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Proposed Hearing Date: July 29, 2011 at 10:00 a.m.

(prevailing Eastern Time) Proposed Objection Deadline: July 28, 2011 at 4:00 p.m. (prevailing Eastern Time)

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036
Telephone: (212) 479-6000 Facsimile: (212) 479-6275 Cathy Hershcopf Jeffrey L. Cohen Alex R. Velinsky Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : : : : : : : x

In re METROPARK USA, INC., 1 Debtor.


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Chapter 11 Case No. 11-22866 (RDD)

NOTICE OF DEBTORS MOTION FOR ENTRY OF AN ORDER EXTENDING TIME TO FILE NOTICES OF REMOVAL OF ACTIONS PLEASE TAKE NOTICE that the undersigned will present the attached Debtors Motion for Entry of an Order Extending Time to File Notices of Removal of Actions (the Motion) to the Honorable Judge Robert D. Drain, Bankruptcy Judge of the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court), at 300 Quarropas Street, White Plains, New York 10601, at a hearing to be held on July 29, 2011 at 10:00 a.m. (prevailing Eastern Time) (the Hearing). PLEASE TAKE FURTHER NOTICE that any responses or objections to the Supplemental Motion must be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules for the Southern District of New York, and shall be
1

The Debtors tax identification number is 81-0636659.

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filed with the Bankruptcy Court (a) electronically in accordance with General Order M-399 (which can be found at www.nysb.uscourts.gov) by registered users of the Bankruptcy Courts filing system and (b) by all other parties in interest on a 3.5 inch disk, compact disc, or flash drive, preferably in WordPerfect, or any other Windows-based word processing format (with two hard copies delivered directly to Chambers of the Honorable Robert D. Drain) and served upon: (i) attorneys to the Debtor, Cooley LLP, 1114 Avenue of the Americas, New York, New York 10036, (Attn: Cathy Hershcopf, Esq. and Jeffrey L. Cohen, Esq.; (ii) counsel to the Prepetition Lender: Riemer & Braunstein, LLP, Three Center Plaza, Boston, Massachusetts 02108 (Attn: Donald E. Rothman, Esq.; (iii) counsel to the Second Lien Agent, Solomon Ward Seidenwurm & Smith, LLP, 401 B Street, Ste. 1200, San Diego, CA 32101 (Attn: Michael D. Breslauer, Esq.); (iv) counsel to the Committee, Blakeley & Blakeley LLP, 1000 Quail Street, Suite 200, Newport Beach, California 92660 (Attn: Ronald A. Clifford, Esq.; (v) those parties requesting notice pursuant to Bankruptcy Rule 2002; and (vi) the Office of the United States Trustee for the Southern District of New York, 33 Whitehall Street, 21st Floor, New York, NY 10004 (Attn: Susan Golden, Esq.), so as to be received no later than 4:00 p.m. on July 28, 2011 (Prevailing Eastern Time). PLEASE TAKE FURTHER NOTICE that only those responses that are timely filed, served and received will be considered at the Hearing. Failure to file a timely objection may result in entry of a final order granting the Motion as requested by the Debtors without further notice. The parties are required to attend the Hearing and failure to attend in person or by counsel may result in relief being granted or denied upon default.

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Dated: July 14, 2011 New York, New York

By:

/s/ Jeffrey L. Cohen Jeffrey L. Cohen COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 Cathy Hershcopf Jeffrey L. Cohen Alex R. Velinsky Attorneys for Debtor and Debtor in Possession

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COOLEY LLP 1114 Avenue of the Americas New York, New York 10036
Telephone: (212) 479-6000 Facsimile: (212) 479-6275 Cathy Hershcopf Jeffrey L. Cohen Alex R. Velinsky Attorneys for Debtor and Debtor in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : : : : : : : x

In re METROPARK USA, INC., 2 Debtor.


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Chapter 11 Case No. 11-22866 (RDD)

DEBTORS MOTION FOR ENTRY OF AN ORDER EXTENDING TIME TO FILE NOTICES OF REMOVAL OF ACTIONS Metropark USA, Inc. (Metropark) files this motion (the Motion) for the entry of an order, substantially in the form attached hereto as Exhibit A (the Order), (a) extending the period within which the Debtor may remove actions pursuant to section 1452 of title 28 of the United States Code and Rule 9027 of the Bankruptcy Rules (as defined herein) and (b) granting such other relief as is just and proper. In support of the Motion, the Debtors respectfully state as follows: Jurisdiction 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and

1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue is proper pursuant to 28 U.S.C. 1408 and 1409.

The Debtors tax identification number is 81-0636659.

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3.

The statutory bases for the relief requested herein are section 1452 of title 28 of

the United States Code and Rules 9006 and 9027 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). Background 4. On May 2, 2011 (the Petition Date), the Debtor commenced a case by filing a

petition for relief in this Court under chapter 11 of the Bankruptcy Code. The Debtor is continuing to operate its business and manage its properties as a debtor in possession pursuant to 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 (the Committee). No request has been made for the appointment of a trustee or examiner. The Debtors Business 6. Metropark was founded in 2004 to capitalize on the large Gen Y segment (the

25-35 year old customer) who had moved on from teen retailers, but were still looking for fashion-forward apparel and accessories. Through a multi-channel sales strategy, including sales through brick-and-mortar stores and e-commerce, Metropark caters to trendsetting young adult customers by offering a unique and highly differentiated merchandise assortment introducing a Fashion, Music, Art philosophy into the marketplace. 7. Since its founding in 2004, Metropark grew rapidly from its four original store

locations to approximately 70 stores in 21 states, in addition to its newly redesigned online retail presence at www.metroparkusa.com. Metropark offers its customers a unique mix of premium quality apparel and accessories geared toward the 25-35 year old trendsetter. The Metropark retail stores provide a truly unique experiential lifestyle shopping environment including, style consultants, in-store events (e.g. live art installations, fashion shows and DJ performances) and a carefully edited inventory assortment of highly sought after brands with a strong offering of up

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and coming, fashion forward designer talent to deliver an authentic and culturally relevant mix of diverse brands to the customer. 8. As a result of several internal and external factors, the Debtor faced

extraordinary liquidity constraints in the first quarter of 2011. Because of this reality, the Debtor spent the better part of the first quarter of 2011 trying to identify a financial partner to provide an equity infusion, debt investment or otherwise stabilize the financial wherewithal of the Company. Unfortunately, a transaction in the best interest of the Company, its creditors and its shareholders was not available outside of chapter 11 and the Company has reached the end of its liquidity runway. Accordingly, the Debtor determined that the commencement of this case would provide the sole opportunity to, among other things, sell substantially all of the assets of the Debtor. Necessity of Extension of the Removal Period 9. As of the commencement of this chapter 11 case, the Debtor was party to

several actions pending in various state and federal courts (collectively, the Civil Actions). Certain of the Civil Actions are subject to removal pursuant to section 1452 of title 28 of the United States Code (Section 1452), which applies to claims relating to bankruptcy cases. 10. Since the commencement of this chapter 11 case, the Debtor has been focused

on disposing of substantially all of the Debtors assets and administering this chapter 11 case. The Debtors focus on these critical matters has prevented it from conducting the analysis with respect to which, if any, of the Civil Actions it may seek to remove. Specifically, following the Commencement Date, the Debtor and its professionals have focused on, among other things: (a) (b) (c) selling the Debtors inventory through going out of business sales at all of the Debtors store locations; selling the Debtors interests in unexpired non-residential real property leases; selling the Debtors intellectual property assets;

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(d) (e) (f)

responding to numerous creditor, supplier, customer and employee inquiries; responding to due diligence requests of the Creditors Committee; and gathering and processing the information required to complete the Debtors schedules of assets and liabilities and statements of financial affairs.

11.

Pursuant to Bankruptcy Rule 9027(a)(2), the time within which the Debtor may

file notices of removal (the Removal Period) for Civil Actions that have not been stayed pursuant to section 362(a) of title 11 of chapter 11 of the United State Code (the Bankruptcy Code) expires on August 1, 2011. As a result of the Debtors attention to the above-listed matters, the Debtor has been unable to undertake a thorough analysis of the Civil Actions to (a) accurately determine which of the Civil Actions are stayed pursuant to section 362(a) of the Bankruptcy Code (the Automatic Stay) and (b) develop a strategy with respect to whether it should remove certain of the Civil Actions. 12. The Debtor believes that the proposed extension of time in this motion will enable

it to conduct its review of the Civil Actions and make decisions concerning removal where appropriate. Without an extension of the Removal Period, the Debtor will not have sufficient time to adequately consider whether removal of certain of the Civil Actions is necessary for the benefit of the Debtors estate. Accordingly, the Debtor submits that cause exists for the relief requested herein. Relief Requested 13. By this Motion, the Debtor requests entry of an order pursuant to Bankruptcy

Rule 9006(b) extending the Removal Period for Civil Actions. Specifically, the Debtor seeks a 120-day extension of the time period set forth in Bankruptcy Rule 9027(a)(2) to remove Civil Actions not subject to the Automatic Stay pursuant to section 362 of the Bankruptcy Code, through and including November 29, 2011, without prejudice to the Debtors right to seek further extensions. The Debtor further requests that the order requested herein be without prejudice to

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any position the Debtor may take regarding whether the Automatic Stay applies to stay any Civil Action. Basis for Relief 14. Bankruptcy Rule 9027 and 28 U.S.C. 1452 govern the removal of pending civil

actions. Specifically, 28 U.S.C. 1452(a) provides: A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental units police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. 28 U.S.C. 1452(a). Bankruptcy Rule 9027(a)(2) further provides, in pertinent part: If the claim or cause of action in a civil action is pending when a case under the [Bankruptcy] Code is commenced, a notice of removal may be filed in the bankruptcy court only within the longest of (A) 90 days after the order for relief in the case under the Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under 362 of the [Bankruptcy] Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief. Fed. R. Bankr. P. 9027(a)(2). 15. Bankruptcy Rule 9006(b) provides that the Court may extend unexpired time

periods, such as the Removal Period, without notice: when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion ...with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Fed. R. Bankr. P. 9006(b)(1). Notably, however, to the extent that section 362(a) of the

Bankruptcy Code automatically stays actions against the Debtor, the Civil Actions will not be proceeding in their respective courts with respect to the Debtor, even absent the relief requested herein (i.e., the extension of the Removal Period). However, with respect to the Civil

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Actions that are not subject to the Automatic Stay, an extension of the Removal Period is warranted. 16. It is well-settled that pursuant to Bankruptcy Rule 9006(b), this Court is

authorized to enlarge the removal period provided under 28 U.S.C. 1452 and Bankruptcy Rule 9027. See Pacor, Inc. v. Higgins, 743 F.2d 984, 996 n.17 (3d Cir. 1984), overruled on other grounds by Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 134-35 (1995) (holding the bankruptcy courts power to grant an extension of the removal period pursuant to Bankruptcy Rule 9006(b) is clear); Caperton v. A.T. Massey Coal Co., 251 B.R. 322, 325 (S.D. W. Va. 2000) (Bankruptcy Rule 9006 provides authority to enlarge time periods for removing actions under Bankruptcy Rule 9027); In re Jandous Elec. Constr. Corp., 106 B.R. 48 (Bankr. S.D.N.Y. 1989) (period in which to file motion to remove may be expanded pursuant to Bankruptcy Rule 9006); In re World Fin. Servs. Ctr., Inc., 81 B.R. 33, 39 (Bankr. S.D. Cal. 1987) (Supreme Court intended to give bankruptcy judges the power to enlarge the filing periods under Bankruptcy Rule 9027(a) pursuant to Bankruptcy Rule 9006(b)); Raff v. Gordon, 58 B.R. 988, 990 (E.D. Pa. 1986) (an expansion of time to file notices of removal is authorized under the Bankruptcy Rules). 17. Pursuant to Bankruptcy Rule 9027(a)(2)(A), the Removal Period expires on

August 1, 2011. See Fed. R. Bankr. P. 9027(a)(2). However, because the Debtors resources have been focused on administering its chapter 11 case and disposing of its assets, on August 1, 2011, the Debtor will not yet be in a position to determine (a) which of the Civil Actions are subject to the Automatic Stay (and consequently must be removed in the timeframe provided under Bankruptcy Rule 9027(a)(2)(A) and (C)) and (b) if it would benefit the Debtors estate to remove certain of the Civil Actions. 18. The Debtor believes the proposed time extension will provide it with the

necessary additional time to consider, and make decisions concerning, the removal of the Civil Actions. Accordingly, the Debtor submits that cause exists for the relief requested herein.

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19.

The Debtor submits further that the rights of any party to the Civil Actions will not

be prejudiced by the requested extension. If the Debtor ultimately seeks to remove any action pursuant to Bankruptcy Rule 9027, any party to the litigation can seek to have such action remanded pursuant to 28 U.S.C. 1452(b), which provides that [t]he court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. 28 U.S.C. 1452(b).3 Thus, the relief requested herein does not impact any partys rights under 28 U.S.C. 1452(b). 20. Other courts in this jurisdiction have granted similar extensions of the Removal

Period in several cases. See, e.g., In re The Great Atlantic and Pacific Tea Co., Inc., et al., Case No. 10-24549 (Bankr. S.D.N.Y. March 10, 2011) (enlarging the removal period by approximately 120 days); In re Innkeepers USA Trust, Case No. 10-13800 (Bankr. S.D.N.Y Oct. 14, 2010) (enlarging removal period by 180 days); In re Uno Restaurant Holdings Corp., Case No. 10-10209 (Bankr. S.D.N.Y. April 14, 2010) (enlarging removal period through plan confirmation); In re Citadel Broad. Corp., Case No. 09-17442 (Bankr. S.D.N.Y. Mar. 11, 2010) (enlarging Removal Period by 90 days); In re Gen. Growth Props., Inc., No. 09-11977 (Bankr. S.D.N.Y. Aug. 19, 2009) (enlarging removal period through plan confirmation); In re Charter Commcns, Inc., Case No. 09-11435 (S.D.N.Y. June 17, 2009) (same); In re Chemtura Corp., Case No. 09-11233 (Bankr. S.D.N.Y. June 16, 2009) (same); In re Lehman Bros. Holdings Inc., Case No. 08-13555 (Bankr. S.D.N.Y. Dec. 18, 2008) (same); In re Frontier Airlines Holdings, Inc., Case No. 08-11298 (Bankr. S.D.N.Y. June 18, 2008) (same). Reservation of Rights 21. The Debtor reserves the right to assert in the chapter 11 case or in any other

appropriate forum that any or all of the Civil Actions are stayed by the provisions of section 362 of the Bankruptcy Code, and thus, pursuant to Bankruptcy Rule 9027(a)(2)(B), the Debtors right

The Debtors reserve their rights to contest any remand.

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to remove such Civil Actions would be preserved until 30 days after entry of an order lifting the Automatic Stay with respect to such Civil Actions. Motion Practice 22. This motion includes citations to the applicable rules and statutory authorities

upon which the relief requested herein is predicated, and a discussion of their application to this motion. Accordingly, the Debtor submits that this motion satisfies Rule 9013-1(a) of the Local Bankruptcy Rules for the Southern District of New York. Notice 23. Notice of this Motion to be provided by electronic mail, facsimile, and/or by

overnight mail to: (i) counsel to the Prepetition Lender: Riemer & Braunstein, LLP, Three Center Plaza, Boston, Massachusetts 02108 (Attn: Donald E. Rothman, Esq.; (ii) counsel to the Second Lien Agent, Solomon Ward Seidenwurm & Smith, LLP, 401 B Street, Ste. 1200, San Diego, CA 32101 (Attn: Michael D. Breslauer, Esq.); (iii) counsel to the Committee, Blakeley & Blakeley LLP, 1000 Quail Street, Suite 200, Newport Beach, California 92660 (Attn: Ronald A. Clifford, Esq.); (iv) those parties requesting notice pursuant to Bankruptcy Rule 2002; and (v) the Office of the United States Trustee for the Southern District of New York, 33 Whitehall Street, 21st Floor, New York, NY 10004 (Attn: Susan Golden, Esq.). The Debtor respectfully submits that further notice of this Motion is neither required nor necessary. No Prior Request 24. other court. No prior request for the relief sought in this Motion has been made to this or any

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WHEREFORE, for the reasons set forth herein, the Debtor respectfully requests that the Court enter an order, substantially in the form attached hereto as Exhibit A, granting the relief requested herein and such other and further relief as the Court deems appropriate. Dated: July 22, 2011 New York, New York

By:

/s/ Jeffrey L. Cohen Jeffrey L. Cohen

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 Cathy Hershcopf Jeffrey L. Cohen Alex R. Velinsky Attorneys for Debtor and Debtor in Possession

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EXHIBIT A Proposed Order

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------In re METROPARK USA, INC.,1 Debtor. ---------------------------------------------------------------x : : : : : : : x

Chapter 11 Case No. 11-22866 (RDD)

ORDER EXTENDING TIME TO FILE NOTICES OF REMOVAL OF ACTIONS Upon the motion (the Motion) of Metropark USA, Inc. (the Debtor) for the entry of an order (this Order) (a) extending the period within which the Debtor may remove actions pursuant to section 1452 of title 28 of the United States Code and Bankruptcy Rule 9027 and (b) granting such other relief as is just and proper, all as more fully set forth in the Motion; 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 relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b)(2); and venue being proper pursuant to 28 U.S.C. 1408 and 1409; and there being due and sufficient notice of the Motion; and it appearing that the relief requested in the Motion and granted herein is in the best interests of the Debtors estate, its creditors, and other parties in interest; and, after due deliberation, sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. 2. The Motion is granted to the extent provided herein. The time under Bankruptcy Rule 9027(a)(2) in which the Debtor may file notices

of removal with respect to the Civil Actions2 shall be extended to and include the later the later to occur of: (a) November 29, 2011 or (b) the day that is thirty days after entry of an order terminating the Automatic Stay.

The Debtors tax identification number is 81-0636659. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
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3.

This Order shall be without prejudice to any position the Debtor may take

regarding whether section 362 of the Bankruptcy Code applies to stay any Civil Action, which shall not prejudice the Debtors rights under Bankruptcy Rule 9027(a)(2)(B) to remove such Civil Actions in the event that the Automatic Stay is lifted with respect to such Civil Actions. 4. This Order shall not prejudice the Debtors rights to seek further extensions of the

Removal Period. 5. The Debtor is authorized to take all actions necessary to effectuate the relief

granted pursuant to this Order in accordance with the Motion. 6. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry. 7. The Court retains jurisdiction with respect to all matters arising from or related to

the implementation of this Order.

Dated: White Plains, New York ____________, 2011

HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE

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