IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Transcription

1 Case LSS Doc 532 Filed 06/15/16 Page 1 of 10 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 VESTIS RETAIL GROUP, LLC, et al.,' Debtors. ) Case No (LSS) ) (Jointly Administered) ) Re: Docket Nos. 363 and 388 OBJECTION OF CVS PHARMACY, INC. TO PROPOSED ASSUMPTION AND ASSIGNMENT OF EXPIRED LEASE WITH FIDELITY TOTOWA ASSOCIATES, LLC CVS Pharmacy, Inc. ("CVS"), by and through its undersigned counsel, hereby objects (the "Objection") to the above-captioned debtors' (the "Debtors") possible assumption and assignment of an expired lease with Fidelity Totowa Associates, LLC ("Fidelity-Totowa"), as set forth in the Notice of (I) Possible Treatment of Contracts and Leases, (II) Fixing of Cure Amounts, and (III) Deadline to Object Thereto (the "Assumption Notice") [D.I. 388] issued pursuant to the Order (I) Authorizing and Approving the Debtors' Entry Into Asset Purchase Agreement, (II) Approving Notice Procedures, (III) Scheduling a Sale Hearing and (IV) Approving Procedures of Assumption and Assignment and Determining Cure Amounts (the "Procedures Order") [D.I In support of its Objection, CVS respectfully states as follows: PRELIMINARY STATEMENT The Debtors seek approval of a sale (the "Sale") of their assets to Vestis BSI Funding II, LLC (together with its permitted designees, successors and permitted assigns, the "Buyer"). CVS takes no position with respect to the Sale generally. In contemplation of the Sale, however, The Debtors in these cases, along with the last four digits of each Debtor's federal tax identification number, are Vestis Retail Group, LLC (1295); Vestis Retail Financing, LLC (9362); EMS Operating Company, LLC (2061); Vestis IP Holdings, LLC (2459); Bob's Stores, LLC (4675); EMS Acquisition LLC (0322); Sport Chalet, LLC (0071); Sport Chalet Value Services, LLC (7320); and Sport Chalet Team Sales, LLC (8015). The address of the Debtors' executive headquarters are located at 160 Corporate Court, Meriden, CT /15/2016

2 Case LSS Doc 532 Filed 06/15/16 Page 2 of 10 the Debtors obtained approval of the Procedures Order, and on the same date issued the Assumption Notice, whereby the Debtors provided notice of certain contracts and leases that the Debtors may seek to assume and assign to the Buyer as part of the Sale. Included in the exhibit to the Assumption Notice is a lease between Debtor Bob's Stores, LLC ("Bob's Stores") and Fidelity-Totowa, referenced as Store Number 78, Store Name "Totowa," located at 465 Route 46, Totowa, NJ (the "Totowa Lease"). As explained below, CVS is alleged to have guaranteed Bob's Stores' obligations to Fidelity-Totowa under the Totowa Lease, and thus has standing with regard to this matter. The Debtors' proposed potential assumption and assignment of the Totowa Lease cannot be approved because the Totowa Lease is not an "unexpired lease." Instead, as discussed more fully herein, the Totowa Lease expired pursuant to its terms on January 31, 2016, and was not extended. Accordingly, Bob's Stores is at most a holdover tenant, and there is no unexpired lease to be assumed and assigned to the Buyer. For the reasons set forth herein, this Court need not address the underlying factual dispute between Fidelity-Totowa, CVS and Bob's Stores. On the contrary, the Debtors are seeking authority to assume and assign contracts and leases without prejudice to their rights to assert that a contract or lease is, in fact, not executory or unexpired. Accordingly, the rights of other parties-in-interest should be similarly preserved so that they too can later assert that a contract is not executory or that, as in this case, a lease has expired. Alternatively, this Court should exclude the Totowa Lease from the Sale pending either a) a ruling by an appropriate nonbankruptcy court on the merits of the dispute, or b) a ruling by this Court in a properly commenced adversary proceeding /15/2016 2

3 Case LSS Doc 532 Filed 06/15/16 Page 3 of 10 FACTUAL AND PROCEDURAL BACKGROUND A. The Debtors' Bankruptcy Cases 1. The Debtors commenced the above-captioned cases on April 18, 2016 (the "Petition Date") by filing voluntary petitions under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the District of Delaware (the "Court"). 2. On the Petition Date, the Debtors filed the Debtors' Motion for Orders (A)(1) Authorizing Bidding Procedures and Expense Reimbursement; (II) Authorizing and Approving the Debtors' Entry into the Stalking Horse APA; (III) Approving Notice Procedures; (IV) Scheduling a Sale Hearing; and (V) Approving Procedures for Assumption and Assignment and Determining Cure Amounts and (B)(I) Authorizing the Sale of Substantially All of the Debtors' Assets Free and Clear of All Claims, Liens, Rights, Interests, and Encumbrances,. (II) Approving the Stalking Horse APA: and (III) Authorizing the Debtors to Assume and Assign Certain Executory Contracts and Unexpired Leases (the "Sale Motion"). [D.I. 18] 3. On June 1, 2016, the Court entered the Procedures Order in connection with the Sale Motion. [D.I. 363] 4. On June 1, 2016, the Debtors filed the Assumption Notice, as authorized and approved through the Procedures Order. [D.I. 388]. 5. The Assumption Notice provides, inter alia, that in connection with the Sale, the Debtors "may assume and assign to the Buyer or reject the Contract and/or Lease listed on the Contract and Lease Schedule..." Assumption Notice, page The Totowa Lease is included on the schedule of leases filed with the Assumption Notice /2016 3

4 Case LSS Doc 532 Filed 06/15/16 Page 4 of CVS is alleged to be a guarantor of Bob's Stores' obligations to Fidelity-Totowa under the Totowa Lease pursuant to an Amended and Restated Guaranty (Totowa) effective as of November 23, 2009 (the "Guaranty"). 8. Attached hereto as Exhibit A is a true and correct copy of the Verified Complaint filed against Bob's Stores and CVS by Fidelity-Totowa (the "Verified Complaint") in the Superior Court of New Jersey, Chancery Division, Passaic County, on or about October 12, 2015 (the "State Court Action"). A true and correct copy of the Totowa Lease is attached as Exhibit A to the Verified Complaint. A true and correct copy of the Guaranty is attached as Exhibit B to the Verified Complaint. B. The Totowa Lease and the Guaranty 9. Section 1.01(B) of the Totowa Lease provides for an Initial Lease term commencing February 1, 2009 and ending on January 31, 2016 (the "Initial Lease Term"). 10. Section 1.01(B) of the Totowa Lease further provides that an "Extension Period" is for five years and that the "1st Extension Period" of Bob's Lease commences on February 1, 2016 and ends on January 31, 2021 (the "First Extension Period"). 11. Pursuant to Section 2.02 of the Totowa Lease, in order for Bob's Stores to exercise its option (the "Extension Option") to extend the term of the Totowa Lease for the First Extension Period, Bob's Stores was required to satisfy two conditions. First, Bob's must not be in default of any material terms or provisions of the Totowa Lease, Second, Bob's must establish "Consolidated EBITDA as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised greater than One Million Dollars ($1,000,000)" (hereinafter, the "EBITDA Condition") /15/2016 4

5 Case LSS Doc 532 Filed 06/15/16 Page 5 of Section 2.02 of the Totowa Lease provides that Bob's Stores exercise of the Extension Option "shall not be effective unless the conditions set forth in clauses (a) and (b) of this Section 2.02 are satisfied." 13. Section of the Guaranty expressly incorporates the identical EBITDA Condition appearing in the Totowa Lease, providing that CVS's obligation to guaranty Bob's Stores performance of the Totowa Lease obligations only if Bob's Stores satisfies the same EBITDA requirements as set forth in the Totowa Lease. C. Bob's Attempted Exercise of the Extension Option 14. Section 2.02 of the Totowa Lease required Bob's Stores to provide Fidelity- Totowa with written notice of its exercise of the Extension Option no less than twelve (12) months prior to the January 31, 2016 expiration of the Initial Lease Term, or by January 31, Bob's Stores did not provide such notice by January 31, Section 2.02 of the Totowa Lease alternatively permitted Bob's Stores to provide notice of its exercise of the Extension Option no less than twenty (20) days after Bob's Stores received notice from Fidelity-Totowa that Bob's Stores had failed to timely exercise the Extension Option. 16. Fidelity-Totowa notified Bob's Stores of its failure to timely exercise the Extension Option, and on February 10, 2015, Bob's Stores purported to give timely written notice to Plaintiff that it was exercising the Extension Option. 17. The clear and unambiguous language of the EBITDA Condition provides that Consolidated EBITDA is to be measured during the period of "sixty (60) consecutive fiscal months nearest the date the option is exercised." /15/2016 5

6 Case LSS Doc 532 Filed 06/15/16 Page 6 of As Bob's Stores purported to exercise the Extension Option on February 10, 2015, the period of "sixty (60) consecutive fiscal months nearest the date the option is exercised" ended as of January 31, 2015 for purposes of determining whether Bob's Stores' exercise of the Extension Option was permissible considering application of the EBITDA Condition. 19. However, Bob's Stores apparently took the position that the relevant 60 consecutive month period ended on December 31, D. State Court Action 20. As set forth above, the State Court Action was commenced by filing the Verified Complaint on or about October 12, In connection with that filing, Fidelity-Totowa filed an Order to Show Cause (a copy of which is included with the Verified Complaint), requesting that the court consider the matter in a summary manner under the New Jersey procedural rules. 21. On November 19, 2015, Bob's Stores filed its Brief in Opposition to Plaintiff's Order to Show Cause, a copy of which is attached hereto as Exhibit B. 22. On November 25, 2015, Fidelity-Totowa filed its Reply Brief in Further Support of Order to Show Cause, a copy of which is attached hereto as Exhibit C. 23. On January 11, 2016, after considering the briefs submitted and two rounds of oral argument, the state court ruled on Fidelity-Totowa's Order to Show Cause, and denied same, ruling that the matter would not proceed in a summary fashion. A copy of the state court's order is attached hereto as Exhibit D. 24. Following the state court's ruling, the parties engaged in substantial discovery, including significant written discovery, document productions and multiple depositions. The State Court Action was stayed by the commencement of the Debtors' bankruptcy cases /15/2016 6

7 Case LSS Doc 532 Filed 06/15/16 Page 7 of Thereafter, as a result of the Debtors' bankruptcy and the retirement of the judge presiding over the State Court Action, the parties were asked to dismiss the State Court Action without prejudice. The State Court Action was dismissed on May 24, OBJECTIONS TO THE PROPOSED ASSUMPTION AND ASSIGNMENT I. The Court's Order Approving the Sale Should Reserve the Rights of Parties-in- Interest to Subsequently Litigate the Merits of the State Court Action in a Non- Bankruptcy Forum. 26. It is axiomatic and in keeping with the plain language of section 365 of the Bankruptcy Code that a lease must be "unexpired" in order to be capable of assumption. See, 11 U.S.C. 365(a) (using the term "unexpired lease"); see also, In re Kong, 162 B.R. 86, 91 (Bankr. E.D.N.Y. 1993) (noting that "before section 365 applies enabling a debtor to exercise this power, it must be established that an executory contract or unexpired lease exists at the time of the filing"). 27. The Debtors, through the Assumption Notice and the Procedures Order, have clearly reserved their positions regarding whether contracts or leases listed on the exhibit to the Assumption Notice are, indeed, executory or unexpired. See, e.g., Assumption Notice, n.5 ("This Cure Notice is not an admission by the Debtors that such contracts or leases are executory or unexpired.") and at page 4 ("nothing herein (a) alters in any way the prepetition nature of the Contracts and Leases..."); and Procedures Order, If J ("the mere listing of any Non-Real Property Contract or Lease on the Cure Notice does not require or guarantee that such Non-Real Property Contract or Lease will be assumed and assigned, and all rights of the Debtors with respect to such Non-Real Property Contracts and Leases are reserved.") and IT 10(a) ("provided, however, that service of a Cure Notice does not constitute an admission that such Non-Real Property Contract or Lease is an executory contract or unexpired lease") /15/2016 7

8 Case LSS Doc 532 Filed 06/15/16 Page 8 of Accordingly, in at least four separate instances in the Assumption Notice and the Procedures Order, the Debtors seek approval to assume and assign executory contracts and unexpired leases, while reserving their positions that the contracts and leases listed on the Assumption Notice may actually not be executory or unexpired, respectfully. 29. Based on the foregoing, it appears that the Debtors seek approval of the right to assume and object leases, to the extent unexpired, with a reservation of the Debtors' rights to later address whether such leases are, in fact, unexpired. CVS asserts that the same reservation of rights should be afforded to all parties in interest in connection with the at-issue leases, including, specifically, the Totowa Lease. 30. From a practical perspective, reserving the rights of all parties-in-interest regarding whether leases are unexpired will have the effect of allowing such parties, presumably, in this case, CVS, Fidelity-Totowa and the Buyer, to address these matters on their own and, if unable to reach a consensual resolution, re-file and litigate the issue in an appropriate nonbankruptcy forum. As these issues will not directly involve the Debtors, this is a sensible approach as it serves little purpose to address this issue in connection with these Bankruptcy Proceedings. 31. Accordingly, CVS respectfully requests that any order approving the Sale provide a reservation, in form reasonably satisfactory to CVS, reserving CVS' and all other non-debtor parties rights to argue in an appropriate non-bankruptcy forum that the Totowa Lease has, in fact, expired. B. Alternatively, the Court Should Not Authorize Assumption or Assignment of the Totowa Lease Pending an Adjudication of Whether the Totowa Lease is Unexpired, Either in the State Court or Through an Adversary Proceeding 32. In the event that a reservation of rights of all parties-in-interest to subsequently challenge, in a non-bankruptcy forum, whether the Totowa Lease is unexpired is not feasible, /15/2016 8

9 Case LSS Doc 532 Filed 06/15/16 Page 9 of 10 then CVS respectfully objects to this Court's approval of such proposed assumption and assignment pending a ruling, either in the State Court or by this Court through an appropriately commenced adversary proceeding, addressing whether such lease is, in fact, unexpired. 33. For the reasons set forth more fully in the Verified Complaint and the other pleadings filed by Fidelity-Totowa in the State Court Action, the Debtors did not properly exercise the Extension Option, because they failed to establish the necessary EBTIDA for the correct 60-month period, namely the period ending January 31, 2015, 34. Accordingly, the Totowa Lease expired on January 31, 2016 and was not properly extended. As such, the Totowa Lease is expired, and is therefore not an "unexpired lease" as required for assumption under section 365(a) of the Bankruptcy Code. 35. The parties have already engaged in substantial pre-petition litigation, including pre-discovery briefing, and substantial discovery. Accordingly, CVS submits that the most sensible means to address this issue is to permit Fidelity-Totowa to re-file the State Court Action and to permit the state law issues implicated by the action to be litigated to conclusion in the State Court. 36. Alternatively, if the Court determine that this matter is best addressed in this forum, CVS respectfully asserts that such issues may only be resolved through an adversary proceeding, as the nature of the relief is, by definition, a request for a declaratory judgment. See, e.g., Fed. R. Bankr. P (listing the types of procedures which are adversary proceedings, including declaratory judgment actions); see also In re Mansaray-Ruffin, 530 F.3d 230, (3d Cir. 2008) ("where the Rules require an adversary proceeding-which entails a fundamentally different, and heightened, level of procedural protections-to resolve a particular issue, a creditor has the due process right not to have that issue resolved without one") /15/2016 9

10 Case LSS Doc 532 Filed 06/15/16 Page 10 of Accordingly, as a determination of whether the Totowa Lease is unexpired squarely falls within the ambit of Fed. R. Bankr. P. 7001, an adversary proceeding is required if such determination is to be made in this Court. CONCLUSION For the reasons set forth herein, CVS respectfully requests that, if the Court otherwise approves the Sale, then either (a) an appropriate reservation of rights be included to preserve the rights of all parties, and not just the Debtors, to later address, in an appropriate non-bankruptcy forum, whether the Totowa Lease is unexpired, or (b) the Court reserve approving assumption and assignment of the Totowa Lease until after a judicial determination is made regarding whether the Totowa Lease is unexpired, either through an action in state court or through an adversary proceeding in this Court. Dated: June 15, 2016 SAUL EWING LLP By: Mark 4fift1ftf (DE Bar No. 2659) Lucian B. Murley (DE Bar No. 4892) 1201 N. Market Street, Suite 2300 P.O. Box 1266 Wilmington, DE Telephone: (302) Facsimile: (302) mminuti@saul.com Counsel for CVS Pharmacy, Inc ,1 06/15/

11 Case LSS Doc Filed 06/15/16 Page 1 of 97 Exhibit A Complaint

12 Case LSS Doc Filed 06/15/16 Page 2 of 97 Jeffrey M. Garrod (I.D. # ) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway - Suite 400 Roseland, New Jersey (973) Attorneys for Plaintiff Fidelity Totowa Associates, L.L.C. :* SUPERIOR COURT OF NEW JERSEY FIDELITY TOTOWA ASSOCIATES, : CHANCERY DIVISION L.L.C., : PASSAIC COUNTY Plaintiff, : DOCKET NO. PAS-C- v. Civil Action BOB'S STORES, LLC and CVS PHARMACY, INC., Defendants. VERIFIED COMPLAINT Plaintiff, Fidelity Totowa Associates, L.L.C. ("Plaintiff'), by way of Verified Complaint against defendants Bob's Stores, LLC ("Bob's") and CVS Pharmacy, Inc. ("CVS") (collectively, "Defendants"), says the following: NATURE OF THE ACTION 1. This is an action for a declaratory judgment and for specific performance seeking (a) a judicial declaration of the meaning and effect of a contract provision to extend the term of a commercial lease, set forth in identical language in the lease and a guaranty of that lease, as to the 60-month period that is the operative measuring period for ascertaining whether Bob's has satisfied an objective financial test

13 Case LSS Doc Filed 06/15/16 Page 3 of 97 that is a condition precedent to the perfection of Bob's exercise of the extension option; and (b) specific performance and a mandatory injunction directing the performance of Bob's obligation pursuant to that provision to provide Plaintiff with fmancial information defined in the lease to enable Plaintiff to determine if Bob's has satisfied the condition precedent for (i) extending the lease term and (ii) continuing CVS's express obligation to guaranty Bob's performance of its obligations in the event that the lease is extended for a new five-year term. THE PARTIES 2. Plaintiff is a New Jersey limited liability company with its principal place of business located at do LRF Slater Companies, Inc., 301 South Livingston Avenue; Suite 204, Livingston, New Jersey. Plaintiff is the landlord of the commercial premises containing a shopping center, commonly known as the Totowa Square Center ("Totowa Center"), located in Totowa, New Jersey. 3. Bob's is a New Hampshire limited liability company with its principal place of business located at 160 Corporate Court, Meriden Connecticut. Bob's is the tenant of approximately 49,806 square feet of floor area in the Totowa Center pursuant to the Lease Agreement dated as of February 1, 2009 by and between Fidelity Totowa Associates, L.L.C. as Landlord and Bob's Stores Corp. as Tenant ("Bob's Lease"). A copy of Bob's Lease is annexed hereto as Exhibit A. 4. CVS is a corporation with its principal place of business located at 1 CVS Drive, Woonsocket, Rhode Island. CVS is the guarantor of Bob's Lease obligations to Plaintiff pursuant to an Amended and Restated Guaranty (Totowa) -2-

14 Case LSS Doc Filed 06/15/16 Page 4 of 97 effective as of November 23, 2009 (the "Guaranty"). A copy of the Guaranty is annexed hereto as Exhibit B. THE BOB'S LEASE'S EXTENSION OPTION 5. Section 2.02 of Bob's Lease provides as follows: Provided that: (a) Tenant is not then in default of any material terms or provisions hereof, after the lapse of all applicable grace periods, and (b) Consolidated EBITDA (as hereinafter defined), as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000), Tenant shall have the option to extend the Term for the number of Extension Periods shown in Section 1.01(D), upon all the terms and conditions contained herein (except that the number of Extension Periods shall decrease by one each time Tenant exercises any such option). Each such option is exercisable by Tenant only in sequence (x) by giving notice to Landlord no less than twelve (12) months prior to the expiration of the Initial Lease Term or of the then current Extension Period, as the case may be, or (y) if Tenant fails to give Landlord such notice, within twenty (20) days after receipt of notice from Landlord that tenant has failed to exercise its option to extend within the time period provided in (x) above. Time shall be of the essence with respect to Tenant's exercise of its option to extend the Term within such twenty (20) day period. As used herein, "Consolidated EBITDA" shall mean an amount equal to (i) the Consolidated Net Income (as hereinafter defined) of Tenant's parent and subsidiaries for such period, plus (ii) each of the following: (1) depreciation and amortization (including, but not limited to, imputed interest and deferred compensation, trademark/tradename and goodwill) of Tenant's parent and subsidiaries for such period, plus (2) the interest expense (including inter-company interest expenses) of Tenant's parent and subsidiaries for such period, plus (3) charges for Federal, State, local and foreign income taxes for such period, plus (4) all non-cash charges and write-downs of assets related to the closing of retail stores, plus (5) director fees and management fees and expenses payable to Tenant's parent or its affiliates paid or accrued during such period, plus (6) non-recurring fees and expenses (including asset impairment and other write-offs) incurred during such period in connection with the transactions contemplated by any fmancing agreements or purchase agreements, plus (7) non-recurring integration costs and restructuring charges incurred during such period in connection with the transactions contemplated by the purchase agreements. As used herein, -3-

15 Case LSS Doc Filed 06/15/16 Page 5 of 97 "Consolidated Net Income" shall mean, with respect to any person for any period, the aggregate of the net income (loss) of such person and its subsidiaries, on a consolidated basis, for such period, excluding to the extent included therein (A) any extraordinary or non-recurring gains and (b) extraordinary or non-recurring non-cash losses or charges, and after deducting the provision for taxes for such period, all as determined in accordance with GAAP. For the avoidance of doubt, for all purposes of this Lease Tenant's exercise of an option for any Extension Period shall not be effective unless the conditions set forth in clauses (a) and (b) of this Section 2.02 are satisfied. [Emphasis supplied in part.] 6. Section 1.01(B) of Bob's Lease provides that the Initial Lease Term commenced on February 1, 2009 and ends on January 31, Section 1.01(B) of Bob's Lease further provides that an "Extension Period" is for five years and that the "1 st Extension Period" of Bob's Lease commences on February 1,2016 and ends on January 31, Pursuant to Section 2.02 of Bob's Lease, in order for Bob's to exercise its option (the "Extension Option") to extend the term of the Lease for the l st Extension Period, Bob's must satisfy two conditions. 9. Bob's satisfaction of each condition is a mandatory prerequisite and requirement for the perfection of Bob's exercise of the Extension Option, as Section 2.02 of Bob's Lease provides that Bob's exercise Of the option "shall not be effective unless the conditions set forth in clauses (a) and (b) of this Section 2.02 are satisfied." 10. The first condition that Bob's must satisfy under Section 2.02 of Bob's Lease is that Bob's is not in default of any material terms or provisions of Bob's Lease.

16 Case LSS Doc Filed 06/15/16 Page 6 of The second condition that Bob's must satisfy under Section 2.02 of Bob's Lease is that Bob's "Consolidated EBITDA (as hereinafter defined), "as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised [must be] greater than One Million Dollars ($1,000,000)." This provision is referred to hereinafter as the "EBITDA Provision," and the financial test contained in the EBITDA Provision is referred to hereinafter as the "EBITDA Test." 12. The EBITDA Provision does not permit Bob's to make a unilateral determination of whether Bob's has satisfied the EBITDA Test. 13. The EBITDA Provision creates an obligation on the part of Bob's to provide Plaintiff with Consolidated EBITDA information, "as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised," so as to enable Plaintiff to make a determination as to whether Bob's has satisfied the EBITDA Test as a condition to the perfection of Bob's exercise of the Extension Option. THE GUARANTY. 14. Section of Bob's Lease provides that "[t]his Lease shall not be or become effective unless and until Guarantor. [CVS] has consented to the terms hereof and executed and delivered to Landlord an Amended and Restated Guaranty satisfactory to Landlord."

17 Case LSS Doc Filed 06/15/16 Page 7 of Pursuant to Section of Bob's Lease, Plaintiff and CVS entered into the Guaranty, whereby, as of November 23, 2009, CVS became the. guarantor of Bob's Lease obligations to Plaintiff. 16. Section 3.1 of the Guaranty provides as follows: Guarantor [CVS] hereby unconditionally guarantees to Landlord [Plaintiff], its successors and assigns, the full performance and observance of all of the covenants, obligations, duties, undertakings or agreements on the part of Bob's... to be made, carried out, performed, paid and/or observed by Bob's, as provided in the Bob's Lease Section of the Guaranty expressly incorporates the identical EBITDA Provision appearing in Bob's Lease, providing that CVS shall guaranty Bob's performance of Bob's Lease obligations if Bob's satisfies the same EBITDA Test set forth in the Bob's Lease's EBITDA PrOvision: In addition, in the case of Bob's, during the first two Extension Periods (as defined in the Bob's Lease) if Bob exercises its option to extend the Term (as defined in the Bob's Lease) for either or both of those Extension Periods and if Consolidated EBITDA (as hereinafter defined), as reported in Bob's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000). As used herein, "Consolidated EBITDA" shall mean an amount equal to (i) the Consolidated Net Income (as hereinafter defmed) of Tenant's parent and subsidiaries for such period, plus (ii) each of the following: (1) depreciation and amortization (including, but not limited to, imputed interest and deferred compensation, trademark/tradename and goodwill) of Tenant's parent and subsidiaries for such period, plus (2) the interest expense (including inter-company interest expenses) of Tenant's parent and subsidiaries for such period, plus (3) charges for Federal, State, local and foreign income taxes for such period, plus (4) all non-cash charges and write-downs of assets related to the closing of retail stores, plus (5) director fees and management fees and expenses payable to Tenant's parent or its affiliates paid or accrued during such period, plus (6) nonrecurring fees and expenses (including asset impairment and other writeoffs) incurred during such period in connection with the transactions -6-

18 Case LSS Doc Filed 06/15/16 Page 8 of 97 contemplated by any financing agreements or purchase agreements, plus (7) non-recurring integration costs and restructuring charges incurred during such period in connection with the transactions contemplated by the purchase agreements. As used herein, "Consolidated Net Income" shall mean, with respect to any person for any period, the aggregate of the net income (loss) of such person and its subsidiaries, on a consolidated basis, for such period, excluding to the extent included therein (A) any extraordinary or non-recurring gains and (b) extraordinary or non-recurring non-cash losses or charges, and after deducting the provision for taxes for such period, all as determined in accordance with GAAP. [Emphasis supplied in part.) 18. The principal purpose of the EBITDA Provision, as set forth in both Bob's Lease and the Guaranty, was to satisfy CVS that Bob's was solvent at the time that Bob's exercised the Extension Option pursuant to Section 2.02 of Bob's Lease. 19. Without the EBITDA Provision, CVS would not have guarantied Bob's Lease obligations to Plaintiff and Plaintiff would not have entered into Bob's Lease. BOB'S EXERCISE OF THE EXTENSION OPTION 20. Section 2.02 of Bob's Lease required Bob's to provide Plaintiff with written notice of Bob's exercise of the Extension Option no less than twelve (12) months prior to the January 31, 2016 expiration of the Initial Lease Term, or January 31, Bob's did not provide Plaintiff with notice by January 31, 2015 that Bob's was exercising the Extension Option. 22. Section 2.02 of Bob's Lease alternatively permitted Bob's to provide Plaintiff with notice of Bob's exercise of the Extension Option no less than -7-

19 Case LSS Doc Filed 06/15/16 Page 9 of 97 it 4 twenty (20) days after Bob's received notice from Plaintiff that Bob's had failed to exercise the Extension Option. 23. After Plaintiff notified Bob's of its failure to exercise the Extension Option, on February 10, 2015, Bob's gave timely written notice to Plaintiff that the Tenant is hereby exercising its option to extend the Term for the 1st Extension Period (i.e. February 1, 2016 through January 31, 2021). Enclosed is a financial statement that confirms that Tenant's Consolidated EBITDA for the most recently ended sixty (60) consecutive fiscal months nearest the date of this letter exceeds $1,000,000." A copy of the Tenant's correspondence is annexed hereto as Exhibit C. THE CONTROVERSY OVER BOB'S COMPLIANCE WITH THE EBITDA PROVISION AND SATISFACTION OF THE EBITDA TEST 24. Subsequently, a controversy arose between Plaintiff and Bob's as to the meaning and effect of the EBITDA Provision with respect to the determination of the Consolidated EBITDA, as that term is defmed in Bob's Lease and the Guaranty, which must exceed $1,000,000 for the "most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised..." 25. On February 20, 2015, Bob's, through its counsel, advised Plaintiff, with respect to Section 2.02 of Bob's Lease, as follows: Both the precise language and the clear intention of the parties is that Tenant's Consolidated EBITDA exceed $1,000,000 over "sixty (60) consecutive fiscal months nearest the date the option is exercised." Nothing could be clearer. * * * Exh. D at p. 3 (emphasis supplied)] A copy of the Tenant's correspondence is annexed hereto as Exhibit D. 26. In the same letter, Bob's confirmed that "as the Landlord is well aware, the sole rationale for including the Consolidated EBITDA Test in the Lease0-8-

20 Case LSS Doc Filed 06/15/16 Page 10 of 97 was to satisfy the Guarantor that the Tenant was solvent when it exercised the extension option[] under each Lease." [Id. (emphasis in original).] 27. The clear and unambiguous language of the EBITDA Provision provides that the Consolidated EBITDA is to be measured during the period of "sixty (60) consecutive fiscal months nearest the date the option is exercised." 28. As Bob's exercised the Extension Option on February 10, 2015, the period of "sixty (60) consecutive fiscal months nearest the date the option is exercised" ended as of January 31, 2015 for purposes of determining whether Bob's has satisfied the EBITDA Test as a condition to Bob's exercise of the Extension Option under Section 2.02 of Bob's Lease and the continuation of the CVS Guaranty. 29. Bob's has taken the position that the relevant 60 consecutive month-period referred to in Section 2.02 of Bob's Lease and in Section of the CVS Guaranty ended on December 31, 2014 and not January 31, 2015, because at the time the Extension Option was exercised on February 10, 2015, Bob's did not yet have monthly financial statements through January 31, 2015 and, therefore, that date was irrelevant. 30. Not only does Bob's contest that the relevant end date is January 31, 2015, but Bob's has refused to honor Plaintiff's request to provide Consolidated EBITDA information for the 60-month period ending as of January 31, 2015 and has frustrated, delayed and stalled Plaintiff's efforts to obtain this information. 31. Bob's has acknowledged its obligation under the EBITDA Provision to produce the Consolidated EBITDA information to Plaintiff for the purpose -9-

21 Case LSS Doc Filed 06/15/16 Page 11 of 97 of enabling Plaintiff to make a determination of whether the EBITDA Test has been satisfied as a condition to the perfection of Bob's exercise of the Extension Option. 32. Initially, on March 10, 2015, Bob's caused the Consolidated EBITDA information for the 60-month period ending as of December 31, 2014 to be provided to Plaintiff. 33. Thereafter, Plaintiff requested the Consolidated EBITDA information for the 60-month period ending January 31, Bob's has refused to honor Plaintiffs request for the Consolidated EBITDA information for the 60-month period ending as of January 31, On September 3, 2015, Plaintiff repeated its request that Bob's provide the Consolidated EBITDA information for the 60-month period ending January 31, A copy of Plaintiffs correspondence is annexed hereto as Exhibit E. Bob's continues to refuse to provide this information, arguing that the relevant "60 consecutive fiscal months nearest the date the option is exercised" ended on December 31, 2014 and not on January 31, FIRST COUNT (Declaratory Judgment) 36. Plaintiff repeats the allegations set forth in paragraphs 1 through 35 of this Verified Complaint as if the same were set forth at length herein. 37. The EBITDA Provision set forth in Section 2.02 of Bob's Lease provides that Bob's satisfaction of the EBITDA Test is a requirement to the perfection of Bob's exercise of the Extension Option of Bob's Lease.

22 Case LSS Doc Filed 06/15/16 Page 12 of The identical EBITDA Provision contained in Section of the Guaranty provides that CVS shall guaranty Bob's performance of Bob's Lease obligations during the Extension Period if Bob's satisfies the same EBITDA Test. 39. Bob's satisfaction of the EBITDA Test is also a mandatory requirement for CVS's obligation to guaranty Bob's performance of Bob's Lease obligations to Plaintiff during the Extension Period. 40. The following controversy exists between Plaintiff and Bob's: does the EBITDA Provision provide that the 60-month period to determine "Consolidated EBITDA" ends on December 31, 2014 or January 31, 2015? a. Plaintiff contends that the EBITDA Provision obligates Bob's to satisfy the EBITDA Test to extend the term of Bob's Lease for the 60-month period ending January 31, b. Bob's contends that the EBITDA Provision only obligates Bob's to satisfy the EBITDA Test to extend the term of Bob's Lease for the 60-month period ending December 31, For purposes of N.J.S.A. 2A:16-53, Plaintiff is a person who is "interested" in a "contract" in the form of both Bob's Lease and the Guaranty containing identical EBITDA Provisions. 42. For purposes of N.J.S.A. 2A:16-56, all persons having or claiming any interest that would be affected by the issuance of a declaration of the parties' rights and obligations under the identical EBITDA Provisions have been named as parties to this action.

23 Case LSS Doc Filed 06/15/16 Page 13 of A declaratory judgment is necessary and proper to set forth and determine the rights and obligations of the parties to Bob's Lease as to whether the option to extend the term of Bob's Lease is effective and whether the Guaranty, which has the identical EBITDA Provisions, guaranties the extended term of Bob's Lease. 44. For purposes of N.J.S.A. 2A:16-60, it is necessary and proper to enforce the obligations of Bob's under the EBITDA Provision of Bob's Lease and of CVS under the EBITDA Provision of the Guaranty. 45. Section of Bob's Lease provides that the prevailing party shall be entitled to an award of all reasonable attorney's fees, other professional fees and other reasonable costs and expenses incurred by the prevailing party in enforcing the other party's compliance with the provisions of Bob's Lease. WHEREFORE, Plaintiff, Fidelity Totowa Associates,.L.L.C., demands Judgment against Defendants Bob's Stores, LLC and CVS Pharmacy, Inc. on this First Count for the following relief: A. Declaring that the EBITDA Provision in Section 2.02 of Bob's Lease means that Bob's must satisfy the EBITDA Test for the 60 consecutive fiscal months ending January 31, 2015, with January 31, 2015 being the end date of the relevant 60-month period nearest the February 10, 2015 date upon which The option was exercised by Bob's; B. Declaring that the Court's declaration as to the meaning and effect of the EBITDA Provision set forth in Section 2.02 of Bob's Lease is binding on CVS

24 ti Case LSS Doc Filed 06/15/16 Page 14 of 97 and shall be given the same legal force and effect as to the meaning and effect of the identical EBITDA Provision set forth in Section of the Guaranty; and equitable. C. Awarding attorneys' fees and costs of suit to Plaintiff; and D. Awarding such other and further relief as the Court may deem just SECOND COUNT (Specific Performance) 46. Plaintiff repeats the allegations set forth in paragraphs 1 through 45 of this Verified Complaint as if the same were set forth at length herein. 47. Plaintiff is ready, willing and able to perform all of its duties and obligations under Bob's Lease and the Guaranty during the Extension Period of the Lease. 48. The EBITDA Provision contained in Section 2.02 of Bob's Lease obligates Bob's to provide Plaintiff with the Consolidated EBITDA information, as defined in Bob's Lease, for the 60-month period ending January 31, Bob's has not honored, and has refused to honor, Plaintiff's requests for the Consolidated EBITDA information for the 60-month period ending January 31, Bob's failure and refusal to produce the Consolidated EBITDA information has prevented Plaintiff from making a determination, based upon the Consolidated EBITDA information for the 60-month fiscal period ending January 31,

25 Case LSS Doc Filed 06/15/16 Page 15 of , that the EBITDA Test has been satisfied as a condition to the perfection of the Bob's exercise of the Extension Option. 51. Bob's failure and refusal to produce the Consolidated EBITDA information to Plaintiff threatens to deprive Plaintiff of the lawful and gainful use, possession and enjoyment of its real property by allowing Bob's to remain as a tenant at the Totowa Center beyond the January 31, 2016 expiration of the current term of Bob's Lease. 52. Bob's failure and refusal to produce the Consolidated EBITDA information is depriving Plaintiff of access to information that is necessary and essential to ensuring CVS continues to guaranty Bob's Lease obligations during the Extension Period. 53. Bob's failure and refusal to produce the Consolidated EBITDA information is causing substantial, immediate and irreparable harm to Plaintiff. 54. Plaintiff has no adequate remedy at law that would be as efficient and effective to attain the ends of justice and its prompt administration as a judicial decree of specific performance of Bob's obligation under the EBITDA Provision to provide Plaintiff with the Consolidated EBITDA information for the 60-month period ending January 31, WHEREFORE, Plaintiff, Fidelity Totowa Associates, L.L.C., demands Judgment against Defendant Bob's Stores, LLC on this Second Count for the following relief: -14-

26 Case LSS Doc Filed 06/15/16 Page 16 of 97 I' 8 A. Ordering Bob's to immediately and specifically perform its obligation to provide Plaintiff with the Consolidated EBITDA information for the 60- month period ending January 31, 2015, so as to enable Plaintiff to make an immediate determination as to whether the EBITDA Test has been satisfied; B. Issuing a final mandatory injunction directing Bob's to immediately and specifically perform its obligation to provide Plaintiff with the Consolidated EBITDA information for the 60-month period ending January 31, 2015, so as to enable Plaintiff to make an immediate determination as to whether the EBITDA Test has been satisfied; C. Awarding attorneys' fees and costs of suit to Plaintiff; and D. Awarding such other and further relief as the Court may deem just and equitable. Dated: October 12, 2015 ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Attorneys for Plaintiff Fidelity Totowa sociates, L.L.C. By: GARROD -15-

27 Case LSS Doc Filed 06/15/16 Page 17 of 97 DESIGNATION OF TRIAL COUNSEL Pursuant to R. 4:5-1(c) Jeffrey M. Garrod is hereby designated as Plaintiffs trial counsel. Dated: October 12, 2015 ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Attorneys for Plaintiff Fidelity Totowa Associates, L.L.C. By:,Ads JENill M. G OD CERTIFICATION OF COMPLIANC y TH R. 1:38-7(c) I hereby certify that confidential personal identifiers have been redacted from the documents now submitted to the Court, and will be redacted from all documents submitted in the future to the Court in accordance with the R. 1:38-7(b). Dated: October 12, 2015 ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Attorneys for Plaintiff Fidelity Totowa Asso, L.L.C. By: JEFF OD CERTIFICATION PURSUANT TO R. 4:5-1 I hereby certify that, to the best of my knowledge, the matter in controversy is not the subject of any other action pending or contemplated in any court or a pending or contemplated arbitration proceeding, and I know of no other party who should be joined or who is subject to joinder in this action. Dated: October 12, 2015 ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Attorneys for Plaintiff Fidelity Tot.' a Associates, L.L.C. By: JEFF OD -16-

28 Case LSS Doc Filed 06/15/16 Page 18 of 97 CERTIFICATION ROBERT SLATER, of full age, certifies as follows: 1. I am a Manager of Plaintiff, Fidelity Totowa Associates, L.L.C., and make this certification on behalf of Plaintiff with respect to the Verified Complaint to which this certification is annexed. 2. I have reviewed the Verified Complaint and the facts set forth therein are true, to the best of my knowledge, information and belief. I 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. FIDELITY TOTOWA ASSOCIATES, L.L.C. By: Robert Slater, a Manager Dated: October q 2015

29 Case LSS Doc Filed 06/15/16 Page 19 of 97 74:

30 Case LSS Doc Filed 06/15/16 Page 20 of 97 Ti LEASE AGREEMENT dated as of f :,,byuct,2009 by and between FIDELITY TOTOWA ASSOCIATES, L.L.C. as Landlord and BOB'S STORES CORP. as Tenant

31 Case LSS Doc Filed 06/15/16 Page 21 of 97 TABLE OF CONTENTS ARTICLE I FUNDAMENTAL LEASE PROVISIONS 1 SECTION Definitions. 1 ARTICLE II LEASE OF PREMISES TERM OF LEASE 4 - SECTION Demise 4 SECTION Extension Periods 4 SECTION Intentionally Omitted 4 SECTION Intentionally Omitted 4 SECTION Intentionally Omitted 5 SECTION Intentionally Omitted 5 SECTION Intentionally Omitted 5 ARTICLE III INTENTIONALLY OMITTED 6 ARTICLE IV RENT 6 SECTION 4.01 Annual Minimum Rent 6 SECTION Percentage Rent 6 SECTION Method of Payment 8 ARTICLE V COMMON AREA MAINTENANCE AND COST 8 SECTION Maintenance 8 SECTION Construction Clean-up 8 SECTION CAM: Costs 9 SECTION Tenant's Share of CAM Costs 9 SECTION Payment of CAM Costs 10 ARTICLE yi TAXES AND OTHER CHARGES 10 SECTION Taxes, Tenant's Share of Taxes 10 SECTION Payment of Taxes 11 SECTION Exclusions from Taxes 11 SECTION Right to Contest 11 ARTICLE VII UTILITIES 11 SECTION Utilities 12

32 Case LSS Doc Filed 06/15/16 Page 22 of 97 ARTICLE VIII USE OF PREMISES 12 SECTION Permitted Use 12 SECTION Leasing Restrictions 13 ARTICLE IX REPAIRS 13 SECTION Landlord Obligations 13 SECTION Tenant's Obligations 14 SECTION Mutual Self-Help 14 SECTION Hazardous Materials 15 SECTION Surrender of the Premises 17 ARTICLE X REQUIREMENTS OF LAW 17 SECTION Landlord's Obligations 17 SECTION Tenant's Obligations 18 SECTION Right to Contest 18 ARTICLE XI INSURANCE 18 SECTION Landlord's Insurance 18 SECTION Tenant's Share of Landlord's Insurance Costs 18 SECTION Tenant's Insurance 19 SECTION Indemnity 20 SECTION Mutual Waiver of Subrogation 20 ARTICLE XII DAMAGE OR DESTRUCTION 21 SECTION Landlord's Obligation to Rebuild 21 SECTION Rent Adjustment 20 SECTION Termination 21 ARTICLE mu CONDEMNATION 22 SECTION Taking 23 SECTION Restoration and Rent Adjustment 23 SECTION Vacating the Premises 24 ARTICLE 3av ALTERATIONS AND MECHANICS' LIENS 24 SECTION Tenant's Alteration Rights 24 SECTION Mechanics' Liens 24 ARTICLE XV SIGNS 25 91

33 Case LSS Doc Filed 06/15/16 Page 23 of 97 SECTION Mandatory Signs 25 SECTION Optional Signs 25 SECTION Sign Limitation 25 ARTICLE XVI TENANT'S PROPERTY 25 SECTION Tenant 's Property 25 ARTICLE XVII ASSIGNMENT AND SUBLEMNG 26 SECTION Assignment and Subletting Rights 24 ARTICLE XVIII DEFAULT 26 SECTION Tenant's Default 26 SECTION Landlord's Default 28 ARTICLE x[x SUBORDINATION, TRANSFER OF INTEREST 28 SECTION Subordination 28 SECTION Transfer of Interest 29 SECTION Tenant Estoppel Certificates 30 SECTION Landlord Estoppel Certificates 30 ARTICLE )0C LANDLORD'S REPRESENTATIONS AND WARRANTIES 30 SECTION Quiet Enjoyment 30 SECTION Representations and Warranties 30 ARTICLE Mil HOLDING OVER. 31 SECTION Holding Over 31 ARTICLE XXII NOTICE 32 SECTION Where and How Given 32 SECTION When Given 32 ARTICLE XXIII MISCELLANEOUS 32 SECTION Construction 32 SECTION Section Headings 33 SECTION Partial Invalidity 33 SECTION Waiver 33 SECTION Governing Law 33 SECTION Successors and Assigns 33 SECTION No Broker 33

34 Case LSS Doc Filed 06/15/16 Page 24 of 97 '. SECTION Memorandum of Lease 33 SECTION Entire Agreement 34 SECTION Relationship of Parties.34 SECTION Restriction 34 SECTION Force Majeure 35 SECTION Satellite Dish and Equipment 35 SECTION Limitation of Liability 35 SECTION Intentionally Omitted 37 SECTION Harmonious Labor 36 SECTION Attorney's Fees 36

35 Case LSS Doc Filed 06/15/16 Page 25 of 97 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT El EXHIBIT F EXHIBIT G EXHIBIT X EXHIBIT Y EXHIBITS Site Plan/Premises/No Build Area Legal Description Signage/Facade and Pylon Elevation Intentionally Omitted Restricted Uses Exclusive Uses Form of Lender Recognition Agreement Fee Owner Recognition Agreement CPI Example Calculation Example

36 Case LSS Doc Filed 06/15/16 Page 26 of 97 LEASE AGREEMENT. S--t THIS LEASE AGREEMENT (this "Lease"), dated as of the day of roar/, 2009 (the "Execution Date") is between FIDELITY TOTOWA ASSOCIATES, L.L.C., a New Jersey limited liability company ("Landlord"), with an office at 301 South Livingston Avenue, Livingston, New Jersey 07039, and BOB'S STORES CORP., a New Hampshire corporation ("Tenant"), with an office at 160 Corporate Court, Meriden, Connecticut WITNEfiSEIH NOW, THEREFORE, in consideration of the rents and covenants hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises (as hereinafter defined) upon the following terms and conditions: ARTICLE I FUNDAMENTAL LEASE PROVISIONS SECTION Definitions: A. Premises: That certain retail space, containing approximately 49,806 square feet as delineated and crosshatched on the site plan attached hereto as Exhibit A (the "Site Plan"), in the building (the "Building") comprising one hundred thousand (100,000) square feet located in the shopping center known as Totowa Square Center in Totowa, New Jersey, as more particularly described in Exhibit B, as the same may be altered, reduced or expanded from time to time (the "Shonning Center"). ENUALA may be modified by Landlord to (a) reconfigure the area between the easterly side of the Building and the westerly side of the Toys "R" Us building, including construction of additions to the Building therein so long as there is no encroachment onto the "No Build Area" as hereinafter defined, and to (b) reconfigure the space at the westerly side of the Shopping Center identified as capable of containing a 24,000 square foot building, provided that no building shall be built easterly of the line of the easterly wall as shown on Exhibit A. Landlord shall be permitted to construct a parking deck in the area identified to the east of the Toys "R" Us building as shown on Exhibit A to replace parking spaces taken in a condemnation as provided in Section herein. The 50,194 square feet of the Building (comprising % of the Building, the "Vacant Share") not leased to or occupied by Tenant (the "Vacant Snace") is currently vacant. B. Initial Lease Term: The period which commenced on February 1,2009 Oho "Commencement Date") and ending at 11:59 p.m. on January 31,2016 unless sooner terminated or extended in accordance with this Lease.

37 Case LSS Doc Filed 06/15/16 Page 27 of 97 C. Intentionally Omitted. D. Extension Periods: Subject to the terms of Section 2.02, four (4) periods of five (5) years each. E. Lease Year: Each period within the Term commencing on February 1 and ending the next succeeding January 31. F. Term: The Initial Lease Term plus each Extension Period as to which the option for such Extension Period is exercised. G. Tenant's Share: A fraction, the numerator of which is the gross leaseable ground floor area of the Premises (49,806) and the denominator of which is the gross leaseable ground floor area of all buildings (including the Building) in the Shopping Center (258,324). Landlord and Tenant agree that as of the Execution Date Tenant's Share is 19.28%. H. Annual Minimum Rent: Monthly Period Rent psf Annual Rent Installments Initial Term: Commencement Date through January 31, 2011 $15.40 $767, $63, February 1, 2011 The lesser of: (a) $16.94 psf (i.e. $843,714); or (b) $14.00 psf through January 31, (i.e. $697,284) multiplied by (1+2 times the change in CPI from 2016 February 1996 through February 2011) but in no event less than $14.00 pd. For this purpose the CPI shall have the same meaning as in the note for the Extension Periods. An example of determining the Annual Minimum Rent for this period is attached to this Lease as Exhibit Y. 14 Extension Period: 211/2016-1/31/2021 2nd Extension Period 2/1/2021-1/31/2026 3rd Extension Period: 2/1/2026-1/31/2031 4th Extension Period 2/1/2031-1/31/2036 $18.63* $927,886 $77, $20.50* $1,021,023 $85, $22.55* $1,123,125 $93, $24.80* $1,235,189 $102,

38 Case LSS Doc Filed 06/15/16 Page 28 of 97 or an increase equal to fifty (50%) percent of the percentage increase in CPI (as hereinafter defined) during the five (5) year period immediately preceding such change in Rent, whichever is greater. The CPI shall mean the Consumer Price Index of the United States Department of Labor, Bureau of Labor Statistics for all urban consumers (New York- Northern New Jersey - Long Island all items =100). An example of the method of determining an increase pursuant to CPI is annexed hereto as Bxhibit X. L Percentage Rent Rate: Two and one-half percent (2.5%). J. Percentage Rent Breakpoint: Lease Years Breakpoint Commencement Date through January 31, 2011 $30,680,496 February 1,2011 through $33,748,546 January 31, 2016 First Extension Period** $37,123,400 (2/1/16-1/31/21) Second Extension Period" $40,835,740 (2/1/21-1/31/26) Third Extension Period" $44,919,314 (2/1/26-1/31/31) Fourth Extension Period" $49,411,238 (2/1/31-1/31/36) "The Percentage Rent Breakpoint in the Extension Periods shall be adjusted if the Rent per square foot is modified due to CPI. In such event, the Percentage Rent Breakpoint for such Extension Periods shall be calculated as: Annual Minimum Rent for such affected periods divided by the Percentage Rent Rate. K. Intentionally Omitted L. Permitted Use: See Section M. Intentionally Omitted. N. Intentionally Omitted. -3-.

39 Case LSS Doc Filed 06/15/16 Page 29 of Minimum Parking Ratios: Four and one-half (4.5) full size parking spaces for each one thousand (1,000) square feet of leaseable ground floor area in the Shopping Center. P. Intentionally Omitted. Q. Broker: None. R. Guarantor: CVS Pharmacy, Inc. S. Intentionally Omitted. ARTICLE II LEASE OF PREMISES TERM OF LEASE SECTION Demise. (a) Landlord does hereby lease and demise to Tenant, and Tenant does hereby hire from Landlord, the Premises, together with the licenses, rights, privileges and easements appurtenant thereto. Landlord shall have the right to construct or erect such buildings or other improvements on the Shopping Center as Landlord may deem necessary or desirable; provided, however, that no such alterations, changes, reductions, buildings or improvements shall diminish the ratio of parking spaces for the gross leaseable ground floor area of the Shopping Center below 4.3 parking spaces per 1,000 square feet of gross leasable ground floor area or shall take place in the area shown as the no-build area on Exhibit A (the "No-Build In addition, the Landlord covenants and agrees that it will not permit any projections either vertical or horizontal to be erected or maintained (other than Tenant's signs or identifications) which will project along the front or rear of the Building in such a manner as to obstruct the view of Tenant's signs or its store front in any mamma% (b) Tenant shall have a'nonexclusive right to use all Shopping Center sidewalks, paved parking areas, paved service areas, signs, traffic controls, lighting and all means of ingress, egress, acceleration, deceleration and stacking lanes and circulation for the aforesaid parking and service areas of the Shopping center to and from public streets and roads bordering the Shopping Center (the "Common Areas") now or hereafter made available or maintained by Landlord in the Shopping Center. Tenant and its employees, invitees, agents, customers, concessionaires and licensees shall have the nonexclusive right, in common with Landlord and other tenants of the Shopping Center, to use the Common Areas subject to such reasonable regulations (consistent with Tenant's rights under this Lease) as may from time to time be imposed upon and enforced without discrimination against all tenants of the Shopping Center by Landlord or its agents., SECTION Extension Periods. Provided that: (a) Tenant is not then in default of any material tams or provisions hereof; after the lapse of all applicable grace periods, and (b) Consolidated EBITDA (as hereinafter defined), as reported in Tenant's -4-

40 Case LSS Doc Filed 06/15/16 Page 30 of 97 monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000), Tenant shall have the option to extend the Term for the number of Extension Periods shown in Section 1.01(D), upon all the terms and conditions contained herein (except that the number of Extension Periods shall decrease by one each time Tenant exercises any such option). Each such option is exercisable by Tenant only in sequence (x) by giving notice to Landlord no less than twelve (12) months prior to the expiration of the Initial Lease Term or of the then current Extension Period, as the case may be, or (y) if Tenant fails to give Landlord such notice, within twenty (20) days after receipt of notice from Landlord that Tenant has failed to exercise its option to extend within the time period provided in (x) above. Time shall be of the essence with respect to Tenant's exercise of its option to extend the Term within such twenty (20) day period. As used herein, "Consolidated EBITDA" shall mean an amount equal to (i) the Consolidated Net Income (as hereinafter clamed) of Tenant's parent and subsidiaries for such period, plus (ii) each of the following: (1). depreciation and amortization (including, but not limited to, imputed interest and deferred compensation, trademark/tradename and goodwill) of Tenant's parent and subsidiaries for such period, plus (2) the interest expense (including inter-company interest expenses) of Tenant's parent and subsidiaries for such period, plus (3) charges for Federal, State, local and foreign income taxes for such period, plus (4) all non-cash charges and write-downs of assets related to the closing of retail stores, plus (5) director fees and management fees and expenses payable to Tenant's parent or its affiliates paid or accrued during such period, plus (6) non-recurring fees and expenses (including asset impairment and other write-offs) incurred during such period in connection with the transactions contemplated by any financing agreements or purchase agreements, plus (7) non-recurring integration costs and restructuring charges incurred during such period in connection with the transactions contemplated by the purchase agreements. As used herein, "Consolidated Net Income" shall mean, with respect to any person for any period, the aggregate of the net income (loss) of such person and its subsidiaries, on a consolidated basis, for such period, excluding to the extent included therein (A) any extraordinary or non-recurring gains and (B) extraordinary or non-recurring non-cash losses or charges, and after deducting the provision for taxes for such period, all as determined in accordance with GAAP. For the avoidance of doubt, for all purposes of this Lease Tenant's exercise of an option for any Extension Period shall not be effective unless the conditions set forth in clauses (a) and (b) of this Section 2.02 are satisfied. SECTION Intentionally Omitted. SECTION Intentionally Omitted. SECTION Intentionally Omitted. SECTION Intentionally Omitted. -5-

41 Case LSS Doc Filed 06/15/16 Page 31 of 97 SECTION Intentionally Omitted. ARTICLE III INTENTIONALLY OMITTED ARTICLE N RENT SECTION Annual Minimum Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord monthly installments of Annual Minimum Rent without setoff or deductions except as otherwise provided for in this Lease, each on the first day of each calendar month during the Term. SECTION Percentage Rent. (a) Tenant shall pay as Percentage Rent a sum equal to (i) the amount by which Tenant's Gross Sales (as hereinafter defined) on, at, or from the Premises during the preceding Lease Year exceeds the Percentage Rent Breakpoint, multiplied by (ii) the Percentage Rent Rate. If the period beginning on the Commencement Date and ending on the January 31st immediately thereafter contains less than twelve (12) full months, Tenant shall pay to Landlord as Percentage Rent for such partial Lease Year an amount, if any, equal to the percentage Rent Rate applied to the Gross Sales made at the Premises during the twelve (12) month period commencing of the Commencement Date in excess of the Percentage Break Point and multiplying said resulting sum by a fraction, the numerator of which is the number of calendar days in the partial Lease Year.and the denominator of which is three hundred sixty-five (365) days. The foregoing provisions shall not effect the provisions of this Lease applicable to the computation of Percentage Rent to be paid by Tenant to Landlord for any subsequent Lease Year. (b) "Gross Sales" shall mean the entire amount of the actual sale price, at retail or at wholesale, made by Tenant or any subtenant, licensee or concessionaire on, at or from the Premises, whether sold for cash or on a charge basis, sold or contracted to be sold at, from or through the Premises, including any commissions, charges or fees for services performed; provided, however, that Gross Sales shall exclude (i) receipts from sales to Tenant's employees at a discount but not more than two percent (2%) of Gross Sales in any Lease Year; (ii) credits or refunds to customers for merchandise exchanged; (iii) receipts from sales in the nature of a transfer to other stores operated by Tenant or,its affiliated companies; (iv) the amount of returns to shippers and manufacturers; (v) any sales, excise or similar tax imposed by governmental authority or retained by Tenant as a fee for collecting such taxes; (vi) amounts received in settlement of claims for loss or damage to merchandise; (vii) bulk transfers not made in the ordinary course of Tenant' s business of Tenant's materials, supplies, merchandise or other inventory to another entity whose principal business is the sale of merchandise from stock; (viii) sales of fixtures an d -6-44/4

42 Case LSS Doc Filed 06/15/16 Page 32 of 97 equipment; (ix) layaway sales until said sales are completed and the items delivered to the customer; (x) credit slips or sales of gift certificates until redeemed; (xi) the actual amount of bad checks and uncollectible credit accounts (if collection is subsequently made upon such bad checks and/or credit accounts after Tenant has deducted the amount thereof from Gross Sales, then the net amount of such collection less the costs of collection shall be added to Gross Sales for the Lease Year in respect of which such deduction was made, up to the amount of the previous deduction therefor) plus any penalty imposed by Tenant on its customers for returned checks but not more than two percent (2%) of Gross Sales in any Lease Year; (xii) financing or service charges to customers who buy on a budget or deferred payment plan (including without limitation, amounts charged to Tenant by credit card companies); (xiii) revenues from vending machines used solely for the benefit of employees; provided, however, that on other vending machines or amusement devices, only Tenant's net revenue shall be included in Gross Sales; ("Sy) merchandise donated to charitable organizations; (xv) assembly or delivery charges to customers whether or not separately billed; and (rvi) sales of lottery tickets. (c) Tenant agrees to furnish Landlord with a statement showing Tenant's Gross Sales for each Lease Year within ninety (90) days after the end of said Lease Year, an itemization of the claimed exclusions from Gross Sales, and the Percentage Rent, if any, due for such Lease Year shall be paid with such annual statement. Such statement shall be certified by a financial officer of Tenant. Landlord shall not, without Tenant's prior written consent, disclose any such sales information to third parties at any time, except in connection with a bonafide sale, mortgage or refinancing of the Shopping Center, or as otherwise required by law, and except for enforcement of Landlord' s rights under the Lease. (d) Tenant further agrees that, for a period of three (3) years after the end of a Lease Year, it will keep separate and accurate records of all Gross Sales made during such Lease Year on, at, or from the Premises in accordance with generally accepted accounting principles and that Landlord shall have the right, upon (10) days' prior written notice to Tenant, to inspect at Tenant's principal accounting office such records and such other books or records relating solely to the Premises as are necessary to enable Landlord or an authorized representative of Landlord to make a full and proper audit of Gross Sales at the Premises for any of the preceding three (3) Lease Years provided, however, that in no event shall Landlord have the right to inspect any books or records relating to any Lease Year previously audited by Landlord, relating to any other store operated by Tenant or relating to Tenant's income, costs or profits. Any surplus paid by Tenant shall, at Tenant's option, be credited against the next installment(s) of Annual Minimum Rent or other charges due from Tenant or be refunded to Tenant forthwith. Any underpayment by Tenant shall be paid by Tenant to Landlord forthwith. If any such audit shows that the Gross Sales for a preceding Lease Year have been understated by more than three percent (3%) resulting in additional Percentage Rent due -7-

43 Case LSS Doc Filed 06/15/16 Page 33 of 97 el to Landlord, then, in addition, Tenant shall immediately pay to Landlord the reasonable cost of such audit. If Landlord does not make such an audit within three (3) years from the end of a given Lease Year, then the statement of annual Gross Sales furnished for such Lease Year shall be deemed to be correct and Landlord shall have no right thereafter to inspect audit or contest the same. Tenant retains the option to maintain its records of Gross Sales on microfiche, computer diskettes, or any similar type of data storage system. (e) Notwithstanding anything contained in this Lease to the contrary, Tenant makes no representation or warranty as to its expected Gross Sales from the Premises. SECTION Method of Payment All payments of Annual Minimum Rent or other amounts due under the terms of this Lease shall be made by check payable to Landlord, mailed or delivered to the address listed in Section or to such other person or place as Landlord shall designate by written notice to Tenant ARTICLE Ar COMMON AREA MAiNTENANCE AND COST SECTION Maintenance. Landlord shall operate, maintain and repair the Common Areas of the Shopping Center or cause the same to be done in a manner so as to maintain the Shopping Center in good, first-class order, repair and condition. Without limiting the generality of the foregoing, Landlord shall be solely responsible, and Tenant shall have no obligation (except to reimburse Landlord for Tenant's Share of the cost thereof, as hereinafter provided), for the repair and maintenance of the parking areas (including, without limitation, any necessary repaving and mstriping), parking lot lighting, utility systems and connections, access ways and other Common Areas within the Shopping Center and for the clearing of snow and ice therefrom. Landlord may at any time, except between October 1 and January 1, close temporarily any Common Areas to make repairs, prevent the acquisition of public rights therein, discourage non-customer parking or for other reasonable purposes. Between October 1 and January 1, Landlord may temporarily close parts of the Common Areas, but only to make repairs of an emergency nature; provided, however, that in any instance of such emergency repairs Landlord agrees to use all reasonable efforts to perform the necessary repairs in the most expeditious manner possible and in such a way and at such times as to cause the least interference possible with ingress and egress to and from the Premises by Tenant, its invitees, employees, agents, customers and licensees. In order to reduce interference with Tenant's business operation during such period, Landlord shall effect temporary repairs, where feasible, and complete the permanent repairs after January 1. SECTION Construction Clean-up. Landlord shall be solely responsible (at its own cost and expense, without reimbursement on account thereof by Tenant) for clearing all rubble and debris from the Common Areas resulting from any -8-

44 Case LSS Doc Filed 06/15/16 Page 34 of 97 construction by Landlord (except incidental rubble and debris arising from repairs which shall be included within CAM Costs), and Landlord shall leave the Common Areas in a safe, neat and pleasing appearance, consistent with accepted construction practice, during and following any such construction. SECTION CAM: Costs. "CAM Costs" shall mean the actual amount, (without profit or "mark up" by Landlord or any affiliate of Landlord) of all necessary, competitive and reasonable costs and expenses actually incurred by Landlord in operating and maintaining the Common Areas in an appropriate manner commensurate with good business practice. The costs and expenses which constitute CAM Costs shall be all costs and expenses reasonably and actually incurred by Landlord in operating, repairing, lighting, cleaning repainting maintaining and restriping the Common Areas, and in removing snow, ice and debris therefrom. In no event will CAM Costs include any costs or expense incurred by Landlord (a) in constructing the Shopping Center or the Premises; (b) in performing its restoration obligations with respect to the Shopping Center or the Premises under Articles XII and XIII; (c) in performing its repair obligations with respect to Section 9.01 or in connection with the Building or any other building(s) in the Shopping Center (including without limitation, roof and structural repairs or replacement, repaving (replacement of less than two inches of material shall be deemed a repair and includable in CAM Costs), renovation or construction of storefront facades or canopies, or the replacement of light poles and heads); (d) for real estate taxes, capital expenditures as determined in accordance with generally accepted accounting principles (including any capitalization, depreciation or amortization relating thereto), management, administrative, office overhead, security (unless Landlord is required to, and does, furnish security for the Shopping Center, in which event security shall be included in CAM Costs), or the removal of rubbish of individual tenants in the Shopping Center (Landlord shall not be required to furnish garbage removal services to Tenant); (e) in operating, maintaining or repairing any other building(s) in the Shopping Center or any facilities exclusively serving any such other building(s); (f) the removal, neutralization, or abatement of any Hazardous Materials (as defined in Section 9.01) in the Shopping Center; or (g) in performing its obligations under Section If any of Landlord's maintenance employees devote less than full time to the care of the Common Areas, then only that portion of the salaries of such persons as is fairly, equitably and directly attributable to the care of the Common Areas shall be included in CAM Costs. Further, Landlord shall exclude from CAM Costs all costs or expenses in connection with any repairs or replacements to the Common Areas through the end of the Warranty Period (as defined in Section 9.01), and Landlord shall also make an appropriate adjustment for the increase in CAM Costs attributable to tenants operating between the hours of 10 p.m. and 9 a.m. SECTION Tenant's Share of CAM Costs. Tenant shall pay Landlord, in addition to all other amounts in this Lease provided, Tenant's Share of CAM Costs in each calendar year during the Term. Tenant 's Share of CAM Costs shall be -9-

45 Case LSS Doc Filed 06/15/16 Page 35 of 97 appropriately prorated for partial calendar years at the beginning and at the end of the Term. SECTION Payment of CAM Costs. Tenant's Share of CAM Costs shall be payable in equal monthly installments on the first day of each month. Such monthly installments shall be at the rate of one-twelfth (1/12 m) of Tenant's Share of CAM Costs for the preceding calendar year, subject to immediate adjustment when the actual amount of CAM Costs or a change in Tenant's Share thereof is determined. Within ninety (90) days after the end of each calendar year, Landlord shall furnish Tenant with a detailed statement certified by an authorized representative or general partner of Landlord of the actual amount of CAM Costs and of Tenant's Share thereof for the preceding calendar year (including the basis of allocation to Tenant. Within thirty (30) days after receipt of such statement by Tenant, Tenant shall pay to Landlord any deficiency due. Any surplus paid by Tenant shall, at Tenant's option, be credited against the next installment (s) of Annual Minimum Rent or other charges due from Tenant or be refunded to Tenant forthwith. Landlord's records of CAM Costs for each year shall be available for inspection by Tenant for a period of three (3) years after Landlord notifies Tenant of Tenant's Share of CAM Costs for the year in question. Tenant may, during such three (3) year period, upon ten (10) days' prior notice to Landlord, have an audit made at Landlord's principal accounting office of CAM Costs and the allocations thereof to Tenant, consisting of reviewing copies of paid bills and other records substantiating its expenditures ("CAM Records"). Any overcharges shown by any such audit shall, at Tenant's option, be credited against the next installment(s) of Annual Minimum Rent or other charges due from Tenant or be refunded to Tenant forthwith. If any such audit shows that Tenant's Share of CAM Costs have been overstated by more than three percent (3%), then Landlord shall immediately pay to Tenant the reasonable cost of such audit. ARTICLE VI TAXES AND OTHER CHARGES SECTION Taxes. Tenant's Share of Taxes. Landlord shall pay when due all real estate taxes and assessments levied and assessed against: the land, improvements and buildings comprising the Shopping Center. Except as hereinafter provided to the contrary, for each calendar year or part thereof during the Term, Tenant shall pay Tenant's Share of the net amount (after reflecting all discounts for early payment refunds and credits and after excluding all penalties, interest, late charges and real estate taxes and assessments levied against free-standing buildings which are separately assessed) of all real estate taxes and assessments (collectively, "Taxes") levied and assessed against the land, improvements and building comprising the Shopping Center. Taxes shall also include any tax on Landlord's right to receive rent or any tax replacing or supplementing in whole or in part any tax previously included within the

46 Case LSS Doc Filed 06/15/16 Page 36 of 97 definition of Taxes under this Lease. Further, Taxes shall also include any governmental charge for fire protection, garbage removal service and any other service provided by governmental agencies to the Premises but only on condition that such Taxes are expressly delineated in the tax bill. Tenant's Share of Taxes shall be equitably adjusted if the use or value of any portion (other than the Premises) of any buildings in the Shopping Center included in computing Tenant's allocation directly and unambiguously cause Taxes attributable to such building to be assessed at a disproportionately higher rate. a SECTION Payment of Taxes. Tenant shall be liable for and shall pay Tenant's Share of Taxes only with respect to Taxes accruing during the Term, regardless of when such Taxes are billed or become due and payable. Tenant shall pay Tenant's Share of Taxes (a) within thirty (30) days after Landlord submits to Tenant, a tax bill for such Taxes and a statement setting forth the manner in which Tenant's Share of Taxes is calculated or (b) ten (10) days before the same are due and payable, whichever is later. Notwithstanding anything to the contrary herein, with respect to betterments or other extraordinary or special assessments, Tenant's obligations shall apply only to the extent such assessments (and interest thereon) are payable in respect of the Term, and Tenant shall have the right to pay assessments in installments over the longest payment period permitted by law for the particular assessment, in which case Tenant shall pay only those installments payable in respect of the Term. SECTION gxclusions from Taxes. Tenant shall not be charged, nor be obligated to pay, any income, profit, inheritance, estate, succession, gift, franchise, or transfer taxes which are or may be imposed upon Landlord, its successors or assigns, by whatsoever authority imposed or howsoever designated. SECTION Right to Contest. Tenant, together with the tenant of the Vacant Space (but only together with such tenant), shall have the right to contest, in good faith, the validity or the amount of any Taxes levied against the land, improvements or buildings comprising the Shopping Center by such appellate or other proceedings as may be appropriate in the jurisdiction in which the Premises is located. Landlord shall cooperate in the institution and prosecution of any such proceedings and will execute any documents reasonably required therefor. The expense of such proceedings shall be borne by Tenant (and the tenant of the Vacant Space) and any refunds or rebates secured shall belong to Tenant (and the tenant of the Vacant Space) to the extent that the refund or rebate relates to Tenant's Share (or the Vacant Space tenant's share) of Taxes previously paid to Landlord. Tenant's contest rights are subject to any rights to contest Taxes granted to any other tenant at the Shopping Center. If the contest of Taxes by Tenant (and the tenant of the Vacant Space) results in any increase of Taxes, Tenant (and the tenant of the Vacant Space) shall be responsible for payment of such increase in Taxes. ARTICLE VII UTILITIES

47 Case LSS Doc Filed 06/15/16 Page 37 of 97 SECTION Utilities. Landlord covenants and agrees that the Premises are presently serviced with gas, electric, telephone, water and sewer. Tenant shall pay all charges for utility services furnished to the Premises during the Term. Tenant agrees to pay promptly, as the same become due and payable, all bills for gas, electricity and water for the Premises and sewer use charges for the Premises for any period during the Term. If at any time during the Term, for any reason, Landlord shall provide utility service to the Premises, Tenant's cost for such utility service shall not exceed Landlord's actual cost for such utility service. In addition, Tenant shall have the right to install a test meter to verify its utility usage. ARTICLE VIII USE OF PREMISES SECTION Permitted Use. Tenant may use the Premises for any lawful retail purpose which does not violate the restricted uses listed on Exhibit E attached hereto or the Leasing Restrictions imposed upon Landlord in Section The parties acknowledge and agree that nothing contained in Exhibit E or this Article VIM shall inhibit or impair in any way the operation of the Premises for a "Bob's store" as those stores currently operate and as those stores may expand, in concept and operate in a majority of their stores in the future. Nothing contained in this Lease shall be construed as requiring Tenant to operate at any time or to continuously operate or otherwise remain open for the conduct of business in the Premises. In the event Tenant intends to use the Premises for a primary purpose listed on Exhibit E, or intends to assign this Lease or sublease the Premises to a another party for a primary use listed on Exhibit E (a use shall be considered a primary use if more than fifty percent (50%) of the space is utilized for such purpose), Tenant shall so notify Landlord. If Landlord has then leased 10,000 square feet or more of the Shopping Center to a tenant for such primary use, Landlord shall so notify Tenant within ten (10) days after receipt of Tenant's notice and Tenant shall not use the Premises for such primary purpose, or assign this Lease or sublet the Premises for such primary purpose while such other tenant of the Shopping Center is using its space for such primary purpose. Further, if Landlord is then negotiating with a prospective tenant whose anticipated primary use is listed on Exhibit E for 10,000 square feet or more of the Shopping Center for the same primary use as intended by Tenant or its prospective assignee or subtenant, Landlord shall so notify Tenant within ten (10) days after receipt of Tenant's notice and Tenant shall refrain from such primary use or assigning or subletting for such primary use, unless Landlord fails to enter into a lease for such primary use with such prospective tenant within one hundred twenty (120) days after Landlord's notice to Tenant If Landlord does not enter into such lease within such one hundred twenty (120) day period, Tenant shall have one hundred twenty (120) days thereafter to change its use or assign or sublet for such purpose. If Tenant does not use the Premises for such purpose or assign or sublet for such purpose within such one hundred twenty (120) day period, the procedure set forth in this -12-

48 Case LSS Doc Filed 06/15/16 Page 38 of 97 paragraph shall again be applicable. The foregoing to the contrary notwithstanding, Tenant shall not use the Premises or assign or sublet any portion of the Premises in violation of the exclusive uses set forth on attached Exhibit E-1, which exclusive uses are for the benefit of those tenants listed in paragraph 1 of attached Exhibit E, but only if such tenants are operating for such uses as of the date hereof and their leases are in effect; provided, however, in no event shall Tenant be bound by any exclusive use granted to The TA Companies, Inc. in its lease. SECTION Leasing Restrictions. Landlord agrees not to lease, sell or permit any space in the Shopping Center to be used for a billiard parlor, flea market, massage parlor, a so-called "off-track betting" operation, a store specializing in the sale of drug paraphernalia or for the display or sale of pornographic materials. In addition, in recognition of Tenant's need for adequate parking in close proximity to the Premises, the importance of protecting such parking facilities against unreasonable or undue encroachment which is likely to result from long-term parking by patrons or employees of certain types of business establishments, and Tenant's interest in not having other tenants occupying space in close proximity to the Premises who create or cause excessive noise, litter or odor, Landlord further covenants, represents and warrants that no premises shall be leased, rented, used or occupied for the operation of a theater (excluding the "Toys R Us" space designated on Exhibit A but only on condition that a minimum of three (3) parking spaces per thousand square feet of space are added for any use of such space as a theatre, skating rink, bowling alley or arcade/pinball or video or electronics game room within the Shopping Center) and that no restaurant shall be located within three hundred (300) linear feet of the nearest demising wall of the Premises. Landlord understands and agrees that to permit any of such uses within the Shopping Center would materially and adversely affect Tenant's business, and in such event Tenant shall have the right to terminate this Lease upon thirty (30) days notice to Landlord. This paragraph shall not be applicable to the space in the Shopping Center (as long as such space is outside of Landlord's control to enforce the leasing restrictions contained herein) presently leased to those Tenants listed in paragraph 1 of attached Exhibit E; provided, however, that the restrictions contained in this Section 802 shall apply to the Vacant Space. Tenant agrees that it shall not use or permit any portion of the Premises to be used for any of the purposes specified in this Section ARTICLE IX REPAIRS SECTION Landlord Obligations. Throughout the Term, Landlord shall, at its sole cost and expense, but reimbursable as may be provided in Sections 5.04 and 5.05 herein, keep, maintain and repair (including replacements, if necessary) the structural portions of the roof of the Building, including structural steel including the steel deck, except rust to the steel deck occurring after September 1, 1995 (but not -13-

49 Case LSS Doc Filed 06/15/16 Page 39 of 97 including the insulation, roofing material, leaders and gutters and flashing and coping), all utility lines serving the Premises (from the point of connection at the Premises to the public utility mains), and the structural portions of the Building, including, without limitation, footings and foundation, floor slab, and structural walls, columns and beams in good order, condition and repair and in a safe condition except any such repairs necessitated by the negligence or willful misconduct of Tenant, its employees, agents or. contractors or resulting from Tenant's failure to maintain or repair the Premises in accordance with its obligations under this Lease. Landlord's obligations hereunder shall be subject to the provisions of Articles XII and XIII. The foregoing to the contrary notwithstanding, Tenant shall be responsible for rust to the steel deck (whether located over the Premises or the Vacant Space) occurring after September 1, 1995 as a direct result of Tenant's failure to maintain the roof over the Premises (as distinguished from the roof over the Vacant Space) in a watertight condition. The burden of proof shall rest with Landlord to prove that the rust to the steel deck occurred after September 1, 1995 and was a direct result of Tenant's failure to maintain the roof over the Premises in a watertight condition. SECTION Tenant's Obligations. (a) Subject to Landlord's obligations under Section 9.01, Tenant shall at all times during the Term, at its sole expense, keep and maintain the Premises in good order, condition and repair and in a safe condition, reasonable wear and tear, damage caused by casualty excepted to the extent not reimbursed by insurance. Tenant's obligations hereunder shall also be subject to the provisions of Articles MI and XIII and to Landlord's obligation to clear the Premises of all dirt and debris following completion of Landlord's Work pursuant to Section Tenant shall be permitted to maintain a dumpster or similar refuse container in or near the Premises. (b) If any HVAC equipment must be repaired or replaced during the last two (2) years of the Term, then in light of the fact that the same will require a substantial expenditure by Tenant and will result in a benefit to Landlord following the expiration of the Term of this Lease, upon the expiration or earlier termination of this Lease (unless such termination results from Tenant's default of its obligations under this Lease), Landlord shall reimburse Tenant for the =amortized portion of the reasonable expenses incurred by Tenant in connection with the replacement of such equipment during the last two (2) years of the Term, based on (i) the date of the installation of such new equipment, and (ii) the useful life of said equipment, and (iii) the date of expiration of the Term. SECTION Mutual Self-Help. (a) Upon reasonable advance notice, Landlord and its designees shall have the right to enter upon the Premises during normal business hours for the purpose of inspecting or making repairs to the same. If repairs are required to be made by Tenant pursuant to the terms hereof; Landlord shall notify Tenint to make such repairs, and if Tenant refuses or neglects to commence such repairs and complete the same with reasonable dispatch after such notice, Landlord may (but shall -14-

50 Case LSS Doc Filed 06/15/16 Page 40 of 97 not be required so to do) make or cause such repairs to be made. If Landlord makes or causes such repairs to be made, Tenant agrees that it will pay to Landlord the reasonable cost thereof; within thirty (30) days after Landlord's request therefor. Landlord times that any such repairs shall be made at such time and in such manner as will minimize interference with the business being conducted at the Premises. (b) Conversely, if any repairs to the Premises or any maintenance, cleaning, or lighting of the Common Areas or any other obligation requited by the terms hereof to be performed by Landlord are not performed by Landlord promptly after reasonable advance notice from Tenant, Tenant shall have the right to perform such obligation of Landlord. If Tenant performs any such obligation of Landlord, Landlord agrees that it will pay to Tenant the reasonable cost thereof or respond in writing with a detailed objection of why such payment is not forthcoming. Within thirty (30) days after Tenant's request therefor, Tenant shall have the right to deduct one half of the amount thereof from the next succeeding payment(s) of Annual Minimum Rent and other charges next accruing hereunder together with interest until paid in full. In the event Tenant wrongly deducts from Annual Minimum Rent as determined by a court of competent jurisdiction, Landlord shall have all rights and remedies against Tenant for such wrongful deduction, and Tenant shall indemnify and save harmless Landlord from any loss, cost or liability incurred by Landlord by reason of such wrongful deduction. (c) If an emergency occurs where something is required to be done immediately in order to avoid damage to the Premises or lapse of insurance coverage or if snow removal is not promptly accomplished, either party shall have the right to self-help consistent with subsections (a) and (b) above, without the requirement of formal notice..however, this right of self-help, as well as those rights set forth in subsections (a) and (b) hereof, shall be carefully and judiciously exercised by either party, it being understood and agreed that wherever possible, the party initially responsible for taking such action should be given sufficient opportunity so to do, in order to avoid any conflict with respect to whether or not self-help should have been availed of, or with respect to the reasonableness of the expenses incurred. SECTION Hazardous Materials. (a) Landlord represents and warrants that, to the best of Landlord's knowledge, as of September 1, 1995 there were no Hazardous Materials present in the Shopping Center (other than VCT and mastic in the Premises which Tenant shall be responsible to remove at Tenant's sole cost and expense), and Landlord agrees that the removal or neutralization of any such Hazardous Materials, if any, shall be at the sole cost and expense of Landlord, but Landlord is not responsible for Hazardous Materials installed after September 1, "Pimardous Materials" shall mean (i) any waste, material or substance (whether in the form of a liquid, a solid, or a gas and whether or not air-borne) which is deemed to be a pollutant or a contaminant, or to be hazardous, toxic, ignitable, reactive, infectious, explosive, corrosive, dangerous, harmful or injurious to public health or to the environment, and -15-

51 Case LSS Doc Filed 06/15/16 Page 41 of 97 which is now or becomes regulated in the future by or under the authority of any applicable local, state or federal laws, judgments, ordinances, orders, rules, regulations, codes or other governmental restrictions or requirements, any amendments or successor(s) thereto, replacements thereof or publications promulgated pursuant thereto (collectively "Environmental Reuulations", and individually, "Environmental Regulation"); (ii) petroleum; (iii) asbestos and asbestos containing materials; (iv) any polychlorinated biphenyl; and (v) any radioactive material. In addition to the foregoing, the term "Environmental Reuulations" shall be deemed to include, without limitation, local, state and federal laws, judgments, ordinances, orders, rules, regulations, codes and other governmental restrictions and requirements, any amendments and successors thereto, replacements thereof and publications promulgated pursuant thereto, which deal with or otherwise in any manner relate to, environmental matters of any kind. (b) Landlord and Tenant each agree that neither Landlord nor Tenant shall cause any Hazardous Materials to exist on, or to escape, seep, leak; spill or be discharged, emitted or released from the Shopping Center during the Term in violation of any applicable Environmental Regulation. (c) Landlord hereby indemnifies Tenant and its successors and assigns, and agrees to hold Tenant and its successors and assigns harmless from and against any and all losses, liabilities, damages, injuries, penalties, fines, costs, expenses and claims of any and every kind whatsoever, including attorney's fees and costs (collectively "Environmental Liabilities") paid, incurred or suffered by or asserted against, Tenant or its successors and assigns with respect to, or as a direct or indirect result of; the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from the Shopping Center of any Hazardous Material which was brought in to the Shopping Center by Landlord, its agents, employees or their respective predecessors in interest, or caused by breach by Landlord, its agents, employees or their respective predecessors in interest of any Environmental Regulation to which Landlord is subject. (d) Tenant hereby indemnifies Landlord and its successors and assigns, and agrees to hold Landlord and its successors and assigns harmless from and against any and all Environmental Liabilities paid, incurred or suffered by, or asserted against, Landlord or its successors and assigns with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from the Premises of any Hazardous Material which was brought in to the Premises by Tenant, its agents or employees, or brought in to the Premises by any other person or cause except by Landlord, its agents or employees, or caused by breach by Tenant of any Environmental Regulations to which Tenant is subject. Tenant shall remove or remediate, at its sole option, the VCT and mastic currently in the Premises, at Tenants sole cost and expense. (e) With respect to Hazardous Materials which are or become present at the Shopping Center as the result of any cause whatsoever (other than Hazardous -16-

52 Case LSS Doc Filed 06/15/16 Page 42 of 97 Material which was brought in to the Premises by Tenant, its agents, employees or invitees) that renders the Premises Unusable (as hereinafter defined), Landlord shall, at Landlord's sole cost, in a good, workmanlike and expeditious manner, and in compliance with Environmental Regulations perform all work necessary to render the Premises no longer Unusable. Should Tenant be required to close during the removal or neutralization of such materials by Landlord, all rent and related charges shall be abated until such time as Tenant can safely resume normal business operations. If such work is not commenced within thirty (30) days after the date (the "Notification Date") that Tenant notifies Landlord of Hazardous Materials rendering the Premises Unusable (or such additional period as may be reasonably required to engage environmental consultants and/or - engineers and obtain permits and licenses) or if such work is not completed within ninety (90) days after the Notification Date (or such additional period as may reasonably be required given the nature of the work, provided that Landlord diligently pursues same to completion), then Tenant's sole remedy under this Lease (other than any other remedy Tenant may have under this Lease, including, without limitation, the indemnity provided in subsection (c) above), or otherwise at law or in equity, shall be to terminate this Lease by giving written notice of termination to Landlord; provided, however, that Tenant's option to terminate this Lease pursuant to this subsection (e) shall cease to exist at any time the Premises are no longer Unusable. If this Lease is terminated by Tenant pursuant: to this subsection (e), neither Landlord nor Tenant shall have any further obligations to the other under this Lease, or otherwise with respect to the Premises; maki...4 however, that nothing herein shall be construed to release Tenant from any obligation under the Lease accrued or payable prior to the date of termination. For the purpose of this subsection (e), "Unusable" means that the Tenant does not have access to at least ninety percent (90%) of the Premises because of the enforcement of any Environmental Regulation or the need for the use of the Premises for remecliation of any Hazardous Materials, or because the use of the Premises would represent a risk to the health or safety of Tenant, Tenant's employees, agents or invitees. (f) The indemnities contained in subsections. (c) and (d) above shall survive the termination of this Lease. SECTION Surrender of the Premises. At the expiration or earlier termination of the tenancy hereby created, Tenant shall surrender the Premises to Landlord in the same condition as it is required to be maintained by Tenant pursuant to Section 9.02 above, reasonable wear and tear and damage coverable by insurance required to maintained hereunder excepted. ARTICLE X REQUIREMENTS OF LAW SECTION Landlord's Obligations. Except as provided in Section 10.02, Landlord shall, at its expense, comply with or cause to be complied with all -17-

53 Case LSS Doc Filed 06/15/16 Page 43 of 97 insurance requirements and with all laws, statutes, ordinances and regulations of Federal, state, county and municipal authorities (collectively, "Laws") which shall impose any duty upon Landlord or Tenant with respect to the Common Areas or the structural components of the Premises. SECTION Tenant's Obligations. Tenant, at its expense, shall comply with all Laws relating to the physical condition of the Premises (except with respect to any Hazardous Materials, in which case Section 9.04 shall govern). SECTION Right to Contest. The party responsible for compliance pursuant to Section or shall have the right to contest the validity of any Law at the expense of the party responsible for compliance, unless such contest would result in any criminal liability imposed upon the other party or subject the other party to fine, penalty or damages, or constitute a violation of any mortgage encumbering the Shopping Center, or subject the Shopping Center or any interest therein to a lien. ARTICLE XI INSURANCE SECTION Landlord's Insurance. Landlord shall insure the Shopping Center, including the Premises but excluding the premises of other parties which are insured directly by such other parties, against damage or destruction by fire and other casualties insurable under a "special causes of loss form" property insurance policy. Said insurance shall be written by a company with an A.M. Best's rating no lower than "A-" and a surplus rating of not less than class "X", or if such A.M. Best's rating is not available an equivalent rating as established by a reputable national insurance rating organization and qualified to do business in the state in which the Shopping Center is located and shall be in an amount equal to not less than eighty percent (80%) of the replacement cost, without depreciation, of the Shopping Center. Landlord shall use all reasonable effort to ensure that all such policies shall bear endorsements to the effect that Tenant shall be notified not less than thirty (30) days in advance of any modification, expiration or cancellation thereof and that the assured has waived right of recovery from Tenant. Landlord covenants and agrees to comply with all requirements of the insurance policies required to be maintained pursuant to this Section Copies of such insurance policies or certificates evidencing the existence thereof shall be delivered to Tenant no later than ten (10) days after written request therefor by Tenant. Irrespective of the cause thereof, Tenant shall not at any time be liable for any loss or damage to the Shopping Center resulting from fire, explosion or any other special form peril. Landlord shall also carry commercial general liability insurance in respect of the Common Areas. SECTION Tenant's Share of Landlord's Insurance Costs. Tenant shall pay Tenant's Share of the net cost (after reflecting all refunds and credits and after excluding all penalties, interest and late charges) of the insurance carried by Landlord -18-

54 Case LSS Doc Filed 06/15/16 Page 44 of 97 pursuant to Section ("Landlord's Insurance Cost"). If Landlord carries blanket insurance covering the Shopping Center together with other property owned by Landlord, then Landlord shall obtain evidence reasonably satisfactory to Tenant of the cost of such insurance allocable to the Shopping Center and the amount so allocable shall be Landlord's Insurance Cost on which Tenant's Share shall be based. Tenant's Share for the purposes of calculating the portion of Landlord Insurance Cost for which Tenant is responsible shall be a fraction, the numerator of which shall be the gross leaseable ground floor area of the Premises and the denominator of which shall be the gross leaseable ground floor area of all buildings in the Shopping Center covered by such insurance. Tenant's Share of Landlord's Insurance Cost shall be paid by Tenant to Landlord within thirty (30) days after Landlord shall deliver a copy of the insurance premium billing therefor and a statement setting forth the manner in which Tenant's Share has been calculated. Tenant's Share of Landlord's Insurance Cost shall be included in Tenant's Share of CAM Costs and shall be equitably adjusted if the use or value of any portion (other than the Premises) of the Building or other buildings in the Shopping Center cause Landlord's Insurance Cost to be disproportionately higher or lower. SECTION Tenant's Insurance. (a) Tenant shall maintain in full force and effect during the Term at its cost: (1) A policy of commercial general liability insurance, including, contractual liability coverage, for the benefit of Landlord, Landlord's managing agent and any Landlord's mortgagee or ground lessor (each of which shall be named and endorsed as additional insured under the policy), and Tenant, as their interest may appear, insuring against all liability arising from any injury to or death of any person, or in any one incident occurring on in or about the Premises with limits in the amount of at least One Million ($1,000,000.00) Dollars per occurrence and a Two Million ($2,000,000.00) Dollar aggregate. Such insurance policy shall be: (a) an occurrence basis policy; and (b) primary as to all insurance obtained by Landlord and applicable to the Premises and operations on the Premises. Tenant may satisfy the aforesaid liability limits through a combination of primary and excess policies. The foregoing limits may be increased from time to time as reasonably required by Landlord based on the liability limits normally maintained by property owners in the vicinity of the Shopping Center. (2) "Special causes of loss form" property insurance covering all of Tenant's Property (as defined in Article XVI) in amounts no less than eighty percent (80%) of the replacement value thereof; providing, however, that Tenant shall have the right to self-insure Tenant's Property (b) All policies of insurance required by this Section shall be issued by insurance companies with an A.M. Best's rating no lower than "A-" and a surplus rating of not less than class "X", or if such A.M. Best's rating is not available an equivalent rating as established by a reputable national insurance rating organization and qualified to do business in the state in which the Premises is located. Tenant agrees to deliver to -19-

55 Case LSS Doc Filed 06/15/16 Page 45 of 97 Landlord, prior to the Execution Date, and thereafter no later than ten (10) days after written request therefor by Landlord, a copy of each such insurance policy or a certificate of insurance together with a named insured policy endorsement which satisfies the provisions of Section 11.03(a)(1) as to any such policy of insurance, together with proof of payment of the initial or the renewal premiums therefor. Each such insurance policy shall not be cancelable without written notice to Landlord and to all other additional insureds thereunder received at least thirty (30) days prior to the date of such cancellation (except in the case of non-payment of premiums, in which case ten (10) days prior notice shall suffice). All renewal policies (or certificates therefor) shall be delivered to 1 Landlord prior to the expiration of the then current policy. Tenant shall have the right to provide the insurance required in this Section pursuant to Tenant's blanket insurance policy. SECTION Indemnity. Subject to Sections and hereof; during the Term Tenant shall indemnify, defend and hold Landlord harmless against all costs, expenses, penalties, claims or demands of whatsoever nature arising from or relating to Tenant's use of the Premises, except those which shall result from the negligence or willful misconduct of Landlord, its agents, contractors or employees, to the extent not covered by Landlord's insurance therefor. Subject to Sections and hereof, during the Term Landlord shall indemnify, defend and save Tenant harmless against all costs, expenses, penalties, claims or demands of whatsoever nature arising from or relating to Landlord's or its agents', contractors' or employees' use of the Shopping Center, including the Common Areas, except those which shall result from the negligence or willful misconduct of Tenant, its agents or employees, to the extent not covered by Tenant's insurance therefor. If Tenant self-insures against such risk, Tenant shall be deemed to maintain insurance with a third party insurance carrier if such risk would have been customarily insured against but for paragraph (a)(2) of Section SECTION Mutual Waiver of Subrogation. Notwithstanding anything set forth in this Lease to the contrary, Landlord and Tenant do hereby waive any and all right of recovery, claim, action or cause of action against the other, their respective agents, officers and employees for any loss or damage that may occur to the Premises or the remainder of the Shopping Center or any addition or improvements thereto by reason of fire, the elements or any other cause which could be insured against under the terms of a standard fire and extended coverage insurance policy or policies, with vandalism, malicious mischief and all-risk coverage and business interruption insurance or for which Landlord and Tenant may be reimbursed as a result of insurance coverage affecting any loss suffered by either party hereto, regardless of cause or origin, including the negligence of Landlord or Tenant or their respective agents, officers and employees. In addition, all insurance policies carried by either party covering the Premises, the Building or any other buildings in or portions of the Shopping Center including, but not limited to contents, fire and casualty insurance, shall expressly waive any right on the part of the insurer against the other party for damage to or destruction of the Premises and/or any -20-

56 Case LSS Doc Filed 06/15/16 Page 46 of 97 other buildings in or portions of the Shopping Center resulting from the acts, omissions or negligence of the other party. If Tenant self-insures against such perils, Tenant shall be deemed to carry insurance from third party carriers and Tenant waives any claim against Landlord for damages to Tenant's Property which would have been covered by such insurance if Tenant had not elected to self-insure in accordance with paragraph (a)(3) of Section 11.03(b). ARTICLE XII DAMAGE OR DESTRUCTION SECTION Landlord's Obligation to Rebuild. (a) If all or any part of the Building is damaged or destroyed by fire, the elements or other casualty, then Landlord shall within thirty (30) days after such damage or destruction deliver to Tenant a certificate of Landlord's architect stating its reasonable estimate of the percentage of the Building so damaged and the time needed to repair all damage and restore the Building, including the Premises, to its condition immediately prior to such damage or destruction. If less than fifty percent (50%) of the gross leasable floor area of the Building is damaged or destroyed and the estimated time needed for such repair and restoration in accordance with the architects estimate is two hundred seventy (270) days or less, then Landlord shall, at Landlord' s sole cost and expense, timely repair the damage and restore the Building. Landlord shall repair and restore the Building to its condition prior to the occurrence of the casualty, not including improvements to the Building made by Tenant (b) Landlord shall not have any liability or obligation for replacement, repair or restoration of any of Tenant's Property. SECTION Rent Adjustment. (a) If Tenant is deprived of the use of all or any portion of the Premises by reason of such damage or destruction or the repair thereof then the Annual Minimum Rent and all other charges payable hereunder shall be abated (during such period Tenant is not open for business) or proportionately reduced (during such period as Tenant is open for business but is deprived of the use of any portion of the Premises) according to the portion of the Premises incapable of being used. If there is any material interference with full access to the Premises, such material interference shall mean that the Premises is incapable of being used. (b) It is understood and agreed that Tenant shall have sixty (60) days after the date Landlord notifies Tenant that all repairs and restoration to the Building are completed within which to reopen the Premises and that Tenant shall have no obligation to pay any Annual Minimum Rent or any other charges payable hereunder during such sixty (60) day period unless Tenant opens the Premises for business within such sixty (60) day period. SECTION lamina...om (a) If the estimated time needed for repair and restoration in accordance with the architect's certificate is greater than two hundred -21-

57 Case LSS Doc Filed 06/15/16 Page 47 of 97 seventy (270) days, then Tenant and Landlord shall each have the option within forty-five (45 days after the delivery of the architect's certificate to terminate this Lease effective as of the date of such damage or destruction; provided, however, that Landlord's right to terminate pursuant to this Section 12.03(a) shall be conditioned upon Landlord terminating all of the other leases for similarly situated space in the Building within a reasonable time after terminating this Lease if such leases permit Landlord to terminate such leases. Failure of Landlord to so terminate such other leases shall, at Tenant's option, render Landlord's termination of this Lease void and of no further force and effect. (b) Notwithstanding anything contained in this Article XII to the contrary and subject to Section 23.12, if (i) Landlord fails to commence in good.faith such repair and restoration within ninety (90) days after any damage: ordestruction or (ii) Landlord fails to timely complete such repair and restoration within two hundred seventy (270) days after receipt of the certificate of Landlord's architect and:lindlord is not at. the expiration of such time periodeontinuously and diligently pursuing such repair and. restoration, then Tenant shall have the option, upon written notice to Landlord, to elect (X) to complete the repair and restoration to the Premises and (1) to receive... reimbursement therefor in full from Landlord on demand and/or (2) to offset the cost and 'expense thereof against the payment of Annual Minimum Rent and all other charges. payable by Tenant hereunder, and, at Tenant's option, to extend the Term until such time as Tenant, through such offsets, has recouped the entire cost and expense to Tenant of such repair and restoration, or (Y) to terminate this Lease effective as of the date of such termination. (c) Notwithstanding anything contained in this Article XII to the contrary, if Tenant is deprived of the use of ten percent (10%) or more of the Premises or of more than twenty-five percent (25%) of the Building or the Common Areas by reason of such damage or destruction and such damage or destruction occurs during the last three (3) years of the Term, then Landlord shall not be obligated to repair the damage and restore the Shopping Center and either party shall have the right to terminate this Lease, effective as of the date of termination, by giving notice of such election to the other party within ninety (90) days after the occurrence of such damage or destruction; provided. however, that Landlord's right to terminate pursuant to this Section 12.03(c) shall be conditioned upon Landlord terminating all of the other leases for similarly situated space in the Building within a reasonable time after terminating this Lease. Failure of Landlord to so terminate such other leases shall, at Tenant's option, render Landlord's termination of this Lease void and of no further force and effect. ARTICLE XIII CONDEMNATION -22-

58 s q. Case LSS Doc Filed 06/15/16 Page 48 of 97 SECTION Taking. (a) In the event of condemnation by eminent domain or similar law, including a sale in lieu thereof to an authority or other entity having the power of eminent domain (a "Taking"), of all or any portion of the Shopping Center, which (i) results in a taking of (A) any part of the Premises or twenty five (25%) percent or more of the Common Area, or (B) reduces the Parking Ratio below 4.3 spaces per one thousand (1,000) square feet (but only if Landlord has not completed a parking deck in the area so designated on Exhibit A to compensate for such reduction except as hereinafter provided), (ii) materially adversely affects ingress or egress to the Premises, or (iii) prohibits Tenant's use of the Premises for a period in excess of sixty (60) days or inhibits Tenant's use of the Premises for a period in excess or one hundred eighty (180) days or (iv) reduces any parking in the "No Build Area" in excess of two percent (2%), except as hereinafter provided, then Tenant shall be entitled to reduce Minimum Rent by an amount determined by the percentage of the Premises affected by such Taking or may terminate this Lease by giving notice to Landlord not more than ninety (90) days after the date Tenant receives notice of said vesting. The foregoing to the contrary notwithstanding, Tenant shall not have the right to terminate this Lease if the Taking reduces the parking spaces to below 4.3 for each 1,000 square feet of leaseable ground floor area in the Shopping Center, or if parking spaces in the front row of the No Build Area parallel to and closest to State Highway Route 46 are taken in excess of two percent (2%), if Landlord constructs an employee parking deck in the area shown on Exhibit A which compensates for the parking spaces taken, provided that Landlord substantially completes (which shall be deemed to occur if more than ninety (90%) percent of the parking spaces are capable of being used) construction of the parking deck by the date ninety (90) days from the date the parking is affected, which shall be extended if Landlord is diligently proceeding with such work (except that there shall be no such work performed during the months of November and December but the parking deck must be substantially completed in any event within fourteen (14) months from the date the parking is affected). Tenant shall be entitled to a fifty (50%) percent Minimum Rent abatement between the vesting of title in the condemning authority and the date of substantial completion of the parking deck. (b) In the event of a Taking of more than fifty percent (50%) of the gross leaseable floor area of the Building, Landlord shall have the right, within thirty (30) days after such Taking, to terminate this Lease by notice to Tenant; provided, however, that such termination right shall be conditioned upon Landlord terminating all of the other leases for similarly situated space in the Building within a reasonable time after terminating this Lease if such leases permit Landlord to terminate such leases. Failure of Landlord to so terminate such other leases shall, at Tenant's option, render Landlord's termination of this Lease void and of no further force and effect. SECTION Restoration and Rent Adjustment. In the event of a Taking, if this Lease is not terminated by Tenant or Landlord pursuant to Section 13.01, then (a) Landlord, at its sole cost and expense, shall promptly restore the Shopping -23-

59 4. Case LSS Doc Filed 06/15/16 Page 49 of 97 Center as nearly as practicable to a complete unit of like quality and character as existed prior to the Taking and (b) if a portion of the Premises is Taken, then from and after the date on which title vests in the condemning authority, the Annual Minimum Rent and all additional rent and other charges payable hereunder shall be reduced in proportion to the area of the Premises taken. SECTION Vacating the Premises If this Lease is terminated pursuant to this Article XIE, then any Annual Minimum Rent and other charges paid in advance shall be refunded to Tenant. Tenant shall have the right to claim and recover from the condemning authority such compensation as may be separately awarded or recoverable by Tenant on account of any and all damage to Tenant's business by reason of the condemnation and for or on account of any cost or loss to which Tenant might be put in moving Tenant's Property, or for any other damages compensable separately to Tenant including the unamortized cost of Tenant's leasehold improvements in the Premises which shall be payable solely and exclusively to Tenant. ARTICLE 'ay ALTERATIONS AND MECHANICS' LIENS SECTION Tenant's Alteration Rights. Tenant shall have the right, at its own cost and expense, to make alterations to the Premises; provided, however, that (a) Tenant shall not make structural alterations to the Premises without Landlord's prior written consent, which consent, shall not unreasonably be withheld, conditioned or delayed and (b) such alterations shall be done lien-free and in good workmanlike manner using first-quality materials. Tenant's structural alterations shall not adversely affect the structural soundness of the Building. Tenant shall obtain all governmental permits required for any alterations and all alterations shall comply with law,. Tenant shall not be required to remove any alterations or restore the Premises to its original condition upon the termination of this Lease, at which time such alterations shall become the property of Landlord. Landlord agrees at no cost to Landlord to cooperate with Tenant in procuring all necessary permits for any alterations which Tenant is permitted to make. If Tenant makes any structural alterations to the Building, Tenant shall thereafter be responsible for the maintenance, repair and replacement of the altered structural portions of the Building. SECTION Mechanics' Liens. Tenant covenants that Tenant shall promptly discharge of record (by payment, bond, order of a court of competent jurisdiction or otherwise) any mechanic's lien filed against the Premises or all or any part of the Shopping Center for any work, labor, services or materials claimed to have been performed at, or furnished to, the Premises or the Shopping Center, for or on behalf of Tenant, or at the insistence of Tenant, or anyone acting for, through or under Tenant If Tenant shall fail to cause such lien to be discharged within thirty (30) days after Landlord shall demand in writing that Tenant remove same, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same by -24-

60 Case LSS Doc Filed 06/15/16 Page 50 of 97 paying the amount claimed to be due, by bonding or by any other proceeding deemed appropriate by Landlord, and the amount so paid by Landlord and/or all costs and expenses including reasonable attorney's fees incurred by Landlord in procuring the discharge of such lien shall be deemed to be additional rent hereunder payable immediately. Nothing in this Lease contained shall be construed as a consent on the part of the Landlord to subject Landlord's estate in the Premises to any lien or liability under any law relating to liens. ARTICLE XV SIGNS SECTION Mandatory Signs. Tenant has submitted and Landlord has approved a copy of its proposed storefront, façade and pylon elevations which are annexed hereto as Exhibit C. Tenant shall remove its signs upon termination of this Lease and repair any damage caused by the removal but not installation of Tenant's signs.. SECTION Optional Signs Tenant shall have the right to erect in or on the Premises any such signs as it may desire; provided, however, that (a) any permanent exterior sign shall be approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed and (b) all such signs conform to Landlord's sign criteria, so long as such criteria is uniformly enforced. Any such sign shall be of such height and other dimensions as Tenant shall determine and shall bear such legend or inscription as Tenant shall determine. SECTION ign Limitation. Landlord shall not, without Tenant's written consent, display or permit to be displayed any other advertising signs, billboards or posters in, on or about the Shopping Center except for signs identifying the Shopping Center and the tenants thereof. ARTICLE XVI TENANT'S PROPERTY SECTION Tenant 's Property. All of Tenant's movable trade. fixtures, ornate light fixtures, equipment, furniture, inventory and other property owned by Tenant and located at, on or in the Premises, including, without limitation, computer display and storage area showcases, partitions, mezzanine, shelving, wall cases and signs (collectively, "Tenant's Property"), shall remain the property of Tenant, exempt from the claims of Landlord or any mortgagee or ground lessor, without regard to the means by which or the persons by whom Tenant's Property is installed or attached. Tenant shall have the right at any time and from time to time to remove Tenant's Property, provided that if removal of any of Tenant's Property damages any part of the Premises, Tenant shall repair such damage. -25-

61 Case LSS Doc Filed 06/15/16 Page 51 of 97 ARTICLE XVII ASSIGNMENT AND SUBLETTING SECTION Tenant may assign this Lease and sublet the Premises in whole or in part for any retail use not prohibited by the terms of this Lease; provided, however, the Tenant and any guarantor shall remain liable under the terms of this Lease. SECTION Notwithstanding anything in Section 17.01, no assignment or sublease may be made or entered into if the proposed assignee's or sublessee's use or contemplated use of the Premises would violate the restricted uses listed on Exhibit E or the Leasing Restrictions imposed upon Landlord in Section ARTICLE XVIII DEFAULT SECTION Tenant's Default. (a) If Tenant defaults in the payment of any installment of Annual Minimum Rent or other charges payable hereunder by Tenant and such default is not cured within ten (10) days after receipt of notice from Landlord thereof or if Tenant defaults in the observance of any other material covenant or agreement herein contained and Tenant shall not, within thirty (30) days after receipt of notice thereof from Landlord, cure or commence to cure such default (it being intended in connection with a default not susceptible of being cured with due diligence within said thirty (30) day period that the time allowed Tenant within which to cure same shall be extended for such period as may be necessary to complete same with all due diligence) or if Tenant shall make an assignment of its property for the benefit of creditors, shall be judicially determined to be insolvent or shall be adjudged a bankrupt, then Landlord may, by giving notice to Tenant at any time thereafter during the continuance of such default, (i) terminate this Lease, without any right by Tenant to reinstate its rights by payment of Annual Minimum Rent or other amounts due or other performance of the terms and conditions hereof and upon such termination Tenant shall immediately surrender possession of the Premises to Landlord, and Landlord shall immediately become entitled to receive from Tenant, as liquidated, agreed final damages, an amount equal to the difference between the aggregate of all rentals reserved under this Lease for the balance of the Term, and the fair rental value of the Premises for that period, determined as of the date of such termination, or (ii) with or without terminating this Lease, as Landlord may elect, re-enter and repossess the Premises, or any part thereof; and lease them to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term; pro 'ded, however, that any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (A) Annual Minimum Rent, Percentage Rent, Tenant's Share of CAM Costs, Tenant's Share of Taxes, Tenant's Share of Landlord's Insurance Cost and other sums which would be payable hereunder by Tenant in the absence of such expiration, termination or repossession, less (B) the net -26-

62 Case LSS Doc Filed 06/15/16 Page 52 of 97 proceeds, if any, of any reletting effected for the account of Tenant after deducting from such proceeds all of Landlord's reasonable expenses in connection with such reletting (including, without limitation, all repossession costs, reasonable brokerage commissions, reasonable attorneys' fees and expenses, reasonable alteration costs and expenses of preparation for such reletting). If the Premises is at the time of default sublet or leased by Tenant to others, Landlord may, as Tenant's agent, collect rents due from any subtenant or other tenant and apply such rents to Annual Minimum Rent and other charges due hereunder. Such agency, being given for security, is hereby declared to be irrevocable. Any monthly deficiencies payable by Tenant shall be paid monthly on the date herein provided for the payment of Annual Minimum Rent Landlord may declare Annual Minimum Rent for the entire balance of the Term immediately due and payable as though such amount was payable in advance on the date the event of default occurred. Notwithstanding anything contained herein to the contrary, if Tenant shall file for protection pursuant to any applicable bankruptcy law but Tenant shall continue to operate the Premises and to pay all installments of Annual Minimum Rent and other charges payable hereunder by Tenant as and when the same become due and payable, then Tenant shall not be deemed to be in default pursuant to the terms of this Lease. after the lapse of all applicable grace periods, Landlord reasonably expends any money to cure a default by Tenant, then Tenant shall, on demand, pay Landlord the amount so paid by Landlord together with interest thereon at the rate of two percent (2%) per annum in excess of the so-called prime rate charged from time to time by Citibank, NA. or a comparable substitute if Citibank, NA. is no longer in existence (the "Default Rate"). Landlord shall also be entitled to all other rights and remedies available to Landlord at law or in equity; provided, however, that Landlord shall, in all instances; be required to mitigate damages. Landlord shall not be deemed in breach of its duty to mitigate if it gives priority to leasing its other vacant space in the Shopping Center. Landlord expressly waives all rights to any so-called "landlord's lien" or any similar statutory lien, granting Landlord a lien for the performance of any obligations of Tenant, on any fixtures, machinery, equipment, goods, wares, merchandise or other personal property, and, at the request of Tenant, Landlord shall promptly confirm such waiver by a writing in form satisfactory to Tenant (b) No expiration or termination of this Lease pursuant to subsection (a) above or by operation of law or otherwise (except as expressly provided herein), and no repossession of the Premises or any part thereof pursuant to subsection (a) above or otherwise shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination or repossession, and Landlord may, at its. option, sue for and collect rent and other charges due hereunder at any time as and when such charges accrue. (c) The parties hereby waive trial by jury in any action, proceeding or counterclaim brought by either of them against the other on any matters arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's -27- d

63 Case LSS Doc Filed 06/15/16 Page 53 of 97 use or occupancy of the Premises, and/or any claim of injury or damage. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future law if this Lease is terminated or Tenant is evicted or dispossessed by reason of violation by Tenant of any of the provisions of this Lease. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute. SECTION Landlord's Default. (a) If Landlord shall (i) default in the observance of any material covenant or agreement herein contained (including, without limitation, any covenants or obligations set forth in Articles IX, X, XI or xm or shall fail to pay insurance premiums or other charges payable by Landlord hereunder when the same become due and payable and Landlord does not cure such default within thirty (30) days after notice thereof by Tenant (it being intended in connection with a default not susceptible of being cured with due diligence within said thirty (30) day period that the time allowed Landlord within which to cure same shall be =tended for such period as may be necessary to complete same with all due diligence), or (ii) fail to pay when due any taxes, ground rent or any other charge or assessment, the lien of which is prior to the lien of this Lease, then Tenant may, in addition to all other rights and remedies available to Tenant at law and in equity, upon fifteen (15) days prior notice to Landlord (if Landlord still does not undertake to cure such default), cure such default on behalf of and at the expense of Landlord and do all necessary work and make all necessary payments in connection therewith to the extent necessary in Tenant's discretion, reasonably exercised, to protect Tenant's leasehold interest and continued use and occupancy of the Premises. Landlord shall, on demand, pay Tenant the amount so paid by Tenant together with interest thereon at the Default Rate. (b) Provided the holder of a properly recorded deed of trust or mortgage shall have notified Tenant in writing that it is the holder of such lien on the Shopping Center and shall so request, Tenant shall (with respect to any obligations on any deed of trust, mortgage or encumbrance affecting title to the Shopping Center and to which this Lease shall be subordinate), if Tenant shall notify Landlord to correct any default, give a similar notice to such holder and such holder shall be granted fifteen (15) days after receipt thereof to correct or remedy such default. ARTICLE )01( SUBORDINATION, TRANSFER OF INTEREST SECTION Recognition Agreement. Landlord shall, within thirty (30) days after the execution and delivery of this Lease deliver and provide a recognition agreement from any mortgagee whose mortgage lien on the Commencement Date was prior to the interest created by this Lease and a recognition agreement from the fee owner -28-

64 Case LSS Doc Filed 06/15/16 Page 54 of 97 and the landlord under each lease that is senior to this Lease, if any. Any recognition agreement which is provided to Tenant shall be in recordable form, shall provide that this Lease and all rights of Tenant hereunder shall not be disturbed except for a cause which would permit Landlord to disturb the same hereunder, and shall otherwise be reasonably satisfactory to Tenant and mortgagee, and to Tenant and the fee owner (and the recognition agreement with fee owner shall be in the form of attached Exhibit G), as the. case may be. Tenant agrees that a recognition agreement from the mortgagee materially in the form of attached Exhibit F (but which identifies the correct parties) shall be deemed reasonably satisfactory to Tenant. In the event that Landlord shall fail to deliver the recognition agreements within the aforesaid thirty (30) day period and if the same shall not be cured within 60 days after receipt of notice from Tenant given after the expiration of the aforesaid thirty (30) day period, as its sole and exclusive remedy Tenant shall have the right, after the expiration of that 60 day period, to give no less than thirty (30) days notice to Landlord terminating this Lease if the termination notice is given prior to the delivery of the recognition agreements. SECTION Subordination. Tenant agrees that deeds of trust or mortgages securing sums of money may subsequently be executed and delivered by Landlord, and that Tenant will, upon request, subordinate this Lease to any such deed of trust or mortgage on the express condition that the lender, trustee or mortgagee shall enter into an agreement with Tenant in substance and form reasonably acceptable to Tenant providing that (a) the use and occupancy by Tenant of the Premises shall not be disturbed and all of Tenant' s other rights under this Lease shall be recognized unless and until Tenant shall breach any material provision hereof and this Lease or Tenant's right to possession hereunder shall have been terminated in accordance with the provisions of this Lease; (b) in the event of any foreclosure or other suit, public or private sale, or in the event of a sale in lieu of foreclosure, the lender, trustee or mortgagee will hold or offer and sell the property covered thereby subject to all of the terms and conditions of this Lease; and (c) subject to the terms of such deed of trust or mortgage, fire insurance proceeds and condemnation awards will be applied towards restoration of the Shopping Center in any case where Landlord is required to repair or restore same pursuant to this Lease. Tenant agrees to attom to such lender, trustee or mortgagee or successor to Landlord's interest at a foreclosure sale. SECTION Transfer of Interest. Landlord shall provide Tenant with notice upon or immediately after any sale or transfer of Landlord's interest in the Shopping Center. Landlord shall require the buyer or transferee to assume in writing all of the obligations of Landlord under this Lease subject to limitation of liability contained in Section Notwithstanding Section 23.14, Landlord shall continue to remain liable for all accrued liability, if any, up to the date of such sale or transfer. Notwithstanding anything contained herein to the contrary, Landlord shall continue to remain liable hereunder after such sale or transfer unless the buyer or transferee has expressly assumed in writing all of the obligations of Landlord under this Lease. ipole.0" -29-

65 Case LSS Doc Filed 06/15/16 Page 55 of 97 SECTION Tenant Estoppel Certificates. Tenant agrees, within thirty (30) days of Landlord's request, to execute and deliver to Landlord or any mortgagee or trustee, on a form prepared by or on behalf of the party so requesting, an estoppel certificate (a) ratifying the Lease and confirming that there are no modifications or amendments to the Lease, except as may be stated in the certificate, (b) confirming the commencement and expiration dates of the Lease, (c) certifying to the best of Tenant's knowledge and belief that the Landlord is not in default under the Lease, and that there are no offsets or "defenses to enforcement of the Lease, except as may be stated in the certificate, and (d) stating the date through which Annual Minimum Rent and other charges payable by Tenant have been paid. SECTION Landlord Estoppel Certificates. Landlord agrees, within thirty (30) days of Tenant's request, to execute and deliver to Tenant or any assignee or transferee, on a form prepared by or on behalf of the party so requesting, an estoppel certificate (a) ratifying the Lease and confirming that there are no modifications or amendments to the Lease, except as may be stated in the certificate, (b) confirming the commencement and expiration dates of the Lease, (c) certifying to the best of Landlord's knowledge and belief that Tenant is not in default under the Lease, and that there are no offsets or defenses to enforcement of the Lease, except as may be stated in the certificate, and (d) stating the date through which Annual Minimum Rent and other charges payable by Tenant have been paid. ARTICLE XX LANDLORD'S REPRESENTATIONS AND WARRANTIES SECTION Quiet Enjoyment. Landlord covenants and agrees that Tenant, during the term hereof, shall freely, peacefully, and quietly occupy and enjoy the use and possession of the Premises without disturbance, molestation, hindrance or ejectment of any kind whatsoever as a result of any act or inaction on the part of Landlord or any persons claiming through Landlord SECTION Representations and Warranties. (a) Landlord represents, warrants, covenants and agrees that Landlord leases the Shopping Center from Fidelity Syndications L.L.C. which owns the fee simple title to the Shopping Center; that the Shopping Center as of the Execution Date, is subject to the lien of a mortgage made in favor of American National Insurance Company ("Mortgagee"); and Landlord has the full power, right and authority to make this Lease for the term hereof without the consent, joinder or approval of any other party except Fidelity Syndications, L.L.C., whose consent shall be obtained by Landlord, and Mortgagee, whose consent Landlord agrees to promptly request and diligently pursue. (b) Landlord represents, warrants, covenants and agrees that the number of paved full-size parking spaces in accordance with Exhibit A reasonably allocated to -30-

66 Case LSS Doc Filed 06/15/16 Page 56 of 97 the Shopping Center shall be maintained at the ratio listed in Section 1.01(0) and the number of spaces contained in the area shown en ad IitA as the "No Build Area" shall always have at least ninety-eight percent (98%) of the number of spaces shown on the Site Plan. As to Landlord's covenant not to change the parking ratio, (A) Landlord shall not be deemed to be in violation of this covenant if in connection with a Taking (as defined in Section 13.01), (i) the ratio of full size parking spaces for each one thousand (1,000) square feet of leaseable ground floor area in the Shopping Center is not reduced below 4.3 or (ii) Landlord replaces the parking spaces which have been taken and result in there being less than 4.3 parking spaces per one thousand (1,000) square.feet of leaseable ground floor area with at least thosame number of parking spaces in a parking deck as provided in Section 13.01; and (B) Landlord shall also not be deemed to be in violation of this covenant if in connection with a Taking, (i) the number of spaces in the No Build Area is not reduced below ninety-eight (98%) of the number of spaces shown on the Site Plan, or (ii) parking spaces in the front row of the No Build Area parallel to and closest to State Highway Route 46 have been taken resulting in there being less than ninety-eight (98%) percent of the number of spaces contained in the No Build Area shown on the Site Plan and the spaces in the front row'of the No Build Area parallel to and closest to State Highway Route 46 taken which result in there being less than ninetyeight (98%) percent of the number of spaces in the No Build Area are replaced with at least the same number of parking spaces in a parking deck to be constructed by Landlord as provided in Section (c) Landlord represents, warrants, covenants and agrees that it will not erect any building or other structures, including, without limitation, kiosks, in the No Build Area and that all buildings constructed where permitted in the Site Plan or pursuant to Section 2.01, shall be used solely for retail sales or services. Tenant shall have the right to terminate this Lease upon thirty (30) days notice to Landlord if there is a breach of this representation, warranty, covenant and agreement and such breach is not cured within thirty (30) days of such notice. ARTICLE XXI HOLDING OVER SECTION Holding Over. If Tenant remains in possession of the Premises after the expiration of the Term without having duly exercised its right, if any, to extend or further extend the Term, such continuing possession shall create a month-tomonth tenancy and, following a thirty (30) day notice from Landlord to Tenant, rental shall increase to twice the monthly installments of Annual Minimum Rent plus Additional Rent payable under the Lease, and such tenancy may be terminated at the end of any month thereafter by either party by giving at least thirty (30) days notice thereof to the other party. -31-

67 Case LSS Doc Filed 06/15/16 Page 57 of 97.3 ARTICLE 3001 NOTICE SECTION Where and How Given. All notices or demands which either party hereto either is required to or may desire to serve upon the other shall be in.. writing and shall be sufficiently served upon such, other party, by (a) mailing a copy thereof by certified or registered mail, postage prepaid, returnseceipt requested,. addressed to the party to whom the notice is directed at the "Notice Address" of such party or (b) by a reliable overnight courier (such as Federal Express) ; all charges prepaid,, furnishing a receipt upon delivery, and addressed to the party to whom the notice is. addressed at the Notice Address of the part. The Notice Address of each.party is: a) Landlord: do LRF Slater Companies, Inc. 301 South Livingston Avenue Livingston, NJ Attention: Mr. Robert Slater (b) Tenant: with a copy to: Bob's Stores Corp. 160 Corporate Court Meriden, CT Mn: Chief Financial Officer Klehr Harrison Harvey Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA Attention: Stephan L. Cutler, Esq. The addresses to which notices and demands shall be delivered or sent may be changed from time to time by notice served, as hereinbefore provided, by either party upon the other party. SECTION When Given. Unless otherwise provided for herein, notice shall be deemed to have been given or served at the earlier of the date received, refused or returned as undeliverable; provided, however, that should such notice pertain to the change of address of either of the parties hereto, such notice shall be deemed to have been given or served upon receipt thereof by the party to whom such notice is given. ARTICLE XXIII MISCELLANEOUS SECTION Construction. The language in all parts of this Lease shall in all cases be construed according to its fair meaning and not strictly for or against either -32-

68 Case LSS Doc Filed 06/15/16 Page 58 of 97 Landlord or Tenant, and the construction of this Lease and any of its various provisions shall be unaffected by any argument or claim, whether or not justified, that it has been prepared, wholly or in substantial part, by or on behalf of Tenant or Landlord. SECTION Section Headings. The section headings in this Lease are for convenience only and do not in any way limit or simplify the terms and provisions of this Lease, nor should they be used to determine the intent of the parties. SECTION Partial Invalidity. If any term, covenant, condition or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then the remainder of this Lease or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant, condition and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. SECTION Waiver. The failure of either party to seek redress for violation of or to insist upon strict performance of, any term, covenant or condition contained in this Lease shall not prevent a similar subsequent act from constituting a default under this Lease. SECTION Governing Law. This Lease shall be governed and construed in accordance with the laws of the State wherein the Premises are located. SECTION Successors and Assigns. This Lease shall inure to the benefit of and be binding upon the successors and assigns of Landlord and the permitted successors and assigns of Tenant. SECTION No Broker. Landlord and Tenant represent to each other that no broker or person is entitled to any commission by reason of the negotiation and execution of this Lease other than RCS Real Estate Advisors (the "Broker"), and Tenant agrees that Tenant shall be solely responsible for the fees and commissions of the Broker. Landlord and Tenant agree to indemnify, defend and hold each other harmless against any and all claims by any other person for brokerage commissions or fees arising out of any conversation, negotiations or other dealings held by the other party with any other broker regarding this Lease. SECTION Memorandum of Lease. The parties will, at any time at the request of either one, promptly execute duplicate originals of an instrument, in recordable form, which will constitute a memorandum of lease setting forth a description of the Premises, the term of this Lease and any other portions hereof, except the rental provisions (unless required by statute), as either party may request or may be required by law. -33-

69 Case LSS Doc Filed 06/15/16 Page 59 of 97 SECTION 23.09: Entire Agreement This instrument contains the entire and only agreement between the parties and no oral statements or representations or written matter not contained in this instrument shall have any force or effect. This Lease shall not be amended or modified in any way except by a writing executed by both parties. SECTION Relationship of Parties. The relationship between the parties hereto is solely that of landlord and tenant and nothing in this Lease shall be construed as creating a partnership or joint venture between the parties hereto, it being the express intent of Landlord and Tenant that the business of Tenant on the Premises and elsewhere, and the good will thereof, shall be and remain the sole property of Tenant The submission of this Lease for examination does not constitute a reservation of or agreement to lease the Premises, and this Lease shall become effective and binding only upon proper execution hereof by Landlord and Tenant SECTION Restriction. During the Term, Landlord represents, warrants, covenants, and agrees that, within the Shopping Center, no premises (other than the Premises) shall be Leased, rented, used or occupied for the operation of a store which uses more than one thousand (1,000) square feet of sale and display area primarily for the sale of jeans, denim pants, dungarees or similar type merchandise (collectively "Jeans"), casual slacks and pants, athletic footwear or casual apparel or athletic apparel (hereinafter either all individually or collectively shall be deemed a "Competing Use") without Tenant's prior written consent, which may be withheld or granted at Tenant's sole discretion. The foregoing restrictions shall not be applicable (i) if Tenant is not using the Premises for any of the Competing Uses; (ii) to space in the Shopping Center (as long as such space is outside of Landlord's control to enforce the leasing restrictions contained herein) presently leased to Toys "R" Us and Babies "R" Us, or to the Vacant Space about to be leased by Landlord to The TJX Companies, Inc.(but only during the term of such lease); (iii) to existing tenants of the Shopping Center (see list in item 1 of attached Exhibit E); (iv) to a Ti. Maxx store as it is typically operated in ninety (90%) percent of its stores; or (v) if such restriction is expressly adjudged by a court of competent jurisdiction to be in-violation of any anti-trust law. If any tenant in the Shopping Center other than the above referenced engages in a Competing Uses, Tenant shall be entitled to any of the following non-exclusive remedies: (a) Tenant may terminate this Lease upon thirty (30) days notice to Landlord, (b) after fifteen (15) days, Tenant may reduce its Annual Minimum Rent and Percentage Rent obligation to fifty percent (50%) of the Annual Minimum Rent and Percentage Rent payable for the prior Lease Year, or (c) with respect to those tenants not having the right to engage in a Competing Use as of the date of this Lease, Tenant may seek injunctive relief to enjoin or restrain such tenant from engaging in a Competing Use. Tenant shall not terminate this Lease unless and until it gives Landlord notice of a violation and Landlord shall have a period of sixty (60) days to correct such violation. If a tenant's lease restricts such tenant from engaging in a Competing Use and such tenant nevertheless engages in a Competing Use in breach of its lease, and Landlord institutes legal action to abate such violation, Tenant shall not -34-

70 Case LSS Doc Filed 06/15/16 Page 60 of 97 terminate this Lease during the pendency of the litigation provided Landlord is diligently proceeding with the litigation. Tenant shall be entitled to abate Rent throughout the duration of and as long as the violation of the restriction continues to exist. Tenant agrees that it shall not exercise any of the foregoing remedies if the lease with the tenant who engages in the Competing Use expressly restricts said Tenant from engaging in the Competing Use and Landlord promptly institutes legal action to enjoin the violation and diligently proceeds with the litigation. Landlord agrees that Tenant shall have thd right to pursue legal action against such tenant, and that Landlord shall reimburse Tenant for the reasonable legal expenses and other costs of such legal action. SECTION Force Majeure. If either party hereto shall be delayed or hindered in or prevented from the performance of any works or acts required under this Lease by reason of acts of god, materially adverse weather conditions, damage, destruction, condemnation, casualty, strikes, lockouts, labor troubles, failure of power, restrictive governmental laws or regulations including building moratoriums, riots, insurrection, war or other reasons which result in a delay in performance beyond the reasonable control of the party delayed in performing works, including construction, or doing acts required under the terms of this Lease, then performance of such works or such acts shall be excused for the period of the delay, and the period of the performance of any such works or acts shall be extended for a period equivalent to the period of such delay, except as otherwise specifically provided herein to the contrary. The provisions of this Section shall not (a) be applicable to delays resulting from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds, or (b) be applicable to the payment of Annual Minimum Rent, additional rent or other sums to be paid by Tenant to Landlord except as otherwise specifically provided in this Lease. SECTION Satellite Dish and Equipment. Notwithstanding anything to the contrary in this Lease, Landlord hereby agrees that at any time during the Term, Tenant shall have the right to install on the Building, a satellite communications dish and related equipment. If Tenant shall install such equipment Tenant shall do so at its own cost and expense and in accordance with all applicable laws, rules and regulations. Additionally, Tenant shall defend, indemnify and hold Landlord harmless from and against any claims, costs or expenses incurred by Landlord as a result of such installation by Tenant. If Tenant shall install such equipment, Tenant shall be responsible for the maintenance and repair thereof, at Tenant's sole cost and expense, and for maintenance and repair of the portion of the Building to which the satellite communications dish and related equipment is installed. At the expiration or other termination of the Lease said equipment shall remain the property of Tenant, and may be removed by Tenant, provided that Tenant shall repair any and all damage caused by such removal. SECTION Limitation of Liability. If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed, and -35- 'Tr

71 Case LSS Doc Filed 06/15/16 Page 61 of 97 as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied solely out of the proceeds of sale received upon execution of such judgment and levy thereon against the right, title and interest of Landlord in the buildings and improvements from time to time on the Shopping Center and its underlying realty, provided, however, that neither Landlord nor any partner, joint venturer, stockholder, director, member or manager of Landlord shall be personally liable for any deficiency. The provision contained in the preceding sentence is not intended to, and shall not, (i) limit any right that Tenant might otherwise have to obtain injunctive relief or specific performance of Landlord's covenants under this Lease against Landlord or Landlord's successors in interest, or with respect to any other action or remedy. (not involving the personal liability of Landlord or anyone claiming under Landlord in excess of the limits of personal liability specified in the preceding sentence) which may be accorded Tenant by Law or under the terms of this Lease, (ii) excuse any default or other breach on Landlord's part under this Lease, or (iii) render Tenant liable for the obligations or other liabilities of Landlord to others. SECTION Intentionally Omitted. SECTION Harmonious Labor. Tenant's work in the Premises shall be conducted in harmony with work being performed by Landlord and its contractors in the Shopping Center is such manner as not to delay or interfere with Landlord in the performance of its work in the Shopping Center. SECTION Attorney's Fees. Each party shall on demand pay all reasonable attorney's fees, other professional fees and other reasonable costs and expenses incurred by the other party in enforcing the other party's compliance with the provisions of this Lease if the enforcing party is the prevailing party (as hereinafter defined). A party shall be considered the "prevailing party" if: (a) it initiated the arbitration, litigation or other enforcement action and substantially obtains the relief it sought, either through a judgment or the losing party's voluntary action before the entry of a judgment; (b) the other party withdraws its action or ceases its enforcement efforts without substantially obtaining the relief it sought; or (c) it did not initiate the arbitration or litigation and judgment is entered for either party, but without substantially granting the relief sought. SECTION Mortgagee Approval. This Lease shall not be or become effective unless and until it has been approved in writing by the Mortgagee of the Shopping Center. SECTION Subject to Guarantor. This Lease shall not be or become effective unless and until Guarantor has consented to the terms hereof and executed and delivered to Landlord an Amended and Restated Guaranty satisfactory to Landlord. [Signature Page Follows] -36-

72 Case LSS Doc Filed 06/15/16 Page 62 of 97 Signature Page to Lease Agreement IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly executed and delivered in their respective names as of the date first above written. LANDLORD: FIDELITY TOTOWA ASSOCIATES, L.L.C. By: N a-r Title: anaj ee-- TENANT: BOB'S STORES CORP. By: Ti..1-itvw Sem; cf0 4

73 Case LSS Doc Filed 06/15/16 Page 63 of , liaav Pllinitoti/ffequiaWuRil MS V Xa

74 A JUL Case LSS Doc Filed 06/15/16 Page 64 of 97 16:22 SLATER COMPANIES E161 P.01/81 SLATER COMPFNIES P.02 N.. - i 4 min. P:82 TOTAL P.ea

75 Case LSS Doc Filed 06/15/16 Page 65 of 97 liopap3saa pan a manna L,1

76 Case LSS Doc Filed 06/15/16 Page 66 of 97 EXHIBIT )9 LEGAL DESCRIPTION 1 AR that certain Lot, piece or parcel dimwit with the buildings and improvemeets thereon erected, situate, lying and being ir theatrugiroktotows, County of Passaic, State of New Ismer BEGINNING at a point in the southerly sideline of Purim Street said point being the northerb' comet of land ibmterly awned by Roma Jablonski in Deed of oenveyance recorded in Deed Book V-74 Page IOC; thence 1) Along the said southwesterly sideline offurier Street on a come to the right having a rafts of lbmibr an are distance of feet to a poke thence 2) Still *along the southwesterly sideline of Furier Street South 70 degrees, 10 minutes, 04 seconds Bast, feet to a poin4 thence 3) Still along the southwesterly sideline of Aer Sheet South 70 degrees, 22 minutes, 36 seconds But, feet to poiat thence South 19 degree., 37 minutes, 24 seconds West, fbet thanes 5) North 41 degrees, 29 minutes, 26 seconds West, ot thence 6) South SO degrees, 25 minutes West, feet to a point in the ricitherly sideline of State Highway Rolm No. 46; thence 7) The noilheasteely!idolise of State Highway Route No. 46 North 78 degrees, 34 minutes, 49 seacmds West, fete to a point teary.; thence I) Along the said northeastedy line of said Highway Remp 113" on a curve to the sight having a radii, of feet for an ere &tame of to a point in the northeasterly line of the Ramp "4" of Stele Highway Route No. 46;.thence. 9) South 59 degrees,.32 minutes, 57.3 seconds West, 8.25 feet to a point &curve; thence 10) Along said northeasterly line of said Ramp "B" on a curve to the right having a iodide of feet for an arc distance of to a poll* in the northeasterly line of the Ramp "B" of Stec Highway Route No..46; thence 11) Along said northeasterly line of said map "B" of State Highway Route No. 46 North 23 demos, 44 minutes, 41.7 Seconds West, feet to a point of cures; theme 4- Q7

77 Case LSS Doc Filed 06/15/16 Page 67 of 97 12) Alungille etid noidoutorly line of saickramen" State Highway Route No. 46 on a having a radius of,3217s hot hr an verve to ihe left we Edw. of hst to a point of tangency; those 13) Stiltaionitho northouhely sideline champ V' hiving aye"' of hot for thug Highway Route No 46 one curve to the an aro dietanos of het to a point in the northeasterly line of the right Ramp "II" of State Highway Route No. 46; thence, 14) North 67 dogmas, 17 minutes monde East, 8.25, hat to a Point in the noithwestedy sideline of lifted; theme 15) thet Along ftir 66 northwesterly sideline oftenniank Road on a curve to the right having a radius of 50.00, an aln distance of42.85 het to a point ottani/pat thence 16). ftet Along.** fe is aro acrthecseterly &mob sideline oftiloni(ak Road one curve to the dght having a radius of of 1941 feet to a point oftairgency; thence 17) Monies northwestedy ddeline ofhlinnhink Road No 42 degrees, 10 minim iba4 thence ' 03 seconds East,, II) South 41 degrees, 03 WTI:, 34 sacred; Eut, ben thence 19) North 45 demos, 29 mitt!, 52 seconds But, feet thence 20) Noah 36 dogmas, 37 naiades; 50 seconds East het tea point in the southweetsdy Affable of Fodor Sheet said point being the pobt and phoe ofbeoinning. The above dbisdption b drawn in. Nowsuber 17, warden. with a survey made by Cigar& Roller humporated doted Together with the benefits of Reciprocal Parking Agreement In Dud Bock M91 Page 439. myzx FOIRINPOBATA. TION ONLY: Borough of Bob; WO Totowo 1,3,3%40,5,6 sod 2, Comity trpostralth Mock 174, Tex Map otthe '

78 Case LSS Doc Filed 06/15/16 Page 68 of 97 EXHIBIT C pit/

79 Case LSS Doc Filed 06/15/16 Page 69 of 97 SSO'SSOd MO= mosa, WINVWNVIIINK NWMINI CCM VOC.X014 LEVIS SS, OS SUM I II dfialtfa iv'mal WAN NOle N01.14 gaajo -r -P # /49A V NIVS 011 CL SNOW '4.0IXM SI OV NPOPOti 0.1 CIN916 %Mika.0411 Gni WWI UMW SOU IMPON Itrat 4..._... IN _,.." ain widea autim SUMO OZOI DCaLatiMPA WY;.W.Arilg krtu4u1onamiwa74.1.

80 Case LSS Doc Filed 06/15/16 Page 70 of 97 EXHIBIT E Restricted Uses 1. Current uses of the following tenants of the Shopping Center: Toys "R" Us Babies "R" Us Apollo Card and Gift and Flag (Apollo Cards Co., Inc.) Q.S.H. Totowa Mufflers, Inc. d/b/a Midas Mufflers Apple Food Service of Totowa Citigroup and its Affiliates Harmon of Totowa Linwood Pizza United Retail Office Depot 2. Office Depot and similar stores. 3. Media Play, and similar stores. 4. Computer City, and similar stores. 5. Burlington Coat (subject to Section 23.11). 6. Auto supplies and service. 7. Bookstore. 8. Bank or other financial services business. 9. Camera store. 10. Catalogue show room. 11. Craft and hobby store. 12. Drug store. 13. Fabrics, drapery and furniture. 14. Supermarket or food specialty store. 15. Florist. 16. Carpet and other floor-covering store. 17. Health and beauty aids store. 18. Home improvements store. 19. Jewelry store. 20. Luggage store.

81 Case LSS Doc Filed 06/15/16 Page 71 of Optical store. 22. Paint and wall covering store. 23. Party goods store. 24. Pet store. 25. Sporting goods. 26. Records, tapes, disks and musical instruments. 27. Consumer electronics store. 28. Warehouse Club and similar stores. 29. Hardware, plumbing, electrical supplies store. 30. (i) Not more than 1,000 square feet for retail sale of office supplies including office furniture; office fixtures; office machines and equipment; computers; computer hardware, software and accessories; are supplies; architectural supplies; engineering supplies; photo-copying services; facsimile services or instant print shop services; or (ii) be primarily engage in the sale, leasing, distribution or display of the items set forth in (i) above. Landlord and Tenant acknowledge and agree that none of the Restricted Uses contained in this Exhibit E shall in any way be deemed to inhibit or impair the operation of the premises for a "Bob's store" as those stores currently operate and as those stores may expand in concept and operate in a majority of their stores in the future.

82 - Case LSS Doc Filed 06/15/16 Page 72 of 97 Vtacnims litworld ppm sofinv oflungetni oliolipoto istkonicug ;cop nopinald lootirolorio uto# mod* todoren MIR; am Senn Nowt Amino litquingd moons sots so dooduwo dosmosg spop 'gown won Iropoloono wo *MANS %WWII awn saanuntoovolsospni Bowleg now mow nag s ". _ ARE 110; ' Pada et w gml; xrinwo with: vain ACq map% as wag pup pima= onas q3ull asiion prom 01P WI& Ind ogs uj 000ds PM= 00V V= 1I A /01001 (0) Pd100000dI SqUO igloptavaal# Mew 01 uoinjipdaoleanc00 011m Mu e os Apo *pm Sappy ntoodsos qqa)(pay us outsddo son sop uosyding prep rig *Ida 1110 =PP& Kt P02 en 02 Val% 111% AM Jo 0000id Lae al npunasag; pomp onstand quo ovum so mows 1 so Gym Romp pastablino uv d DITYMI110 JO 033inge00 Viu Mat 11 IMOD SUOIME a 111 (MUM Suppe mg riga 0= :040 Tmodid MR= 0101 PAW ali000,110i1j I JO S WWI mow *via 100' (APAR Minn is P ) meal =WV pus (00003 suld6011s =PP ) WA mai BMWs J01,d /0x001 JO WainICI3 1/10,11K bt OP.* *Ma ev 01 Am 110) x0 TM 01 Pad= Wm (q) '(ruy uo as Aida sou pop yowling am mg) guts ppgliesoma Suldcrogg uowod An Jo on Pp cis wpm so ;paid Wrap Stridden's inp so norm qqm irainng ', Sampte =pun yopqmpdso ;won sq ppggisat os q8ji ots nog si won otp c tto nag.f-yellr mou V opq sort VI pa mu q (e) inn am Sump pp mai rue IMINROA03 rowan 'S slime-go "pue no so; izqd IN P 0/4,01000 eaq Mon vegsdninnori I uoptlizolow.isoquatd -no 103 altanallq Dump* sown man num itv sa Pr Jim huldtksis d 'Jospo ou poppoid pipappg Onto 'Ism undo Pat UMW Pawl ety/ F0 Did AK= Isestiwkit noplyosaul Loimizegd I sawn %mos snip loam oppomm damp pp itinvog "US MIR V WIWI WIN duo jo &undo= aon sip wind so Won oqs tq was don p puow JO *lam n pompom Snag moo n 'pp* tio UI ondt duo onq too Ina q loom room lug ppy inn p uzza gip pogliarms pads Pie yonaosoo pavan Pit 049 osinmeg puo sett; elpufwafopzeo.15utlxis0 *an ammo; mu sumo TIC gu;.14soz /ma Angina '1 r-ovf9 /411g ,/ SRI awning

83 Case LSS Doc Filed 06/15/16 Page 73 of ys 12r 6.. Lessor agrees that the Acquired Parcel gall be used tor commercial use, provided, however, that the Acquired Parcel, or any part thereof, gall :not be utilized as a test teed restaurant, bowling alley, movie theater, or for the sale of toys, games, peels, recreational equip. meat, sporting feeds, infants' or children's shoes, infants' or childnm's accesserfee, or infants' or children's furniture. j ern-127'p:- 7.. Woe Leodord imd PTA melt eree thet Mimes dad have the dile Is eahno he *lid mar Ms AIM, of this flablesa. As used heals s addles,wie Use doll mesa hei as WI es is adios apply *me sit Nosed to be erodes is the Demised Audios he a 000doicinapodod of six (6). roads (mcogglios wig pedals dada width tamoddths at!ideation wash is being 000duesed with doe dateline. Wee Leland sod PTA ihgroot pemdt ray Ooceepost of*. fibpides Center, odor thee Sublessee so (I) me seem thin one th000nd 0,000) seam het &dem moo (in do piperte) he the ads, hob& defamibs! m deploy of Mho &applies, holodep odes heohne, ado fixates, seen =abbe: sad oripmentlelioteeeden osorstas oempase henhose, mama end soesesodes, sopplies esthiteented sopplio, sosbeedes supplies, photocopy* sovieen dodoes acnices, or Imam* One ahop earekeie es (10 bo pelmedby sopeed in do Nib, Wein& dlodbotten ordkpley of of item est feedik 0) ACM No woe in erred= of say red prepedy artiatuatbe at Ighla five looked het WO" Odle facespkg Center width is now or low be adopeadly sophed bybfejor Loden! or FM (or a MAW godly or ablate of Igoe Landlool sod PTA), did be lewd at oecopied by or conveyed to toy odor posy fa do Sublease% Eddies Tholudio Um. Prom thy das. hese4 haeffer Ladlonf and PTA hanky agree to algae by and "ohne the Iliktios Ezelosive Use in the Shopping Caton As sod hods the own Mocorme ad mom orypemon, dm% eespoodes, essooledan or ether legal sodty gadded to oecopy oration as podium of Skull Cato as as owner a undo sod poommt to a boos Me hose or Mbabane fkle amormoot withhhjat Landlord or PTA, ar.dteie socommes.., Me hostoing melons. doll not be applicable is touts of the diming 1;enter odellop yds" to May 1;1995, which see Sevemest of New Jassy, loom livelyee Mt ChdkeY Cap, Apollo Cards, loa. Mood despite odds, he, Midas Malan Linton 'Tr Thiess imd Bob's and their ropeothe subtenants old suirog The sentence above marked with the asterisk was applicable only to the exclusive use set forth in paragraph 7 immediately above it. Notwithstanding the fact that the sentence marked with the asterisk states that ft shall not be applicable to the tenants referred to therein which include Tenant and its subtenants and assigns, Tenant agrees that all references in this Lease to Exhibit E- I shall include the exclusive use set forth in paragraph 7 as if the sentence marked with an asterisk was not on this Exhibit E-1 or in the lease in which the exclusive use provision set forth in paragraph? above appears. s, c 9

84 Case LSS Doc Filed 06/15/16 Page 74 of 97 6/194-7" if ): ( I. 1116): ; WI! 00 1 : 1 0. C.7-4 : MS AGREEMENT (this 'Agreement"), made as of the lit day of June, 1995, among TOTOWA LINENS 'N THINGS, INC., a New Jersey corporation, having an address do Melville Corporation, One Tbadl Road, Rye, New York ('Tenant"); AMERICAN NATIONAL INSURANCE COMPANY, having an address at One Moody Plaza, Galveston, Maas ("Mortgagee"), and PENIIITY TOTOWA ASSOCIATES, L.L.C., a New Jersey limited liability company, having an address do OP Slater Companies, Inc., 301 South Livingston Avenue, Livingston, New Jersey ("Landlord"). MENESSIZOI: WHEREAS, Mortgagee is the holder of a certain mortgage (the "Mortgage"), executed and delivered by Landlord and 'recorded in the Office of the Register of Passaic County, New Jersey, which Mortgage moires a certain note of even date With the Mortgage made by Landlord to Mortgagee in the principal sum of $17,000, (the "Note"), and which Mortgage constitutes a lien on a certain (Wee and interest in and to the premises described on Exhibit A attached hereto and made a part hereof (the 'Mortgaged Promisee); and WHEREAS, Tenant has entered into a certain lease, dated Match 29, 1995 (the' 'Lease"), with landlord demising space in the building Constructed on the Mortgaged Premises (the "Premises"); and WHEREAS, Mortgagee has agreed to recognize the status of Tenant under the Lease and Tenant has agreed to attom to Mortgagee, upon and subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, in considered= or the premises and mutual covenants hereinafter contained, ancrfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto mutually coverlets and agree as follows: I. The Lease and any extensions, renewals, replacements or modifications made after the date hereof, and all of the right, title and interest of Tenant in and to the Premises are and shall be subject' and subordinate to the Mortgage and to all of the tons,. covenants ancleonditions eontained therein, and to any renewals, modifications, replacements, considerations and extensions thereof Provided that there is then no Coithraing default under the Lease and no event has occurred and no maim exists which with the giving of any required notice or the passage of time, or both, would entitle Landlord to terminate the Lease under its terms or 'would cause without any further action by landlord, the terminadon of the Lease, or would entitle Landlord to dispossess Dant from the hemiscii, Mortgagee epees that (a) in the event of foreclosure of the Mortgage, Tenant shall not be =Med as a party in any action or proceeding to enforce the Mortgage, (b) in the event Mortgagee comes into possession or acquires title to the Premises as a result of the enforcement or foreclosure of the Mortgage, or as a result of any a.

85 Case LSS Doc Filed 06/15/16 Page 75 of 97 ( other means Mortgagee agrees that Tenant shall not be diiturbed in its possession or occupancy of the Premises and (c) Mortgagee will recognize the Lease and Tenant's tights thereunder. 3. Upon any threclosure of the Mortgage or other acquisition of the Mortgaged Pt uses, Tenant shall attain to Mortgagee or any other party acquiring said property or so succeeding to Landlord's rights and shall mewing Mortgagee as its landlord Under the Late and Unapt shall promptly execute and deliver any instrument that Mortgagee may reasimably request in writing to evidence Anther said antitumor.. 4. Upon such fonichisure of the Mortgage or other acquisition of the Mortgaged Premises and attomment, the Lean shall. Continue as a direct lease between the Mortgagee and Tenant upon all tams, covecants and conditions thereof as are than applicable except that the Mortgagee shall not be (a) liable for any action or omission of any prior landlord under the Lease unless Mortgagee has received notice thereof, (b) bound by any rent Or additional read which 'tenant might have paid for more than the anent month to any prior landlord, or (c) liablefor the return of any security deposit which Tenant may have paid to any prior landlord, unless Mortgagee shall have actually received such deposit. Tenant limber agrees with Mortgagee that Tenant will not voluntarily subordinate the Imo to any lien or encumbrance without Mortgagee's prior written consent. ' 5. If Landlord shall defauft in the perfonnance or observance of any of the terms, covenants, conditions oi agreements ie the Lease to be performed on the part of Landlord, Tenant shall give Written notice thereof to Mortgagee and Mortgagee shall have the.right (but not the obligation) to cure such default. Tenant shall not take any action with respect to any default by landlord under the Lease; 'Deluding, without lta' don, any action in order to terminate, rescind or avoid the Lease or to withhold any rental thereunder, for a period of dirt (30) days after receipt by Mortgagee of Tenant's written notice with tespect, to such default; =Ida homer, that in the case of any default which cannot with reasonable diligence be cured within such thirty (30). day period, if Mortgagee shall proceed promptly to commence to cure such deft* and, thereafter, shall prosecute the curing Of same with reasonable diligent*, then the lime within which such defer& may be cured shall be extended for such period as may be necessary to complete the curing of same but not to exceed ninety (90) days Landlord holds a hiaschold estate (the "Leasehold Estate"), in the land described on Exhibit A (except as!stated therein). The fee simple estate to such property (the `Reversionary Estate') is mined by Fidelity Syndications Company. landlord and Tenant agree that no termination of the Leasehold Estate shall terminate or impair the lease, including, without Einitation, any termination due to a merger of the Leasehold Estate and the Reversionary Estate, foreclosure of the lien of the Mortgage on the Leasehold Estate and/or the Reversionary Estate or a tennination of any lease Or other agreement creating or evidenehg the leasehold Estate. Landlord joins in the execution of this Agreement in order to evidence lb agreement expressed in the foregoing sentence. IL 7-2- LIT

86 Case LSS Doc Filed 06/15/16 Page 76 of 97 s. e 7. This Agreement shall bind and bun to the benefit of the parties hereto, their successons and assigns. As used herein, (a) the term moue shall include any subtenant, successors and/or assigns of Tenant named herein; (b) the words 'foreclosure and 'foreclosure sale' shall be deemed to include the acquisition of Landlord's estate in the Premises by voluntary deed (or assignment) in lieu of foreclosure; and (c) the word "Mortgagee" shall include" the Mortgagee herein specifically named and any of its successors and assigns, and shall include anyone or any entity who shall have ancceeded to Landlord's interest in the Premises by, bough or under foreclosure of the Mortgage or as a result of any Other means. 8..Anyddng herein or in the Lease to the contrary notwithstanding, in the event that Mortgagee shall acquire title to the Mortgaged Premises, Mortgagee 'hall have no obligation, nor inart any liability, beyond Mortgagee's thee interest, tarty, in the Mortgaged Premises and Thant shall look exclusively to such interest of Mortgagee, if any, in the Mortgaged Premises for the payment and discharge teeny obligations imposed upon Mortgagee hereunder or under the Lease and Mortgagee is hereby released or relieved of any other liability ' hereunder and under the Lease. Tenant agrees that with tweet to any money judgm'ent. which may be obtained or secured by Tenant against Mortgagee, Ttesant shall look aidely to the estate or intelvst owned by Mortgagee in the Mortgaged Premises and Tenant will not collect or attempt to collect any 'itch judgment (i) from any officer, director, shareholder, partner, employee, agent or representative of Mortgagee or (if) out of any assets of Mortgagee other than Mortgagee's estate or interest in the Mortgaged Premises or the proceeds from the sale thereof. 9. Mortgagee and Tenant agree that Mortgagee shall not be bound by any amendment or modification of the Lease executed and delivered hereafter without Mortgagee's consent, which consent shall not be unreasonably withheld or de.bye'd and which (a) reduces the rental payable by Tenant under the Lease, (b) shortens the term of the Lease or (c) terminates the Lease. 10. Wherever used herein, the singular shall include both the singular and the plural and the use Of any gender shall apply to an genders. 11. This agreement shall be govetned by and construedii accordance with the laws of the State of New Jersey applicable to similar agreements made and to be performed entire ' ly within said State. This agreement shall be construed without regard to any presumption or rule requiring consbuction against the party causing this Agreement to be drafted. 12. This Agreement shall not be modified or amended except in writing signed by all parties hereto. 13. All notices and other economic' ationi provided for hereunder shell be in writing and mailed (registered or certified mail, return receipt requested, postage prepaid), hand delivered, sent by nationally recognized overnight welder (prepaid), if to Mortgagee, at its address above stated, Attention:, with a copy similarly delivered to and if to Tenant, at its address above stated, Attention;, with a copy sin'illarly delivered to Melville Realty Company, Inc., 6, Ai

87 Case LSS Doc Filed 06/15/16 Page 77 of 97 s." One Thea11 Road, Rye, New York 10580, or at such other address as may from time to time he given by such person in a written notice to the others. AU such notices and such communicadons shall be effective when received at the address specified as aforesaid.' 14. Each entity executing and delivering this Agreement represents and warrants to the other(s) that the individuals executing this Agreement on behalf of such entity are duly empowered and authorized to do so on behalf of such entity. DT WITNESS WEEREOF, the parties hereto have executed this Subordination, Non-Disturbance. and Attornment Agreement as of the thy and year that above written., MA= TOTOWA LINENS 'N THINGS, INC. C By ("4, Name:..k.) 00..L.O.e" 7" line: Na Nt..IL- MORICAQINt AMERICAN NATIONAL INSURANCE COMPANY By: Name: UMW= FIDELITY TOTOWA ASSOCIATES, L.L.C.. Talow&MI mow.4/

88 Case LSS Doc Filed 06/15/16 Page 78 of 97 = STATE OF *A COUNTY OF U.).9.10/cla4 'COLL BB IT thid this Isk day of 1995, before me, the subscriber, e...k.ttki, personally appeatectuniaratein me Prennent of 'Mows linens 'N Things, Inc., whir I am satisfied, is the person who has signed the within Instniment on behalf of said corporation; and I having first made known to him tha contents thereof, he thereupon acknowledged that he signed, nee1ed-witlrditoemperate4sil and delivered the said Instrument as such officer aforesaid; that the.within Instrument is the voluntary met and deed of said cotporation, made by virtue of authority from its Board of Directors.... MOINE COMERFORD Notaitreinagirew Ye* Quelffled In Westchester Wu* A- lt:mission Wires January 24, DYW STATE OF NEW JERSEY SS: COUNTY OF BE IT REMEMBERED, that on this let day of June, 1995, before me, the subscriber,, personally appeared, the President of American National Insurance Company, who I am satisfied, is the person who has signed the within Instrument on behalf of said cmpthation; and t having first made known to him the contents thereof, be thereupon acknowledged that be dined, sealed with the corporate seal and delivered the said Instrument as such officer aforesaid; that the within Instrument is the voluntary act and deed of said corporation, made by virtue of authority from its Board of Directors. -5-

89 Case LSS Doc Filed 06/15/16 Page 79 of 97 STATE OF NEW JERSEY COUNTY OP s 14 SS: BE IT REMEMBIIRIID, that on this 1st day of June, 1995, before me, the subscriber, PI% dot. t. v Pa 7 opersonaby appeared Robert Slater, Manager of Fidelity Totowa Associates, L44.C., a New Jersey limited Liability Company, who, tam satisfied, is the person used in and who executed the within Instilment on behalf of said company, and thereupon he acknowledged that he signed, sealed and delivered the same, and that the within Instrument is the voluntasy act and deed of said Company for the uses and 'purposes therein expressed. r2.." V%. Aft A IA-. a I,. tw,13..4/

90 Case LSS Doc Filed 06/15/16 Page 80 of 97 After Recording, Return to: 17/.40,04. Stephan Cutler, Esq. Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 South Broad Street Philadelphia, PA FEE RECOGNITION AGREEMENT (The Above Space for Recorder=s Use Only) THIS FEE RECOGNITION AGREEMENT, made as of the day of 2009, between FIDELITY SYNDICATIONS, L.L.C., A New Jersey limited liability company, having an office at c/o LRF Slater Companies, Inc., 301 South Livingston Avenue, Livingston, New Jersey ("Pee Owner"); FIDELITY TOTOWA ASSOCIATES, L.L.C., a New Jersey limited liability company having an address do LFR Slater Companies, Inc., 301 South Livingston Avenue, Livingston, New Jersey ("Landlord") and BOB'S STORES CORP., a New Hampshire corporation, having an address at 160 Corporate Court, Meriden, Connecticut ("Tenant"). RE CI TAL S A. Fee Owner is the owner of the land described in Fxhibit A annexed hereto (the "Property"). B. By Agreement of Lease dated June 1, 1995 (the "Major Lease") Fidelity Syndications Company ("PSC% a New Jersey partnership, leased the Property to Landlord., Fee Owner is the successor by merger to FSC. C. Landlord, as ground lessee of the Property, and Tenant have entered into a lease dated of even date herewith pursuant to which Landlord has granted to Tenant a lease in a portion of a building located on the Property (hereafter, the "Demised Premises") for a term which commenced on February 1,2009 and ending on January 31, 2016, subject to four (4) additional five (5) year renewal periods (the "Sublease"). NOW, THEREFORE, it is agreed as follows: 1. Fee Owner warrants and represents as follows: (i) that it is the fee owner of the Property, /2/2009

91 Case LSS Doc Filed 06/15/16 Page 81 of 97 effect, (ii) that the Major Lease is unmodified and is in full force and (iii) that the term of the Major Lease expires on October 31,201.6, (iv) that Landlord is not in default under the Major Lease nor has any event occurred which would after notice to Landlord and the passage of time become a default of Landlord under the Major Lease, and (v) that no consents of third parties (except American National Insurance Company) are necessary for the execution and performance of this Agreement by Fee Owner. 2. Fee Owner hereby acknowledges receipt of a copy of, and consents to and approves, the Sublease and all of the terms, covenants and provisions thereof; and agrees that the exercise by Tenant of any of the rights, remedies and options contained therein shall not constitute a default under the Major Lease. 3. Fee Owner agrees that whenever under the Major Lease it has an obligation with respect to the Premises, or its consent or approval is required for any action of Landlord under the Major Lease, then, to the extent such obligation, consent or approval relates to the Demised Premises or Tenant's use and occupation thereof; it will perform such obligation and will not unreasonably withhold or unduly delay such consent or approval. 4. Fee Owner shall not, in the exercise of any of the rights arising or which may arise out of the Major Lease or of any instrument modifying or amending the same or entered into in substitution or replacement thereof; disturb or deprive Tenant in, or of; its possession or its rights to.possession of the Demised Premises or of any right or privilege granted to or inuring to the benefit of Tenant under the Sublease if Tenant is not in default of any of its obligations under the Sublease after any notice and/or time to cure provided thereunder. 5. In the event of the termination of the Major Lease by reentry, notice, conditional limitation, surrender, summary proceeding or other action or proceeding, or otherwise, or, if the Major Lease shall terminate or expire for any reason before any of the dates provided in the Sublease for the termination of the initial or renewal terms of the Sublease and if immediately prior to such surrender, termination or expiration Tenant is not in default of any of its obligations under the Sublease after any notice and/or time to cure provided thereunder, Tenant shall not be made a party in any removal or eviction action or proceeding nor shall Tenant be evicted or removed of its possession or its right of possession be disturbed or in any way interfered with, and the Sublease shall continue in full force and effect as a direct lease from Fee Owner to Tenant for the remainder of the term of the Sublease without the necessity of executing a new Sublease, on the same 1/ -2-

92 Case LSS Doc Filed 06/15/16 Page 82 of 97 terms and conditions as are in effect under the Sublease immediately preceding the termination of the Major Lease, and Tenant shall attom to Fee Owner (and Fee Owner shall accept such attomment) and comply with the obligations of Tenant under the Sublease, and Fee Owner shall then and thereafter perform and observe all of the agreements on the part of Landlord, as the landlord under the Sublease, thereafter to be performed and observed by iaid landlord. 6. (a) If the Major Lease terminates (i) because Landlord has exercised an option to terminate the Major Lease, (ii) by operation of law or (iii) by mutual agreement between Fee Owner and Landlord, Tenant must (except as provided in paragraph (c) below) continue the Sublease in full force and effect notwithstanding such termination of the Major Lease, as provided in this Paragraph 6. (b) If the Major Lease terminates as provided in (a) above, then without further act or deed by any person or entity, the Sublease shall continue as a direct lease between Fee Owner and Tenant for the remainder of the term of the Sublease without the necessity of executing a new Sublease, on the same terms and conditions as are in effect under the Sublease immediately preceding the termination of the Major Lease, and Tenant shall attom to Fee Owner (and Fee Owner shall accept such attornment) and comply with the obligations of Tenant under the Sublease, and Fee Owner shall then and thereafter perform and observe all of the agreements on the part of Landlord, as the landlord under the Sublease, thereafter to be performed and observed by said landlord. (c) If Landlord has elected to terminate the Sublease as a result of fire or other casualty or a condemnation in accordance with the terms of the Sublease, and Landlord has concurrently exercised a right to terminate the Major Lease for the same reason, Fee Owner shall so notify Tenant, and Tenant may, within twenty (20) days after receipt of such notice from Fee Owner, give Fee Owner notice of the exercise by Tenant of any right or option granted to Tenant under the Sublease to void Landlord's election to terminate the Sublease, if any, in which event Landlord's notice of termination of the Sublease shall be void, and the provisions of subparagraph (b) above shall apply, but if Tenant does not give such notice then the Sublease shall terminate notwithstanding Section 5 of this Agreement. 7. Fee Owner hereby waives and relinquishes any and all rights or remedies against Tenant, pursuant to any lien, statutory or otherwise, that it may have against the property, goods or chattels of tenant in or on the Demised Premises. 8. (a) Any notices, demands, reports or communications required, desired or permitted to be given under this Agreement ("Notices") shall be in writing and, any law or statute to the contrary notwithstanding, shall not be effective for any purpose unless same shall be given by registered or certified mail, return receipt hl -3-

93 Case LSS Doc Filed 06/15/16 Page 83 of 97 requested, postage prepaid, or by any recognized overnight mail carrier, with proof of delivery slip, (public or private), (y) if to Fee Owner, at the address of Fee Owner as hereinabove set forth or at such other address as Fee Owner may designate by Notice, or (z) if to Tenant, then to Bob's Stores Corp., 160 Corporate Court, Meriden, CT , Attention: Chief Financial Officer. During the period of any postal strike or other interference with the mail, personal delivery (with proof of delivery slip or sworn affidavit of service) shall be substituted for registered or certified mail. (b) Any Notice hereunder shall be deemed to have been given or served for all purposes on the date of delivery or refusal thereof. (c) Notwithstanding anything herein to the contrary, neither party may designate any address for delivery of Notices unless same shall include a (i) street address, (ii) building name and/or number, (iii) street designation, (iv) city, (v) state, and (vi) zip code. 9. No modification, amendment, waiver or release of any provision of this Agreement or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose whatsoever unless in writing and duly executed by the party against whom the same is sought to be asserted. 10. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, assigns and sublessees. [Signature page followsj

94 Case LSS Doc Filed 06/15/16 Page 84 of 97 Signature Page to Fee Recognition Agreement IN WITNESS WHEREOF, the parties have caused this Recognition Agreement to be executed under seal the date first above written. FEE OWNER: WITNESS: FIDELITY SYNDICATIONS, L.L.C. By: Name: Title: WITNESS: TENANT: BOB'S STORES CORP. By: Name: Title: -5-

95 1 Case LSS Doc Filed 06/15/16 Page 85 of 97 STATE OF COUNTY OF ) ) : ) ss. On this day of, 2009, before me personally came to me known; who being by me duly sworn, did depose and say that he is the of Bob's Stores Corp., the corporation described in and which executed the above instrument and that he signed his name thereto by order of the Board of Directors of said corporation. My Commission Expires: Notary Public STATE OF NEW JERSEY) ) : as. COUNTY OF ESSEX ) On this day of, 2009, before me personally came to me known, who being by me duly sworn, did depose and say that he is the of Fidelity Syndications, L.L.C., and he executed the foregoing instrument as of Fidelity Syndications, L L C, and that he had authority to sign the same, and he acknowledged to me that he executed the same as the act and deed of said limited liability company for the uses and purposes therein contained. My Commission Expires: Notary Public V 4 fr -6-

96 Case LSS Doc Filed 06/15/16 Page 86 of 97 =MIT X Following is an example of the Annual Minimum Rent determined for the first Extension Period pursuant to the percentage increase in the CPI (based on the assumptions stated): a) The CPI for February, 2011: b) The CPI for February, 2016: c) The CPI percentage increase for the period ( = 30, divided by 250): 12% d) Fifty (50%) percent of the Cl'! percentage increase For the period: 6% e) Increase in Annual Minimum Rent ($16.94 multiplied by 6%): $1.02 f). Annual Minimum Rent for the first Extension Period ($16.94 plus $1.02): $17.96 Since the Annual Minimum Rent determined in accordance with the percentage increase in the CPI ($17.96) is less than the stated Annual Minimum Rent for the period ($18.63), the stated Annual Minimum Rent shall be the amount payable.

97 Case LSS Doc Filed 06/15/16 Page 87 of 97, EXHIBIT Y Following is an example of the Annual Minimum Rent determined for the period of February 1,2011 through January 31,2016 pursuant to the percentage change in the CPI (based on the assumptions stated): a) The CPI for February, 1996: b) The CPI for February, 2011: c) The CPI percentage change for the period 47% or ( = 75, divided by 160):.47 d) Two times the CPI percentage change for the period 94% or.94 e) One + two times the CPI percentage change 1.94 f) Possible increase in Annual Minimum Rent ($14.00 multiplied by $ ): Annual Minimum Rent for the period of February 1,2011 through $16.94 January 31,2016 (the lesser of $16.94 or $27.16):

98 Case LSS Doc Filed 06/15/16 Page 88 of 97 I

99 Case LSS Doc Filed 06/15/16 Page 89 of 97 AMENDED AND RESTATED GUARANTY (TOTOWA) C.. This Amedd and Restated Guaranty (this "Amended Guaranty') is made effective as of bet 2, (the "Effective Daii") by CVS Pharmacy, Inc. ("Guarantor'), having an address at 1 CVS Drive, Woonsocket, Rhode Island 02895, in favor of Fidelity Totowa Associates, L.L.C. ("Landlord"), having an address c/o LRF Slater Companies, Inc., 301 So. Livingston Avenue, Suite 204, Livingston, NJ umal A. In March, 1995, Melville Corporation executed and delivered the Guaranty attached hereto as EgbiltA i (the "Guaranty"), puzsuant to which Melville Corporation, among other things, unconditionally guaranteed to Landlord, its successors and assigns, the full performance and observance of all of the covenants, obligations, duties, undertakings, or agreements by the Mout under a Lease Agreement dated as of March 29,1995 (the "Original Lease") between Totowa Linens' N Things, Inc. (now LNT, Inc., as successor by merger to Totowa Linens' N Things, Inc.; hereinafter the "Original Tenant), as tenant, and Landlord, as landlord, for the "Premises" as defined in the Original Lease, being 100,000 squaw feet in a building (the "Building") in the Shopping Center referred to in the Original Lease. Guarantor has succeeded to the obligations of Melville Corporation under the Guaranty. B. On September 29, 1995 Original Tenant entered into a sublease (the "Sublease") with Totowa; NI Bob's, Inc. ("Old Bob's") for the "Subleased Premise? as defined therein (the "Bob's Space"). The Bob's Space is 49,806 square feet in the Building. The Sublease incorporated by reference all of the provisions of the Original Lease. C. On or about December 24,2003, Bob's Non-Connecticut Operating Co. (which was,thosuccessor in interest to Old Bob's) assigned the subtenant's interest in the Sublease to Bob's Stores Corp. (then known as Alphabravo Corporation; hereinafter "Bob's"). D. In a Chapter 11 proceeding (the 'Proceeding") in the United States District Court for the District of Delaware [Case No (CSS)] involving Original Tenant and others as debtors, the Original Leese was rejected. Following the rejection Bob's remained in possession of the Bob's Space, and since January 1, 2009 has remained in the Bob's Space as a month to Monthlenant. 41= warm;

100 Case LSS Doc Filed 06/15/16 Page 90 of 97 E. Bob's desires to remain in the Bob's Space as a direct tenant of Landlord in accordance with the terms and conditions of the Lease Agreement *between Landlord and Bob's attached hereto as Exhibit B (the "Bob's Lease"), and in an effort to mitigate its damages resulting from the rejection of the Original Lease in the Proceeding, Landlord desires to enter into the Bob's Lease. F. The TJX Companies, Inc. ("TJX") desires to lease from Landlord the 50,194 square feet of space in the Building (the "Vacant Space") not occupied by Bob's In accordance with the terms and conditions of the Lease Agreement between Landlord and TJX attached hereto as Exhibit C (the " TJX Lease"), and in an effort to mitigate its damages resulting from the rejection of the Original Lease in the Proceeding, Landlord desires to enter into the TJX Lease. Bob's and TJX are hereinafter sometime referred to individually as a "Tenant" and collectively as "Tenants." G. In order to ensure that it does not lose the benefits of the Guaranty incident to its execution of the Bob's Lease and the TTX Lease (collectively, the "Leases"), Landlord has requested that the Guaranty be amended and restated in its entirety on the terms and conditions set forth in this Amended Guaranty and that Guarantor execute this Amended Guaranty, and Guarantor has agreed to do so. NOW, THEREFORE, in consideration of One ($1.00) Dollar paid by Landlord to Guarantor, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor hereby agrees as follows: 1. Guarantor's Representations and Warranties. Guarantor hereby represents and warrants to Landlord, knowing and intending that Landlord is relying' hereon in executing the Leases, that: (i) it has the right, power and authority to execute and deliver this Amended Guaranty; (ii) it has taken all actions necessary to execute and deliver, and to perform its obligations under, this Amended Guaranty; (iii) this Amended Guaranty has been duly executed and delivered by it, and is a valid and binding agreement, enforceable in accordance with its terms; (iv) it has succeeded to the obligations of Melville Corporation under the Guaranty; and (v) it has reviewed the Bob's Lease and the 'MX Lease and consents to their terms. 2. Guarantor's Consent. Guarantor hereby consents to Landlord's executing and delivering the Bob's Lease and the TJX Lease. 3. Yerms of Guaranty of the Leases Guarantor hereby unconditionally guarantees to Landlord, its successors and assigns, the full performance and observance of all of the covenants, obligations, duties, undertakings or agreements on the part of Bob's and TJX to be made, -2-

101 Case LSS Doc Filed 06/15/16 Page 91 of 97 carried out, performed, paid and/or observed by Bob's, as provided in the Bob's Lease, and by Tnc, as provided in the TIX Lease: In the case of both Tenants, during the Initial Lease Term (as defined in each of their respective Leases) provided in their respective Leases; and In addition, in the case of Bob's, during the first two Extension Periods (as defined in the Bob's Lease) ifbob's exercises its option to extend the Term (as defined in the Bob's Lease) for either or both of those Extension Periods and if Consolidated E3ITDA (as hereinafter defined), as reported in Bob's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date theeption is exercised is greater than One Nftllion Dollars ($1,000,000). As used herein, "Consolidated EBITDA" shall mean an amount equal to (i) the Consolidated Net Income (as hereinafter defined) of Bob's parent and subsidiaries for such period, plus (ii) each of the following: (1) depreciation and amortization (including, but not limited to, imputed interest and deferred compensation, trademark/tradename and goodwill) of Bob's parent and subsidiaries for such period, plus (2) the interest expense (including inter-company interest expenses) of Bob's parent and subsidiaries for such period, plus (3) charges for Federal, State, local and foreign income taxes for such period, plus (4) all non-cash charges and write-downs of assets related to the closing of retail stores, plus (5) director fees and management fees and expenses payable to Bob's parent or its affiliates paid or accrued during such period, plus (6) non-recurring fees and expenses (including asset impairment and other write-0m) incurred during such period in connection with the transactions contemplated by any financing agreements or purchase agreements, plus (7) non-recurring integration costs and restructuring charges incurred during such period in connection with the transactions contemplated by the purchase agreements. As used herein, "Consolidated Net Income" shall mean, with respect to any person for any period, the aggregate of the net income (loss) of such person and its subsidiaries, on a consolidated basis, for such period, excluding to the extent included therein (A) any extraordinary or non-recurring gains and (B) extraordinary or nonrecurring non-cash losses or charges, and after deducting the 'provision for taxes for such period, all as determined in accordance with GAAP Guarantor specifically consents and agrees that any extension granted to either Tenant or both Tenants for the payment of any sums due under their respective Leases, and any waiver, extension or postponement of performance granted to either Tenant or both Tenants, shall not operate to release Guarantor from liability under this Amended Guaranty with respect to either Lease. This is a guaranty ofpayment and performtmce and Landlord shall not be required to exhaust its remedies against either Tenant before proceeding on this Amended Guaranty. This Amended Guaranty shall survive the bankruptcy of either Tenant or both Tenants. Entry by Landlord, Bob's and/or TJX and Landlord's mortgagee into a subordination, non-disturbance and -3-

102 Case LSS Doc Filed 06/15/16 Page 92 of 97 attomment agreement shall not operate to release Guarantor from liability under this Amended Guaranty. Guarantor agrees within thirty (30) days of Landlord's request, to execute and deliver to Landlord or any mortgagee, on a form prepared by or on behalf of the party so requesting, an estoppel certificate ratifying this Amended Guaranty and confirming that it is in full force and effect and that there are no offsets or defenses to.enforcement of this Amended Guaranty except as stated in the certificate Notwithstanding anything in Section 32 of this Guaranty, Landlord shall not agree to any amendment to the terms or conditions of either Lease or both Leases which extends the Term of either Lease, increases the Rent or other financial obligations of the Tenant under either Lease, or otherwise imposes additional material burdens, obligations and risks upon either Tenant and/or Guarantor, unless in each instance made with the express prior written consent of Guarantor. Guarantor shall not be bound by, and Guarantor's liability shall be determined without regard to, any such amendment made without Guarantor's written consent Landlord agrees that it will: provide Guarantor with copies of all gross sales reports and other financial information which it received from either of the Tenants; provide Guarantor with copies of any written request made by either Tenant for Landlord's approval of any material matter as well as Landlord's response to such request; provide Guarantor with copies of insurance certificates and notices of renewal, non-renewal ancvor cancellation; provide Guarantor with copies of all notices of default that it sends to or receives from either of the Tenants; provide Guarantor with copies of any written.request made by either Tenant to amend any of the terms or conditions of either of the Leases as well as Landlord's response to such request. Landlord's failure to comply with any of its obligations in this Section 3.4 shall not affect Guarantor's obligations contained in Sections 3.1 or Miscellaneous. 4.1 Notices. All notices, demands, requests and other communications which may or are required to be given by or to Guarantor or Landlord shall be in writing and shall be deemed to have been given when received if personally delivered or sent by facsimile (when transmitted and successful sending confirmed), one (1) business day after deposit for next business day delivery with a reputable overnight courier service providing a delivery receipt or two (2) business days after being mailed by registered or certified mail, postage prepaid, addressed to Guarantor and Landlord at their addresses set forth below, or at such other address as either may from time to time designate by notice to the other (but any notice of such change of address shall not be effective unless and until received): -4-

103 Case LSS Doc Filed 06/15/16 Page 93 of 97 If to Guarantor: CVS Pharmacy, Inc. 1 CVS Drive Woonsocket, RI Mn: Donn J. Hamilton Facsimile No.: with a copy to: Saul Ewing LLP 222 Delaware Avenue Suite 1200 PO Box 1266 Wilmington, DE Attn: Mark Mimiti, Esq. Facsimile No: ( If to Landlord: Fidelity Totowa Associates, L.L.C. c/o LRF Slater Companies, Inc. 301 So. Livingston Avenue Livingston, NJ Attn: Robert Slater. Facsimile No.: (973) with a copy to: Orlog Lowenbach, Stifelman & Siegel 101 Eisenhower Parkway Roseland, NJ Attn: Sanders M. Chatiman, Esq. Facsimile No. (973) Successors and AWOL% This Amended Guaranty shall be binding upon Guarantor, and its successors and assigns, and shall inure to the benefit of Landlord, and its successors and assigns Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY LAW, GUARANTOR AND LANDLORD KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TRY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ' -5-

104 Case LSS Doc Filed 06/15/16 Page 94 of 97 CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS AND THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR DT CONNECTION WITH THIS AMENDED GUARANTY, AND THE TRANSACTION CONTEMPLATED HEREBY Counternarts, This Amended Guaranty may be executed in counterparts, including faxed counterparts, all of which taken together shall be considered one and the same agreement when each of the parties has signed a counterpart. jsignatures on nod page] -6-

105 Case LSS Doc Filed 06/15/16 Page 95 of 97 Signature hie to Amended and Rotated Guam*, (Totowa) The Guarantor has signed this Amended Guaranty as of the date set forth below, but effective as of the Effective Date set forth in the beginning of this Agreement QUARANTOR: CVS Pharmacy By:. Name- bert T. Marcello Title. Vice President Date: 0141FittIVE9 November 16, 2009 Landlord is executing this Amended Guaranty to agree to the terms of Sections 3.3,3.4 and 4.3 FIDELITY TOTOWA ASSOCIATES, L.LC. a New Jersey limited liability company, By: Name: Robert Slater Title: Manager Date: October, 2009

106 Case LSS Doc Filed 06/15/16 Page 96 of 97 SignatvrePageto AntendalandlotatedGuanalyabtowcil The Guarantor has signed this Amended Guaranty as of the date set tbrth below, but effective as of the Effective Date set forth in the beginning of this Agreement GUARANTOR: CVS Pharmacy By: / "ILI N,., 7,.bert T. Marcell rid, Vice President Date: Wnigir iin009 Landlord is executing this Amended Guaranty to agree to the terms of Sections 3.3,3.4 and 4.3 FIDELITY TOTOWA ASSOCIATES, L.L.C. a New Jersey limited liability company, 13y: Name: Rob Title: Manager Dat3,..4liatehs9,

107 Case LSS Doc Filed 06/15/16 Page 97 of 97

108 Case LSS Doc Filed 06/15/16 Page 1 of 24 Exhibit B Brief

109 Case LSS Doc Filed 06/15/16 Page 2 of 24 SUPERIOR COURT OF NEW JERSEY FIDELITY TOTOWA ) CHANCERY DIVISION ASSOCIATES, L.L.C., ) PASSAIC COUNTY Plaintiff, ) ) DOCKET NO. PAS-C v. ) ) Civil Action ) BOB'S STORES, LLC and CVS ) PHARMACY, INC., ) ) Defendants. ) Dated: November 19, 2015 BOB'S STORES LLC'S BRIEF IN OPPOSITION TO PLAINTIFF'S ORDER TO SHOW CAUSE Glenn A. Weiner (NJ ID # ) Sean M. Brermecke (NJ ID # ) KLEHR HARRISON HARVEY BRANZBURG LLP 457 Haddonfield Road, Suite 510 Cherry Hill, NJ (856) gweiner@klehr.corn sbrennecke@klehr.com Attorneys for Defendant Bob's Stores, LLC

110 Case LSS Doc Filed 06/15/16 Page 3 of 24 PRELIMINARY STATEMENT This action represents the latest attempt by plaintiff Fidelity Totowa Associates, L.L.C. ("Fidelity" or the "Landlord") to reject an as-of-right extension of a lease by its tenant, defendant Bob's Stores, LLC ("Bob's"). On February 10, 2015, Bob's exercised its right to extend the lease for a store it has occupied for twenty years for an additional five-year term, commencing February 1, Since receiving notice from Bob's, Fidelity has come up with multiple reasons to try to reject Bob's lease extension, generating a new theory each time a prior one has been demonstrated by Bob's to be false. In September 2015, nearly seven months after Bob's exercised its extension right, Fidelity raised for the first time the issue on which it now has chosen to file suit. Fidelity claims that this late-adopted interpretation is so clear that this case should be resolved in summary fashion. Fidelity's assertion is belied by several facts. First, Fidelity's new interpretation of the lease that Bob's was required to provide financial statements demonstrating that it met a financial covenant on which the extension was conditioned, even though those financial statements did not exist when the extension was exercised impermissibly ignores part of the contractual language and would lead to absurd results. Second, the course of dealing between the parties demonstrates that not even Fidelity believes that the interpretation it now advances is correct. Indeed, Fidelity's transactional counsel, who also represented Fidelity in negotiating the lease originally, spent months expressly asking Bob's for additional information about the financial statements for the exact same time period that Bob's initially tendered, never once asserting that Bob's had provided information for the wrong time period. Only after Bob's repeatedly demonstrated its right to exercise the extension did Fidelity adopt the disingenuous position it now espouses. 1

111 Case LSS Doc Filed 06/15/16 Page 4 of 24 Ultimately, this action should not be decided in truncated manner. Fidelity's late-adopted interpretation is neither clear nor straightforward and the parties should be given adequate opportunity to develop a complete record so that the Court can determine the parties' intent in the lease. Further, any "urgency" to decide this matter is entirely self-created by Fidelity's waiting eight months to bring its claim to Court. Moreover, Fidelity will suffer no harm if this matter proceeds on an ordinary track, as Bob's will, as it has done for many years, continue to meet its obligations under the lease, timely and completely. Accordingly, this matter should proceed in standard fashion. STATEMENT OF FACTS A. The Parties. Fidelity owns the Totowa Square Center (the "Property"), a shopping center in Totowa, New Jersey. Compl., 2. Bob's is a clothing retailer that operates 36 stores throughout the northeast. Bob's leases approximately 49,806 square feet (the "Premises") from Fidelity at the Property. Cert, Bob's is wholly-owned by Vestis Retail Group LLC ("Vestis"), which also owns the specialty retail sporting goods chains Eastern Mountain Sports LLC ("EMS"), which operates approximately 64 retail stores throughout the northeast, and Sport Chalet, LLC ("Sport Chalet"), which operates approximately 53 retail stores in California and several other western states. Cert. 'If 4. Defendant CVS Pharmacy, Inc. ("CVS") is a national pharmacy chain that guaranteed Bob's lease of the Premises. Compl Citations to the "Cert." refer to the Certification of Stephan L. Cutler in Support of Bob's Stores LLC's Brief in Opposition to Plaintiffs Order to Show Cause, filed contemporaneously herewith. Citations to "Ex. "refer to the exhibits to the Certification of Stephan L. Cutler in Support of Bob's Stores LLC's Brief in Opposition to Plaintiffs Order to Show Cause. 2

112 Case LSS Doc Filed 06/15/16 Page 5 of 24 B. Plaintiff's Lease With Linens 'N Things and Bob's Sublease. On or around March 29, 1995, Fidelity and Linens 'N Things, Inc. (then known as Totowa Linens 'N Things, Inc.) ("Linens") entered into a lease (the "Linens' Lease") for approximately 100,000 square feet of space at the Property (the "Linens' Premises"), within which Linens operated a retail store. The Linens' Lease was for an initial term of 20 years ending January 31, 2016, subject to two ten-year extension options. CVS, the successor to an affiliate of Linens, guaranteed Linens' obligations under the Linens' Lease (the "CVS-Linens Guaranty"), Cert. IT 5. On or around September 29, 1995, Linens and Bob's predecessor-in-interest entered into a sublease (the "Bob's Sublease") with respect to the same Premises that Bob's now leases directly from Fidelity. The Bob's Sublease commenced September 29, 1995 and was scheduled to expire on January 31, 2016, unless Linens exercised its options to extend the Linens' Lease, in which case Bob's predecessor had the option to extend the Bob's Sublease for up to two additional terms, each of which would expire one day prior to the expiration of the Linens' Lease (as extended). 2 Cert. I 6. On May 2, 2008, Linens and thirteen of its affiliates filed a voluntary petition for bankruptcy protection in the United States Bankruptcy Court for the District of Delaware (the "Linens Bankruptcy"). In connection with the Linens Bankruptcy, on December 18, 2008, Linens rejected the Linens Lease (the "Linens' Lease Rejection"). The Linens' Lease Rejection 2Totowa, NJ Bob's, Inc. was the subtenant under the Bob's Sublease. By December 24, 2003, as a result of various corporate mergers and/or assignments, the subtenant's interest under the Bob's Sublease was held by Bob's Non-Connecticut Operating Co. Cert On December 24, 2003, Bob's Non-Connecticut Operating Co. assigned the Bob's Sublease to Alphabravo Corporation, which changed its name to Bob's Stores Corp. on December 26, Cert. 7. On August 18, 2008, a predecessor of Vestis purchased the stock of Bob's Stores Corp. Cert. I 7. On December 28, 2012, Bob's Stores Corp. converted by way of merger into Bob's, Cert. 117, 3

113 Case LSS Doc Filed 06/15/16 Page 6 of 24 resulted in the termination of the Bob's Sublease but it did not affect CVS's liability under the CVS-Linens Guaranty. Cert. 8. C. Bob's Agrees to Lease the Premises Directly from Fidelity on Similar Terms. Following the Lease Rejection, effective February 1, 2009, Fidelity and Bob's entered into a lease (the "Bob's Lease") for the same Premises that had been the subject of the Bob's Sublease. Considering the unhealthy state of the economy in 2009 and the fact that CVS already was obligated to Fidelity through January 31, 2016, by the CVS-Linens' Guaranty, CVS agreed to guarantee the Bob's Lease (the "CVS-Bob's Guaranty") through January 31, The CVS- Bob's Guaranty also obligated CVS to guarantee the first two extension periods of the Bob's Lease, if exercised. 3 Cert. 9; Ex. A. The Bob's Lease was fully negotiated over many months in by Stephan L. Cutler of Klehr Harrison Harvey Branzburg LLP, as counsel for Bob's, and Sanders M. Chattman of Orloff, Lowenbach, Stifelman & Siegel, P.A., as counsel for Fidelity. Cert. In 12, 13. The relevant provisions of the Bob's Lease are found in sections 1.01 and Section 1.01 provides for an initial lease term commencing on February 1, 2009, and ending on January 31, 2016, and, subject to section 2.02, four extension periods of five years each. Section provides the conditions to and process for Bob's to exercise the extensions: Extension Periods. Provided that: (a) Tenant is not then in default of any material terms or provisions hereof,... and (b) Consolidated EBITDA (as hereinafter defined), as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is 3 Bob's also agreed to lease another former Linens space in another shopping center owned by an affiliate of Fidelity in Springfield, NJ. Cert, If 10. That lease similarly was guaranteed by CVS, which had guaranteed Linens' lease in Springfield as well. Cert. 10. The Springfield lease was negotiated by the same persons at the same time as the Bob's Lease. Cert The consolidated EBITDA test referred to in section 2.02 is referred to herein as the "Consolidated EBITDA Test" and section 2.02 as a whole is referred to herein as the "Extension Provision." 4

114 Case LSS Doc Filed 06/15/16 Page 7 of 24 exercised is greater than One Million Dollars ($1,000,000), Tenant shall have the option to extend the Term for the number of Extension Periods shown in Section 1,01(D). Each such option is exercisable by Tenant only in sequence (x) by giving notice to Landlord no less than twelve (12) months prior to the expiration of the Initial Lease Term or of the then current Extension Period, as the case may be, or (y) if Tenant fails to give Landlord such notice, within twenty (20) days after receipt of notice from Landlord that Tenant has failed to exercise its option to extend within the time period provided in (x) above.... As used herein, "Consolidated EBITDA" shall mean an amount equal to (i) the Consolidated Net Income (as hereinafter defined) of Tenant's parent and subsidiaries for such period, plus (ii) each of the following: (1) depreciation and amortization (including, but not limited to, imputed interest and deferred compensation, trademark/trade name and goodwill) of Tenant's parent and subsidiaries for such period, plus (2) the interest expense (including inter-company interest expenses) of Tenant's parent and subsidiaries for such period, plus (3) charges for Federal, State, local and foreign income taxes for such period, plus (4) all non-cash charges and write-downs of assets related to the closing of retail stores, plus (5) director fees and management fees and expenses payable to Tenant's parent or its affiliates paid or accrued during such period, plus (6) non-recurring fees and expenses (including asset impairment and other write-offs) incurred during such period in connection with the transactions contemplated by any financing agreements or purchase agreements, plus (7) non-recurring integration costs and restructuring charges incurred during such period in connection with the transactions contemplated by the purchase agreements. As used herein, "Consolidated Net Income" shall mean, with respect to any person for any period, the aggregate of the net income (loss) of such person and its subsidiaries, on a consolidated basis, for such period, excluding to the extent included therein (A) any extraordinary or non-recurring gains and (B) extraordinary or nonrecurring non-cash losses or charges, and after deducting the provision for taxes for such period, all as determined in accordance with GAAP. The language for the Consolidated EBITDA Test was drafted by Bob's and sent to Fidelity and its counsel, who adopted it in whole in its draft of the Bob's Lease and the CVS- Bob's Guaranty. Cert. IT 14. Neither Fidelity, CVS or either of their counsel commented on or changed in any substantive way the Consolidated EBITDA Test proposed by Bob's. Cert. 14, D. Bob's Is Successful and Vestis Expands. A Bob's store has occupied the Premises for over 20 years, Cert Bob's has paid its rent in full and on time and has complied with every condition and requirement set out in the Bob's Lease. Cert. 15. Bob's generated millions of dollars in EBITDA each year between 5

115 Case LSS Doc Filed 06/15/16 Page 8 of and In recent years, Vestis expanded its portfolio by purchasing EMS in 2012 and Sport Chalet in Cert, 1116, Therefore, the Consolidated EBITDA Test requires Bob's to include financial information from Bob's, EMS and Sport Chalet. Ex. G. Vestis's acquisitions of EMS and Sport Chalet reduced Consolidated EBITDA in 2013 and Ex, G. Those decreases notwithstanding, Consolidated EBITDA for the 60-month period ending December 31, 2014, was $3,900,000, Ex. G. E. Bob's Properly Exercises its Extension Option and Fidelity Attempts to Avoid Honoring the Lease Extension, Although Bob's had intended to exercise its option to extend the Bob's Lease by January 31, 2015, Bob's unintentionally failed to send the notice to do so. Cert. IT 17. The Bob's Lease, however, contained a protective provision to prevent the extension option from lapsing unless Fidelity sent a reminder notice ("Reminder Notice") to Bob's giving Bob's an additional 20 days to exercise the option. On or around February 3, 2015, Bob's received a Reminder Notice from Fidelity (Ex. B) and on February 10, 2015, Bob's sent Fidelity a notice exercising the extension option and attaching a report showing Bob's annual EBITDA for the five-year period ending December 31, 2014, of at least $2,374,057 (Ex. C). While fully demonstrating the financial fitness of Bob's, the report did not provide information consolidated with Vestis. Chattman, Fidelity's transactional counsel, responded on February 12, 2015, initially claiming, without explanation, that the extension of the Bob's Lease was "ineffective because the EBITDA on the financial statements enclosed with that letter does not satisfy the Consolidated EBITDA test set forth in clause (b) of Section 2,02 of the Lease." Ex. D. Chattman explained Fidelity's initial theory during a telephone conversation with Cutler, advising that Fidelity interpreted the Consolidated EBITDA Test to require Bob's to exceed $1,000,000 of EBITDA in 6

116 Case LSS Doc Filed 06/15/16 Page 9 of 24 each of the prior sixty months. Cert. 21. Chattman did not assert that Bob's had used the wrong period in calculating Consolidated EBITDA. Cert. 21. In a letter dated February 20, 2015, Cutler debunked Chattman's initial argument as contrary to: (i) the language of the Bob's Lease; (ii) the rationale behind the Extension Provision; and (iii) the historical context in which the Bob's Lease was negotiated. Ex. E. Cutler also provided updated financial schedules through December 31, 2014, which were consolidated with Vestis, included the non-recurring effects of the EMS and Sport Chalet acquisitions, and still showed a 60-month EBITDA of $3,900,000. Ex. E. Fidelity and its counsel did not dispute Cutler's analysis and did not assert that the updated financial statements were for the wrong time period. Instead, on February 23, 2015, Chattman wrote to CVS advising it that Fidelity would accept Bob's exercise of the extension option "if [CVS] confirmed that the Amended Guarantee applies to the Bob's Lease during the Extension Period for which it exercised the option," Ex. F. To further demonstrate to Fidelity that the extension of the Bob's Lease was proper, on March 10, 2015, Vestis's CFO, Susan Riley, provided Fidelity and Chattman with further information confirming Vestis's 60-month Consolidated EBITDA of $3,900,000 through December 31, 2014, which was the "most recent closed fiscal month." Ex. G. Further, Vestis provided monthly schedules derived from its audited financial statements for each month January 2010 through January 2014 and its unaudited results from February 2014 through December 2014, 5 Ex. G. A month and a half later, Fidelity changed tactics. Apparently dropping its initial interpretation of the Bob's Lease, Fidelity now sought more information and external 5 Vestis's auditors did not complete its audited financial statements for the fiscal year ending January 31, 2015, until May 8, Cert. II 25. 7

117 Case LSS Doc Filed 06/15/16 Page 10 of 24 confirmation, to which it was not entitled under the Bob's Lease. On April 29, 2015, Chattman replied to Cutler's February 20, 2015, letter, asking that Bob's have its auditors at KPMG execute one of two proposed verifications, which varied depending on whether KPMG had completed Vestis's fiscal 2014 audit. Ex. H. Chattman made clear that Fidelity sought to confirm the "accuracy of the 2014 numbers sent with Ms. Riley's March 10 letter," Ex. H. In both proposed verifications, Chattman asked that KPMG verify that, for the "sixty (60) month period ending December 31, 2014," the figures in the revised financial statements Vestis provided in March agreed with the audited financial statements and were consistent with the fees incurred in connection with the EMS and Sport Chalet acquisitions. Ex, H at Exs. A, B (emphasis added). Each proposed verification further sought KPMG's confirmation of Riley's statements regarding January 2010 and "the period from February 2014-December 14." Ex. H. Nowhere in the letter or the proposed verifications did Chattman seek information regarding January 2015 or assert Bob's had used the wrong time period in calculating Consolidated EBITDA, Ex. H. On May 11, 2015, Bob's declined to provide the requested verification because it was not required by the Bob's Lease and Bob's was not willing to incur either the additional cost or distraction from ongoing audit work. Ex. I. Cutler advised Chattman that the verification would be useless anyway because the Consolidated EBITDA Test was based on financial information as reported in monthly financial statements and KPMG's audits are for full fiscal years only. Ex. I. Furthermore, EBITDA, the measure required by the Bob's Lease, is not an audited financial metric. Ex. I. That notwithstanding, Cutler offered to provide actual KPMG audited financial statements for fiscal years 2010, 2011, 2012 and 2013, if Fidelity entered into a confidentiality agreement. Ex. I. 8

118 Case LSS Doc Filed 06/15/16 Page 11 of 24 Fidelity responded by requesting Bob's audited financial statements for full fiscal years ending January 31, 2011, January 31, 2012, January 31, 2013, January 31, 2014, and when available, January 31, 2015 (the "Audited Financial Statements"). Ex. J. Fidelity also requested calendar year-end trial balances for each of those years and, "most importantly," the month-end trial balance as of January 31, 2010 (the "Trial Balances"), Ex. J. Again, Chattman did not claim Bob's used the wrong time period and expressly sought information only for the period Bob's provided. Ex, J. Cutler prepared a confidentiality agreement that covered the Audited Financial Statements and furnished it to Chattman. Cert. 29. Several weeks later, Fidelity withdrew its request for the year-end trial balances, but reiterated that "it remains important" to receive the January 2010 trial balance. Ex. K. Fidelity finally agreed to a confidentiality agreement on July 15, 2015, and Bob's returned a countersigned copy of the agreement and the Audited Financial Statements the same day. Cert. 31; Ex. L. F. Fidelity Finally Invents a New Interpretation. On September 3, 2015, Chattman, for the first time, sought "EBITDA information for [Bob's] and its affiliates for the 60 months ending January 31, 2015." Ex. M. On September 17, 2015, Cutler sent a letter to Chattman wherein he rejected Fidelity's request, explaining: According to Section 2.02 of the lease, the test is: " Consolidated EBITDA (as hereinafter defined), as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised..." As of February 10, 2015 (i.e. the date the option was exercised), the most recently ended sixty (60) consecutive fiscal month period with respect to which Tenant had reported monthly financial statements was the period January 2010 through December Tenant did not have monthly financial statements through January 31, 2015 on February 10, As I explained to you when we spoke on August 28, 2015, there will always be a 9

119 Case LSS Doc Filed 06/15/16 Page 12 of 24 reasonable time interval between the date the option is exercised (regardless of the date it is exercised) and the monthly financial statements that are available on that same date, Landlord seems to be seeking a level of precision that simply does not exist, nor was it ever intended by the parties. It is also clear that the parties did not intend for Consolidated EBITDA to be measured as close as possible to the commencement date of the option term because, unlike some leases, the Lease does not prohibit Tenant from exercising the extension option significantly in advance of the option exercise deadline set forth in Section 2,02 of the Lease. For example, if Tenant had exercised the option on February 1, 2009 (i.e. the day the current term commenced, and 7 years before the commencement of the option term), as it was permitted to do, the Landlord would have had no understanding of what the Tenant's Consolidated EBITDA would be in 2009, 2010, 2011, 2012, 2013, 2014 or the first month of January Ex. N. Accordingly, Bob's declined to furnish additional information. LEGAL ARGUMENT I. This Case is Not Appropriate for Summary Treatment. Rule 4:67 provides a mechanism for the Court to summarily decide certain matters that do not require ordinary discovery and can be decided on a limited record without a traditional trial. This case is not such a matter, as the parties need an opportunity to develop a full record and present evidence to establish their intent in the Bob's Lease. Since no statute permits this contract interpretation matter to proceed in summary fashion, Rule 4:67-1(b) applies to plaintiff's application. That rule provides for summary proceedings when "it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties to the action not in default, that it is likely that the matter may be completely disposed of in a summary manner," Rule 4:67-2(b) explains that a plenary action, such as this one, may be handled in summary manner if "the court is satisfied that the matter may be completely disposed of on the record (which may be supplemented by interrogatories, depositions and demands for admissions) or on minimal testimony in open court," Rule 4:67-5 further provides that: 1 0

120 Case LSS Doc Filed 06/15/16 Page 13 of 24 If no objection is made by any party, or the defendants have defaulted in the action, or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment. At the hearing or on motion at any stage of the action, the court for good cause shown may order the action to proceed as in a plenary action wherein a summons has been issued, in which case the defendant, if not already having done so, shall file an answer to the complaint within 35 days after the date of the order or within such other time as the court therein directs. This matter is not appropriate for summary treatment. Bob's objects to such treatment and there are genuine issues of material fact as to the meaning of the Extension Provision and the Consolidated EBITDA Test that cannot be resolved on the record without standard discovery and a full trial. Proper preparation of this case necessarily will require both deposition and documentary discovery. As such, this Court should not set a summary hearing but rather allow the parties to engage in standard discovery so as to provide the Court with a full and complete record upon which to consider Fidelity's complaint. There Is a Genuine Issue of Material Fact as to the Requirements of the Extension Provision and the Consolidated EBITDA Test. Contrary to what Fidelity alleges, this is not a case involving a "clear and unambiguous" contract, the interpretation of which is a matter of law. 0B 6 at 5, 6. Under New Jersey law, a contract is ambiguous when "its terms,..are susceptible to at least two reasonable alternative interpretations." Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002). In determining if an ambiguity exists, the contract should be read "as a whole in a fair and common sense manner" (Hardy v. Abdul-Matin, 198 N.J. 95, 103 (2009)) that does not "torture the language" of the contract (Schor, 357 N.J. Super. at 191). All parts and words of an agreement 6 Citations to the "Opening Brief' or "OB" refer to Fidelity's Brief in Support of Order to Show Cause. 1 1

121 Case LSS Doc Filed 06/15/16 Page 14 of 24 must be given meaning. AXA Assurance, Inc. v. Chase Manhattan Bank, 339 N.J. Super. 22, 26 (App. Div. 2001); Krosnowski v. Krosnowski, 22 N.J. 376, 387 (1956). Further, agreements must be given a "reasonable meaning rather than an unreasonable one and a court will endeavor to give a construction most equitable to the parties and which will not give one of them an unfair or unreasonable advantage over the other." Krosnowski, 22 N.J. at 388 (internal quotation marks omitted). Interpretations that are illogical or unreasonable are to be rejected. Jorgensen v. Pennsylvania R. Co., 25 N.J. 541, 560 (1958); Homesite Ins. Co. v. Hindman, 413 N.J. Super. 41, 47 (App. Div. 2010). Moreover, courts allow parties to introduce proof of extrinsic circumstances where, in the context of the transaction and the entire agreement, there is doubt as to the meaning of a phrase, "despite a facile simplicity," Schor, 357 N.J. Super. at 192 (reversing summary judgment and remanding for trial); see also, Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, (App. Div. 2000) (same). If an ambiguity exists, New Jersey courts "allow a thorough examination of extrinsic evidence... Such evidence may include consideration of the particular contractual provision, an overview of all the terms, the circumstances leading up to the formation of the contract, custom, usage, and the interpretation placed on the disputed provision by the parties' conduct." Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269 (2006). The "objects [the parties] were thereby striving to attain" also may be considered. Id. The consideration of extrinsic evidence thus necessarily involves a fact-finding exercise that does not lend itself to summary treatment. Bedrock Foundations, Inc. v. George H Brewster & Son, Inc., 31 N.J. 124, 133 (1959); Deerhurst Estates v. Meadow Homes, Inc., 64 N.J. Super. 134, 153 (App, Div. 1960). When read "as a whole," and giving all parts meaning, the Extension Provision and the Consolidated EBITDA Test do not support the supposedly unambiguous meaning Fidelity 12

122 Case LSS Doc Filed 06/15/16 Page 15 of 24 belatedly has adopted. The Extension Provision allows Bob's to extend the Bob's Lease "[p]rovided that [the] Consolidated EBITDA as reported in [its] monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000)" (emphasis added), Fidelity's present interpretation ignores the words "as reported in [Bob's] monthly financial statements," Bob's did not have any financial statements for January 2015 when it submitted the Bob's Lease extension notice on February 10, Accordingly, the monthly financial statements for the most recently ended sixty months used to measure Consolidated EBITDA were for the period ending December 31, As Bob's demonstrated to Fidelity repeatedly, Consolidated EBITDA reported in Bob's monthly financial statements for the most recent 60- month period on the date notice of the exercise of the option was given exceeded the required threshold. Fidelity's contrary interpretation impel' iissibly gives no meaning to the reference to Bob's "monthly financial statements." The language of the Bob's Lease makes plain that the monthly financial statements are the measuring stick to be used to assess the Consolidated EBITDA Test. Fidelity would have the Court simply ignore that express direction in favor of some unspecified alternative measure. Further, nothing suggests that it was the parties' intent to allow the question of whether the Bob's Lease was extended to linger after the notice of exercise. Commercial parties make business decisions based on information available to them at the time. The Bob's Lease makes plain that the parties' intent was to determine whether the option would be exercised well in advance of the end of the initial term of the Bob's Lease, There is no language in the Bob's Lease supporting any argument that the question of the right to extend the Bob's Lease would be 13

123 Case LSS Doc Filed 06/15/16 Page 16 of 24 based on anything but the information reported in the monthly financial statements at the time the option is exercised. Had they wanted to, the parties could have provided for Consolidated EBITDA to be calculated or adjusted on a retrospective basis using additional information found in monthly financial statements created after the notice of the extension is rendered, but they did not do so. 7 In addition, the "interpretation placed on the disputed provision by the parties' conduct," Conway, 187 N.J. at 347, demonstrates that even Fidelity considered the Extension Provision to require Consolidated EBITDA to be calculated based on monthly financial statements through December 31, For nearly seven months after Bob's exercised the extension option, neither Fidelity nor Chattman, the transactional attorney who represented Fidelity in negotiating the Bob's Lease, claimed that the sixty months ending December 31, 2014, was the wrong time period. To the contrary, Chattman repeatedly affirmed that December 31, 2014, was the correct end date, for example, in requesting a KPMG verification of Vestis's calculations for the period ending December 31, Chattman even described a month-end trial balance for January 2010 as the "most important" information Fidelity needed to assess Consolidated EBITDA. Of course, both the accuracy of the December 31, 2014, calculations and the January 2010 trial balance are irrelevant under Fidelity's present theory. Fidelity's and Chattman's focus on the sixty months ending December 31, 2014, the same period Bob's used, for almost seven months shows that Fidelity and its lawyer who negotiated the Bob's Lease recognized immediately the proper interpretation of the Extension 7 Indeed, the parties crafted multiple provisions requiring retrospective creation of financial reports after the close of a relevant fiscal period to determine the parties' obligations, see Bob's Lease 4.02(c)-(d) (requiring tenant to provide statement showing gross sales within 90 days of end of Lease Year to calculate percentage rent due and permitting audits and reconciliation), 5,05 (similar procedure with respect to CAM costs), demonstrating they knew how to craft such provisions when they were intended. 14

124 Case LSS Doc Filed 06/15/16 Page 17 of 24 Provision as requiring Consolidated EBITDA to be calculated in the manner that Bob's did. Only after months of other manufactured excuses to try to avoid the extension failed did Fidelity come up with the idea of shifting the time period forward a month and then attempt to find language to support that new assertion. Fidelity's disingenuous change in position cannot undermine the inference that Fidelity's initial interpretation of the correct time period, which agreed with Bob's, was correct. Fidelity's interpretation of the Extension Provision creates a further anomaly. If indeed the relevant sixty-month period is tied explicitly to the date notice of exercise of the extension is given, the Consolidated EBITDA Test could be rendered meaningless. The option could have been exercised at any time between the start of the Bob's Lease, on February 1, 2009, and at least twelve months prior to the end of the term, which was January 31, Bob's could have exercised the option years in advance, Had Bob's done so, if the Consolidated EBITDA Test is tied strictly to the date of the notice, the Consolidated EBITDA Test would be of little use to Fidelity in determining Bob's financial health at a meaningful point in time. To avoid that problem, a reasonable alternative interpretation of the Extension Provision would be that the measuring period for the Consolidated EBITDA Test was intended to be the most recently ended sixty months with respect to which Bob's had monthly financial statements at the time the parties anticipated the option would be exercised, regardless of when the notice is delivered. Absent the need for a Reminder Notice, the parties anticipated the option being exercised no less than twelve months prior to the end of the Bob's Lease term, which was January 31, 2015, making 8 The option also could be exercised later than January 31, 2015, as it was here, where Bob's did not give notice of exercise by January 31, 2015, and Fidelity gave notice to Bob's of an additional twenty days to exercise. That Landlord notice could come at any time after January 31, 2015, and Bob's exercise of the option could occur any time before or up to twenty days after the notice. 15

125 Case LSS Doc Filed 06/15/16 Page 18 of 24 December 31, 2014, the relevant end date for the sixty-month measuring period. Fidelity's interpretation that the measuring period changes with the date of the notice, "despite facile simplicity," creates the potential for bizarre results that allows the parties' substantive rights and obligations to change depending on when a ministerial task sending a notice occurs, For example, under Fidelity's theory, were the economy slowing in late 2014 and Bob's expecting a weak holiday season compared to five years earlier, Bob's might deliver notice of the extension exercise early to cause inclusion of the more remote in time holiday season rather than the more current, but less favorable, one. 9 Conversely, if Bob's expected its January 2015 to be more favorable than January 2010, Bob's would be well-advised, under Fidelity's interpretation, to let the January 31, 2015, deadline pass and rely on the savings clause to give notice of exercise of the option within the 20-day period after Landlord sent the required notice reminding Bob's of its option. But that is not a commercially reasonable interpretation. Sophisticated parties like Fidelity and CVS would not likely agree to allow their substantive rights and obligations to vary based on when a counterparty undertook a ministerial task like sending a notice. A more likely, and at a minimum plausible, interpretation is that the parties instead had in mind fixed dates for the time of the option exercise and the corresponding sixty most-recently ended months, regardless of when the notice was delivered. Such an interpretation, consistent with both parties' conduct for many months, requires using the sixty months ending December 31, 2014, for the Consolidated EBITDA Test. 9 Indeed, had Bob's exercised the extension option a month earlier, and given that there will always be a reasonable time interval between the date the option is exercised (regardless of the date it is exercised) and the monthly financial statements that are available on that date, it is likely that Bob's decision would have been based on Consolidated EBITDA for the sixty consecutive months ending November 30, 2014, 16

126 Case LSS Doc Filed 06/15/16 Page 19 of 24 Fidelity's interpretation also is inconsistent with the savings clause requiring the Reminder Notice before Bob's can be deemed to lose its right to extend the Bob's Lease. The evident purpose of the savings clause is to preserve Bob's rights against inadvertent loss by not carrying out the ministerial task of sending the notice of exercise of the extension option. It is not reasonable to assume that the parties intended the savings clause to allow their rights and obligations to change, in either party's favor. If Fidelity's interpretation is adopted, the savings clause could have the effect of enlarging Bob's rights, if shifting the time period used to measure Consolidated EBITDA had a positive effect, or restricting Bob's rights, if shifting the time period had a negative effect on Consolidated EBITDA. But allowing either of those impacts is inconsistent with a common sense reading of the savings clause, which is that it is intended merely to preserve Bob's rights to the extension as they existed prior to the expiration of the period when the option could be exercised as of right. Interpreting the Extension Provision as a whole to fix the measuring period as ending December 31, 2014, also is consistent with New Jersey equitable principles. It is black-letter law that "[New Jersey] law abhors a forfeiture." Town of Kearny v. Discount City, Inc., 205 N.J. 386, (2011). As a result, "unless the clause is crystal clear, forfeiture should not occur. 'The effect of these clauses is to destroy an estate and accordingly they are construed strictly against the forfeiture.' Id. (citing 2 Friedman on Leases, 13:4 (Patrick A. Randolph ed. 2009)). Thus, "[w]hen a choice exists language is to be construed against rather than in favor of a forfeiture." Porter & Ripa Assocs., Inc. v. 200 Madison Ave. Real Estate Group, 167 N.J. Super. 48, 55 (App. Div. 1979). The Extension Provision provides Bob's the contractual right to extend the Bob's Lease for four periods of five years each. It is undisputed that Bob's timely submitted the extension 17

127 Case LSS Doc Filed 06/15/16 Page 20 of 24 notice after receiving the Reminder Notice from Fidelity. Further, had Bob's submitted the extension notice in January 2015, it would be undisputed that the extension was proper. Accepting Fidelity's interpretation of the Extension Provision and the Consolidated EBITDA Test could result in a forfeiture of Bob's estate in the Premises and termination of a twenty-year tenancy simply because Bob's did not submit the notice 10 days earlier. That result is contrary to New Jersey law and should not be allowed. Given the reasonable alternative interpretations of the Extension Provision and the Consolidated EBITDA Test, this Court must construe those provisions strictly against a forfeiture of Bob's rights and reject Fidelity's interpretation. None of the cases cited in the Opening Brief support Fidelity's argument that this Court should simply ignore the alternative interpretations of the Extension Provision, and the issues surrounding its interpretation, and summarily decide the matter. Instead, all of the cases cited in the Opening Brief stand for the unremarkable proposition that, i f a contract is unambiguous, the Court construes the contract without considering extrinsic evidence. See Selective Ins. Co. of Am. v. Hudson E. Pain Mgrnt. Osteopathic Medicine, 210 N.J. 597 (2012); Kieffer v. Best Buy, 205 N.J. 231 (2011); Jennings v. Pinto, 5 N.J. 562 (1950); Hess Corp. v. ENI Petroleum US, LLC, 435 N.J. Super. 39 (App. Div. 2014); CSFB 2001-CP-4 Princeton Park Corp. Ctr., LLC, 410 N.J. Super. 114 (App. Div. 2009); Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487 (App. Div. 1991). That is not the case here. In light of the ambiguity and reasonable alternative interpretations of the Bob's Lease, the parties will need at least documentary and deposition discovery from the parties, their counsel and their brokers to properly investigate Fidelity's recently-developed claims and prepare this case for an adequate trial. Such discovery cannot be completed before an expedited hearing contemplated by Rule 4:67-5 and trial will involve more than minimal testimony from at least 18

128 Case LSS Doc Filed 06/15/16 Page 21 of 24 half a dozen witnesses. 1 Since the Extension Provision is not unambiguous and requires the Court to consider extrinsic evidence, summary adjudication is not appropriate. Bedrock Foundations, 31 N.J. at 133; Great AtL & Pac. Tea Co. 335 N.J. Super. at 501; Deerhurst Estates, 64 N.J. Super. at 153. Finally, while Fidelity alleges that this matter must be decided on a summary basis because the Bob's Lease terminates on January 31, 2016, and it is "uncertain and unclear whether Bob's has effectively exercised an option to extend the lease term," OB at 2, this argument ignores that Bob's sent notice exercising the extension option more than eight months before Fidelity filed this action, Fidelity offers no reason why it did not pursue its claim months ago. Instead, it made the tactical decision to wait many months to try to create a feigned "emergency." As a result, Fidelity should not be allowed to come to this Court now and argue that it needs summary proceedings to address an exigency that it created. Granting Fidelity's request not only rewards its inequitable behavior, but unnecessarily burdens the Court and deprives Bob's of the ability to fully prepare its case. For this reason as well, summary adjudication is not necessary or appropriate. III. Specific Performance is Inappropriate. Specific performance is available in equity only "where monetary damages would not make the non-breaching party whole." Jersey City Redevelopment Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381, 403 (App. Div. 1996), It is "generally recognized as the appropriate remedy when an agreement concerns possession of property such as 'heirlooms, family treasures and works of art that induce a strong sentimental attachment." Houseman v, Dare, 405 N.J. 10 Bob's anticipates that trial will require testimony at least from one or more representatives of each of the three parties, their counsel, and possibly brokers involved in the Bob's Lease negotiations. Such a trial would not entail "minimal testimony." 19

129 Case LSS Doc Filed 06/15/16 Page 22 of 24 Super. 538, 543 (App. Div. 2009). Courts use "considerable caution... in decreeing the specific performance of agreements." Centex Homes Corp. v. Boag, 128 N.J. Super. 385, 393 (Ch. Div. 1974). Importantly, the Appellate Division has stated clearly that specific performance is not appropriate when a contract is ambiguous. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588 (App. Div. 2005). In Marioni, the Court held: In general, to establish a right to the remedy of specific performance, a plaintiff must demonstrate that the contract in question is valid and enforceable at law, that the terms of the contract are 'expressed in such fashion that the court can determine, with reasonable certainty, the duties of each party and the conditions under which performance is due,' and that an order compelling performance of the contract will not be "harsh or oppressive," 374 N.J. Super. at As demonstrated above, the Extension Provision and the Consolidated EBITDA Test are ambiguous and require the Court to consider parol evidence to determine the parties' intent. As such, pursuant to the Appellate Division's decision in Marioni, it is inappropriate for this Court to award specific performance. Further, as noted in the cases Fidelity cites in the Opening Brief, when monetary damages are available, specific performance is inappropriate. Centex Homes, 128 N.J. Super. at 393; Jersey City Redevelopment Agency, 289 N.J. Super. at 404. Monetary damages here would rectify any loss Fidelity suffers. Fidelity has not articulated any harm, let alone irreparable harm, it would suffer if it does not receive an order of specific performance. Fidelity cites Moorestown Mgmt., Inc. v. Moorestown Bookshop, Inc., 104 N.J. Super. 250 (Ch. Div. 1969), and Dover Shopping Ctr., Inc. v. Cushman 's Sons, Inc., 63 N.J. Super. 384 (App. Div. 1960), for the proposition that cases involving shopping centers deserve special treatment and warrant specific enforcement of lease terms. OB at Those cases are distinguishable from the instant matter, however. 20

130 Case LSS Doc Filed 06/15/16 Page 23 of 24 The lease at issue in Moorestown required the tenant to join a communal association and pay dues to maintain common property. The tenant initially joined the association but later resigned, claiming that the association's by-laws conflicted with the tenant's internal policies. The court ordered the tenant to rejoin the association and pay the dues owed because the association would not be able to maintain common property without all tenants' participation, to the detriment of all tenants of the shopping center." Id. at 257. In Dover, the parties entered into a contract allowing the tenant to operate a retail bakery. The lease contained two important provisions. First, if the tenant breached the lease, the parties agreed that the landlord would be entitled to specific performance. 63 NJ. Super. at 391 Second, in addition to the base rent, the landlord was entitled to a portion of the tenant's sales. Id. After running the bakery for less than two years, the tenant determined it was economically advantageous to close the business and continue paying the landlord the base rent. Id. The landlord sued for specific performance asking the court to order the tenant to resume operations because it would otherwise lose the additional money that it would receive from its portion of the tenant's sales. The court determined that specific performance was appropriate given the terms of the contract, including "the uniqueness of a percentage lease." Id. Neither of those situations are present here. Unlike the tenants in Moorestown and Dover, Bob's has honored its obligations to its landlord and co-tenants. Given that important difference, awarding specific performance at this stage is inappropriate and unsupportable. IV. A Mandatory Injunction is Similarly Unwarranted. New Jersey law is clear that lain injunction should only be granted when: 1) such relief is necessary to prevent irreparable harm; 2) the applicant presents a settled underlying claim and While formulated as an order of specific performance, the judgment in Moorestown has little practical difference from an award of money damages for the unpaid dues. 21

131 Case LSS Doc Filed 06/15/16 Page 24 of 24 makes a showing of reasonable probability of success on the merits; and 3) balancing of the relative hardships of the parties favors granting relief." Plotnick v. Deluccia, 434 N.J. Super. 597, 611 (Ch. Div. 2013) (citing Crowe v. De Gioia, 90 N.J. 126, 139 (1982)). To be entitled to an injunction, Fidelity has the burden of establishing each of those criteria by clear and convincing evidence. B&S Ltd, Inc. v. Elephant & Castle Intern., Inc., 338 N.J. Super. 160, 168 (Ch. Div. 2006). But aside from its conclusory assertions, Fidelity does not allege, let alone prove by clear and convincing evidence, a threat of irreparable harm, or indeed any harm. It also is unlikely that Fidelity's interpretation of the Extension Provision or the Consolidated EBITDA Test will be successful. See supra Sec. II. At a minimum, Fidelity has failed to prove with clear and convincing evidence that it has a reasonable probability of success on the merits. Accordingly, entry of a mandatory injunction is inappropriate. CONCLUSION For the reasons set forth herein, this action should not proceed as a summary action and should be treated as a plenary contract action, Dated: November 19, 2015 KLEHR I IARRIS ON HARVEY BRANZBURG LLP By: Glenn A. Weiner (N Bar No, ) Scan M. Brennecke (NJ Bar No ) 457 Haddonfield Road, Suite 510 Cherry Hill, New Jersey Tel: (856) gweiner@klehr.com sbrennecke@klehr.com Attorneys for Defendant Bob's Stores, LLC 22

132 Case LSS Doc Filed 06/15/16 Page 1 of 42 Exhibit C Reply Brief

133 Case LSS Doc Filed 06/15/16 Page 2 of 42 : SUPERIOR COURT OF NEW JERSEY FIDELITY TOTOWA ASSOCIATES, : CHANCERY DIVISION L.L.C., : PASSAIC COUNTY Plaintiff, : DOCKET NO. PAS-C v. Civil Action BOB'S STORES, LLC and CVS PHARMACY, INC., Defendants. REPLY BRIEF IN FURTHER SUPPORT OF ORDER TO SHOW CAUSE Jeffrey M. Garrod (NJ ID # ) ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. 101 Eisenhower Parkway, Suite 400 Roseland, New Jersey (973) jnig@olss.com Attorneys for Plaintiff Fidelity Totowa Associates, L.L.C.

134 Case LSS Doc Filed 06/15/16 Page 3 of 42 PRELIMINARY STATEMENT Section 2.02 of Bob's Stores, LLC's ("Bob's") Lease -- the EBITDA Provision -- provides that Bob's can extend the term of the Lease for a new five-year term if the "Consolidated EBITDA (as hereinafter defined), as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000)..." [Exh. "A" ( 2.02) to Verif. Compl. (emphasis supplied)]. It is not disputed that Bob's is obligated to produce Consolidated EBITDA information to plaintiff Fidelity Totowa Associates, L.L.C. ("Fidelity") for a sixtyconsecutive fiscal month period. What is at issue is the simple legal question of the date when that sixty-month period ends based upon the EBI'l DA Provision's clear and unambiguous language that it is the sixty consecutive fiscal month period "nearest the date the option is exercised." It is not disputed that Bob's exercised the option on February 10, [Exh. "C" to Certification of Stephan Cutler ("Cutler Cert.")]. Applying the EBITDA Provision as it was drafted by Bob's, Fidelity contends that the sixty-consecutive fiscal month period nearest February 10, 2015 ended on January 31, 2015, which also happens to be the close of Bob's fiscal year. Claiming that the EBITDA Provision is somehow ambiguous, Bob's argues that the sixty-month period nearest February 10, 2015 did not end on January 31, 2015, but ended on December 31, Bob's claims that the sixtymonth period terminates at the end of the last month for which audited financial

135 Case LSS Doc Filed 06/15/16 Page 4 of 42 statements actually existed as of the date the option was exercised. There is no language in the EBITDA Provision which supports this interpretation. Contrary to Bob's claim as to the meaning of this provision, in a March 10, 2015 letter, Bob's provided Fidelity with Consolidated EBITDA information for the 60- month period ending December 31, 2014 even though audited financial statements for the twelve months ending December 31, 2014 had not yet been prepared. [Id. at Exh. "G"]. 1 Bob's does not deny that the Consolidated EBITDA information for the month of January, 2015 existed as of February 10, To provide the Consolidated EBITDA information for the 60-month period ending January 31, 2015, all it has to do is delete the month of January, 2010 and add information for January, 2015 to the schedules of Consolidated EBITDA annexed to its March 10, 2015 letter. [See Id.] The EBITDA Provision does not refer to audited financial statements and does not state that the monthly financial statements must be in actual existence on the day the option is exercised. Bob's refusal to provide its Consolidated EBITDA for the sixty months ending January 31, 2015 is an attempt to conceal that its Consolidated EBITDA as of that date does not satisfy the condition necessary for it to exercise its option to extend the lease and keep the CVS guaranty in place. Rather than come clean and admit its predicament, Bob's is attempting to obfuscate and rewrite the contract provision. Bob's has even attempted to interfere with Fidelity's ability and right under this Court's 1 For the convenience of the Court, this letter, which was filed as Exhibit "G" to the Cutler Certification, has been annexed hereto as Exhibit "A." -2-

136 Case LSS Doc Filed 06/15/16 Page 5 of 42 October 13, 2015 Order to Show Cause to reply to Bob's answering papers. The Order to Show Cause directed Bob's to file and serve on Fidelity's counsel its answering papers on or before November 19, Bob's hand-delivered its papers to the Court on the 19th, but intentionally did not serve its papers on Fidelity's counsel, even though its attorneys' offices are on the way to the courthouse. Instead, Bob's sent its papers by regular mail, which mail was not received until Monday, November 23, This was not timely service of opposition papers pursuant to this Court's Order or under Rule 1:6-3. Only after Fidelity called Bob's on its violation of the Order to Show Cause and our Rules of Court did Bob's hand-deliver its papers to Fidelity at the close of business on Friday, November 20. Bob's gamesmanship has prejudiced Fidelity by compromising its opportunity to reply after Bob's had five weeks to respond and Fidelity consented to Bob's counsel's request to move up the return date of the Order to Show Cause to accommodate a personal appointment. Such sharp practices should not be tolerated by this Court. The Order to Show Cause provides that if Bob's does not timely file and Serve its opposition to the Order to Show Cause, this Court can decide Fidelity's application on the return date and grant the requested relief. This Court should disregard Bob's opposition that was not timely served and grant Fidelity's application in its entirety. On the return date, this Court should order Bob's to produce the Consolidated EBITDA for the 60-month period ending January 31, 2015, in the format annexed to Bob's March 10, 2015 letter. [See Id.] There is no reason why Bob's cannot provide Fidelity with this information so that Fidelity can determine whether Bob's has -3-

137 Case LSS Doc Filed 06/15/16 Page 6 of 42 satisfied the EBITDA Test for the purpose of extending the Bob's Lease term and continuing CVS's guaranty of Bob's Lease obligations during that extended term. If Bob's meets the EBITDA Test, Fidelity's declaratory judgment claim will be moot and this matter will be concluded. This Court should also set a date for a summary proceeding before the January 31, 2016 end date of the current Lease term to adjudicate Fidelity's claim for a declaratory judgment as to the end date of the 60-month period to measure the Consolidated EBITDA. There is nothing unclear, uncertain or ambiguous about the EBITDA Provision. As to the EBITDA Provision, Bob's has admitted that "[n]othing could be clearer" that "[b]oth the precise language and the clear intention of the parties" is that it is the Consolidated EBITDA for the "sixty (60) consecutive fiscal months nearest the date the option is exercised" that is determinative of whether Bob's has satisfied the condition necessary to extend the option and secure CVS' continuing guaranty. [Id. at Exh. "E" (at p. 3)]. Bob's has also acknowledged that the "sole rationale" for using Consolidated EBITDA for the 60 months immediately preceding the exercise of the option is that CVS, the guarantor of Bob's Lease obligations, wanted to be satisfied that Bob's "was solvent when it exercised the extension option[]" under Bob's Lease. [Id.] Given the clear and unambiguous language of the EBITDA Provision, this Court can and should summarily decide the simple legal question of whether, based upon Bob's February 10, 2015 exercise of the option, the 60-consecutive fiscal month period ends on December 31, 2014 or January 31,

138 Case LSS Doc Filed 06/15/16 Page 7 of 42 LEGAL ARGUMENT POINT I ON THE RETURN DATE, THIS COURT SHOULD ORDER BOB'S TO PROVIDE FIDELITY WITH CONSOLIDATED EBITDA INFORMATION FOR THE 60-CONSECUTIVE FISCAL MONTHS ENDING JANUARY 31, 2015 On the return date of the October 13, 2015 Order to Show Cause, this Court should order Bob's to provide Fidelity with the Consolidated EBITDA information for the 60-consecutive fiscal month period ending January 31, Nowhere in Bob's answering papers has Bob's claimed it does not have the Consolidated EBITDA information for the month of January, 2015, or that it cannot readily provide this information to Fidelity. Bob's does not need an audited financial statement to provide this information to Fidelity. Even if it did, the audited financial statement for the fiscal year ending January 31, 2015 exists. In Bob's March 10, 2015 letter to Fidelity, Bob's provided Fidelity with Consolidated EBITDA financial information for the 60-consecutive fiscal month period of January, 2010 through December, [Id. at Exh. "G"]. In providing this information to Fidelity, Bob's stated that "the period from February December 2014 is not yet fully audited." [Id. at p. 1 (emphasis supplied)]. There is no reason why Bob's cannot provide this same information for January, 2015 in the same format annexed to its March 10, 2015 letter. [See Id. (attached consolidated financials)]. Moreover, Bob's has already provided Fidelity with an audited financial statement for the fiscal year ending January 31, [Id. at Exh. "M"]. What it has refused to provide is the Consolidated EBITDA -5-

139 Case LSS Doc Filed 06/15/16 Page 8 of 42 information for the salient month of January, 2015, which cannot be gleaned from the audited financial statement and must be provided by Bob's. [Id.] Bob's should be ordered to provide Fidelity with Consolidated EBITDA information through January 31, 2015 because it is only by obtaining this information that Fidelity will be able to ascertain whether Bob's has met the EBITDA Test as a condition precedent to Bob's extending the Lease term and Fidelity's securing CVS's continuing guaranty of Bob's performance during the extended Lease term. Money damages will not adequately compensate Fidelity for the loss of the security provided by CVS's Guaranty. [Db19]. As Bob's has recognized, the "sole rationale" for including the EBITDA Test in Bob's Lease was to satisfy CVS, as the guarantor of Bob's Lease, that Bob's was solvent as of the time it exercised the extension option. [Id. at Exh. "E" (at p. 3)]. Consequently, renewal of CVS' obligation under the Guaranty is contingent upon the very same EBITDA Test that Bob's must satisfy to exercise the extension option. Absent Bob's production of Consolidated EBITDA information through January 31, 2015, Fidelity cannot ascertain whether Bob's has met the EBITDA Test. 2 2 Bob's attempt to distinguish Moorestown Mgmt., Inc. v. Moorestown Bookshop, Inc., 104 N.J. Super. 250 (Ch. Div. 1969), and Dover Shopping Ctr. v. Cushman's Sons, Inc., 63 N.J. Super. 384 (App. Div. 1960), is misplaced. [Db21]. The reason why specific performance was awarded in those cases was because money damages would not provide the non-breaching party with "a substantial equivalent of the promised performance." Moorestown Mgmt., 104 N.J. Super. at 263. That is precisely the reason why Bob's should be ordered to provide Fidelity with Consolidated EBITDA for the 60-month period ending January 31, If Bob's continues to withhold this information, Fidelity will not be able to confirm that Bob's has satisfied or not satisfied the EBITDA Test that is a condition precedent to extending the Lease term and CVS' continuing guaranty obligation. -6-

140 Case LSS Doc Filed 06/15/16 Page 9 of 42 Importantly, Fidelity is only missing Consolidated EBITDA information for January, the sixtieth month of the period nearest the February 10, 2015 date upon which Bob's exercised the extension option. All that Bob's has to do is to extract the data for January, 2010 and add the data for January, On the return date, this Court should order Bob's to provide Fidelity with Consolidated EBITDA information for the 60-consecutive fiscal month period ending January 10, 2015 in the same format annexed to the March 10, 2015 letter. [See Id. at Exh. "O"]. POINT II THIS COURT SHOULD SET A DATE FOR A SUMMARY PROCEEDING TO DECIDE THE SIMPLE LEGAL QUESTION OF WHAT IS THE END DATE FOR MEASURING THE 60-MONTH PERIOD OF CONSOLIDATED EBITDA INFORMATION THAT DETERMINES WHETHER BOB'S HAS MET THE EBITDA TEST Rule 4:67-1(b) provides for this Court to proceed summarily when, as here, "it is likely that the matter may be completely disposed of in a summary manner." This matter is ripe for summary adjudication because it presents a simple question of law that this Court can and should decide: what is the end date for measuring the 60-consecutive fiscal month period of Consolidated EBITDA information that determines whether Bob's has satisfied a condition to extend its lease and continue the CVS guaranty. See Selective Ins. Co of Am. v. Hudson East Pain Mgmt. Osteopathic Medicine & Physical Therapy, 210 N.J. 597, 605 (2012) ("[T]he interpretation of contract language is a question of law."). Bob's does not dispute that the interpretation of the EBITDA Provision is a matter of law for this Court to decide. [Db11]. -7-

141 Case LSS Doc Filed 06/15/16 Page 10 of 42 The EBITDA Provision of Bob's Lease unequivocally provides that Bob's can extend the term of the Lease for a five-year term if the "Consolidated EBITDA (as hereinafter defined), as reported in Tenant's monthly financial statements for the most recently ended sixty (60) consecutive fiscal months nearest the date the option is exercised is greater than One Million Dollars ($1,000,000)..." [Exh. "A" ( 2.02) to Verif, Compl. (emphasis supplied)]. There is no dispute that Bob's exercised the option on February 10, [Exh. "C" to Cutler Cert.]. Fidelity contends that the sixty-month period nearest February 10, 2015 ended January 31, Bob's claims that the sixtymonth period ended on December 31, This Court can interpret the "very plain words" of the EBITDA Provision to decide the simple legal question of which date controls. Korb v. Spray Beach Hotel Co., 24 N.J. Super. 151, 155 (App. Div. 1952) ("Furthermore, where the parties have said, by very plain words, what they meant, the court has no duty to perform other than to carry their meaning into effect."). This Court may proceed in a summary manner because Bob's has failed to meet its burden of establishing a genuine issue of material fact as to the legal meaning and effect of the EBITDA Provision. R. 4:67-5. "Nothing could be clearer" to Bob's than the plain language meaning of the EBITDA Provision when it exercised the extension option. [Exh. "E" (at p. 3) to Cutler Cert.]. Ten days after exercising the option on February 10, 2015, Bob's counsel stated: Both the precise language and the clear intention of the parties is that Tenant's Consolidated EBITDA exceed $1,000,000 over "sixty (60) consecutive fiscal 3 The end of Bob's fiscal year is January

142 Case LSS Doc Filed 06/15/16 Page 11 of 42 months nearest the date the option is exercised." Nothing could be clearer. [Id. (emphasis supplied)]. Bob's counsel acknowledged that the "sole rationale" for including the EBITDA Test in Bob's Lease was to satisfy CVS, as the guarantor of Bob's Lease, that Bob's was solvent as of the time it exercised the extension option: Secondly, as the Landlord is well aware, the sole rationale for including the Consolidated EBITDA Test in the Leases was to satisfy the Guarantor that the Tenant was solvent when it exercised the extension options under each Lease. [Id. (italics in original and emphasis supplied)]. This acknowledgement confirms Bob's understanding that the EBITDA Provision requires Consolidated EBITDA information for the 60-month period nearest, or immediately preceding, the exercise of the extension option because it is this Consolidated EBITDA information that is critical to satisfying CVS whether Bob's is solvent at the time it exercises the extension option. Bob's incorrectly argues that this Court cannot convene a summary proceeding because the EBITDA Provision is ambiguous. [Dbll]. To be ambiguous, the EBITDA Provision must be "susceptible to at least two reasonable alternative interpretations," which is itself a question of law for this Court to decide. Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 476 (App. Div. 2008). Bob's has not shown the EBITDA Provision is ambiguous as to determining the end date for applying the EBITDA Test. Nothing in the EBITDA Provision requires that the Consolidated EBITDA must be measured by audited financial -9-

143 Case LSS Doc Filed 06/15/16 Page 12 of 42 statements in existence on the date the option is exercised. [Db13]. 4 There is no language in the EBITDA Provision stating that audited financial statements must be in existence on the date the option is exercised or as of any other date. Those words do not appear in the EBITDA Provision. The concept that an audited financial statement must be in existence at the time the option is exercised is totally foreign to the EBITDA Provision. 5 It is language that Bob's would like this Court to add to the EBITDA Provision, but New Jersey law forbids this Court from adding this language to create the ambiguity Bob's seeks. 6 Whatever Bob's may claim to have been the historical evolution of the EBITDA Provision that it drafted and which must be strictly construed against it, see In re Miller, 90 N.J. 210, 221 (1982), Bob's cannot use parol evidence to create an ambiguity by rewriting the EBITDA Provision to impose the requirement that the Consolidated EBITDA to be utilized in determining whether Bob's has satisfied the EBITDA Test must be obtained only from an audited financial statement in existence on the date when the extension option is exercised. See Chance v. McCann, 405 N.J. Super. Bob's does not contend that the financial information to deteiinine the Consolidated EBITDA for 60 months ending January 31, 2015 did not exist as of February 10, That other provisions may have contemplated the creation of financial reports is irrelevant to the EBITDA Provision because it is Consolidated EBITDA information, not a particular report, that is material to the EBITDA Provision's EBITDA Test. [Db14 n.7]. 6 It is for this reason that it is legally irrelevant when Bob's audited financial statement for the fiscal year ending January 31, 2015 was completed. In any event, Bob's has failed to present admissible evidence of this claimed fact because its attorney's statement as to when this audited financial statement was completed is inadmissible hearsay as to which he has no personal knowledge. [Cutler Cert., 25]. -10-

144 Case LSS Doc Filed 06/15/16 Page 13 of , 564 (App. Div. 2009) ("Because there is no ambiguity in the agreement as written with respect to that issue, there is no need for parol or extrinsic evidence to interpret it."). In Casriel v. King, 2 N.J. 45, 50 (1949), the New Jersey Supreme Court explained that parol evidence is not admissible "for the purpose of giving effect to an intent at variance with any meaning that can be attached to the words." As the EBITDA Provision does not provide that audited or even monthly financial statements must exist on the date that the option is exercised, Bob's cannot impose this new term and condition contrary to the plain language meaning of the EBITDA Provision that only requires Consolidated EBITDA for the 60-month period immediately preceding the option. See Petersen v. Tp. of Raritan, 418 N.J. Super. 125, 133 (App. Div.2011) (Courts "do not supply terms to contracts that are plain and unambiguous, nor do we make a better contract for either of the parties than the one which the parties themselves have created.")). If Bob's were permitted to read this new requirement into the EBITDA Provision, it would violate New Jersey law by fundamentally altering the parties' contract. See McBride v. Maryland Cas. Co., 128 N.J.L. 64, 68 (E. & A. 1941) ("It is not the province of this court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to the wisdom or folly, as the court cannot supply material stipulations or read into the contract words which it does not contain."). If the EBITDA Test were subject to the existence of audited financial statements on the day the option is exercised, it would be easy for Bob's to manipulate the EBITDA Test to CVS's and

145 Case LSS Doc Filed 06/15/16 Page 14 of 42 Fidelity's prejudice. If the financial information did not satisfy the EBITDA Test for the 60-month period nearest the date the option is exercised, Bob's could delay or withhold the preparation of the financial statements showing the EBITDA Test was not met until after its option was exercised. The EBITDA Provision does not provide or permit Bob's to manipulate the 60-month period to measure Consolidated EBI1DA by controlling when it chooses to prepare a financial statement. The law does not permit such an unfair and prejudicial result that is clearly contrary to the parties' bargain. See Russell v. Princeton Labs., Inc., 50 N.J. 30, 38 (1967) ("A contract should not be read to vest a party or his nominee with the power virtually to make his promise illusory. Especially must this be so when a forfeiture will follow."). Faced with the clear and unambiguous meaning of the EBITDA Provision, Bob's resorts to totally hypothetical and imagined scenarios that are just plain nonsense and which do not create an ambiguity in what the EBITDA Provision plainly provides. Bob's conjectural claim that the language of the EBITDA provision does not mean what it says because Bob's could have exercised the extension option years ago. [Dbl 5]. If it had (which it did not), the EBITDA Test would have determined Bob's solvency at that time because that is what the parties agreed. It is neither anomalous nor "bizarre" that Bob's, in drafting the EBITDA Provision, tied the 60-month period to the date the option was exercised because the purpose of the EBITDA Test was to satisfy CVS that Bob's met the EBITDA Test as of the date the option was exercised. [Db15-16]. -12-

146 Case LSS Doc Filed 06/15/16 Page 15 of 42 Bob's exercising the option is not some "ministerial task," but a contract right that must be exercised [Db16]. Cooper v. Kensil, 31 N.J. Super. 87, 92 (Ch. Div.), aff'd, 33 N.J. Super. 410 (App. Div. 1954). The parties agreed that Bob's exercise of the extension option would not be effective unless Bob's satisfied the EBITDA Test. Regardless of when Bob's exercised the option, its Consolidated EBITDA is tied to the 60-month period immediately preceding that event. [Db17]. This Court can determine as a matter of law what the end date of that 60-month period is based upon the undisputed fact of when the triggering event occurred (exercise of the option). Another ridiculous claim is that Bob's will suffer a "forfeiture" of a "twenty-year tenancy" if the EBITDA Provision is enforced as it was drafted by Bob's. [Db18]. Bob's has a contractual right to exercise an extension option only if it can satisfy a condition as to its Consolidated EBITDA. Fidelity is not seeking to terminate Bob's tenancy and has no objection to Bob's exercise of the extension option provided it satisfied the EBITDA Test. If the EBITDA Provision is not enforced as drafted by Bob's, it is Fidelity that will suffer the forfeiture of control of its own leasehold and its protection under the CVS Guaranty. This Court should construe the EBITDA Provision as written to avoid causing Fidelity to suffer the forfeiture of its CVS guaranty, which is disfavored as a matter of New Jersey law. See Lehigh Valley R.R. Co. v. Chapman, 35 N.J. 177, 188, cert. den., 368 U.S. 928 (1961) (As "the law abhors a forfeiture," New Jersey adheres to the "recognized rule of construction dictat[ing] that an instrument, when a choice exists, is to be construed against rather than in favor of a forfeiture."); Carlin v. City of Newark, 36 N.J. Super. 75, 90 (Law Div. 1955) ("Generally, the law -13-

147 Case LSS Doc Filed 06/15/16 Page 16 of 42 regards penalties and forfeitures with disfavor; strictly construes contracts containing provisions for forfeitures; and, where possible, favors a construction which will avoid a forfeiture."). Bob's remaining claims are equally spurious. Fidelity is not to blame for the delay caused by Bob's intransigent refusal to produce the Consolidated EBITDA information. [Db19]. In the very letter exercising the extension option, Bob's recognized its obligation to provide Consolidated EBITDA for the 60-month period preceding "the date of this letter," but failed to provide it. [Exh. "C" to Cutler Cert.]. Only when it was called on its failure did Bob's then contumaciously refuse to produce it. Lastly, Bob's claim that it needs discovery simply rings hollow. [Db18]. Nowhere does Bob explain what facts would be gleaned from any unidentified witnesses and documents. Bob's cannot demonstrate a material fact question simply by making vague and conclusory statements that it needs unspecified discovery. See Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 538 (App. Div. 2009), certif. den., 203 N.J. 93 (2010). Nor has Bob's explained why the legal question of the end date for applying the EBITDA Test is not a matter that would require, at most, more than the "minimal testimony" permitted by the Summary Proceeding Rule. R. 4:67-2(b); see In re Cohen, 2011 WL , at *11 (App. Div. Jul. 5, 2011), certif. den., 208 N.J. 371 (2011) (explaining that the reference in R. 4:67-2 to "minimal testimony' has been construed as testimony that will probably not exceed one day," which "reflects the intent of the rule that the testimony is generally limited and relatively brief.") (annexed hereto as Exhibit "B"). Accordingly, this Court should set a summary -14-

148 Case LSS Doc Filed 06/15/16 Page 17 of 42 proceeding date to decide the purely legal question of whether, given the undisputed fact that Bob's exercised the extension option on February 10, 2015, the end date of the 60- month period of Consolidated EBITDA utilized to determine whether Bob's satisfied the EBITDA Test as a requirement for extending the lease and securing CVS' continuing guaranty ended on December 31, 2014 or January 31, CONCLUSION On the return date of the October 13, 2015 Order to Show Cause, this Court should order Bob's Stores, LLC to produce its Consolidated EBITDA information for the 60-consecutive fiscal month period ending January 31, 2015 and set a date for a summary proceeding to determine the legal question of what is the end date of that period for applying the EBITDA Test. Respectfully submitted, ORLOFF, LOWENBACH, STIFELMAN & SIEGEL, P.A. Attorneys for laintiff Fidelity Toto a A so i. L.L.C. Dated: November 25, 2015 BY: JEFF J4ARRJD -15-

149 Case LSS Doc Filed 06/15/16 Page 18 of 42 EXHIBIT A

150 Case LSS Doc Filed 06/15/16 Page 19 of 42 VESTIS R F IA I 1, G RO U P March 10, 2015 VIA UPS & TO RSLATER.J.KAMINSKI@SLATERCOMPANIES, Fidelity Totowa Associates, LLC c/o LRF Slater Companies, Inc. 301 South Livingston Avenue, Suite 204 Livingston, NJ Attention: Mr. Robert Slater COM VIA UPS & TO: SMC@OLSS. COM Sanders M. Chattman, Esq. Orloff, Lowenbach, Stifeltnan & Siegel, PA. 101 Eisenhower Parkway Roseland, NJ Re: Lease Agreement dated February 1, 2009 ("Totowa Lease") between Fidelity Totowa Associates, LLC ("Landlord") and Bob's Stores, LLC ("Tenant' or "Bob's") for premises containing approximately 49,806 square feet of floor area in e sho sla I as Toto uar ent T. 1.1` Gentlemen: Enclosed please find Vestis Retail Group, LLC's ("Vestis") financial information for the period January 2010 through December 2014 by fiscal month. By way of background, Vestis was formed to invest in and turnaround financially-distressed companies. The success of Bob's as a stand-alone company was the basis for Vestis' additional investments in Eastern Mountain Sports LLC ("EMS")in the fall of 2012 and Sport Chalet, LLC ("Sport Chalet") in the Summer of Restructuring and integrating assets are an essential component of the Vest:is investment hypothesis. Vestis is confident that the progress achieved at Bob's will be replicated across the entire Vestis portfolio over the next two years. Vestis' fiscal year is February January. As a result, this information includes full fiscal years for 2010, 2011, 2012, The values presented herein match year-end financial statements audited by ICPMG and therefore conform to GAAP standards. lja.nuary 2010, as a one-month period, was not audited but was included as identified in the 2009 fiscal year audit also conducted by ICPMG. Lastly, the period from February December 2014 is not yet fully audited. Vestis is 'Please note, Vestis' year-end financials are presented in annual format, not monthly. Accordingly, the monthly schedules attached are the best available representation of annual statements.

151 Case LSS Doc Filed 06/15/16 Page 20 of 42 still completing its year-end/purchase accounting and we expect that the information presented in these periods will be essentially unchanged at the completion of the audit. In the attached schedules, you will find that, prior to the acquisition of EMS and Sport Chalet, resttucturing and non-recurring fees were not a convention -used by Vestis. Activity on the items identified as (4) Non-cash charges, etc., (6) Non-recurring fees and expenses and (7) Nonrecurring integration costs, etc. correspond directly to the purchase of EMS and the acquisition of Sport Chalet and were not used prior to those events. Selected additional detail is provided for some of these expenses. You will see that store closing expenses (both cash and non-cash) are a minimal component of consolidated EBITDA. If you have any further questions, please direct them to our attorney. Vestis Retail Group, LI.,C By: Name: Susan J.( Title: Chief Financial Officer cc: Tom Connolly (w/ encl. via ) Stephan". Cutler, Esq. (w/ erta via ) PHIL v1

152 ~~ Case LSS Doc Filed 06/15/16 Page 21 of 42 CO h- GO Cro r - 01 GO 4- f co' r; 44- co" s 2 NT a CO ec; c't... CO GO o N.. co to o) co co N 01, - 3 n <0. GO GO- C),, Ca 0 cjt-fr 1:117 N- co o) cr) r0 CD n Grt, h: of cm ET) 3 a co h- CO N N 0 0 r,,zr, N l r Nr ter ta, LO 03 GO co co * co. o. ) (.0 CO at g N 00 GO C)Ca C. " 0 Net Income! (Loss) E of assets related to the (7) Non-recurring integration costs and restructuring charges Consolidated EBITDA

153 ~~ Case LSS Doc Filed 06/15/16 Page 22 of 42 3 co in o o co LO Ifl 2 rf cci 4.0 I. I ~~ Lr) u*, o) 0 in u) 0 CO N 0) I. N N CI. CO 0 CI 0 au 0 CO L17 j2:)q 50.' 14 gl CO.4. NOON 0 0 CO 0) 0 00 U7 itcr.0 1r Gi CO 07 RONO 0 )0 CO cf) 0 0 CO 0 N 3 < v- 41) ~~ 4, CI 4 0 <S) 4 '134ctiSc3.0 2Cr;CF:-7 F a co 0 ul cn co,7, 7) co a) 0 Consolidated Net Income Consolidated EBITDA

154 Case LSS Doc Filed 06/15/16 Page 23 of 42 h W,,ONO 0 W O WWN W W, 0 N:" W h NI N- LO LI N- C+) 0 0q W ,0 0 WO 10 N CO N CO N. - O co O) N WNCOOI0 0,0, 3 cl o o o N,MW cr, N st to Consolidated Net Income Consolidated EBITDA

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156 Case LSS Doc Filed 06/15/16 Page 25 of 42 3, Acrq g"" 0 WV) A r) T: vi c,,, 4, ,- r , -,t0c, ONO VD002R MR o U) N ) 0 0 N 4.) a ommomm m o A IN 'V M 0 10 N 0 M LI" WN 0 N " CO r- ci2 WN g.."" 0> ". 2. Est...An o o ; to Cr? M Consolidated Net Income -8-5 g -e g.c 1-0 m g O -a C co Itg. A v 2-o o. g.t..2g5 1 12g (0 cms=22 c m 22Nyvi 8-sleg.2 Ci.C.O.Z 0 2 'r rnmni-100 S Consolidated EBITDA

157 Case LSS Doc Filed 06/15/16 Page 26 of 42 ii *A coolootog c)) co co 0) (-- ~~ o csa a 0 a g voo.a- 1.- M r-w CO In to a) co" m m o cf fp.a 8 0, 0000MO CO WO MN 0 '-CO N a=csr ro6 In 03( O 4 so a) om NN NCO. IN 0 In Se. P Fs ( N CD CO N 1.42 a -YR r-nc.,0,76. 74; N 0 W 0) *Z. 01 WOOLOO (0 CD 03 COIN CO 0 co co es' 00-^000 0 OVS COIN N 0 g 8 " W c= CO.se N N" ID Net Income / (Loss) Consolidated Net Income

158 Case LSS Doc Filed 06/15/16 Page 27 of 42 EXHIBIT B

159 Case LSS Doc Filed 06/15/16 Page 28 of 42 In re Cohen, Not Reported in A.3d (2011) 2011 WL Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of New Jersey, Appellate Division. In the Matter of Robert COHEN, An Alleged Incapacitated Person. Argued April 5, Decided July 5, On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P The probate matter arose from the separate complaint in the Chancery Division against Robert and defendant James Cohen, Robert's son, Claudia's brother and Samantha's uncle, which alleged, in part, that Robert failed to abide by a promise to Claudia, 2 that she would share equally in his estate. Judge Koblitz, sitting in the Probate part, determined that Robert was not incapacitated and rejected the appointment of a guardian ad litem. She also declined to appoint independent counsel pursuant to Rule 4:86-4(b), as Robert was properly represented by counsel. We conclude that the judge's determination that Robert was not incapacitated, despite his physical disabilities, was supported by substantial credible evidence. We also reject plaintiffs' additional arguments raised on the appeal and affirm. Attorneys and Law Firms Peter G. Vemiero argued the cause for appellants Ronald Perelman and Samantha Perelman (Sills, Cununis & Gross, P.C., and Walder, Hayden & Brogan, P.A., attorneys; Justin P. Walder, K. Roger Plawker, Rebekah R. Conroy and Lin C. Solomon, of counsel and on the brief). Benjamin Clarke argued the cause for respondent James Cohen (DeCotiis, FitzPatrick & Cole, L.L.P., attorneys; Frank Huttle, III, of counsel; Mr. Clarke, Russell J. Passamano and Irene Stavrellis, on the brief). Christopher L. Weiss argued the cause for respondent Robert Cohen (Ferro, Labella & Zucker, L.L.C., attorneys; Mr. Weiss, of counsel and on the brief; Russell T. Brown, on the brief). Before Judges CARCHMAN, GRAVES and ST. JOHN. Opinion PER CURIAM. *1 This appeal represents a part of the array of litigation pending between these and related parties. Plaintiffs Ronald Perelman, as Executor of the Estate of Claudia I Cohen (the Estate), his former wife, and Samantha Perelman, his and Claudia's daughter, appeal from an order of the Probate Part denying plaintiffs' application to have defendant Robert Cohen, Claudia's father, declared incapacitated for the purposes of litigation pending between the parties. I. Consideration of the facts and the merits of the appeal require a brief exploration of the unique procedural history of this litigation. In April 2008, plaintiffs filed an amended complaint in the Chancery Division (the Chancery Action) against Robert and James, Estate of Claudia Cohen v. Cohen, No. C , alleging fraud, unjust enrichment, undue influence, tortious interference and promissory and equitable estoppel. This action related to an alleged oral promise Robert made to Claudia that she would share equally with James in Robert's estate. The first phase of the trial considered whether a guardian ad litem should be appointed for Robert. Plaintiffs sought to establish that Robert, who suffers from Parkinson's Disease and a related condition identified as progressive supranuclear palsy, was incapacitated in his general decision-making and that a guardian ad litem should be appointed. The judge noted that no incapacitation complaint had been filed, and that she would not make such a determination regarding general incapacity in the Chancery Action. Accordingly, plaintiffs filed another complaint in the Probate Part (the Probate Action) seeking a guardian to be appointed for Robert due to his alleged incapacity. Specifically, they sought a declaration that Robert was mentally incapacitated, and the appointment of an independent counsel, a guardian VkstlawNext 2016 Thomson Reuters. No claim to original U.S. Government Works.

160 Case LSS Doc Filed 06/15/16 Page 29 of 42 In re Cohen, Not Reported In A.3d (2011) ad litem pending the determination of the guardianship application, and a permanent guardian. They also sought an injunction barring any further transfers of Robert's assets without court approval other than those needed for his care and welfare and the maintenance of his home. Trial in the Chancery Action continued through May On June 1, 2009, Judge Koblitz rendered an oral decision declining to appoint a guardian ad!item for Robert for the purpose of conducting that litigation. *2 She then heard additional testimony in the Probate Action and denied plaintiffs' application. We provide an expansive review of the facts adduced from the record. Robert, who was eighty-three at the time of trial, was the owner of Hudson News, a nationwide distributor of newspapers, magazines and specialty items. His wife suffers from Alzheimer's disease. As of 2006, Robert's net worth was valued at approximately $400 million, and his assets included a house in Englewood, half-interest in an apartment in Manhattan, a nearly half interest in a Palm Beach estate, ownership of money market funds and bonds and a nearly half-interest in Hudson News. Perelman was married to Claudia from 1985 to 1994 when they were divorced. They had a daughter, Samantha, who was born in In the late 1990s, Robert observed that he had trouble maintaining his balance while walking. He consulted with Dr. Susan Bressman, M.D., a neurologist. By 2001, Robert began experiencing stiffness in his legs as well, and by 2003, his speech had become affected. After years of testing, a 2004 positron emission tomography (PET) scan revealed that Robert's brain abnormality, an atrophy or degeneration of his frontal lobe, had worsened dramatically since the previous PET scans in 1999 and 2000 and was consistent with Parkinson's Disease. By 2005, Robert required the use of a wheelchair and had difficulty communicating clearly. That year, Bressman diagnosed Robert as suffering from progressive supranuclear palsy (P SP), a neurodegenerative disease that initially affects an individual's balance, and then motor movements such as the ability to speak and to swallow. It also can lead to general body stiffness and spasms as well as back and forth eye movement. Other symptoms include slowness in verbal responses and deterioration in the frontal lobe of the brain. PSP is similar to Parkinson's Disease but progresses more rapidly and is less responsive to treatment. Robert's condition prompted observations by others. According to Robert's former attorney, in June 2005, James told London that Robert's "mind was gone," and that Robert "can't function." However, Alan Dlugash, Perelman's accountant, testified that he had a conversation with Robert in November 2005 at which time, Robert discussed, in detail, his assets and the income he was providing to Claudia. The condition required careful monitoring. As early as the end of 2005, Robert began having hallucinations. He was hospitalized for ten days in January 2006 for pneumonia. Bressman stated that in 2006, Robert reported having hallucinations; as a result, she decreased the dosage of a drug Robert was taking for his condition, amantadine, and the hallucinations stopped. Bressman saw Robert in August 2007, and she noted that he was alert, attentive and oriented. In an affidavit submitted shortly thereafter, Bressman opined that Robert was mentally competent and had the ability to discuss and give intelligent consideration to all issues, including financial matters. *3 In November 2007, Bressman witnessed a will signed by Robert. At the time, Bressman believed Robert's cognition was only mildly impaired, in that he primarily suffered slowness of thought and difficulty coming up with names. However, she added that he was able to understand situations and actions that needed to be taken, although the PSP required him to take time in responding to questions. By 2007, Robert's ability to walk had deteriorated, and his speech deteriorated as well, taking on a slow and strained quality. He suffered from an increased risk of falling, unintelligible speech and dysphagia (difficulty swallowing). The swallowing problem required the insertion of a feeding tube. Robert took two medications to combat his PSP, as well as an antidepressant and a muscle relaxant. In December 2008, Robert again had hallucinations. Bressman discontinued the amantadine, and the hallucinations stopped. He had fainting spells the same _stiawnexte 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

161 Case LSS Doc Filed 06/15/16 Page 30 of 42 In re Cohen, Not Reported In A.3d (2011) month, and by 2009, Robert could not use his hand to sign any documents. Paul Greene, M.D., a neurologist, saw Robert in 2007 and He stated that Robert's PSP condition had worsened considerably between the visits. His speech was slurred, making him difficult to understand. Nonetheless, Robert was responsive and answered questions in an appropriate manner. 3 Various health care providers testified regarding Robert's evolving medical condition, Harvey Klein, Robert's physician, noted that Robert had a percutaneous endoscopic gastrostomy (PEG) tube inserted to help him eat and prevent him from choking. According to Klein, the only time Robert had hallucinations was when he was on the drug, Eldepryl. Maura O'Dea, a registered nurse who provided care for Robert for several years preceding trial, stated that Robert had deteriorated during the three years she had been his nurse, including rigidity of body, spasms, voice and vision impairments. She described incidents in 2006 and 2008 when Robert had hallucinations. His medication was adjusted after each incident and, according to O'Dea, he did not have any hallucinations thereafter. At the time of trial, Robert went to his office several days a week and read documents placed on his desk. O'Dea described him as "very strong willed" and said he read all the documents related to the litigation. She described his reaction to the lawsuit as "angry and upset." O'Dea, who conducted cognitive assessments on her patients, stated that Robert had responded appropriately on a cognitive basis during their interactions, and he was oriented as to time, place and person. Donna Fabiano, Robert's executive assistant, also testified that as of the time of trial, Robert still went into his office several days per week for four or five hours per day. However, he arrived later than he used to and did not use the phone. Bressman next saw Robert in January He did not report any hallucinations, but his speech had become more arduous and time-consuming. Bressman saw Robert at his home in April 2009 because he was having increasing problems swallowing. She believed that Robert understood everything they were discussing, and he remained mentally competent. *4 In Robert's videotaped deposition of November 5, 2008, he was aware of the date and day of the week and denied having hallucinations as a result of the medication he was taking. When asked if he knew "why [he was here today," Robert responded, "Bullshit case." He further stated that it was his idea to submit an affidavit as part of the litigation, and he had prepared it with his attorney. When asked if he had read the complaint in the case, Robert indicated that he had, He knew that James was a party to the lawsuit, he was not a plaintiff, but like Robert, a defendant. Robert gave an affirmative response when asked whether his family business was at stake in the lawsuit. He stated that he was suffering from Parkinson's Disease, but that the disease had no effect on his mental capacity. Robert also testified at trial from his office as plaintiffs' witness. He was asked about his assets and changes he had made to his will, and demonstrated, by way of yes and no answers, familiarity with his holdings. He stated that he had asked Bressman, but not Greene, for a letter attesting to his mental capacity. He could not recall who witnessed the 2007 and 2008 versions of his will and denied ever promising Claudia that any of her future children would receive a share of his estate, or, contrary to Perelman's claim, that he ever intended to divide his estate equally amongst his children, Robert also agreed that it was always his intention to give the bulk of his business assets to James, and that James never pressured him to make such transfers. He answered in the negative when asked whether he wanted the court to appoint a guardian for him, and in the affirmative when asked if he wanted his current counsel to continue to represent him. Plaintiffs offered a number of expert witnesses in the Chancery Action. Michelle Tagliati, M.D., and Martin Goldstein, M.D., both neurologists, submitted a joint report in which they concluded that the findings of their neurological examination revealed that Robert suffered from "profound cognitive deterioration consistent with the diagnosis and degenerative pattern typical of PSP." In particular, they found that Robert showed "severe deficiencies in those cognitive functions routinely recruited to execute proper judgment, including acquiring, retaining and processing information." These "executive functions" represented higher level cognitive processes necessary for an individual to use and mentally manipulate information, respond to novel situations and make informed judgments. WestiavvNeXr 2015 Thomson Reuters. No claim to original U.S, Government Works. 3

162 Case LSS Doc Filed 06/15/16 Page 31 of 42 In re Cohen, Not Reported in A.3d (2011) They opined that Robert suffered from the Richardson Syndrome form of the disease, which tends to have a more severe onset. In addition, they found that Robert's medication regimen contributed to his cognitive problems and did not believe that prior tests assessing Robert's cognitive abilities had been specific enough. Tagliati examined Robert on November 11, 2008, at her hospital office. She found that his registration, attention and calculation were normal, and he could recall three words after a five minute interval. In addition, he could name objects and repeat sentences, his reading and comprehension abilities were intact, and he was able to execute simple commands. On a Mini Mental Status Examination (MMSE), Robert's score was 28 out of 30. More detailed testing revealed that he was able to perform basic mental exercises, such as naming nine animals in one minute, and identifying colors. In addition, Tagliati found that Robert had a fairly wellpreserved language fluency. *5 However, Robert had difficulty with more concrete thinking, such as executing complex orders in sequence, identifying love and hate as opposites rather than emotions, keeping his eyes open on one clap while closed on two claps and following Tagliati's instruction to look at her after looking at his nurse. Tagliati described "perseveration," the repetition of a particular response after a new subject has been introduced, which was the result of frontal lobe dysfunction caused by the PSI'. She described Robert's disability as so advanced that he was completely dependent in every aspect of his daily life. She concluded that he suffered from the Richardson Syndrome because he had not responded to the drugs given him. She claimed that the results of Robert's 2006 CAT scan showed a fairly advanced degree of frontal lobe atrophy, or loss of brain tissue. Tagliati concluded that because of his inability to process complex information, she did not believe he could make proper decisions regarding his finances. Goldstein examined Robert on November 13, 2008, and January 14, He described Robert as having significantly impaired speech. Robert scored low average on an information multiple choice test, and impaired on a similarities multiple choice test, proverb interpretation and matrix reasoning. He also noted that Robert incorrectly reported both the designation and the duration of his neurological condition. According to Goldstein, Robert perseverated during the examination, which Goldstein described as a symptom of impairment of the frontal lobe. He diagnosed Robert with the Richardson's Syndrome subtype of PSP and cognitive impairment and found that Robert was suffering from bradyphrenia, or slow mental functioning. Goldstein added that PSP does not affect areas of the brain that are involved in memory and coding but, as in Robert's case, causes atrophy or shrinkage in the frontal lobe. Tagliati issued a supplemental report based on a review of additional documents in which she found that atrophy appeared to be particularly severe in the frontal lobes. This confirmed her prior conclusion that Robert demonstrated profound impairments in the cognitive domains crucial for meaningful and accurate information processing, and that he was incapable of making important decisions such as his finances and his medical care. Joel Morgan, a psychologist, submitted an affidavit concluding, based on his view of Robert's testimony and the experts' testimony, that Robert's clinical presentation and neuropsychological test performance demonstrated "significant cognitive compromise in the form of impaired mental abilities." Specifically, Morgan claimed that Robert's PS? disproportionately affected his frontal lobes and with it the higher level cognitive processes, such as abstraction and reasoning. As a result, Morgan concluded that Robert lacked the capacity to make informed decisions on complex matters such as finances and litigation. *6 A report was issued by Lisa Ravdin, a neuropsychologist, based on her review of the record. Ravdin also concluded that Robert demonstrated significant cognitive decline in his executive function. Defendants offered several experts in the Chancery Action. Bressman, Robert's primary neurologist, indicated that the cognitive defects that accompany PSP are mild, not severe, and that Robert's defects were mild. Rather, the primary abnormalities were motor related. She believed that Robert always was competent. She also denied that PSP inevitably leads to dementia. She did not believe Robert needed neuropsychological testing because cognitive issues were not a major factor in his condition. She also noted that PET scans were not helpful in Bressman's assessment or treatment of Robert because they merely confirmed the PS? diagnosis. Finally, she noted that Robert was not apathetic, which was atypical with PS?. WestlawNed" 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

163 Case LSS Doc Filed 06/15/16 Page 32 of 42 In re Cohen, Not Reported in A.3d (2011) Alessandro DiRocco, M.D., a neurologist, also examined Robert. He concluded that Robert was fully oriented to self, place and time, and that his memory was intact. He was able to execute a three-stage command and his total MMSE score was 27/28, his only mistake was identifying the mid- March date of the interview as Spring instead of Winter. Robert also exhibited normal higher cognitive functions on a Frontal Assessment Battery (FAB) test. However, as with the MMSE, some of the test subsets could not be administered because of Robert's motor disability and speech impairment. DiRocco concluded that there was no evidence of cognitive dysfunction, diminished mental capacity or other intellectual impairment, and Robert was capable of making decisions. He did not find Robert to be apathetic. DiRocco criticized the Tagliati and Goldstein report because they relied on "erroneous diagnostic conclusions, erroneous choice and utilization of neuropsychological test[s] to assess mental capacity, and the erroneous use of a very specific subset of neuropsychological evaluation to determine mental capacity." In his experience, such tests are not given to a person with severe PSP. He opined that their conclusions of impaired mental capacity were inconsistent with Robert's performance on the MMSE test, and any individual with Robert's score would be considered capable of making decisions regarding his or her care or other personal matters. DiRocco further found that the tests Tagliati and Goldstein used to measure executive function were not ideal to test mental capacity and global intellectual functioning, particularly in P SP patients who often have profound physical disabilities. DiRocco did not believe neuropsychological testing was an accurate tool for assessing the cognitive status of patients with PSP because those patients' physical disabilities impair their ability to perform the tests. DiRocco also observed that the matrix reasoning test was inappropriate because of Robert's restricted visualspacial scanning ability. The appropriate tool with such patients was a general interview and examination. Finally, many people treated for Parkinsonism develop drug-induced hallucinations. *7 David Marks, M.D., a neurologist, who also examined Robert, concluded, beyond a reasonable degree of medical certainty, that Robert "has intact mental capacity and is competent to make decisions" regarding his finances. He described Robert as fully oriented. Robert understood complex questions and gave correct and appropriate responses. Marks found that what Tagliati and Goldstein called perseveration was the result of Robert's physical limitations, not impaired mental capacity. Robert's scores on the MMSE examinations highly correlated with competence. He criticized Tagliati's and Goldstein's reliance on formal neuropsychological testing because those tests did not take into account Robert's physical limitations. Observation and evaluation over a number of years, as Bressman had done, was a more reliable method. Finally, Barry Reisberg, M.D., a geriatric psychiatrist, concluded that despite Robert's physical limitations, Robert was cognitively competent. Robert performed better than one would expect for a person his age on a cognitive rating scale. In addition, he described Robert's concentration and calculation abilities as "fully intact." He characterized the tests performed by Tagliati and Goldstein as "exotic and irrelevant" to the issue of Robert's capacity. On June 1, 2009, in determining the guardian ad litem question in the Chancery Action, Judge Koblitz stated: There is no question that Mr. Cohen's thought processes have slowed and that at times he has difficulty finding words So that the scoring of the tests appeared to me to be unfair given Robert Cohen's disabilities. However, what the tests did reveal to me is his ability to answer questions and be on target most of the time. It seems to me, what the Court is interested in in terms of cognitive abilities and competence is his functional competence, and Mr. Cohen is functionally competent. She relied heavily on Bressman's testimony: Of great importance to me is the fact that Dr. Bressman not only placed repeatedly in Robert Cohen's medical records that he was only mildly impaired, with mental competence preserved and comments to that effect, but she acted on her belief that he was competent. West Next" 2015 Thomson Reuters, No claim to original U.S. Government Works. 5

164 Case LSS Doc Filed 06/15/16 Page 33 of 42 In re Cohen, Not Reported in A.3d (2011) In my view, the continuity of care provided by Dr. Bressman and her understanding acquired over the years, far outweighs the results of the tests that were inappropriately administered to Robert Cohen. Judge Koblitz concluded: I conclude from what the doctors asked him and what he answered to the doctors, that in fact, he is able to understand, and when questions are posed to him in a way that's appropriate for his disability, he can give answers that reflect his understanding of the question and his decisionmaking capability. So in reviewing the evidence, I find that the Plaintiffs have not demonstrated to me by clear and convincing evidence, nor by a preponderance of the evidence that Robert Cohen requires a guardian ad litem in this matter. His attorneys have indicated that they do not have trouble communicating with him, at least not to the extent where they would support a guardian ad litem. They are very strongly against the appointment. *8 I am convinced by his treating doctor and by the other evidence as I have outlined, that Robert Cohen is able to assist his attorneys and to conduct the defense as a litigant needs to do, and therefore I will not appoint a guardian ad litem in this matter. In her decision regarding capacity in the Probate Action, Judge Koblitz incorporated by reference her June I decision. She added that she believed that subjecting Robert to further medical examinations would be unfair, noting "[t]his is not an incapacitation complaint that is being brought because there is an individual who is in dire [straits] and can't take care of himself, or an individual in a nursing home." She perceptively noted: To suggest that I should appoint somebody to interview the alleged incapacitated person, make inquiry of persons having knowledge of his circumstances, after I've had seven weeks of testimony from all of the individuals who this appointed lawyer would go and talk to is unreasonable. I've heard, either in person or video tape deposition, from treating doctors of Robert Cohen, specialists retained by both sides to opine on his capacity, [and] the people who worked for Robert Cohen and continue to work for Robert Cohen... These are exactly the people that I would be delegating somebody else to talk to. I've had the best possible evidence... I do not need a court appointed attorney's recommendation concerning my determination as to incapacity.,.. So I think it would be inhumane to require Robert Cohen to undergo further examination. I think it would be pointless and fruitless to appoint somebody to go and find out about a small proportion of what I already know about the facts, circumstances and mental condition of Robert Cohen. If my decision on June 1st is in any way unclear... as to my view of Robert Cohen's capacity, I find that he does have capacity. He has functional capacity. There has been minimal intellectual impairment. The man is not incapacitated legally. There is no question in my mind by any standard, certainly by the standard of clear and convincing evidence. The judge dismissed plaintiffs' complaint, and this appeal followed. In On appeal, plaintiffs assert that the judge erred by not appointing independent counsel as "required" by Rule 4:86 4(b); by relying on the record made in the Chancery Action; by failing to consider the severity of Robert's physical disability and incapacity in making its incapacitation determination; by utilizing a non-independent translator for Robert's testimony, and by dismissing the complaint with prejudice as Robert's capacity will decline in the future. We address the issues seriatim. A. Plaintiffs first contend that the judge erred by not appointing independent counsel. They assert that this is mandated by the operative rule. Actions for the determination of incapacity and for the appointment of a guardian fall within the scope of Rule 4:86. In setting an order for hearing on an incapacitation complaint, the order Vii;esttawNext Thomson Reuters. No claim to original US. Government Works. 6

165 Case LSS Doc Filed 06/15/16 Page 34 of 42 In re Cohen, Not Reported in A.3d (2011) *9 shall include the appointment by the court of counsel for the alleged incapacitated person. Counsel shall (1) personally interview the alleged incapacitated person; (2) make inquiry of persons having knowledge of the alleged person's circumstances, his or her physical and mental state and his or her property; (3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incapacitated person or to discover any interests the alleged incapacitated person may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiffs attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsel's inquiry; [and] shall make recommendations concerning the court's determination on the issue of incapacity... The report shall also make recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date. [R. 4:86-4(b)(emphasis added).] The judge also has the discretion to order that the alleged incapacitated person submit to an examination, Rule 4:86 4(c), and, where special circumstances exist, to appoint a guardian ad litem prior to entry of judgment to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court. R. 4:86-4(d). Here, in addition to her findings in the Probate Action, Judge Koblitz observed at the start of the Chancery Action that she would not appoint an independent counsel: [I]f it was a matter in probate court where capacity was being fought out and litigated, I would expect the allegedly incapacitated person's lawyer to be fighting and promoting the position that the client was not incapacitated, and in that litigation I wouldn't sit there and think well, maybe he's not capable of directing the litigation, so P11 appoint a guardian ad litem who interviews everybody to decide whether he really wants to promote the position that he is not incapacitated. It's just not helpful, not practical, not sensible, and I don't think it is in this situation either. So, I think Robert Cohen is appropriately represented by the attorneys who represent him, Plaintiffs urge that the judge was required to appoint an attorney to represent Robert under Rule 4:86-4(b), even though Robert was represented by an attorney. They focus on the use of "shall" as prescribing a mandate. Generally, unless a contrary meaning is justified by the character of a legislative enactment, the use of the term "shall" conveys a mandatory meaning. Dugan v. Camden Cnty. Clerk's Office, 376 N.J.Super. 271, 276 (App.Div.), certif. denied, 184 N.J 209 (2005). However, this presumption may be overcome after consideration of the entire rule and statute and of the objects sought to be accomplished. Diodato v. Camden Cnty. Park Comm'n, 136 N.J.Super. 324, 327 (App.Div.1975). *10 The "shall" in Rule 4:86-4 was added in 1980 to "require[ ] the court to appoint counsel if the alleged incompetent has not retained counsel. Under the prior rule, such appointment was discretionary." 2 New Jersey Practice, Court Rules Annotated Rule 4:86-4, at 582 (John H. Klock) (rev. 5th ed.2000) (emphasis added). The rule was never intended to require the appointment of counsel where the alleged incompetent already had retained counsel. Rather, the rule eliminated the discretionary decision once available to the judge with respect to the appointment of counsel for an unrepresented alleged incompetent person. This prompts the use of "shall" rather than "may." There is statutory support for this conclusion. N.J.S.A. 3B: (c), permits the appointment of a temporary pendente lite guardian with the requirement that notice of the appointment be given to the alleged incapacitated person's attorney "or attorney appointed by the court." N.J.S.A. 30: , relating to the filing of a complaint for the appointment of a guardian for a person in a state correctional facility, requires the court to "appoint an attorney where the alleged incapacitated person is not represented by an attorney." While that statute requires the court-appointed attorney to investigate the matter and to conduct an interview with the alleged incapacitated person, evaluation of the individual's level of function and whether a guardian should be appointed is to be made by a "report of an independent expert professionally qualified to render an opinion on issues pertaining to incapacity[.]" Ibid. West[awNexr 2015 Thomson Reuters. No claim to original US. Government Works.

166 Case LSS Doc Filed 06/15/16 Page 35 of 42 In re Cohen, Not Reported In A.3d (2011) Further, in In re Farnkopf 363 N.J.Super. 382, (App.Div.2003), an action for the appointment of a conservator, the trial court appointed an attorney for the subject of the action, who was already represented by retained counsel, pursuant to Rule 4:86-4(b). We concluded that the appointment was erroneous because the action was not one for guardianship; rather, the applicable rule was Rule 4:86 11(b), which, unlike Rule 4:86-4(b), left the appointment of counsel to the trial court's discretion. Id, at 388 ii. 3. However, we noted that since the conservatee was already represented by counsel, the court's appointment of another attorney to represent him was "unnecessary." Ibid. The structure of the rule supports Judge Koblitz's decision. A court-appointed attorney in an incompetency matter represents the client's wishes in the same manner as an attorney would represent a client in a particular legal dispute. In re Mason, 305 N.J.Super. 120, 125 (Ch. Div.1997). In In re MR., 135 N.J. 155 (1994), the Court addressed the question of whether the role of appointed counsel for an alleged incapacitated person is to zealously advocate for that person or to inform a court of counsel's perception of the person's best interests. Id. at 172. In distinguishing the role of an attorney from a guardian ad litem, the Court observed that the "representative attorney is a zealous advocate for the wishes of the client," while the guardian ad litem evaluates the individual's best interests. Id. at "The attorney's role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes... Advocacy that is diluted by excessive concern for the client's best interests would raise troubling questions for attorneys in an adversarial system," Id. at 176. *11 Following MR., Rule 4:86-4 was amended to revise paragraph (b) to its present form, and to add paragraph (d), to distinguish the role of the guardian ad litem from that of the court-appointed attorney. In re Mason, supra, 305 N.J.Super. at While a court-appointed attorney acts as an advocate for the client, collecting information about the client and asserting to the court the client's wishes, desires and preferences, the guardian ad litern acts as the "eyes of the court" to further the best interests of the alleged incapacitated person. Id. at 127. See also In re Adoption of a Child by E. T, 302 IV.J.Super. 533, 539 (App.Div.) (noting similar, distinct difference between a law guardian under Rule 5:8A and a guardian ad litem under Rule 5:88), certif. denied, 152 N.J. 12 (1997). Plaintiffs' expressed desire to have an "objective" determination in the Probate Action is accomplished by the appointment of a pendente lite, guardian ad litem under Rule 4:86-4(d), rather than an additional attorney under Rule 4:86 4(b). 4 Moreover, the mandatory appointment of counsel requirement in Rule 4:86-4(b) is related to the summary nature of a probate action under Rule 4:86. An extensive record is not anticipated in such an action. R. 4:67-2(b); R. 4:83-1. Here, however, an extraordinary and extensive record was made in the Chancery Action and incorporated into the Probate Action. The record in this matter was not the sparse one typical of summary proceedings. The rationale for the appointment of an independent counsel, who would issue a report to the court, is absent here. Finally, it is difficult to conceive of what additional services or representation could have been provided by appointed counsel. To suggest that both sides zealously advocated for their respective clients would be an understatement. We conclude that the judge correctly determined that the appointment of counsel was not mandated by the rule or warranted here, B. Plaintiffs next suggest that the judge erred by incorporating and relying on the record in the Chancery Action rather than by hearing additional testimony. As we have previously noted all actions brought in the Probate Part "shall be brought in a summary manner... pursuant to R[ule] 4:67." R. 4:83-1. Under Rule 4:67-2(b): If the court is satisfied that the matter may be completely disposed of on the record (which may be supplemented by interrogatories, depositions and demands for admissions) or on minimal testimony in open court, it shall fix a short date for the trial of the action, which shall proceed in accordance with R[ule ] 4:67-5, insofar as applicable. WeStlewNext 2015 Thomson Reuters. No claim to original U.S. Government Works.

167 Case LSS Doc Filed 06/15/16 Page 36 of 42 In re Cohen, Not Reported in A.3d (2011) Trial on the pleadings and affidavits is permitted when there is no genuine issue as to any material fact. R. 4:67-5. The reference to "minimal testimony" has been construed as testimony that will probably not exceed one day. Pressler and Vernier, Current N.J. Court Rules, comment on R. 4:67 2 (2011). Obviously, this is not a fixed time constraint but reflects the intent of the rule that the testimony is generally limited and relatively brief. Moreover, the court may take testimony or, with the consent of counsel, may dispense with testimony and rely on the affidavits submitted. R. 4:86-6(a). Unless a trial by jury is requested by the alleged incapacitated person, the court, after taking testimony in open court, will determine the issue of incapacity. Ibid. *12 Here, in response to the Probate Action, the parties filed over 4000 pages of materials, consisting of the medical reports offered in the Chancery Action, transcripts of the Chancery Action, depositions, and other documents. Plaintiffs submitted an attorney certification regarding Robert's assets, and affidavits from Morgan and Tagliati. Moreover, and contrary to plaintiffs' assertion, the judge heard two days of testimony from Perelman and James. Judge Koblitz satisfied the dictates of Rule 4:67 and Rule 4:86, notwithstanding her reliance on the record in the Chancery Action. That record provided more evidence, much of it offered by plaintiffs, to support the judge's determination. Plaintiffs contend that reliance on the record developed in the Chancery Action was improper because the substance and complexity of Robert's finances was not decided in that action. However, the issue in the Probate Action was Robert's capacity for guardianship purposes, not whether he understood every detail of his finances and assets. As the judge commented in a post-decision colloquy with counsel: "I don't think it's important to find out what his financial situation is. I mean, I actually have heard quite a bit about his financial arrangements, but I don't think that that's required for a determination of capacitation." While plaintiffs are correct that the judge indicated she would not be ruling on Robert's capacity to manage his financial affairs in the Chancery Action, it does not follow that the extensive evidence introduced as to capacity in that action cannot be used to resolve the question of his capacity in the Probate Action. In any event, plaintiffs offer no support for their claim that the judge acted improperly in relying on the record in the Chancery Action in reaching her findings and conclusions. Plaintiffs were not prejudiced. They were fully represented in both actions and the Probate Action was an adjunct of an issue raised in the Chancery Action. Finally, plaintiffs seek by way of additional relief, a remand for further testimony in the nature of a guardianship petition. We have set forth in our expansive rendition of the facts the extraordinary testimony that has been amassed as to Robert's physical and mental condition. As Judge Koblitz noted, to require more by way of testing and examination borders on the "inhumane" and as she further noted, "would be pointless and fruitless." In total, the proceedings to test Robert's capacity exceeded seven days of testimony. No matter how styled and in what form, Robert's capacity has been established, and to require more testimony hardly serves the interests of justice or the parties. The judge did not err in considering the Chancery Action record. C. Plaintiffs next argue that the court erred by not focusing on capacity as a "task specific" question, namely, Robert's ability to manage his financial assets in light of what plaintiffs claim were his diminished executive functions. They maintain that a limited guardian should have been appointed to oversee his financial affairs. Plaintiffs claim that the judge erred by failing to consider the extent and progression of Robert's physical incapacity in making her determination. *13 We conclude that plaintiffs failed to demonstrate by clear and convincing evidence that Robert was incapacitated, and that the judge did not abuse her discretion in declining to appoint a limited guardian. Although plaintiffs attempt to frame the applicable standard of review as a motion to dismiss the complaint under Rule 4:6-2(e), such a standard of review is inapplicable if matters outside the pleadings are considered, as they were here, Ibid. Moreover, the standard of review for actions seeking the appointment of a guardian recognizes that the trial court possesses and retains broad powers and maintains farreaching discretion in making its determination. In re Mason, supra, 305 N.J.Super, at 128. In addition, great deference is accorded to the trial court's findings regarding capacity, as long as they are supported by substantial credible evidence, In re Queiro, 374 N.J.Super. 299,307 (App.Div.2005). We will not disturb the factual findings and legal conclusions 1.PkStilwNeXr 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

168 Case LSS Doc Filed 06/15/16 Page 37 of 42 In re Cohen, Not Reported In A.3d (2011) of the trial judge unless we are clearly convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence as to offend the interests of justice. Mid. (citing Cesare v. Cesare, 154 N.J. 394, (1998)). An incapacitated person is defined as an individual who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs. The term... is also used to designate an individual who is impaired by reason of physical illness or disability to the extent that he lacks sufficient capacity to govern himself and manage his affairs. [N.J.S.A. 3B:1-2.] An adjudication of incompetency with respect to whether a guardian should be appointed because the individual is unable to prosecute or defend a lawsuit, as in the Chancery Action, is not required. In re Commitment of S.W., 158 IV.J.Super. 22, (App.Div.1978). However, where the effect of the action is to deprive an individual of the control and management of his or her business and personal affairs, as was proposed in the Probate Action, such a declaration is required. Id. at 26, This cannot be done without the institution of an action in accordance with R [ule] 4:83 for the determination of his or her mental incompetency and the appointment of a general guardian for that person, the submission of medical proof that the alleged incompetent is unfit and unable to govern himself or herself and to manage his or her affairs, and an adjudication by the court of such incompetency after a hearing. [Ibid.] Because self-determination is a fundamental right, In re M.R., supra, 135 N.J. at 166, incapacity must be demonstrated by clear and convincing evidence. In re Guardianship of Macak, 377 IV.J.Super. 167, 176 (App.Div.2005). The court must independently consider all of the evidence, including the doctors' reports and the report of any court-appointed attorney, and must make findings by clear and convincing evidence as to whether the person is incapacitated. Id. at To be considered clear and convincing, the proof must produce " 'a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.' " In re Jobes, 108 IV.J. 394, (1987) (alteration in original) (quoting State v. Hodge, 95 N.J. 369, 376 (1984)). *14 If a court finds an individual incapacitated, it may appoint a general guardian to exercise all rights and powers of the individual, N.J.S.A. 3B: (a), or, if the court finds that the individual lacks the capacity to do some, but not all, of the tasks necessary to take care of himself or herself, a limited guardian of the person, the estate, or both may be appointed. N.J,S,A. 3B: (b). In the latter situation, the court shall make specific findings regarding the individual's capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. A judgment of limited guardianship may specify the limitations upon the authority of the guardian or alternatively the areas of decision making retained by the person. [Ibid.] Plaintiffs rely on observations made by the court early in the Chancery Action to support their claim that neither general capacity nor financial capacity were addressed in the Chancery Action. This requires some background. Judge Koblitz previously appointed a discovery master, who on March 3, 2009, informed the parties that Judge Koblitz, apparently due to a dispute regarding Robert's ability to submit a certification, intended "to determine whether Robert Cohen is presently incapacitated, before she adjudicates (or perhaps even before she takes proofs on) any other issues." This led to a disagreement regarding how to proceed and to the precise nature of the incapacitation claim. Plaintiffs' counsel indicated that they were seeking to demonstrate that Robert "is incapacitated to the extent that he cannot make complex decisions necessary to deal with this litigation in general, and that he is incapacitated for many other purposes." Plaintiffs' counsel further stated that they would "continue to make more than an adequate showing of significant cognitive... deficiencies that affect his ability to do anything that requires him to do complex reasoning." The court noted that "[t]here is no complaint filed for a guardian ad litem on the basis of a general [in]capacity," and West Moxr 2015 Thomson Reuters. No claim to original U.S. Government Works, 10

169 Case LSS Doc Filed 06/15/16 Page 38 of 42 In re Cohen, Not Reported in A.3d (2011) that the issue of general capacity "is not before me." During an ensuing colloquy with counsel, the judge remarked: I'm not talking about incapacitation for all purposes, which is what you seem to think this was about, because I'm not considering that. So I'm not going to make a finding that he is or is not incapacitated for purposes of a decision having to do with health and finances and so on, because I really think that process is a different process, and that's not what this case is about. However, I think that I could, within the context of this case, find that he lacked the capacity to direct his case here. In her decision in the Probate Action, the judge stated: I agree with plaintiff that I did not render a decision as to capacity. In my view, the Court, absent a valid complaint alleging incapacity, should not be deciding capacity. On the other hand, to decide whether a litigant requires a guardian ad litem, requires the court to engage in the same legal analysis as a capacity determination, and when I indicated to plaintiffs' counsel that this was not a capacity trial and that belonged in the probate part, that was not by way of suggesting that a capacity complaint be filed in the probate part. It was merely by way of saying that the Court should address those issue[s] squarely before it, and not issues that are not *15 brought properly before the Court. Plaintiffs are correct that the court's reliance in its Chancery Action decision on Robert's conversation with Dlugash in November 2006 regarding his finances was not necessarily reflective of his understanding of his finances over two years later. However, the complexity of an individual's finances, by itself, is insufficient for a finding of incapacity. As the judge stated after rendering her decision in the Probate Action: "I don't think it's important to find out what his financial situation is. I mean, I actually have heard quite a bit about his financial arrangements, but I don't think that that's required for a determination of capacitation." She added: "I don't think the complexity of his testamentary documents is a part of the capacitation decision." With respect to plaintiffs' argument that the court did not give sufficient consideration to Robert's physical limitations, the record supports the judge's determination that Robert was not incapacitated despite his physical afflictions and limitations. While his physical limitations were conceded, evidence was offered that Robert can still communicate, still maintains his office and reviews paperwork, and receives care and support for his physical ailments. It is not just physical disability that is required for a determination of incapacity, but physical disability to the extent that the individual "lacks sufficient capacity to govern himself and manage his affairs." N.J.S.A, 3B:1-2. The trial judge's determination that this was not the case with respect to Robert was supported by substantial credible evidence. The judge did not abuse her discretion in finding that Robert was not incapacitated, and there was no need for the appointment of a guardian. D. Plaintiffs claim that the judge's use of Robert's personal speech therapist to interpret Robert's testimony in the Chancery Action was improper because the translator was not independent and the translation, in some instances, was not correct. In addition, plaintiffs assert that the transcripts do not properly reflect Robert's testimony. At Robert's deposition before the special master, plaintiffs objected,to the use of Katherine Malmrose, Robert's speech pathologist, to aid in the translation of Robert's testimony. The special discovery master asked Mahnrose whether she understood that her obligation was to just say what Robert was saying. Malmrose replied, "I understand. He's my patient. I am a professional speech pathologist. I would just say what he said. And I understand this is a legal proceeding." Prior to Robert's May 12, 2009 trial testimony, plaintiffs objected to using Malmrose to translate his testimony claiming that in his prior testimony she interpreted, rather than translated, and that she took part in preparing Robert for trial. Robert's attorney responded that it would be "a severe disadvantage" not to have Malmrose translate because of her familiarity with Robert's speech pattern. In overruling plaintiffs' objection, Judge Koblitz said: *16 It seems to me that part of her utility is the experience that she has dealing with him... She's not an interpreter... I view her as an aide... And I think that it would not be fair to put in somebody brand new who doesn't have that experience Understanding that there is a risk that she will throw in her own answers to help him. That risk is there. I did not observe it [in his earlier testimony], but it's there. WestawNeXt CO 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

170 Case LSS Doc Filed 06/15/16 Page 39 of 42 In re Cohen, Not Reported in A.3d (2011) I think it's as fair as it can be under the circumstances. It would be to me extremely unfair to deprive Mr. Cohen of a speech pathologist who has been working with him for many years. And on balance weighing the potential risk that she will in some way inject herself into the process... against his physical condition and his need for assistance, I find it much more compelling that he needs the help... [I] don't find it to be a significant risk. And it's certainly greatly outweighed by the assistance that she can provide in terms of making him or helping him to be more understandable. In general, an interpreter should not be appointed unless necessary to the conduct of the case; that being, where the witness's natural mode of expression is not intelligible to the court. State in the Interest of R.R., 79 N.J. 97, 116 (1979). However, "no matter how disinterested an interpreter might be, there always exists a possibility that he will inadvertently distort the message communicated by the primary witness." Ibid. The decision whether an interpreter is required is a matter within the trial court's discretion. Id. at 117. Here, because Robert's mode of expression was unintelligible to the judge, 5 she did not abuse her discretion in concluding that an interpreter was needed. Plaintiffs maintain, however, that Mahnrose was not a disinterested interpreter because she was Robert's speech pathologist. The Court has recognized that although interpreters should be completely disinterested, unusual circumstances arise necessitating accommodation to meet unique needs. The Court has stated: In theory an interpreter should be totally impersonal. That is, his role is merely that of a conduit from the primary witness to the trier of fact. As such, he should not aid or prompt the primary witness in any way, nor should he merely render a "summary" of what the primary witness has stated. Instead, as far as is possible, he should translate word-for-word exactly what the primary witness has said. Any interpreter selected should also ordinarily be an individual who has no interest in the outcome of the case. This is so because the danger that a primary witness' message will be distorted through interpretation is compounded when the interpreter is biased one way or the other. It has been recognized, however, that situations may arise in which it is necessary to appoint an "interested" interpreter. Courts have agreed, however, that such an interested person should not be utilized unless and until the trial judge is satisfied that no disinterested person is available who can adequately translate the primary witness' testimony. Even if this requirement is satisfied, however, the trial judge must still interrogate the "interested" interpreter in order to gauge the extent of his bias, and to admonish him that he must translate exactly what the primary witness has said, *17 [R. R., supra, 79 NJ. at (citations omitted)] Here, the judge did not interrogate Mahnrose to gauge the extent of her bias in her role as Robert's speech pathologist. Nor did the judge "admonish" Malmrose as the discovery master had done at Robert's deposition. Nonetheless, during a colloquy prior to Robert's second day of testimony, the judge commented: Miss Malmrose... does not impair my ability to observe Mr. Cohen and hear his answers such as they are. She's not able always to understand what he's saying. [S]he's not, in my view, at all making up answers and giving her answers instead of his answers, or coaching him so that he gives the right answers, and she's somewhat helpful... Moreover, after Robert had finished his testimony, the judge stated: There were times this morning where I understood what he said and Miss Malnuose did not understand what he said... So I don't take what Miss Malmrose says as some gospel from down high as to what Mr. Cohen says... I really in hearing Robert Cohen testify for [sic] trial I found it in many occasions difficult to understand him, Miss Malmrose found it difficult to understand him. He wasn't very helpful frankly. Even assuming plaintiffs claim of error, the court's handling of Malmrose can be considered harmless in light of the judge's finding that Robert's testimony was not "very helpful," as well as the numerous other witnesses who testified with respect to his capacity, and the voluminous record. WestiawNe.xt 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

171 Case LSS Doc Filed 06/15/16 Page 40 of 42 In re Cohen, Not Reported In A.3d (2011) Plaintiffs also challenge the trial court's decision not to let their speech pathologist testify. Plaintiffs informed the court on April 9, 2009, that they would have their own speech pathologist, Geralyn Schultz, monitor Robert's testimony. Prior to Robert's trial testimony, plaintiffs requested that their speech pathologist be permitted to stand next to Robert while he was testifying. The judge concluded that plaintiffs' pathologist could "sit close," but could not "supplant" Malmrose. Near the conclusion of the Chancery Action, plaintiffs requested that Schultz be permitted to testify as a rebuttal witness. Schultz proposed to testify that many of Malmrose's interpretations of Robert's testimony were unreliable because Robert was often unintelligible, perseverated throughout his testimony, and would often respond yes and no to the same question. The judge denied the motion 6, stating: If you wanted to call your speech pathologist in your case that would have been a different situation. As to whether I would have permitted the type of expert testimony, I don't think it would have been admissible at that point either. But if your speech pathologist had an example of a comment that Miss Malmrose improperly related, then that would have been the time to do it, not by way of rebuttal. In addition, I just finished... Mr. Cohen's video taped deposition with Miss Malmrose by his side with your office conducting the deposition and that was available to your speech pathologist by way of critique of Miss Malmrose... And *18... your experts conducted the neuro psychological testing in which Mr. Cohen spoke. So to the extent that his speech patterns were indicative of cognitive problems, your neurologist and cognitive neurologist could have and perhaps did in part comment on that speech. So I think it's really not fair at this rebuttal point to have a speech pathologist who you are proffering as an expert without an expert report, as well as a fact witness[,] not just to critique a particular interpretation of a comment by Mr. Cohen, but to opine on speech patterns... [T]o wait until rebuttal to proffer testimony that his speech patholog[ist] who has been with him for years misinterpreted things that he said is not the right time to do it. I would have allowed you to present during your case a witness to say... that's not really what he said... The decision to admit or exclude expert testimony lies within the sound discretion of the trial court. Muise v. GPU, Inc., 371 N.J.Super. 13, 58 (App.Div.2004). Similarly, admission of rebuttal testimony, which is generally limited to contradicting subjects introduced in the testimony of defense witnesses, State v.. Carroll, 256 N.J.Super. 575, 604 (App.Div.), certif. denied, 130 N.J. 18 (1992), is a matter within the court's wide discretion and will not be disturbed in the absence of gross abuse. State v. Cooper, 113 N.J.Super. 34, 39 (App.Div.I971). Plaintiffs called Robert to testify as their witness in their direct case. Had they wanted to question the accuracy of Malmrose's interpretation of that testimony, they could have called Schultz after Robert had finished testifying. Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses. State v. Cook, 330 N.J.Super. 395,418 (App.Div.), certif. denied, 165 N.J. 486 (2000). Because Robert was not a defense witness, the judge did not abuse her significant discretion in ruling that Schultz could not testify on rebuttal. Plaintiffs further claim that the transcript of Robert's deposition and trial testimony did not accurately reflect his testimony. They maintain that the DVDs of that testimony should be consulted. On September 8, 2009, plaintiffs filed a motion, under Rule 2:2-5(a), asking us to determine the accuracy of Robert's trial and deposition testimony by comparing the DVDs of the testimony with the transcripts. On September 21, 2009, the clerk's office informed plaintiffs that it had determined that the transcripts in question were properly transcribed. Moreover, plaintiffs did not move below to settle the record, as required by rule. "A party who questions whether the record fully and truly discloses what occurred in the court or agency below shall apply on Motion to that court or agency to settle the record." R. 2:5-5(a). Instead of applying to the trial court, plaintiffs applied to us. They did not make a similar motion with respect to Robert's deposition, as required by Rule 4:16-4(d). While we may order a correction of the record on our own motion, Rule 2:5-5(a), the clerk's office, as noted, has already determined that the transcripts were properly transcribed. That determination and plaintiffs' failure to ask the trial court to settle the record precludes plaintiffs' request for a DVD/transcript comparison. WestlawNexr 2015 Thomson Reuters. No claim to original U.S. Government Works. 13