11-22866-rdd

Doc 421

Filed 09/28/12

Entered 09/28/12 09:52:03 Pg 1 of 5

Main Document

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x In re: Chapter 11 METROPARK USA, INC., Debtor. -------------------------------------------------------x STIPULATION OF SETTLEMENT MUTUALLY RELEASING CLAIMS AND DISMISSING APPEAL This Settlement Agreement and Release (the Agreement) is made and entered into as of April 2, 2012 (the agreement date), by, between, and among Metropark USA, Inc. (the Debtor) and Jon E. Bortz, Ellen E. Bortz, Bricoleur Capital Management, LLC, Cynthia Harris and Orv Madden, appellants (Appellants), on the one hand, and Madison Atlantic Partners LLC f/k/a CRG Partners Group, LLC ("CRG"), on the other hand. The Debtor, Appellants and CRG are jointly referred to herein as the parties. WHEREAS, on May 2, 2011 (the Petition Date), the Debtor filed a voluntary petition in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code (the Chapter 11 Case); WHEREAS, CRG was a financial advisor to the Debtor pursuant to the Bankruptcy Courts order dated May 24, 2011 approving CRGs retention nunc pro tunc to the Petition Date; WHEREAS, CRG filed its First and Final Application of CRG Partners Group LLP, Financial Advisor to Debtor for Compensation and Reimbursement of Expenses for the Period from May 2, 2011 through October 31, 2011 (the Fee Application); WHEREAS, on January 6, 2012, the Bankruptcy Court entered an order granting CRGs
METROP~1

Bankruptcy Court Case No. 11-22866 (RDD)

11-22866-rdd

Doc 421

Filed 09/28/12

Entered 09/28/12 09:52:03 Pg 2 of 5

Main Document

Fee Application (Fee Order); WHEREAS, the Appellants filed a notice of appeal and amended notice of appeal (Appeal) from the Fee Order in the United States District Court for the Southern District of New York (the District Court); The parties now wish to fully and finally resolve, by compromise and settlement, any and all claims, disputes and obligations, known or unknown, which the parties may have against each other in connection with the Appeal and the Chapter 11 Case and the Fee Order. This is a compromise of disputed claims, and this settlement is made solely to avoid the costs and expenses of this appeal and any uncertainty associated with litigation. For purposes of effecting such a settlement and in consideration of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby STIPULATE, CONSENT TO AND AGREE THAT: 1. CRG unconditionally waives its right to the $86,016.95 balance due to it under

the Fee Order and the Debtor's estate is fully and completely released with prejudice from any and all claims by CRG, including the payment of said $86,016.95. 2. All amounts owed to CRG by the Debtor have been paid and CRG shall retain all

amounts paid by the Debtor or on the Debtors behalf to date. CRG hereby unconditionally waives with prejudice its right to file any further applications for fees, expenses and/or other compensation in the Debtors bankruptcy case (Case No. 11-22866 (RDD)). 3. Upon this Agreement being soordered by the United States Bankruptcy Court,

the parties shall immediately dismiss the Appeal with prejudice and without costs to either party, and the parties shall execute such documents as necessary to effectuate this paragraph.

METROP~1

11-22866-rdd

Doc 421

Filed 09/28/12

Entered 09/28/12 09:52:03 Pg 3 of 5

Main Document

4.

Appellants and Debtor, and each of them, hereby unconditionally release and

discharge CRG and its employees, partners, heirs, officers, directors, shareholders, executors, administrators, attorneys, accountants, advisors, and its successors and assigns (the CRG Releasees) from all actions, causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity, whether known or unknown, which relate to the Debtor, the Chapter 11 Case, the services performed by CRG or the facts which are or could be the subject of the Appeal, from the beginning of the world to the above-referenced date of this Agreement (Claims) that the Appellants or the Debtor may have had or may now have against the CRG Releasees. This release shall not prevent the parties from enforcing their rights specifically described in this Agreement. 5. CRG hereby unconditionally releases and discharges the Appellants and the

Debtor and each of them and their employees, partners, heirs, officers, directors, shareholders, executors, administrators, attorneys, accountants, advisors, and their respective successors and assigns (the Appellant Releasees) from all actions, causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity, whether known or unknown, which relate to the Debtor, the Chapter 11 Case or the facts which are or could be the subject of the Appeal, from the beginning of the world to the above-referenced date of this Agreement (Claims) that CRG may have had or may now have against the Appellant Releasees. This release shall not prevent the parties from enforcing their rights specifically described in this Agreement.

METROP~1

11-22866-rdd

Doc 421

Filed 09/28/12

Entered 09/28/12 09:52:03 Pg 4 of 5

Main Document

6.

Except as required by law, each party agrees not to make any statement, whether

written or oral, or to knowingly cause or allow any other person or party (within his, her or its control) to make a statement, that disparages the other party. A statement will be deemed disparagement if, to a reasonable mind, it is likely to adversely impact the reputation, goodwill, or existing or prospective business relationships of the party about whom the statement is made. The making of any disparaging statement shall constitute a material breach of this Agreement. 7. Any claim or dispute arising out of or relating to the rights and obligations

acknowledged and agreed to in this Agreement shall be governed by New York law and submitted to the jurisdiction of the Bankruptcy Court. The parties hereby irrevocably submit to the jurisdiction of such court and consent to service of process by registered mail or personal service and waive any objection on the grounds of personal jurisdiction, venue or inconvenience of the forum. The prevailing party shall be entitled to recover its costs and attorneys fees in any such proceeding. 8. This Agreement reflects the entire agreement and understanding of the parties

with respect to its subject matter. All other agreements, understandings and representations are deemed merged into the text of this stipulation. 9. No provision of this Agreement may be amended, modified or changed, or

waived, except by a writing signed by or on behalf of all parties hereto. 10. This Agreement shall be construed without regard to the parties responsible for

the preparation of the same and shall be deemed as prepared jointly by the parties hereto. Any ambiguity or uncertainty existing herein shall not be interpreted or construed against any party hereto. 11. A copy of this Agreement, as So Ordered by this Court may be filed with the

METROP~1

11-22866-rdd

Doc 421

Filed 09/28/12

Entered 09/28/12 09:52:03 Pg 5 of 5

Main Document

District Court in the Appeal. Dated: New York, New York August 31, 2012 Agreed to and acknowledged to this 31st day of August 2012 Bricoleur Capital Management, LLC By: By: s/Robert Michael Poole Robert Michael Poole, CIO
(title)

Agreed to and acknowledged this 31st day of August 2012 s/Orv Madden Orv Madden

Agreed to and acknowledged this 31st day of August 2012 Agreed to and acknowledged this 31st day of August 2012 By: s/Ellen E. Bortz Ellen E. Bortz By: Agreed to and acknowledged this 31st day of August 2012 By: s/ Jon E. Bortz Jon E. Bortz Agreed to and acknowledged this 31st day of August 2012 Metropark USA, Inc. By: By: s/Cynthia Harris Cynthia Harris s/Richard Hicks Rick Hicks, COO s/Craig Boucher Craig Boucher, Partner Madison Atlantic Partners LLC f/k/a CRG Partners Group, LLC,

Agreed to and acknowledged this 31st day of August 2012

SO ORDERED this 28th day of September 2012 _/s/Robert D. Drain_______ Hon. Robert D. Drain United States Bankruptcy Judge

METROP~1