KELLEY DRYE & WARREN LLP James S. Carr Robert L.

LeHane 101 Park Avenue New York, New York 10178 Tel: (212) 808-7800 Fax: (212) 808-7897 Counsel for Cotton On USA, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) In re: ) Chapter 11 ) METROPARK USA, INC. ) Case No. 11-22866 (RDD) ) Debtor. ) __________________________________________) MOTION OF COTTON ON USA, INC. FOR EXPEDITED HEARING ON MOTION PURSUANT TO 11 U.S.C. 107(b) AND RULE 9018 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AUTHORIZING COTTON ON USA, INC. TO FILE FINANCIAL STATEMENTS UNDER SEAL Cotton On USA, Inc. (Cotton On), by and through its counsel, Kelley Drye & Warren LLP, hereby files this motion (the Motion to Expedite) for entry of an order, substantially in the form attached hereto as Exhibit A, scheduling an expedited hearing on Cotton Ons motion (the Seal Motion) pursuant to 11 U.S.C. 107(b) and Rule 9018 of the Federal Rules of Bankruptcy Procedure authorizing Cotton On to file under seal certain financial statements of Cotton On (the Financial Statements). In support of this Motion to Expedite, Cotton On respectfully states as follows:

JURISDICTION 1. The Court has jurisdiction to consider the Motion to Expedite pursuant to

28 U.S.C. 157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (O). 2. 3. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. The relief sought in the Seal Motion is predicated on section 107(b) of the

Bankruptcy Code and Bankruptcy Rule 9018. BACKGROUND 4. On May 2, 2011, the above-captioned debtor (the Debtor) filed a

voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtor continues to operate its business and manage its properties as a debtor in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 5. On May 6, 2011, the United States Trustee for the Southern District of

New York appointed the Official Committee of Unsecured Creditors.1 No request has been made for the appointment of a trustee or examiner. 6. On May 12, 2011, the Debtor filed the Motion of the Debtor for Order

(A) Setting (1) Date to Conduct Auction of Debtors Interests in Certain Real Property Leases and Intellectual Property, and (2) Sale Hearing Date; (B) Approving Bidding Procedures and Terms of Auction; (C) Establishing Cure Amounts; (D) Authorizing Debtor to Enter Into Lease Termination Agreements; (E) Approving and Authorizing Sale of Leases and Intellectual Property to Highest or Otherwise Best Bidder Free and Clear of All Liens, Interests, Claims and Encumbrances Pursuant to 363 of the Bankruptcy Code; (F) Waiving the Requirements of Rule

Docket Entry No. 57.

6004 of the Federal Rules of Bankruptcy Procedure and Local Bankruptcy Rule 6004-1; and (G) Granting Related Relief (the Sale Procedures Motion).2 7. Pursuant to the Sale Procedures Motion, the Debtor sought entry of an

order: (i) scheduling an auction for the sale of the Debtors interests in its unexpired nonresidential leasehold interests and intellectual property; (ii) establishing a deadline for landlords and other parties in interest to file and serve objections to the assignees ability to provide adequate assurance of future performance; and (iii) scheduling a hearing on the sale. 8. On May 24, 2011, the Court entered an Order approving the Sale

Procedures Motion (the Procedures Order).3 Pursuant to the Procedures Order, the Debtor was authorized to conduct an auction of the leases and intellectual property. The Debtor was further authorized to enter into a stalking horse agreement with Cotton On (the Designation Rights Agreement) that would grant Cotton On the sole and exclusive right, with respect to 41 of the Debtors leases, to designate which leases would be assigned or rejected. 9. The Auction was scheduled for May 26, 2011, and the Procedures Order

established May 31, 2011 as the deadline for parties to objection to the assignment of any lease to Cotton On. At the auction, Cotton On was deemed to have submitted the highest and otherwise best bid for the designation rights for the Debtors 41 leases covered by the Designation Rights Agreement. 10. On June 6, 2001, the Court entered an Order Pursuant to Sections 105 and

363 of the Bankruptcy Code and Bankruptcy Rules 2002 and 6004 Authorizing and Approving (I) Designation Rights Agreement With The Cotton On Group, (II) The Sale of Certain of the Debtors Leases, (III) Assumption and Assignment Procedures, (IV) Cure Amounts, and
2 3

Docket Entry No. 88. Docket Entry No. 149.

(V) Granting Related Relied (the Sale Order).4 Pursuant to the Sale Order, the Court approved, among other things, the Designation Rights Agreement by and between the Debtor and Cotton On. 11. As set forth in the Designation Rights Agreement and the Sale Order,

Cotton On was granted the right to designate for assignment any lease set forth in the Designation Rights Agreement. Cotton On was required to deliver to the Debtor, file and serve a notice (a Lease Assumption Notice) naming the designee, setting forth the cure amount, the proposed use of the premises, the proposed form of lease sale order, and providing evidence of the designees ability to provide adequate assurance of future performance. The landlord for any designated lease is entitled to file an objection within 7 business days of receipt of a Lease Assumption Notice. 12. On June 16, 2011, the Debtor filed and served a Lease Assumption Notice

with respect to 10 leases.5 Attached to the Lease Assumption Notice was the declaration of Michael Hardwick, Chief Financial Officer of Cotton On, in support of the assignment of leases. 13. The following three objections were filed to the assignment of the

identified leases: (i) NorthPark Partners, LPs Objection to Assumption and Assignment of Unexpired Lease of Nonresidential Real Property (the NorthPark Objection);6 (ii) Supplemental Objection by Westfield, LLC and Westfield Garden State Plaza Limited Partnership to Notice of Assumption and Assignment of Unexpired Leases of Nonresidential Real Property (the Westfield Objection);7 and (iii) Objection of Aventura Mall Venture to

4 5 6 7

Docket Entry No. 190. Docket Entry No. 212. Docket Entry No. 222. Docket Entry No. 226.

Debtors Proposed Assumption and Assignment of Unexpired Lease of Nonresidential Real Property to Cotton On USA, Inc. (the Aventura Objection).8 A hearing on these objections has been scheduled for June 30, 2011 at 10:00 a.m. 14. Since the filing of the objections, Cotton On has attempted to work with

the respective landlords to resolve their objections. Cotton On believes it will be able to consensually resolve the NorthPark Objection. Cotton On is continuing to work to resolve the issues set forth in the Westfield Objection and the Aventura Objection prior to the hearing, each of which raises issues regarding Cotton Ons ability to provide adequate assurance of future performance. 15. In the event Cotton On is unable to resolve these objections consensually

prior to the hearing, Cotton On intends to submit the Financial Statements in support of its showing of adequate assurance of future performance. As a private company, Cotton Ons Financial Statements contain sensitive, non-public information, the disclosure of which could have a significant negative impact on Cotton On and its business. BASIS FOR RELIEF 16. Cotton On has filed the Seal Motion contemporaneously herewith. An

expedited hearing and shortened notice is required for the Seal Motion because of the impending hearing, scheduled for June 30, 2011, regarding the objections to assignment of certain of the Debtors leases pursuant to the Designation Rights Agreement and the Lease Assumption Notice. Cotton On anticipates it will need to submit confidential information contained in the Financial Statements in connection with this hearing. Since Cotton On is a private company, Cotton On

Docket Entry No. 227.

has filed the Seal Motion to protect this confidential information. In light of the impending hearing, the Seal Motion must be heard at the June 30 hearing. 17. Pursuant to Bankruptcy Rules 9006(c) and 9007, the Court may shorten

notice requirements for cause. Cause exists under the present circumstances. If the hearing on the Seal Motion is not expedited, and notice shortened accordingly, Cotton On will be faced with the options of submitting confidential information that could be damaging to Cottons Ons business if disclosed to the public or not submitting the information that is necessary to demonstrate adequate assurance of future performance, as required under section 365 of the Bankruptcy Code. 18. In light of this conflict, Cotton On requests the Court schedule a hearing

on the Seal Motion on June 30, 2011 at 10:00 a.m. Cotton On respectfully submits that holding such an expedited hearing will still afford all parties ample notice to object and be heard. MEMORANDUM OF LAW 19. This Motion to Expedite does not raise any novel issues of law and the

relevant legal authorities are set forth herein. Accordingly, Cotton On requests that the Court waive the separate memorandum of law requirement contained in Local Bankruptcy Rule 9013-1(a). NOTICE 20. Notice of this Motion to Expedite has been provided to: (a) counsel for the

Debtor; (b) the U.S. Trustee; (c) counsel to the Committee; (d) counsel to NorthPark Partners, LP; (e) counsel to Westfield, LLC and Westfield Garden State Plaza Limited Partnership; (f) counsel to Aventura Mall Venture; and (g) all other parties required to receive notice pursuant

to Bankruptcy Rules 2002, 4001 or 9014 or requesting to receive notice prior to the date hereof. Cotton On submits that no other or further notice of the Motion to Expedite need be provided. NO PRIOR REQUEST 21. No prior application for the relief requested herein has been presented to

this Court or any other court. WHEREFORE, Cotton On respectfully requests that this Court enter an order scheduling a hearing with respect to the Seal Motion on June 30, 2011 at 10:00 a.m., and granting such other and further relief as the Court deems just and proper. Dated:New York, New York June 23, 2011 KELLEY DRYE & WARREN LLP By: /s/ Robert L. LeHane James S. Carr Robert L. LeHane 101 Park Avenue New York, New York 10178 Tel: (212) 808-7800 Fax: (212) 808-7897 Counsel for Cotton On USA, Inc.

EXHIBIT A

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) ) Chapter 11 ) METROPARK USA, INC. ) Case No. 11-22866 (RDD) ) Debtor. ) __________________________________________) In re: ORDER EXPEDITING HEARING ON MOTION OF COTTON ON USA, INC. FOR ENTRY OF AN ORDER PURSUANT TO 11 U.S.C. 107(b) AND RULE 9018 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AUTHORIZING COTTON ON TO FILE FINANCIAL STATEMENTS UNDER SEAL Upon consideration of the Motion to Expedite,1 dated June 23, 2011, of Cotton On USA, Inc. (Cotton On) for entry of an order, pursuant to Rules 9006(c) and 9007 of the Federal Rules of Bankruptcy Procedure, to schedule an expedited hearing with respect to Cotton Ons Motion to file the Financial Statements under seal; and the Court having reviewed and considered the Motion to Expedite and the objections to the Motion to Expedite, if any; and the Court having jurisdiction over the Motion to Expedite pursuant to 28 U.S.C. 157 and 1334; and this matter being a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (O); and venue of this case and the Motion to Expedite in this district is proper pursuant under 28 U.S.C. 1408 and 1409. NOW, THEREFORE, IT IS HEREBY: ORDERED that the Motion to Expedite is granted; and it is further

Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Motion to Expedite.

ORDERED that all objections to the Motion to Expedite or the relief requested therein that have not been withdrawn, waived, or settled, and all reservations of rights included therein, hereby are overruled on the merits; and it is further ORDERED that the Seal Motion is set for hearing before this Court on June 30, 2011 at 10:00 a.m. (Eastern Time); and it is further ORDERED that any objections to the Seal Motion may be submitted at the June 30, 2011 hearing. Dated: White Plains, New York June __, 2011 UNITED STATES BANKRUPTCY JUDGE