goods Under Section 2- 702(2) of the Uniform Commercial Code as Recognized by Section 546(c) of the Bankruptcy Code

12. Pursuant to the Demand for Reclamation of Goods dated September 18, 2020

(the “Reclamation Demand”), Acro Display notified the Debtors of its demand for the

immediate return of the goods identified in the Reclamation Period Invoices (the “Reclamation

Goods”). Adams Declaration, ¶ 12. The Reclamation Demand also informed Debtors that they

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 5 of 15

no longer had “permission, consent, authorization or right to use the Reclamation Goods.”

Adams Declaration, ¶ 12.

13. Section 546(c) of the Bankruptcy Code “recognizes a vendor’s right of

reclamation for goods sold to a debtor. It provides

that subject to the prior rights of a holder of a security interest in such goods or the proceeds thereof…a seller of goods that has sold goods to the debtor in the ordinary course of such seller’s business [has the right] to reclaim such goods if the debtor has received [them] while insolvent within 45 days before the commencement of a case…”

In re Reichold Holdings US, Inc., 556 B.R. 107, 109-110 (Bankr. D. Del. 2016) (quoting 11

U.S.C. § 546(c)).

14. However, “[s]ection 546(c) does not create an independent right of reclamation;

rather…a reclaiming seller must prove that it had a valid right of reclamation under state law.”

In re Reichold Holdings US, Inc., 556 B.R. at 110 (citing Circuit City Stores, Inc., 441 B.R. 496,

505 (Bankr. E.D. Va. 2010)); In re Dairy Mart Convenience Stores, Inc., 302 B.R. 128, 132-133

(Bankr. S.D.N.Y. 2003) (citations omitted).

15. As reflected on the Reclamation Period Invoices, Acro Display provided the

Reclamation Goods to the Debtors’ stores in three (3) states: New York, New Jersey, and

Florida (collectively, the “States”). Adams Declaration, ¶ 13. All three of these States have

generally adopted section 2-702 of the Uniform Commercial Code (the “U.C.C.”). See U.C.C.

§ 2-702; N.Y.U.C.C. 2-702; NJ Rev. Stat. § 12A:2-702; and Fla. Stat. § 672.702.

16. As adopted by the States, the U.C.C. provides:

Where the seller discovers that the buyer has received goods on credit while insolvent, the seller may reclaim the goods upon demand made within 10 days after the receipt, but if misrepresentation of solvency has been made to the particular

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 6 of 15

seller in writing within 3 months before delivery the 10-day limitation does not apply.

N.Y.U.C.C. 2-702(2); NJ Rev. Stat. § 12A:2-702(2); and Fla. Stat. § 672.702(2).

17. The Bankruptcy Code extends the period for a seller to assert reclamation rights:

[a] seller may not reclaim such goods unless such seller demands in writing reclamation of such goods – (A) not later than 45 days after the date of receipt of such goods by the debtor; or (B) not later than 20 days after the date of commencement of the case, if the 45-day periods expires after the commencement of the case.

11 U.S.C. § 546(c)(1).

18. The basic elements of a reclamation claim are: “(1) the debtor was insolvent

when the goods were delivered; (2) a written demand was made not later than 45 days of the

debtor’s receipt of such goods, or not later than 20 days following the petition date if the 45-day

period expires post-petition; (3) the goods were identifiable at the time of the demand; and (4)

the goods were in possession of the debtor at the time of demand.” In re Reichold Holdings US,

Inc., 556 B.R. at 110 (citing Scotts Co. v. Hechinger Co., 274. B.R. 402, 405 (Bankr. D. Del.

2001)).

19. There can be little dispute that Acro Display had the right to reclaim the

Reclamation Goods and properly sought the return of those goods. First, the Debtors were

insolvent at the time Acro Display delivered the Reclamation Goods. Adams Declaration, ¶ 10.

The Debtors had long ceased to pay their debts in the ordinary course of business and were

unable to pay their debts as they became due. See NYUCC § 1-201(23); and N.J. Stat. § 12A:1-

201(23). As set forth in the Declaration of Norman R. Veit Jr. In Support of Debtors’ Chapter

11 Petitions and First Day Motions [ECF NO. 13] (the “Veit Declaration”), the Debtors

curtailed payments to vendors months prior to the Petition Date and even after stores began to

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 7 of 15

open they had insufficient liquidity to pay their vendors. Veit Declaration, ¶¶ 15 and 34.

Moreover, the schedules filed by the Debtors establish they were insolvent at the time Acro

Display delivered the Reclamation Goods. See In re Roberts Hardware Co., 103 B.R. 396, 398

(Bankr. N.D.N.Y. 1988) (citing Allstate Fabricators Corp. v. Flagstaff Foodservice Copr., In re

Flagstaff Foodservice Corp.), 56 B.R. 899, 905, 907 (Bankr. S.D.N.Y. 1986) (“schedules are

strong probative evidence of debtor’s insolvency” for purposes of a reclamation claim)).

20. Second, Acro Display asserted its Reclamation Demand well within the time

required by section 546(c). On September 18, 2020, within twenty (20) days of the Petition

Date, Acro Display provided the Reclamation Demand to Mr. Veit and counsel for the Debtors

seeking the return of the Reclamation Goods, which were goods provided to the Debtors within

the forty-five (45) days prior to the Petition. On September 21, 2020 – also within twenty (20)

days of the Petition Date – Acro Display also filed the Notice of Reclamation Demand by Acro

Display LLC [ECF No. 60] (the “Reclamation Notice”) with the Court.

21. Third, Acro Display included copies of the Reclamation Period Invoices with the

Reclamation Demand and Reclamation Notice. As shown on the Reclamation Period Invoices,

the Reclamation Goods are clearly identifiable by their size, quantity, and the store where the

Reclamation Goods were installed.

22. Finally, the Reclamation Goods were in the possession of the Debtors at the time

the Reclamation Demand was served on them. On information and belief, the Reclamation

Goods remain in the possession of the Debtors who seek to continue to use them in their

department stores. See Adams Declaration, ¶ 11.

23. As set forth above, despite receiving the appropriate demand for the return of the

Reclamation Goods, the Debtors refused to do so. Based on information and belief, the Debtors

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 8 of 15

intend to continue to use and benefit from the shelving units until they conclude their store

closings. Then, when they hold no more value to the Debtors, they will abandon them.

B. Debtors Failed to Comply with the Obligation to Return the Reclamation Goods as Required under U.C.C. 2-702 and Common Law

24. A debtor is “subject to a seller’s reclamation rights, and thus has to return the

product if the reclamation is timely asserted by the selling creditor.” In re First Magnus Fin.

Corp., 2008 Bankr. LEXIS 4320 *12-13, Bankr. D. AZ 07-01578 (Oct. 16, 2008); See also

Phar-Mor, Inc. v. McKesson Corp., 534 F.3d 502, 505 (6th Cir. 2008) (explaining that “the right

of the seller to reclaim goods…[is treated as though] the contract is rescinded and the reclaimed

goods are returned to the seller…”) (emphasis added). Therefore, it is “entirely appropriate…to

have the goods returned” to the seller so they can locate another buyer. Richmond Distillers

LTD v. Sea-Land Serv., 2001 U.S. Dist. LEXIS 25374 *15, 98-cv-7454, (S.D.N.Y. Dec. 21,

2001) (citing N.Y.U.C.C. §§ 2-702(2), 2-705, and 2-706; and Ward Ltd. v. Bignall, (1967) 1

Q.B. 534); see also In re Daylin, Inc., 596 F.2d at 856 (“Section 2-702 does not require the

filing of a formal complaint, and it would be inequitable to permit a buyer to continue to [use]

the goods after a demand has been made.”).

25. Here, the Debtors failed to return the Reclamation Goods to Arco Display

following their receipt of the Reclamation Demand. Adams Declaration, ¶ 14. The Debtors

refused to immediately return the Reclamation Goods to Arco Display for two reasons: (1) the

goods are needed to complete the Debtors’ ongoing store closings, and (2) there is an alleged,

first priority security interest held by JP Morgan Chase Bank, N.A. (the “Lender”). Adams

Declaration, ¶ 14.

26. While Arco Display does not dispute that the Reclamation Goods are being used

by the Debtors for their store closings, this is not a justifiable basis for refusing to return the

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 9 of 15

goods to Arco Display. The Debtors’ obligation was to return the goods. The Debtors’ refusal

to comply with the Reclamation Demand is not justified by their desire to complete their store

closings and, thus, they have impermissibly continued to use of the Reclamation Goods during

this case.

27. In addition, Acro Display disputes that its rights to the Reclamation Goods were

subject to the prior rights of a lender. Arco Display was only provided with mere

representations of the Lender’s security interests, but was not provided any real evidence of the

same.

28. Moreover, section 546(c) does not create a special property right for lenders – it

merely preserves their prior rights, if any. As stated in Butner v. United States, the property

rights asserted by any lender are governed by state law and not federal law:

property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceedings. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ The justifications for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee in rents earned by mortgaged property.

440 U.S. 48, 55 (1979) (quoting Lewis v. Manufacturers National Bank, 364 U.S. 603, 609

(1961); Sabine Oil & Gas Corp. v. Nordheim Eagle Ford Gathering, LLC, 734 Fed. Appx. 64,

66 (2d Cir. 2018) (“bankruptcy courts must apply state law when reviewing questions of

property law.”).

29. The purpose of section 546(c), in part, is to “recognize…the validity of § 2-702

of the Uniform Commercial Code…” In re Deephouse Equipment Co., 22 B.R. 255, 257-258

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 10 of 15

(Bankr. D. Conn. 1982) (quoting H.Rep.No. 595, 95th Cong. 1st Sess. 371-72 (1977); S.Rep.No.

989, 95th Cong. 2nd Sess. 86-87 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6328)).

30. Historically, the interests of a defrauded seller in the goods sold are the superior

interests, because a buyer only holds a voidable title. See In re Koreag, Controle et Revision

S.A., 961 F.2d 341, 356 (2d Cir. 1992) (finding that a seller was entitled to reclamation under

N.Y.U.C.C. § 2-702(2) and that the goods at issue (i.e. U.S. dollars) could “not be considered

‘property of [the debtor’s] estate’ within the meaning of 11 U.S.C. § 304(b)(2)); In re Daylin,

Inc. 596 F.2d 853, 856 (9th Cir. ) (U.C.C. Article 2 does not specify rights, so courts look to

state law and have found that “under § 2-702, the buyer takes a voidable title from the moment

of sale, a lien creditor cannot avoid the retroactive reversion of title to the reclaiming seller.”).

31. As set forth in Phar-Mor, Inc. v. McKesson Corp.:

[N]o reason exists why, as between attaching creditors and vendors asserting an enforceable equity growing out of the contract of sale, the latter should not be preferred. It would certainly be unjust to subject to the payment of the debts of their fraudulent vendee, goods he had improperly obtained from them, and which in equity, they were entitled to reclaim. This would virtually secure to such vendee the fruits of his fraud by the payment of his debts to the extent of the value of the goods, and defeat the equity of the vendor and the object of the statute.

534 F.3d at 506 (quoting In re Mel Golde Shoes, Inc., 403 F.2d 658, 661 (6th Cir. 1968)).

32. Section 2-702 of the Uniform Commercial Code has as a “base line the

proposition that any receipt of goods on credit by an insolvent buyer amounts to a tacit business

misrepresentation of solvency and therefore is fraudulent as against the particular seller.”

Official Cmt 2; see also N.Y.U.C.C. § 2-702, Official Cmt. 2; N.J. Stat. §12A:2-702, Official

Cmt. 2; In re Federal’s Inc., 553 F.2d 509, 511 (6th Cir. 1977). As a result, goods held by a

buyer subsequent to a reclamation demand are held in trust for the seller because they were

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 11 of 15

acquired by fraud. Phar-Mor, Inc. v. McKesson Corp., 534 F.3d at 507-508 (citing In re Am.

Food Purveyors, Inc., 17 UCC Rep. Serv. 436 (Bankr. N.D. Ga. 1974)).

33. Even if a lender holds a priority interest in the Reclamation Goods, and sought to

enforce its interest, Arco Display’s interests in those goods are not extinguished. A seller’s

interest in goods sold may be subject to superior rights of other creditors; however,

“subordination is not the equivalent of a cancellation or an extinguishment, for although its first

position might be eliminated, a seller with an otherwise valid right would still be ‘relegated to

some less commanding station.’” In re Roberts Hardware Co., 103 B.R. 396, 398 (Bankr.

N.D.N.Y. 1988) (quoting Harris Trust and Savings Bank v. Wathen’s Elevators, Inc. (In re

Wathen’s Elevators, Inc.), 32 B.R. 912, 923 (Bankr. W.D. KY 1983)).

34. Here, a prior interest of a lender has been asserted by the Debtors but has not yet

been established or supported by evidence. However, based on information and belief, the

Lender has no intention of asserting its lien, if any, against the Reclamation Goods. To the

extent it seeks to do so, proof of any lenders’ claims in the Reclamation Goods is demanded,

and, to the extent that such proof is based on a floating lien interest, Acro Display asserts that its

specific claim in the Reclamation Goods is superior based on the fraud perpetrated by the

Debtors as implicitly recognized by the property rights provided by the States.

C. Acro Display is Entitled to an Administrative Expense Claim Arising from the Benefits to the Debtors’ Estate From the Continued Use of the Reclamation Goods

35. Despite having no right to do so, the Debtors have continued to use and benefit

from the Reclamation Goods during the course of this case and their store closings. As a result,

Acro Display is entitled to an administrative expense claim under section 503 of the Bankruptcy

Code.

36. Section 503(b)(1)(A) of the Bankruptcy Code provides that:

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 12 of 15

After notice and a hearing, there shall be allowed, administrative expenses, other than claims allowed under section 502(f) of this title, including — (1)(A) the actual, necessary costs and expenses of preserving the estate ...

11 U.S.C. § 503(b)(1)(A).

37. Under Section 503(b)(1)(A) of the Bankruptcy Code, “[a]n expense is

administrative only if it arises out of a transaction between the creditor and the bankrupt’s

trustee or debtor in possession, and only to the extent that the consideration supporting the

claimant’s right to payment was both supplied to and beneficial to the debtor-in-possession in

the operation of the business.” In re Bethlehem Steel Corp., 479 F.3d 167, 172 (2d Cir. 2007)

(citing Trustees of Amalgamated Ins. Fund v. McFarlin’s, 789 F.2d 98, 101 (2d Cir. 1986)).

38. The right to an administrative expense claim is demonstrated when a claimant

shows: “(1) [its] claim arose from a transaction with or on account of consideration furnished to

the debtor-in-possession, and (2) the transaction or consideration directly benefited the debtor-

in-possession.” In re Patient Educ. Media, 221, B.R. 97, 101 (Bankr. S.D.N.Y. 1998) (citations

omitted). The continued, post-petition use of property gives rise to an administrative expense

claim. See In Re John’s Meat Emporium, 176 B.R. 700, 707 (Bankr. E.D.N.Y. 1995); In re

Kuvykin, 2018 Bankr. LEXIS 2634 * 9, 18-10760(JLG) (Bankr. S.D.N.Y. Aug. 31, 2018) (citing

In re Espinosa, 542 B.R. 403, 412-14 (Bankr. S.D. Tx 2015)).

39. If a debtor ignores a reclamation demand, a creditor may be entitled to an

administrative expense claim to the extent doing so benefits the estate. In re Circuit City Stores,

Inc., 441 B.R. 496, 507 (Bankr. E.D. Va 2010); In re First Magnus Fin. Corp., 2008 Bankr.

LEXIS 4320 *13.

40. The amount of an administrative expense claim should be based on evidence of

the amount of the reclamation goods. In re Waccamaw’s HomePlace, 298 B.R. 233, 239

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 13 of 15

(Bankr. D. Del. 2003). However, “[a] priority in bankruptcy should not depend for its existence

upon the contingency of whether specific assets are within the bankrupt’s estate.” Phar-Mor,

Inc. v. McKesson Corp., 534 F.3d at 507 (quoting In re Federal’s Inc., 553 F.2d 509, 518 (6th

Cir. 1977)). “The focus of [section] 546(c) is on the petition date.” In re Waccamaw’s

HomePlace, 298 B.R. at 237. A resulting diminution in the value of property used by a debtor

after the petition date can form the basis of an administrative expense. LNC Invs., Inc. v. First

Fid. Bank, N.A., 1997 U.S. Dist. LEXIS 12858 * 25, 92-civ-7584 (S.D.N.Y. Aug. 27, 1997)

(citing In re Carpet Center Leasing Co., 991 F.2d 682 (11th Cir. 1993)).

41. On the Petition Date, the Debtors had possession of the Reclamation Goods. On

information and belief, the Debtors continue to possess these goods and continue to benefit from

their use. The Debtors have no intention of selling or otherwise disposing of the Reclamation

Goods – other than by abandoning them at the completion of their store closings. Adams

Declaration, ¶ 14. The Reclamation Goods are customized shelving units that were provided to

the Debtors for the unique space and needs of each store. Adams Declaration, ¶ 8. Outside of

the Debtors’ stores, the Reclamation Goods hold very little value, if any. Adams Declaration, ¶

14. At the time the Debtors abandon the Reclamation Goods, their value will have been almost,

if not entirely, depleted. Adams Declaration, ¶ 14. The benefit to the Debtors and their estate is

the use of the Reclamation Goods post-petition, which will result it depleting the entire value of

the Reclamation Goods. Therefore, Arco Display is entitled to an administrative expense claim

for the full value of the Reclamation Goods as reflected on the Reclamation Period Invoices.

42. Acro Display is entitled to an allowed administrative expense for the actual cost

and value of the Reclamation Goods that the Debtors received post-petition. As evidenced by

the Reclamation Period Invoices, $133,933.67 is the actual cost incurred by the Debtors and the

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 14 of 15

value of the post-petition use of the Reclamation Goods. Adams Declaration, ¶ 9. The

Reclamation Goods provided by Acro Display were needed to continue and maintain the

Debtors' business during the Chapter 11 proceedings and were necessary to preserve the

Debtors' estate. Adams Declaration, ¶ 15.

43. Courts have the discretion as to whether to provide for immediate payment of an

allowed administrative claim. In re Shihai, 392 B.R. 62, 68 (Bankr. S.D.N.Y. 2008); In re

Baptist Medical Ctr. of New York, Inc., 52 B.R. 417, 421 (E.D.N.Y. 1985), aff’d, 781 F.2d 973

(2d Cir. 1986); In re HQ Global Holdings, Inc., 282 B.R. 169, 173 (Bankr. D. Del. 2002). Acro

Display respectfully requests that the Court order the administrative expense claim to which

Arco Display is entitled, be paid, in full, within five (5) days after entry of the Administrative

Expense Order.

REQUEST FOR JUDICIAL NOTICE

44. Pursuant to Rule 201 of the Federal Rules of Evidence (as incorporated by Rule

9017 of the Federal Rules of Bankruptcy Procedure), Acro Display respectfully request that this

Court take judicial notice of the pleadings filed in this case and the facts set forth in this Court’s

Orders.

RESERVATION OF RIGHTS

45. Notwithstanding the foregoing, Acro Display expressly reserves all (and does not

hereby waive any) of its (a) rights, claims, counterclaims, defenses, interests, actions and

remedies related to (i) any claim or proof of claim that has been filed or may be filed in the

future, including a claim under section 503(b)(9) of the Bankruptcy Code, (ii) any

administrative expense claim as may be asserted hereinafter, including without limitation the

(A) right to a judicial determination of the amount(s) due and owing with regard to any claim,

26041955v.2 20-12097-scc Doc 226 Filed 11/06/20 Entered 11/06/20 12:45:54 Main Document Pg 15 of 15

(B) the right to resolution of all issues implicated by Acro Display’s claims and/or contracts

between Acro Display and the Debtors, (C) the right to amend, modify or supplement this

Motion in response to, or as a result of, any submission by any party-in-interest and (D) the right

to adopt any other pleadings filed by any other party related to Acro Display’s claims or this

Motion (collectively, the “Reservation of Rights”).

WHEREFORE, creditor Acro Display respectfully requests that the Court enter an

order substantially in the form of the proposed Administrative Expense Order, granting Acro

Display an allowed administrative expense in the amount of $133,933.67, ordering Debtors to

pay such administrative expense within five (5) business days after entry of the Administrative

Expense Order, without prejudice to Acro Display’s right to request payment from the

Debtors upon further application to this Court, approving the Reservation of Rights, and

granting such additional relief as this Court deems just and proper.

Dated: New York, New York WHITE AND WILLIAMS LLP November 6, 2020 /s/ James C. Vandermark James C. Vandermark 7 Times Sq., Suite 2900 New York, NY 100036 [email protected]

Counsel to Acro Display LLC

26041955v.2 20-12097-scc Doc 226-1 Filed 11/06/20 Entered 11/06/20 12:45:54 Proposed Order Pg 1 of 3

Exhibit A

(Proposed Order) 20-12097-scc Doc 226-1 Filed 11/06/20 Entered 11/06/20 12:45:54 Proposed Order Pg 2 of 3

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

In re: : Chapter 11 : CENTURY 21 DEPARTMENT STORES LLC, et al.,1: Case No. 20-12097 (SCC) : : Debtors. : (Jointly Administered)

ORDER GRANTING ACRO DISPLAY LLC’S MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE PURSUANT TO SECTION 503(b) OF THE BANKRUPTCY CODE

Upon consideration of Acro Display LLC’s Motion for Allowance and Payment of

Administrative Expense Pursuant to Section 503(b) of the Bankruptcy Code [ECF No. __ ] (the

“Motion”);2 and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; and consideration of the Motion and the requested relief being a core proceeding pursuant to 28 U.S.B. § 157(b); and venue being proper pursuant to 28 U.S.C. §§ 1408 and 1409; and due and sufficient notice of the Motion having been given under the particular circumstances; and after due deliberation and sufficient cause appearing therefore,

IT IS HEREBY ORDERED THAT:

1. The Motion is GRANTED as provided herein.

2. Acro Display LLC is hereby allowed an administrative expense claim pursuant to

11 U.S.C. § 503(b) in the amount of $133,933.67 (the “Administrative Expense Claim”).

26122470v.1 20-12097-scc Doc 226-1 Filed 11/06/20 Entered 11/06/20 12:45:54 Proposed Order Pg 3 of 3

3. The Debtors shall pay the Administrative Expense Claim within five (5) business days after the entry of this Order.

4. The Reservation of Rights (as defined in the Motion) is approved.

5. This Order is without prejudice to the right of Acro Display LLC to assert a claim for any further administrative expenses for amounts owed by the Debtors and arising after the

Petition Date.

6. This Court shall retain jurisdiction over any and all matters arising from or related to the implementation or interpretation of this Order.

Dated: ______, 2020 New York, New York ______HONORABLE SHELLEY C. CHAPMAN UNITED STATES BANKRUPTCY JUDGE

-2- 26122470v.1 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 1 of 6

WHITE AND WILLIAMS LLP James C. Vandermark, Esq. 7 Times Square, Suite 2900 New York, NY 10036 (212) 244-9500 [email protected]

Counsel to Acro Display LLC

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

In re: : Chapter 11 : CENTURY 21 DEPARTMENT STORES LLC, et al.,1: Case No. 20-12097 (SCC) : : Debtors. : (Jointly Administered)

DECLARATION OF PAUL ADAMS IN SUPPORT OF ACRO DISPLAY LLC’S MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE EXPENSE PURSUANT TO SECTION 503(b) OF THE BANKRUPTCY CODE

I, Paul Adams, pursuant to 28 U.S.C. § 1746 do hereby declare as follows:

1. I am the Manager of Acro Display LLC (“Acro Display”) and I am authorized to execute this Declaration on behalf of Acro Display. If called to testify, I could and would competently testify to the facts set forth herein based on my personal knowledge of those facts, events and transactions.

2. I submit this Declaration in support of the Acro Display LLC’s Motion for

Allowance and Payment of Administrative Expense Pursuant to Section 503(b) of the Bankruptcy

Code (the “Motion”).2

1 The Debtors in these chapter 11 proceedings, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are Century 21 Department Stores LLC (4073), L.I. 200, Inc. (9619), C21 Department Stores Holdings LLC (8952), Giftco 21 LLC (0347), Century 21 Fulton LLC (4536), C21 Philadelphia LLC (2106), Century 21 Department Stores of New Jersey, L.L.C. (1705), Century 21 Gardens of Jersey, LLC (9882), C21 Sawgrass Blue, LLC (8286), C21 GA Blue LLC (5776), and Century Paramus Realty LLC (5033). 2 Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Motion.

26121275v.2 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 2 of 6

3. Acro Display is a family owned and operated company with approximately 15 employees. It specializes in manufacturing custom displays in the retail merchandising, point-of- purchase and consumer industries and has a long history of providing some of the finest and most cost effective retail displays, fixtures, interiors and environments.

MAINTENANCE OF BUSINESS RECORDS

4. In my official capacity, I have personal knowledge of the method by which Acro

Display maintains permanent records of its transactions (the “Transaction”) with its customers, and, thereupon, I declare and state that Acro Display maintains permanent records of all

Transactions in a computerized accounting system. All amounts due and owing to Acro Display with respect to any Transaction with an Acro Display customer, including, but not limited to, payments related to products designed, sold, and installed for customers, and taxes owed thereon, are entered in this accounting system at, or near, the time such obligations re incurred.

5. Likewise, all payments made by an Acro Display customer with respect to any obligation or Transaction, and all other credits and debits related to any obligation or Transaction, are entered in this accounting system at, or near, the time such payment is received and/or such credit or debit is made or incurred. Each such entry is made in the regular course of business by employees of Acro Display who process these payments, receipts, credits, and debits. If necessary,

Acro Display can provide printed copies of all entries.

6. I have personal knowledge of the manner by which Acro Display maintains records of its agreements, contracts, order forms, statements of work, schedules and any related documents, and all amendments to any of the foregoing (collectively the “Agreements”) with its customers. As a regular part of its business, Acro Display maintains permanent records of the

-2- 26121275v.2 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 3 of 6

Agreements and these records are compiled at the time, or near the time, that an Agreement is received or processed.

BACKGROUND

7. I have personally reviewed Acro Display’s records relating to the Debtors, including with respect to the Transactions and Agreements with the Debtors, and I am personally familiar with Acro Display’s accounts for the Debtors.

8. From January 2020 through September 2020, pursuant to purchase orders (the

“POs”) from the Debtors and at the Debtors’ continued direction, Acro Display designed, built, and installed custom shelving units at several of the Debtors’ stores. True and correct copies of the POs are attached hereto as Exhibit A. The shelving units were specialized for the unique needs of each of the stores with an angled design to allow the customer to see the shoe to increase the

Debtors’ sales.

9. As of the Petition Date, the Debtors had failed to pay a number of invoices, which totaled at least $375,341.89. This includes the following invoices for goods delivered to the

Debtors within the forty-five (45) days preceding the Petition Date (the “Reclamation Period

Invoices”):

True and correct copies of the Reclamation Period Invoices are attached as Exhibit B.

-3- 26121275v.2 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 4 of 6

10. Although the Debtors defaulted on their payment obligations, they induced Acro

Display to continue to provide goods on the promise of payment in full. Based on these promises,

Acro Display continued to deliver and install custom shelving units for the Debtors as recently as just seven (7) days before the Petition Date. Acro Display did not receive any payment for the

Reclamation Goods.

11. Based on information and belief, the Debtors continue to use the Reclamation

Goods in their stores. The Debtors, with the consent of the Lender, have offered to allow Acro

Display to reclaim the Reclamation Goods after their store closings are complete. However, the value of the custom shelving units is unique to the Debtors and their stores. By the time the Debtors complete their store closings, they will have used the entire value of the Reclamation Goods.

12. On or about September 18, 2020, Acro Display, through its counsel, provided the

Debtors’ with the Reclamation Demand and notified the Debtors of its demand for the immediate return of the Reclamation Goods. The Reclamation Demand also informed Debtors that they no longer had “permission, consent, authorization or right to use the Reclamation Goods.” A true and correct copy of the Reclamation Demand is attached hereto as Exhibit C.

13. The Reclamation Period Invoices were enclosed with the Reclamation Demand and accurately reflect that Acro Display provided the Reclamation Goods to the Debtors’ stores in three (3) states: New York, New Jersey, and Florida (collectively, the “States”).

14. Despite the Reclamation Period Invoices properly identifying the Reclamation

Goods and their location, the Debtors refused to immediately return the Reclamation Goods. The

Debtors claimed the Reclamation Goods were being used in their store closings and that the Lender held an alleged, first priority security interest. Based on information and belief, the Debtors have no intention of selling or otherwise disposing of the Reclamation Goods – other than by

-4- 26121275v.2 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 5 of 6

abandoning them at the completion of their store closings. Outside of the use by the Debtors, the

Reclamation Goods have very little value. Thus, by the time the Debtors abandon the Reclamation

Goods, their value will be depleted.

15. As reflected by the Debtors refusal to return the Reclamation Goods until after the store closings, the Reclamation Goods were needed to continue and maintain the Debtors' business during the Chapter 11 proceedings and were necessary to preserve the Debtors' estate.

16. Acro Display respectfully requests that the Court allow Acro Display an administrative expense claim in amount of $133,933.67 and order the administrative expense claim to which Acro Display is entitled, be paid, in full, within five (5) days after entry of the

Administrative Expense Order.

[REMAINDER OF PAGE LEFT INTENTIONALLY LEFT BLANK]

-5- 26121275v.2 20-12097-scc Doc 226-2 Filed 11/06/20 Entered 11/06/20 12:45:54 Adams Declaration Pg 6 of 6 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 1 of 113

Exhibit A

(Purchase Orders) Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 2 of 113

Purchase Order PO Number: 73656 Date: 1/7/20

Supplier From ACRO DISPLAY. INC. Century 21 2250A SHERMAN AVENUE 1 Emerson Ln PENNSAUKEN, NJ, US, 08110 Secaucus, NJ, 07094

Contact: Paul Proietto Contact: Johnny Gomez Phone: 215-229-1100 Phone: 212-227-9092 x7401 Fax: Fax: E-mail: [email protected] E-mail: [email protected]

OneMarket ID: 843186-1 Location: None

Order Items

Line Item ID Description UOM Quantity Unit Price Amount Supplies-Un assemble and pack sunglass unit at Herald Square to ship to 1 Each/1.0 1 $5,778.00000 $5,778.00 the DC's Estimated Shipping: N/A Tax: $0.00 Total: $5,778.00

Order comments: None

Shipping Information

Destination #1 Century 21 Contact Name: 51st West 33rd Street Phone: E-mail: New York , NY , 10001 Comments: None Arrive On Date: None Plan Ship Date:None

Order Components

By accepting this order you are expressly agreeing on Vendor's behalf to the terms and conditions, which begin on the following page. You are also representing that you are authorized to legally bind Vendor, and you and Vendor each acknowledge and agree that Buyer and LSI (each defined in the terms and conditions) are relying on such representation and that the terms and conditions are a material and integral part of the Order.

Master Services Agreement

This Master Services Agreement (this "Agreement"), dated as of ______(the "Effective Date"), is by and between [VENDOR NAME], with offices located at [ADDRESS] (the "Vendor") and Century 21 Department Stores, LLC, a New York Limited Liability Company, with offices located at 22 Cortlandt Street, New York, NY 10007 (the "Customer").

WHEREAS, Customer desires to retain Vendor to provide certain [DESCRIPTION OF SERVICES] services upon the terms and conditions hereinafter set forth, and Vendor is willing to perform such services. In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:

1. Definitions.

a. "Action" has the meaning set forth in Section 11.1.

b. "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by

1 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 3 of 113 contract or otherwise.

c. "Authorized Service Recipients" means the Affiliates of Customer as may be notified by Customer to Vendor from time to time.

d. "Agreement" has the meaning set forth in the preamble.

e. "Change Order" has the meaning set forth in Section 5.2.

f. "Confidential Information" means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

g. "Customer" has the meaning set forth in the preamble.

h. "Customer Contract Manager" has the meaning set forth in Section 4.1(a)

i. "Customer Equipment" means any equipment, systems, cabling or facilities provided by Customer and used directly or indirectly in the provision of the Services.

j. "Customer Materials" any documents, data, know-how, methodologies, software and other materials provided to Vendor by Customer.

k. "Deliverables" means all documents, work product and other materials that are delivered to Customer hereunder or prepared by or on behalf of Vendor in the course of performing the Services, including any items identified as such in a Statement of Work.

l. "Disclosing Party" means a party that discloses Confidential Information under this Agreement.

m. "Force Majeure Event" has the meaning set forth in Section 15.1.

n. "Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

o. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

p. "Losses" mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys" fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

q. "Permitted Subcontractor" has the meaning set forth in Section 3.1(h).

r. "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

s. "Pre-Existing Materials" means any pre-existing materials specified in a Statement of Work and all documents, data, know-how, methodologies, software and other materials provided by or used by Vendor in connection with performing the Services, in each case developed or acquired by the Vendor prior to the commencement or independently of this Agreement.

t. "Project" means a project as described in a Statement of Work.

u. "Project Milestone" means an event or task described in a Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.

v. "Receiving Party" means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.

w. "Services" mean any professional or other services to be provided by Vendor under this agreement, as described in more detail in a Statement of Work, and Vendor"s obligations under this Agreement.

x. "Statement of Work" means each Statement of Work entered into by the parties and attached to this Agreement, substantially in the form of Exhibit A.

y. "Term" has the meaning set forth in Section 6.

z. "Vendor" has the meaning set forth in the preamble.

aa. "Vendor Contract Manager" has the meaning set forth in Section 3.1(a)(i).

bb. "Vendor Equipment" means any equipment, systems, cabling or facilities provided by or on behalf of Vendor and used directly or indirectly in the provision of the Services.

cc. "Vendor Personnel" means all employees and Permitted Subcontractors, if any, engaged by Vendor to perform the Services.

dd. "Vendor Proposal" means , as applicable, Customer"s Request for Proposal for the Services and Vendor"s response [, attached as Exhibit [A],] describing how Vendor proposes to carry out [the Services/a Project].]

2. Services.

2 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 4 of 113

2.1. Vendor shall provide the Services to Customer [and the Authorized Service Recipients] as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement.

2.2. Each Statement of Work shall include the following information, if applicable: (a) a detailed description of the Services to be performed pursuant to the Statement of Work; (b) the date upon which the Services will commence and the term of such Statement of Work; (c) the name of the Vendor Contract Manager; (d) the fees to be paid to Vendor under the Statement of Work; (e) the Project implementation plan, including a timetable; (f) Project Milestones and payment schedules; (g) any criteria for completion of the Services; (h) procedures for the testing and acceptance of the Services and Deliverables by Customer; and (i) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.

3. Vendor"s Obligations.

3.1. The Vendor shall:

(a) appoint a Vendor employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of Vendor in connection with matters pertaining to this Agreement (the "Vendor Contract Manager"); and Vendor Personnel, who shall be suitably skilled, experienced and qualified to perform the Services;

(b) maintain the same Vendor Contract Manager throughout the Term of this Agreement except for changes in such personnel due to Customer"s request pursuant to Section 3.1(c); or the resignation or termination of such personnel or other circumstances outside of Vendor"s reasonable control;

(c) upon the reasonable written request of Customer, promptly replace the Vendor Contract Manager and any other Vendor Personnel;

(d) before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant Laws applicable to the provision of the Services;

(e) prior to any Vendor Personnel performing any Services hereunder: (i) ensure that such Vendor Personnel have the legal right to work in the United States; and (ii) at its sole cost and expense, conduct background checks on such Vendor Personnel, which background checks shall comprise, at a minimum, a review of credit history, references and criminal record, in accordance with state, federal and local law;

(f) comply with, and ensure that all Vendor Personnel comply with, all rules, regulations and policies of Customer that are communicated to Vendor in writing, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Customer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;

(g) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Vendor in providing the Services in such form as Customer shall approve. During the Term, upon Customer"s written request, Vendor shall allow Customer or Customer"s representative to inspect and make copies of such records; provided that any such inspection shall take place during regular business hours no more than once per year and Customer provides Vendor with reasonable advance written notice;

(h) obtain Customer"s written approval, which consent shall not be unreasonably withheld or delayed/which consent may be given or withheld in Customer"s sole discretion, prior to entering into agreements with or otherwise engaging any Person, including all subcontractors and Affiliates of Vendor, other than Vendor"s employees to provide any Services and Deliverables to Customer (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Customer"s approval shall not relieve Vendor of its obligations under the Agreement, and Vendor shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor"s own employees. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Vendor subcontractor or Vendor; and

(i) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement, and, upon Customer"s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Customer.

3.2. Vendor is responsible for all Vendor Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers" compensation insurance payments and disability benefits.

3.3. Vendor acknowledges that time is of the essence with respect to Vendor"s obligations hereunder and that prompt and timely performance of all such obligations, including all timetables, Project Milestones and other requirements in this Agreement and each Statement of Work, is strictly required.

3.4. [ANY ADDITIONAL VENDOR OBLIGATIONS.]

4. Customer"s Obligations.

4.1. Customer shall:

(a) Reasonably cooperate, at no cost to Customer,with Vendor in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the "Customer Contract Manager");

(b) provide access to Customer"s premisesduring reasonable hours, upon reasonable advance notice, and as agreed with Customer in writing in advance , for the purposes of performing the Services.

(c) respond promptly to any Vendor request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Vendor to perform Services in accordance with the requirements of this Agreement;

(d) provide such Customer Materials or information as Vendor may reasonably request and Customer considers reasonably necessary, in order to carry out

3 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 5 of 113 the Services, in a timely manner, and ensure that it is complete and accurate in all material respects;

(e) ensure that all Customer Equipment is in reasonably good working order.

4.2. [ANY ADDITIONAL CUSTOMER OBLIGATIONS.]

5. Change Orders.

5.1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Vendor shall, within a reasonable time after such request (and, if such request is initiated by Customer, not more than five (5) business days after receipt of Customer"s written request), provide a written estimate to Customer of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement.

5.2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.

6. Term. Each Statement of Work shall specify its own term. This Agreement shall become effective on the Effective Date and shall remain in full force and effect for so long as at least one (1) Statement of Work by the parties hereunder remains continuously in effect [TERM], unless sooner terminated pursuant to Section 13.

7. Fees and Expenses; Payment Terms.

7.1. In consideration of the provision of the Services by the Vendor and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Statement of Work. Payment to Vendor of such fees and the reimbursement of expenses pursuant to this Section 7 shall constitute payment in full for the performance of the Services, and, Customer shall not be responsible for paying any other fees, costs or expenses.

7.2. Where the Services are provided on a time and materials basis: (a) the fees payable for the Services shall be calculated in accordance with Vendor"s fee rates for the Vendor Personnel set forth in the applicable Statement of Work; and (b) Vendor shall issue invoices to Customer monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 7.2, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 7.4.

7.3. Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Vendor in installments, as set out in the Statement of Work. Vendor shall issue invoices to Customer for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 7.4.

7.4. Vendor shall issue invoices to Customer only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Vendor within [30] days after Customer"s receipt of such invoice, except for any amounts disputed by Customer in good faith. All payments hereunder shall be in US dollars and made by check or wire transfer.

7.5. In the event of a payment dispute, Customer shall deliver a written statement to Vendor on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed shall be deemed accepted and shall be paid, notwithstanding disputes on other items, within the period set forth in Section 7.5. The parties shall seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing the Services in accordance with this Agreement notwithstanding any such dispute.

7.6. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Vendor"s income, revenues, gross receipts, personnel or real or personal property or other assets.

8. Intellectual Property Rights; Ownership.

8.1. Except as set forth in Section 8.3, Customer is, and shall be, the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein. Vendor agrees, and will cause its Vendor Personnel to agree, that with respect to any Deliverables that may qualify as "work made for hire" as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a "work made for hire" for Customer. To the extent that any of the Deliverables do not constitute a "work made for hire", Vendor hereby irrevocably assigns, and shall cause the Vendor Personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Vendor shall cause the Vendor Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Vendor Personnel may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral with respect to the Deliverables.

8.2. Upon the reasonable request of Customer, Vendor shall, and shall cause the Vendor Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Customer to prosecute, register, perfect or record its rights in or to any Deliverables.

8.3. Vendor and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Vendor hereby grants Customer and the Authorized Service Recipients a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 16.7), non-sublicenseable, worldwide license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Vendor.

8.4. Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Vendor shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer and provided that Customer has previously consented to such use. All other rights in and to the Customer Materials are expressly reserved by Customer.

4 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 6 of 113 9. Confidential Information.

9.1. Subject to any pre-existing confidentiality agreement, the Vendor agrees:

(a) not to disclose or otherwise make available Confidential Information of the Customerto any third party without the prior written consent of the Customer; provided, however, that the Vendor may disclose the Confidential Information of the Customer to its officers, employees, consultants and legal advisors who have a "need to know", who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 9;

(b) to use the Confidential Information of the Customer only for the purposes of performing its obligations under the Agreement or to make use of the Services and Deliverables; and

(c) to promptly notify the Customer in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Customer.

9.2. If the Vendor becomes legally compelled to disclose any Confidential Information, the Vendor shall provide:

(a) prompt written notice of such requirement so that the Customer may seek, at its sole cost and expense, a protective order or other remedy; and

(b) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.

(c) If, after providing such notice and assistance as required herein, the Vendor remains required by Law to disclose any Confidential Information, the Vendor shall disclose no more than that portion of the Confidential Information which, on the advice of the Vendor"s legal counsel, the Vendor is legally required to disclose and, upon the Customer"s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

9.3. All rights and obligations of the parties in this Section 9 shall extend to three years from the date the last disclosure was made.

10. Representations and Warranties.

10.1. Each party represents and warrants to the other party that:

(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;

(b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;

(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and

(d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

10.2. Vendor represents and warrants to Customer that:

(a) it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;

(b) it is in compliance with, and shall perform the Services in compliance with, all applicable Laws;

(c) Customer will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind;

(d) to Vendor"s knowledge none of the Services, Deliverables and Customer"s use thereof infringe or will infringe any Intellectual Property Right of any third party;

(e) the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work. In the event of Vendor"s breach of the foregoing warranty: (i) The Vendor shall use reasonable efforts to cure such breach; provided, that if Vendor cannot cure such breach within a reasonable time (but no more than 30 days) after Customer"s written notice of such breach; Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 16.4.

(ii) In the event the Agreement is terminated in accordance with this Section 10.2(e), and subject to any direct damages sought by the Customer, Vendor shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for such Service or Deliverable less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.

11. Indemnification.

11.1. Vendor shall defend, indemnify and hold harmless Customer and Customer"s Affiliates [and Authorized Service Recipients] and its officers, directors, employees, agents, successors and permitted assigns (each, a "Customer Indemnitee") from and against all Losses arising out of or resulting from any third- party claim, suit, action or proceeding (each, an "Action") arising out of or resulting from:

(a) bodily injury, death of any person or damage to real or tangible, personal property resulting from the willful, fraudulent or negligent acts or omissions of Vendor or Vendor Personnel, except where such claims arise solely from the gross negligence or willful acts of Customer; and

(b) Vendor"s breach of any representation, warranty or obligation of Vendor set forth in this Agreement.

11.2. Vendor shall defend, indemnify and hold harmless the Customer Indemnitees from and against all Losses based on a claim that any of the Services or Deliverables or Customer"s receipt or use thereof infringes any Intellectual Property Right of a third party.

5 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 7 of 113

11.3. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party"s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party"s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party"s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party"s failure to perform any obligations under this Section 11.4 shall not relieve the indemnifying party of its obligations under this Section 11.4 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

12. Limitation of Liability.

12.1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. Termination; Effect of Termination.

13.1. The Customer, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, by providing at least [forty-five (45)] days" prior written notice to the other party.

13.2. Either party may terminate this Agreement, effective upon written notice to the other party (the "Defaulting Party"), if the Defaulting Party:

breaches this Agreement or a Statement of Work hereunder and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach. If the non-breaching party elects not to terminate, this provision shall not act as a waiver of any or all rights that may flow or accrue from such a breach, including but not limited to terminating this agreement. (a) (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

13.3. Upon expiration or termination of this Agreement for any reason:

(a) Vendor shall (i) promptly deliver to Customer all Deliverables (whether complete or incomplete) for which Customer has paid[, all Customer Equipment] and all Customer Materials, (ii) promptly remove any Vendor Equipment located at Customer"s premises, (iii) provide reasonable cooperation and assistance to Customer in transitioning the Services to an alternate Vendor, and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services or Deliverables which have not been provided.

(b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party"s Confidential Information, (ii) permanently erase all of the other party"s Confidential Information from its computer systems and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Customer may retain copies of any Confidential Information of Vendor incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.

(c) In no event shall Customer be liable for any Vendor Personnel termination costs arising from the expiration or termination of this Agreement.

13.4. The rights and obligations of the parties set forth in this Section 13.4 (Survival) and Section 1 (Definitions), Section 8 (Intellectual Property Rights), Section 9 (Confidential Information), Section 10 (Representations and Warranties), Section 11 (Indemnification); Section 12 (Limitation of Liability), Section 13.3 (Effect of Termination), Section 14 (Insurance), and Section 16 (Miscellaneous), and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

14. Insurance.

See Attached Insurance Addendum 14.2 Upon the written request of Customer, Vendor shall provide Customer with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 14, and shall not do anything to invalidate such insurance. In the event Vendor does not provide such copies of certifies of insurance and the requisite policy endorsements, Vendor shall have two (2) days to cure such noncompliance, failing which Vendor shall be deemed to be in default pursuant to Section 13.2(a) of this Agreement, entitling Customer to terminate this Agreement. This Section 14 shall not be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations imposed under this Agreement (including but not limited to, any provisions requiring a party hereto to indemnify, defend and hold the other harmless under this Agreement).

15. Force Majeure.

15.1. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party"s reasonable control, including, without limitation: acts of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; shortage of adequate power or telecommunications or transportation facilities; or any other event which is beyond the reasonable control of such party (each of the foregoing, a "Force Majeure Event").

15.2. A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.

15.3. The non-affected party may terminate this Agreement or any affected Statement of Work if such failure or delay continues for a period of 30 days or

6 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 8 of 113 more and, if the non-affected party is Customer, receive a refund of any amounts paid to the Vendor in advance for the affected Services.

16. Miscellaneous.

16.1. Further Cooperation. Each party shall, upon the reasonable request of the other party, execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

16.2. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.3. Publicity. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other party"s trademarks, service marks, trade names, logos, symbols or brand names, in each case, without the prior written consent of the other party.

16.4. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties and Customer"s legal representatives at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.4, or (e) if to the Vendor, Vendor consents to notice by electronic means to known or provided point of contact with confirmation of receipt.

If to Vendor:

[to Vendor Address Listed Below

If to Customer:

Century 21 Department Stores, LLC 22 Cortlandt Street, New York, NY 10007Attention: Legal

And

Randolph Amengual, Esq. Katsky Korins LLP 605 Third Avenue New York, New York 10158

16.5. Interpretation. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits and Statements of Work refer to the Sections of, and Schedules, Exhibits and Statements of Work attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

16.6. Entire Agreement; Order of Precedence. This Agreement, together with all Schedules, Exhibits and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits and Schedules; (b) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to this Agreement; and (d) fourth, any Vendor Proposal.

16.7. Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that, upon prior written notice to the other party, either party may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

16.8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

16.9. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

16.10. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

7 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 9 of 113 as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16.12. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal or applicable federal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and corresponding County], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party"s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

16.13. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

16.14. Equitable Relief. Each party acknowledges that a breach by a party of Section 8 (Intellectual Property Rights; Ownership) or Section 9 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

16.15. Attorneys" Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys" fees and court costs from the non-prevailing party.

16.16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

[VENDOR NAME]

Century 21 Department Stores, LLC

By______

Name:

Title:

Address:

By______

Name:

Title:

INSURANCE ADDENDUM

The following insurance with the limits stated will be provided by the Vendor for the contracted work:

1. Commercial General Liability insurance providing minimum limits of $1,000,000 combined single limit covering both bodily injury and property damage, with a $2,000,000 general aggregate.

Coverage also includes:

(a) Broad Form Property Damage.

(b) Independent Vendors.

(d) Completed Operations. This portion of coverage must be maintained for a period of two years after completion of project.

2. Commercial Automobile Liability Insurance providing minimum limits of $1,000,000 per occurrence.

3. Workers" Compensation, including Employers Liability.

4. Umbrella/Excess Liability providing coverage over and above the underlying Commercial General Liability and Commercial Automobile Liability policies, with minimum limits of $10,000,000 per occurrence and in the aggregate.

5. All insurance policies shall be obtained by the Vendor and shall be agreed upon by Customer prior to the commencement of the work. Certificates of Insurance will be submitted or be available to the Customer prior to commencement of the work.

6. Customer to be named as additional insured on Commercial General Liability and Commercial Automobile Liability policies. The policies must

8 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 10 of 113 provide primary insurance coverage on behalf of Customer and must include ISO forms CG2010 and CG2037, or their equivalent so that additional insured status is provided for both premises claims and completed operations claims. Customer to receive 30 days notice of cancellation or non-renewal of coverage and/or changes in limits of coverage.

7. Vendor agrees not to subcontract any part of the work called for by this contract or permit the further subcontracting of any part thereof, without prior notice to Customer and only with the written consent of Customer. If Customer consents to such subcontracting or further subcontracting, then every such contract or subcontract shall contain complete provisions identical to paragraphs included herein for the benefit, protection, and indemnification of Customer. Customer shall be furnished immediately after the execution of each such contract with a certification of the subcontractor issuing the contract that such clauses are contained in the contract.

8. All insurance companies providing the insurance protection set forth above shall maintain a "Bests" rating of "A IX" or better and be authorized to do business in the State of New York.

9. Vendor hereby agrees to indemnify and hold harmless Customer and their agents, servants or employees from any and all claims, losses, suits, damages, judgments, expenses, costs and charges of every kind and nature, both legal and otherwise, whether direct or indirect, by reason of personal injuries, death or property damage sustained by persons or others caused by, arising out of, or occurring in connection with the work provided for under the terms of this contract, if such injuries, death or damage are due in part or in entirety to negligence on the part of the Vendor and/or their agents, servants or employees, it being the specific intention of the parties hereto that the Vendor shall be solely responsible to and be bound to indemnify Customer.

9 of 9 10/26/2020, 1:33 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 11 of 113

Purchase Order PO Number: 73657 Date: 1/8/20

Supplier From ACRO DISPLAY. INC. Century 21 2250A SHERMAN AVENUE 1 Emerson Ln PENNSAUKEN, NJ, US, 08110 Secaucus, NJ, 07094

Contact: Paul Proietto Contact: Johnny Gomez Phone: 215-229-1100 Phone: 212-227-9092 x7401 Fax: Fax: E-mail: [email protected] E-mail: [email protected]

OneMarket ID: 843210-1 Location: None

Order Items

Line Item ID Description UOM Quantity Unit Price Amount 1 Construction-Cost of Material- Blanket, Blocks, wrap corner guard skids Each/1.0 1 $6,408.00000 $6,408.00 Construction-Herald Square- 1 supervisor - union $80 per hour - 4 non 2 Each/1.0 1 $10,800.00000 $10,800.00 union workers - $40 per hour - 5 days- 10 hours per day Construction-American Dream- 1 supervisor - union $80 per hour - 4 non 3 Each/1.0 1 $10,800.00000 $10,800.00 union workers - $40 per hour - 5 days- 10 hours per day Estimated Shipping: $2,232.00 Tax: $0.00 Total: $30,240.00

Order comments: None

Master Services Agreement

1. Definitions.

a. "Action" has the meaning set forth in Section 11.1.

c. "Authorized Service Recipients" means the Affiliates of Customer as may be notified by Customer to Vendor from time to time.

d. "Agreement" has the meaning set forth in the preamble.

e. "Change Order" has the meaning set forth in Section 5.2.

1 of 9 10/26/2020, 1:29 PM Purchase Order https://logicsource.net/PrintPurchaseOrder.jsp?omt=r6yx-no87-7hbw-m... 20-12097-scc Doc 226-3 Filed 11/06/20 Entered 11/06/20 12:45:54 Ex. A - Purchase Orders Pg 12 of 113 Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.