McELROY

,

DEUTSCH, MULVANEY
ATTORNEYS AT LAW

& CARPENTER,

LLP

1300 MOUNT KEMBLE AVENUE P.O. BOX 2075 MORRISTOWN, NEW JERSEY 07962-2075

(973) 993-8100
FACSIMILE (973) 425-0161

MICHAEL J. DEE
Direct dial: (973) 425-8153 mdee@mdmc-Iaw.com

July 21,2011 Via Facsimile and Regular Mail The Honorable Thomas P. Olivieri, P.1. Ch. Superior Court of New Jersey - Hudson County William Brennan Courthouse 583 Newark Avenue Jersey City, NJ 07306 Re: Esopus Creek Value Series Fund, LP v. Syms Corporation, C-98-11 Dear Judge Olivieri: In accordance with the instructions we received from Your Honor's Law Clerk, we have contacted plaintiffs counsel, Grant W, McGuire, Esq., to inquire whether Plaintiff will consent to the entry of the modified Scheduling Order we proposed to the Court under cover of letter dated July 12, 2011. Mr. McGuire has advised that his client will not consent. In light of the fast-approaching deadlines in the Order to Show Cause previously entered by Your Honor and for the reasons set forth in Defendant's July 12 letter, we respectfully request that Your Honor execute our proposed Scheduling Order. Attached hereto as Exhibit A is a copy of the Order revised to reflect that it is a Scheduling Order as opposed to an Order to Show Cause. I am serving counsel for Plaintiff with this letter as well as the attached Scheduling Order today via electronic mail. We are available at the convenience of the Court to discuss the foregoing, Thank you for the Court's consideration of this request. Respectfully submitted,

Enclosure cc: Karen L. Valihura, Esq. (w/EncL) (Pro Hac Vice Motion pending) Grant W. McGuire, Esq. (w/Encl.) (via Electronic Mail)

NEW JERSEY

NEW YORK

PENNSYLVAN1A

CONNECTICUT

MASSACHUSETTS

COLORADO

DELAWARE

EXHIBIT A

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Rodney Square P.O. Box 636 Wilmington, Delaware 19899 Counsel for Defendant & CARPENTER, LLP 1300 Mt. Kemble Avenue P.O. Box 2075 Morristown, New Jersey 07962-2075 (973) 993-8100 Local Counsel for Defendant

McELROY, DEUTSCH, MULVANEY

ESOPUS CREEK VALUE SERIES FUND, LP, Plaintiff,

SUPERIOR COURT OF NEW JERSEY HUDSON COlJNTY: CHANCERY DIVISION DOCKET NO. HUD-C-98-11 Civil Action

v. SYMS CORPORATION, Defendant. SCHEDULING ORDER

THIS MATTER, having been opened to the Court by Plaintiff, Esopus Creek Value Series Fund, LP (hereinafter, "Esopus" or "Plaintiff"), upon its application for an Order to Show Cause why Defendant, Syms Corporation (hereinafter "Syms" or "Defendant") should not be required to produce for inspection by Esopus the requested books and records of account and minutes, and the Court having read and considered Plaintiff's Complaint, and supporting

Declaration and exhibits, as well as Syms' July 12, 2011 letter, and good cause having been shown; It is on this ORDERED as follows: day of July, 2011,

Motion to Dismiss 1) Defendant shall file and serve a motion to dismiss and an opening brief in

support thereof (no more than 15 pages inclusive of affidavits or certifications) on or before July 19, 2011; Defendant's time to otherwise respond to the Complaint and Order to Show

Cause will abide the disposition of this motion and further Order of the Court;

2)

Plaintiff shall file and serve an Answering

Brief (no more than 15 pages

inclusive of affidavits or certifications) on or before July 25, 2011;

3)

Syms shall file and serve a Reply Brief (no more than 10 pages) on or before

July 28, 2011; and

4) Discovery 5)

A hearing on the motion to dismiss will occur on August 1,2011 at 1:30 p.m.

If Plaintiffs

Complaint survives a motion to dismiss, or Plaintiff is otherwise

permitted to proceed with its books and records action, then Syms will be permitted to take discovery of Plaintiff, whose burden it is to show a proper purpose. discovery, with Plaintiffs written discovery. Syms may serve written

responses due no later than 20 days after being served with such

During the discovery process, and prior to any depositions, the parties also

must exchange all documents upon which they intend to rely at the hearing.

6)

Syms may serve notices for depositions on or before 20 days after the conclusion

of written discovery and the production of all documents upon which the parties intend to rely at the hearing. If Syms seeks to serve more than 2 notices of depositions, then it must first

obtain leave of Court.

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Hearing 7) Following the completion of discovery, the parties will contact the Court to

schedule a return date for Plaintiffs Order to Show Cause at which time Syms shall show cause before this Court why an order should not be issued granting Esopus access to Syms' books and records of account and minutes, since January 1, 2009, that pertain to Syms' efforts to buy Filenes Basement, Inc. or integrate the assets and operations of Filene's Basement, Inc. into

Syms' infrastructure and operation; Syms' efforts or inquiries to sell all or part of the company, including whether to sell parcels of real estate; any discussion related to Syms' corporate management oversight, including but not limited to its oversight of corporate officers or the creation of any oversight committee; Syms' loans or credit facilities that it has entered into within the past twelve months; Syms' decisions to enter any joint ventures or leases regarding any or all of its properties; Syms' decisions to enter leases or to build out stores; and Syms' retention of Rothschild, Inc., including any direction or guidance given Rothschild, Inc. 8) Plaintiff shall file and serve a pre-hearing brief (no more than 30 pages inclusive

of affidavits or certifications) on or before 25 days prior to the hearing date. 9) Syms shall file and serve an Answer to the Complaint as well as a pre-hearing

brief (no more than 30 pages inclusive of affidavits or certifications) on or before 10 days prior to the hearing date; and 10) Plaintiff shall serve a brief in reply to Syms' pre-hearing brief (no more than 15

pages inclusive of affidavits or certifications) on or before 5 days prior to the hearing date.

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11)

The court will entertain argument, but not testimony, on the return date of this

Order to Show Cause, unless the court and parties are advised to the contrary no later than two days before the return date.

ENTERED:

Han. Thomas P. Olivieri, P.l Ch.

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