IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ________________________________________ In re: MERVYNS HOLDING, LLC, et al.

1 Debtors. Chapter 11 Case No. 08-11586 (KG) Jointly Administered Related Motion Docket No. 331
Objection Deadline: September 18, 2008 Hearing Date: September 25, 2008 @ 2:00 p.m.

OBJECTION OF BYER PROPERTIES TO MOTION OF DEBTORS FOR AN ORDER, PURSUANT TO SECTIONS 105, 363 AND 365 OF THE BANKRUPTCY CODE AND BANKRUPTCY RULES 2002, 6004 AND 6006, APPROVING EXPEDITED PROCEDURES FOR THE REJECTION OR ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES Byer Properties, a shopping center landlord and the lessor of two non-residential real estate leases for stores occupied Mervyns Holding, LLC et al. (collectively, the Debtors), by and through their undersigned counsel hereby, objects to the Motion of the Debtors and Debtors in Possession for an Order, Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004 and 6006 Approving Expedited Procedures for the Rejection or Assumption and Assignment of Executory Contracts and Unexpired Leases Filed by Mervyns Holdings, LLC (the Motion). In support of the objection, Byer Properties respectfully states as follows: 1. Byer Properties is the lessor of two nonresidential real property leases in shopping

centers as to which the original lessee is Mervyns, then a California corporation. These stores are identified on Exhibit A to the Final Order (A) Authorizing Debtors to Obtain Post-Petition Financing, etc., Docket No. 323, as Store Nos. 5 and 32, in Cupertino and Santa Clara,

The Debtors in these cases, along with the last four digits of their federal tax identification numbers, are Mervyns Holdings, LLC (7931), Mervyns LLC (4456) and Mervyns Brands, LLC (8850).

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California. The landlords for these two stores are identified on the Exhibit A only as Unitary (IL) and Unitary (L) respectively. 2. are located. 3. Byer Properties retained the undersigned as counsel in connection with the aboveThe two Mervyns stores are anchor tenants for the shopping malls in which they

captioned bankruptcy proceedings and the issues related to the two store leases. Since being retained, counsel has been trying to obtain information regarding the status of the leases for the stores and the impact these bankruptcy proceedings could have on the continuation of the leases and the business of Byer Properties. 4. Byer Properties hoped to resolve any issues regarding the Motion with counsel for

the Debtors to avoid the need to file an objection, while obtaining protection for its position. 5. 6. Byer Properties made three simple requests of Debtors counsel. First, Byer Properties requested that the Proposed Order include a clarification

that the Motion and expedited procedures would not apply to leases between Mervyns and Byer Properties for Mervyns Store Nos. 5 and 32. 7. Second, to the extent that the Debtors asserted that the Motion applied to

subleases between Mervyns and the MDS entities that may apply to Mervyns rental of Stores Nos. 5 and 32 in the Byer Properties shopping centers, that Byer Properties be served with notice of any Rejection Notice or Assumption Notice pursuant to the terms of Proposed Order sought by the Motion. 8. Third, because the Debtors asserted that Byer Properties may lack standing to

object to any proposed rejection, assignment, or assumption of the subleases under the Byer Properties leases for Store Nos. 5 and 32, Byer Properties asked for copies of the subleases between the MDS entities and the Mervyns that apply to the two stores leased from Byer Properties.

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9.

Debtors counsel expressed agreement to the first request, but would not agree to

include a specific provision in the Proposed Order to provide notice to Byer Properties and refused to provide copies of the MDS entities subleases. 10. Byer Properties obviously has an interest in any attempt by the Debtors to reject,

assume, or assign the subleases under which the Debtors are currently operating retail stores in its shopping centers. 11. Therefore, at a minimum the Proposed Order should clarify that Byer Properties

is a party in interest entitled to notice pursuant to the Proposed Order at paragraphs 2.a.(vi) and 5.a.(vi) [providing for notice to any other interested parties to the Contracts or Leases known to the Debtors]. 12. Moreover, given the complexity and uncertainty raised by the Debtors treatment

of the MDS subleases under which the Debtors are currently operating retail stores in the Byer Properties shopping centers, Byer Properties respectfully requests that the Motion to approve expedited procedures be denied as it applies to any Unitary Leases. 13. Indeed, in the adversary action filed by Mervyns, LLC, Mervyns, LLC v.

Lubert-Adler and Klaff Partners, LP, Adversary Proceeding No. 08-51402, Docket No. 373 (Adversary Complaint), filed on September 2, 2008, Mervyns alleges that in 2004 the defendants in the adversary proceeding caused Mervyns to transfer virtually all of its real estate assets (leasehold and fee interests) to the newly-formed entities. Adversary Complaint, 54. Mervyns then alleges that all of Mervyns retail store locations (other than the stores subject to the restricted Leases) were made subject to three (3) Unitary Leases between Mervyns and the newly-formed entities. Adversary Complaint, 55. 14. Mervyns then alleges that the bundling of the individual Leases and Fees into

unitary leases prevented Mervyns from closing stores without the consent of the PE Sponsors or (more importantly) the Real Estate Secured Lenders, and would purport to prevent Mervyns

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from rejecting individual store leases in any subsequent bankruptcy case. Adversary Complaint, 88. 15. Mervyns seeks to avoid the MDS subleases as a fraudulent transfer. Adversary

Complaint, Prayer for Relief, A. 16. If the MDS subleases are avoided, Mervyns would apparently be the direct

lessee of Byer Properties for Store Nos. 5 and 32. 17. Byer Properties, to the extent not inconsistent herewith, also hereby joins in the

objections raised by other landlords to the Motion. CONCLUSION Byer Properties respectfully requests that the Motion be denied as to the leases covering Store Nos. 5 and 32 in Cupertino and Santa Clara, California. At a minimum, Byer Properties requests that the Proposed Order be modified to specify that Byer Properties is a party in interest entitled to notice pursuant to the Proposed Order at paragraphs 2.a.(vi) and 5.a.(vi) [providing for notice to any other interested parties to the Contracts or Leases known to the Debtors].

FOX ROTHSCHILD LLP

By: __/s/ Sheldon K. Rennie __________________ Sheldon K. Rennie, Esquire (DE Bar No. 3772) Magdalena Schardt, Esquire 919 North Market Street Suite 1300 Wilmington, DE 19801-3046 (302) 654-7444/Fax: (302) 656-8920 srennie@foxrothschild.com mschardt@foxrothschild.com - and Bernard S. Greenfield, Esquire McGrane Greenfield LLP 40 South Market Street, Seventh Floor San Jose, CA 95113 (408) 995-5600/Fax: (408) 995-0308 - and -

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Christopher D. Sullivan, Esquire McGrane Greenfield LLP One Ferry Building, Suite 220 San Francisco, CA 94111 (415) 283-1776/Fax: (415) 283-1777 Attorneys for Byer Properties Dated: September 22, 2008

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ________________________________________ In re: MERVYNS HOLDING, LLC, et al.1 Debtors. Chapter 11 Case No. 08-11586 (KG) Jointly Administered Related Motion Docket No. 331
Objection Deadline: September 18, 2008 Hearing Date: September 25, 2008 @ 2:00 p.m.

CERTIFICATION OF SERVICE OF OBJECTION OF BYER PROPERTIES TO MOTION OF DEBTORS FOR AN ORDER, PURSUANT TO SECTIONS 105, 363 AND 365 OF THE BANKRUPTCY CODE AND BANKRUPTCY RULES 2002, 6004 AND 6006, APPROVING EXPEDITED PROCEDURES FOR THE REJECTION OR ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

MAGDALENA SCHARDT, of full age, hereby certifies as follows: 1. I am a partner with the law firm of Fox Rothschild LLP, attorneys for Alfred T.

Giuliano, the Chapter 7 Trustee in the above proceedings. 2. On September 22, 2008, a true and correct copy of the Objection of Byer

Properties to Motion of Debtors for an Order, Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004 and 6006, Approving Expedited Procedures for the Rejection or Assumption and Assignment of Executory Contracts and Unexpired Leases was served, via first class mail, postage prepaid, and via facsimile where indicated, on the parties listed on the attached service list.

The Debtors in these cases, along with the last four digits of their federal tax identification numbers, are Mervyns Holdings, LLC (7931), Mervyns LLC (4456) and Mervyns Brands, LLC (8850).

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3.

I hereby certify that the foregoing statements made by me are true. I am aware

that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

___/s/ Magdalena Schardt_______________ Magdalena Schardt, Esquire Fox Rothschild LLP 2000 Market Street Tenth Floor Philadelphia, PA 19103-3291 (215) 299-2000/Fax: (215) 299-2150 mschardt@foxrothschild.com Dated: September 22, 2008

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SERVICE LIST

Mervyn's Holdings, LLC 22301 Foothill Boulevard Hayward, CA 95541

Christopher M. Samis, Esquire Daniel J. DeFranceschi, Esquire Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801 Via Facsimile United States Trustee 844 King Street, Room 2207 Lockbox #35 Wilmington, DE 19899-0035

L. Katherine Good, Esquire Mark D. Collins, Esquire Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801

Neil E. Herman, Esquire Howard S. Beltzer, Esquire Wendy S. Walker, Esquire Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Via Facsimile Jay R. Indyke, Esquire Cathy Hershcopf, Esquire Seth Van Aalten, Esquire Cooley Dodward Kronish LLP The Grace Building 1114 Avenue of the Americas New York, NY 10036-7798 Bernard S. Greenfield, Esquire McGrane Greenfield LLP 40 South Market Street, Seventh Floor San Jose, CA 95113

William Bowden, Esquire Karen B. Skomorucha, Esquire Ashby & Geddes, P.A. 500 Delaware Avenue - 8th Floor Wilmington, DE 19808

Francis A. Monaco, Jr., Esquire Womble Carlyle Sandridge & Rice PLLC 222 Delaware Avenue Suite 1501 Wilmington, DE 19801

Jonathan N. Helfat, Esquire Valerie S. Mason, Esquire Daniel Fiorillo, Esquire Otterbourg Stendler Houston & Rosen PC 230 Park Avenue New York, NY 10169

Christopher D. Sullivan, Esquire McGrane Greenfeld LLP One Ferry Building Suite 220 San Francisco, CA 94111

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