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UNITED STATED BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FT. LAUDERDALE DIVISION 

www.flsb.uscourts.gov

In re: 

SEVEN STARS ON THE HUDSON CORP. 

 

Debtor, 

_______________________________________/

Case No.: 19-17544-SMG 

Chapter 11 

REPLY IN SUPPORT OF OBJECTION OF MDG TO DEBTOR’S MOTION TO 

ASSUME UNEXPIRED LEASE OF NONRESIDENTIAL PROPERTY 

 

MDG Powerline Holdings, LLC (“Landlord”), by and through undersigned counsel, 

submits this Reply in support of its Objection to Debtor’s Motion to Assume Unexpired Lease of 

Nonresidential Property [ECF No. 164] (the “Objection”) and in opposition to Debtor’s 

Response in Further Support of its Motion [ECF No. 168] (the “Response”). 

PRELIMINARY STATEMENT 

At the outset, it is important to frame the context by which the Motion [ECF No. 129] 

(the “Motion to Assume”) comes before the Court. Debtor is seeking to assume the pre-petition 

lease it entered into with Landlord on or about November 23, 2015 (the “Lease”). The 

Bankruptcy Code protects landlords by requiring certain conditions be met when a debtor seeks 

to assume an unexpired, non-residential lease. Debtor seeks to rewrite those conditions because 

it cannot meet them. For the reasons set forth in the Objection, as stated on the record at the 

initial hearing on April 29, 2020 and for the additional reasons set forth below, the Motion to 

Assume must be denied. 

Under the Lease, Debtor agreed to operate a trampoline park and family fun center in the 

Premises under the trade name “Rockin’ Jump.” Debtor is in default of its obligation under 

section 6.01 of Lease to use the Premises “for the purposes and under the trade name(s) specified

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in the Basic Lease Provisions, and for no other purposes and under no other trade name 

whatsoever . . . ” (emphasis added). The “Basic Lease Provisions” require that the Premises be 

operated as a “Rockin’ Jump” trampoline center. See Lease, section 6.01. Further, the Lease 

expressly states that “Landlord has entered into this Lease with Tenant in order to obtain for the 

benefit of the entire Property the unique attraction of [Debtor’s] trade name as specified in the 

Basic Lease Provisions . . .” See Lease, section 10.01(a) (emphasis added). Debtor cannot cure 

this default, and contrary to Debtor’s assertions in the Response, section 365 of the Bankruptcy 

Code bars the assumption of the Lease under such circumstances. 

Debtor also is in monetary default of its rental obligations under the Lease. Debtor 

argues that either the force majeure clause of the Lease or an equitable doctrine excuses its nonpayment of rent. In fact, the opposite is true. First, under the Bankruptcy Code, a debtor must 

either cure all defaults at the time of assumption or provide adequate assurance that all defaults 

will be promptly cured. See 11 U.S.C. § 365(b)(1)(A). Second, as explained below, applicable 

non-bankruptcy law does not excuse performance by Debtor. No equitable doctrine applies to 

change that fact. 

Accordingly, Landlord respectfully requests that this Court deny the Motion to Assume 

and order the rejection of the Lease. 

ARGUMENT 

 Debtor makes two separate arguments in its Response as to why the Objection should be 

denied and the Motion to Assume granted. First, it argues that 365(b)(1) does not require “literal 

compliance” with the Lease and, therefore, its failure to operate as “Rockin’ Jump” franchise 

does not prevent assumption of the Lease. Second, Debtor argues that there is no monetary 

default under the Lease because (a) an alleged force majeure event excuses the rent obligation, 

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and (b) enforcement of the rental obligation during the alleged force majeure event should be 

“rejected” on equitable grounds. Respectfully, neither argument posited by Debtor survives 

scrutiny. 

I. Debtor is in Default of its Franchise Obligation under the Lease and 

is Barred from Assuming the Lease 

Debtor concedes that it is in default of its obligation to operate the Premises as a 

“Rockin’ Jump” trampoline park under section 6.01 of the Lease. See Response, p. 4. For the 

reasons explained in the Objection, Debtor is barred from assuming the Lease under section 365 

of the Bankruptcy Code due to that default. In the Response, however, Debtor has attempted to 

argue that its failure to operate as a “Rockin’ Jump” is a default that may be excused in 

connection with the assumption of the Lease. Debtor is wrong. 

When a “[d]ebtor brings [a] Motion to assume the Lease pursuant to 11 U.S.C. § 365, 

[d]ebtor has the burden of proving that the lease is one subject to assumption and that all 

requirements for assumption have been met.” In re 8800 LLC, No. 2:18-BK-17263-RK, 2019 

WL 268577, at *18 (Bankr. C.D. Cal. Jan. 18, 2019) (citation and quotation marks omitted). 

Assumption of the Lease requires curing of all defaults (including monetary defaults) at the time 

of such assumption. See In re Embers 86th Street, Inc., 184 B.R. 892, 896 (Bankr. S.D.N.Y. 

1995) (“[c]uring requires payment of all rental arrearages and other money obligations at the 

time the lease is assumed”) (emphasis added); see also In re R.H. Neil, Inc., 58 B.R. 969, 971 

(Bankr. S.D.N.Y. 1986) (“Adequate assurance of a prompt cure requires that there be a firm 

commitment to make all payments and at least a reasonably demonstrable capability to do so.”); 

In re Eagle Creek Subdivision, LLC, 397 B.R. 758, 765 (Bankr. E.D.N.C. 2008) (Section 

“365(b)(1) precludes the debtor from assuming the contracts at issue because it committed a nonmonetary and material default that it cannot cure.”). 

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Where a lease obligates a debtor to operate leased premises under a particular franchise, 

the debtor must be able to operate the premises under such franchise and assume the applicable 

franchise agreement in order to assume such lease under section 365. See e.g., In re Szenda, 406 

B.R. 574, 582 (Bankr. D. Mass. 2009) (finding that the debtor’s motion to assume a lease 

agreement must be denied unless the debtor seeks approval for the assumption of a franchise 

agreement relating to the leased premises); In re Ok Kwi Lynn Candles, Inc., 75 B.R. 97, 101 

(Bankr. N.D. Ohio 1987) (holding that because the debtor was in default of its obligations under 

a franchise agreement and had failed to cure or offer adequate assurance that it could cure this 

default, the debtor could not assume the lease pursuant to 11 U.S.C. § 365(b)(1)); In Matter of 

Gretter Autoland, Inc., No. 14-02831-ALS11, 2015 WL 4915802, at *4 (Bankr. S.D. Iowa Aug. 

17, 2015) (denying debtor’s motion to assume and assign the lease where debtor failed to obtain 

approval of the assumption of the franchise agreements). See generally, In re Memphis-Friday’s 

Assocs., 88 B.R. 830, 842 (Bankr. W.D. Tenn. 1988) (denying Debtor’s motion to assume 

where, inter alia, “sufficient evidence exist[ed] of the Debtor’s defaults in the franchise 

agreement and of the Debtor’s lack of proof on curing those defaults [and] the reality is that 

adequate assurance of future performance of the franchise cannot be offered by this Debtor.”). 

In In re FPSDA I, LLC, 450 B.R. 392 (Bankr.E.D.N.Y.2011), the debtor’s leases only 

permitted the debtor to operate the leased premises as a “Baskin-Robbins” or “Dunkin’ Donuts,” 

pursuant to applicable franchise agreements. 450 B.R. at 395. The court recognized that the 

objecting creditor “would not have signed a lease with [the] debtor had that debtor not 

simultaneously signed a franchise agreement with the [franchisor] to operate a Dunkin’ Donuts 

and/or Baskin-Robbins franchise on the leased premises.” Id. at 395. The FPSDA I court 

therefore held that unless the debtor assumed the applicable franchise agreements and operated 

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the leased premises as a “Baskin-Robbins” or “Dunkin’ Donuts” as required under its leases, it 

would be unable to assume such leases under section 365. Id. at 398. 

Here, just as the objecting creditor in FPSDA I, Landlord would not have entered into the 

Lease but for Debtor’s obligation to operate the Premises as a “Rockin’ Jump” pursuant to a 

“Rockin’ Jump” franchise agreement. See Lease, sections 6.01 and 10.01. Debtor has already 

expressly rejected the “Rockin’ Jump” franchise agreement and plainly cannot operate the 

Premises as a “Rockin’ Jump” as required under the Lease. Accordingly, Debtor may not 

assume the Lease under section 365. 

The arguments Debtor makes in the Response do not compel a different result. 

First, Debtor argues that failure to operate as a “Rockin’ Jump” is permissible because it 

need not be in “literal compliance” with the Lease in order to assume it. Debtor cites a Third 

Circuit decision for the proposition that Debtor need not be in “literal compliance with all lease 

provisions” to demonstrate adequate assurance of future performance. Response, p. 4 (citing In 

re Joshua Slocum Ltd., 922 F.2d 1081 (3d Cir. 1990)). But, the Third Circuit’s holding is not 

nearly as broad as Debtor suggests. In fact, the court held that only “insubstantial disruptions in, 

inter alia, tenant mix, and insubstantial breaches in other leases or agreements” are typically 

allowed by courts. Id. at 1090 (emphasis added). There can be no dispute that the failure to 

operate as a “Rockin’ Jump” trampoline center is not “insubstantial.” Section 6.01 of the Lease 

requires that Debtor operate as a “Rockin’ Jump” franchise and for no other purposes and under 

no other trade name whatsoever. See Lease, section 6.01. Moreover, the Lease expressly states 

that “Landlord has entered into this Lease with Tenant in order to obtain for the benefit of the 

entire Property the unique attraction of [Debtor’s] trade name as specified in the Basic Lease 

Provisions . . .” See Lease, section 10.01(a) (emphasis added). Just as in Joshua Slocum, the 

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requirement to operate as a “Rockin’ Jump” was “intended to benefit both the landlord and the 

tenant [and] was negotiated at arms length to accommodate the commercial expectations of the 

parties.” Joshua Slocum, 922 F.2d at 1092. In addition, rather than seeking to assign the Lease 

like the debtor in Joshua Slocum, in this instance Debtor is seeking to assume the Lease for its 

own benefit.

Second, Debtor argues that courts may take a “less stringent” view of adequate assurance 

of future performance in non-shopping center cases. Response, p 4. However, here, too, the 

cases relied upon by Debtor fail to support its argument. Debtor cites Rockland Center Assocs. 

V. TSW Stores of Nanuet, Inc. (In re TSW Stores of Nanuet, Inc.), 34 B.R. 299, 307 (Bankr. 

S.D.N.Y. 1983), but the court in that case limited permitted deviations in performance to those 

that “would not violate the express terms of the lease” in the context of the assignment of the 

lease to a third party. Id. at 306. Again, in this instance, Debtor is seeking to assume the Lease, 

but in doing so, rewrite a significant, material, bargained-for provision that requires it to operate 

as a “Rockin’ Jump.” As stated above, Debtor concedes that it is in default of the express term 

of the Lease obligating Debtor to operate the Premises as a “Rockin’ Jump” and there is no basis 

under the Bankruptcy Code for Debtor to say “it changed its mind” about agreeing to operate as 

a “Rockin’ Jump.” And, as explained in Joshua Slocum, “even if the [property] were not a 

shopping center, the bankruptcy court’s authority to excise [a term] of the lease is questionable.” 

922 F.2d at 1091. 

Similarly, Debtor’s reliance upon In re Vista VI, Inc., 35 B.R. 564 (N.D. OH 1983) to 

support its argument that the Court can ignore the language of 365(b)(1) is misplaced. In that 

case, the court conducted a careful “balancing [of] the equities” which ultimately weighed in the 

debtor’s favor only because the debtor “ha[d] a real possibility of meeting its obligations to its 

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creditors,” and “no real harm to [the objecting creditor]” was expected. Id. at 567-68. Those 

facts simply do not exist here. As explained below, Debtor is in default in payment of two 

months’ rent under the Lease and has provided no indication, let alone, assurance, that it has the 

capability of making such payments. Moreover, Debtor’s inability to operate the Premises as a 

“Rockin’ Jump” represents a clear harm to Landlord’s ability to realize the benefit of its bargain 

under the Lease. 

 Third, Debtor stretches its argument to suggest that requirements in the Lease are more 

important outside of bankruptcy than inside of bankruptcy when seeking to assume the Lease. 

See Response, p. 5. Neither of the cases relied upon by Debtor support its argument. In In re 

Martin Paint Stores, the court’s decision to excuse the debtor from its obligation to comply with 

a use provision under its lease and allow such debtor to assume and assign such lease was 

predicated on the fact that the debtor would then be able to cure its lease defaults and the 

objecting creditor would have no further pecuniary injuries. See In re Martin Paint Stores, 199 

B.R. 258, 263 (Bankr. S.D.N.Y. 1996). Again, here, Debtor is not even remotely hinting that it 

will cure the monetary defaults that have occurred post-petition. Once again, this is not a 

situation where Debtor is seeking to assign the Lease, but rather assume it for its own benefit. 

In In re Tobago Bay Trading, the court held that a use clause in a lease which prohibited 

liquidation sales by the debtor related to the “insolvency or financial condition” of the debtor and 

was not to be enforced. See In re Tobago Bay Trading Co., 112 B.R. 463, 467 (Bankr. N.D. 

Georgia 1990). This case has no applicability to Debtor’s situation and addressed whether a 

shopping center tenant could be permitted to hold a liquidation sale notwithstanding a provision 

restricting such sales in its underlying lease. 

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Fourth, Debtor contends that Landlord’s actions (and inaction) with respect to the 

“Rockin’ Jump” franchise shows that the provision under the Lease obligating Debtor to operate 

the Premises as a “Rockin’ Jump” lacks materiality. Response, p. 6. However, Debtor fails to 

cite any caselaw to support its argument that the actions or (inaction) of Landlord should weigh 

on the analysis of the materiality of such provision. A provision in a lease is material if “it goes 

to the very essence of the contract, i.e., the bargained for exchange.” Joshua Slocum, 922 F.2d at 

1092. The Lease is unequivocal that Debtor use the Premises “solely” under the “Rockin’ Jump” 

trade name and that Landlord entered the Lease “in order to obtain for the benefit of the entire 

Property the unique attraction of [the Rockin’ Jump] trade name . . .” See Lease, sections 6.01 

and 10.01. Further, such provision is of paramount importance to Debtor’s ability to perform its 

financial covenants under the Lease. Debtor’s conceded breach of such material provision of the 

Lease is a material default which precludes assumption of the Lease under section 365. 

II. Neither the Force Majeure Clause Nor an Equitable Doctrine Excuses Debtor’s 

Monetary Default of its Rental Obligations Under the Lease 

The Lease’s force majeure clause does not excuse Debtor’s rental obligation. Rather, the 

force majeure clause specifies: “This section shall not excuse any rental obligations, nor delay 

the Rental Commencement Date for any time period in excess of thirty (30) days.” Lease, 

section 20.14(b) (emphasis added). 

In an attempt to evade the clear language of the Lease, Debtor now asks this Court to 

discharge its clear duty to pay rent on the grounds of “temporary commercial impracticality or 

impossibility” or unconscionability. Neither doctrine applies. 

i. Commercial Impracticability or Impossibility 

Commercial impracticability or impossibility “is a defense to nonperformance and refers 

to situations where the purpose for which the contract was made has become impossible to 

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perform.” Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1216 (Fla. 2d DCA 2012). 

Florida courts have long held that “simple inability to pay does not create an impossibility or 

impracticality which excuses a party’s performance of his contractual allegations.” LSREF2 

Baron, LLC v. Beemer & Assocs. XVII, L.C., No. 3:10-CV-577-J-32JBT, 2011 WL 6838163, at 

*4 (M.D. Fla. Dec. 29, 2011) (holding that the “defense of commercial impracticability does not 

apply” because “an economic downturn, even one as drastic and severe as the recent recession, is 

not the type of unanticipated circumstance that would relieve sophisticated business entities from 

their contractual obligations.”); see also, Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 

2011) (“Economic downturns and other market shifts do not truly constitute unanticipated 

circumstances in a market-based economy.”). 

In Lantino v. Clay LLC, No. 1:18-CV-12247 (SDA), 2020 WL 2239957, at *3 (S.D.N.Y. 

May 8, 2020), the Southern District of New York rejected Defendants’ argument that payment of 

a judgment was excused on impossibility grounds as a result of COVID-19. The court noted that 

under New York law (just as is the case in Florida), “where impossibility or difficulty of 

performance is occasioned only by financial difficulty or economic hardship, even to the extent 

of insolvency or bankruptcy, performance of a contract is not excused.” Id. The court further 

found that it was “undisputed that Defendants [were] in default under the [Agreement] 

 because they “failed to make a payment when due.” Id. The court held: “At best, Defendants 

have established financial difficulties arising out of the COVID-19 pandemic and the PAUSE 

Executive Order that adversely affected their ability to make the payments called for under the 

Settlement Agreement. As such, Defendants’ performance under the Settlement Agreement is 

not excused.” Id. 

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The same is true here. It is undisputed that Debtor is in monetary default under the Lease 

for failing to pay rent. While Debtor may have financial difficulties arising out of the COVID19 pandemic and executive order, economic hardship does not excuse its rental obligations under 

the Lease. See id. 

ii. Unconscionability 

Debtor’s unconscionability claim fares no better. Under Florida law, for a court to find a 

contract unconscionable, “evidence must be adduced to demonstrate that the contractual 

provision ‘is both procedurally and substantively unconscionable.’” In re TOUSA, Inc., 503 

B.R. 499, 507 (Bankr. S.D. Fla. 2014) (citing Gainesville Health Care Ctr., Inc. v. Weston, 857 

So.2d 278, 284 (Fla. 1st DCA 2003)). “The procedural component of unconscionability 

concerns the manner in which the contract was entered. It involves consideration of facts such as 

the relative bargaining power of the parties and their ability to understand the contract terms.” 

Id. (citing Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2nd DCA 2004)). 

Substantive unconscionability requires a determination that the terms are so “outrageously 

unfair” as to shock the “judicial conscience.” Id. (citing Weston, 857 So.2d at 285). 

In In re TOUSA, Inc. the court rejected the debtor’s claim that a term was 

unconscionable, stating that, “[w]hile [Debtor] is understandably unhappy that its equitable relief 

options are limited, [Debtor] voluntarily agreed to the [contractual] Provision. No provision of 

Florida law operates to limit the parties’ contractual agreement.” 503 B.R. at 507. 

Such is the case here, as well. Debtor, a sophisticated commercial party, voluntarily 

agreed to carve out its rental obligations from the force majeure clause. Indeed, as evidence of 

the parties’ equal bargaining power, Debtor averred: “[Debtor] declares that [Debtor] has read 

and understands all parts of this Lease. In the construction and interpretation of the terms of this 

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Lease, the principle that a document is to be construed most strictly against the party who 

prepared the same shall not be applied, it being agreed that both parties hereto have participated 

in the preparation of the final form of this Lease.” Lease, section 20.24. Debtor cannot now 

reasonable contend that the carve-out provision is procedurally unconscionable. 

Nor is the Lease substantively unconscionable. An unconscionable contract is defined by 

Florida courts as one that “no man in his senses and not under delusion would make on the one 

hand, and as no honest and fair man would accept on the other.” Belcher v. Kier, 558 So. 2d 

1039, 1044 (Fla. 2d DCA 1990). The carve-out of rental obligations from a force majeure clause 

is a commonplace lease provision that does not shock the “judicial conscience.” See generally 

Weston, 857 So.2d at 285. 

Here, Landlord and Debtor contracted to exclude payment of rent from the force majeure 

clause. “It is not the function of the courts to ‘rewrite a contract or interfere with the freedom of 

contract or substitute their judgment for that of the parties thereto in order to relieve one of the 

parties from the apparent hardship of an improvident bargain.’” Marriott Corp. v. Dasta Const. 

Co., 26 F.3d 1057, 1068 (11th Cir. 1994) (citing and quoting Steiner v. Physicians Protective 

Trust Fund, 388 So.2d 1064, 1066 (Fla. 3d DCA 1980)). Because the force majeure clause 

specifically carves out rental obligations, Debtor is in default of the Lease and its Motion must 

be denied. 

Even setting aside the clear carve-out language of the force majeure clause, Debtor’s 

monetary defaults under the Lease are still not covered by the force majeure clause. 

A “claim of force majeure is equivalent to an affirmative defense and the party relying on 

a force majeure clause bears the burden of proof.” In re Flying Cow Ranch HC, LLC, No. 18-

12681-BKC-MAM, 2018 WL 7500475, at *2 (Bankr. S.D. Fla. June 22, 2018). “Force majeure 

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clauses are typically narrowly construed, and will generally only excuse a party’s 

nonperformance if the event that caused the party’s nonperformance is specifically identified.” 

ARHC NVWELFL01, LLC v. Chatsworth at Wellington Green, LLC, No. 18-80712, 2019 WL 

4694146, at *3 (S.D. Fla. Feb. 5, 2019) (citations omitted). Florida courts generally interpret 

force majeure clauses with catch-all language to capture only unlisted events that are similar to 

the listed events. See, e.g., Snavely Siesta Assocs., LLC v. Senker, 34 So. 3d 813, 817–18 (Fla. 

2d DCA 2010) (finding that force majeure provision was “tether[ed] to a [specific] phrase” 

which provided “a nonexhaustive list of possible examples” and the party’s nonperformance did 

not fall within that list); Cartan Tours, Inc. v. ESA Services, Inc. 833 So. 2d 873, 875 (Fla. 4th 

DCA 2003) (refusing to enforce a force majeure clause because the phrase “affecting the ability 

of the Olympic Games to be held” in the clause was ambiguous as it related to September 11, 

2001 terrorist attacks); Home Devco/Tivoli Isles LLC v. Silver, 26 So. 3d 718, 723 (Fla. 4th 

DCA 2010) (finding that cause of default was not similar to the specific language in force 

majeure clause and therefore, did not excuse nonperformance). 

Here, the Lease’s force majeure clause provides that if Debtor “is delayed in performing 

any obligation” by “any cause beyond the reasonable control of the party required to perform 

such obligation, the time period for performing such obligation shall be extended by a period of 

time equal to the period of the delay.” Lease, section 20.14(a). The clause specifically defines a 

cause as “beyond the reasonable control of a party” when “such cause would affect any person 

similarly situated (such as a power outage, labor strike or truckers’ strike).” Id. But the Lease 

explicitly excludes from the force majeure clause causes that are not “beyond the reasonable 

control of such party when peculiar to such party (such as financial inability or ordering 

materials requiring a long lead time).” Lease, section 20.14(a) (emphasis added). 

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Here, Debtor’s financial inability to pay rent arises because of its own financial 

instability, which—as is detailed in Landlord’s Objection—began well before the pandemic 

started. A solvent commercial tenant would have the ability to avoid default during the 

pandemic, rendering this cause as peculiar to Debtor, and therefore explicitly excluded from the 

force majeure clause. 

Because Debtor cannot prove that the force majeure clause applies to its failure to 

perform under the Lease, this claim should be denied. 

CONCLUSION 

For the reasons stated above and set forth in Landlord’s Objection [ECF No. 164], 

Landlord respectfully requests that this Court deny Debtor’s Motion and order the rejection of 

the Lease. 

Dated: May 15, 2020 

 Respectfully submitted, 

 BILZIN SUMBERG BAENA 

PRICE & AXELROD LLP 

 Counsel for MDG Powerline Holdings, LLC 

 1450 Brickell Avenue, 23rd Floor 

 Miami, Florida 33131 

 (305) 374-7580 

 

 By: /s/ Jay M. Sakalo 

 Jay M. Sakalo 

 Fla. Bar No. 156310 

 

 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via 

CM/ECF Notice of Electronic Filing to all Parties appearing in this case who are registered to 

receive electronic noticing in this case via CM/ECF on this 15th day of May, 2020. 

 By: /s/ Jay M. Sakalo 

 Jay M. Sakalo 

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