Case PJW Doc 761 Filed 10/10/14 Page 1 of 7 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case PJW Doc 761 Filed 10/10/14 Page 1 of 7 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) AFTER-PARTY2, INC. (f/k/a Event Rentals, ) Case No.: (PJW) Inc.), et al., ) Jointly Administered ) Debtors. ) Obj. Deadline: October 10, 2014, at 4 p.m. ) Hearing Date: To Be Announced ) Related Docket No. 749 OBJECTION OF 550 MEADOWLAND PARKWAY, L.L.C. TO NOTICE OF DEBTORS INTENT TO ASSUME, ASSIGN, TRANSFER, AND/OR SELL CERTAIN DESIGNATIONS RIGHTS CONTRACTS COMES NOW, 550 Meadowland Parkway, L.L.C. ( Meadowland ), by and through its attorneys, McCarter & English, LLP, to object to the Notice of Debtors Intent to Assume, Assign, Transfer, and/or Sell Certain Designations Rights Contracts (the Notice ) as follows: BACKGROUND 1. On December 13, 2010, Meadowland and Classic Northeast, Inc. ( Classic ) entered into that certain lease agreement (the Lease ) for the lease of real property located at 550 Meadowland Parkway, Secaucus, New Jersey (the Property ). A copy of the Lease is attached hereto as EXHIBIT A and incorporated herein by reference. Special Event Holding, Inc. ( SPHI ) guaranteed Classic s performance under the Lease. In the event that Classic defaulted on its obligations or was otherwise unable to perform under the Lease, SPHI would be liable for any and all damages as a guarantor. 2. Pursuant to the terms of the Lease, Classic agreed to (a) remit monthly lease payments to Meadowland in the amount of $44, by the first day of each month; (b) pay the real estate tax for its use of the Property; (c) pay all utility charges, including, but not limited ME v.1

2 Case PJW Doc 761 Filed 10/10/14 Page 2 of 7 to gas, water, sewer electricity and heat; and (d) keep and maintain the Property which includes all repair, replacement and/or restoration work. 3. Classic was also legally obligated to obtain an irrevocable letter of credit in favor of Meadowland (the Letter of Credit ) [Classic] shall provide to [Meadowland] an irrevocable transferable Letter of Credit in the amount of the Security Deposit in form annexed hereto as Exhibit E and issued by a financial institution approved by [Meadowland]. [Meadowland] shall have the right... to draw upon said Letter of Credit to cure any default of [Classic] or for any purpose authorized by section 8.01(a) of this Lease and if [Meadowland] does so, [Classic] shall, upon demand, additionally fund the Letter of Credit with the amount so drawn so that [Meadowland] shall have the full deposit on hand at all times during the Term of the Lease and for a period of thirty (30) days[] thereafter. Exhibit A at The Lease permits Meadowland to draw upon the Letter of Credit to cure any default under the Lease, and in the event that Meadowland draws upon the Letter of Credit, Classic is further obligated to replenish the full amount of funds available under the Letter of Credit for the benefit of Meadowland. See Exhibit A at 8.01(b). 4. Classic breached the Lease by, among other things, failing to pay rent, real estate taxes and various utility bills. Classic failed to cure its acts of default under the Lease. 5. On February 13, 2014 (the Petition Date ), Classic, SPHI and a number of related entities each filed a petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (collectively, the Bankruptcy Cases ). 6. As of the Petition Date, Classic was indebted to Meadowland in an amount no less than $63, Thereafter, Classic continued to make use of the Property, and thus, 1 The Letter of Credit may only be transferred by Meadowland. See Exhibit A at 8.01(a); Exh. B. ME v.1

3 Case PJW Doc 761 Filed 10/10/14 Page 3 of 7 Meadowland has asserted a claim pursuant to Section 503(b)(1) of the Bankruptcy Code for the Stub Rent owed as an administrative expense claim to be paid as a priority claim. 7. On July 18, 2014, After-Party2, Inc. f/k/a Event Rentals, Inc. ( After-Party2 ) filed that certain Motion for an Order Rejecting Unexpired Lease of Non-Residential Real Property Located at 550 Meadowland Parkway, Secaucus, New Jersey Nunc Pro Tunc to July 31, 2014 (the Rejection Motion ), in which After-Party2 seeks the entry of an order authorizing the rejection of the Lease effective July 31, 2014 [D.I. 641]. 8. Meadowland has opposed the Rejection Motion on the basis that (a) the rejection of the Lease should become effective upon the first day that Meadowland is able to re-let the Property; (b) Meadowland possesses a claim against the bankruptcy estate related to the physical damage to the Property caused by Classic during its use of the Property following the Petition Date; (c) Meadowland possesses a claim against the bankruptcy estate related to the rejection of the Lease; and (d) Meadowland intends to draw upon the Letter of Credit to repair the Property and satisfy any other damages, including the claim for stub-rent and rejection damages [D.I. 661, 715]. To the extent that Meadowland required relief from the automatic stay to draw on the Letter of Credit, the opposition set forth adequate cause for relief. 9. The Rejection Motion is currently pending before the Court and scheduled to be heard at the Omnibus Hearing in October On September 26, 2014, After-Party2 filed the Notice, which indicated the intent of the debtors to assume, assign, transfer and/or sell the Letter of Credit [D.I. 749]. ME v.1

4 Case PJW Doc 761 Filed 10/10/14 Page 4 of 7 SUMMARY OF ARGUMENT 11. Meadowland opposes the Notice where the Letter of Credit is not property of the bankruptcy estate, and thus, the debtors lack any right to assume, assign, transfer or sell the Letter of Credit. LEGAL ARGUMENT 12. The Court has consistently ruled that a letter of credit and the proceeds thereof are not property of the bankruptcy estate. See, e.g., OHC Liquidating Trust v. Discover RE, et al. (In re Oakwood Homes Corp.), 342 B.R. 59, 67 (Bankr. D. Del. 2006) (dismissed claims seeking turnover of proceeds from letter of credit); Hechinger Inv. Co. of Del., Inc. v. Allfirst Bank (In re Hechinger Inv. Co. of Del., Inc.), 282 B.R. 149, 161 (Bankr. D. Del. 2002) (dismissed claims seeking turnover of proceeds from letter of credit); Sabratek Corp. v. LaSalle Bank, N.A., et al. (In re Sabratek Corp.), 257 B.R. 732, 735 (Bankr. D. Del. 2000) (denied motion for preliminary injunction to enjoin party from pursuing state court action to draw on letter of credit). 13. It is well understood that [a] letter of credit comprises three separate contracts. In re Oakwood Homes Corp., 342 B.R. at 67. There is the underlying agreement between the buyer and seller. See id. The accountholder and bank enter into a separate agreement to issue a letter of credit. See id. Finally, an agreement forms between the bank and beneficiary of the letter of credit under which the beneficiary may draw on the letter of credit. See id. The relationship between each pair of parties involved in a letter of credit transaction is entirely independent.... Id. ( This rule is predicated on the independence principle which seeks to preserve the viability of letters of credit, whose purpose is to allow the beneficiary to draw on the money before obtaining a judgment. ). This independence principle insulates the letter of credit from disputes over performance of collateral agreements and allows the letter of credit to ME v.1

5 Case PJW Doc 761 Filed 10/10/14 Page 5 of 7 function as a swift and certain payment mechanism. Id. (quoting Demczyk v. Mut. Life Ins. Co. (In re Graham Square), 126 F.3d 823, 827 (6 th Cir. 1997)). Accordingly, a letter of credit and the proceeds thereof are not property of the bankruptcy estate. See id. (citing Int l Fin. Corp. v. Kaiser Grp. Int l Inc. (In re Kaiser Grp. Int l Inc.), 399 F.3d 558, 566 (3d Cir. 2005)). 14. Despite the well-accepted rule excluding a letter of credit as an asset of the bankruptcy estate, the debtors impermissibly seek to assume, assign, transfer and/or sell the Letter of Credit to After-Party2. The debtors lack a legal interest in the Letter of Credit to assume, assign, transfer and/or sell. See 11 U.S.C. 541; In re Hechinger Inv. Co. of Del., Inc., 282 B.R. at 161; In re Sabratek Corp., 257 B.R. at 736. The only legal interest belonging to the debtors concerns Classic s obligation to renew the Letter of Credit for the benefit of Meadowland. See Exh. A at 8.01(b). Further, Classic is prohibited from transferring the Letter of Credit under the terms of the Lease and the Letter of Credit, respectively. See id. at 8.01(a). 15. As in the present case, parties, like Meadowland, insist upon receiving letters of credit... so that they will not have to wait for payment or, even worse, sue and wait for payment. In re Sabratek Corp., 257 B.R. at 737; see also In re Oakwood Homes Corp., 342 B.R. at 67 ( This [independence] insulates the letter of credit from disputes over performance of collateral agreements and allows the letter of credit to function as a swift and certain payment mechanism. ). Meadowland has suffered significant damages as a result of Classic and SPHI s collective default, including, but not limited to unpaid rent, taxes and utility bills (prior to and following the Petition Date) and property damage. Classic obtained the Letter of Credit for this very instance, and Meadowland wishes to utilize proceeds from the Letter of Credit to make itself whole. The Letter of Credit runs for the benefit of Meadowland alone, and none of the debtors possess an interest in the Letter of Credit to bring the Letter of Credit within the umbrella ME v.1

6 Case PJW Doc 761 Filed 10/10/14 Page 6 of 7 of the bankruptcy estate. Accordingly, the debtors may not assume, assign, transfer and/or sell the Letter of Credit. 16. To the extent that the debtors disregard the independence principle underlying the Letter of Credit, the requested relief is inappropriate in light of the debtors efforts to pickand-choose specific portions of the Lease to accept or reject. See Taylor-Wharton Int l LLC v. Blasingame, et al. (In re Taylor-Wharton Int l LLC), Case No (BLS), 2010 Bankr. LEXIS 3994, at *8 (Bankr. D. Del. Nov. 23, 2010). Where the debtors wish to reject the agreement under which Classic was obligated to obtain the Letter of Credit [D.I. 641], i.e., the Lease, they may not sidestep the rule against piecemeal assumption or rejection of executory contracts in order to access the proceeds of the Letter of Credit. See In re Taylor-Wharton Int l LLC, 2010 Bankr. LEXIS 3994, at *8. Finally, in the event that the debtors are permitted to assume and assign the Letter of Credit, they must first cure any and all defaults, including, but not limited to pre-petition claims, administrative expense claims and/or rejection damages claims. See 11 U.S.C. 365(a). 17. Finally, the Letter of Credit was obtained for the benefit of Meadowland, and any proceeds thereof are payable to Meadowland for the purpose of remedying the defaults committed by Classic and SPHI, respectively, under the Lease, which have caused Meadowland to suffer damages. WHEREFORE, 550 Meadowland Parkway, L.L.C. respectfully requests that this Honorable Court enter an order denying the assumption, assignment, transfer and/or sale of the relevant letter of credit; and grant such other and further relief as deemed just and equitable. ME v.1

7 Case PJW Doc 761 Filed 10/10/14 Page 7 of 7 Dated: October 10, 2014 Wilmington, Delaware McCarter & English, LLP /s/ Katharine L. Mayer Katharine L. Mayer (DE# 3758) Matthew J. Rifino (DE# 4749) Renaissance Centre 405 N. King Street, Suite 800 Wilmington, Delaware Telephone: (302) Attorneys for 550 Meadowland Parkway, L.L.C. ME v.1

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69 Case PJW Doc Filed 10/10/14 Page 1 of 1 CERTIFICATE OF SERVICE I, Katharine L. Mayer, hereby certify that on October 10, 2014, I caused a true and correct copy of the foregoing Objection to the Notice of Debtors Intent to Assume, Assign, Transfer, and/or Sell Certain Designations Rights Contracts to be served upon the attached service list by First Class U.S. Mail, postage pre-paid, or in the manner so indicated. Attn: Andrew Hinkelman After-Party2, Inc. c/o FTI Consulting One Front Street, Suite 1600 San Francisco, CA Attn: John K. Cunningham, Esq. White & Case LLP Southeast Financial Center 200 South Biscayne Boulevard, Suite 4900 Miami, Florida Attn: Jeffrey M. Schlerf, Esq. Fox Rothschild LLP 919 North Market Street, Suite 300 Wilmington, Delaware Attn: Lauren Shumejda, Esq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY /s/ Katharine L. Mayer Katharine L. Mayer (DE # 3758) ME v.1