Opinion
Case No. 08-10797DWK.
January 28, 2008
CONTESTED MATTER
This Stipulation and Consent Order (the "Order") is made on this 25th day of January, 2008, by and between Simon Sadoun and Westfield, LLC, formerly known as Westfield Corporation, Inc. ("Westfield"), and Wheaton Plaza Regional Shopping Center LLP ("Wheaton Plaza", and together with Westfield, the "Movants").
RECITALS
A. On January 18, 2008 (the "Petition Date"), Simon Sadoun filed a voluntary petition for relief under Chapter 13 of Title 11 of the United States Code, as amended (the "Bankruptcy Code") with the United States Bankruptcy Court for the District of Maryland (the "Court").
B. Westfield, on behalf of Wheaton Plaza, is the licensor and Simon Sadoun (the "Debtor"), doing business as International Furniture Liquidators, Inc., is the licensee pursuant to a Special Retailing Program Temporary Revocable License dated May 18, 2007 (the "License Agreement") for retail space (the "Premises") located at Westfield Wheaton Plaza, Wheaton, Maryland (the "Center").
C. On January 21, 2008, the Movants filed their Motion for Relief from the Automatic Stay Pursuant to 11 U.S.C. § 362(d)(1), Fed.R.Bankr.P. 4001(a) and Local Bankruptcy Rule 4001-1 (the "Stay Relief Motion").
D. The Stay Relief Motion is set for hearing by the Court on January 28, 2008 at 1:30 p.m.
E. The Debtor has failed to pay the $20,000 per month license fee due under the License Agreement since October, 2007, and thus the Debtor presently owes the Movants $60,000 in accrued license fees, plus attorney's fees and utility charges. The Debtor acknowledges that the Movants shall suffer significant consequential damages if the Debtor fails to comply with the terms of this Order.
F. The Debtor is now in the process of ceasing business operations at the Premises.
NOW, THEREFORE, it is hereby AGREED by the Debtor and the Movants, and SO ORDERED by the Court, that:
1. The Stay Relief Motion is granted and the Movants are immediately granted relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1), for cause, to take possession and control of the Premises from the Debtor, subject only to the terms and conditions set forth herein.
2. The Debtor shall cease business operations at the Premises by January 28, 2008 at 9:30 p.m. (the "Store Closing"). Upon the Store Closing: (a) the Movants are hereby awarded possession of the Premises and the Debtor shall turn over all of the keys to the Premises to Movants, (b) the Debtor shall immediately and permanently cease all retail trade operations from the Premises, (c) the Debtor's right to gain access to the Premises, other than as expressly provided in this Order shall be terminated, and, (d) other than the Debtor's continuing duties thereunder, the License Agreement shall be permanently and irrevocably terminated.
3. From and after Store Closing the Debtor shall bear all risk of loss with regard to the Debtor's furniture, fixtures, equipment, inventory and other personal property (the "Personal Property") located in the Premises. The Debtor understands and acknowledges that construction shall commence promptly and shall require critical path work that will immediately make public access to the Premises unlawful.
4. As of the Store Closing, Movants are authorized to take such preliminary steps in connection with the construction as may be necessary, including transferring all utilities from the Debtor to the Movants, erecting a barricade over the enclosed mall entrance, and shutting down and closing off escalators and escalator openings.
5. Movant and the Debtor shall cooperate so as to permit the Debtor to have access to the Premises so that the Debtor may remove its furniture, fixtures, equipment, inventory and other personal property (the "Personal Property") from the Premises in compliance with this Order. The Debtor shall remove all of its Personal Property located at the Premises (the "Removal Process") on the following schedule: (a) all Personal Property shall be removed from the lower level of the Premises by no later than February 4, 2008 at 5 p.m.; and (b) all Personal Property shall be removed from the upper level of the Premises by not later than February 8, 2008 at 5 p.m. After February 4, 2008 at 5 p.m., the Movant shall designate all means of access and allowable routes through the lower level of the Premises available for use by the Debtor and its agents and/or contractors in removing the remaining Personal Property from the upper level of the Premises.
6. Any Personal Property left on the lower level of the Premises after February 4, 2008 at 5 p.m. shall be deemed abandoned pursuant to 11 U.S.C. § 554(a) and such Personal Property may be disposed of by Movant in any manner Movant deems necessary, without any liability to the Debtor or any third party claiming an interest in such Personal Property. Any Personal Property left on the upper level of the Premises after February 8, 2008 at 5 p.m. shall be deemed abandoned pursuant to 11 U.S.C. § 554(a) and such Personal Property may be disposed of by Movant in any manner Movant deems necessary, without any liability to the Debtor or any third party claiming an interest in such Personal Property.
7. The Movants are authorized to utilize any lawful "self-help" remedies available under Maryland law to secure control of and to remove any Personal Property located in the Premises as follows: (a) with regard to the lower level, as of February 4, 2008 at 6:00 p.m., and (b) with regard to the upper level, as of February 8, 2008 at 6:00 p.m.
8. The Debtor shall give advance written notice to the Movants of any contractors, equipment or machinery that it intends to use at the Center or the Premises. All contractors shall have and maintain appropriate insurance coverage. The Debtor shall maintain the insurance coverage required under the License Agreement through February 9, 2008.
9. The Debtor shall coordinate with the manager of the Center in advance of the commencement of the Removal Process with regard to acceptable means of removing fixtures and minimizing the visibility of the inside of the Premises and the impact on the operation of the Center including the parking fields.
10. The Debtor shall comply with all lawful orders of local officials, including any orders relating to the use of the parking fields at the Center and the presence of the Debtor's trailers.
11. All Personal Property must be removed through exterior doors, loading bays or the service corridors at the Center; and, upon completion of the Removal Process by not later than February 8, 2007 at 5 p.m., the Debtor shall conduct a full walkthrough of the Premises with the Center manager and the Premises shall be free of any material amount of debris or refuse from the Debtor.
12. Nothing herein shall constitute a waiver of the Movants' claim(s) against the Debtor. The parties are entering into a separate agreement regarding all such claims which agreement shall either be presented to this Court or consummated outside of this bankruptcy case in the event that the Debtor dismisses this bankruptcy case.
13. This Court shall retain jurisdiction to enforce the terms of this Order.
14. This Stipulation and Consent Order shall be binding on any successor-in-interest to the Debtor, including, without limitation, any subsequently-appointed Chapter 7 Trustee.
15. The 10 day stay of this Order is waived pursuant to Federal Rule of Bankruptcy Procedure 4001(c)(3). WESTFIELD, LLC, WHEATON PLAZA SIMON SADOUN REGIONAL SHOPPING CENTER LLP summersm@ballardspahr.com spreller@msn.com AGREED AND ACKNOWLEGED: SIMON SADOUN D/B/A "INTERNATIONAL FURNITURE LIQUIDATORS, INC." INTERNATIONAL FURNITURE LIQUIDATORS, INC.
CONSENTED AND AGREED TO BY /s/ Matthew G. Summers /s/ Steven B. Preller ____________________________ ____________________________ Matthew G. Summers Steven B. Preller Ballard Spahr Andrews Ingersoll, LLP Troese Preller Dukes, LLC Baltimore, Maryland Annapolis, Maryland E-mail: E-mail: /s/ Simon Sadoun _____________________________ and By: /s/ Simon Sadoun _____________________________ Name: Simon Sadoun Title: President