Case KG Doc 7468 Filed 05/20/13 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case KG Doc 7468 Filed 05/20/13 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) MERVYN S HOLDINGS, LLC, et al., 1 ) Case No (KG) ) Debtors. ) Jointly Administered CERTIFICATION OF COUNSEL REGARDING ORDER APPROVING STIPULATION RESOLVING CERTAIN CLAIMS OF KEY EQUIPMENT FINANCE INC. The undersigned hereby certifies as follows: 1. On July 29, 2008, each of the above-captioned debtors, as debtors and debtors-inpossession (the Debtors ) filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) with the United States Bankruptcy Court for the District of Delaware (the Court ). 2. On March 20, 2013, the Court entered the Findings of Fact, Conclusions of Law and Order Confirming the First Amended Joint Plan of Liquidation Under Chapter 11 of the Bankruptcy Code of the Debtors and the Official Committee of Unsecured Creditors [Docket No. 7323], pursuant to which the first amended plan of liquidation (the Plan ) was confirmed. On May 1, 2013, the Effective Date occurred under the Plan. 3. Pursuant to the Plan, Wilmington Trust, National Association was appointed to act as plan administrator (in such capacity, the Plan Administrator ) with authority, among other things, to resolve objections to proofs of claim filed in the Chapter 11 Cases. 4. On May 8, 2007, Mervyn s entered into a Master Lease Agreement (as amended, the Master Lease ) with General Electric Capital Corporation ( GECC ), pursuant to which 1 The Debtors in these cases (collectively, the Chapter 11 Cases ), along with the last four digits of the federal tax identification number for each of the Debtors, are Mervyn s Holdings, LLC (3405), Mervyn s LLC (4456) and Mervyn s Brands, LLC (8850).

2 Case KG Doc 7468 Filed 05/20/13 Page 2 of 5 Mervyn s leased from GECC certain equipment more particularly described in and on certain equipment schedules subject to the Master Lease. 5. On or about May 8, 2007, in accordance with and subject to the Master Lease, Key and Mervyn s entered into that certain Equipment Schedule, described as Schedule K001 (the POS Schedule ). 6. On or about May 10, 2007, GECC and Mervyn s entered into a Master Security Agreement (as amended, the MSA ), pursuant to which Mervyn s granted to GECC a security interest in and to certain equipment more particularly described in and on certain collateral schedules subject to the MSA. 7. Subsequently, (i) on or about June 4, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $1,343, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule No. K002, (ii) on or about July 17, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $2,788, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule No. K003, and (iii) on or about September 25, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $3,412, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule K GECC assigned to Key all of its right, title and interest in and to (i) the POS Schedule and the Master Lease, as it applies to the POS Schedule, (ii) the Collateral Schedules described in paragraph G (collectively, the Key Electrical Equipment Schedules ) and the MSA 2

3 Case KG Doc 7468 Filed 05/20/13 Page 3 of 5 as it applies to the Key Electrical Equipment Schedules and (iii) the equipment subject to the POS Schedule and the Key Electrical Equipment Schedules. 9. On or about June 2009, the Debtors and Key entered into a Settlement Agreement (the Key POS Settlement Agreement ) pursuant to which, among other things, (i) the Debtors and Key resolved Key s claims for unpaid post-petition payments under the Master Lease as it applies to the POS Schedule, (ii) Key s right to file unsecured claims with respect to the Master Lease, as it applies to the POS Schedule, was preserved, and (iii) the Debtors agreed to surrender any equipment subject to the Master Lease, as it applies to the POS Schedule, not previously surrendered to Key. 10. The Key POS Settlement Agreement was approved by the Court pursuant to the Order Approving Agreement Between Debtors and Key Equipment Finance Inc. entered on June 24, 2009 [Docket No. 3626]. 11. On or about June 2009, the Debtors and Key entered into another Settlement Agreement (the Key Electrical Equipment Settlement ) pursuant to which, among other things, (i) the Debtors and Key resolved certain of Key s claims to certain funds placed in escrow in connection with the assumption and assignment of certain of the Debtors store leases, (ii) the Debtors and Key resolved certain of Key s secured claims under the MSA and the Key Electrical Equipment Schedules with respect to certain equipment subject to the Key Electrical Equipment Schedules, and(iii) Key s right to file administrative or unsecured claims was preserved. 12. The Key Electrical Equipment Settlement was approved by the Court pursuant to the Order Granting Stipulation Between Debtors and Key Equipment Finance Inc. Regarding Certain Escrowed Funds for Key Electrical Collateral entered on June 24, 2009 [Docket No. 3622]. 3

4 Case KG Doc 7468 Filed 05/20/13 Page 4 of Key filed the following proofs of claim (collectively, the Claims ): (i) Claim No Claim No. 155 with respect to the POS Schedule and the Master Lease as it applies to the POS Schedule was filed as a general unsecured claim against Mervyn s on or about September 9, 2008 in the amount of $1,151,580.10; (ii) Claim No Claim No. 156 with respect to the Key Electrical Equipment Schedules and the MSA as it applies to the Key Electrical Equipment Schedules was filed as a secured claim against Mervyn s on or about September 9, 2008 in the amount of $6,723,380.65; (iii) Claim No Claim No. 158 with respect to the POS Schedule and the Master Lease as it applies to the POS Schedule was filed as a general unsecured claim against Holdings on or about September 9, 2008 in the amount of $1,151,580.10; (iv) Claim No Claim No. 157 with respect to the Key Electrical Equipment Schedules and the MSA as it applies to the Key Electrical Equipment Schedules was filed as a secured claim against Holdings on or about September 9, 2008 in the amount of $6,723,380.65; (v) Claim No Claim No with respect to the Key Electrical Equipment Schedules was filed as an administrative claim against the Debtors in an unliquidated amount; and (vi) Claim No Claim No purports to supplement Claim No with additional information. 14. Other than the Claims, Key has not filed any other proofs of claim in the Debtors Chapter 11 Cases. 15. Subsequently, the Debtors informally objected to the Claims (the Objection ). 16. The Parties have engaged in good faith, arm s length negotiations and have agreed to enter into a stipulation (the Stipulation ) resolving the Claims and the Objection. A proposed form of order (the Proposed Order ) approving the Stipulation is attached hereto as 4

5 Case KG Doc 7468 Filed 05/20/13 Page 5 of 5 Exhibit 1. A true and correct copy of the Stipulation is attached to the Proposed Order as Exhibit A. The Stipulation and Proposed Order have been reviewed and approved by the Parties. WHEREFORE, the Plan Administrator respectfully requests that the Court enter the Proposed Order, substantially in the form attached hereto as Exhibit 1 at its earliest convenience. Dated: May 20, 2013 Wilmington, Delaware Respectfully submitted, /s/ Andrew C. Irgens Mark D. Collins (No. 2981) Daniel J. DeFranceschi (No. 2732) Christopher M. Samis (No. 4909) Andrew C. Irgens (No. 5193) RICHARDS, LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, Delaware Telephone: (302) Facsimile: (302) collins@rlf.com defranceschi@rlf.com samis@rlf.com irgens@rlf.com and Jay R. Indyke Cathy R. Hershcopf Seth Van Aalten Cooley LLP 1114 Avenue of the Americas New York, NY Telephone: (212) Facsimile: (212) jindyke@cooley.com chershcopf@cooley.com svanaalten@cooley.com Attorneys for the Plan Administrator 5

6 Case KG Doc Filed 05/20/13 Page 1 of 12 Exhibit 1 (Proposed Order)

7 Case KG Doc Filed 05/20/13 Page 2 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) MERVYN S HOLDINGS, LLC, et al., 1 ) Case No (KG) ) Debtors. ) ) ) Jointly Administered Re: Docket No. ORDER APPROVING STIPULATION RESOLVING CERTAIN CLAIMS OF KEY EQUIPMENT FINANCE INC. Upon consideration of the Stipulation Resolving Certain Claims of Key Equipment Finance Inc. (the Stipulation ), attached hereto as Exhibit A, by and between the abovecaptioned debtors (the Debtors ) and Key Equipment Finance Inc; and this matter being submitted on consent; the Court having determined that good and adequate cause exists for approval of the Stipulation; and the Court having determined that no further notice of the Stipulation must be given; reference. IT IS HEREBY ORDERED THAT: 1. The Stipulation is hereby approved, and its terms are incorporated herein by 2. This Court retains jurisdiction with respect to all matters arising from or related to the Stipulation and this Order. Dated:, 2013 Wilmington, Delaware THE HONORABLE KEVIN GROSS CHIEF UNITED STATES BANKRUPTCY JUDGE 1 The Debtors in these cases, along with the last four digits of the federal tax identification number for each of the Debtors, are Mervyn s Holdings, LLC (3405), Mervyn s LLC (4456) and Mervyn s Brands, LLC (8850).

8 Case KG Doc Filed 05/20/13 Page 3 of 12 Exhibit A (Stipulation)

9 Case KG Doc Filed 05/20/13 Page 4 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) MERVYN S HOLDINGS, LLC, et al., 1 ) Case No (KG) ) Debtors. ) Jointly Administered STIPULATION RESOLVING CERTAIN CLAIMS OF KEY EQUIPMENT FINANCE INC. The above-captioned debtors, as debtors and debtors-in-possession (the Debtors ) and Key Equipment Finance Inc. ( Key and, together with the Debtors and the Plan Administrator (defined below), collectively, the Parties ) hereby agree as follows: RECITALS A. WHEREAS, on July 29, 2008, each of the Debtors filed voluntary petitions for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ) with the United States Bankruptcy Court for the District of Delaware (the Court ). B. WHEREAS, on March 20, 2013, the Court entered the Findings of Fact, Conclusions of Law and Order Confirming the First Amended Joint Plan of Liquidation Under Chapter 11 of the Bankruptcy Code of the Debtors and the Official Committee of Unsecured Creditors [Docket No. 7323], pursuant to which the first amended plan of liquidation (the Plan ) was confirmed. On May 1, 2013, the Effective Date occurred under the Plan. C. WHEREAS, pursuant to the Plan, Wilmington Trust, National Association was appointed to act as plan administrator (in such capacity, the Plan Administrator ) with authority, among other things, to resolve objections to proofs of claim filed in the Chapter 11 Cases. 1 The Debtors in these cases, along with the last four digits of the federal tax identification number for each of the Debtors, are Mervyn s Holdings, LLC (3405), Mervyn s LLC (4456) and Mervyn s Brands, LLC (8850).

10 Case KG Doc Filed 05/20/13 Page 5 of 12 D. WHEREAS, on May 8, 2007, Mervyn s entered into a Master Lease Agreement (as amended, the Master Lease ) with General Electric Capital Corporation ( GECC ), pursuant to which Mervyn s leased from GECC certain equipment more particularly described in and on certain equipment schedules subject to the Master Lease. E. WHEREAS, on or about May 8, 2007, in accordance with and subject to the Master Lease, Key and Mervyn s entered into that certain Equipment Schedule, described as Schedule K001 (the POS Schedule ). F. WHEREAS, on or about May 10, 2007, GECC and Mervyn s entered into a Master Security Agreement (as amended, the MSA ), pursuant to which Mervyn s granted to GECC a security interest in and to certain equipment more particularly described in and on certain collateral schedules subject to the MSA. G. WHEREAS, (i) on or about June 4, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $1,343, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule No. K002, (ii) on or about July 17, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $2,788, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule No. K003, and (iii) on or about September 25, 2007, Mervyn s executed a Promissory Note in favor of Key in the original principal amount of $3,412, and concurrent with the entry into that Promissory Note and in accordance with and subject to the MSA, Mervyn s and Key executed Collateral Schedule K004. H. WHEREAS, GECC assigned to Key all of its right, title and interest in and to (i) the POS Schedule and the Master Lease, as it applies to the POS Schedule, (ii) the Collateral DB1/

11 Case KG Doc Filed 05/20/13 Page 6 of 12 Schedules described in paragraph G (collectively, the Key Electrical Equipment Schedules ) and the MSA as it applies to the Key Electrical Equipment Schedules and (iii) the equipment subject to the POS Schedule and the Key Electrical Equipment Schedules. I. WHEREAS, in or about June 2009, the Debtors and Key entered into a Settlement Agreement (the Key POS Settlement Agreement ) pursuant to which, among other things, (i) the Debtors and Key resolved Key s claims for unpaid post-petition payments under the Master Lease as it applies to the POS Schedule, (ii) Key s right to file unsecured claims with respect to the Master Lease, as it applies to the POS Schedule, was preserved, and (iii) the Debtors agreed to surrender any equipment subject to the Master Lease, as it applies to the POS Schedule, not previously surrendered to Key. J. WHEREAS, the Key POS Settlement Agreement was approved by the Court pursuant to the Order Approving Agreement Between Debtors and Key Equipment Finance Inc. entered on June 24, 2009 [Docket No. 3626]. K. WHEREAS, in or about June 2009, the Debtors and Key entered into another Settlement Agreement (the Key Electrical Equipment Settlement ) pursuant to which, among other things, (i) the Debtors and Key resolved certain of Key s claims to certain funds placed in escrow in connection with the assumption and assignment of certain of the Debtors store leases, (ii) the Debtors and Key resolved certain of Key s secured claims under the MSA and the Key Electrical Equipment Schedules with respect to certain equipment subject to the Key Electrical Equipment Schedules, and(iii) Key s right to file administrative or unsecured claims was preserved. L. WHEREAS, the Key Electrical Equipment Settlement was approved by the Court pursuant to the Order Granting Stipulation Between Debtors and Key Equipment Finance Inc. DB1/

12 Case KG Doc Filed 05/20/13 Page 7 of 12 Regarding Certain Escrowed Funds for Key Electrical Collateral entered on June 24, 2009 [Docket No. 3622]. M. WHEREAS, Key filed the following proofs of claim (collectively, the Claims ): (i) Claim No Claim No. 155 with respect to the POS Schedule and the Master Lease as it applies to the POS Schedule was filed as a general unsecured claim against Mervyn s on or about September 9, 2008 in the amount of $1,151,580.10; (ii) Claim No Claim No. 156 with respect to the Key Electrical Equipment Schedules and the MSA as it applies to the Key Electrical Equipment Schedules was filed as a secured claim against Mervyn s on or about September 9, 2008 in the amount of $6,723,380.65; (iii) Claim No Claim No. 158 with respect to the POS Schedule and the Master Lease as it applies to the POS Schedule was filed as a general unsecured claim against Holdings on or about September 9, 2008 in the amount of $1,151,580.10; (iv) Claim No Claim No. 157 with respect to the Key Electrical Equipment Schedules and the MSA as it applies to the Key Electrical Equipment Schedules was filed as a secured claim against Holdings on or about September 9, 2008 in the amount of $6,723,380.65; (v) Claim No Claim No with respect to the Key Electrical Equipment Schedules was filed as an administrative claim against the Debtors in an unliquidated amount; and (vi) Claim No Claim No purports to supplement Claim No with additional information. N. WHEREAS, other than the Claims, Key has not filed any other proofs of claim in the Debtors Chapter 11 Cases. O. WHEREAS, the Debtors informally objected to the Claims (the Objection ). P. WHEREAS, the Parties have engaged in good faith, arm s length negotiations and have agreed to resolve the Claims and the Objection as set forth herein. NOW, THEREFORE, the Parties HEREBY STIPULATE AND AGREE as follows: DB1/

13 Case KG Doc Filed 05/20/13 Page 8 of 12 STIPULATION 1. The above Recitals are true and correct and are incorporated herein by reference. 2. This Stipulation shall become effective on the date (the Effective Date ) on which the Court enters an order approving the Stipulation. 3. As of the Effective Date, Claim No. 155 shall be allowed as a general unsecured claim against the Debtors in the amount of $949, and Claim No. 156 shall be allowed as a separate general unsecured claim against the Debtors in the amount of $6,608, (together, the Allowed Key Claims ). The Allowed Key Claims shall be entitled to distributions as general unsecured claims in accordance with the Findings of Fact, Conclusions of Law and Order Confirming the First Amended Joint Plan of Liquidation Under Chapter 11 of the Bankruptcy Code of the Debtors and the Official Committee of Unsecured Creditors [Docket No. 7323]. 4. On the Effective Date, except for the Allowed Key Claims, any and all other claims, proofs of claim, scheduled claims, administrative claims, motions or requests for payment filed and/or asserted, or which could have been or could be filed and/or asserted, by Key against the Debtors estates, including, without limitation, Claim Nos. 157, 158, 6382 and 6898, shall be deemed satisfied, waived and/or withdrawn with prejudice. 5. Any and all distributions to be made on account of the Allowed Key Claims shall be made payable to Key Equipment Finance Inc. and delivered to Pryor Cashman LLP, Attention: Conrad K. Chiu, 7 Times Square, New York, New York, On the Effective Date, Key and its respective officers and directors (collectively, the Key Released Parties and each a Key Released Party ) shall be deemed to have released and discharged the Debtors, on behalf of themselves and their respective estates, officers and directors (collectively, the Debtor Released Parties and each a Debtor Released Party ), the DB1/

14 Case KG Doc Filed 05/20/13 Page 9 of 12 Plan Administrator and the Official Committee of Unsecured Creditors (the Committee ) of and from any and all past, present and future actions, causes of action, demands, suits, claims, liabilities, encumbrances, lawsuits, adverse consequences, amounts paid in settlement, costs, damages, debts, deficiencies, diminution in value, disbursements, expenses, losses and other obligations of any kind or nature whatsoever, whether in law, equity or otherwise, whether known or unknown, fixed or contingent, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may hereafter accrue against any of the Debtor Released Parties, the Plan Administrator or the Committee, whether held in a personal or representative capacity, and which are based on any act, fact event or omission or other matter, cause or thing occurring at any time prior to and including the Effective Date in any way directly or indirectly arising out of, connected with or relating to the Claims or the Objection; provided, however, that nothing herein shall release any Debtor Released Party, the Plan Administrator or the Committee from (i) its obligations under this Stipulation or with respect to the payment of the Allowed Key Claims, (ii) any act or omission of such Debtor Released Party, the Plan Administrator or the Committee to the extent that such act or omission is determined in a final, non-appealable order or judgment of this Court or another court of competent jurisdiction to have constituted fraud, gross negligence or willful misconduct, or (iii) any claim asserted or owned by Key which is not specifically the subject of this Stipulation. 7. Effective as of the Effective Date, each of (x) the Debtor Released Parties, (y) the Plan Administrator, and (z) the Committee shall be deemed to have released and discharged the Key Released Parties of and from any and all past, present and future actions, causes of action, demands, suits, claims, liabilities, encumbrances, lawsuits, adverse consequences, amounts paid in settlement, costs, damages, debts, deficiencies, diminution in value, DB1/

15 Case KG Doc Filed 05/20/13 Page 10 of 12 disbursements, expenses, losses and other obligations of any kind or nature whatsoever, whether in law, equity or otherwise (including, without limitation, any avoidance actions arising under Sections 541 through 550 of the Bankruptcy Code or applicable state law and any interest or other carrying costs, penalties, legal, accounting or other professional fees and expenses, and incidental, consequential and punitive damages payable to third parties), whether known or unknown, fixed or contingent, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may hereafter accrue against any of the Key Released Parties, whether held in a personal or representative capacity, and which are based on any act, fact event or omission or other matter, cause or thing occurring at any time prior to and including the Effective Date in any way directly or indirectly arising out of, connected with or relating to the Claims or the Objection; provided, however, that nothing herein shall release any Key Released Party from (i) its obligations under this Stipulation, or (ii) any act or omission of such Key Released Party to the extent that such act or omission is determined in a final, non-appealable order or judgment of this Court or another court of competent jurisdiction to have constituted fraud, gross negligence or willful misconduct. 8. The Parties represent and warrant to each other that the signatories to this Stipulation have full power and authority to enter into this Stipulation. 9. All representations, warranties, inducements, and/or statements of intention made by the Parties that relate to this Stipulation are embodied in the Stipulation, and none of the Parties have relied upon, shall be bound by, or shall be liable for any alleged representation, warranty, inducement, or statement of intention that is not expressly set forth in this Stipulation. 10. This Stipulation may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This Stipulation may be executed by facsimile or PDF signatures, and such facsimile or PDF DB1/

16 Case KG Doc Filed 05/20/13 Page 11 of 12 signatures will be deemed to be as valid as an original signature whether or not confirmed by delivering the original signatures in person, by courier or mail, although it is the Parties intention to deliver original signatures after delivery of facsimile or PDF signatures. 11. The Court shall retain jurisdiction to resolve any disputes or controversies arising from or relating to this Stipulation. Signature Page Follows DB1/

17 Case KG Doc Filed 05/20/13 Page 12 of 12