Case LSS Doc 1056 Filed 11/01/16 Page 1 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case LSS Doc 1056 Filed 11/01/16 Page 1 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: VESTIS RETAIL GROUP, LLC, et al. 1, Debtors. Chapter 11 Case No (LSS) (Jointly Administered) Objection Deadline: November 1, 2016 at 4:00 p.m. EDT Re: Docket Nos. 388, 533, 1008 SUPPLEMENTAL OBJECTION OF BRE DDR BR NAUGATUCK CT LLC AND BRE DDR SHOPPERS WORLD LLC TO THE DEBTORS NOTICE OF PROPOSED CURE AMOUNTS IN CONNECTION WITH THE ASSUMPTION AND ASSIGNMENT OF LEASES UNDER THE STALKING HORSE APA BRE DDR BR Naugatuck CT LLC and BRE DDR Shoppers World LLC (each, a Landlord, and, together, the Landlords ), by and through their undersigned counsel, Kelley Drye & Warren LLP, submit this supplemental objection (the Supplemental Objection ) to the Notice of (I) Possible Treatment of Contracts and Leases, (II) Fixing of Cure Amounts, and (III) Deadline to Object Thereto (the Cure Notice ) filed by the above-captioned debtors (the Debtors ). 2 In support of this Supplemental Objection, the Landlords respectfully state as follows: PRELIMINARY STATEMENT 1. The Landlords have already filed an objection (the Initial Objection ) to the Debtors proposed assignment of their leases; however, the cure amounts have increased between the filing of the Initial Objection and the filing of this Supplemental Objection. With 1 The Debtors and the last four digits of their respective federal taxpayer identification numbers are as follows: Vestis Retail Group, LLC (1295); Vestis Retail Financing, LLC (9362); EMS Operating Company, LLC (2061); Vestis IP Holdings, LLC (2459); Bob s Stores, LLC (4675); EMS Acquisition LLC (0322); Sport Chalet, LLC (0071); Sport Chalet Value Services, LLC (7320); and Sport Chalet Team Sales, LLC (8015). The Debtors executive headquarters are located at 160 Corporate Court, Meriden, CT

2 Case LSS Doc 1056 Filed 11/01/16 Page 2 of 9 respect to Store No. 31 in Framingham, MA in particular, $212, in real estate taxes have come due and, for both leases, attorneys fees have increased and continue to accrue. Therefore, the Landlords file this Supplemental Objection to advise of the revised cure amounts for the leases and ensure that they be paid in conjunction with any lease assignment. In addition, the Landlords continue to object to the proposed assignment of the leases on adequate assurance grounds, as stated in the Limited Objection, and seek a guaranty pursuant to section 365(l) of the Bankruptcy Code. The Landlords are working with the Debtors and Versa to potentially resolve this issue and discussions are ongoing in that regard BACKGROUND 2. The Landlords are the owners or the affiliates of the owners of numerous shopping centers located throughout the United States. The Debtors lease retail space from the Landlords pursuant to written leases (each a Lease and, collectively, the Leases ) for the stores at the locations listed on the attached Exhibit A (collectively, the Leased Premises ). The Leased Premises are located in shopping centers as that term is used in section 365(b)(3) of the Bankruptcy Code. See In re Joshua Slocum, Ltd., 922 F.2d 1081 (3d Cir. 1990). 3. On April 18, 2016 (the Petition Date ), each of the Debtors filed a voluntary petition for relief pursuant to chapter 11 of title 11 of the United States Code (the Bankruptcy Code ). The Debtors remain in possession of their properties and continue to manage their businesses as debtors-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 4. On the Petition Date, the Debtors filed the Motion for Orders (A)(I) Authorizing and Approving Bidding Procedures and Expense Reimbursement; 2 Docket No

3 Case LSS Doc 1056 Filed 11/01/16 Page 3 of 9 (II) Authorizing and Approving the Debtors Entry into the Stalking Horse APA; (III) Approving Notice Procedures; (IV) Scheduling a Sale Hearing; and (V) Approving Procedures for Assumption and Assignment and Determining Cure Amounts and (B)(I) Authorizing the Sale of Substantially All of the Debtors Assets Free and Clear of All Claims, Liens, Rights, Interests, and Encumbrances; (II) Approving the Stalking Horse APA; and (III) Authorizing the Debtors to Assume and Assign Certain Executory Contracts and Unexpired Leases (the Sale Motion ) On June 1, 2016, the Court entered the Order (I) Authorizing and Approving the Debtors Entry Into Asset Purchase Agreement; (II) Approving Notice Procedures; (III) Scheduling a Sale Hearing and (IV) Approving Procedures for Assumption and Assignment and Determining Cure Amounts (the Bidding Procedures Order ). 4 The Bidding Procedures Order established, among other things, procedures for the sale of certain unexpired leases of the Debtors, including the Leases, to Versa, pursuant to the Sale Motion. 6. Prior to the auction that was originally contemplated under the Bidding Procedures Order, Versa increased its bid and was declared the successful bidder and the auction was cancelled. 7. On June 1, 2016, the Debtors filed the Cure Notice, which sets forth the Debtors proposed cure amounts in connection with the potential assumption and assignment of the Leases to Versa (the Debtors Proposed Cure Amounts ). 8. On June 7, 2016, the Landlords received Versa s purported adequate assurance information. 3 Docket No Docket No

4 Case LSS Doc 1056 Filed 11/01/16 Page 4 of 9 9. On June 15, 2016, the Landlords filed the Initial Objection to the Cure Notice and to Versa s purported adequate assurance of future performance On October 18, 2016, the Debtors filed the Fifth Notice of Assumption and Assignment of Unexpired Leases and Executory Contracts (the Assignment Notice ), 6 which proposes to assign the Leases to Bob s Stores, LLC, a newly formed entity and affiliate of Versa. OBJECTION 11. The Landlords dispute the Debtors Proposed Cure Amounts, which the Landlords have included for reference on Exhibit A in the column entitled Debtors Cure Amounts. The column titled Landlords Original Cure Amounts includes the cure amounts the Landlords set forth in the Objection. The correct cure amounts for the Leases as of the date of the filing of this Supplemental Objection are set forth on Exhibit A in the column titled Landlords Revised Cure Amounts, which include an updated estimate of attorneys fees incurred to date. The Landlords reserve their rights to further amend the cure amounts to include attorneys fees which continue to accrue and any other obligations that arise and/or become known to the Landlords prior to assumption and assignment of the Leases. 12. Pursuant to the Leases, the Debtors are obligated to pay regular installments of fixed monthly rent, percentage rent, and/or gross rent, as well as a share of common area maintenance costs, real estate taxes, and insurance. In addition, prior to assumption and assignment of the Leases, the Debtors are required by section 365(b)(1) of the Bankruptcy Code to cure all outstanding defaults under the Leases and compensate the Landlords for any actual pecuniary loss, including the payment of related attorneys fees. See 11 5 Docket No Docket No

5 Case LSS Doc 1056 Filed 11/01/16 Page 5 of 9 U.S.C. 365(b)(1)(B). Attorneys fees due under the Leases are compensable. See LJC Corp. v. Boyle, 768 F.2d 1489, (D.C. Cir. 1985); In re Bullock, 17 B.R. 438, 439 (B.A.P. 9th Cir. 1982); In re BAB Enterprises, Inc., 100 B.R. 982, 984 (Bankr. W.D. Tenn. 1989); In re Westview 74 th St. Drug Corp., 59 B.R. 747, 757 (Bankr. S.D.N.Y. 1986); In re Ribs of Greenwich Vill., Inc., 57 B.R. 319, 322 (Bankr. S.D.N.Y. 1986). Accordingly, as part of their pecuniary losses, the Landlords are entitled to attorneys fees in connection with the Debtors obligation to cure all monetary defaults under the Leases. 13. To the extent that rent, attorneys fees, interest, and/or other charges continue to accrue, and/or the Landlords suffer other pecuniary losses with respect to the Leases, the Landlords hereby reserve the right to amend the Landlords Revised Cure Amounts to reflect such additional amounts or to account for year-end adjustments, including without limitation, adjustments for 2014, 2015 and 2016 (the Adjustment Amounts ), which have not yet been billed or have not yet become due under the terms of the Lease. The Debtors or Versa (or any other assignee) must be responsible to satisfy the Adjustment Amounts, if any, when due in accordance with the terms of the Leases, regardless of when such Adjustment Amounts were incurred. 14. Finally, the Landlords request that Versa (or any other assignee of the Leases) be required to comply with all contractual obligations to indemnify and hold the Landlords harmless with regard to events which may have occurred before assumption and assignment but which were not known to either the Landlords or the Debtors as of the date of the assumption and assignment, including, but not limited to, claims for personal injury that occurred at the Leased Premises, damage and destruction to the Leased Premises or property by the Debtors or its agents, and environmental damage or environmental clean-up. 5

6 Case LSS Doc 1056 Filed 11/01/16 Page 6 of 9 RESERVATION OF RIGHTS 15. The Landlords reserve the right to amend and/or supplement this Supplemental Objection, including, without limitation, adding and supplementing objections to proposed cure amounts, adequate assurance information, and to any proposed assignee s ability to perform under the Leases. Further, the Landlords reserve all rights with respect to the proposed assignment order and any further revisions thereto. WHEREFORE, the Landlords request that the Court enter an order: (i) conditioning the assumption and assignment of the Leases on the Debtors and/or Versa (or any other proposed assignee) promptly paying the Landlords Revised Cure Amounts; (ii) requiring the Debtors and/or Versa (or any other proposed assignee) to continue to comply with all obligations under the Leases, including payment of the Adjustment Amounts and satisfaction of any indemnification obligations in the regular course of business; (iii) requiring Versa s parent company to provide the Landlords with a guaranty of payment of all obligations under the Leases; and (iv) granting such other and further relief as the Court deems just and proper. Dated: November 1, 2016 New York, New York KELLEY DRYE & WARREN LLP By: /s/ Robert L. LeHane Robert L. LeHane, Esq. Jennifer D. Raviele, Esq. Scott L. Fleischer, Esq. 101 Park Avenue New York, New York Telephone: (212) Facsimile: (212) Attorneys for BRE DDR BR Naugatuck CT LLC and BRE DDR Shoppers World LLC 6

7 Case LSS Doc 1056 Filed 11/01/16 Page 7 of 9 EXHIBIT A REVISED CURE AMOUNTS Store No. Shopping Center 4 Naugatuck Shopping Center Location Waterbury, CT Landlord BRE DDR BR Naugatuck CT LLC Debtors Cure Amounts Landlords Original Cure Amounts Landlords Revised Cure Amounts $131, $137, $142, Shopper's World Framingham, MA BRE DDR Shoppers World LLC $225, $231, $446,631.88

8 Case LSS Doc 1056 Filed 11/01/16 Page 8 of 9 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: VESTIS RETAIL GROUP, LLC, et al. 1, Debtors. Chapter 11 Case No (LSS) (Jointly Administered) CERTIFICATE OF SERVICE I, Scott L. Fleischer, hereby certify that on November 1, 2016, in addition to the notice and service provided through the Court s CM/ECF system, I served true and correct copies of the foregoing document upon the notice parties on the attached list in the manner indicated. /s/ Scott L. Fleischer Scott L. Fleischer, Esq. KELLEY DRYE & WARREN LLP 101 Park Avenue New York, New York Telephone: (212) Facsimile: (212) The Debtors and the last four digits of their respective federal taxpayer identification numbers are as follows: Vestis Retail Group, LLC (1295); Vestis Retail Financing, LLC (9362); EMS Operating Company, LLC (2061); Vestis IP Holdings, LLC (2459); Bob s Stores, LLC (4675); EMS Acquisition LLC (0322); Sport Chalet, LLC (0071); Sport Chalet Value Services, LLC (7320); and Sport Chalet Team Sales, LLC (8015). The Debtors executive headquarters are located at 160 Corporate Court, Meriden, CT

9 Case LSS Doc 1056 Filed 11/01/16 Page 9 of 9 Via Overnight Mail SERVICE LIST The Honorable Laurie Selber Silverstein United States Bankruptcy Judge 824 North Market Street 6th Floor Wilmington, DE Vestis Retail Group, LLC 160 Corporate Court Meriden, CT Attn: Chief Restructuring Officer Via Klee, Tuchin, Bodganoff & Stern LLP 1999 Avenue of the Stars Thirty-Ninth Floor Los Angeles, CA Attn: Michael L. Tuchin, Esq., Lee R. Bogdanoff, Esq. s: mtuchin@ktbslaw.com, lbogdanoff@ktbslaw.com Counsel to the Debtors and Debtors-in- Possession Sullivan & Cromwell LLP 125 Broad Street New York, NY Attn: Michael H. Torkin, Esq. torkinm@sullcrom.com Counsel to Versa Capital Management Office of the United States Trustee for the District of Delaware Attn: Jane M. Leamy, Esq., Timothy Fox, Esq. 844 King Street, Room 2207 Wilmington, DE s: jane.m.leamy@usdoj.gov, timothy.j.fox@usdoj.gov United States Trustee Young Conaway Stargatt & Taylor, LLP Rodney Square 1000 North King Street Wilmington, DE Attn: Robert S. Brady, Esq., Robert F. Poppiti, Jr., Esq. s: rbrady@ycst.com, rpoppiti@ycst.com Counsel to the Debtors and Debtors-in- Possession Klehr Harrison Harvey Branzburg LLP 1835 Market Street, Suite 1400 Philadelphia, PA Attn: Morton R. Branzburg, Esq. mbranzburg@klehr.com Counsel to Versa Capital Management Cooley LLP 1114 Avenue of the Americas New York, NY Attn: Jay Indyke, Esq., Jeffrey L. Cohen, Esq. s: jindyke@cooley.com, jcohen@cooley.com Counsel to the Official Committee of Unsecured Creditors