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 ---------------------------------------------------------------In re METROPARK USA, INC., Debtor.

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Chapter 11

Case No. 11-22866 (RDD)

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DEBTORS EMERGENCY MOTION FOR AUTHORITY TO ABANDON AND/OR DESTROY CERTAIN DOCUMENTS AND RECORDS The above-captioned debtor and debtor-in-possession in this chapter 11 case (the Debtor) hereby moves (the Motion) the Court on an emergency basis for the entry of an order (the Order)1 authorizing the Debtor to abandon and/or destroy certain documents and records pursuant to sections 554(a) and 105(a) of title 11, United States Code, 11 U.S.C. 1011532 (the Bankruptcy Code) and Rule 6007(a) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). In support of this Motion, the Debtor respectfully represents and states as follows: JURISDICTION 1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 157

and 1334. This is a core proceeding under 28 U.S.C. 157(b)(2) and venue is proper in this district pursuant to 28 U.S.C. 1408 and 1409.

A copy of the proposed form of Order granting this Motion is attached hereto as Exhibit A.

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The statutory bases for the relief requested herein are sections 544(a)

and 105(a) of the Bankruptcy Code, along with Bankruptcy Rule 6007(a). BACKGROUND 3. On May 2, 2011 (the Filing Date), the Debtor filed a voluntary petition

for relief under chapter 11 of the Bankruptcy Code. The events leading up to the Filing Date are more fully set forth in the First Day Declaration of Cynthia Harriss [Docket No. 2] filed on the Filing Date. The Debtor continues to manage its assets as debtor-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On May 6, 2011, the United States Trustee appointed a Committee of Unsecured Creditors pursuant to Section 1102(a)(1) of the Bankruptcy Code (the Committee). [Docket No. 57]. 4. On May 6, 2011, this Court entered an order (the Sale Order) approving,

among other things, going out of business sales at all of the Debtors store locations. [Docket No. 59]. The going out of business sales have concluded at all of the Debtors store locations and the Debtor has terminated virtually all of its employees. 5. Because the Debtors store locations have all closed and its business

operations have terminated, the Debtor has determined that it is necessary at this time to close its corporate headquarters, which house a substantial number of documents that the Debtor has retained in the ordinary course of its business. The Debtor has identified approximately 1,170 boxes of documents that the Debtor believes are not necessary to preserve for any reason. 6. Shipping and/or continued storage of such documents would be a

considerable, and as discussed below, unnecessary, expense to the Debtors estate. To continue storing the documents would require that the Debtor move the documents to a storage facility and pay for such facility. THE DOCUMENTS AND RECORDS TO BE DESTROYED 7. The Debtor has consummated its going out of business sales pursuant to The Debtor has

the Sale Order, and is in the process of winding down its operations.

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determined that a substantial portion of the documents and records now stored at the Debtors corporate offices, as set forth in Exhibit B hereto (the Documents and Records), are not needed in connection with the further administration and wind down of this chapter 11 case. The Documents and Records, dating back several years, primarily relate to cancelled checks for payroll and trade, historical personnel records, store register receipts and register/credit card totals, and similar administrative documents and files. These documents do not relate to this chapter 11 case or any claims that have been filed in this case. The Debtor therefore seeks authorization to abandon and/or destroy the Documents and Records. RELIEF REQUESTED 8. By this Motion, the Debtor seeks entry of an order pursuant to sections

554(a) and 105(a) of the Bankruptcy Code (a) authorizing the Debtor to abandon and/or destroy the Documents and Records and (b) granting such other and further relief as the Court deems just and proper. BASIS FOR RELIEF REQUESTED 9. Section 554(a) of the Bankruptcy Code provides that [a]fter notice and a

hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate. 11 U.S.C. 554(a). Bankruptcy Rule 6007(a) provides that a debtor, unless otherwise directed by the court, shall give notice of a proposed abandonment or disposition of property to the United States trustee, all creditors, indenture trustees, and committees elected pursuant to 705 or appointed pursuant to 1102 of the Code. Fed. R. Bankr. P. 6007(a). Parties in interest that file a timely objection to such abandonment are entitled to a hearing on their objection. Id. Additionally, section 105(a) of the Bankruptcy Code provides, in pertinent part, that [t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. 11 U.S.C. 105(a). The purpose of section 105(a) is to assure the bankruptcy courts power to take

whatever action is appropriate or necessary in aid of the exercise of their jurisdiction. 2 Collier

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on Bankruptcy 105.01 (15th ed. rev. 1999). 10. As is the case with a debtor in possessions decision to reject an

executory contract, this Court should apply the business judgment standard in reviewing the Debtors decision to abandon property that is either of inconsequential value or burdensome to the estate. See Frostbaum v. Ochs, 277 B.R. 470, 475 (E.D.N.Y. 2002); Orion Pictures Corp. v. Showtime Networks, Inc., 4 F.3d 1095, 109899 (2d Cir. 1993). The purpose of applying the business judgment standard in both contexts is the same: ensuring that valuable property is preserved and burdensome property is discarded. Orion Pictures Corp., 4 F.3d at 1099. [I]f a trustee feels an asset is of inconsequential value and benefit to the estate or that it is burdensome to the estate, he may abandon it. In re Reich, 54 B.R. 995, 1004 (Bankr. E.D. Mich. 1985). 11. The Debtors abandonment and destruction of the Documents and

Records is warranted under section 554(a) of the Bankruptcy Code. As mentioned earlier, the Debtor has concluded the going out of business sales at all of its store locations, pursuant to the Sale Order, and is in the process of winding down its affairs. Without the authority to abandon or destroy the Documents and Records, the Debtor will be forced to incur substantial expenses moving the Documents and Records and for the continued storage of such Documents and Records. Such expenses are not warranted given the facts and circumstances of this case. The Documents and Records are of inconsequential value and benefit to the estate and will serve only to burden the estate in shipping and storage costs. Thus, the Debtor has applied its business judgment and determined that the best course of action is the abandonment and/or destruction of the Documents and Records. 12. Certain of the Documents and Records may contain personal identifiable

information of certain of the Debtors former employees or customers (collectively, Confidential Information). The Debtor intend to have the Documents and Records containing Confidential Information destroyed by shredding, incineration or other appropriate means.

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13.

For all of the foregoing reasons, the Debtor submits that its decision to

abandon and/or destroy the Documents and Records is the product of its sound business judgment and should therefore be approved. Prior to the filing of this Motion, the Debtor provided the Committees advisors with a copy of Exhibit B. NOTICE 14. The Debtor has served notice of this Application on (i) the U.S. Trustee

(Attn: Susan Golden, Esq.), (ii) Riemer & Braunstein LLP, Three Center Plaza, Boston, MA 02108 (Attn: Donald E. Rothman, Esq.) as counsel for Wells Fargo Bank, N.A., (iii) Solomon Ward Seidenwurm & Smith, LLP, 401 B Street, Ste. 1200 San Diego, CA 92101 (Attn: Michael D. Breslauer, Esq.) as counsel to Bricoleur Capital Partners, LP in its capacity as second lien agent and (iv) Blakeley & Blakeley LLP, 2 Park Plaza, Suite 400, Irvine, CA 92614 (Attn: Ronald A. Clifford, Esq.) as counsel to the Committee. In light of the nature of the relief requested, the Debtor submits that no other or further notice need be provided. NO PRIOR REQUEST 15. No previous request for the relief sought herein has been made by the

Debtor to this or any other court.

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WHEREFORE, the Debtor respectfully requests entry of an order, substantially in the form annexed hereto as Exhibit A, granting the relief requested herein and such other and further relief as is just and proper.

Dated: June 29, 2011 New York, New York

Respectfully submitted, By: /s/ Cathy Hershcopf Cathy Hershcopf

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 Cathy Hershcopf (CH 5875) Jeffrey L. Cohen (JC 2556) Alex R. Velinsky (AV 1012) 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., Debtor.

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Chapter 11

Case No. 11-22866 (RDD)

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ORDER AUTHORIZING THE DEBTOR TO ABANDON AND/OR DESTROY CERTAIN DOCUMENTS AND RECORDS Upon consideration of the emergency motion (the Motion)1 of the abovecaptioned debtor and debtor-in-possession in this chapter 11 case (the Debtor), seeking entry of an order an order pursuant to sections 554(a) and 105(a) of the Bankruptcy Code and Bankruptcy Rule 6007(a) authorizing the Debtor to abandon and/or destroy certain Documents and Records; and all interested parties having been afforded an opportunity to be heard with respect to the Motion; and due and proper notice of this Motion having been given; and it appearing that no other or further notice is required; and it appearing that the Court has jurisdiction to consider the Motion in accordance with 28 U.S.C. 157 and 1334; and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); and it appearing that venue of this proceeding and this Motion is proper pursuant to 28 U.S.C. 1408 and 1409; and it appearing that the relief requested is in the best interest of the Debtor, its estate, and creditors and after due deliberation, and sufficient cause appearing therefor, is hereby ORDERED that: 1. 2. The Motion is GRANTED. The Debtor is hereby authorized to abandon and/or destroy the Documents and Records.

Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Motion.

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The Debtor is authorized and empowered to take all steps necessary and appropriate to carry out and otherwise effectuate the terms of this Order.

4.

This Court retains jurisdiction with respect to all matters arising from or related to the implementation or interpretation of this Order.

Dated: White Plains, New York July __________, 2011 HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE

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EXHIBIT B Type of Documentation to be Abandoned or Destroyed

TYPE OF DOCUMENT/RECORD Cancelled Payroll Checks Cancelled Trade Checks Employee Personnel Records Store Register Receipts/Credit Card Totals

TIME PERIOD ALL ALL Prior to FY 2011 ALL

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