T-3

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM T-3

FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES

UNDER THE TRUST INDENTURE ACT OF 1939

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

(Name of Applicant)

Two Paragon Drive

Montvale, New Jersey 07645

(Address of Principal Executive Offices)

SECURITIES TO BE ISSUED UNDER THE

INDENTURE TO BE QUALIFIED

Title of Class	Amount
Floating Rate Second Lien Notes due 2017	Up to $72,000,000

Approximate date of proposed public offering:

On, or as soon as practicable following the Effective Date under the Joint Plan of Reorganization of The Great

Atlantic & Pacific Tea Company, Inc. and its Debtor Affiliates under Chapter 11 of the Bankruptcy Code

Christopher W. McGarry

Senior Vice President, General Counsel & Secretary

The Great Atlantic & Pacific Tea Company, Inc.

Two Paragon Drive

Montvale, New Jersey 07645

(Name and Address of Agent for Service)

Copies to:

Christian O. Nagler

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

(212) 446-4660

The obligor hereby amends this Application for Qualification on such date or dates as may be necessary to delay its effectiveness until (i) the 20th day after the filing of a further amendment which specifically states that it shall supersede this amendment, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939, as amended, may determine upon the written request of the obligor.

Table of Contents

GENERAL	1
AFFILIATIONS	4
MANAGEMENT AND CONTROL	5
UNDERWRITERS	9
CAPITAL SECURITIES	10
INDENTURE SECURITIES	12
SIGNATURE	19
INDEX TO EXHIBITS	27
Form of Indenture
Form T-1

i

EXPLANATORY NOTE

As described more fully in the Disclosure Statement for the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code (as amended or supplemented, the “Disclosure Statement”) and an accompanying Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (as amended or supplemented, the “Plan”), copies of which are included as Exhibits T3E-1 and T3E-2, respectively, to this application, the Investors (as defined in the Plan) may elect to have a new holding company formed pursuant to the Securities Purchase Agreements (as defined in the Plan). If this should occur, the Floating Rate Second Lien Notes due 2017 (the “Replacement Notes”) which will be issued pursuant to the indenture to be qualified under this Form T-3 (the “Indenture”) may be issued by the new holding company. The new holding company is expected to be the direct parent of The Great Atlantic & Pacific Tea Company, Inc. (the “Company”). Should the Investors elect to form the new holding company, this application will be amended to reflect the issuance of the Replacement Notes by such new holding company and the guarantee by the Company of the issuer’s obligations under the Replacement Notes. Capitalized terms used herein and which are not otherwise defined herein shall have the meaning ascribed to them in the Plan.

GENERAL

1. General Information.

The Company is a corporation organized under the laws of the State of Maryland. The guarantors identified below (the “Guarantors” and, together with the Company, the “Applicants”) have the following forms of organization and jurisdictions of formation.

Guarantor	Form	Jurisdiction
2008 Broadway, Inc.	Corporation	New York
AAL Realty Corporation	Corporation	New York
Adbrett Corporation	Corporation	Delaware
Amsterdam Trucking Corporation	Corporation	New York
APW Supermarket Corporation	Corporation	Delaware
APW Supermarkets, Inc.	Corporation	New York
Bergen Street Pathmark, Inc.	Corporation	New Jersey
Best Cellars DC Inc.	Corporation	District of Columbia
Best Cellars Inc.	Corporation	New York
Best Cellars Licensing Corp.	Corporation	New York
Best Cellars Massachusetts, Inc.	Corporation	Massachusetts
Best Cellars Va Inc.	Corporation	Virginia
Bev, Ltd.	Corporation	Delaware
Borman’s, Inc.	Corporation	Delaware
Bridge Stuart, Inc.	Corporation	New York
Clay-Park Realty Co., Inc.	Corporation	New York
Compass Foods, Inc.	Corporation	Delaware
East Brunswick Stuart LLC	Limited Liability Company	Delaware
Farmer Jack’s Of Ohio, Inc.	Corporation	Ohio
Food Basics, Inc.	Corporation	Delaware
Gramatan Foodtown Corp.	Corporation	New York
Grape Finds Licensing Corp.	Corporation	New York

1

Greenlawn Land Development Corp.	Corporation	New York
Hopelawn Property I, Inc.	Corporation	Delaware
Kohl’s Food Stores, Inc.	Corporation	Wisconsin
Kwik Save Inc.	Corporation	Pennsylvania
Lancaster Pike Stuart, LLC	Limited Liability Company	Delaware
LBRO Realty, Inc.	Corporation	New York
Lo-Lo Discount Stores, Inc.	Corporation	Texas
MacDade Boulevard Stuart, LLC	Limited Liability Company	Delaware
Mclean Avenue Plaza Corp.	Corporation	New York
Milik Service Company, LLC	Limited Liability Company	Virginia
Montvale Holdings, Inc.	Corporation	New Jersey
North Jersey Properties, Inc. VI	Corporation	Delaware
Onpoint, Inc.	Corporation	Delaware
Pathmark Stores, Inc.	Corporation	Delaware
Plainbridge, LLC	Limited Liability Company	Delaware
S E G Stores, Inc.	Corporation	Delaware
Shopwell, Inc.	Corporation	Delaware
Spring Lane Produce Corp.	Corporation	New York
Super Fresh Food Markets, Inc.	Corporation	Delaware
Super Fresh/Sav-A-Center, Inc.	Corporation	Delaware
Super Market Service Corp.	Corporation	Pennsylvania
Super Plus Food Warehouse, Inc.	Corporation	Delaware
Supermarkets Oil Company, Inc.	Corporation	New Jersey
The Old Wine Emporium of Westport, Inc.	Corporation	Connecticut
The South Dakota Great Atlantic & Pacific Tea Company, Inc.	Corporation	South Dakota
Tradewell Foods of Conn., Inc.	Corporation	Connecticut
Upper Darby Stuart, LLC	Limited Liability Company	Delaware
Waldbaum, Inc.	Corporation	New York

2. Securities Act Exemption Applicable.

The Company intends to offer, under the terms and subject to the conditions set forth in the Plan and its related Disclosure Statement, copies of which are included as Exhibits T3E-1 and T3E-2, respectively, to this application, the Replacement Notes.

As set forth more fully in the Plan and Disclosure Statement, the Replacement Notes will be issued only if the class of Second Lien Note Claims does not vote to accept the Plan and only to those holders of Second Lien Note Claims that actually elect to receive Replacement Notes in lieu of a cash payment on account of their allowed Second Lien Note Claims (each, an “Electing Holder”). See “Article III.C.1— “Treatment of Classes of Claims and Interests - Class A Second Lien Note Claims”) of the Plan. If the class of Second Lien Note Claims does not vote to accept the Plan, the Replacement Notes will be issued in an aggregate amount equal to the allowed amount of Second Lien Note Claims held by Electing Holders on account of their allowed Second Lien Note Claims and transferred to such Electing Holders. Pursuant to that certain Plan Support Agreement, as among the Debtors and certain claimholders, dated as

2

of December 12, 2011, holders of approximately 79% in aggregate principal value of Second Lien Note Claims, or approximately $204 million of the $260 million in aggregate principal value of Second Lien Note Claims, have agreed to elect to receive cash on account of their Second Lien Note Claims pursuant to the Plan. The Company therefore anticipates that if the Replacement Notes are issued, they will be issued with respect to allowed claims held by holders of no more than $56 million in aggregate principal face value of Second Lien Notes if the class of Second Lien Note Claims does not vote to accept the Plan. The allowed claims of such holders will be determined by the Bankruptcy Court, however the Company expects that the amount of such allowed claims will not exceed $72.0 million. The Company intends to make the terms of the Replacement Notes available by causing such terms to be filed with the Bankruptcy Court and distributed to offerees during the week of January 17, 2012.

The Replacement Notes will be issued pursuant to an indenture to be qualified under this Form T-3 (the “Indenture”), a draft copy of which is included as Exhibit T3C to this application. See “Article IV — Provisions for Implementation of the Plan” in the Plan.

Generally, Section 1145(a)(1) of the United States Bankruptcy Code (the “Bankruptcy Code”) exempts an offer and sale of securities under a plan of reorganization from registration under the Securities Act of 1933 (the “Securities Act”) and state securities laws if three principal requirements are satisfied: (i) the securities must be offered and sold under a plan of reorganization and must be securities of the debtor, an affiliate participating in a joint plan with the debtor or a successor to the debtor under the plan; (ii) the recipients of the securities must hold a prepetition or administrative expense claim against the debtor or an interest in the debtor; and (iii) the securities must be issued entirely in exchange for the recipient’s claim against or interest in the debtor, or principally in such exchange and partly for cash or property. The Applicant believes that the offer of the Replacement Notes under the solicitation of acceptances for the Plan and the exchange of Replacement Notes for allowed Second Lien Note Claims held by Electing Holders, together with certain other consideration, under the Plan will satisfy the requirements of Section 1145(a)(1) of the Bankruptcy Code and, therefore, such offer and exchange is exempt from the registration requirements referred to above. To the extent that the solicitation of acceptances of the Plan constitutes an offer of new securities not exempt from registration under Section 1145(a)(1), the Company will also rely on Section 4(2) of the Securities Act and, to the extent applicable, Regulation D promulgated thereunder. See “Article IV — Registration Exemptions” of the Plan.

3

AFFILIATIONS

3. Affiliates.

The following diagram indicates the relationship of each Applicant to each of their respective affiliates. Connecting lines indicate 100% ownership of voting securities, unless otherwise stated.

4

The Company expects all of these entities to exist upon consummation of the Plan, in the ownership structure shown above. Additional entities may be formed in connection with the consummation of the Plan or thereafter.

Certain persons may be deemed to be “affiliates” of the Applicants commencing on the Effective Date by virtue of their anticipated holdings of voting securities of the Company following the Effective Date. See Item 5, “Principal Owners of Voting Securities.” In addition, certain directors and executive officers of the Company may be deemed to be “affiliates” of the Company by virtue of their positions with the Company. See Item 4, “Directors and Executive Officers.”

MANAGEMENT AND CONTROL

4. Directors and Executive Officers.

(a) The Company.

The names of all directors and executive officers of the Company as of the date of this Application are set forth below. The mailing address and telephone number of each director and executive officer is c/o The Great Atlantic & Pacific Tea Company, Two Paragon Drive, Montvale, New Jersey 07645.

Name	Position
Samuel Martin, III	President and Chief Executive Officer
Frederic Brace	Executive Vice President, Chief Administrative Officer, Chief Financial Officer and Chief Restructuring Officer
Paul Hertz	Executive Vice President of Operations
Thomas O’Boyle	Executive Vice President of Merchandising, Marketing and Supply/Logistics
Christopher W. McGarry	Senior Vice President, General Counsel and Corporate Secretary
Carter Knox	Senior Vice President, Human Resources and Communications
Melissa E. Sungela	Senior Vice President and Corporate Controller
Christian W.E. Haub	Chairman and Director
John Barline	Director
Thomas Casey	Director
Andreas Guldin	Director
Edward Lewis	Director
Dan Kourkoumelis	Director
Gregory Mays	Director
Gregory Rayburn	Director
Maureen Tart-Bezer	Director
Terrence Wallock	Director

On the Effective Date, in accordance with the Plan, new directors will be appointed and the current directors will no longer serve in that capacity.

(b) The Guarantors.

The names and positions of all directors and executive officers of each of the Guarantors as of the date of this Application are set forth below. The mailing address and telephone number of each director and executive officer is c/o The Great Atlantic & Pacific Tea Company, Two Paragon Drive, Montvale, New Jersey 07645.

5

	Frederic Brace	Christopher McGarry	Joan Roensch	James Lukowski	Melissa Sungela	Barbara Bailey	Richard Ford
2008 Broadway, Inc.	P(1), T(2), D(3)	VP(4), S(5), D	AS(6)
AAL Realty Corporation	P, T, D	VP, S, D
Adbrett Corporation	P, T, D	VP, S, D
Amsterdam Trucking Corporation	P, T, D	VP, S, D		VP
APW Supermarket Corporation	P, T, D	VP, S, D
APW Supermarkets, Inc.	C(7), T, D	VP, S, D
Bergen Street Pathmark, Inc.	P, T, D	VP, S, D
Best Cellars DC Inc.	D	P, T, D			S
Best Cellars Inc.	D	P, T, D			S
Best Cellars Licensing Corp.	D	P, T, D			S
Best Cellars Massachusetts, Inc.	D	P, T, D			S
Best Cellars VA Inc.	D	P, T, D			S
BEV, Ltd.	P, T, D	VP, S, D		VP
Borman’s, Inc.	P, T, D	VP, S, D
Bridge Stuart, Inc.	P, T, D	VP, S, D
Clay-Park Realty Co., Inc.	P, T, D	VP, S, D		VP
Compass Foods, Inc.	P, T, D	VP, S, D	AS
East Brunswick Stuart LLC	VP, T, D	P, S, D	AS
Farmer Jack’s of Ohio, Inc.	P, T, D	VP, S, D		VP
Food Basics, Inc.	P, T, D	VP, S, D
Gramatan Foodtown Corp.	P, T, D	VP, S, D		VP
Grape Finds Licensing Corp.	D	P, T, D			S
Greenlawn Land Development Corp.	P, T, D	VP, S, D		VP
Hopelawn Property I, Inc.	EVP(8), T, D	VP, S, D
Kohl’s Food Stores, Inc.	P, T, D	VP, S, D
Kwik Save Inc.	P, T, D	VP, S, D
Lancaster Pike Stuart, LLC	VP, T, D	P, S, D	AS
LBRO Realty, Inc.	P, T, D	VP, S, D		VP
Lo-Lo Discount Stores, Inc.		VP, T, D				AS, D	P, D
Mac Dade Boulevard Stuart, LLC	VP, T, D	P, S, D	AS
McLean Avenue Plaza Corp.	P, T, D	VP, S, D		VP
Milik Service Company, LLC	VP, T, D	P, S, D	AS

6

	Frederic Brace	Christopher McGarry	Joan Roensch	James Lukowski	Melissa Sungela	Barbara Bailey	Richard Ford
Montvale Holdings, Inc.	P, T, D	VP, S, D	AS
North Jersey Properties, Inc. VI	D	P, T, D	S
Onpoint, Inc.	D	P, T, D	S
Pathmark Stores, Inc.	P, D	VP, S, D	AS
Plainbridge, LLC	VP, T, D	P, S, D	AS
SEG Stores, Inc.	P, T, D	VP, S, D		VP
Shopwell, Inc.	P, T, D	VP, S, D	AS
Spring Lane Produce Corp.	P, T, D	VP, S, D		VP
Super Fresh Food Markets, Inc.	P, T, D	VP, S, D	AS
Super Fresh/Sav-A-Center, Inc.	P, T, D	VP, S, D	AS
Super Market Service Corp	P, T, D	VP, S, D	AS
Super Plus Food Warehouse, Inc.	P, T, D	VP, S, D	AS
Supermarkets Oil Company, Inc.	P, T, D	VP, S, D
The Old Wine Emporium of Westport, Inc.	P, D	S, D
The South Dakota Great Atlantic & Pacific Tea Company, Inc.	P, T, D	VP, S, D	AS
Tradewell Foods of Conn., Inc.	P, T, D	VP, S, D
Upper Darby Stuart, LLC	VP, T, D	P, T, D	AS
Waldbaum, Inc.	P, T, D	VP, S, D

(1) President

(2) Treasurer

(3) Director or Manager, as applicable

(4) Vice President

(5) Secretary

(6) Assistant Secretary

(7) Chairman

(8) Executive Vice President

7

5. Principal Owners of Voting Securities.

Presented below is certain information regarding each person known to the Company to own 10% or more of any of the voting securities of the Company as of the date of this Application:

Name and Address of Beneficial Owner	Title of Class	Number of Shares Owned(1)		% of All Voting Securities
Christian W. E. Haub (2) 67 Mason Street Greenwich, CT 06830	Common Stock		24,390,777		45	%
	Series A-T Preferred Stock		60,000		100	%
Erivan Karl Haub (2) Wissollstrasse 5-43 45478 Mülheim an der Ruhr, Germany	Common Stock		24,110,864		44	%
	Series A-T Preferred Stock		60,000		100	%
Karl-Erivan Warder Haub (2) Wissollstrasse 5-43 45478 Mülheim an der Ruhr, Germany	Common Stock		23,798,764		44	%
	Series A-T Preferred Stock		60,000		100	%
Tengelmann Warenhandelsgesell schaft KG (2) Wissollstrasse 5-43 45478 Mülheim an der Ruhr, Germany	Common Stock		23,785,764		44	%
	Series A-T Preferred Stock		60,000		100	%
The Yucaipa Companies LLC (3) 9130 W. Sunset Boulevard Los Angeles, CA 90069	Common Stock		2,592,610		5	%
	Series A-Y Preferred Stock		115,000		100	%

⁽¹⁾  For purposes of this table, a person or a group of persons is deemed to have “beneficial ownership” of any shares which such person has the right to acquire as of the date of this Application. For purposes of computing the percentage of outstanding shares held by each person or group of persons named above on a given date, any shares which such person or persons has the right to acquire within 60 days after such date are deemed to be outstanding, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person.

⁽²⁾  The Company obtained the information regarding Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”), Tengelmann Verwaltungsund Beteiligungs GmbH (“TVB”), Emil Capital Partners, LLC (“ECP”), Erivan Karl Haub (“Erivan”), Karl-Erivan Warder Haub (“Karl-Erivan”) and Christian W. E. Haub (“Christian”) from such persons, and from a Schedule 13D filed with the SEC on February 4, 2011. Tengelmann is engaged in general retail marketing. It owns, operates and has investments in, through affiliated companies and subsidiaries, several chains of stores, which principally sell grocery and department store items throughout the Federal Republic of Germany, other European countries and the United States. The general partners of Tengelmann are, TVB and two of Erivan’s sons, Karl-Erivan and Christian. Georg Haub is Erivan’s third son and is a Managing Director of a company affiliated with Tengelmann and a citizen of the United States and the Federal Republic of Germany whose business address is Wissollstrasse 5-43, 45478 Muelheim an der Ruhr, Federal Republic of Germany. TVB is the sole managing partner of Tengelmann. By virtue of the articles of association of Tengelmann, TVB has the exclusive right to direct Tengelmann and is solely responsible for its conduct. TVB, whose only stockholders are Erivan Karl Haub and his three sons, is not an operating company. Karl-Erivan and Christian are the only Managing Directors of TVB and by virtue of this office are co-CEOs of Tengelmann. On August 9, 2009, Tengelmann acquired 60,000 shares of Series A-T Preferred Stock.

8

⁽³⁾  This information has been obtained from a Schedule 13D/A filed with the SEC on December 15, 2010, filed jointly by (i) Ronald W. Burkle, (ii) Yucaipa Corporate Initiatives Fund I, LLC, a Delaware limited liability company (“YCI LLC”), (iii) Yucaipa Corporate Initiatives Fund I, LP, a Delaware limited partnership (“YCI”), (iv) Yucaipa American Management, LLC, a Delaware limited liability company (“Yucaipa American”), (v) Yucaipa American Funds, LLC, a Delaware limited liability company (“Yucaipa American Funds”), (vi) Yucaipa American Alliance Fund I, LLC, a Delaware limited liability company (“YAAF LLC”), (vii) Yucaipa American Alliance Fund I, LP, a Delaware limited partnership (“YAAF”), (viii) Yucaipa American Alliance (Parallel) Fund I, LP, a Delaware limited partnership, (ix) Yucaipa American Alliance Fund II, LLC, a Delaware limited liability company (“YAAF II LLC”), (x) Yucaipa American Alliance Fund II, LP, a Delaware limited partnership (“YAAF II”), (xi) Yucaipa American Alliance (Parallel) Fund II, LP, a Delaware limited partnership (“YAAF II Parallel”). Mr. Burkle is the managing member of YCI LLC, which is the general partner of YCI. Mr. Burkle is the managing member of Yucaipa American, which is the managing member of Yucaipa American Funds, which is the managing member of YAAF LLC, which, in turn, is the general partner of YAAF. Yucaipa American Funds is also the managing member YAAF II LLC, which, in turn, is the general partner of YAAF II and YAAF II Parallel.

The ownership of voting securities of each of the Guarantors is set forth in Item 3.

If the Plan is consummated, all of the currently outstanding securities of the Company will be cancelled as of the Effective Date. Immediately following the Effective Date, it is expected that funds managed or advised by the following parties will own 10% or more of the authorized and outstanding voting securities of the reorganized Company, as provided in the Plan:

Goldman Sachs Asset Management, L.P. (1)

Mount Kellett Capital Management LP (2)

The Yucaipa Companies LLC (3)

(1) The address of Goldman Sachs Asset Management, L.P. is: c/o Liberty Harbor, 1 American Lane, Greenwich, CT 06831, Attention: Thomas Secor.

(2) The address of Mount Kellett Capital Management LP is: c/o Mt. Kellett Capital Management, 623 Fifth Avenue, 18th Floor, New York, New York 10022, Attention: Andrew Axelrod.

(3) The address of The Yucaipa Companies LLC is: c/o The Yucaipa Companies LLC, 9130 W. Sunset Boulevard Los Angeles, California 90069 Attention: Robert Bermingham.

The principal owners of the voting securities of each of the Guarantors are expected to remain the same if the Plan is consummated.

UNDERWRITERS

6. Underwriters.

(a) No person has acted as an underwriter of any securities of the Company within three years prior to the date of filing this Application for Qualification.

(b) No person is acting as a principal underwriter of the Replacement Notes proposed to be offered pursuant to the Indenture.

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CAPITAL SECURITIES

7. Capitalization.

(a) The following table sets forth information with respect to each authorized class of securities of the Applicants as of January 1, 2012:

(i) Equity Securities of the Company

Title of Class	Number of Shares Authorized		Number of Shares Outstanding
Common Stock		260,000,000	53,852,470
Preferred Stock		3,000,000	Series A-T: 60,000
			Series A-Y: 115,000

It is anticipated that the capitalization for the Company will be as follows as of the Effective Date:

Title of Class	Amount Authorized		Amount Outstanding
New Common Stock		8,000,000		800,000
New Preferred Stock		50,000		0
Convertible Third Lien Notes due 2018 (with voting rights)	$	550,000,000	$	250,000,000

(ii) Equity Securities of the Guarantors

Guarantor	Title of Class	Number of Shares Authorized	Number of Shares Outstanding
2008 Broadway, Inc.	Common stock	1,000	1,000
AAL Realty Corporation	Common stock	1,000	100
Adbrett Corporation	Common stock	1,000	1000
Amsterdam Trucking Corporation	Common stock	200	200
APW Supermarket Corporation	Class A Common Stock, Class B Common Stock	Class A Common Stock: 100,000 Class B Common Stock: 100,000	18,715.43 Class B Common Stock
APW Supermarkets, Inc.	Common stock	1,000	1,000
Bergen Street Pathmark, Inc.	Common stock	90	90
Best Cellars DC Inc.	Common stock	1,000	1,000
Best Cellars Inc.	Common stock; Preferred stock	Common stock: 15,000,000 Preferred Stock: 3,300,000	100 Common Stock
Best Cellars Licensing Corp.	Common stock	100	100
Best Cellars Massachusetts, Inc.	Common stock	12,500	12,500
Best Cellars Va Inc.	Common stock	1,000	100
Bev, Ltd.	Common stock	5,000	5,000

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Borman’s, Inc.	Common stock	1,000	1,000
Bridge Stuart, Inc.	Common stock	200	100
Clay-Park Realty Co., Inc.	Common stock	200	100
Compass Foods, Inc.	Common stock	100	10
East Brunswick Stuart LLC	Common Units	100	100
Farmer Jack’s Of Ohio, Inc.	Common stock	500	0
Food Basics, Inc.	Common stock	100	100
Gramatan Foodtown Corp.	Common stock	200	200
Grape Finds Licensing Corp.	Common stock	100	100
Greenlawn Land Development Corp.	Common stock	20,000	1
Hopelawn Property I, Inc.	Common stock	1,000	1,000
Kohl’s Food Stores, Inc.	Common stock	60,000	56,000
Kwik Save Inc.	Common stock	1,000	1000
Lancaster Pike Stuart, LLC	Common Units	100	100
LBRO Realty, Inc.	Common stock	200	200
Lo-Lo Discount Stores, Inc.	Common stock	10,000	1,000
MacDade Boulevard Stuart, LLC	Common Units	100	100
Mclean Avenue Plaza Corp.	Common stock	200	200
Milik Service Company, LLC	Membership Interest	100	100
Montvale Holdings, Inc.	Common stock	1,000	1000
North Jersey Properties, Inc. VI	Common stock	1,000	1,000
Onpoint, Inc.	Common stock	1,000	1,00
Pathmark Stores, Inc.	Common stock; Preferred stock	Common stock: 2,500 Preferred stock: 500	2,500 Common Stock
Plainbridge, LLC	Membership Interest	100	100
S E G Stores, Inc.	Common stock	3,000	3,000
Shopwell, Inc.	Common stock; Preferred Stock	100	1
Spring Lane Produce Corp.	Common Stock	100	100
Super Fresh Food Markets, Inc.	Common Stock	1,000	1,000
Super Fresh/Sav-A-Center, Inc.	Common Stock	1,000	1,000
Super Market Service Corp.	Common Stock	1,500	500
Super Plus Food Warehouse, Inc.	Common Stock	1,000	1,000
Supermarkets Oil Company, Inc.	Common Stock	1,000	100
The Old Wine Emporium of Westport, Inc.	Common Stock	500	100
The South Dakota Great Atlantic & Pacific Tea Company, Inc.	Common Stock	1,000	1,000
Tradewell Foods of Conn., Inc.	Common Stock	20	10
Upper Darby Stuart, LLC	Common Units	100	100
Waldbaum, Inc.	Preferred Stock; Class A Stock; Class B Stock	Preferred Stock: 1000000 Class A Stock: 12000000 Class B Stock: 7000000	1,000

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It is anticipated that the capitalization table set forth above for the Guarantors will remain unchanged as of the Effective Date.

(b) Holders of Common Stock of the Company or the reorganized Company are entitled to one vote per share of common stock. Holders of Preferred Stock of the Company or the reorganized Company vote together with the holders of Common Stock and are entitled to such number of votes as the number of shares of Common Stock into which such Preferred Stock would be convertible at the time of the record date for any such vote. Holders of Convertible Third Lien Notes due 2018 will be entitled to vote on an as-converted basis.

Holders of membership interests of each Guarantor that is a limited liability company are entitled to one vote per each interest registered in such holder’s name. Holders of common stock of each Guarantor that is a corporation, with the exception of APW Supermarket Corporation, are entitled to one vote per each share registered in such holder’s name. Holders of Class B Common Stock of APW Supermarket Corporation are not entitled to vote, except as required by law.

INDENTURE SECURITIES

8. Analysis of Indenture Provisions.

The Replacement Notes will be subject to the Indenture among the Company, the Guarantors and the trustee named therein (the “Trustee”). The following is a general description of certain provisions of the Indenture, and the description is qualified in its entirety by reference to the form of Indenture filed as Exhibit T3C herewith. Capitalized terms used below and not defined herein have the meanings ascribed to them in the Indenture.

(a) Events of Default; Withholding of Notice.

The occurrence of any of the following events will constitute an Event of Default under the Indenture: (1) failure to pay interest (after a 30-day grace period), (2) failure to pay principal, (3) failure to comply with any covenants for a period of 45 days after notice, (4) involuntary or voluntary insolvency, (5) default under the collateral documents for a period of 45 days after notice and (6) an acceleration of the New Second Lien Notes (as defined in the Plan) upon an Event of Default (as defined in the indenture governing the New Second Lien Notes.

For so long as the New Second Lien Notes remain outstanding and have not been repaid or defeased in full in accordance with their terms, holders of Replacement Notes shall not be permitted to declare a default, accelerate indebtedness, or exercise remedies on account of the Replacement Notes unless and until an Event of Default (as defined in the indenture governing the New Second Lien Notes) has occurred under the New Second Lien Notes and the New Second Lien Notes have been accelerated in accordance with their terms.

Pursuant to Section 6.02 of the Indenture, if an Event of Default (other than an Event of Default arising from clause (4) listed above) shall have occurred and be continuing, then, subject to the restriction described in the preceding paragraph, the Trustee or the holders of not less than 25% in aggregate principal amount of the Replacement Notes then outstanding may declare to be immediately due and payable the entire principal amount of all the Replacement Notes then outstanding plus accrued interest to the date of acceleration. Notwithstanding the foregoing, if an Event of Default specified in clause (4) above occurs with respect to the Company, all outstanding Replacement Notes shall become due and payable immediately without further action, notice or declaration on the part of the Trustee or any holder.

12

If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to each holder of Replacement Notes notice of the Default within 90 days after it occurs.

(b) Authentication and Delivery of New Senior Notes; Application of Proceeds.

The Replacement Notes may be executed on behalf of the Company by any two Officers. The signature of these Officers on the Replacement Notes may be by facsimile or manual signature in the name and on behalf of the Company. A Replacement Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Replacement Note has been authenticated under the Indenture. The Trustee shall, upon a written order of the Company signed by two Officers, authenticate the Replacement Notes for original issue. The Trustee may appoint an authenticating agent to authenticate the Replacement Notes. An authenticating agent may authenticate the Replacement Notes whenever the Trustee may do so.

The Replacement Notes will be issued only if the class of Second Lien Note Claims does not vote to accept the Plan and only to those holders of Second Lien Note Claims that actually elect to receive Replacement Notes in lieu of a cash payment on account of their allowed Second Lien Note Claims. As a result, the Company will not realize any proceeds from such issuance.

(c) Release of Collateral.

Pursuant to Section 11.03 of the Indenture, subject to certain subsections of Section 11.03 of the Indenture, Collateral may be released from the Lien and security interest created by the Collateral Documents at any time or from time to time in accordance with the provisions of the Collateral Documents or as provided in the Indenture. In addition, upon the request of the Company pursuant to an Officers’ Certificate certifying that all conditions precedent under the Indenture have been met, then (at the Company’s expense) the Collateral Agent shall release (or cause to be released) any Collateral permitted to be released pursuant to the Indenture or the Collateral Documents.

(d) Satisfaction and Discharge.

The Indenture will be discharged and will cease to be of further effect as to all outstanding Replacement Notes hereunder, and the Trustee, upon receipt from the Company of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to satisfaction and discharge have been satisfied, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when either

(1) all Replacement Notes that have been authenticated (except lost, stolen or destroyed Replacement Notes that have been replaced or paid and Replacement Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or

(2) (A) all Replacement Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Replacement Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; (B) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such

13

deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; (C) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture and not provided for by the deposit required by clause (A) above; and (D) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Replacement Notes at maturity or the redemption date, as the case may be.

(e) Evidence of Compliance with Conditions and Covenants.

The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, a certificate signed by the Company’s principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture and further stating, as to the officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Replacement Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

The Company shall, so long as any of the Replacement Notes are outstanding, deliver to the Trustee, forthwith upon the Company or any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

9. Other Obligors.

All of the Replacement Notes will be guaranteed by the Guarantors.

Contents of application for qualification. This application for qualification comprises:

(a) Pages numbered 1 to 14, consecutively.

(b) The statement of eligibility and qualification on Form T-1 of the trustee under the Indenture to be qualified (to be filed by amendment).

(c) The following exhibits in addition to those filed as part of the Form T-1 statement of eligibility and qualification of the Trustee:

T3A-1	Articles of Amendment and Restatement to Amended and Restated Articles of Incorporation of The Great Atlantic & Pacific Tea Company, Inc. (incorporated herein by reference to Exhibit 3.1 to Form 8-K filed on November 8, 2007)
T3A-2*	Certificate of Incorporation of 2008 Broadway, Inc., as amended
T3A-3*	Certificate of Incorporation of AAL Realty Corporation

14

T3A-4*	Certificate of Incorporation of Adbrett Corporation
T3A-5*	Certificate of Incorporation of Amsterdam Trucking Corporation , as amended
T3A-6*	Certificate of Incorporation of APW Supermarket Corporation, as amended
T3A-7*	Certificate of Incorporation of APW Supermarkets, Inc.
T3A-8*	Restated Certificate of Incorporation of Bergen Street Pathmark, Inc.
T3A-9*	Articles of Incorporation of Best Cellars DC Inc.
T3A-10*	Restated Certificate of Incorporation of Best Cellars Inc., as amended
T3A-11*	Certificate of Incorporation of Best Cellars Licensing Corp.
T3A-12*	Articles of Organization of Best Cellars Massachusetts, Inc.
T3A-13*	Certificate of Incorporation of Best Cellars Va Inc., as amended
T3A-14*	Certificate of Incorporation of Bev, Ltd.
T3A-15*	Certificate of Incorporation of Borman’s, Inc., as amended
T3A-16*	Certificate of Incorporation of Bridge Stuart, Inc.
T3A-17*	Certificate of Incorporation of Clay-Park Realty Co., Inc., as amended
T3A-18*	Certificate of Incorporation of Compass Foods, Inc.
T3A-19*	Certificate of Formation of East Brunswick Stuart LLC, as amended
T3A-20*	Articles of Incorporation of Farmer Jack’s Of Ohio, Inc.
T3A-21*	Certificate of Incorporation of Food Basics, Inc.
T3A-22*	Certificate of Incorporation of Gramatan Foodtown Corp.
T3A-23*	Articles of Incorporation of Grape Finds Licensing Corp.
T3A-24*	Certificate of Incorporation of Greenlawn Land Development Corp.
T3A-25*	Certificate of Formation of Hopelawn Property I, Inc.
T3A-26*	Articles of Incorporation of Kohl’s Food Stores, Inc., as amended
T3A-27*	Certificate of Incorporation of Kwik Save Inc.
T3A-28*	Certificate of Formation of Lancaster Pike Stuart, LLC, as amended
T3A-29*	Certificate of Incorporation of LBRO Realty, Inc.
T3A-30*	Certificate of Incorporation of Lo-Lo Discount Stores, Inc., as amended
T3A-31*	Certificate of Formation of MacDade Boulevard Stuart, LLC, as amended
T3A-32*	Certificate of Incorporation of Mclean Avenue Plaza Corp., as amended

15

T3A-33*	Articles of Organization of Milik Service Company, LLC
T3A-34*	Certificate of Incorporation of Montvale Holdings, Inc.
T3A-35*	Certificate of Incorporation of North Jersey Properties, Inc. VI
T3A-36*	Certificate of Incorporation of Onpoint, Inc., as amended
T3A-37*	Amended and Restated Certificate of Incorporation of Pathmark Stores, Inc., as amended
T3A-38*	Certificate of Formation of Plainbridge, LLC, as amended
T3A-39*	Certificate of Incorporation of S E G Stores, Inc., as amended
T3A-40*	Restated Certificate of Incorporation of Shopwell, Inc., as amended
T3A-41*	Certificate of Incorporation of Spring Lane Produce Corp.
T3A-42*	Certificate of Incorporation of Super Fresh Food Markets, Inc., as amended
T3A-43*	Certificate of Incorporation of Super Fresh/Sav-A-Center, Inc., as amended
T3A-44*	Articles of Incorporation of Super Market Service Corp.
T3A-45*	Certificate of Incorporation of Super Plus Food Warehouse, Inc.
T3A-46*	Certificate of Incorporation of Supermarkets Oil Company, Inc.
T3A-47*	Certificate of Incorporation of The Old Wine Emporium of Westport, Inc., as amended
T3A-48*	Articles of Incorporation of The South Dakota Great Atlantic & Pacific Tea Company, Inc.
T3A-49*	Certificate of Incorporation of Tradewell Foods of Conn., Inc.
T3A-50*	Certificate of Formation of Upper Darby Stuart, LLC
T3A-51*	Restated Certificate of Incorporation of Waldbaum, Inc., as amended
T3B-1.1	By-Laws of The Great Atlantic & Pacific Tea Company, Inc., as amended and restated (incorporated herein by reference to Exhibit 3.1 to Form 8-K filed on August 5, 2009).
T3B-1.2	Articles Supplementary of 8% Cumulative Convertible Preferred Stock Series A-T, A-Y, B-T and B-Y of The Great Atlantic & Pacific Tea Company, Inc. (incorporated herein by reference to Exhibit 4.1 to Form 8-K filed on August 5, 2009).
T3B-2*	By-laws of 2008 Broadway, Inc.
T3B-3*	By-laws of AAL Realty Corporation
T3B-4*	By-laws of Adbrett Corporation
T3B-5*	By-laws of Amsterdam Trucking Corporation
T3B-6*	By-laws of APW Supermarket Corporation
T3B-7*	By-laws of APW Supermarkets, Inc.
T3B-8*	By-laws of Bergen Street Pathmark, Inc.
T3B-9*	Amended and Restated By-laws of Best Cellars DC Inc.

16

T3B-10*	By-laws of Best Cellars Inc.
T3B-11*	Amended and Restated By-laws of Best Cellars Licensing Corp.
T3B-12*	Amended and Restated By-laws of Best Cellars Massachusetts, Inc.
T3B-13*	Amended and Restated By-laws of Best Cellars Va Inc.
T3B-14*	Amended and Restated By-laws of Bev, Ltd.
T3B-15*	By-laws of Borman’s, Inc.
T3B-16*	By-laws of Bridge Stuart, Inc.
T3B-17*	By-laws of Clay-Park Realty Co., Inc.
T3B-18*	By Laws of Compass Foods, Inc., as amended and restated
T3B-19*	Operating Agreement of East Brunswick Stuart LLC
T3B-20*	By-laws of Food Basics, Inc.
T3B-21*	By-laws of Gramatan Foodtown Corp.
T3B-22*	By-laws of Grape Finds Licensing Corp.
T3B-23*	Bylaws of Hopelawn Property I, Inc.
T3B-24*	By-laws of Kohl’s Food Stores, Inc.
T3B-25*	By-laws of Kwik Save Inc., as amended
T3B-26*	Amended and Restated Operating Agreement of Lancaster Pike Stuart, LLC
T3B-27*	By-laws of LBRO Realty, Inc.
T3B-28*	By-laws of Lo-Lo Discount Stores, Inc., as amended
T3B-29*	MacDade Boulevard Stuart, LLC Operating Agreement
T3B-30*	By-laws of Mclean Avenue Plaza Corp.
T3B-31*	Limited Liability Company Agreement for Milik Service Company, LLC
T3B-32*	By-laws of Montvale Holdings, Inc.
T3B-33*	By-laws of North Jersey Properties, Inc. VI
T3B-34*	Bylaws of Onpoint, Inc.
T3B-35*	Amended and Restated By-laws of Pathmark Stores, Inc.
T3B-36*	Limited Liability Company Agreement of Plainbridge, LLC
T3B-37*	S E G Stores, Inc. By-laws, as amended
T3B-38*	Amended and Restated Bylaws of Shopwell, Inc.

17

T3B-39*	By-laws of Spring Lane Produce Corp.
T3B-40*	By-laws of Super Fresh Food Markets, Inc.
T3B-41*	By-laws of Super Fresh/Sav-A-Center, Inc.
T3B-42*	By-laws of Super Market Service Corp., as amended
T3B-43*	By-laws of Super Plus Food Warehouse, Inc.
T3B-44*	By-laws of Supermarkets Oil Company, Inc.
T3B-45*	By-laws of The Old Wine Emporium of Westport, Inc.
T3B-46*	By-laws of The South Dakota Great Atlantic & Pacific Tea Company, Inc.
T3B-47*	By-laws of Tradewell Foods of Conn., Inc.
T3B-48*	Amended and Restated Operating Agreement of Upper Darby Stuart, LLC
T3B-49*	By-laws of Waldbaum, Inc.
T3C**	Form of Indenture governing the Replacement Notes
T3D	[Not applicable.]
T3E-1*	Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code, dated December 19, 2011.
T3E-2*	Debtors’ Disclosure Statement for the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code, dated December 19, 2011.
T3F**	Cross-reference sheet (Included in Exhibit T3C)
T3G**	Form T-1 qualifying the trustee under the Indenture to be qualified pursuant to this Form T-3.

* Filed herewith

** To be filed by amendment

18

SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, the Applicants have duly caused this application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the City of Montvale, and State of New Jersey, on the 13th day of January, 2012.

The Great Atlantic & Pacific Tea Co., Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Senior Vice President, General Counsel and Corporate Secretary

2008 Broadway, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

AAL Realty Corporation
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Adbrett Corporation
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Amsterdam Trucking Corporation
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

19

APW Supermarket Corporation
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

APW Supermarkets, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Bergen Street Pathmark, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Best Cellars DC Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Best Cellars Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Best Cellars Licensing Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Best Cellars Massachusetts, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

20

Best Cellars Va Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Bev, Ltd.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Borman’s, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Bridge Stuart, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Clay-Park Realty Co., Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Compass Foods, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

East Brunswick Stuart LLC
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Secretary and Manager

21

Farmer Jack’s Of Ohio, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Food Basics, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Gramatan Foodtown Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Grape Finds Licensing Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President and Director

Greenlawn Land Development Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Hopelawn Property I, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Kohl’s Food Stores, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

22

Kwik Save Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Lancaster Pike Stuart, LLC
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Secretary and Manager

LBRO Realty, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Lo-Lo Discount Stores, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Treasurer and Director

MacDade Boulevard Stuart, LLC
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Secretary and Manager

Mclean Avenue Plaza Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Milik Service Company, Llc
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Secretary and Manager

23

Montvale Holdings, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

North Jersey Properties, Inc. VI
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Onpoint, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Pathmark Stores, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Plainbridge, LLC
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Secretary and Manager

S E G Stores, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Shopwell, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

24

Spring Lane Produce Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Super Fresh Food Markets, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Super Fresh/Sav-A-Center, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Super Market Service Corp.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Super Plus Food Warehouse, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Supermarkets Oil Company, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

The Old Wine Emporium of Westport, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Secretary and Director

25

The South Dakota Great Atlantic & Pacific Tea Company, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Tradewell Foods of Conn., Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Upper Darby Stuart, LLC
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	President, Treasurer and Director

Waldbaum, Inc.
By:	/s/    CHRISTOPHER MCGARRY
Name:	Christopher McGarry
Title:	Vice President, Secretary and Director

Attest:	/s/    JOAN ROENSCH
Name:	Joan Roensch

26

INDEX TO EXHIBITS

T3A-1	Articles of Amendment and Restatement to Amended and Restated Articles of Incorporation of The Great Atlantic & Pacific Tea Company, Inc. (incorporated herein by reference to Exhibit 3.1 to Form 8-K filed on November 8, 2007)
T3A-2*	Certificate of Incorporation of 2008 Broadway, Inc., as amended
T3A-3*	Certificate of Incorporation of AAL Realty Corporation
T3A-4*	Certificate of Incorporation of Adbrett Corporation
T3A-5*	Certificate of Incorporation of Amsterdam Trucking Corporation , as amended
T3A-6*	Certificate of Incorporation of APW Supermarket Corporation, as amended
T3A-7*	Certificate of Incorporation of APW Supermarkets, Inc.
T3A-8*	Restated Certificate of Incorporation of Bergen Street Pathmark, Inc.
T3A-9*	Articles of Incorporation of Best Cellars DC Inc.
T3A-10*	Restated Certificate of Incorporation of Best Cellars Inc., as amended
T3A-11*	Certificate of Incorporation of Best Cellars Licensing Corp.
T3A-12*	Articles of Organization of Best Cellars Massachusetts, Inc.
T3A-13*	Certificate of Incorporation of Best Cellars Va Inc., as amended
T3A-14*	Certificate of Incorporation of Bev, Ltd.
T3A-15*	Certificate of Incorporation of Borman’s, Inc., as amended
T3A-16*	Certificate of Incorporation of Bridge Stuart, Inc.
T3A-17*	Certificate of Incorporation of Clay-Park Realty Co., Inc., as amended
T3A-18*	Certificate of Incorporation of Compass Foods, Inc.
T3A-19*	Certificate of Formation of East Brunswick Stuart LLC, as amended
T3A-20*	Articles of Incorporation of Farmer Jack’s Of Ohio, Inc.
T3A-21*	Certificate of Incorporation of Food Basics, Inc.
T3A-22*	Certificate of Incorporation of Gramatan Foodtown Corp.
T3A-23*	Articles of Incorporation of Grape Finds Licensing Corp.
T3A-24*	Certificate of Incorporation of Greenlawn Land Development Corp.
T3A-25*	Certificate of Formation of Hopelawn Property I, Inc.
T3A-26*	Articles of Incorporation of Kohl’s Food Stores, Inc., as amended
T3A-27*	Certificate of Incorporation of Kwik Save Inc.
T3A-28*	Certificate of Formation of Lancaster Pike Stuart, LLC, as amended

27

T3A-29*	Certificate of Incorporation of LBRO Realty, Inc.
T3A-30*	Certificate of Incorporation of Lo-Lo Discount Stores, Inc., as amended
T3A-31*	Certificate of Formation of MacDade Boulevard Stuart, LLC, as amended
T3A-32*	Certificate of Incorporation of Mclean Avenue Plaza Corp., as amended
T3A-33*	Articles of Organization of Milik Service Company, LLC
T3A-34*	Certificate of Incorporation of Montvale Holdings, Inc.
T3A-35*	Certificate of Incorporation of North Jersey Properties, Inc. VI
T3A-36*	Certificate of Incorporation of Onpoint, Inc., as amended
T3A-37*	Amended and Restated Certificate of Incorporation of Pathmark Stores, Inc., as amended
T3A-38*	Certificate of Formation of Plainbridge, LLC, as amended
T3A-39*	Certificate of Incorporation of S E G Stores, Inc., as amended
T3A-40*	Restated Certificate of Incorporation of Shopwell, Inc., as amended
T3A-41*	Certificate of Incorporation of Spring Lane Produce Corp.
T3A-42*	Certificate of Incorporation of Super Fresh Food Markets, Inc., as amended
T3A-43*	Certificate of Incorporation of Super Fresh/Sav-A-Center, Inc., as amended
T3A-44*	Articles of Incorporation of Super Market Service Corp.
T3A-45*	Certificate of Incorporation of Super Plus Food Warehouse, Inc.
T3A-46*	Certificate of Incorporation of Supermarkets Oil Company, Inc.
T3A-47*	Certificate of Incorporation of The Old Wine Emporium of Westport, Inc., as amended
T3A-48*	Articles of Incorporation of The South Dakota Great Atlantic & Pacific Tea Company, Inc.
T3A-49*	Certificate of Incorporation of Tradewell Foods of Conn., Inc.
T3A-50*	Certificate of Formation of Upper Darby Stuart, LLC
T3A-51*	Restated Certificate of Incorporation of Waldbaum, Inc., as amended
T3B-1.1	By-Laws of The Great Atlantic & Pacific Tea Company, Inc., as amended and restated (incorporated herein by reference to Exhibit 3.1 to Form 8-K filed on August 5, 2009).
T3B-1.2	Articles Supplementary of 8% Cumulative Convertible Preferred Stock Series A-T, A-Y, B-T and B-Y of The Great Atlantic & Pacific Tea Company, Inc. (incorporated herein by reference to Exhibit 4.1 to Form 8-K filed on August 5, 2009).
T3B-2*	By-laws of 2008 Broadway, Inc.
T3B-3*	By-laws of AAL Realty Corporation
T3B-4*	By-laws of Adbrett Corporation
T3B-5*	By-laws of Amsterdam Trucking Corporation

28

T3B-6*	By-laws of APW Supermarket Corporation
T3B-7*	By-laws of APW Supermarkets, Inc.
T3B-8*	By-laws of Bergen Street Pathmark, Inc.
T3B-9*	Amended and Restated By-laws of Best Cellars DC Inc.
T3B-10*	By-laws of Best Cellars Inc.
T3B-11*	Amended and Restated By-laws of Best Cellars Licensing Corp.
T3B-12*	Amended and Restated By-laws of Best Cellars Massachusetts, Inc.
T3B-13*	Amended and Restated By-laws of Best Cellars Va Inc.
T3B-14*	Amended and Restated By-laws of Bev, Ltd.
T3B-15*	By-laws of Borman’s, Inc.
T3B-16*	By-laws of Bridge Stuart, Inc.
T3B-17*	By-laws of Clay-Park Realty Co., Inc.
T3B-18*	By Laws of Compass Foods, Inc., as amended and restated
T3B-19*	Operating Agreement of East Brunswick Stuart LLC
T3B-20*	By-laws of Food Basics, Inc.
T3B-21*	By-laws of Gramatan Foodtown Corp.
T3B-22*	By-laws of Grape Finds Licensing Corp.
T3B-23*	Bylaws of Hopelawn Property I, Inc.
T3B-24*	By-laws of Kohl’s Food Stores, Inc.
T3B-25*	By-laws of Kwik Save Inc., as amended
T3B-26*	Amended and Restated Operating Agreement of Lancaster Pike Stuart, LLC
T3B-27*	By-laws of LBRO Realty, Inc.
T3B-28*	By-laws of Lo-Lo Discount Stores, Inc., as amended
T3B-29*	MacDade Boulevard Stuart, LLC Operating Agreement
T3B-30*	By-laws of Mclean Avenue Plaza Corp.
T3B-31*	Limited Liability Company Agreement for Milik Service Company, LLC
T3B-32*	By-laws of Montvale Holdings, Inc.
T3B-33*	By-laws of North Jersey Properties, Inc. VI
T3B-34*	Bylaws of Onpoint, Inc.

29

T3B-35*	Amended and Restated By-laws of Pathmark Stores, Inc.
T3B-36*	Limited Liability Company Agreement of Plainbridge, LLC
T3B-37*	S E G Stores, Inc. By-laws, as amended
T3B-38*	Amended and Restated Bylaws of Shopwell, Inc.
T3B-39*	By-laws of Spring Lane Produce Corp.
T3B-40*	By-laws of Super Fresh Food Markets, Inc.
T3B-41*	By-laws of Super Fresh/Sav-A-Center, Inc.
T3B-42*	By-laws of Super Market Service Corp., as amended
T3B-43*	By-laws of Super Plus Food Warehouse, Inc.
T3B-44*	By-laws of Supermarkets Oil Company, Inc.
T3B-45*	By-laws of The Old Wine Emporium of Westport, Inc.
T3B-46*	By-laws of The South Dakota Great Atlantic & Pacific Tea Company, Inc.
T3B-47*	By-laws of Tradewell Foods of Conn., Inc.
T3B-48*	Amended and Restated Operating Agreement of Upper Darby Stuart, LLC
T3B-49*	By-laws of Waldbaum, Inc.
T3C**	Form of Indenture governing the Replacement Notes
T3D	[Not applicable.]
T3E-1*	Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code, dated December 19, 2011.
T3E-2*	Debtors’ Disclosure Statement for the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code, dated December 19, 2011.
T3F**	Cross-reference sheet (Included in Exhibit T3C)
T3G**	Form T-1 qualifying the trustee under the Indenture to be qualified pursuant to this Form T-3.

* Filed herewith

** To be filed by amendment

30

EX-99.T3A.2

Exhibit A-2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

TWO THOUSAND EIGHT BROADWAY, INC.

Under Section 402 of the Business Corporation Law

The undersigned, a natural person of the age of eighteen years or over, desiring to form a corporation pursuant to the provisions of the Business Corporation Law of the State of New York, hereby certifies as follows:

FIRST: The name of the corporation is

TWO THOUSAND EIGHT BROADWAY, INC.

hereinafter sometimes called “the corporation.”

SECOND: The purposes for which it is formed are as follows:

To take, lease, purchase or otherwise acquire, and to use, hold, sell, convey, exchange, lease, mortgage, work, improve, develop, divide, and otherwise handle, deal in, and dispose of real estate, real, personal and/or mixed property, and any interest or right therein.

In furtherance of its corporate business and subject to the limitations prescribed by statute, to acquire by purchase, exchange or otherwise, all or any part of, or any interest in, the properties, assets, business and good-will of any one or more corporations, associations, partnerships, firms, syndicates or individuals and to pay for the same in cash, property or its own or other securities; to hold, operate, reorganize, liquidate, mortgage, pledge, sell, exchange, or in any manner dispose of the whole or any part thereof; and in connection therewith, to assume or guarantee performance of any liabilities, obligations or contracts of corporations, associations, partnerships, firms, syndicates or individuals, and to conduct in any lawful manner the whole or any part of any similar business thus acquired.

1

In furtherance of its corporate business and subject to the limitations prescribed by statute, to be a promoter, partner, member, associate or manager of other business enterprises or ventures, or to the extent permitted in any other jurisdiction to be an incorporator of other corporations of any type or kind and to organize, or in any way participate in the organization, reorganization, merger or liquidation of any corporation, association or venture and the management thereof.

To carry out all or any part of the foregoing purposes as principal, factor, agent, broker, contractor or otherwise, either alone or in conjunction with any persons, firms, associations, corporations, or others in any part of the world; and in carrying on its business and for the purpose of attaining or furthering any of its purposes, to make and perform contracts of any kind and description, and to do anything and everything necessary, suitable, convenient or proper for the accomplishment of any of the purposes herein enumerated.

For the accomplishment of the aforesaid purposes, and in furtherance thereof, the corporation shall have and may exercise all of the powers conferred by the Business Corporation Law upon corporations formed thereunder, subject to any limitations contained in Article 2 of said law or in accordance with the provisions of any other statute of the State of New York.

THIRD: The office of the corporation in the State of New York is to be located in the City and County of New York.

FOURTH: The aggregate number of shares which the corporation shall have authority to issue is one thousand (1,000) shares, all of which are without par value.

FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against the corporation may be served, and the address to which the Secretary of State shall mail a copy of any process against the corporation served upon him is c/o United States Corporation Company, 70 Pine Street, New York, N. Y. 10270.

2

IN WITNESS WHEREOF, I hereunto sign my name and affirm that the statements made herein are true under the penalties of perjury, this 11th day of March, 1981.

Name		Address
	/s/ Catherine McNealy	70 Pine Street
	Catherine McNealy	New York, N.Y. 10270
	Incorporator

3

CERTIFICATE OF INCORPORATION

OF

TWO THOUSAND EIGHT BROADWAY, INC.

Under Section 402 of the

Business Corporation Law

CATHERINE MCNEALY

14th Floor

70 Pine Street

New York, N. Y. 10270

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

TWO THOUSAND EIGHT BROADWAY, INC.

Under Section 805 of the

Business Corporation Law

Pursuant to the provisions of Section 805 of the Business Corporation Law, the undersigned, R. J. Scola and A. C. Melervey, Vice President and Secretary respectively, hereby certify:

FIRST: The name of the corporation is Two Thousand Eight Broadway, Inc.

SECOND: That the Certificate of Incorporation of the corporation was filed by the Department of State, Albany, New York, on the 12th day of March, 1981.

THIRD: That the amendment to the Certificate of Incorporation effected by this Certificate is as follows:

Article FIRST of the Certificate of Incorporation, relating to the name of the corporation, is hereby amended to read as follows:

“FIRST: The name of the corporation is 2008 Broadway, Inc.”

FOURTH: That the amendment of the Certificate of Incorporation was authorized by the unanimous written consent of the holders of all outstanding shares entitled to vote on an amendment to the Certificate of Incorporation pursuant to Article 615 of the New York Business Corporation Law and Article II, Section 9, of the By-Laws of Two Thousand Eight Broadway, Inc.

IN WITNESS WHEREOF, this Certificate has been signed this 30th day of April, 1984.

TWO THOUSAND EIGHT BROADWAY, INC.

/s/ R. J. Scola

R. J. Scola, Vice President

/s/ A. C. Melervey

A. C. Melervey, Secretary

1

STATE OF NEW JERSEY         )

                                                      )     ss.  :

COUNTY OF BERGEN             )

R. J. Scola and A. C. Melervey, being duly sworn, depose and say that they are Vice President and Secretary respectively of the corporation mentioned and described in the foregoing instrument; that they have read and signed the same and that the statements contained therein are true.

/s/ R. J. Scola

R. J. Scola

/s/ A. C. Melervey

A. C. Melervey

Sworn to before me this

30th day of April, 1984.

/s/ Marilyn C. Tomicki

MARILYN C. TOMICKI #G2701

  Notary Public of New Jersey

    Commission Expires February 27, 1985

2

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

TWO THOUSAND EIGHT BROADWAY, INC.

Under Section 805 of the

Business Corporation Law

A. C. MELERVEY, ESQ.

2 Paragon Drive

Montvale, NJ 07645

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

FIRST: The name of the corporation (the “corporation”) is

2008 BROADWAY, INC. The name under which the corporation was formed is TWO THOUSAND EIGHT BROADWAY, INC.

SECOND: The certificate of incorporation of the corporation was filed by the Department of State on March 12, 1981.

THIRD: The certificate of incorporation of the corporation is hereby changed so as to change the post office address to which the Secretary of State of the State of New York shall mail a copy of any process against the corporation served upon him; and, to accomplish said change, the statement in the certificate of incorporation relating to said post office address is hereby stricken and the following statement is substituted in lieu thereof:

“The post office address within the State of New York to which the Secretary of State of the State of New York shall mail a copy of any process against the corporation served upon him is c/o United States Corporation Company, 1 Gulf+Western Plaza, New York, New York 10023-7773.”

FOURTH: A notice of the proposed change was mailed by the undersigned to the corporation not less than 30 days prior to the date of the delivery of this certificate to the Department of State and the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of State of the State of New York is required to mail copies of process.

IN WITNESS WHEREOF, we have subscribed this document on the date hereinafter set forth and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct.

Dated: November 10, 1986

	UNITED STATES CORPORATION COMPANY
By	/s/ Dennis E. Howarth
	Dennis E. Howarth, Vice-President
	/s/ Grant M. Dawson
	Grant M. Dawson, Secretary

1

CERTIFICATE OF CHANGE

OF

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

Ms. Patricia A. Devlin

136 Madison Avenue

New York, New York 10016

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

F90121700028

CERTIFICATE OF CHANGE

of

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

FIRST: The name of the corporation (the “corporation)

2008 BROADWAY, INC.

The name under which this corporation was formed is

TWO THOUSAND EIGHT BROADWAY, INC.

SECOND: The certificate of incorporation of the corporation was filed by the Department of state on 03-12-81

THIRD: The certificate of incorporation of the corporation is hereby changed, so as to change the post office address to which the Secretary of State of the State of New York shall mail copy of process against the corporation served upon him and to accomplish said change, the statement in the certificate of incorporation relating to said post office address is hereby stricken and the following statement is substituted in lieu thereof:

“The post office address within the State of New York to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon him is c/o United States Corporation Company, 15 Columbus Circle, New York, New York 10023-7773

FOURTH: A notice of the proposed changes was mailed by the undersigned to the corporation not less than 30 days prior to the date of the delivery of this certificate to the Department of State and the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of the State of New York is required to mail copies of process.

IN WITNESS WHEREOF, we have subscribed this document on the date hereinafter set forth and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct.

Dated: 12-05-90

UNITED STATES CORPORATION COMPANY

/s/    Alan E. Spiewak

Alan E. Spiewak, Vice President

/s/    Richard L. Kushay

Richard L. Kushay, Asst. Secretary

1

F901217000284

CERTIFICATE OF CHANGE

OF

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

Margaret Timmins United States Corporation Company 15 Columbus Circle New York, New York 10023-7773   [SIGNATURE] 901217000336

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Dangiel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

F970415000396

Certificate of Change

of

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

FIRST: The name of the corporation ( the “corporation”) is

2008 BROADWAY, INC.

The name under which the corporation was formed is

TWO THOUSAND EIGHT BROADWAY, INC.

SECOND: The certificate of incorporation of the corporation was filed by the Department of State on 03-12-1981

THIRD: The certificate of incorporation of the corporation is hereby changed, so as to the post office address to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon said Secretary of State and to accomplish said change, the statement in the certificate of incorporation relating to said office address is hereby stricken and the following statement is substituted in lieu thereof:

“The post office address within the State of New York to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon him is

c/o UNITED STATES CORPORATION COMPANY

80 State Street, Albany, New York 12207.”

FOURTH: A notice of the proposed change was mailed by the undersigned to the corporation not less than 30 days prior to the date of the delivery of this certificate to the Department of State and the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of State of New York is required to mail copies of process.

IN WITNESS WHEREOF, we have subscribed this document on the date set forth below and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct.

Date: March 3, 1997

UNITED STATES CORPORATION COMPANY              

s\ William G. Popeo                                                               

William G. Popeo, Vice President                                        

s\ John H. Pelletier                                                                 

John H. Pelletier, Asst. Secretary                                        

1

F970415000396

CERTIFICATE OF CHANGE

of

2008 BROADWAY, INC.

(Under Section 805-A of the Business Corporation Law)

Anne Grigorakos

UNITED STATES CORPORATION COMPANY

375 Hudson Street, 11th Floor

New York, New York 10014

970415000410

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

f030117000390

Certificate of Change

of

Certificate of Incorporation

of

2008 BROADWAY, INC.

Pursuant to Section 805-A of the Business Corporation Law

IT IS HEREBY CERTIFIED:

FIRST: The name of the corporation is 2008 BROADWAY, INC.

SECOND: The Certificate of Incorporation was filed by the Department of State of the State of New York on 3/12/81.

THIRD: The change to the Certificate of Incorporation effected by this Certificate of Change is as follows:

To change the Paragraph which sets forth, the service of process address of the Corporation. The Paragraph shall read as follows:

“FIFTH: The Secretary of State of the State of New York is hereby designated as agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process served upon him is c/o BLUMBERGEXCELSIOR CORPORATE SERVICES, INC., 62 WHITE ST., NY, NY 10013

FOURTH: The change to the Certificate of Incorporation was authorized first by written consent of the Board of Directors and then by vote of the majority of the shareholders entitled to vote thereon.

IN WITNESS WHEREOF, the undersigned Assistant Secretary has executed this Certificate of Change this 27^TH day of December, 2002.

1

2008 BROADWAY, INC.

/s/    Jose Mojica

JOSE MOJICA

ASSISTANT SECRETARY

2

f030117000390

Certificate of Change

of

Certificate of Incorporation

of

2008 BROADWAY, INC.

Pursuant to Section 805-A of the Business Corporation Law

BLU-39

BILLED

Filed By:

BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

623 WHITE ST.

NEW YORK, NY 10013

402

3

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

DOS-1179 (08/06)

090320002423

EX-99.T3A.3

Exhibit A-3

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

AAL REALTY CORP.

UNDER SECTION 402 OF THE BUSINESS CORPORATION LAW

The undersigned, for the purpose of forming a corporation under the Business Corporation Law of the State of New York, certifies:

1. The name of the corporation is

AAL REALTY CORP.

2. The purposes for which it is formed are:

A. To acquire, hold, use, develop, manage, operate, lease, deal in and dispose of, in any manner whatsoever, both improved and unimproved real property and any interests therein wherever situated; and to, improve the same for purposes of sale or otherwise.

B. To transact a general real estate business; and to manage real property and act as agent, consultant, broker or attorney-in-fact for any persons or corporations in buying, selling, leasing and dealing in real property and any interests therein.

1

C. To have all of the power conferred upon corporations organized under the Business Corporation Law of the State of New York and to effect and promote any other lawful purpose permitted thereunder.

3. The office of the corporation within the State of New York is to be located in New Hyde Park, County of Nassau.

4. The aggregate number of shares which the corporation shall have the authority to issue is 1,000 shares of the par value of $1.00 each.

5. The Secretary of State is designated as agent of the corporation upon whom process against it may be served. The post-office address to which the Secretary of State shall mail a copy of any process against the corporation served upon him is c/o Wydler, Balin, Pares & Soloway, 1510 Jericho Turnpike, New Hyde Park, N.Y. 11041.

WITNESS the signature of the undersigned, a natural person over 21 years of age.

/s/    Alan A. Lascher

INCORPORATOR

Alan A. Lascher

500 Fifth Avenue

New York, New York 10036

2

STATE OF NEW YORK               )

    :ss.:

COUNTY OF NEW YORK           )

On the 15^th day of January, 1970, before me personally came ALAN A. LASCHER, to me known and known to me to be the person described in and who executed the foregoing Certificate, and duly acknowledged to me that he executed the same.

/s/    Harvey Brecher

HARVEY BRECHER

Notary Public, State of New York

No. 240399065

Qualified in Kings County

Commission Expires March 30, 1971

3

CERTIFICATE OF INCORPORATION

OF

AAL REALTY CORP.

UNDER SECTION 402 OF THE BUSINESS CORPORATION LAW

Kramer, Lowenstein, Nessen & Kamin

500 Fifth Avenue

New York, New York 10036

4

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

Dos-1179 (08/06)                        

100302002524

EX-99.T3A.4

Exhibit A-4

                         PAGE 1                

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “ADBRETT CORP.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE FOURTH DAY OF JANUARY, A.D. 1984, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SEVENTH DAY OF FEBRUARY, A.D. 2008, AT 4:10 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “ADBRETT CORP.”.

		/s/Jeffrey W. Bullock
		Jeffrey W. Bullock, Secretary of State
2025117	8100H	AUTHENTICATION: 8418913
101175627		DATE: 12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

8400040087

CERTIFICATE OF INCORPORATION

OF

ADBRETT CORP.

THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:

ARTICLE I

The name of the Corporation is Adbrett Corp.

ARTICLE II

The registered office of the Corporation in the State of Delaware is located at 306 South State Street, City of Dover, County of Kent. The name of the Corporation’s registered agent at such address is United States Corporation Company.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

ARTICLE IV

The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock and such shares shall be without par value.

ARTICLE V

The amount of the authorized stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote.

ARTTICLE VI

Elections of directors need not be by ballot unless the By-Laws of the Corporation shall sO provide. Any director may be removed from office either with or without cause at any time by the affirmative vote of stockholders of record holding a majority of the outstanding shares of the stock of the Corporation entitled to vote, given at a meeting of the stockholders called for that purpose.

ARTICLE VII

The Board of Directors shall not have power to make, adopt, alter, amend or repeal from time to time By-Laws of the Corporation. The stockholders entitled to vote with respect thereto shall have the exclusive power to make, adopt, alter, amend and repeal from time to time By-Laws of the Corporation.

ARTICLE VIII

The incorporator of the Corporation is Marc A. Strassler whose mailing address is 301 Blair Road, Woodbridge, NJ 07095.

IN WITNESS WHEREOF, I have hereunto set my         no and seal this 29th day of December, 1983.

In the presence of: /s/ Margaret M. Sterms	/s/ Marc A. Strassler L.S.
	Marc A. Strassler

State of Delaware

Secretary of State

Division of Corporations

Delivered 04:12 PM 02/07/2008

FILED 04:10 PM 02/07/2008

SRV 080131711 - 2025117 FILE

STATE OF DELAWARE

CERTIFICATE OF CHANGE

OF REGISTERED AGENT AND/OR

REGISTERED OFFICE

The Board of Directors of ADBRETT CORP., a Delaware Corporation, on this 7^th day of FEB, A.D. 2008, do hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is 1220 N. MARKET ST. SUITE 806 Street, in the City of WILMINGTON, County of NEW CASTLE Zip Code 19801.

The name of the Registered Agent therein and in charge thereof upon whom process against this Corporation may be served, is BLUMBERGEXCESLIOR CORPORATE SERVlCES, INC.

The Corporation does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said Corporation has caused this certificate to be Signed by an authorized officer, the 7^th day of FEB, A.D., 2008 .

By:	/s/ Christopher McGarry
	Authorized Officer
Name:	Christopher McGarry
	Print of Type
Title:	President

EX-99.T3A.5

Exhibit A-5

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

HURST LEASING CORP.

under Section 402 of the Business Corporation Law

IT IS HEREBY CERTIFIED THAT:

(1) The name of the corporation is:

HURST LEASING CORP.

(2) The purpose or purposes for which this Corporation is formed are as follows, to wit:

To purchase, lease, exchange, hire and otherwise acquire lands with or without buildings thereon, or any interest therein, whatsoever and wheresoever situated; to erect, construct, rebuild, enlarge, alter, improve, maintain, manage, and operate houses, buildings or other works of any description on any lands owned or leased by the corporation, or upon any other lands; to sell, lease, sublet, mortgage, exchange, or otherwise dispose of any of the lands or any interest therein, or any houses, buildings or other works owned by the corporation; to engage generally in the real estate business, as principal, agent, broker, or otherwise, and generally to buy, sell, lease, mortgage, exchange, manage, operate, and deal in lands or interest in lands, houses, buildings, or other works; and to purchase, acquire, hold, exchange, pledge, hypothecate, sell, deal in, and dispose of tax liens and

1

transfers of tax liens on real estate.

To make, enter into, perform, and carry out contracts for construction, building, altering, improving, repairing, decorating, maintaining, furnishing and fitting up buildings, tenements, and structures of every description, and to advance money to and enter into agreements of all kinds with builders, contractors, property owners, and others, for said purpose.

The powers, rights and privileges provided in this Certificate of Incorporation are not to be deemed to be in limitation of similar, other or additional powers, rights and privileges granted or permitted to a corporation by the Business Corporation Law, it being intended that this corporation shall have the right to engage in such similar activities as like corporations may lawfully engage in under the Business Corporation Law of the State of New York, as now in effect, or as hereafter promulgated.

To do everything necessary, suitable or proper for the accomplishment, attainment or furtherance of, to do every other act or thing incidental to, appurtenant to, growing out of or connected with, the purposes, objects or powers set forth in this Certificate of Incorporation, whether alone or in association with others; to possess all the rights, powers and privileges now or hereafter conferred by the laws of the State of New York upon a corporation organized under the laws of the State of New York

2

and, in general, to carry on any of the activities and to do any of the things herein set forth to the same extent and as fully as a natural person or partnership might or could do; provided, that nothing herein set forth shall be construed as authorizing the Corporation to possess any purpose, object, or power, or to do any act or thing forbidden by law to a Corporation organized under the laws of the State of New York.

(3) The office of the Corporation is to be located in the City of New York County of Queens State of New York.

(4) The aggregate number of shares which the corporation shall have the authority to issue is Two Hundred (200) shares, all of which are to be without par value.

(5) The Secretary of State is designated as agent of the corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is:

c/o Feldesman & D’Atri

 122 East 42nd Street

 Suite 1616

 New York, New York 10017

(6) The Corporation’s initial accounting period for reporting the franchise tax on business corporations imposed by Article 9-A of the Tax Law shall end September 30, 1977.

3

The undersigned incorporator is of the age of eighteen years or over.

IN WITNESS WHEREOF, this certificate has been subscribed this 8th day of October 1976 by the undersigned who affirms that the statements made herein are true under the penalties of perjury.

Alfred Stupple	/s/ Alfred Stupple
170 Washington Avenue, Albany, New York 12210

4

CERTIFICATE OF INCORPORATION

OF

HURST LEASING CORP.

under Section 402 of the Business Corporation Law

STATE OF NEW YORK

DEPARTMENT OF STATE

TAX $ 10

FILING FEE $ 50

FILED OCT 14 1976

FILED BY:
Feldesman & D’Atri		Secretary of State
122 East 42nd Street	By
Suite 1616
New York, New York 10017

5

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

HURST LEASING CORP.

Under Section 805 of the Business Corporation Law

Pursuant to the provisions of Section 805 of the Business Corporation Law, the undersigned, being, respectively, the President and Secretary of HURST LEASING CORP., hereby certify:

FIRST: The name of the corporation is HURST LEASING CORP.

SECOND: The Certificate of Incorporation of the corporation was filed by the Department of State, State of New York on October 14, 1976.

THIRD: The amendment to the Certificate of Incorporation effected by this certificate is to change the name of the corporation to DAITCH CRYSTAL DAIRIES, INC.

To effect such change, Article (1) of the Certificate of Incorporation, relating to the name of the corporation, is hereby amended to read as follows:

“(1) The name of the corporation is DAITCH CRYSTAL DAIRIES, INC.”.

1

FOURTH: This amendment to the Certificate of Incorporation was authorized by the unanimous written consent of the holders of all outstanding shares entitled to vote on an amendment to the Certificate of Incorporation.

IN WITNESS WHEREOF, we have signed this Certificate of Amendment this 8^th day of February, 1978 and we affirm the statements herein as true under the penalties of perjury.

/s/ Martin Rosengarten

Martin Rosengarten, President

/s/ Howard B. Weinreich

Howard B. Weinreich, Secretary

2

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

HURST LEASING CORP.

Under Section 805 of the

Business Corporation Law

STATE OF NEW YORK

DEPARTMENT OF STATE

TAX $ none

FILING FEE $ 30

FILED FEB 16 1978

By:                                 

Queens Co

Law Offices

Feldesman & D’Atri

122 East 42^nd Street

New York, N. Y. 10017

697-3070

3

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

080519000766

New York State

Department of State

Division of Corporations, State Records

and Uniform Commercial Code

41 State Street

Albany, NY 12231

www.dos.state.ny.us

CERTIFICATE OF CHANGE

OF

DAITCH CRYSTAL DAIRIES, INC.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

FIRST: The name of the corporation is: DAITCH CRYSTAL DAIRIES, INC.

If the name of the corporation has been changed, the name under which it was formed is: Hurst Leasing Corp.

SECOND: The certificate of incorporation was filed by the Department of State on: 10/14/1976

THIRD: The change(s) effected hereby are: [Check appropriate box(es)]

¨ The county location, within this state, in which the office of the corporation is located, is changed to:                                                  

xxx The address to which the Secretary of State shall forward copies of process accepted on behalf of the corporation is changed to read in its entirety as follows:                                                  

c/o BLUMBERGEXCELSIOR CORPORATE SERVICES, INC., 62 WHITE ST., 2ND FL., NY, NY 10013                                                                                                                                                                                                     .

x The corporation hereby: [Check one]

x Designates BLUMBERGEXCELSIOR CORPORATE SERVICES, INC as its registered agent upon’whom process against the corporation may be served.

The Street address of the registered agent is: 62 WHITE ST., 2ND FL, NY, NY 10013

¨ Changes the designation of its registered agent to:                                                                                 . The street address of the registered agent is:                                                                                                                           

¨ Changes the address of its registered agent to:                                                                                                                                                                                                                                                                                

¨ Revokes the authority of its registered agent.

DOS- 1656 (Rev. 5/04)

080519000766

FOURTH: The change was aothorized by the board of directors.

/s/ Christopher McGarry	Christopher McGarry
(Signature)	(Name and Title of Signer) VICE PRESIDENT

BLU 39

DRAWDOWN

CERTIFICATE OF CHANGE

OF

DAITCH CRYSTAL DAIRIES, INC.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

Filer’s Name BLUMBERGEXCELSIOR CORPORAT SERVICES, INC.

Address 62 WHITE ST.

City, State and Zip Code NY, NY 10013

BLU - 39

DRAWDOWN

NOTE: this form was prepared by the New York State Department of State. You are not required to use this form You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that all documents be prepared Under the guidance of an attomey. The certtificate must be submitted with a $30 filing fee.

For Office Use Only

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

080528000423

CSC 45

New York State

Department of State

Division of Corporations, State Records

and Uniform Commercial Code

41 State Street

Albany, NY 12231

www. dos.state.ny.us

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

DAITCH CRYSTAL DAIRIES, INC.

Under Section 805 of the Business Corporation Law

FIRST: The name of the corporation is: Daitch Crystal Dairies, Inc.

If the name of the corporation has been changed, the name under which it was formed is: Hurst

Leasing Corp.

SECOND: The date of filing of the certificate of incorporation with the Department of State is: October 14.1976.

THIRD: The amendment effected by this certificate of amendment is as follows: (Set forth each

amendment in a separate paragraph providing the subject matter and full text of each amended paragraph. For example, an amendment changing the name of the corporation would read as follows: Paragraph First of the Certificate of Incorporation relating to the corporation name is hereby amended to read as follows: First: The name of the corporation is... (new name)...)

Paragraph (1) of the Certificate of Incorporation relating to the corporation name is hereby amended to read in its entirely as follows: “ (1) The name of the corporation is Amsterdam Tracking Corporation.”

Paragraph (2) of the Certificate of Incorporation relating to the purpose of the corporation is hereby amended by deleting Paragraph (2) and replacing it with the following: “(2) The purpose of the Corporation is (i) to transport groceries and related items, including, but not limited to, wine: and (ii) to engage in any lawful act or activity for which corporations may be organized under the Business Corporation Law of the State of New York.”

Paragraph (3) of the Certificate of Incorporation relating to the location of the office of the corporation is hereby amended to read in its entirety as follows: “(3) The office of the Corporation is to be located; in New York County.

Paragraph (5) of the Certificate of Incorporation relating to the designated agent is hereby amended to read in its entirety as follows: “(5) The Secretary of State is designated as agent of the Corporation upon whom process against it may be served. The post-office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is: Blumberg Excelsior Corporate Services, Inc., 62 White Street, New York, New York 10013.”

DOS-1554(Rev.6/06)

1

080528000423

FOURTH: The certificate of amendment was authorized by: [Check the appropriate box]

¨ The vote of the board of directors followed by a vote of a majority of all outstanding shares entitled to vote thereon at a meeting of shareholders.

x The vote of the board of directors followed by the unanimous written consent of the holders of all outstanding shares.

/s/ Christopher McGarry	Christopher McGarry
(Signature)	(Name and Capacity of Signer) VICE PRESIDENT

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

Daitch Crystal Dairies, Inc.

Under Section 805 of the Business Corporation Law

Filer’s Name: Louis C. Tornasella, Esq.

Address: Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, L.L.C. - Court Plaza South 21

Main Street

City, State and Zip Code: Hackensack, New Jersey 07601

NOTE: This form was prepared by the New York State Department of State. It does not contain all optional provisions under the law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that all documents be prepared under the guidance of an attorney. The certificate must be submitted with a $60 filing fee, plus the required tax on shares pursuant to §180 of the Tax Law, if applicable:

For Office Use Only

CSC 45

DRAW DOWN

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

EX-99.T3A.6

Exhibit A-6

PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “APW SUPERMARKET CORPORATION” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIFTH DAY OF NOVEMBER, A.D. 1986, AT 12:15 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 1986, AT 10 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF MAY, A.D. 1999, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “APW SUPERMARKET CORPORATION”.

2108804     8100H	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
	AUTHENTICATION: 8418700
101175292	DATE: 12-10-10

You may verify this certificate online

at corp.delaware.gov/authver.shtml

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

BEFORE PAYMENT OF CAPITAL

OF

APW SUPERMARKET CORPORATION

I, the undersigned, being the sole incorporator of APW Supermarket Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware DO HEREBY CERTIFY:

FIRST: That Article FOURTH of the Certificate of Incorporation be, and it hereby is, amended to read as set forth in Exhibit A attached hereto.

SECOND: That the corporation has not received any payment for any of its stock.

THIRD: That the amendment was duly adopted in accordance with the provisions of Section 241 of the General Corporation Law or the State of Delaware.

IN WITNESS WHEREOF, I have signed this certificate this 26th day of November, 1986.

/s/ Deborah M. Reush

Deborah M. Reush

EXHIBIT A

RESOLVED, That Article FOURTH of this corporation’s Certificate of Incorporation is hereby amended to read in its entirety as follows:

“FOURTH: The total number of shares of stock which the corporation shall have the authority to issue is two hundred thousand (200,000) shares, consisting of:

(1) one hundred thousand (100,000) shares of Class A Common Stock, each having a par value of $.01 per share; and

(2) one hundred thousand (100,000) shares of Class B Common Stock, each having a par value of $.01 per share.

The voting powers, preferences and privileges of the shares of each class of the corporation are as follows:

(3) Class A Common Stock. Shares of Class A Common Stock are not redeemable, and holders of Class A Common Stock are entitled:

(a) to receive (ratably on a share-for-share basis with the holders of Class B Common Stock) such dividends as are declared from time to time by the Board of Directors;

2

(b) to one vote for each share on all matters voted upon by stockholders, voting as a separate class on all matters voted .upon by the stockholders of the corporation; and

(c) in the event of liquidation, dissolution or winding up the corporation, to share ratably with the holders of Class B Common Stock in all assets remaining after payment of prior claims.

(4) Class B Common Stock. Shares of Class B Common Stock are not redeemable, and holders of Class B Common Stock shall have the same rights, share-for-share, as holders of Class A Common Stock, including rights to participate ratably on a share-for-share basis with the holders of Class A Common Stock in dividends and distributions of assets; provided that:

(a) Voting Rights. Except as otherwise required by law, the holders of Class B Common Stock shall have no right to vote on any matters voted on by the stockholders of the corporation (including, without limitation, the election and removal of directors of the corporation) and the Class B Common Stock shall not be included in determining the number of shares voting or entitled to vote on any such matter.”

3

CERTIFICATE OF INCORPORATION

of

APW SUPERMARKET CORPORATION

FIRST: The name of the Corporation is APW Supermarket Corporation (hereinafter the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, Delaware, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”).

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 100,000 shares of Common Stock, each having a par value of one penny ($.01).

FIFTH: The name and mailing address of the Sole Incorporator is as follows:

Deborah M. Reusch	P.O. Box 636
	Wilmington, Delaware 19899

SIXTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

(1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

(2) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.

(3) The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide.

(4) No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law (i) for breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Subsection (4) to Article SIXTH shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.

(5) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted.

SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.

EIGHTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of the GCL or on the application of trustees in dissolution or of any

2

receiver or receivers appointed for this Corporation under the provisions of Section 279 of the GCL, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 25th day of November, 1986.

/s/ Deborah M. Reusch

Deborah M. Reusch

Sole Incorporator

3

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED

OFFICE AND REGISTERED AGENT

OF

APW SUPERMARKET CORPORATION

The Board of Directors of:

APW SUPERMARKET CORPORATION

a Corporation of the State of Delaware, on this 30th day of April , A.D. 1999, does hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is:

1013 Centre Road, in the City of Wilmington, in the County of New Castle, Delaware, 19805.

The name of the Registered Agent therein and in charge thereof upon whom process against the Corporation may be served, is: CORPORATION SERVICE COMPANY.

APW SUPERMARKET CORPORATION

a Corporation of the State of Delaware, does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said corporation has caused this Certificate to be signed by Robert G. Ulrich                , this                 30th             day of April             A.D. 1999.

Authorized Officer

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 05/06/1999

      991179422—2108804

STATE OF DELAWARE        

SECRETARY OF STATE        

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003    

030016222 - 2108804        

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

APW SUPERMARKET CORPORATION

APW SUPERMARKET CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: APW SUPERMARKET CORPORATION

TWO: That a meeting of the Board of Directors of APW SUPERMARKET CORPORATION, said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: CORPORATION SERVICE COMPANY

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

By:	JOSE MOJICA
	Jose Mojica
	President

EX-99.T3A.7

Exhibit A-7

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

F910722000360

CERTIFICATE OF INCORPORATION

OF

APW SUPERMARKETS, INC.

under section 402 of the Business Corporation Law

THE UNDERSIGNED, being over the age of eighteen years, for the purpose of forming a corporation pursuant to Section 402 of the Business Corporation Law of New York, does hereby certify:

FIRST: The name of the corporation is: APW Supermarkets, Inc. (the “Corporation”).

SECOND: The purposes for which it is formed are: To engage in any lawful act or activity for which corporations may be organized under the Business Corporation Law provided that the Corporation is not formed to engage in any act or activity which requires the consent or approval of any state official, department, board, agency or other body of the State of New York, without such consent or approval first being obtained.

THIRD: The office of the Corporation is to be located in the County of Suffolk, State of New York.

FOURTH: The aggregate number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) with a par value of $1.00 per share.

FIFTH: The Secretary of State is designated as the agent of the Corporation upon whom process against the Corporation may be

1

served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is: Mr. Robert G. Ulrich, Senior Vice President and General Counsel, the Atlantic & Pacific Tea Company, Inc., 2 Paragron Drive, Montvale, New Jersey 07645.

SIXTH: No holder of shares of any class, whether now or hereafter authorized, and no holder of any other security issued by the Corporation, shall have any pre-emptive or preferential or other right of subscription to or purchase of any shares of any class or any other security (whether of the same or of any other class or security) of the Corporation, whether now or hereafter authorized; nor shall any such holder have any preferential or other right to purchase any such shares or any such other security which may have been acquired by and may be held in the treasury of the Corporation; and all such holders shall have only such right, if any, so to subscribe for or purchase the same, as the Board of Directors, in its discretion, may from time to time fix. The Board of Directors may, at any time in its discretion, offer to any holder or holders of such shares of any class or classes of the Corporation or to any holder or holders of any security issued by the Corporation, whether for subscription or for purchase, any shares of that class or of any other class or classes or any part of that issue of said securities or of any other issue of securities without making any offer of any of such shares or of any such issue of securities to the other holder or holders of any shares or of any security issued by the Corporation.

2

SEVENTH: Any one or more members of the Board of Directors of the Corporation or any committee thereof may participate in a meeting of the Board or the committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

EIGHTH: No director will have any personal liability to the Corporation or its shareholders for damages for any breach of duty as a director, except if a judgment or other final adjudication adverse to the director establishes that the director’s acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that the director personally gained a financial profit or other advantage to which the director was not legally entitled or that the director’s acts violated Section 719 of the Business Corporation Law, as amended.

IN WITNESS WHEREOF, I have made and signed this certificate this 19th day of July, 1991 and I affirm the statements contained therein as true under penalties of perjury.

/s/ Joseph H. Spain

Joseph H. Spain

Incorporator

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

3

N. Y. S. DEPARTMENT OF STATE DIVISION OF CORPORATIONS AND STATE RECORDS 162 WASHINGTON AVENUE ALBANY, NY 12231

FILING RECEIPT

CORPORATION NAME   DOCUMENT TYPE   SERVICE COMPANY   APPLICANT NAME :     APW SUPERMARKETS, INC.   :     NAME RESERVATION (NEW) (DOM. BUSINES   :     CORPORATION SERVICES CO.   :     RAEANN FAVATA

FILED: 07/17/1991 DURATION: 09/16/1991 CASH: 910717000173 FILM: 910717000161

ADDRESS FOR PROCESS

REGISTERED AGENT

** SUBMIT RECEIPT WHEN FILING CERTIFICATE **

FILER	FEES	45.00		PAYMENTS	45.00
CORPORATION SERVICE COMPANY	FILING         :		20.00	CASH     :		0.00
4 CENTRAL AVENUE	TAX             :		0.00	CHECK  :		0.00
	CERT            :		0.00	BILLED  :		45.00
ALBANY, NY 12210	COPIES         :		0.00
	HANDLING :		25.00
				REFUND:		0.00

DOS-1025 (11/89)

4

F910722000360

CERTIFICATE OF INCORPORATION

OF

APW SUPERMARKETS, INC.

910722000397

FILER:

    Charles Tucker

    CORPORATION SERVICE COMPANY

    4 Central Avenue

    Albany, NY 12210

5

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

F991222000541

CERTIFICATE OF MERGER

of

GREENLAWN PLAZA CORPORATION

and

APW SUPERMARKETS, INC.

into

APW SUPERMARKETS, INC.

Under Section 904 of the Business corporation Law

It is hereby certified upon behalf of each of the constituent corporations herein named, as follows:

FIRST: The Board of Directors of each of the constituent corporations has duly adopted a plan of merger setting forth the terms and conditions of the merger of said corporation.

SECOND: The name of the constituent corporation which is to be the surviving corporation, and which is hereinafter sometimes referred to as the “surviving constituent corporation”, is APW SUPERMARKETS, INC. The date upon which its certificate of incorporation was filed by the Department of State is July 22,1991.

THIRD: The name of the other constituent corporation, which is being merged into the surviving constituent corporation, and which is hereinafter sometimes referred to as the “merged constituent corporation”, is GREENLAWN PLAZA CORPORATION.

The date upon which its certificate of incorporation was filed by the Department of State is July 5, 1974.

FOURTH: As to each constituent corporation, the plan of merger sets forth the designation and number of outstanding shares of each class and series the specification of the classes and series entitled to vote on the plan of merger, and the specification of each class and series entitled to vote as a class on the plan of merger, as follows:

APW SUPERMARKETS, INC.

Designation of each outstanding class and series of shares	Number of outstanding shares of each class	Designation of class and series entitled to vote	Classes and series entitled to vote as a class
Common	1,000	Common	Common

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GREENLAWN PLAZA CORPORATION
Designation of each outstand- ing class and	Number of outstanding shares of	Designation of class and series entitled	Classes and series entitled to vote as a
series of shares	each class	to vote	class
Common	200	Common	Common

FIFTH: The merger herein certified was authorized in respect of both the surviving constituent and the merged constituent corporation by the written consent of holders of all other outstanding shares of the corporation entitled to vote on the plan of merger, having not less than the minimum acquisite proportion of votes, which has been given in accordance with Section 615 of the Business Corporation Law of the State of New York.

SIXTH: The effective date of the merger herein certified shall be the 22^nd day of December, 1999.

Signed on December 21,1999	APW SUPERMARKETS, INC. (Surviving Constituent Corporation)
	By:	/s/ Robert G. Ulrich
	Vice President
	Robert G. Ulrich
	APW SUPERMARKET CORPORATION (Sole Shareholder of Surviving Constituent Corporation)
	By:	/s/ Michael J. Larkin
	President Michael J. Larkin

Affix Corporate Seal

of Shareholder

2

F991222000541

CERTIFICATE OF MERGER

OF

GREENLAWN PLAZA CORPORATION

INTO

APW SUPERMARKETS, INC.

Section 904 of the Business Corporation Law

Filer: A & P

Two Paragon Drive

Tax Department

Montvale, NJ 07645

Cust. Ref#525089GIR

    DRAWDOWN

991222000574

3

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

DOS-1179 (08/06)

090810002545

EX-99.T3A.8

Exhibit A-8

CERTIFICATE OF INCORPORATION

OF

COMMUNITY SUPERMARKET CORPORATION

To: The Secretary of State

        State of New Jersey

THE UNDERSIGNED, of the age of eighteen years or over, for the purpose of forming a corporation pursuant to the provisions of Title 14A, Corporations, General, of the New Jersey Statutes, does hereby execute the following Certificate of Incorporation:

FIRST: The name of the corporation is COMMUNITY SUPERMARKET CORPORATION.

SECOND: The purpose for which the corporation is organized is to engage in any activity within the purposes for which corporations may be organized under Title 14A, Corporations, General, of the New Jersey Statutes.

THIRD: The aggregate number of shares which the corporation shall have authority to issue is 90 shares, without par value.

FOURTH: The address of the corporation’s initial registered office is 233 West Market Street, Newark, NJ 07103 and the corporation’s initial registered agent at such address is Carmen A. Rodriguez.

FIFTH: The number of directors constituting the initial Board of Directors shall be three (3) and the names and addresses of the directors are:

0100398148

Raymond M. Codey

233 West Market Street

Newark, N.J. 07103

Cecelia Faulks

233 West Market Street

Newark, N.J. 07103

Michael Zimring

200 Milik Street

Carteret, N.J. 07008

SIXTH: The holders of at least 70% of the shares of the corporation issued and outstanding and entitled to vote at any meeting of the shareholders, present in person or represented by proxy, shall be necessary to and shall constitute a quorum for the transaction of any business at all meetings of shareholders.

SEVENTH: The proportion of votes of the holders of shares that shall be necessary for the transaction of any items of business shall be 70% of the shares of the corporation issued and outstanding and entitled to vote at any meeting of the shareholders.

EIGHTH: The proportion of votes of the directors that shall be necessary for the transaction of business shall be 70% of the full board of directors.

NINTH: At each election of directors every shareholder entitled to vote at such election shall vote its stock and take such other action as may be necessary so that at all times the directors of the corporation shall consist of two individuals designated by NCC Grocery Corporation and one individual designated by Supermarket General Corporation.

TENTH: No mortgage or pledge of, or creation of a security

0100398148

interest in, all or any part of the corporate property shall be made or given except upon authorization by the holders of 70% of the shares outstanding and entitled to vote for the election of directors.

ELEVENTH: Notwithstanding any other provision of this Certificate of Incorporation or the By-Laws of the corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Certificate of Incorporation or the By-Laws of the corporation), the affirmative vote of the holders of 70% or more of the outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors shall be required to amend, alter, change or repeal:

(i) This Certificate of Incorporation or any article herein; and

(ii) The By-Laws of the corporation, or any article therein.

TWELFTH: The name and address of the incorporator is Steven B. Hoskins, McCarter & English, Four Gateway Center, 100 Mulberry Street, Newark, New Jersey 07102.

THIRTEENTH: The effective date of the Certificate of Incorporation is the date of filing.

IN WITNESS WHEREOF, the undersigned, the incorporator of the above-named corporation, has hereunto signed this Certificate of Incorporation on this 29^th day of November, 1988.

/s/ Steven B. Hoskins

Steven B. Hoskins

New Jersey Division of Revenue

RESTATED CERTIFICATE OF INCORPORATION

OF

COMMUNITY SUPERMARKET CORPORATION

TO: TREASURER, STATE OF NEW JERSEY

Pursuant to the provisions of Section 14A:9-5, Corporations, General, of the New Jersey Statutes, the undersigned corporation hereby executes the following Restated Certificate of Incorporation:

1. Name of Corporation: Community Supermarket Corporation. Upon filing this Restated Certificate of Incorporation, the name of the corporation shall be changed to: Bergen Street Pathmark, Inc.

2. The purpose for which the corporation is organized is to engage in any activity within the purposes for which corporations may be organized under Title 14A, Corporations, General, of the New Jersey Statutes.

3. The aggregate number of shares which the corporation shall have authority to issue is 90 shares, without par value.

4. The address of the corporation’s current registered office is: 200 Milik Street, Carteret, New Jersey 07008, and the name of its current registered agent at such address is Marc A. Strassler.

5. The number of directors constituting the current board of directors is one. The name and address of the director is as follows:

Frank G. Vitrano

200 Milik Street

Carteret, New Jersey 07008

6. The duration of the corporation is perpetual.

	/s/ Marc A. Strassler
	MARC A. STRASSLER
	Senior Vice President
Dated: February 26, 2004

Certificate Required To Be Filed With the

RESTATED CERTIFICATE OF INCORPORATION

Pursuant to N.J.S.A. 14A:9-5(5), the undersigned corporation hereby executes the following certificate:

1. Name of Corporation: Community Supermarket Corporation

2. Restated Certificate of Incorporation was adopted on the 26^th day of February, 2004.

3. At the time of the adoption of the Restated Certificate of Incorporation, the number of shares outstanding was 90. The total of such shares entitled to vote thereon, and the vote of such shares was:

Total Number of Shares	Number of Shares Voted
Entitled to Vote	For		Against
90		90		0

4. This Restated Certificate of Incorporation restates and integrates and further amends the Certificate of Incorporation of this corporation by:

(a) changing the name of the corporation to Bergen Street Pathmark, Inc.;

(b) reducing the number of directors from three (3) to one (1) director;

(c) eliminating Articles Sixth, Seventh, Eighth, Tenth and Eleventh which provide for super-majority requirements for a quorum of the shareholders, for shareholder votes, for votes of the directors, for granting a mortgage, pledge or security interest in any property of the corporation, and for amending the Certificate of Incorporation or By-Laws of the Corporation; and

(d) eliminating Article Ninth relating to the election of directors designated by the shareholders of the corporation.

	/s/ Marc A. Strassler
	MARC A. STRASSLER
	Senior Vice President
Dated: February 26, 2004

STATE OF NEW JERSEY

DEPARTMENT OF THE TREASURY

FILING CERTIFICATION (CERTIFIED COPY)

BERGEN STREET PATHMARK, INC.

100398148

I, the Treasurer of the State of New Jersey, do hereby certify, that the above named business did file and record in this department the below listed document(s) and that the foregoing is a true copy of the Certificate of Incorporation Restated Certificate of Incorporation as the same is taken from and compared with the original(s) filed in this office on the date set forth on each instrument and now remaining on file and of record in my office.

	IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 13th day of December, 2010
	/s/ Andrew P Sidamon Eristoff
	Andrew P Sidamon Eristoff State Treasurer
Certificate Number: 118963150
Verify this certificate online at
https://www1.state.nj.us/TYTR_StandingCert/JSP/Verify_Cert.jsp

Page 1 of 1

EX-99.T3A.9

Exhibit A-9

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

THIS IS TO CERTIFY that the attached is a true and correct copy of the documents for this entity as shown by the records of this office.

BEST CELLARS DC INC.

IN TESTIMONY WHEREOF I have hereunto set my hand and caused the seal of this office to be affixed this 13th day of December, 2010 .

                           LINDA K. ARGO

                           Director

/s/ Patricia E. Grays

PATRICIA E. GRAYS

Superintendent of Corporations

Corporations Division

Adrian M. Fenty

Mayor

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS

THIS IS TO CERTIFY that all applicable provisions of the District of Columbia Business Corporation Act have been complied with and accordingly, this CERTIFICATE OF INCORPORATION is hereby issued to:

BEST CELLARS DC INC.

IN WITNESS WHEREOF I have hereunto set my hand and caused the seal of this office to be affixed as of the 24th day of April, 2001.

Carlynn M. Fuller

Acting Director

Winnie R. Huston

Administrator

Business Regulation Administration

/s/ Eldred E. J Fornah

Eldred E. J Fornah

Act. Assistant Superintendent of Corporations

Corporations Division

Anthony A.

Williams Mayor

FEES DUE
Filing Fee	$	100.00
Initial License Fee		20.00	(Min.)
Total	$	120.00	(Min.)

FILE

APR 24 2001

ARTICLES OF INCORPORATION

OF

BEST CELLARS DC INC.

To: Department of Consumer and Regulatory Affairs Washington, D.C. 20001

We, the undersigned natural persons of the age of eighteen years or more, acting as incorporators of a corporation under the Business Corporation Act (D.C. Code, 1981 edition, Title 29 Chapter 3), adopt the following Articles of Incorporation:

FIRST:  The name of the corporation is Best Cellars DC Inc.

SECOND:  The period of its duration is perpetual.

THIRD:  The purpose for which the corporation is organized is to engage in the retailing of wine and other spirits both on premises and via the Internet.

FOURTH:  The aggregate number of shares which the corporation is authorized to issue is one thousand (1,000) shares of common stock, $0.01 par value per share (“Common Stock”).

FIFTH:  The corporation will not commence business until at least one thousand dollars ($1,000) has been received as initial capitalization.

SIXTH:  The address, including street and number, of the initial registered office of the corporation is 1025 Vermont Avenue, NW, Washington, DC 20005 and the name of the initial registered agent at such address is CT Corporation System.

dc-257341

SEVENTH: The number of directors constituting the initial board of directors of the corporation shall be established by resolution of the Board of Directors, but shall not be less than one (1), and the names and addresses, including street and number, if any, of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are:

Name	Address
Richard A. Marmet	1643 Connecticut Avenue, NW
	Washington, DC 10028
Joshua Wesson	1643 Connecticut Avenue, NW
	Washington, DC 10028

EIGHTH: The name and address, including street and number, if any, of each incorporator is:

Name	Address
Jeny M. Marcinko	c/o Morrison & Foerster LLP
	2000 Pennsylvania Avenue, NW
	Suite 5500
	Washington, DC 20006

Date: April 24, 2001
	/s/ Jeny M. Marcinko
	Jeny M. Marcinko
	Incorporator

MAIL TO:
Department of Consumer and Regulatory Affairs	MAKE CHECK PAYABLE TO
Corporation Division	D. C. TREASURER
941 North Capitol Street
Washington, D.C. 20002

dc-257341

	DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS
	BUSINESS REGULATION ADMINISTRATION
	CORPORATIONS DIVISION
	941 NORTH CAPITAL STREET, NX.
	WASHINGTON, D.C. 20002

WRITTEN CONSENT TO ACT AS REGISTERED AGENT

TO:

The Superintendent of Corporations

Department of Consumer and Regulatory Affairs

Business Regulation Administration, Corporations Division

941 North Capital Street, N.E.

Washington, D.C 20002

(A) BY A DISTRICT OF COLUMBIA RESIDENT

PURSUANT TO D.C. CODE TITLE 29, and TITLE 41

I,                                                                                                                                                                             

A Bona fide Resident of the District of Columbia Herein Consent to Act as a Registered Agent For:

Name of Business

SIGNATURE OF REGISTERED AGENT                                                                                       

DATE:                                         

(B) BY A LEGALLY AUTHORIZED CORPORATION

THE CORPORATION HEREIN NAMED IS:

C T Corporation System                                                                                                                      

An Authorized Corporate Registered Agent in the District of Columbia, per Signatures of it’s President/Vice-President and Secretary/Assistant Secretary, Herein Consents to Act as Registered Agent For:

Best Cellars DC Inc.

NAME OF CORPORATION

SIGNATURE: /s/ Judith B. Argao	OF VICE-PRESIDENT
ATTEST:	OF SECRETARY OR ASSISTANT SECRETARY
DATE:                 4/24/01

DC077 - 11/17/00 CT System Online

EX-99.T3A.10

Exhibit A-10

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

RESTATED CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

Under Section 807 of the New York Business Corporation Law

BEST CELLARS INC., a corporation organized and existing under and by virtue of the Business Corporation Law of the State of New York (the “Corporation”). HEREBY CERTIFIES THAT:

1. The name of this Corporation is BEST CELLARS INC. This Corporation was originally incorporated under the same name; the original Certificate of Incorporation was filed with New York Department of State on July 14, 1995; a Certificate of Amendment of such Certificate of Incorporation was filed with New York Department of State on May 23, 1996;

2. By unanimous written consent of the Board of Directors of this Corporation, filed with the minutes of this Corporation, resolutions were duly adopted setting forth the proposed restatement of the Certificate of Incorporation of this Corporation and declaring said restatement to be advisable.

3. The shareholders of this Corporation approved such amendment and restatement at a meeting of shareholders. The holders of a majority of the outstanding stock entitled to vote thereon have voted such stock in favor of said amendment and restatement.

4. The Certificate of Incorporation as now in full force and effect is hereby amended to effect the following changes:

(a) to amend Article IV to change this Corporation’s authorized shares of common stock, $0.01 par value, from 10,000,000 common shares to 15,000,000 common shares, and to authorize 3,300,000 shares of preferred stock, $0.001 par value, of which 3,300,000 shall he designated Series A Convertible Preferred Stock and to state the rights, preferences, restrictions and privileges of this Corporation’s capital stock;

(b) to amend Article V to change the address of this Corporation;

(c) to amend and restate in its entirety Article VI, relating to the limitation of liability of the directors of this Corporation;

1

(d) to delete Article VII in its entirety, and replace it with a new Article VII, relating to Bylaws;

(e) to add Article VIII, relating to management of the business and for the conduct of the affairs of this Corporation;

(f) to add Article IX, relating to indemnification;

(g) to add Article X, relating to shareholder actions;

(h) to add Article XI, relating to amendment of the Certificate of Incorporation; and

(i) to add Article XII, relating to the Corporation’s existence.

5. The Certificate of Incorporation of the Corporation is hereby restated to set forth its entire text, as amended, to read in full as follows:

2

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

Under Section 402 of the New York Business Corporation Law

ARTICLE I

The name of this corporation is BEST CELLARS INC. (the “Corporation”).

ARTICLE II

The purpose of this Corporation is to engage in any lawful act activity for which corporations may be organized under Article IV of the Business Corporation Law (the “BCL”), except that it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained.

ARTICLE III

The office of this Corporation is to be located in the County of New York, State of New York.

ARTICLE IV

A. Classes of Stock

This Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares of Common Stock that this Corporation is authorized to issue is Fifteen Million (15,000,000) shares, with a par value of $0.01 per share. The total number of shares of Preferred Stock that this Corporation is authorized to issue is Three Million Three Hundred Thousand (3,300,000). par value. $0.001.

B. Rights, Preferences and Restrictions of Preferred Stock

The Preferred Stock authorized by this Certificate of Incorporation may be issued from time to time in one or more series. The powers, preferences, privileges and other rights, and the qualifications, limitations and restrictions granted to and imposed on the Series A Convertible

3

Preferred Stock, which series consists of Three Million Three Hundred Thousand (3,300,000) shares (the “Series A Preferred Stock”), par value $.001, are as set forth below in this Section IV(B).

1. Dividend Provisions

The holders of shares of Series A Preferred Stock are entitled to participate on a parity with the holders of Common Stock in any dividends paid or set aside for payment (other than dividends payable solely in shares of Common Stock) so that holders of the Series A Preferred Stock shall receive, at the time that such dividend is paid to the holders of Common Stock, with respect to each share of Series A Preferred Stock an amount equal to (x) the dividend payable with respect to each share of Common Stock multiplied by (y) the number of shares of Common Stock into which such share of Series A Preferred Stock is convertible as of the record date for such dividend.

2. Liquidation Preference

(a) In the event of any liquidation, dissolution or winding up of this Corporation, whether voluntary or involuntary, the holders of Series A Preferred Stock are entitled to receive, prior and in preference to any distribution of any of the assets of this Corporation to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the sum of (A) $2.45 for each outstanding share of Series A Preferred Stock and (B) an amount equal to all declared and unpaid dividends on such share (subject to adjustment for any stock splits, subdivisions, stock dividends, combinations, recapitalizations and the like (collectively, “Recapitalizations”)) (the “Series A Preferential Amount”). If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Series A Preferred Stock is insufficient to permit the payment to such holders of the full Series A Preferential Amount, then the entire assets and funds of this Corporation legally available for distribution to shareholders will be distributed ratably among the holders of the Series A Preferred Stock in proportion to the full preferential amount each such holder is otherwise entitled to receive under this Section IV(B)(2)(a).

(b) Upon completion of the distribution required by Section IV(B)(2)(a), all of the remaining assets of this Corporation available for distribution to shareholders will be distributed among the holders of Common Stock pro rata based on the number of shares of Common Stock held or deemed held by each.

(c) (i) For purposes of this Section IV(B)(2), a liquidation, dissolution or winding up of this Corporation will be deemed to be occasioned by, or to include (unless the holders of at least a majority of the voting power of the Series A Preferred Stock determine otherwise):

(A) the acquisition of this Corporation by another entity (including, without limitation, any merger, reorganization or consolidation, but excluding any merger effected exclusively for the purpose of changing the domicile of this Corporation) in which this

4

Corporation’s shareholders of record as constituted immediately prior to such acquisition will, immediately after such acquisition (by virtue of securities issued as consideration for this Corporation’s acquisition or otherwise) fail to hold at least 50% of the voting power or ownership interests of the resulting or surviving corporation following such acquisition; or (B) the disposition to another person[s] of all or substantially all of the assets of this Corporation in one transaction or a series of related transactions. Any such transaction contemplated by clause (A) or (B) of this Section IV (B)(2)(c)(i) will hereinafter be referred to as a “Corporate Transaction.”

(ii) If the consideration received by this Corporation in any Corporate Transaction is other than cash, its value will be deemed its fair market value as determined below:

(A) Securities not subject to investment letter or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a shareholder’s, status as an affiliate or former affiliate):

(1) if traded on a securities exchange or through the Nasdaq National Market, the value will be deemed to be the average of the closing prices of the securities on such market over the thirty (30) day period ending five (5) days prior to the closing of the Corporate Transaction;

(2) if actively traded over-the-counter other than through the Nasdaq National Market, the value will be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty (30) day period ending five (5) days prior to the closing of the Corporate Transaction; and

(3) if there is no active public market, the value will be the fair market value thereof, as mutually determined by the Board of Directors of this Corporation and the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, and if not so mutually determined, then the Board of Directors and the holders of at least a majority of the then outstanding shares of Series A Preferred stock will choose an independent third party to determine the appropriate value.

(B) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a shareholder’s status as an affiliate or former affiliate) will be to make an appropriate discount from the value determined as above in Section IV(B)(2)(c)(ii)(A) to reflect the approximate fair market value thereof, as mutually determined by the Board of Directors of this Corporation and the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, and if not so mutually determined, then the Board of Directors and the holders of at least a majority of the then outstanding shares of Series A Preferred stock will choose an independent third party to determine the appropriate value.

5

(C) The value of assets other than securities will be their fair market value, as mutually determined by the Board of Directors of this Corporation and the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, and if not so mutually determined, then the Board of Directors and the holders of at least a majority of the then outstanding shares of Series A Preferred stock will choose an independent third party to determine the appropriate value.

(d) The Corporation shall give each holder of record of at least 50,000 shares of Series A Preferred Stock written notice of Such impending Corporate Transaction not later than fifteen days prior to the shareholders’ meeting called to approve such Corporate Transaction, or fifteen days prior to the closing of such Corporation Transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such Corporate Transaction. The first of such notices shall describe the material terms and conditions of the impending Corporation Transaction and the provisions of this section 2, and the Corporation shall thereafter give such holders prompt notice of any material changes. The Corporate Transaction shall in no event take place sooner than fifteen days after the Corporation has given the first notice provided for herein or sooner than ten days after the Corporation has given notice of any material changes provided for herein; provided, that such periods may be shortened upon the written consent of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock that are entitled to such notice rights.

(e) In the event the requirements of Section IV(B)(2)(d) are not complied with, the Corporation shall forthwith either cause the closing of such Corporate Transaction to be postponed until such requirements have been complied with, or cancel such Corporate Transaction, in which event, the rights, preferences and privileges of the holders of the Series A Preferred Stock shall revert to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice referred to in Section IV(B)(2)(d) hereof.

3. Conversion

The holders of shares of Series A Preferred Stock will have conversion rights as follows (the “Conversion Rights”):

(a) Right to Convert. Each share of Series A Preferred Stock is convertible, at the option of the holder thereof and without payment of any additional consideration, at any time after the date of issuance of such share, at the office of this Corporation or any transfer agent for such stock, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the applicable Original Issue Price per share (as defined below) by the Conversion Price applicable to such share, determined as hereafter provided, in effect on the date the certificate is surrendered for conversion. The initial Conversion Price per share for shares of Series A Preferred Stock is $2.45 (the “Original Issue Price”). The Series A Conversion Price will be subject to adjustment as set forth in Section IV(B)(3)(d).

(b) Automatic Conversion. Each share of Series A Preferred Stock will automatically and without further action on the part of this Corporation or any holder of Series A

6

Preferred be converted into shares of Common Stock at the Conversion Price in effect at the time upon the earlier of (i) except as provided in Section IV(B)(3)(c), this Corporation’s sale of its Common Stock in a firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended(the “Act”) (other than a registration statement relating either to the sale of securities to employees of this Corporation pursuant to its stock option, stock purchase or similar plan or a transaction pursuant to Rule 145 under the Act), at a public offering price per share of not less than $10 (as adjusted for Recapitalizations) and in which the aggregate net proceeds (after, without limitation, deductions of underwriters’ commissions and offering expenses) to this Corporation exceed $25,000,000 (a “Qualifying IPO”) or (ii) the date specified by written consent or agreement of the holders of at least two-thirds of the then outstanding shares of Series A Preferred Stock.

(c) Mechanics of Conversion. Before any holder of Series A Preferred Stock will be entitled to convert the same into shares of Common Stock, he, she or it must surrender the certificate or certificates therefor, duly endorsed, at the office of this Corporation or of any transfer agent for the Series A Preferred Stock, give written notice to this Corporation at its principal corporate office, of the election to convert the same and state therein the name or names in which the certificate or certificates for shares of Common Stock are to be issued. This Corporation will, as soon as practicable thereafter, issue and deliver at such office to such holder of Series A Preferred Stock, or to the nominee or nominees of such holder, a certificate or certificates for the number of shares of Common Stock to which such holder is entitled as aforesaid. Such conversion will be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Series A Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion will be treated for all purposes as the record holder or holders of such shares of Common Stock as of such date. If the conversion is in connection with an underwritten offering of securities registered pursuant to the Act (including, without limitation, an automatic conversion pursuant to Section IV(B)(3)(b) above), the conversion may, at the option of any holder tendering shares of Series A Preferred Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which event the persons entitled to receive the Common Stock upon conversion of the Series A Preferred Stock will not be deemed to have converted such Series A Preferred Stock until immediately prior to the closing of such sale of securities.

(d) Conversion Price Adjustments of Preferred Stock. The Conversion Price of the Series A Preferred Stock will be subject to adjustment from time to time as follows:

(i) (A) If this Corporation issues, after the date upon which any shares of Series A Preferred Stock were first issued (the “Purchase Date”), any Additional Stock (as defined below) without consideration or for a consideration per share less than the Conversion Price for the Series A Preferred Stock in effect immediately prior to the issuance of such Additional Stock, the Conversion Price for the Series A Preferred Stock in effect immediately prior to each such issuance shall forthwith (except as otherwise provided in this Section IV(B)(3)(d)(i)) be adjusted to a price determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding and deemed issued pursuant to Section IV(B)(3)(d)(i)(E) immediately prior to such

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issuance plus the number of shares of Common Stock that the aggregate consideration received by this Corporation for such issuance would purchase at such Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding and deemed issued pursuant to Section IV(B)(3)(d)(i)(E) immediately prior to such issuance plus the number of shares of such Additional Stock.

(B) No adjustment of the Conversion Price for the Series A Preferred Stock will be made in an amount less than one one-hundredth of a cent per share, provided that any adjustments that are not required to be made by reason of this sentence will be carried forward and shall be either taken into account in any subsequent adjustment made prior to three (3) years from the date of the event giving rise to the adjustment being carried forward, or will be made at the end of three (3) years from the date of the event giving rise to the adjustment being carried forward. Except to the limited extent provided for in Sections IV(B)(3)(d)(i)(E)(3) and IV(B)(3)(d)(i)(E)(4), no adjustment of such Conversion Price pursuant to this Section IV(B)(3)(d)(i) shall have the effect of increasing the applicable Conversion Price above the applicable Conversion Price in effect immediately prior to such adjustment.

(C) In the case of the issuance of Common Stock for cash, the consideration will be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Corporation for any underwriting or otherwise in connection with the issuance and sale thereof.

(D) In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash will be deemed to be the fair value thereof as determined in good faith by the Board of Directors irrespective of any accounting treatment.

(E) In the case of the issuance (whether before, on or after the applicable Purchase Date) of warrants or options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or warrants or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions will apply for all purposes of this Section IV(B)(3)(d)(i) and Section IV(B)(3)(d)(ii):

(1) The aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including, without limitation, the passage of time but without taking into account potential antidilution adjustments), of such warrants or options to purchase or rights to subscribe for Common Stock will be deemed to have been issued at the time such warrants or options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections IV(B)(3)(d)(i)(C) and IV(B)(3)(d)(i)(D)), if any, received by this Corporation upon the issuance of such warrants, options or rights (without taking into account potential antidilution adjustments) plus the minimum exercise price provided in such warrants, options or rights for the Common Stock covered thereby.

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(2) The aggregate maximum number of shares of Common Stock deliverable upon conversion of, or in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time but without taking into account potential antidilution adjustments), for any such convertible or exchangeable securities or upon the exercise of warrants or options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof will be deemed to have been issued at the time such securities were issued or such warrants, options or rights were issued and for a consideration equal to the consideration, if any, received by this Corporation for any such securities and related warrants, options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by this Corporation (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related warrants, options or rights (the consideration in each case to be determined in the manner provided in Sections IV(B)(3)(d)(i)(C) and IV(B)(3)(d)(i)(D))

(3) In the event of any change in the number of shares of Common Stock deliverable or in the consideration payable to this Corporation upon exercise of such warrants, options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Conversion Price of the Series A Preferred Stock, to the extent in any way affected by or computed using such warrants, options, rights or securities, will be recomputed to reflect such change, but no further adjustment will be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such warrants, options or rights or the conversion or exchange of such securities.

(4) Upon the expiration of any such warrants, options or rights, the termination of any such rights to convert or exchange or the expiration of any warrants, options or rights related to such convertible or exchangeable securities, the Conversion Price of the Series A Preferred Stock, to the extent in any way affected by or computed using such warrants, options, rights or securities or warrants, options or rights related to such securities, will be recomputed to reflect the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that remain in effect) actually issued upon the exercise of such warrants, options or rights, upon the conversion or exchange of such securities or upon the exercise of the warrants, options or rights related to such securities.

(5) The number of shares of Common Stock deemed issued and the consideration deemed paid therefor pursuant to Sections IV(B)(3)(d)(i)(E)(l) and IV(B)(3)(d)(i)(E)(2) will be appropriately adjusted to reflect any change, termination or expiration of the type described in either Section IV(B)(3)(d)(i)(E)(3) or IV(B)(3)(d)(i)(E)(4).

(ii) “Additional Stock” means any shares of Common Stock issued (or deemed to have been issued pursuant to Section IV(B)(3)(d)(i)(E)) by this Corporation after the applicable Purchase Date other than:

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(A) Shares of Common Stock issuable upon conversion of the Series A Preferred Stock;

(B) Common Stock issued pursuant to a transaction described in Section lV(B)(3)(d)(iii) hereof;

(C) shares of Common Stock issued or issuable to employees, consultants or directors of this Corporation directly or pursuant to a stock option plan or restricted stock plan approved by the Board of Directors of this Corporation so long as the total number of shares of Common Stock so issued or issuable (and not repurchased at cost by the Corporation in connection with the termination of employment or other provision of services to the Corporation and not subject to options that expire unexercised) does not exceed 612,500 shares;

(D) shares of Common Stock (including shares pursuant to an over-allotment right) issued or issuable in a bona fide, firmly underwritten public offering registered under the Act before or in connection with which all outstanding shares of Series A Preferred Stock will be automatically converted to Common Stock;

(E) shares of Common Stock issued pursuant to the conversion, exchange or exercise of convertible, exchangeable or exercisable securities outstanding as of the Purchase Date or subsequently issued pursuant to this Section IV(B)(3)(d)(ii);

(F) shares of Common Stock issued or issuable in consideration other than cash in connection with a bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by a majority of the then outstanding shares of Series A Preferred Stock; or

(G) shares of Common Stock issued pursuant to any equipment leasing arrangement, or debt financing from a bank or similar financial institution, approved by the Board of Directors of this Corporation, including a majority of the members of the Board of Directors who are not employed by the Corporation.

(iii) In the event this Corporation should at any time or from time to time after the applicable Purchase Date fix a record date for the effectuation of a split or subdivision of the outstanding shares of Common Stock or the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock or other securities or rights convertible into, exchangeable for, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock (the “Common Stock Equivalents”) without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise thereof), then, as of such record date (or the date of such dividend distribution, split or subdivision if no record date is fixed), the Conversion Price of the Series A Preferred Stock will be appropriately decreased so that the

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number of shares of Common Stock issuable on conversion of each share of Series A Preferred Stock will be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding and those issuable with respect to such Common Stock Equivalents; provided, however, that if such record date is fixed and such dividend is not paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price will be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price will be adjusted pursuant to this Section IV(B)(3)(d)(iii) to reflect the actual payment of such dividend or distribution.

(iv) If the number of shares of Common Stock outstanding at any time after the applicable Purchase Date is decreased by a combination of the outstanding shares of Common Stock, then, following the record date of such combination, the Conversion Price for the Series A Preferred Stock will be appropriately increased so that the number of shares of Common Stock issuable on conversion of each share of Series A Preferred Stock will be decreased in proportion to such decrease in outstanding shares.

(e) Other Distributions. In the event this Corporation declares a distribution payable in securities of other persons, evidences of indebtedness issued by this Corporation or other persons, assets (excluding cash dividends) or options or rights not referred to in Section IV(B)(3)(d)(ii), then, in each such case for the purpose of this Section IV(B)(3)(e), the holders of the Series A Preferred Stock will be entitled to a proportionate share of any such distribution as though they were the holders of the number of shares of Common Stock of this Corporation into which their shares of the Series A Preferred Stock are convertible as of the record date fixed for the determination of the holders of Common Stock of this Corporation entitled to receive such distribution.

(f) Reclassifications. If at any time or from time to time the Common Stock of this Corporation is changed into the same or a different number of shares of any class or classes of stock whether by Recapitalization or otherwise (other than a Recapitalization, reclassification, exchange, reorganization, substitution or merger or sale of assets provided for elsewhere in Section IV(B)(2) or this Section IV (B)(3)), provision will be made so that the holders of the Series A Preferred Stock thereafter entitled to receive upon conversion of the Series A Preferred Stock the kind and number of shares of stock or other securities or property of this Corporation or otherwise, to which a holder of the number of shares of Common Stock deliverable upon conversion of the Series A Preferred Stock held by such holder would have been entitled on such reclassification. In any such case, appropriate adjustment will be made in the application of the provisions of this Section IV(B)(3) with respect to the rights of the holders of the Series A Preferred Stock after the capital reorganization to the end that the provisions of this Section IV(B)(3) (including adjustment of the Conversion Price then in effect and the number of shares purchasable upon conversion of the Series A Preferred Stock) will be applicable after that event as nearly equivalent as may be practicable.

(g) No Impairment. This Corporation will not without the consent of the holders of a majority of the then outstanding shares of Series A Preferred Stock, by amendment of this Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action,

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avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by this Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section IV(B)(3) and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of Series A Preferred Stock against impairment.

(h) No Fractional Shares and Certificate as to Adjustments.

(i) No fractional shares will be issued upon the conversion of any share or shares of Series A Preferred Stock, and the number of shares of Common Stock to be issued will be rounded to the nearest whole share. The number of shares of Common Stock to be issued upon such conversion will be determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Common Stock and the number of shares of Common Stock issuable upon such aggregate conversion.

(ii) Upon the occurrence of each adjustment or readjustment of the Conversion Price of the Series A Preferred Stock pursuant to this Section IV(B)(3), this Corporation, at its expense, will promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of the Series A Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. This Corporation will, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustment and readjustment, (B) the Conversion Price for the Series A Preferred Stock at the time in effect, and (C) the number of shares of Common Stock and the amount, if any, of other property that at the time would be received upon the conversion of a share of the Series A Preferred Stock.

(i) Notices of Record Date. In the event of any taking by this Corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, this Corporation will mail to each holder of Series A Preferred Stock, at least twenty (20) days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.

(j) Reservation of Stock Issuable Upon Conversion, Exercise or Exchange. This Corporation will at all times reserve and keep available out of its authorized but unissued shares of (i) Common Stock, solely for the purpose of effecting the conversion of the shares of Series A Preferred Stock, such number of its shares of Common Stock as will from time to time be sufficient to effect the conversion of all outstanding shares of Series A Preferred Stock, and (ii) Series A Preferred Stock issuable upon exercise of any outstanding options, warrants or other rights, and if at any time the number of authorized but unissued shares of Common Stock and Series A Preferred Stock, as applicable are not sufficient to effect the conversion of all then outstanding shares of Series A Preferred Stock, in addition to such other

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remedies as are available to the holder of such Series A Preferred Stock or options, warrants or other rights, this Corporation will take such corporate action as it deems necessary to increase its authorized but unissued shares of Common Stock and Series A Preferred Stock, as applicable, to such number of shares as will be sufficient for such purposes, including, without limitation, using its best efforts to obtain the requisite shareholder approval of any necessary amendment to this Certificate of Incorporation.

(k) Notices. Any notice required by the provisions of this Section IV(B)(3) to be given to the holders of shares of Preferred Stock will be deemed given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices shall be addressed to each holder of record at his address appearing on the books of this Corporation.

4. Voting Rights

(a) General Voting Rights. The holder of each share of Series A Preferred Stock will have the right to one vote for each share of Common Stock into which such share of Series A Preferred Stock could then be converted, and with respect to such vote, such holder will have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and will be entitled, notwithstanding any provision hereof, to notice of any shareholders’ meeting in accordance with the Bylaws of this Corporation, and will be entitled to vote, together with holders of Common Stock, with respect to any matter upon which holders of Common Stock have the right to vote (including, without limitation, election of directors to the Corporation’s Board of Directors). Fractional votes will not, however, be permitted and any fractional voting rights available on an as-converted basis (after aggregating all shares into which shares of Series A Preferred Stock held by each holder could be converted) will be rounded to the nearest whole number (with one half being rounded upward).

(b) Voting for the Election of Directors. The Board of Directors shall consist of five directors. For as long as at least fifty percent (50%) of the shares of Series A Preferred Stock originally issued remain outstanding (appropriately adjusted to reflect Recapitalizations), the holders of the Series A Preferred Stock shall be entitled to elect one director. In the case of any vacancy in the office of a director elected by the holders of the Series A Preferred Stock, the holders of the Series A Preferred Stock may, by affirmative vote of a majority of the shares of the Series A Preferred Stock, elect a successor to hold office for the unexpired term of the director whose place is vacant.

5. Status of Converted Stock

In the event any shares of Preferred Stock are converted pursuant to Section IV(B)(3), the shares so converted will be cancelled and will not be issuable by this Corporation. This

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Certificate of Incorporation will be appropriately amended to effect the corresponding reduction in this Corporation’s authorized capital stock.

6. Redemption

The Series A Preferred Stock is not redeemable.

7. Restrictions on Certain Corporate Actions

For so long as more than fifty percent (50%) of the number of shares of Series A Preferred Stock originally issued remain outstanding, the Company will not without first obtaining the approval of the holders of at least a majority of the then outstanding shares of Series A Preferred Stock:

(a) amend the Charter or By-laws so as to change or adversely affect any of the rights, preferences or privileges of, or the qualifications, limitations or restrictions of, the shares of Series A Preferred Stock;

(b) increase or decrease the total number of authorized shares of Series A Preferred Stock;

(c) authorize or issue, or obligate itself to issue, any security, including any security convertible into or exercisable or exchangeable for any security, having rights, preferences or privileges senior or superior to or on a parity with the Series A Preferred Stock, with respect to dividends, liquidation, redemption or voting;

(d) effect any reclassification of any outstanding shares of capital stock of the Company into shares having rights, preferences or privileges senior or superior to or on a parity with the Series A Preferred Stock with respect to voting, dividends, redemption or on liquidation;

(e) increase or decrease the size of the Board of Directors of the Company to a number of members other than five (5);

(f) declare or pay dividends or make other distributions on any capital stock of the Company;

(g) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any share or shares of Common Stock or any other series of Preferred Stock; provided, however, that this restriction does not apply to the repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the Company pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment or other provision of services to the Company;

(h) incur indebtedness in excess of $5,000,000;

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(i) materially change the business in which the Company is engaged in as of the date of the Initial Closing under the Series A Purchase Agreement;

(j) increase the number of shares of Common Stock of the Company reserved for issuance pursuant to the Company’s stock option plan, stock purchase or other incentive plan or for the exercise of warrants by more than 612,500 shares;

(k) dissolve, liquidate or wind-up the Company, or

(1) (1) sell, lease, transfer, convey or otherwise dispose of all or substantially all of the Company’s assets or business or otherwise effect a liquidation, (2) merge into or consolidate with any other entity (other than a wholly-owned subsidiary) or (3) effect any transaction or series of related transactions in which the shareholders of the Company immediately prior to such transaction hold, immediately after such transaction, less than a majority of the voting power of the Company; provided, however. the foregoing does not apply to a transaction effected solely for the purpose of changing the Company’s domicile.

C. Common Stock

The rights, preferences, privileges and restrictions granted to and imposed on the Common Stock are as set forth below in this Section IV(C).

1. Dividend Rights

Subject to the prior rights of holders of all classes of stock at the time outstanding having prior rights as to dividends, the holders of the Common Stock are entitled to receive, when and as declared by the Board of Directors, out of any assets of this Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.

2. Liquidation Rights

Upon the liquidation, dissolution or winding of this Corporation, the assets of this Corporation will be distributed as provided in Section IV(B)(2).

3. Voting Rights

The holder of each share of Common Stock has the right to one vote for each such share, and is entitled to notice of any shareholders’ meeting in accordance with the Bylaws of this Corporation, and is entitled to vote upon such matters and in such manner as may be provided by law.

4. Redemption

The Common Stock is not redeemable.

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ARTICLE V

The Secretary of State of the State of New York is designated as the agent of the Corporation upon whom process against the Corporation may be served, and the address to which the Secretary of State of the State of New York shall mail a copy of any process against the Corporation served upon him is 180 Varick Street, 4th Floor, New York, New York 10014, Attention: Richard A. Marmet.

ARTICLE VI

A director of this Corporation shall to the fullest extent permitted by the BCL as it now exists or as it may hereafter be amended, not be personally liable to this Corporation or its shareholders for damages (whether monetary or otherwise) for breach of fiduciary duty as a director, except to the extent such exception from liability or limitation thereof is not permitted under the BCL as the same exists or may hereafter be amended. Neither any amendment nor repeal of this Article VI shall eliminate or reduce the effect of this Article VI in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VI, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

Any amendment, repeal or modification of this Article VI, or the adoption of any provision of this Certificate of Incorporation inconsistent with this Article VI, shall not adversely affect any right or protection of a director of this Corporation existing at the time of such amendment, repeal, modification or adoption.

ARTICLE VII

Except as otherwise provided in this Certificate of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the Bylaws of this Corporation, provided, however, that the shareholders of this Corporation may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the percentage of holders of capital stock as provided therein; and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with this Certificate of Incorporation or any amendment or supplement thus adopted by the shareholders.

ARTICLE VIII

For the management of the business and for the conduct of the affairs of this Corporation, and in further definition, limitation, and regulation of the powers of this Corporation and of its directors and of its shareholders or any class thereof, as the case may be, it is further provided:

1. The management of the business and the conduct of the affairs of this Corporation is vested in its Board of Directors. The phrase “whole Board” and the phrase “total number of directors” will be deemed to have the same meaning, to wit, the total number of directors which this Corporation would have if there were no vacancies. Elections of directors need not be by written ballot unless the Bylaws of this Corporation so provides.

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2. After the original or other Bylaws of this Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 601 of the BCL, and, after this Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of this Corporation may be exercised by the Board of Directors of this Corporation; provided, however, that any provision for the classification of directors of this Corporation for staggered terms pursuant to Section 704 of the BCL will be set forth in an initial Bylaw or in a Bylaw adopted by the shareholders of this Corporation entitled to vote unless provisions for such classification will be set forth in this Certificate of Incorporation.

3. Whenever this Corporation is authorized to issue only one class of stock, each outstanding share will entitle the holder thereof to notice of, and the right to vote at, any meeting of shareholders. Whenever this Corporation is authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of this Certificate of Incorporation will entitle the holder thereof to the right to vote at any meeting of shareholders except as the provisions of Section 804 of the BCL shall otherwise require; provided, that no share of any such class which is otherwise denied voting power will entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with this Certificate of Incorporation or any amendment or supplement thus adopted by the shareholders.

ARTICLE IX

To the fullest extent permitted by the BCL, this Corporation may fully indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was an employee or agent of the Corporation, or is or was serving at the request of this Corporation as an employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. This Corporation will advance expenses (including attorneys’ fees) incurred by a director or officer in advance of the final disposition of such action, suit or proceeding upon the receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that such director or officer is not entitled to indemnification. This Corporation may advance expenses (including attorneys’ fees) incurred by an employee or agent in advance of the final disposition of such action, suit or proceeding upon such terms and conditions, if any, as the Board of Directors deems appropriate.

Any amendment, repeal or modification of this Article IX, or the adoption of any provision of this Certificate of Incorporation inconsistent with this Article IX, shall not adversely affect any right or protection existing at the time of such amendment, repeal, modification or adoption.

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ARTICLE X

Subject to any rights of holders of any series of Preferred Stock as set forth herein, whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of a outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

Meetings of shareholders may be held within or without the State of New York, as the Bylaws may provide. The books of this Corporation may be kept (subject to any provision contained in the statutes) outside the State of New York at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of this Corporation; provided, however, that the shareholders of this Corporation may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the percentage of holders of capital stock as provided therein; and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors shall vary or conflict with this Certificate of Incorporation or any amendment or supplement thus adopted by the shareholders.

ARTICLE XI

This Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed herein and by statute, and all rights conferred upon shareholders herein are granted subject to this reservation.

ARTICLE XII

This Corporation will have perpetual existence.

In the event that any provision of this Certificate of Incorporation (including any provision within a single section, paragraph or sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions are severable and will remain enforceable to the full extent permitted by law.

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IN WITNESS WHEREOF, this Corporation has caused this Certificate of Incorporation to be executed on its behalf by a duly authorized officer, this 16th day of March, 2001.

	BEST CELLARS INC.
/s/ Rebecca Parish	By:	/s/ Richard A. Marmet
Secretary		Name: Richard A. Marmet
		Title: Co-CEO

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CT-07 1010316000606

CT-07

RESTATED CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW

Morrison & Foerster LLP

1290 Avenue of the Americas

New York, NY 10104-0012

DRAWD

010316000

20

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CT-07 070921000628

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

(UNDER SECTION 805 OF THE NEW YORK BUSINESS CORPORATION LAW)

The undersigned, a natural person at least eighteen (18) years of age, for the purpose of amending the certificate of incorporation pursuant to the Business Corporation Law of the State of New York, DOES HEREBY CERTIFY as follows:

FIRST: The name of the Corporation is BEST CELLARS INC. (the “Corporation”).

SECOND: The Certificate of Incorporation of the Corporation was filed with the New York Department of State on July 14, 1995; a Certificate of Amendment of the Certificate of Incorporation of the Corporation was filed with the New York Department of State on May 23, 1996; and a Restated Certificate of Incorporation of the Corporation (the “Restated Certificate of Incorporation”) was filed with the New York Department of State on March 16, 2001.

THIRD: The Certificate of Incorporation is hereby amended to (A) alter the conversion terms of all shares of Series A Convertible Preferred Stock, par value $0.001 per share, of the Corporation, and (B) provide for the conversion of each issued and outstanding share of Preferred Stock into three (3) shares of Common Stock.

FOURTH: To effect the foregoing change, Article IV, Section B (Rights, Preferences and Restrictions of Preferred Stock), Subsection 3 (Conversion) is deleted in its entirety and replaced with a new Article IV, Section B, Subsection 3 which states:

“Each share of Series A Convertible Preferred Stock issued and outstanding on the date this Certificate of Amendment changing the conversion terms is filed with the Secretary of State of the State of New York (the “Filing Date”) shall be converted into three (3) shares of Common Stock, par value $0.01 per share, of the Corporation effective on the Filing Date. After giving effect to said conversion, (a) all shares of Series A Convertible Preferred Stock (“Terminated Preferred Stock”) converted into shares of Common Stock shall be cancelled; and (b) each certificate that previously represented shares of Terminated Preferred Stock shall thereafter represent that number of shares of Common Stock into which the shares of Terminated Preferred Stock represented by such stock certificate(s) shall have been converted; provided, that each person holding of record stock certificate(s) that previously represented shares of Terminated Preferred Stock shall receive, upon surrender of such stock certificate(s) to the Corporation, new stock certificate(s) evidencing and representing the number of shares of Common Stock into which the shares of Terminated Preferred Stock represented by such certificate(s) shall have been converted.”

This Amendment of the Certificate of Incorporation was authorized by a vote of the majority of the Board of Directors of the Corporation at a meeting held on September 10, 2007, followed by the vote of a majority of the holders of all of the outstanding shares of Preferred Stock and a vote of a majority of the holders of all of the outstanding shares of Common Stock of the Corporation at a meeting held on September 18, 2007.

IN WITNESS WHEREOF, I have made, executed, and subscribed this Amendment of the Certificate of Incorporation this 18^th day of September, 2007, and affirm that the statements contained herein are true under penalties of perjury.

    /s/ Daniel Dickson

Daniel H. Dickson

Director, President, and CEO

CT-07 070921000 628

Certificate of Amendment

Of the

Certificate of Incorporation

Of

BEST CELLARS INC.

UNDER SECTION 805 OF THE

BUSINESS CORPORATION LAW

*****

Reitler Brown & Rosenblatt LLC

800 Third Avenue

21st Floor

New York NY, 10022

Cst ref # 7030822 my

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CT-07 071004000362

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

(UNDER SECTION 805 OF THE NEW YORK BUSINESS CORPORATION LAW)

It is hereby certified that:

1. The name of the Corporation is BEST CELLARS INC. (the “Corporation”).

2. The Certificate of Incorporation of the Corporation was filed by the Department of State on July 14, 1995; a Certificate of Amendment of the Certificate of Incorporation of the Corporation was filed by the Department of State on May 23, 1996; a Restated Certificate of Incorporation of the Corporation was filed by the Department of State on March 16, 2001; and a Certificate of Amendment of the Certificate of Incorporation was filed by the Department of State on September 21, 2007.

3. The aggregate number of shares which the Corporation is currently authorized to issue is 18,300,000. The Corporation is currently authorized to issue 15,000,000 shares of Common Stock at $0.01 par value. Of the currently authorized Common Stock, 12,025,765 are issued and 2,974,235 are unissued. Each of the 12,025,765 issued shares of Common Stock will be changed on a one (1) for twenty (20) basis. In connection with the change in the issued Common Stock, the Corporation’s unissued shares of Common Stock will be changed on a 4.841147723 for one (1) basis. As a result of such change, the Corporation shall have 601,289 issued shares of Common Stock and 14,398,711 unissued shares of Common Stock.

4. Paragraph FOURTH (A) of the Certificate of Incorporation is hereby amended to read as follows:

“(A) Classes of Stock.

This Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares of Common Stock that this Corporation is authorized to issue is Fifteen Million (15,000,000) shares, with a par value of $0.01 per share. The total number of shares of Preferred Stock that this Corporation is authorized to issue is Three Million, Three Hundred Thousand (3,300,000) shares, with a par value of $0.001 per share.”

5. This Amendment of the Certificate of Incorporation was authorized by a vote of the majority of the Board of Directors of the Corporation at a meeting held on September 10, 2007, followed by the vote of a majority of the holders of all of the outstanding shares of Preferred Stock and a vote of a majority of the holders of all of the outstanding shares of Common Stock of the Corporation at a meeting held on September 18, 2007.

IN WITNESS WHEREOF, I have made, executed, and subscribed this Amendment to the Certificate of Incorporation this 3^rd day of October, 2007, and affirm that the statements contained herein are true under the penalties of perjury.

/s/ Daniel H. Dickson

Daniel H. Dickson

Director, President, and CEO

CT-07 071004000362

CT -07

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS INC.

(UNDER SECTION 805 OF THE NEW YORK BUSINESS CORPORATION LAW)

Cust Ref # 7030822mc

Reitler Brown & Rosenblatt LLC

800 Third Avenue

21st Floor

New York NY, 10022

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

071101000862

Certificate of Merger

of

Best Cellars Inc.

into

BCI MergerSub, Inc.

Under Section 904 of the Business Corporation Law

November 1, 2007

It is hereby certified upon behalf of each of the constituent corporations herein named, as follows:

FIRST: The Board of Directors of each of the constituent corporations has duly adopted a plan of merger setting forth the terms and conditions of the merger of said corporations.

SECOND: The name of the constituent corporation which is to be the surviving corporation, and which is hereinafter sometimes referred to as the “surviving constituent corporation”, is Best Cellars Inc. The date upon which its certificate of incorporation was filed by the Department of State is July 14, 1995.

THIRD: The name of the other constituent corporation, which is being merged into the surviving constituent corporation, and which is hereinafter sometimes referred to as the “merged constituent corporation”, is BCI MergerSub, Inc. The date upon which its certificate of incorporation was filed by the Department of State is August 29, 2007.

FOURTH: As to each constituent corporation, the plan of merger sets forth the designation and number of outstanding shares of each class and series, the specification of the classes and series entitled to vote on the plan of merger, and the specification of each class and series entitled to vote as a class on the plan of merger, as follows:

BCI MergerSub, Inc.

Class of Shares	Number of Outstanding Shares	Entitled to vote on Merger
Common	100	Yes

Best Cellars Inc.

Class of Shares	Number of Outstanding Shares	Entitled to vote on Merger
Common	6,405,004	Yes

FIFTH: The merger herein certified was authorized in respect of the surviving constituent corporation by vote at a duly called meeting of holders of outstanding shares of the corporation entitled to vote on the plan of merger, having not less than the minimum requisite proportion of votes, which has been given in accordance with section 615 of the Business Corporation Law of the State of New York. Written notice has been given as and to the extent required by the said section 615.

SIXTH: The merger herein certified was authorized in respect of the merged constituent corporation by the written consent of holders of outstanding shares of the corporation entitled to vote on the plan of merger, having not less than the minimum requisite proportion of votes, which has been given in accordance with section 615 of the Business Corporation Law of the State of New York. Written notice has been given as and to the extent required by the said section 615.

SEVENTH: The effective date of the merger herein certified shall be the first day of November, 2007.

IN WITNESS WHEREOF, the parties have executed this Certificate of Merger as of the date first written above.

BEST CELLARS INC.

By: /s/ Daniel Dickson

Daniel Dickson

President

BCI MERGERSUB, INC.

By: /s/ Christopher McGarry

Christopher McGarry

President

DRAWDOWN CONTINENTAL #04 071101000 862

CERTIFICATE OF MERGER

OF

BEST CELLARS INC.

INTO

BCI MERGERSUB, INC.

UNDER SECTION 904 OF THE

BUSINESS CORPORATION LAW

FILER:

AKIN GUMP STRAUSS HAUER & FELD LLP

590 MADISON AVE

NEW YORK, NY 10022

EX-99.T3A.11

Exhibit A-11

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of

the Department of State, at the City of

Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

F02l23l000261

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS LICENSING CORP.

Under Section 402 of the Business Corporation Law

FIRST: The name of the corporation is BEST CELLARS LICENSING CORP.

SECOND: This corporation is formed to engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law, provided that it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body.

THIRD: The county within this state in which the office of the corporation is to be located is New York County.

FOURTH: The total number of shares which the corporation shall have the authority to issue and a statement of the par value of each share are: 100 No Par Value.

FIFTH: The Secretary of State is designated as agent of the corporation upon whom process against the corporation may be served. The address to which the Secretary of State shall mail a copy of any process aaccepted on behalf of the corporation is:

Best Cellars Licensing Corp.

180 Varick Street

Fourth Floor

New York, New York 10014

/s/    Richard A. Marmet

Richard A. Marmet

180 Varick Street

New York, New York 10014

F02l231000261

CERTIFICATE OF INCORPORATION

OF

BEST CELLARS LICENSING CORP.

PURSUANT TO SECTION 402 OF THE BUSINESS CORPORATION LAW

FILED BY:	RICHARD A. MARMET
	180 VARICK STREET
	NEW YORK, NY 10014

STATE OF NEW YORK

DEPARTMENT OF STATE

FILED DEC 31 2002

TAX$ 10                                

Y: Par                                  

new york

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of

the Department of State, at the City of

Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

New York State

Department of State

Division of Corporations, State Records

and Uniform Commercial Code

41 State Street

Albany, NY 1223l

www.dos.state.ny.us

CERTIFICATE OF CHANGE

OF

BEST CELLARS LICENSING CORP.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

FIRST: The name of the corporation is:

BEST CELLARS LICENSING CORP.

If the name of the corporation has been changed, the name under Which it was formed is:

SECOND: The certificate of incorporation was filed by the Department of State on:

12/31/2002

THIRD: The Change(s) effected hereby are: [Check appropriate statement(s)]

¨

The county location, within this state, in which the office of the corporation is located, is changed to:

¨

The address to which the Secretary of State shall forward copies of process accepted on behalf of the Corporation is changed to read in its entirety as follows: C/O BLUMBERGEXCELSIOR, 62 WHITE ST., 2ND FL., NY, NY 10013

¨

The corporation hereby: [Check one]

The street address of the registered agent is:

¨

Changes the designation of its registered agent to: .

_________________________________ . The street address of the registered agent is:

¨

¨

Changes the address of its registered agent to:

¨

Revokes the authority of its registered agent.

Designates BLUMBERGEXCELSlOR CORPORATE SERVICES, INC. as its registered agent upon whom process against the corporation may be served.

DOS-1558 (Rev. 10/07)

-1-

080211000924

080211000924

FOURTH: The change was authorized by the board of directors.

Christopher McGarry

(Signature)

(Name of Signer)

President_________________

(Title of Signer)

CERTIFICATE OF CHANGE

OF

BEST CELLARS LICENSING CORP.

(Insert Name of Domestic Corporation) BLU 39

DRAWDOWN

Under Section 805-A of the Business Corporation Law

Filer’s Name

BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

Address

62 WHITE ST., 2ND FL._____________________________

City, State and Zip Code

NEW YORK, NY 10013_________________

TAXS ___________

BY:             

NOTE: This form was prepared by the New York State Department of State. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that all documents be prepared under the guidance of an attorney. The certificate must be submitted with a $30 filing fee.

For Office Use Only.

949

-2-

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of

the Department of State, at the City of

Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State

Division of Corporations, Records and UCC

Albany, NY 12231-0002

www.dos.state.ny.us

2850712

Business Name:

BEST CELLARS LICENSING CORP.

BEST CELLARS LICENSING CORP.

2 Paragon Drive

Montrale NJ 07645

Business Corporation

Blennial Statement

2850712

For Internal Use Only

AR09010200 2897

Filed By:

Cash if (Illegible)

Required Fee: $9.00

Filing Period: 12/2008

(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from the requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Blennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer

Name

Eric Claus

Address

2 Paragon Drive

City

Montrale

State

NJ

Zip

07645

Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substituted)

Address Line 1

Best Cellars Licensing Corp.

Address Line 2

2 Paragon Drive

City

Montrale

State

NJ

Zip

07645

Part 3: Address for Service of Process

C/O BLUMBERGEXCELSIOR

62 WHITE ST.

Name

2ND FL.

NEW YORK NY 10013

Address

City

State

Zip

Part 4: Farm Corporation Exemption

Check if applicable

This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporation should complete Parts 4 and 5 ONLY and return the form the Department of State. No filing is required for farm corporations.

Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

Michael Gualtieri

Signature

Name of Signer (Please Print)

Vice President

Title of Signer (Please Print)

090102002897

DOS-1179 (Illegible)

EX-99.T3A.12

[illegible]

[GRAPHICS APPEARS HERE]

Name

Approved

C

P

M

R.A

[GRAPHICS APPEARS HERE]

P.C

[GRAPHICS APPEARS HERE]

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

ARTICLES OF ORGANIZATION

(General Laws, Chapter 156B)

ARTICLE I

The exact name of the corporation is:

BEST CELLARS MASSACHUSETTS, INC.

ARTICLE II

The purpose of the corporation is to engage in the following business activities;

To engage in the retail sale of wine and other alcoholic and soft beverages to the general public and to sell other goods and accessories that enhance and/or complement the wine-drinking experience.

Purposes Continued on Continuation Sheet 2A and following

Note: If the space provided under any article or item on this form is insufficient, additions shall be set forth on one side only of seperate 8 1/2 x 11 sheets of paper with a[illegible} margin of at least 1 inch. Additions in more than one article may be made on a single sheet so long as each article requiring each addition is clearly indicated indicatedp.

ARTICLE III

State the total number of shares and par value, if any, of each class of stock which the corporation is authorized to issue.

WITHOUT PAR VALUE		WITH PAR VALUE
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:	12,500	Common:
Preferred:		Preferred:

ARTICLE IV

If more than one class of stock is authorized, state a distinguishing designation for each class. Prior to the issuance of any shares of a class, if shares of another class are outstanding, the corporation must provide a description of the preferences, voting powers, qualifications, and special or relative rights or privileges of that class and of each other class of which shares are outstanding and of each series then established within any class.

ARTICLE V

The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are:

See Continuation Sheet 5

ARTICLE VI

“Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders:

See Continuation Sheet 6A and following.

** If there are no provisions state “None”

Note: The preceding six (6) article are considered to be permanent and may ONLY be changed by filling appropriate Articles of Amendment.

To carry on the business of owning, leasing, operating all types of retail establishments including restaurants, buying and selling tobacco products in every form, conducting and leasing news stands and buying and selling books, papers, magazines and other articles in connection therewith; to provide and conduct newspaper rooms, reading and writing rooms, dressing rooms, telephones and other conveniences for the use of customers and others; to grant to other persons or corporations the right or privilege to carry on any kind of business on the premises of the company on such terms as the company shall deem expedient and proper, to buy, sell, manufacture, repair, alter and exchange, let or hire, export and deal in all kinds of articles and things which may be required for the purposes of the said business or commonly supplied or dealt in by persons engaged in the same, or which may seem capable of being profitably dealt with in connection with any of the said businesses.

To manufacture, purchase or otherwise acquire goods, merchandiso and personal property of every class, and to hold, own, mortgage, sell or otherwise dispose of, trade, deal in and with the same.

To purchase, take by devise or bequest, hold, mortgage and convey such real estate as the purposes of the corporation shall require and all other real estate which shall have been conveyed to the corporation by way of security or in satisfaction of debts or purchased at sales upon judgment or decree duly obtained.

To acquire and pay for in cash, stock or bonds of this corporation, the good will, rights, assets and property, and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm, association or corporation.

Continuation Sheet 2A

To apply for, obtain, register, purchase, lease or otherwise acquire, and to hold, use, own, operate and introduce, and to sell, assign or otherwise dispose of any trademarks, trade names, copyrights, patents, inventions, improvements and processes used in connection with or secured under letters patent of the United States or any foreign country, and to use, exercise, develop and grant licenses in respect of, or otherwise to turn to account any such trade-marks, trade names, patents, licenses, processes, copyrights, or any such property or rights.

To purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the shares of the capital stock of, or any bonds, securities or evidences of indebtedness created by any other corporation or corporations organized under the laws of the Commonwealth of Massachusetts or any other state or any foreign country, always subject, however, to the laws of the Commonwealth of Massachusetts, and while the owner of such stock, to exercise all the rights, powers, and privileges of ownership, including the right to vote thereon.

To enter into, make, perform and carry out contracts of every kind and for any lawful purpose with any person, firm, association, corporation or body politic or government.

To borrow or raise money without limit as to amount and to draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness and to secure the payment of any of the foregoing and the interest thereon by mortgage upon or pledge, or assignment in trust of the whole or any part of the property of the corporation, and to sell, pledge or otherwise dispose of such bonds and other evidences of indebtedness for the purposes of the corporation.

Continuation Sheet 2B

To purchase, hold, reissue and sell the shares of its own capital stock, provided that shares of its own capital stock belonging to it shall not be voted upon directly or indirectly.

To conduct business in any of the states, territories, possessions or dependencies of the United States, in the District of Columbia, and in any and all foreign countries, and to have one or more offices therein and to hold, purchase, mortgage and convey real and personal property therein without limit as to amount, but always subject to the laws of such state, territory, possession, dependency or country.

In general, to carry on any other business in connection with the foregoing, and to have and exercise all the powers reserved for a corporation organized under and in accordance with the provisions of Chapter 156B of the Massachusetts General Laws, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do, and in any part of the world.

The foregoing clauses shall be construed both as purposes and powers and, except where otherwise expressed, such purposes and powers shall be in no way limited or restricted by reference to or inference from the terms of any other clause in these Articles of Organization, but the purposes and powers so specified shall be regarded as independent purposes and powers, and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of the corporation.

Continuation Sheet 2C

RESTRICTIONS OF TRANSFER

Any stockholder, including the heirs, assigns, executors or administrators of a deceased stockholder, desiring to sell or transfer such stock owned by him or them, shall first offer it to the corporation through the Board of Directors in the manner following:

He shall notify the Directors of the desire to sell or transfer by notice in writing, which notice shall contain the price at which he is willing to sell or transfer and the name of one arbitrator. The Directors shall within thirty days thereafter either accept the other, or by notice to him in writing name a second arbitrator, and these two shall name a third. It shall then be the duty of the arbitrators to ascertain the value of the stock, and if any arbitrator shall neglect or refuse to appear at any meeting appointed by the arbitrators, a majority may act in the absence of such arbitrator.

After the acceptance of the offer, or the report of the arbitrators as to the value of the stock, the directors shall have thirty days within which to purchase the same at such valuation, but if at the expiration of thirty days, the corporation shall not have exercised the right so to purchase, the owner of the stock shall be at liberty to dispose of the same in any manner he may see fit.

No shares of stock shall be sold or transferred on the books of the corporation until these provisions have been complied with, but the Board of Directors may, in any particular instance waive the requirement.

Continuation Sheet 5

(a) The directors may make, amend or repeal the by-laws in whole or in part, except with respect to any provision thereof which by law or the by-laws requires action by the stockholders.

(b) Meetings of the stockholders may be held anywhere in the United States.

(c) No stockholder shall have any right to examine any property or any books, accounts or other writings of the corporation if there is reasonable ground for belief that such examination will for any reason be adverse to the interests of the corporation, and a vote of the directors refusing permission to make such examination and setting forth that in the opinion of the directors such examination would be adverse to the interests of the corporation shall be prima facie evidence that such examination would be adverse to the interests of the corporation. Every such examination shall be subject to such reasonable regulations as the directors may establish in regard thereto.

(d) The directors may specify the manner in which the accounts of the corporation shall be kept and may determine what constitutes net earnings, profits and surplus, if any, shall be reserved. ... what amounts, if any, shall be declared as dividends. Unless the board of directors otherwise specifies, the excess of the consideration for any share of its capital stock with par value issued by it over such par value shall be paid-in surplus. The board of directors may allocate to capital stock less than all of the consideration for any share of its capital stock without par value issued by it, in which case the balance of such consideration shall be paid-in surplus. All surplus shall be available for any corporate purpose, including the payment of dividends.

(e) The purchase or other acquisition or retention by the corporation of shares of its own capital shall not be deemed a reduction of its capital stock. Upon any reduction of capital or capital stock, no stockholder shall have any right to demand any distribution form the corporation, except as and to the extent that the stockholders shall so have provided at the time of authorizing such reduction.

(f) Each director and officer of the corporation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account of the corporation, reports made to the corporation by any of its officers or employees or by counsel, accountants, appraisers or other experts or consultants selected with reasonable care by the directors, or upon other records of the corporation.

Continuation Sheet 6A

(g) The directors shall have the power to fix from time to time, their compensation. No person shall be disqualified from holding any office by reason of any interest. In the absence of fraud, any director, officer or stockholder of this corporation individually, or any individual having any interest in any concern which is a stockholder of this corporation, or any concern in which any such directors, officers, stockholders or individuals have any interest, may be a party to, or may be pecuniarily or otherwise interested in, any contract transaction or other act of this corporation, and

(1) such contract, transactions or act shall not be in any way be invalidated or otherwise affected by that fact;

(2) no such director, officer, stockholder or individual shall be liable to account to this corporation for any profit or benefit realized through any such contract, transaction or act; and

(3) any such director of this corporation may be counted in determining the existence of a quorum at any meeting of the directors or of any committee thereof which shall authorize any such contract, transaction or act, and may vote to authorize the same;

provided, however, that any contract, transaction or act in which any director or officer of this corporation is so interested individually or as a director, officer, trustee or member of any concern which is not a subsidiary or affiliate of this corporation, or in which any directors or officers are so interested as holders, collectively, of a majority of shares of capital stock or other beneficial interest at the time outstanding in any concern which is not a subsidiary or affiliate of this corporation, shall be duly authorized or ratified by a majority of the directors who are not so interested and to whom the nature of such interest has been disclosed;

the term “interest” including personal interest and interest as a director, officer, stockholder, shareholder, trustee, member or beneficiary of any concern;

the term “concern” meaning any corporation association, trust, partnership, firm, person or other entity other than this corporation; and

Continuation Sheet 6B

the phrase “subsidiary or affiliate” meaning a concerning in which a majority of the director, trustees, partners or controlling persons are elected or appointed by the directors of this corporation, or are constituted of the directors or officers of this corporation.

To the extent permitted by law, the authorizing or ratifying vote of a majority in interest of each case of the capital stock of this corporation outstanding and entitled to vote for directors at an annual meeting or a special meeting duly called for this purpose (whether such vote is passed before or after judgment rendered in a suit with respect to such contract, transaction or act) shall validate any contract, transaction or act of this corporation, or of the board of directors or any committee thereof, with regard to all stockholders of this corporation, whether or not of record at the time of such vote, and with regard to all creditors and other claimants under this corporation;

provided, however, that with respect to the authorization or ratification of contracts, transactions or acts in which any of the directors, officers or stockholders of this corporation have an interest, the nature of such contracts, transactions or acts and the interest of any director, officer or stockholder therein shall be summarized in the notice of any such annual or special meeting, or in a statement or letter accompanying such notice, and shall be fully disclosed at any such meeting;

provided, also, that stockholders so interested may vote at any such meeting; and

provided, further, that any failure of the stockholders to authorize or ratify such contract, transaction or act shall not be deemed in any way to invalidate the same or to deprive this corporation, its directors, officers or employees of its or their right to proceed with such contract, transaction or act.

No contract, transaction or act shall be avoided by reason of any provision of this paragraph (g) which would be valid but for those provisions.

Continuation Sheet bc

ARTICLE VII

The effective date of organization of the corporation shall be the date approved and filed by the Secretary of the Commonwealth. If a letter effective date is desired, specify such date which shall not be more than thirty days after the date of filing.

ARTICLE VIII

The Information contained in Article VIII is not a permanent part of the Articles of Organization.

a. The street address (post office boxes are not acceptable) of the principal office of the corporation in Massacbussets is:

c/o Stephen B. Goldenberg, Esq., Goldenberg, Walters & Lipson
	7 Harvard Street, Brookline, KA 02146

b. The name, residential address and post office address of each director and officer of the corporation is as follows:

	NAME	RESIDENTIAL ADDRESS	POST OFFICE ADDRESS
President:	Joshua Vesson	43 W.88th Street New York, NY 10024	Same
Treasurer:	Richard A. Harmet	215 E, 17th Street New York, NY 10003	Same
Clerk:	Stephen B. Goldenberg	7 Harvard Street Brookline, MA 02146	Same
Directors:	Adam S. Convisor	313 Cambridge Street Cambridge, MA 02141	Same

c. The fiscal year (i.e., tax year) of the corporation shall end on the last day of the month of: December

d. The name and business address of the resident agent, if any, of the corporation is:

ARTICLE IX

By-laws of the corporation have been duly adopted and the president, treasurer, clerk and directors whose names are set forth above, have been duly elected.

IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose signature(s) appear below as incorporator(s) and whose name(s) and business or residential address(cs) are clearly typed or printed beneath each signature do hereby associate with the intention of forming this corporation under the provisions of General Laws. Chapter 1568 and do hereby sign these Articles of Organization as incorporation(s) this 23rd day of April, 1998

/s/ Stephen E. Goldenberg

Stephen E. Goldenberg

Goldenberg, Walters & Lipson

7 Harvard Street

Brookline, MA 02146

Notes: If an existing corporation is acting as incorporator, type in the exact name of the corporation, the state or other jurisdiction where it was incorporated, the name of the person signing on behalf of said corporation and the title he/she holds or other authority by which such action is taken.

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF ORGANIZATION

(General Laws, Chapter 156B)

I hereby certify that, upon examination of these Articles of Organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $ 200 having been paid, said articles are deemed to have been filed with me this 24th day of april 1998.

Effective date:

[GRAPHIC APPEARS HERE]

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

FILING FEE: One tenth of the one percent of the total authorized capital stock, but not less than, $200.00. For the purpose of filing, shares of stock with a par value less than $1.00, or no par stock, shall be deemed to have a par value of $1.00 per share.

TO BE FILLED IN BY CORPORATIION

Photocopy of document to be sent to:

Stephen B. Goldenberg

Goldenberg, Walters S Lipson

7 Harvard Street

Brookline, MA 02146

Telephone 617 [ILLEGIBLE]

0516

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashbutton place, Boston, Massachusetts 02108-1512

[ILLIGIBLE][ILLIGIBLE]

Applicable For Reinstatement

Following Administrative Dissolution

(General Laws Chapter 156D, Sector 14.22; 950 CMR 115,47)

(1)

Exact name of corporation: Best Cellars Massachusetts Inc.                                                                                      

(2)

Registered office address: 18 Tremont Street, Suite 14, Boston MA 02108                                                             

(number, street,city or town, state, zip code)

Name of the registered agent and registered office: InCorp Service, Inc.                                                                 

(3)

Effective date of corporation administrative dissolution: May 31, 2007                                                                 

(month, day, year)        

(4)

The ground for the administrative dissolution:

(Check approved box)

¨did not exist.

xhave been eliminated

(5)

The corporation’s name satisfies the requirements of G.I. Chapter 156D, Sectors 4.01 or the corporation shall simultaneously submit a certificate of amendment to change its name to a name that satisfies the requirements of G.L. Chapter 156D, Section 4.01.

(6)

The reInstatements of the corporation shall be effective at the time and on the date approved by the Division, unless a later effective date not more than 90 days from the date and time of filing is specified :                                                                 

(7)

Attach a certificate from the Commonwealth of Massachusetts Department of Revenue retiring what all corporate excise taxes and any related penalties have been paid or a request of Revenue for this certificate.

(8)

The Division shall:

(Check appropriate box)

x  Reinstate the corporation without limitation.

¨  Limit reinstatement to a specified period of time not to exceed one year.

[ILLIGIBLE] *The corporation must file annual reports for the previous ten(10) fiscal years, if not previously filed.

[GRAPHIC APPEAR HERE]

Request for a Certificate of

Good Standing and /or Tax compliance

Or Waiver of Corporate Tax Lien

This application may be used to request a certificate of Good standing/Letter of Compliance, Waiver of Corporate Tax Lien, or Certificate of Good standing for a Non-profit Organization.

If this matter is to be discussed with any third parties, complete the power of Attorney section below. Mail your request as soon as possible to Massachusetts Department of Revenue ,PO Box 7066, Boston, MA 02204 or fax to (617)887-6262 For further information, call (617) 887-6550.

Name of organization

Trade name or DBA

Federal ID or Social Security number

BEST [ILLEGIBLE] MASSACHUSETTS INC

13-4018624

Street address

City/Town

State

Zip

180 VARICK STREET # 404

NEW YORK

NY

10014

Contact person

Daytime telephone

DAN DICKSON

212-989-2540x12

Street address(if different from above)

City/Town

State

Zip

Type of Application

Type of organization (check one):

 xCorporation    ¨ Partnership¨ Sole proprietor    ¨ Individual    ¨ LLP     ¨ LLC     ¨ Other                                                     

Purpose of application(check one):

x Certificate of Good Standing/Letter of Compliance ?Certificate of Good Standing for a Non-profit Organization

¨ Waiver of Corporate Tax Lien

If requesting Waiver of Corporate Tax Lien, attach price and legal description of assets to be sold and complete the following

Name of transferee

Date of transfer or sale

Street address

City/town

State

Zip

Affidavit

Under the penalties of perjury ,I declare that my company is not responsible for the following taxes (check all that apply):

¨ Withholding¨ Sales/Use     ¨ Meals¨ Room Occupancy

Signature of taxpayer or corporate officer

Power of Attorney

Complete this section if you wish to authorize another individual to sign documents on your behalf. In addition, that individual (“attorney-in-fact”) must complete the Declaration of Representative section on reverse.

Name of attorney-in-fact

Daytime telephone

Street address

City/Town

State

Zip

I,                                                      , hereby authorize the above-named individual to represent me as attorney-in-fact before the Certificate Unit of the Massachusetts Department of Revenue for the following type(s)of tax, and for the period(s) of time indicated.

Type of tax

Period

Type of tax

Period

Signed by:
		(Signature of authorized individual)
	¨	Chairman of the board of directors,
	x	President,
	¨	Other officer,
	¨	Court-appointed fiduciary,

on this 25^th day of 2007 July,            .

[Graphic Appears Here]

COMMONWEALTH OF MASSACHUSETTS

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Application for Reinstatement

Following Administrative Dissolution

(General Laws Chapter 156D, Section 14.22; 950 CMR 113.47)

Hereby certify that upon examination on this application for reinstatement, duly submitted to me, it appears that the provisions of the General Laws relative thereto have been compiled with, and I hereby approve said application; and the filing fee in the amount of $ 100 having been paid, said application is deemed to have been filed with me this 27th day of July 2007 at 9:10 a.m./p.m. time

Effective date:

(must be within 90 days of date submitted)

[Graphic Appears Here]

[Graphic Appears Here]

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

1025902

Name approval

Filing fee: $100

#A.R.

TO BE FILLED IN BY CORPORATION

Contact Information:

Dan Dickson, 180 Varick Street #404, New York NY 10014

Telephone: (212) 989-2540 x 12

Email: ddickson@bestcellars.com

Upon filing, a copy of this filing will be available at www.see.state.ma.us/cor. If the document is rejected, a copy of the rejection sheet and rejected document will be available in the rejected queue.

EX-99.T3A.13

Exhibit A-13

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

ARTICLES OF AMENDMENT

CHANGING THE NAME OF A CORPORATION

By Incorporator

The undersigned, pursuant to § 13.1-709 of the Code of Virginia, executes these articles and states as follows:

ONE

The name of the corporation is Best Cellars, Inc.

TWO

The name of the corporation is changed to Best Cellars VA Inc.

THREE

The foregoing amendment was adopted by the incorporator on April 9, 2002.

The undersigned declares that the facts herein stated are true as of April 9, 2002.

	BEST CELLARS, INC.
By:	/s/ Kevin T. Oliveira
	Kevin T. Oliveira

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

April 10, 2002

The State Corporation Commission has found the accompanying articles submitted on behalf of

Best Cellars VA Inc (formerly BEST CELLARS, INC. )

to comply with the requirements of law, and confirms payment of all related fees.

Therefore, it is ORDERED that this

CERTIFICATE OF AMENDMENT

be issued and admitted to record with the articles of amendment in the Office of the Clerk of the Commission, effective April 10, 2002, at 03:59 PM.

The corporation is granted the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law.

STATE CORPORATION COMMISSION
By
	Commissioner

02-04-10-0086

AMENACPT

ARTICLES OF INCORPORATION

OF

BEST CELLARS, INC.

I hereby associate to form a Corporation under the provisions of Title 13.1, Chapter 9, of the 1950 Code of Virginia, as amended, and to that end set forth the following:

1. Name. The name of the Corporation is BEST CELLARS, INC.

2. Purposes. The Corporation is organized to transact any or all lawful business for which corporations may be incorporated under the laws of the Commonwealth of Virginia.

3. Authorized Stock. The number of shares which the Corporation will have authority to issue and the par value per share are as follows:

Class	Shares	Par Value
Common	1,000	$1.00

4. Registered Agent and Registered Office. The post office address of the initial registered office of the Corporation is 9302 Lee Highway, Suite 1100, Fairfax, Virginia 22031. The name of the county in which the registered office is located is the County of Fairfax, Virginia. The name of the initial registered agent is Stephen J. O’Brien. Esquire, who is a resident of the Commonwealth of Virginia and a member of the Virginia State Bar, whose business address is the same as the address of the initial registered office of the Corporation.

5. No Preemptive Rights. The Corporation’s shareholders do not have the preemptive right to acquire proportional amounts of the Corporation’s unissued shares.

GIVEN UNDER MY HAND THIS 4^th day of April, 2002.

/s/ Kevin T. Oliveira	(SEAL)
KEVlN T. OLIVEIRA
Incorporator

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

April 5, 2002

The State Corporation Commission has found the accompanying articles submitted on behalf of

BEST CELLARS, INC.

to comply with the requirements of law, and confirms payment of all required fees. Therefore, it is ORDERED that this

CERTIFICATE OF INCORPORATION

be issued and admitted to record with the articles of incorporation in the Office of the Clerk of the Commission, effective April 5, 2002.

The corporation is granted the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law.

STATE CORPORATION COMMISSION
By
	Commissioner

I Certify the Following from the Records of the Commission:

The foregoing is a true copy of the articles of organization filed in this office by Best Cellars VA Inc.

Nothing more is hereby certified.

Signed and Sealed at Richmond on this Date:

December 14, 2010

/s/ Joel H. Peck        

Joel H. Peck, Clerk of the Commission

CIS0505

EX-99.T3A.14

PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF FFBEV, LTD FF AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE THIRTEENTH DAY OF OCTOBER, A.D. 1983, AT 10 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, DAY OF MAY, AD 1999, AT 9 O’CLOCK AM

CERTIFICATE OF CHANGE OF REGISTERED AGENT, DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “BEV, LTD. ”.

2019025 8100H	/s/ Jeffrey W. Bullock
101175301	Jeffrey W. Bullock, Secretary of State AUTHENTICATION: 8418710
You may verify this certificate online at corp.delaware. gov/authver.shtml	DATE: 12-10-10

CERTIFICATE OF INCORPORATION

OF

BEV, LTD.

* * * * *

1. The name of the corporation is

BEV, LTD.

2. The address of its registered office in the. State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

4. The total number of shares of stock which the corporation shall have authority to issue is five thousand (5,000) and the par value of each of such shares is One Hundred Dollars ($100.00) amounting in the aggregate to Five Hundred Thousand Dollars ($500,000.00).

5A. The name and mailing address of each incorporator is as follows:

NAME	MAILING ADDRESS
D. A. Hampton	100 West Tenth Street Wilmington, Delaware 19801
S. N. Chapman	100 West Tenth Street, Wilmington, Delaware 19801
S. K. Zimmerman	100 West Tenth Street, Wilmington, Delaware 19801

5B. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows:

NAME	MAILING ADDRESS
Paul Borman	P. O. Box 446 Detroit, MI 48232
Thomas V. Angott	P. O. Box 446 Detroit, MI 48232

6. The corporation is to have perpetual existence.

7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:

To make, alter or repeal the by-laws of the corporation.

To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.

To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.

2

By a majority of the whole board, to designate one or more committee, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The by-laws may provide that in the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, or in the by-laws of the corporation, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or by-laws, expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

3

When and as authorized by the stockholders in accordance with statute, to sell, lease or exchange all or substantially all of the property and assets of the corporation, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.

8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide.

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation.

9. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

WE, THE UNDERSIGNED, being each of the incorporation hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this l3th day of October, 1983.

/s/ D.A. Hampton

D.A. Hampton

/s/ S.M. Chapman

S.M. Chapman

/s/ S.K. Zimmerman

S.K. Zimmerman

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 05/12/1999

991190350 – 2019025

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED

OFFICE AND REGISTERED AGENT

OF

BEV, LTD.

The Board of Directors of:

BEV, LTD.

a Corporation of the State of Delaware, on this 30th day of April , A.D. 1999, does hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is:

1013 Centre Road, in the City of Wilmington, in the County of New Castle, Delaware, 19805.

The name of the Registered Agent therein and in charge thereof upon whom process against the Corporation may be served, is: CORPORATION SERVICE COMPANY.

BEV, LTD

a Corporation of the State of Delaware, does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said corporation has caused this Certificate to be signed by Robert G. Ulrich                    , this 30th day of April A.D. 1999.

Authorized Officer

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003

030016280 – 2019025

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

BEV, LTD.

BEV, LTD., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: BEV, LTD.

TWO:	That a meeting of the Board of Directors of BEV, LTD., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 4OO Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is; XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	/s/ JOSE MOJICA
By:	Jose Mojica
	President

PAGE 1			101175310
		SECRETARY OF STATE DIVISION OF CORPORATIONS P.O. BOX 898 DOVER, DELAWARE 19903

9382750 REGISTERED AGENT SOLUTIONS, INC. 32 W. LOOCKERMAN ST. SUITE 201		12-10-2010
DOVER	DE 19904
ATTN: SEF/50

	DESCRIPTION			AMOUNT
BORMAN’S, INC 0707723 8100H Certified - History
	0102S       Incorp Delaware Sto 0250S       Merger; Survivor 0240          Amendment; Domestic 0240          Amendment; Domestic 0240S       Amendment; Stock 0250S       Merger; Survivor 0133          Change of Agent 0133          Change of Agent 0250S       Merger; Survivor 0250S       Merger; Survivor	03-28-1969 07-01 -1969 06-28-1976 12-16-1986 06-01 -1987 02-24-1989 02-26-1993 01 -09-2003 10-14-2003 01 -06-2004	6 14 5 5 20 11 1 2 3 1		62 00 78 00 60.00 60.00 90 00 72 00 52.00 54.00 56 00 52 00
		Certification Fee				500.00
		Document Page Fee				136.00
		FILING TOTAL				636 00
		CHARGED TO ACCOUNT				636.00

EX-99.T3A.15

Exhibit A-15

PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “BORMAN’S, INC. “ AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-EIGHTH DAY OF MARCH, A.D. 1969, AT 10 O’CLOCK A.M.

CERTIFICATE OF AGREEMENT OF MERGER, CHANGING ITS NAME FROM “BORMAN FOOD STORES, INC.” TO “BORMAN’S, INC.”, FILED THE FIRST DAY OF JULY, A.D. 1969, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-EIGHTH DAY OF JUNE, A.D. 1976, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE SIXTEENTH DAY OF DECEMBER, A.D. 1986, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE FIRST DAY OF JUNE, A.D. 1987, AT 10 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-FOURTH DAY OF FEBRUARY, A.D. 1989, AT 1:20 O’CLOCK P.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SIXTH DAY OF FEBRUARY, A.D. 1993, AT 9 O’CLOCK A.M.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
0707723 8100H	AUTHENTICATION: 8418832
101175310	DATE: 12-10-10
you may verify this certificate online at corp. delaware. gov/authver, shtml

PAGE 2

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE FOURTEENTH DAY OF OCTOBER, A.D. 2003, AT 1:01 O’CLOCK P.M.

CERTIFICATE OF MERGER, FILED THE SIXTH DAY OF JANUARY, A.D. 2004, AT 5:22 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “BORMAN’S, INC.”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
0707723 8100H	AUTHENTICATION: 8418832
101175310	DATE: 12-10-10
you may verify this certificate online at corp. delaware. gov/authver. shtml

CERTIFICATE OF INCORPORATION

OF

BORMAN FOOD STORES, INC.

FILED

MAR 28, 1969

SECRETARY OF STATE

CERTIFICATE OF INCORPORATION

OF

BORMAN FOOD STORES, INC.

FIRST: The name of the corporation is:

BORMAN FOOD STORES, INC.

SECOND: The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Deleware.

FOURTH: The total number of shares which the corporation shall have authority to issue is NINTY THOUSAND ONE HUNDRED (90,100) shares, of which ONE HUNDRED (100) shares of the par value of ONE HUNDRED DOLLARS ($100.00) each shall be Preferred Stock and NINTY THOUSAND (90,000) shares of the par value of ONE DOLLAR ($1.00) each shall be Common Stock.

1. Preferred Stock

The Preferred Stock may be issued from time to time in one or more series with such distinctive serial designations and (a) may have such voting powers, full or limited, or no voting powers; (b) may be subject to redemption at such time or times and at such price or prices; (c) shall be entitled to receive dividends (which may be cumulative or noncumulative) at such rate, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock; (d) shall be entitled to

such rights upon the dissolution of, or upon any distribution of the assets of, the corporation; (e) may be made convertible into, or exchangeable for, shares of any other class or classes or of any series thereof of the corporation, at such price or prices or at such rates of exchange, and with such adjustments; and (f) shall have such other relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the issue of such Preferred Stock from time to time adopted by the board of directors pursuant to authority so to do which is hereby vested in the board.

2. Common Stock

(a) The rights of the holders of Common Stock to receive dividends or to share in the distribution of assets in the event of liquidation, dissolution or winding up of the affairs of the corporation, shall be subject to the preferences and other rights of the Preferred Stock fixed in the resolution or resolutions of the board of directors providing for the issue of such Preferred Stock. (b) Subject to the provisions for cumulative voting as hereinafter set forth, the holders of Common Stock shall be entitled to one vote for each share of Common Stock held by them of record at the time for determining the holders thereof entitled to vote.

3. Cumulative Voting

At all elections of directors of the corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for such provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit.

4. Increase or Decrease of Shares

The number of authorized shares of any class of stock of the corporation, including but without limitation the Preferred Stock and the Common Stock, may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote.

FIFTH: The name and mailing address of each incorporator is as follows:

Name	Mailing Address
B.J. Consono	100 West Tenth Street Wilmington, Delaware

- 2 -

F. J. Obara, Jr.	100 West Tenth Street Wilmington, Delaware
A. D. Grier	100 West Tenth Street Wilmington, Delaware

SIXTH: The corporation is to have perpetual existence.

SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:

To make, alter or repeal the by-laws of the corporation.

To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.

To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.

By a majority of the whole board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, the by-laws may provide that in the absence or disqualification of any member of such committee, or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member.

When and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders’ meeting duly called upon such notice as is required by statute, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding, to sell, lease or exchange all or substantially all of the property and assets of the corporation,

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including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation,

EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

NINTH: Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide.

TENTH: Any corporate action upon which a vote of stockholders is required or permitted under the General Corporation Law of Delaware or under this Certificate of Incorporation may be taken without a meeting or vote of stockholders with the written consent of stockholders having not less than a majority of all of the stock entitled to vote upon the action if a meeting were held;

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provided that in no case shall the written consent be by holders having less than the minimum percent of the total vote required by statute for the proposed corporate action and provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting by less than unanimous written consent.

ELEVENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true and accordingly have hereunto set our hands this 28th day of March, 1969.

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STATE OF DELAWARE	)
	)	SS.
COUNTY OF NEW CASTLE	)

BE IT REMEMBERED that on this 28th day of March, 1969, personally came before me, a Notary Public for the State of Delaware, B. J. Consono, P. J. Obara, Jr. and A. D. Grier

all of the parties to the foregoing certificate of incorporation, known to me personally to be such, and severally acknowledged the said certificate to be the act and deed of the signers respectively and that the facts stated therein are true.

GIVEN under my hand and seal of office the day and year aforesaid.

Notary Public

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CERTIFICATE OF AMENDMENT

OF

BORMAN’S, INC.

FILED

June 23, 1978

SECRETARY OF STATE

CERTIFICATE OF AMENDMENTS

OF

CERTIFICATE OF INCORPORATION

BORMAN’S, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: That at a meeting of the Board of Directors of Borman’s, Inc, held on February 19, 1976 resolutions were duly adopted setting forth the proposed amendments to the Certificate of Incorporation of said corporation, declaring said amendments to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolutions setting forth the proposed amendments are as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be amended by adding a new Article thereof numbered “Article Twelfth” so that said Article shall be and read as follows:

“The number of directors of the company shall be such as from time to time shall be fixed by or in the manner provided in the By-Laws but shall not be less than three. At the annual election of directors to be held at the annual meeting of stockholders in 1976, the directors shall be divided into three classes, as nearly equal in number as possible: the term of office of the first class to expire at the first annual meeting of stockholders after their election; the term of office of the second class to expire at the second annual meeting of stockholders after their election; and, the term of office of the third class to expire at the third annual meeting after their election. At each annual meeting of stockholders after 1976, the successors to the class of directors whose terms expire at the time of such annual meeting shall be elected to hold office for a term of three years and until their successors are duly elected and have qualified, so that the term of office of one class of directors shall expire in each year.

Any director may be removed from office as a director at any time, but only for cause, by the affirmative vote of stockholders of record holding a majority of the outstanding shares of stock of the

Corporation entitled to vote in elections of directors given at a meeting of the stockholders called for that purpose.”

RESOLVED, that the Certificate of Incorporation of this corporation be amended by adding a new Article thereof numbered “Article Thirteenth” so that said Article shall be and read as follows:

“(A) notwithstanding the provisions of this Certificate of Incorporation except as set forth in Paragraph (B) of this Article, the affirmative vote or consent of the holders of not less than three-fourths of the outstanding shares of stock of this corporation (the “Corporation”) entitled to vote in elections of directors, voting for purposes of this Article as one class, shall be required:

(1) to adopt any agreement for or to approve, the merger or consolidation of the Corporation or any subsidiary (as hereinafter defined) with or Into any other person (as hereinafter defined).

(2) to authorize any sale, lease, transfer, exchange, mortgage, pledge or other disposition to any other person of all or substantially all of the assets of the corporation or any subsidiary, or

(3) to authorize the issuance or transfer by the Corporation or any subsidiary of any voting securities of the Corporation or any subsidiary in exchange or payment for the securities or assets of any other person, if such authorization is otherwise required by law or by any agreement between the Corporation and any national securities exchange or by any other agreement to which the Corporation or any subsidiary is a party,

if, in any such case, as of the record date for the determination of stockholders entitled to notice thereof and to vote thereon or consent thereto, such other person is, or at any time within the preceding twelve months has been, the beneficial owner (as hereinafter defined) of 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors. If such other person is not, and has not been, such a 5 percent beneficial owner, the provisions of this Paragraph (A) shall not apply, and the provisions of Delaware law shall apply.

(3) The provisions of Paragraph (A) of this Article shall not apply, and the provisions of Delaware ‘ law shall apply, to (1) any transaction described therein if the Board of Directors by resolution shall have approved a memorandum of understanding with such other person setting forth the principal terns of such transaction and such transaction is substantially

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consistent therewith, provided that a majority of those members of the Board of Directors voting in favor of such resolution were duly elected and acting members of the Board of Directors prior to the time such other person became the beneficial owner of 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors; or (2) any transaction described therein if such other person is a corporation of which a majority of the outstanding shares of all classes of stock entitled to vote in elections of directors is owned of record or beneficially by the Corporation or its subsidiaries.

(C) The affirmative vote or consent of the holders of not less than three-fourths of the outstanding shares of stock of the Corporation entitled to vote in elections of directors, voting for purpose a of this Article as one class, shall be required for the adoption of any plan for the dissolution of the Corporation if the Board of Directors shall not have, by resolution, recommended to the stockholders the adoption of such plan for dissolution of the Corporation. If the Board of Directors shall have so recommended to the stockholders such plan for dissolution of the Corporation, the provisions of Delaware law shall apply.

(D) For purposes of this Article,

(1) any specified person shall be deemed to be the “beneficial owner” of shares of stock of the Corporation (a) which such specified person or any of its affiliates or associates (as such terms are hereinafter defined) owns, directly or indirectly, whether of record or not, (b) which such specified person or any of its affiliates or associates has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (c) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clauses (a) and (b) above), by any other person with which such specified person or any of its affiliates or associates has any agreement, arrangement, or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Corporation;

(2) a “subsidiary” is any corporation more than 49 percent of the voting securities of which are owned, directly or indirectly, by the Corporation;

(3) a “person” is any individual, corporation or other entity;

(4) an “affiliate” of a specified person is any person that directly, or Indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the specified person; and

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(5) an “associate” of a specified person is (a) any person of which such specified person is an officer or partner or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity securities, (b) any trust or other estate in which such specified person has a substantial beneficial interest or as to which, such specified person serves as trustee or in a similar capacity, or (c) any relative or spouse of such specified person, or any relative of such spouse, who has the same home as such specified person or who is a director or officer of such specified person or any corporation which controls or is controlled by such specified person.

(E) For purposes of determining whether a person owns beneficially 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors, the outstanding shares of stock of the Corporation shall include shares deemed owned through application of clauses (a), (b) or (c) of Paragraph (D)(l) above but shall not, include any other shares which may be issuable pursuant to any agreement or upon exercise of conversion rights, warrants or options, or otherwise.

(F) The Board of Directors shall have the power and duty to determine, for purposes of this Article, on the basis of Information known to such Board,

(1) whether any person referred to in paragraph (A) of this Article owns beneficially 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors; and

(2) whether a proposed transaction is substantially consistent with any memorandum of understanding of the character referred to in paragraph (B) of this Article.

Any such determination shall be conclusive and binding for all purposes of this Article.”

RESOLVED, that the Certificate of Incorporation of this Corporation be amended by changing the Article thereof numbered “Article Tenth” so that, as amended said Article shall be and read as follows:

“Any corporate action upon which a vote of stockholders is required or permitted under the General Corporation Law of Delaware or under this Certificate of Incorporation may be taken without a meeting or vote of stockholders with the written consent of stockholders having not less than the minimum percent of the total vote required by this Certificate of Incorporation for the proposed corporate action if a meeting were held or the total vote

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by statute if the Certificate of Incorporation does not specify the required vote provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting by less than unanimous written consent.

Notwithstanding the provisions of this Certificate of Incorporation and any provisions for the By-Laws of the Corporation, no amendment to this Certificate of Incorporation shall amend, modify cr repeal any or all the provisions of Article Twelfth, Article Thirteenth or this Article Tenth of this Certificate of incorporation, and the stockholders of the Corporation shall not have the right to amend, modify or repeal any or all provisions of the By-Laws of the Corporation, unless so adopted by the affirmative vote or consent of the holders of not less than three-fourths of the outstanding shares of stock of the Corporation entitled to vote in elections of directors, considered for purposes of this Article as a class; provided, however, that in the event, the Board of Directors of the Corporation shall, by resolution adopted by a majority of the then directors in office, recommend to the stockholders the adoption of any such amendment, the stockholders of record holding a majority of the outstanding shares of stock of the Corporation entitled to vote in elections of directors may amend, modify or repeal any or all of such provisions.”

SECOND: That thereafter, pursuant to resolution of its Board of Directors, the annual meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendments.

THIRD: That said amendments were duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said Borman’s, Inc. has caused this Certificate to be signed by Paul Borman, its President and attested by Lawrence Kron, Its Secretary- this 17th day of June, 1975.

	BORMAN’S, INC.
	a Delaware corporation
ATTEST:
	By	/s/ Paul Borman
		Paul Borman, President

By	/s/ Lawrence Kron
	Lawrence Kron, Secretary

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CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

BORMAN’S, INC.

BORMAN’S INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST, that at a meeting of the Board of Directors of Borman’s, Inc., held on March 24, 1987, resolutions were adopted setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declaring said amendment advisable and directing that the proposed amendment be considered at the annual meeting of stockholders of the Corporation. The resolution setting forth the proposed amendment is as follows:

RESOLVED, that subject to stockholder approval thereof, Articles FOURTH, TENTH, TWELFTH and THIRTEENTH of the Company’s Certificate of Incorporation, be amended to read as follows:

FOURTH: The total number of shares of all classes of shock which the Corporation shall have authority to issue is Eighteen Million (18,000,000) shares, of which (i) Sixteen Million (16,000,000) shares of a par value of $1.00 per share are to be common stock, which common stock shall be divided into two classes, Ten Million (10,000,000) shares of which are to be denominated Common Stock (hereinafter called “Common Stock”), and Six Million (6,000,000) shares of which are to be denominated Class B Stock (hereinafter called “Class 8 Stock”), and (ii) Two Million (2,000,000) shares of a par value of $1.00 per share are to be Preferred Stock (hereinafter called “Preferred Stock”).

Shares of stock of the Corporation of any class hereby or hereafter authorized or created may be issued by the Corporation from time to time for such consideration, but no less than the par value thereof, permitted by law as may be fixed from time to time by the Board of Directors. Said Board shall have authority as provided by statute to determine that only a part of the consideration which shall be received by the Corporation for any of the shares of its stock which it shall issue from time to time shall be capital.

SECTION A

COMMON STOCK

1. Voting Rights.

(a) Subject to the provisions for cumulative voting as hereinafter set forth, each share of Common Stock shall have one (1) vote and the holders thereof shall have the right to vote together with the Class B Stock as one class (except to the extent otherwise provided by law or this Certificate of Incorporation) on all matters subject to vote at any meeting of the stockholders of the Corporation.

(b) At all elections of directors of the Corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for such pro vision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit.

(c) The holders of Common Stock shall be entitled to vote as a separate class with respect to any proposed amendment to this

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Certificate of Incorporation if such amendment would increase or decrease the par value of the Common Stock or alter or change the powers, preferences or special rights of the shares of Common Stock or Class B Stock so as to affect the holders of Common Stock adversely.

2. Dividends and Distributions. After accrued dividends, if any, upon the Preferred Stock of all series then outstanding shall have been paid, or declared and set apart for payment, and after payment of any amounts required to be applied or set aside in respect of any sinking fund for each series of Preferred Stock then outstanding and entitled to the benefit of a sinking fund shall have been made or provided for, then, and not otherwise (except for dividends in shares of Common Stock, which may be declared and paid at any time), the holders of Common Stock shall be entitled to receive such dividends as may from time to time be declared by the Board of Directors, subject to the following rights and restrictions:

(a) No cash dividend shall be declared or paid on the Common Stock unless a cash dividend in a per share amount equal to 90.91% of the per share amount to be paid on the Common Stock is simultaneously declared and paid on the Class B Stock.

(b) No distribution of property shall be declared or paid on the Common Stock unless an equal per share distribution of property in like property is simultaneously declared and paid on the Class B Stock.

(c) Stock dividends declared on the Common Stock shall be payable solely in shares of Common Stock. No stock dividend shall be declared or paid on the Common Stock unless a stock dividend payable in shares of Class B Stock, proportionately the same on a per share basis, is simultaneously declared and paid on the Class B Stock.

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3. Purchases. Subject to any applicable provisions of this ARTICLE FOURTH and to any limitations provided for in connection with any dividends or sinking fund for any series of the Preferred Stock or any other terms of such series, the Corporation may at any time or from time to time purchase or otherwise acquire shares of its Common Stock in any manner now or hereafter permitted by law, publicly or privately, or pursuant to any agreement.

4. Subdivision or Combination of Common Stock. The shares of Common Stock shall not be subdivided by a stock split, reclassification or otherwise or combined by reverse stock split, reclassification or otherwise unless, at the same time, the shares of Class B Stock are proportionately on the same per share basis so subdivided or combined.

5. Distribution of Assets. In the event the Corporation shall be liquidated, dissolved or wound up pursuant to the applicable provisions of the Delaware General Corporation Law, whether voluntarily or involuntarily, after there shall have been paid to or set aside for the holders of the Preferred Stock of all series then outstanding the full preferential amounts to which they are respectively entitled under this ARTICLE FOURTH, the holders of the Common Stock shall be entitled to share ratably with the holders of the Class B Stock of the Corporation as a single class in the remaining net assets of the Corporation, that is, an equal amount of net assets shall be paid or set aside for each share of Common Stock and Class B Stock.

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SECTION B

CLASS B STOCK

1. Voting Rights.

(a) Subject to the provisions for cumulative voting as hereinafter set forth, each share of Class B Stock shall have ten (10) votes and the holders thereof shall have the right to vote together with the Common Stock as one class (except to the extent otherwise provided by law or this Certificate of Incorporation) on all matters subject to vote at any meeting of the stockholders of the Corporation; provided, however, that each share of Class B Stock shall have only one (1) vote with respect to amendments to ARTICLE FOURTEENTH of this Certificate of Incorporation.

(b) At all elections of directors of the Corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for such provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit.

(c) The holders of Class B Stock shall be entitled to vote as a separate class with, respect to any proposed amendment to this Certificate of Incorporation if such amendment would increase or decrease the par value of the Class B Stock or alter or change the powers, preferences or special rights of shares of Common Stock or Class B Stock so as to affect the holders of Class B Stock adversely.

2. Dividends and Distributions. After accrued dividends, if any, upon the Preferred Stock of all series then outstanding shall have been paid, or declared and set

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apart for payment, and after payment of any amounts required to be applied or set aside in respect of any sinking fund for each series of Preferred Stock then outstanding and entitled to the benefit of a sinking fund shall have been made or provided for, then, and not otherwise (except for dividends in shares of Class B Stock, which may be declared and paid at any time), the holders of Class F Stock shall be entitled to receive such dividends as may from time to time be declared by the Board of Directors, subject to the following rights and restrictions:

(a) No cash dividend shall be declared or paid on the Class B Stock unless a cash dividend in a per share amount equal to 110% of the amount to be paid on the Class B Stock is simultaneously declared and paid on the Common Stock.

(b) No distribution of property shall be declared or paid on the Class B Stock unless an equal per share distribution of property in like property is simultaneously declared and paid on the Common Stock.

(c) Stock dividends declared on the Class B Stock shall be payable solely in shares of Class B Stock. No stock dividend shall be declared or paid on the Class B Stock unless a stock dividend payable in shares of Common Stock, proportionately the same on a per share basis, is simultaneously declared and paid on the Common Stock.

3. Registration and Restrictions on Sale and Transfer.

(a) Shares of Class B Stock shall be registered in the name(s) of the beneficial owner(s) thereof (as hereafter defined) and not in “street” or “nominee” name; provided, however, certificates representing shares of Class B Stock issued in an exchange offer by

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the Corporation for the Corporation’s then outstanding Common Stock may be registered in the same name and manner as the certificates representing the shares of Common Stock in exchange for which the shares of Class B Stock were issued. For the purposes of this paragraph 3, the term “beneficial owner(s)” shall mean the person or persons who, or the entity or entities which, possess the power to dispose, or to direct the disposition, of such shares. Certificates representing Class B Stock shall bear a legend noting or setting forth the provisions contained in paragraphs 3 and 4 of this Section B.

(b) Shares of Class B Stock shall not be sold, assigned, transferred, pledged or otherwise disposed of except as provided in subparagraphs (c) and (d) of this paragraph 3.

(c) No person may transfer, and the Corporation shall not register the transfer of, shares of Class B Stock, whether by sale, assignment, gift, bequest, appointment or otherwise, except to a “Permitted Transferee” defined as follows:

(i) In the case of a Class B holder who is a natural person, “Permitted Transferee” means (A) the spouse of such Class B holder, (B) a lineal descendant of a grandparent of such Class B holder or a spouse of any such lineal descendant, (C) an organization established by such Class B holder, such Class B holder’s spouse, a lineal descendant of a grandparent of such Class B holder, or a spouse of any such lineal descendant, contributions to which are deductible for federal income, estate or gift tax purposes (hereinafter called a “Charitable Organization”), (D) the trustee of a trust (including a voting trust) for the benefit of one or more Class B holders, other lineal descendants of a grandparent of such Class B holder, the

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spouse of such Class B holder, the spouses of such other lineal descendants and/or a Charitable Organization and for the benefit of no other person (E) the estate of such deceased Class B holder or the estate of such bankrupt or insolvent Class B holder, and (F) a corporation all the outstanding capital stock of which is owned by, or a partnership all the partners of which are, one or more of such Class B holders, other lineal descendants of a grandparent of such Class B holder or a spouse of any such lineal descendant, and/or the spouse of such Class B holder; provided that if any share of capital stock of such a corporation (or of any survivor of a merger or consolidation of such a corporation), or any partnership interest in such a partnership, is acquired by any person who is not within such class of persons, the Class B Stock then held by such corporation or partnership shall automatically convert to Common Stock, and stock certificates formerly representing such shares of Class B Stock shall be deemed to represent a like number of shares of Common Stock.

(ii) In the case of a trustee of a trust, “Permitted Transferee” means (A) the person who established such trust and (B) a Permitted Transferee of such person, or, if the trust was irrevocable on the record date for an exchange offer by the Corporation in which shares of Class B Stock were issued, “Permitted Transferee” means any beneficiary of the trust or any “Permitted Transferee” of such person.

(iii) In the case of a record (but not beneficial) owner of the Class B Stock as nominee for the person who was the beneficial owner thereof on the record date for an exchange offer by the Corporation in which shares of Class B Stock were issued, “Permitted

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Transferee” means such beneficial owner and a Permitted Transferee of such beneficial owner.

(iv) In the case of a partnership, “Permitted Transferee” means any partner of such partnership or any “Permitted Transferee” of such partner.

(v) In the case of a corporation, “Permitted Transferee” means any stockholder of such corporation receiving shares of Class B Stock through a dividend or through a distribution made upon liquidation of such corporation or any “Permitted Transferee” of such stockholder or the survivor of a merger or consolidation of such corporation.

(vi) in the case of the estate of a deceased Class B holder, or the estate of a bankrupt or insolvent Class B holder, “Permitted Transferee” means a Permitted Transferee of such deceased, bankrupt or insolvent Class B holder.

(d) Shares of Class B Stock may be pledged by the beneficial owner thereof, provided such shares shall not be transferred to or registered in the name of the pledgee and shall remain subject to the restrictions of this paragraph 3. In the event of foreclosure or other similar action by the pledgee, such pledged shares of Class B Stock may, at the option of the pledgee, be sold, transferred or otherwise disposed of on behalf of the beneficial owner only to a Permitted Transferee of such beneficial owner as specified in subparagraph (c) of this paragraph 3 or be converted into shares of Common Stock in accordance with the provisions of paragraph 4 of this Section B.

(e) The votes pertaining to any share of Class B Stock or any proxy related to such votes may not be sold or otherwise transferred, except to a Permitted Transferee, in consideration of any sum of money or anything of value.

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4. Conversion of Shares of Class B Stock into Shares of Common Stock.

(a) At the option of the holder, all or any portion of the shares of Class B Stock owned by such holder may be converted into shares of Common Stock on a share-for-share basis on and subject to the following terms and conditions. Any such conversion shall be deemed to be effective as of the close of business on the date of receipt by the Corporation or its transfer agent of the following documents: (i) a proper written notice of conversion by the holder of shares of Class B Stock, addressed to the principal office of the Corporation or its transfer agent, designating the number of shares of Class B Stock to be converted into shares of Common Stock and (ii) the stock certificate or certificates representing the number of shares of Class B Stock to be so converted into shares of Common Stock, duly endorsed for transfer or accompanied by appropriate stock powers, with signatures guaranteed by a national banking association or a member firm of the New York Stock Exchange.

(b) In the event a holder of shares of Class B Stock sells, assigns, transfers, pledges or otherwise disposes of such shares contrary to the provisions of paragraph 3 of this Section B, then such sale, assignment, transfer, pledge or other disposition shall be deemed (i) an election by the holder thereof to first convert such shares of Class B Stock into shares or Common Stock on a share-for-share basis, and (ii) a sale, assignment, transfer, pledge or other disposition of such shares of Common Stock. Such conversion shall be deemed effective as of the time of such purported sale, assignment, transfer, pledge or other disposition, and, upon presentation to the Corporation’s transfer agent of the certificate or certificates representing such shares of Class B Stock, a certificate or certificates representing an equal number of shares of Common Stock shall be issued in the name of the transferee or pledgee.

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(c) At such time as the number of outstanding shares of Class B Stock as reflected on the stock transfer books of the Corporation, at any time after consummation of the initial offer by the Corporation to exchange shares of Common Stock into Class B Stock, shall be less than five percent (5%) of the aggregate number of issued and outstanding shares of Common Stock and Class B Stock, all of the then outstanding Class B Stock will convert automatically into Common Stock on a share-for-share basis.

(d) In addition, the Board of Directors may declare a conversion of outstanding Class B Stock into Common Stock if it determines in its sole discretion that there has been a material adverse change in the liquidity, marketability or market value of the Common Stock due to a delisting by the New York Stock Exchange, another national securities exchange or NASDAQ/NMS of the Common Stock or due to requirements under applicable state securities or other laws. The Board of Directors may also declare a conversion of the outstanding Class B Stock into Common Stock in connection with any merger or consolidation of the Company or any sale or lease of all or substantially all of the Company’s assets or the liquidation or dissolution of the Company.

(e) All shares of Class B Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding, and all rights with respect to such shares, except the right of the holders thereof to receive shares of Common Stock in exchange therefor, shall cease. All shares of Class B Stock surrendered for conversion or purchased by the Company pursuant to the provisions of this paragraph 4 or paragraph 5 of this Section B shall be cancelled and shall not be reissued.

5. Purchases. Subject to any applicable provisions of this ARTICLE FOURTH and to any limitations provided for in connection with any dividends or sinking fund for any series of the Preferred Stock or any other terms of such series, the Corporation

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may at any time or from time to time purchase or otherwise acquire shares of its Class B Stock in any manner now or hereafter permitted by law, publicly or privately, or pursuant to any agreement.

6. Subdivison or Combination of Class B Stock. The shares of Class B Stock shall not be subdivided by a stock split, reclassification or otherwise or combined by reverse stock split, reclassification or otherwise unless, at the same time, the shares of Common Stock are proportionately on the same per share basis so subdivided or combined.

7. Distribution of Assets. In the event the Corporation shall be liquidated, dissolved or wound up pursuant to the applicable provisions of the Delaware General Corporation Law, whether voluntarily or involuntarily, after there shall have been paid to or set aside for the holders of Preferred Stock of all series then outstanding the full preferential amounts to which they are respectively entitled under this ARTICLE FOURTH, the holders of the Class B Stock shall be entitled to share ratably with the holders of the Common Stock of the Corporation as a single class in the remaining net assets of the Corporation, that is, an equal amount of net assets shall be paid or set aside for each share of Common Stock and Class B Stock.

8. Limitation on Issuance. Shares of Class B Stock shall be issued by the Corporation only (a) in connection with an offer by the Corporation to all holders of the Corporation’s Common Stock to exchange then outstanding shares of Common Stock into shares of Class B Stock; (b) in payment of a stock dividend on then outstanding shares of Class B Stock as provided in paragraph 2(c) of this Section B; and (c) in connection with a stock split, reclassification or other subdivision of then outstanding shares of Class B Stock.

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SECTION C

PREFERRED STOCK

The Preferred Stock may be issued from time to time in one or more series with such distinctive serial designations and (1) may have such voting powers, full or limited, or no voting powers; (2) may be subject to redemption at such time or times and at such price or prices; (3) shall be entitled to receive dividends (which may be cumulative or noncumulative) at such rate, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock; (4) shall be entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; (5) may be made convertible into, or exchangeable for, shares of any other class or classes or of any series thereof of the Corporation, at such price or prices or at such rates of exchange, and with such adjustments; and (6) shall have such other relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the issuance of such Preferred Stock from time to time adopted by the Board of Directors pursuant to authority so to do which is hereby vested in the Board.

SECTION D

MISCELLANEOUS

1. Preemptive Rights. No holder of any share of any class of stock of the Corporation shall have any preemptive right to subscribe for or acquire additional shares of stock of any class of the Corporation or warrants or options to purchase, or securities convertible into, shares of any class of stock of the Corporation.

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TENTH: Any corporate action upon which a vote of stockholders is required or permitted under the General Corporation Law of Delaware or under this Certificate of Incorporation may be taken without a meeting or vote of stockholders with the written consent of stockholders having not less than the minimum percent of the total vote required by this Certificate of Incorporation for the proposed corporate action if a meeting were held or the total vote required by statute if the Certificate of Incorporation does not specify the required vote provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting by less than unanimous written consent.

Notwithstanding the provisions of this Certificate of Incorporation and any provisions for the By-Laws of the Corporation, no amendment to this Certificate of Incorporation shall amend, modify or repeal any or all of the provisions of ARTICLE TWELFTH, ARTICLE THIRTEENTH or this ARTICLE TENTH of this Certificate of Incorporation, and the stockholders of the Corporation shall not have the right to amend, modify or repeal any or all provisions of the By-Laws of the Corporation, unless so adopted by the affirmative vote or consent of the holders of not less than three-fourths of the outstanding voting power of the Corporation entitled to vote in elections of directors, considered for purposes of this Article as a class; provided, however, that in the event the Board of Directors of the Corporation shall, by resolution adopted by a majority of the then directors in office, recommend to the stockholders the adoption of any such amendment, the stockholders of record holding a majority of the outstanding voting power of the Corporation entitled to vote in elections of directors may amend, modify or repeal any or all of such provisions.

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TWELFTH: The number of directors of the Company shall be such as from time to time shall be fixed by or in the manner provided in the By-Laws but shall not be less than three. At the annual election of directors to be held at the annual meeting of stockholders in 1976, the directors shall be divided into three classes, as nearly equal in number as possible: the term of office of the first class to expire at the first annual meeting of stockholders after their election; the term of office of the second class to expire at the second annual meeting of stockholders after their election; and, the term of office of the third class to expire at the third annual meeting of stockholders after their election. At each annual meeting of stockholders after 1976, the successors to the class of directors whose terms expire at the time of such annual meeting shall be elected to hold office for a term of three years and until their successors are duly elected and shall have qualified, so that the term of office of one class of directors shall expire in each year.

Any director may be removed from office as a director at any time, but only for cause, by the affirmative vote of stockholders of record holding a majority of the outstanding voting power of the Corporation entitled to vote in elections of directors given at a meeting of the stockholders called for that purpose.

THIRTEENTH: (A) Notwithstanding the provisions of this Certificate of Incorporation, except as set forth in Paragraph (B) of this Article, the affirmative vote or consent of the holders of not less than three-fourths of the outstanding voting power of the Corporation entitled to vote in elections of directors, voting for purposes of this Article as one class, shall be required:

(1) to adopt any agreement for, or to approve, the merger or consolidation of the Corporation or any subsidiary (as hereinafter defined) with or into any other person (as hereinafter defined),

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(2) to authorize any sale, lease, transfer, exchange, mortgage, pledge or other disposition to any other person of all or substantially all of the assets of the Corporation or any subsidiary, or

(3) to authorize the issuance or transfer by the Corporation or any subsidiary of any voting securities of the Corporation or any subsidiary in exchange or payment for the securities or assets of any other person, if such authorization is otherwise required by law or by any agreement between the Corporation and any national securities exchange or by any other agreement to which the Corporation or any subsidiary is a party,

if, in any such case, as of the record date for the determination of stockholders entitled to notice thereof and to vote thereon or consent thereto, such other person is, or at any time within the preceding twelve months has been, the beneficial owner (as hereinafter defined) of 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors. If such other person is not, and has not been, such a 5 percent beneficial owner, the provisions of this Paragraph (A) shall not apply, and the provisions of Delaware law shall apply.

(B) The provisions of Paragraph (A) of this Article shall not apply, and the provisions of Delaware law shall apply, to (1) any transaction described therein if the Board of Directors by resolution shall have approved a memorandum of understanding with such other person setting forth the principal terms of such transaction and such transaction is substantially consistent therewith, provided that a majority of those members of the Board of Directors voting in

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favor of such resolution were duly elected and acting members of the Board of Directors prior to the time such other person became the beneficial owner of 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors; or (2) any transaction described therein if such other person is a corporation of which a majority of the outstanding shares of all classes of stock entitled to vote in elections of directors is owned of record or beneficially by the Corporation or its subsidiaries.

(C) The affirmative vote or consent of the holders of not less than three-fourths of the outstanding voting power of the Corporation entitled to vote in elections of directors, voting for purposes of this Article as one class, shall be required for the adoption of any plan for the dissolution of the Corporation if the Board of Directors shall not have, by resolution, recommended to the stockholders the adoption of such plan for dissolution of the Corporation. If the Board of Directors shall have so recommended to the stockholders such plan for dissolution of the Corporation, the provisions of Delaware law shall apply.

(D) For purposes of this Article,

(1) any specified person shall be deemed to be the “beneficial owner” of shares of stock of the-Corporation (a) which such specified person or any of its affiliates or associates (as such terms are hereinafter defined) owns, directly or indirectly, whether of record or not, (b) which such specified person or any of its affiliates or associates has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (c) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clauses (a) and (b) above), by any other person

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with which such specified person or any of its affiliates or associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of stock of the Corporation;

(2) a “subsidiary” is any corporation more than 49 percent of the voting securities of which are owned, directly or indirectly, by the Corporation;

(3) a “person” is any individual, corporation or other entity;

(4) an “affiliate” of a specified person is any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the specified person; and

(5) an “associate” of a specified person is (a) any person of which such specified person is an officer or partner or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity securities, (b) any trust or other estate in which such specified person has a substantial beneficial interest or as to which such specified person serves as trustee or in a similar capacity, or (c) any relative or spouse of such specified person, or any relative of such spouse, who has the same home as such specified person or who is a director or officer of such specified person or any corporation which controls or is controlled by such specified person.

(E) For purposes of determining whether a person owns beneficially 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors, the outstanding shares of stock of the Corporation shall include shares deemed owned through application of

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clauses (a), (b) or (c) of Paragraph (D)(l) above but shall not include any other shares which may be issuable pursuant to any agreement or upon exercise of conversion rights, warrants or options, or otherwise.

(F) The Board of Directors shall have the power and duty to determine. for purposes of this Article, on the basis of information known to such Board,

(1) whether any person referred to in Paragraph (A) of this Article owns beneficially 5 percent or more of the outstanding shares of stock of the Corporation entitled to vote in elections of directors; and

(2) whether a proposed transaction is substantially consistent with any memorandum of understanding of the character referred to in paragraph (B) of this Article.

Any such determination shall be conclusive and binding for all purposes of this Article.

SECOND: That thereafter on May 29 , 1987, the annual meeting of stockholders of the corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

* * *

IN WITNESS WHEREOF, Borman’s, Inc. has caused this Certificate to be signed by Paul Borman, its President and attested by Leonard Gorman, its Secretary, this 29th day of May 1987.

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BORMAN’S,, INC.
By:	/s/ Paul Borman
	Paul Borman, President

ATTEST:
By:	/s/ Leonand Borman
	Leonand Borman, Secretary

CERTIFICATE OF AGREEMENT OF MERGER

OF

BORMAN FOOD STORES, INC. (DEL.DOM.)

MERGING

BORMAN FOOD STORES, INC. (MICH.DOM.)

UNDER NAME OF

BORMAN’S, INC, (LEL.DOM.)

7077 – 23

FILED

JUL 1 1969

AGREEMENT OF MERGER

AGREEMENT OF MERGER, dated the 8th day of April, 1969, made by and between BORMAN FOOD STORES, INC., a corporation organized and existing under the laws of the State of Michigan (hereinafter sometimes called the “Michigan Corporation”), and BORMAN FOOD STORES, INC. a corporation organized and existing under the laws of the State of Delaware (hereinafter sometimes called the “Delaware Corporation” or the “Surviving Corporation”), said corporations being hereinafter sometimes referred to jointly as the “Constitute Corporations”.

W I T N E S S E T H:

The Michigan Corporation, a corporation duly organized and existing under the laws of the State of Michigan, has an authorized capital stock consisting of 5,000,000 shares of Common Stock, par value $1.00 per share, of which 2,963,348 shares are issued and outstanding and 66,550 shares are reserved for issuance under the Michigan Corporation’s Qualified Stock Option Plan of 1964.

The Delaware Corporation, a corporation duly organized and existing under the laws of the State of Delaware, has an authorized capital stock consisting of 90,000 shares of Common Stock, par value $1.00 per share, and 100 shares of Preferred Stock, par value $100.00 per share, of the common Stock have been duly issued to the Michigan Corporation and are outstanding, and no shares of the Preferred Stock have been issued.

The General Corporation Law of Delaware authorizes the merger of corporations organized under the laws of other States into a corporation organized under the said General Corporation law of Delaware, and the Michigan General Corporation Act authorizes the merger of a corporation organized under the laws of Michigan into a corporation organized under the laws of another State.

The Board of Directors of the Delaware Corporation and the Michigan Corporation have determined that it is advisable that the Michigan Corporation be merged into the Delaware Corporation and have approved such merger on the terms and conditions hereinafter set forth in accordance with the applicable provisions of the status of the States of Delaware and Michigan.

NOW, THEREFORE, in consideration of the premises and of the agreements, and provisions hereinafter contained, the Delaware Corporation and the Michigan Corporation have agreed and hereby agree, each with the other, as follows:

ARTICLE I.

On the effective date of the merger provided for in Article XI herein (hereinafter sometimes referred to as the “Effective Date”), the Michigan Corporation shall be merged into the Delaware Corporation, the separate existence of the Michigan Corporation shall cease (except insofar as it may be continued by statute) and the Delaware Corporation shall continue to exist under the name BORMAN’S, INC. by virtue of, and shall be governed by, the laws of the State of Delaware.

ARTICLE II.

The Certificate of Incorporation of the Surviving Corporation shall be the Certificate of Incorporation of the Delaware Corporation as in effect on the date hereof except that same is hereby amended upon the Effective Date to read in its entirety as set forth in Appendix A, attached hereto, which is hereby made a part of this Agreement of Merger, and the terms and provisions thereof are hereby incorporated in this Agreement of Merger with the same force and effect as if herein set forth in full. Form and after the Effective Date and until thereafter amended as provided by law, the Certificate of Incorporation of the Surviving Corporation shall be as set forth in Appendix A, and Appendix A separate and apart from this Agreement

1

of Merger shall be, and may be separately certified as, the amended Certificate of Incorporation of the Surviving Corporation. The name of the Surviving Corporation, its principal office, its purposes, and its authorized number of shares and the designations and terms of such shares are set forth in Articles First, Second, Third and Fourth, respectively of said Appendix A.

ARTICLE III.

Upon the Effective Date the By-Laws of the Delaware Corporation as in effect on the date hereof shall be the By-laws of the Surviving Corporation until the same shall thereafter be altered, amended or repealed in accordance with law, the Certificate of Incorporation and said By-Laws.

ARTICLE IV.

From and after the Effective Date of the merger, the directors of the Surviving Corporation who shall hold office until the next annual meeting of the stockholders of the Surviving Corporation and until their successors are chosen and qualify according to law and the By-Laws of the Surviving Corporation shall be those persons who were the directors of the Michigan Corporation immediately prior to the Effective Date of the merger. The officers of the Surviving Corporation who shall hold office from the Effective Date of the merger and until their successors shall have been chosen or appointed as provided in the By-Laws of the Surviving Corporation shall be those persons who were the officers of the Michigan Corporation immediately prior to the Effective Date of the merger. If on the Effective Date a vacancy shall exit in the Board of Directors or in any of the offices of the Surviving Corporation, such vacancy may thereafter be filed in the manner provided by the By-Laws of the surviving Corporation, such vacancy may thereafter be filed in the manner provided by the By-Laws of the Surviving Corporation.

ARTICLE V.

The manner and basis of converting the shares of each of the Constituent into shares of the surviving Corporation are as follows:

1. Each share of Common Stock, per value $1.00 per share of the Michigan Corporation issued and outstanding on the Effective Date and all rights in respect thereof shall, by virtue of the merger and without any action on the part of the holder thereof, be converted, forthwith upon the merger becoming effective, into one share of Common Stock, par value $1.00 per share, of the Surviving Corporation. Outstanding certificates representing shares of the Common Stock of the Michigan Corporation shall thenceforth represent the same number of shares of Common Stock of the Surviving Corporation, and the holder thereof shall be entitled to precisely the same rights which he would enjoy if he held certificates issued by the Surviving Corporation. Upon the surrender of any such certificate to any Transfer Agent of the Surviving Corporation, the transferee or other holder of the certificate surrendered shall receive in exchange therefore, a certificate or certificates of the Surviving Corporation.

2. Forthwith upon the merger becoming effective, the shares of Common Stock, par value $1.00 per share, of the Delaware Corporation which shall be outstanding immediately prior to the effective Date of the merger shall be cancelled and retired, and no new shares of Common Stock or other securities of the Surviving Corporation shall be issuable with respect thereto.

ARTICLE VI.

Upon the merger becoming effective, all the property, rights, immunities, privileges, powers and franchises, public or private, of the Constitute Corporations and all debts due to the Constituent Corporations on whatever account, including subscriptions to shares and all other things in action and all and every other interest belonging to or due to either of the Constituent Corporations, shall be vested in the Surviving Corporation without further act or deed and shall be thereafter as effectually the property of the Surviving Corporation as they were of the Constituent Corporations, and the title to any real estate, whether vested by deed or otherwise in either of the Constituent Corporations, shall not revert or be in any way impaired by

2

reason of the merger; but the Surviving Corporation shall not by the merger acquire authority to engage in any business or to exercise any right for engaging in or exercising of which a corporation may not be formed under the General Corporation Law of the State of Delaware; and the Surviving Corporation shall thenceforth be responsible for all the debts, liabilities, obligations and duties of each of the Constituent Corporations, and all said debts, liabilities, obligations and duties shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities, obligations and duties had been incurred or contracted by it, but the liabilities of the Constituent Corporations or of their stockholders, directors or officers shall not be affected, nor shall the rights of creditors thereof or of any person dealing with the Constituent Corporations, or either of them, or any liens upon any property of either of the Constituent Corporations shall be preserved unimpaired, and any action or proceeding pending by or against either of the Constituent Corporations may be prosecuted to judgment the same as if the merger had not taken place, which judgment shall bind the Surviving Corporation, or the Surviving Corporation may be proceeded against or substituted in its place. If at any time after the Effective Date of the merger the Surviving Corporation shall consider or be advised that any further assignments or assurances in law or other things are necessary or desirable to vest, perfect or confirm, on record or otherwise , in the Surviving Corporation, the title to any property or rights of the Michigan Corporation acquired or to be acquired by reason of, or as a result of, them merger, the Michigan Corporation and its proper officers and directors shall and will execute and deliver all such proper deeds, assignments and assurances in law and do all things necessary or proper to vest, perfect or confirm title to such property or rights in the Surviving Corporation and otherwise to carry out the purpose of this Agreement, and the proper officers and directors of the Michigan Corporation and the proper officers and directors of the Surviving Corporation are fully authorized in the name of the Michigan Corporation or otherwise to take any and all such action.

ARTICLE VII.

Upon the Effective Date of the merger, the assets, liabilities, reserves and net worth accounts of each of the Constituent Corporations shall be taken upon the books of the Surviving Corporation at the amounts at which they, respectively, shall then be carried on the books of said corporation, subject to such adjustments, or eliminations of intercompany items, as may be appropriate in giving effect to the merger.

ARTICLE VIII.

All corporate acts, plans, policies, approvals and authorizations of the Michigan Corporation, its stockholders, Board of Directors, committees elected or appointed by the Board of Directors, officers and agents, which were valid and effective immediately prior to the Effective Date of the merger shall be taken for all purposes as the acts, plans, policies, approvals and authorizations of the Surviving Corporation and shall be as effective and binding thereon as the same were with respect to the Michigan Corporation. The employees of the Michigan Corporation shall become the employees of the Surviving Corporation and continue to be entitled to the same rights and benefits they enjoyed as employee of the Michigan Corporation. The requirements of any stock option plan or other plan or provisions of the Michigan Corporation involving the issuance or purchase by the Michigan Corporation or trustees under such plans of Common Stock of the Michigan Corporation to or for the accounts of employees shall be satisfied by the issuance or purchase of a like number of shares of Common Stock of the Surviving Corporation.

ARTICLE IX.

The Delaware Corporation hereby agrees that it may be served with process in the State of Michigan in any proceeding for the enforcement of any obligation of the Michigan Corporation, as well as for the enforcement of any obligation of the Delaware Corporation arising from the merger which is the subject of this Agreement, including any suit or other proceeding to enforce the right of any stockholder as determined in appraisal proceedings pursuant to the provisions of the Michigan General Corporation Act. The Delaware Corporation hereby irrevocably appoints Paul Borman, 12300 Mark Twain Avenue, Detroit, Michigan, as its agent to accept service of process in any suit or other proceedings.

3

ARTICLE X.

This Agreement and the merger may be terminated and abandoned by resolutions of the Board of Directors of either of the Constituent Corporations, notwithstanding approval of the agreement by the stockholders of either of the Constituent Corporations at any time prior to the merger becoming effective, if circumstances develop which in the opinion of either of such Boards make proceeding with the merger inadvisable. In the event of the termination and abandonment of this Agreement and the merger pursuant to the foregoing provisions of this Article X, this Agreement shall become void and have no effect, without any liability on the part of either of the corporations or its stockholders or directors or officers in respect thereof.

ARTICLE XI.

This Agreement of Merger shall be submitted to the holders of the Common Stock of the Michigan Corporation in accordance with the applicable laws of Michigan and shall be submitted to the holders of the Common Stock of the Delaware Corporation in accordance with the applicable laws of Delaware. If this Agreement of Merger is duly authorized and approved by the requisite vote of the stockholders of the respective Constituent Corporations, and this Agreement of Merger is not terminated or abandoned as permitted by the provisions hereof, this Agreement of Merger shall be signed, acknowledged, filed and recorded in accordance with the laws of the States of Delaware and Michigan. The date on which the merger shall become effective under the laws of Michigan and Delaware shall be deemed to be the Effective Date of the merger for the purposes hereof.

ARTICLE XII.

This Agreement of Merger may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

IN WITNESS WHEREOF, the parties to this agreement, pursuant to the approval and authority duly given by resolutions adopted by the respective Boards of Directors, have caused these presents to be executed by the President and attested by the Secretary of each party hereto and the corporate seal affixed, and the undersigned directors, being a majority of the directors of each of the constituent corporations, have signed their names hereto as of the 8th day of April, 1969.

	BORMAN FOOD STORES, INC. a Michigan corporation
	By
Attest: Stanley B. Friedman, Secretary
		(A majority of the Board of Directors)

4

		BORMAN FOOD STORES, INC. a Delaware corporation
		By
Attest:
	Stanley B. Friedman, Secretary
			(A majority of the Board of Directors)

5

Appendix A.

CERTIFICATE OF INCORPORATION

OF

BORMAN’S, INC.

FIRST: The name of the corporation is

BORMAN’S, INC.

SECOND: The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

FOURTH: The total number of shares which the corporation shall have authority to issue is 7,000,000 of which 2,000,000 shares of the par value of ONE DOLLAR ($1.00) each shall be Preferred Stock and 5,000,000 shares of the par value of ONE DOLLAR ($1.00) each shall be Common Stock.

1. Preferred Stock

The Preferred Stock may be issued from time to time in one or more series with such distinctive serial designations and (a) may have such voting powers, full or limited, or no voting powers; (b) may be subject to redemption at such time or times and at such price or prices; (c) shall be entitled to receive dividends (which may be cumulative or noncumulative) at such rate, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock; (d) shall be entitled to such rights upon the dissolution of, or upon any distribution of the assets of the corporation; (e) may be made convertible into, or exchangeable for, shares of any other class or classes or of any series thereof of the corporation, at such price or prices or at such rates of exchange, and with such adjustments; and (f) shall have such other relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the issue of such Preferred Stock from time to time adopted by the board of directors pursuant to authority so to do which is hereby vested in the board.

2. Common Stock

(a) The rights of the holders of Common Stock to receive dividends or to share in the distribution of assets in the event of liquidation, dissolution or winding up of the affairs of the corporation, shall be subject to the preferences and other rights of the Preferred Stock fixed in the resolution or resolutions of the board of directors providing for the issue of such Preferred Stock. (b) Subject to the provisions for cumulative voting as hereinafter set forth, the holders of Common Stock shall be entitled to one vote for each share of Common Stock held by them of record at the time for determining the holders thereof entitled to vote.

3. Cumulative Voting

At all elections of directors of the corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for such provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit.

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4. Increase or Decrease of Shares

The number of authorized shares of any class of the corporation, including but without limitation the Preferred Stock and the Common Stock, may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote.

FIFTH: The name and mailing address of each incorporator is as follows:

NAME	MAILING ADDRESS
B.J. Consono	100 West Tenth Street Wilmington, Delaware
F.J. Obara. Jr.	100 West Tenth Street Wilmington, Delaware
A.D. Grier	100 West Tenth Street Wilmington, Delaware

SIXTH: The corporation is to have perpetual existence.

SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized:

To make, alter or repeal the by-laws of the corporation.

To authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation.

To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which it was created.

By a majority of the whole board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it provided, however, the by-laws may provide that in the absence or disqualification of any member of such committee, or committees the member or members thereof present at any meeting and not disqualified from board of directors to act at the meeting in the place of any such absent or disqualified member.

When and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders’ meeting duly called upon such notice as is required by statute, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding, to sell, lease or exchange all or substantially all of the property and assets of the corporation, which may consist in whole or in part of money or property including shares of stock in, and/or other securities of any other corporation or corporations, as its board of directors shall deem expedient and for the best interests of the corporation.

EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such

7

manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

NINTH: Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide.

TENTH: Any corporate action upon which a vote of stockholders is required or permitted under the General Corporation Law of Delaware or under this Certificate of Incorporation may be taken without a meeting or vote of stockholders with the written consent of stockholders having not less than majority of all of the stock entitled to vote upon the action if a meeting were held; provided that in no case shall the written consent be by holders having less than the minimum percent of the total vote required by statute for the proposed corporate action and provided that prompt notice be given to all stockholders of the taking of corporate action without a meeting by less than unanimous written consent.

ELEVENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

WE THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true and accordingly have herein to set our hands this 28^th day of March, 1969.

/s/ B.J. CONSONO

/s/ F.J. OBARA, JR.

/s/ A.D. GRIER

8

STATE OF DELAWARE	}	SS.
COUNTY OF NEW CASTLE	}

BE IT REMEMBERED that on this 28th day of March, 1969, personally came before me, a Notary Public for the State of Delaware, B.J. CONSONO, F.J. OBARA, JR. and A.D. GRIER all of the parties to the foregoing certificate of incorporation, known to me personally to be such, and severally acknowledged the said certificate to be act and deed of the signers respectively and that the facts stated therein are true.

/s/ A. DANA ATWELL

NOTARY PUBLIC

A. DANA ATWELL

Notary Public

Appointed Oct. 28, 1967

State of Delaware

Term Two Years

9

CERTIFICATE OF PRESIDENT AND SECRETARY

OF

BORMAN FOOD STORES, INC.

a Michigan corporation

The undersigned, PAUL BORMAN, President, and STANLEY B. FRIEDMAN, Secretary, of BORMAN FOOD STORES, INC., a Michigan corporation, do hereby certify that the Agreement of Merger to which this Certificate is attached, after having been first duly approved by the Boards of Directors of BORMAN FOOD STORES, INC., a Michigan corporation, and BORMAN FOOD STORES, INC., a Delaware corporation, respectively, and duly signed by a majority of the directors of each of said corporate parties, was duly submitted to the stockholders of said BORMAN FOOD STORES, INC., a Michigan corporation, at the annual meeting of said stockholders, called and held on May 28, 1969.

separately from the meeting of the stockholders of any other corporation; that the notice of the holding of said annual meeting stated that one of the purposes of such meeting would be to consider and act upon the proposal to adopt said Agreement of Merger, and was mailed to the stockholders of record of said BORMAN FOOD STORES, INC., a Michigan corporation, at least twenty (20) says prior to the date of the meeting, and that said notice was published at least once each week for three (3) successive weeks next preceding the date of the meeting in the Detroit Legal News, a newspaper published in Wayne Country, Michigan where said BORMAN FOOD STORES, INC., a Michigan corporation, has its registered office, all in accordance with the laws of the State of Michigan applicable thereto; that at said meeting said Agreement of Merger was considered, and a vote by ballot of the stockholders in person or by proxy was taken for the adoption or rejection of the same; that the votes of the stockholders of BORMAN FOOD STORES, INC., a Michigan corporation, representing more than two-thirds of the total number of shares of its outstanding Common Stock (being the only class of stock of BORMAN FOOD STORES, INC., a Michigan corporation), were cast for the adoption of said Agreement of Merger, and that thereby the Agreement of Merger was, at said meeting, duly adopted as the act of the stockholders of said BORMAN FOOR STORES, INC., a Michigan corporation, and the duly adopted Agreement of the said corporation.

IN WITNESS WHEREOF, we have hereunto set our hands and the seal of said corporation, this 28 day of May, 1969.

/s/ Paul Borman, President

Paul Borman, President

/s/ Stanley B. Friedman

Stanley B. Friedman, Secretary

10

CERTIFICATE OF PRESIDENT AND SECRETARY

OF

BORMAN FOOD STORES, INC.

a Delaware corporation

The undersigned, PAUL BORMAN, President, and STANLEY B. FRIEDMAN, Secretary, of BORMAN FOOD STORES, INC., a Delaware corporation, do hereby certify that the Agreement of Merger to which this Certificate is attached, after having been first duly approved by the Boards of Directors of BORMAN FOOD STORES, INC., a Michigan corporation, and BORMAN FOOD STORES, INC., a Delaware corporation, respectively, and duly signed by a majority of the directors of each of said corporate parties, was duly submitted to the stockholders of said BORMAN FOOD STORES, INC., a Delaware corporation, at a special meeting of said stockholders, called and held on May 28 , 1969, separately from the meeting of the stockholders, of any other corporation, upon waiver of notice signed by all of the stockholders, for the purpose of considering and acting upon the proposal to adopt said Agreement of Merger, all in accordance with the laws of the State of Delaware applicable thereto; that at said meeting said Agreement of Merger was considered, and a vote by ballot of the stockholders in person or by proxy was taken for the adoption or rejection of the same; that the votes of the stockholders of BORMAN FOOD STORES, INC., a Delaware corporation, representing more than two-thirds of the total number of shares of its outstanding capital stock, were cast for the adoption of said Agreement of Merger, and that thereby the Agreement of Merger was, at said meeting, duly adopted as the act of the stockholders of said BORMAN FOOD STORES, INC., a Delaware corporation, and the duly adopted Agreement of the said corporation.

IN WITNESS WHEREOF, we have hereunto set our hands and the seal of said corporation, this 28 day of May, 1969.

/s/ Paul Borman

Paul Borman, President

/s/ Stanley B. Friedman

Stanley B. Friedman, Secretary

11

CERTIFICATE AND AGREEMENT OF MERGER

The foregoing Agreement of Merger having been approved by the Boards of Directors of BORMAN FOOD STORES, INC., a Michigan corporation, and of BORMAN FOOD STORES, INC., a Delaware corporation, respectively, and having been signed by a majority of the directors of each of said corporate parties, and having been adopted separately by the stockholders of each corporate party hereto, in accordance with the requirements of the Michigan General Corporation Act and the General Corporation Law of Delaware, and those facts having been certified by the President and Secretary of said BORMAN FOOD STORES, INC., a Michigan corporation, parties to this Agreement, the respective Presidents and Secretaries of BORMAN FOOD STORES, INC., A Michigan corporation, and BORMAN FOOD STORES, INC., a Delaware corporation, hereby sign said Agreement of Merger and affix their signatures thereto as such officers for and in behalf of the respective corporations for which they are acting, and hereby affix the respective corporate seals of said corporations by authority of the directors and shareholders of said corporations, respectively, as the act, deed and agreement of each respective corporation, on this 28 day of May, 1969.

	BORMAN FOOD STORES, INC.,
	a Michigan corporation
	By    /s/ Paul Borman
	Paul Borman, President
Attest:

    /s/ Stanley B. Friedman

    Stanley B. Friedman, Secretary

	BORMAN FOOD STORES, INC., a Delaware corporation
	By    /s/ Paul Borman
	Paul Borman, President
Attest:

/s/ Stanley B. Friedman

    Stanley B. Friedman, Secretary

12

STATE OF MICHIGAN	}	SS.
COUNTY OF WAYNE

BE IT REMEMBERED that on this 28 day of May, 1969, personally came before me, a Notary Public in and for the County and State aforesaid, PAUL BORMAN, President and STANLEY B. FRIEDMAN, Secretary of BORMAN FOOD STORES, INC., a corporation organized and existing under the laws of the State of Delaware, and one of the corporations described in and which executed the foregoing Agreement of Merger, known to me personally to be such, and they as such President and Secretary duly executed said Agreement of Merger before me and acknowledged said Agreement of Merger to be the act, deed and agreement of said BORMAN FOOD STORES, INC.; that the signatures of the said President and the Secretary of said corporation to said Agreement of Merger are in the handwriting of the said President and the Secretary of said BORMAN FOOD STORES, INC.; and that the seal affixed to said Agreement of Merger is the common corporate seal of said corporation, and that the facts stated therein are true.

IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.

/s/ Alma M. Boufford

Notary Public                                     ALMA M. BOUFFORD

Wayne County, Michigan Notary Public, Wayne County, Mich

My Commission Expires: My Commission Expires Sept. 13,197

STATE OF MICHIGAN	}	SS.
COUNTY OF WAYNE

BE IT REMEMBERED that on this 28 day of May, 1969, personally came before me, a Notary Public in and (or the County and State aforesaid, PAUL BORMAN, President and STANLEY B. FRIEDMAN Secretary of BORMAN FOOD STORES, INC., a Michigan corporation, one of the corporations described in and which executed the foregoing Agreement of Merger, known to me personally to be such, and they as such President and Secretary, duly executed said Agreement of Merger before me and acknowledged said Agreement of Merger to be the act, deed and agreement of said BORMAN FOOD STORES, INC.; that the signatures of the said President and the Secretary of said corporation to said Agreement of Merger are in the handwriting of the said President and the Secretary of said BORMAN FOOD STORES, INC.; and that the seal affixed to said Agreement of Merger is the common corporate seal of said corporation, and that the facts stated therein are true.

/s/ Alma M. Boufford

Notary Public                                     ALMA M. BOUFFORD

Wayne County, Michigan Notary Public, Wayne County, Mich

My Commission Expires: My Commission Expires Sept. 13,19

13

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

FILED

10 AM

DEC 16 1986

Borman’s, Inc., a corporation organized and existing under and by virtue of the Delaware General Corporation Law (the “Corporation”), DOES HEREBY CERTIFY THAT:

FIRST: The Board of Directors of the Corporation at a meeting on September 19, 1986 adopted a resolution that declared advisable the following amendment to the Corporation’s Certificate of Incorporation and directed that said amendment be submitted to the Corporation’s stockholders for their consent and approval at a special meeting. The amendment adds a new Article Fourteenth, which is set forth below.

Article Fourteenth:

1. Elimination of Certain Liability of Directors. A director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.

Any repeal or modification of the foregoing paragraph by the stockholders of the corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the corporation existing at the time of such repeal or modification.

- 1 -

2. Indemnification and Insurance.

(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, the rights of indemnification provided hereby shall continue as theretofore notwithstanding such amendment unless such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such Indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives; provided, however, that, except as provided in paragraph (b) hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the board of directors of the corporation. The right to indemnification conferred in this section shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while

- 2 -

a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this section or otherwise. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

(b) Right of Claimant to Bring Suit. A claimant may bring suit against the corporation under paragraph (a) of this section only if the corporation fails to pay in full within thirty days of its receipt of a written claim for payment hereunder. If successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including, but not limited to, attorneys’ fees). It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the standards of conduct that make it permissible under the Delaware General Corporation Law for the corporation to Indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including it’s board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this section shall not be

- 3 -

exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-Law, agreement, vote of stockholders or disinterested directors or otherwise.

(d) Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

3. Amendment. Notwithstanding the provisions of this Certificate of Incorporation and any provisions of the By-Laws of the corporation, no amendment to this Certificate of Incorporation shall amend, modify or repeal any or all of this Article Fourteenth unless adopted by the affirmative vote or the consent of the holders of not less than three-fourths of the outstanding shares of stock of the corporation entitled to vote in elections of directors, considered for purposes of this Article as a class.

SECOND: A majority of the outstanding stock entitled to vote thereon approved the foregoing amendment to the Corporation’s Certificate of Incorporation on December 12, 1986 at a special meeting called for such purpose.

THIRD: The aforesaid amendment was duly adopted in accordance with the previsions of Sections 242 and 222 of the Delaware General Corporation Law.

IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunto affixed and this certificate to be signed, under penalty of perjury, by Paul Borman, its

- 4 -

President, and attested by Leonard Borman, its Secretary, on December 12, 1986, and does confirm that this Certificate of Amendment is the act and deed of the Corporation and that the statements made herein are true.

BORMAN’S, INC.
By:	/s/ Paul Borman
	Paul Borman, President

ATTEST:

By:	/s/ Leonard Borman
	Leonard Borman, Secretary

- 5 -

[GRAPHIC APPEARS HERE]

899058182

DATE SUBMITTED:             2-27-89__

FILED BY: SKARDEL, INC.

ONE RODNEY SQUARE

P.O. BOX 636

WILMINGTON, DE 19899

Attention: Catherine D. Ledyard

Telephone: 651 – 3255

NAME OF COMPANY:

MOTOR ACQUISITION CORP.

NEW COMPANY RESV. NO.

FILE NO.

21588-10

OTHER COMPANY IF MERGER

BOXMAN’S, INC.

BOXMAN’S

FILE NO.

07077.23

TYPE OF DOCUMENT:

Ownership

SECTION No.

253

CHANGES NAME TO:

RESERVATION NO.

CHANGES AGENT/OFFICE.

10,000,000 (Illegible)

(ILLEGIBLE)

STOCK $             

TO $ _________

FRANCHISE TAX/YEARS

60

Filing Fee Tax

$____________

Receiving and Indexing

$____________

No.__4____ Certified Copies

$ ___________

No. _____ pages (if prepared by the Division of Corp. )

$____________

OTHER

$____________

OTHER

$____________

TOTAL

$___________

24 HOUR SERVICE

YES

$ _____________

SAME DAY SERVICE

$ _____________

MUST HAVE BY             

2110537

CLOSED/INVOICED

MAR 20 1989

2082987

SECRETARY OF STATE

899058182

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

MOTOR ACQUISITION CORP.

INTO BORMAN’S, INC.

Pursuant to Section 253 of the

General Corporation Law of the State of Delaware

MOTOR ACQUISITION CORP., a Delaware corporation (“Acquisition”), does hereby certify:

FIRST: That Acquisition was incorporated on April 25, 1988 pursuant to the General Corporation Law of the State of Delaware (the “DGCL”). Borman’s, Inc. (the “Company”) was originally incorporated in 1950, under the laws of the State of Michigan under the name of Food Fair Markets, Inc. (which name was changed to Borman Food Stores, Inc. in 1959), and was reincorporated on March 28, 1969 under the DGCL, and the name was changed to Borman’s, Inc. on July 1, 1969.

SECOND: That Acquisition owns more than 90 percent of the outstanding shares of Common Stock, par value $1.00 per share (the “Shares”), of the Company. The Shares constitute the only outstanding class of capital stock of the Company.

THIRD: That Acquisition, by resolutions of its Board of Directors duly adopted by unanimous written consent in lieu of a meeting, dated February 22, 1989, determined to merge and authorized the merger (the “Merger”) of itself with and into the Company on the conditions set forth in such resolutions. Such resolutions are attached hereto as Exhibit A and have not been modified or rescinded and remain in full force and effect on the date hereof.

FOURTH: That The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation and the sole stock-holder of Acquisition, has approved the Merger by written

56

consent in lieu of a meeting, dated February 22, 1989, pursuant to Section 228 of the DGCL.

FIFTH: That the name of the corporation surviving the Merger is Borman’s, Inc. (the “Surviving Corporation” ).

SIXTH: That the Certificate of Incorporation of Borman’s, Inc. shall be the Certificate of Incorporation of the Surviving Corporation, except that, pursuant to the Merger, it shall be amended to read in its entirety as set forth in Annex I to the resolutions which are set forth in Exhibit A attached hereto.

IN WITNESS WHEREOF, Motor Acquisition Corp. has caused this Certificate of Ownership and Merger to be executed in its corporate name by James Rowe, its President, and attested to by Robert G. Ulrich, its Vice President and Secretary, this 22nd day of February, 1989.

MOTOR ACQUISITION CORP.
By:	/s/ James Rowe
	Name: James Rowe
	Title: President

ATTEST :
By:	/s/ Robert G. Ulrich
	Name: Robert G. Ulrich
	Title: Vice President and Secretary

2

Exhibit A

RESOLUTIONS ADOPTED

BY

THE BOARD OF DIRECTORS

OF

MOTOR ACQUISITION CORP.

ON

FEBRUARY 22, 1989

WHEREAS, the Corporation has purchased an aggregate of 2,731,461 shares of Common Stock, par value $1.00 per share (the “Shares”), of Borman’s, Inc., a Delaware corporation (“Borman’s”), constituting approximately 97.1 percent of the outstanding Shares; and

WHEREAS, this Board of Directors has previously authorized the appropriate officers of the Corporation to execute, deliver and perform the Agreement and Plan of Merger, dated as of December 23, 1988, among the Corporation, The Great Atlantic & Pacific Tea Company, inc., a Maryland corporation (“A&P”), and Borman’s (the “Merger Agreement”), which provides in part for the merger (the “Merger”) of the Corporation with and into Borman’s, with Borman’s as the surviving corporation in the Merger (the “Surviving Corporation”);

NOW, THEREFORE, BE IT HEREBY:

RESOLVED, that the Corporation be merged, pursuant to the Merger Agreement, with and into Borman’s, with Borman’s as the Surviving Corporation; and further

RESOLVED, that the terms and conditions of the Merger are as follows:

1. Pursuant to the terms of the Merger Agreement, each Share issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than

A-1

Shares held in the treasury of Borman’s or held by the Corporation, A&P or any subsidiary of A&P or of Borman’s, which shall be cancelled, and Shares held by stockholders who perfect appraisal rights under Delaware law) shall, at the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive $27.00 in cash payable to the holder thereof, without interest thereon, upon the surrender of the certificate formerly representing such Share. Each share of common stock, par value $0.01 per share, of the Corporation issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, be converted into one share of common stock of the Surviving Corporation; and

2. The Certificate of Incorporation of Borman’s shall be the Certificate of Incorporation of the Surviving Corporation, except that, pursuant to the Merger, it shall be amended to read in its entirety as set forth in Annex I attached hereto; and further

RESOLVED, that the capital accounts of the Surviving Corporation shall be adjusted as appropriate to reflect the number of shares of stock, and the par value thereof, of the Surviving Corporation outstanding immediately following the Merger; and further

RESOLVED, that the appropriate officers of the Corporation, be and each hereby is, authorized and directed to execute and acknowledge in the name and on behalf of the Corporation a Certificate of Ownership and Merger setting forth, among other things, a copy of these resolutions and the date of their adoption, and a copy of the amended Certificate of Incorporation of Borman’s and the date of its adoption; and that such officers are hereby authorized and directed to cause such executed Certificate of Ownership and Merger to be filed in the Office of the Secretary of State of Delaware and to cause a certified copy of such Certificate of Ownership

A-2

and Merger to be recorded in the Office of the Recorder of Deeds of New Castle County, all in accordance with Sections 103 and 253 of the GCL; and further

RESOLVED, that the appropriate officers of the Corporation be, and each of them hereby is, authorized in the name and on behalf of the Corporation to take or cause to be taken any and all such further actions, to execute and deliver or cause to be executed and delivered all such other instruments and documents in the name and on behalf of the Corporation, to incur and pay all such fees and expenses and to engage such persons as they shall in their judgment determine to be necessary, proper or desirable to carry out fully the intent and purpose of the foregoing resolutions; and further

RESOLVED, that all actions previously taken by any officer or director of the Corporation in connection with the transactions contemplated by the foregoing resolutions are hereby adopted, ratified, confirmed and approved in all respects as acts and deeds of the Corporation.

A-3

Annex I

CERTIFICATE OF INCORPORATION

OF

BORMAN’S, INC.

FIRST: The name of the Corporation is Borman’s, Inc. (hereinafter the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”).

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, each having a par value of one penny ($.01).

FIFTH: The names and mailing addresses of the incorporators of the Corporation are as follows:

NAME	MAILING ADDRESS
B.J. Consono	100 West Tenth Street Wilmington, Delaware
F.J. Obara, Jr.	100 West Tenth Street Wilmington, Delaware
A.D. Grier	100 West Tenth Street Wilmington, Delaware

I -1

SIXTH: The following provisions are inserted for the management of the business and the conduct of theaffairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

(1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

(2) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation.

(3) The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide.

(4) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted.

SEVENTH:

(1) Elimination of Certain Liability of Directors. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) under

I - 2

Section 174 of the GCL, or (d) for any transaction from which the director derived an improper personal benefit. If the GCL is hereafter amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended.

Any repeal or modification of the foregoing Section (1) by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

(2) Indemnification and Insurance.

(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, the rights of indemnification provided hereby shall continue as theretofore notwithstanding such amendment unless such amendment permits the Corporation to provide broader indemnification

I – 3

rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives; provided, however, that, except as provided in sub-section (2)(b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The right to indemnification conferred in this subsection (2)(a) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the GCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this, section or otherwise. The Corporation may, by action of its board of directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

(b) Right of Claimant to Bring Suit. A claimant may bring suit against the Corporation under subsection (2)(a) of this Article only if

I – 4

the Corporation fails to pay in full within thirty days of its receipt of a written claim for payment hereunder. If successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including, but not limited to, attorneys’ fees). It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct that make it permissible under the GCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCL, nor an actual determination by the Corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this section shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-Law, agreement, vote of stockholders or disinterested directors or otherwise.

(d) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation,

I – 5

partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the GCL.

EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.

NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

I – 6

Certificate of Ownership of the “BORMAN’S, INC.”, a corporation organized and existing under the laws of the State of Delaware, merging “MOTOR ACQUISITION CORP.”, a corporation organized and existing under the laws of the State of Delaware, pursuant to Section 253 of the General Corporation Law of the State of Delaware, as received and filed in this office the twenty-fourth day of February, A.D. 1989, at 1:20 o’clock P.M

And I do hreby further certify that the aforesaid Corporation shall be governed by the laws of the State of Delaware.

SCREEN:

FILE NO:

2158810

YEAR

INDEX:

CORP: STAT=M D21588-10 MOTOR ACQUISITION CORP.

SCREEN: TAX/

05/08/89 ****

TAX HISTORY

****08:23:02

YEAR

TAXES

INTEREST

PENALTY

CHECK CHGS

PETITION/EXTENSION

DATES & STATUS

1989

DUE

30.00

ADJUSTMENT PAID

30.00

1988

DUE

30.00

ADJUSTMENT

PAID

30.00

:

FRANCHISE TAX BALANCE

0.00

SCREEN:

FILE NO:

9092978

REQ #:

899058182

INDEX:

AGENT: STAT=1 A90929-78 SKARDEL, INC

SCREEN: FEF/FEP

05/08/89 ****

DOCUMENT FILING CHARGES

****08:23:11

SEQ

CORPORATION

FILING FEE

MISCELLANEOUS

DOC DESCRIPTION

RCVNG/INDEX

FRANCHISE TAX

01

0707723 BORMAN’S INC.

20.00

0253 OWNERSHIP & MERGER

25.00

02

0707723 BORMAN’S INC.

50.00

250T MERGER

03

0707723 BORMAN’S INC.

40.00

6025A CERTIFICATE OF MERGER

04

2158810 MOTOR ACQUISITION CORP.

0253 OWNERSHIP & MERGER

60.00

GENL CHGS:

145.00

GENL SVC BAL:

145.00

SPEC CHGS

50.00

SCREEN:

FILE NO:

2158810

REQ#:

899058182

INDEX:

UPD57 OPERATOR INDENT

UNAUTHRIZED TO UPD THIS SCREEN

CORP: STAT=M D21588-10 MOTOR ACQUISITION CORP.

SCREEN: FTP/FT2

05/08/89 ****

FRANCHISE TAX PAYMENT HISTORY

****08:23:23

STATUS: PERM OPEN ACCOUNT

LAST CHANGED 02/28/1989 BY LYM

SPEC SVC BAL:

50.00

PAYMENTS RECEIVED

SEQ

TYPE

CHECK #

AMOUNT

REF

STATUS

BATCH

DATE

FROM SRN

01

TRANSFER

60.00

02/28/1989

899058182

TOTAL PAYMETS:

60.00

FRANCHISE TAX BALANCE:

0.00

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 02/26/1993

930605350 - 707723

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE

AND OF REGISTERED AGENT

It is hereby certified that:

1. The name of the corporation (hereinafter called the “corporation”) is

BORMAN’S, INC.

2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent.

3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed.

4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.

Signed on JAN 25, 1993.

- President

Attest:

Secretary

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003

030016306 - 0707723

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

BORMAN’S, INC.

BORMAN’S, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST:The name of the corporation is: BORMAN’S, INC.

TWO: That a meeting of the Board of Directors of BORMANS, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES. INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	JOSE MOJICA
By:	Jose Mojica
	President

State of Delaware

Secretary of State

Division of Corporations

Delivered 01:26 PM 10/14/2003

FILED 01:01 PM 10/14/2003

SRV 030658622 –0707723 FILE

CERTIFICATE OF MERGER

(Under Section 252 OF THE DELAWARE CORPORATION LAW)

OF

Arnold Pharmacies, Inc.

(a Michigan corporation)

and

Associated Food Distributors, Inc.

(a Michigan corporation)

and

Borman Warehouses, Inc.

(a Michigan corporation)

and

Food Fair, Inc.

(a Michigan corporation)

and

B A C 51, Inc.

(a Delaware Corporation)

and

B A C 52, Inc.

(a Delaware Corporation)

and

B A C 53, Inc.

(a Delaware Corporation)

and

B A C 54, Inc.

(a Delaware Corporation)

and

B A C 55, Inc.

(a Delaware Corporation)

and

B A C 57, Inc.

(a Delaware Corporation)

and

B A C Holdings Corp. ,

(a Delaware Corporation)

and

B A C Milk Corp.

(a Delaware Corporation)

and

Milk Properties, Inc.

(a Delaware Corporation)

INTO

Borman’s, Inc.

(a Delaware Corporation)

1. The name and state of each of the constituent corporations is as follows:

Name	State of Incorporation
Arnold Pharmacies, Inc.	(a Michigan corporation)
Associated Food Distributors, Inc.	(a Michigan corporation)
Borman Warehouses, Inc.	(a Michigan corporation)
Food Fair, Inc.	(a Michigan corporation)
B A C 51, Inc.	(a Delaware Corporation)
B A C 52, Inc.	(a Delaware Corporation)
B A C 53. Inc.	(a Delaware Corporation)
B A C 54, Inc.	(a Delaware Corporation)
B A C 55, Inc.	(a Delaware Corporation)
B A C 57, Inc.	(a Delaware Corporation)
B A C Holdings Corp.	(a Delaware Corporation)
B A C Milk Corp.	(a Delaware Corporation)
Milk Properties, Inc.	(a Delaware Corporation)
Borman’ s, Inc.	(a Delaware Corporation)

2. An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with subsection 252- C.

3. The surviving corporation is Borman’s, Inc., a Delaware corporation.

4. The certificate of incorporation of the surviving corporation shall be its certificate of incorporation.

5. The executed agreement of merger is on file at the principal place of business of the surviving corporation, and the address thereof is; 2 Paragon Drive, Montvale, NJ 07645

6. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.

7. The number of shares the merged non-Delaware corporations are authorized to issue are:

Amold Pharmacies, Inc.	50,000 common
Associated Food Distributors, Inc.	50,000 common
Borman Warehouses, Inc.	50,000 common
Food Fair, Inc.	5,000 common

IN WITNESS WHEREOF, Borman’s, Inc., has caused this certificate to be signed by William P. Costantini, their Senior Vice President this 6^th day of OCT, 2003

/s/ William P. Costantini

William P. Costantini

Senior Vice President

State of Delaware – Division of Corporations

DOCUMENT FILING SHEET

? ? ? ? ? ? ?

Priority 1 Priority 2 Priority 3 Priority 4 Priority 5 Priority 6 Priority 7

(One Hr) (Two Hr.) (Same Day) (24 Hour) (Must Approval) (Reg. Approval) (Reg. Work)

DATE SUBMITTED

1-6-03

FILE DATE 1-6-03

REQUESTOR NAME

INCORPORATING SERVICES, LTD.

FILE TIME ________

ADDRESS

15 E NORTH STREET

DOVER, DE 19901

ATTN:

EDIE WHITEBREAD

PHONE

678-0855

NAME OF COMPANY/ENTITY

BORMAN’S, INC.

3749036

19840 WEAVER CORPORATION

040008205__

SRV NUMBER

___0707723__+

FILE NUMBER

9008413

FILER’S NUMBER

RESERVATION NO.

TYPE OF DOCUMENT

MERGER

DOCUMENT CODE

0250

CHANGE OF NAME

CHANGE OF AGENT/OFFICE

CHANGE OF STOCK

CORPORATIONS

METHOD OF RETURN

FRANCHISE TAX

YEAR _____________

$ _________________

______MESSENGER/PICKUP

FILING FEE TAX

$ _________________

______FED. EXPRESS Acct.# _______________

RECEIVING & INDEXING

$ ________________

________ REGULAR MAIL

CERTIFIED COPIES NO.__

NO. ____

$ ________________

________ FAX NO. _________

SPECIAL SERVICES

$ ________________

______ OTHER _____________

KENT COUNTY RECORDER

$ ________________

COMMENTS/FILING INSTRUCTIONS

NEW CASTLE COUNTY RECORDER

$ ________________

SUSSEX COUNTY RECORDER

$ ________________

TOTAL

$ ________________

CREDIT CARD CHARGES

You may have authorization to charge my credit card for this service:

Exp. Date ______________________

Signature             

Printed Name ___________________

AGENT USE ONLY

INSTRUCTIONS_

1. Fully shade in the required Priority square using a dark pencil or marker, staying within the square.

2. each request must be submitted as a separate item, with its own Filing sheet as the FIRST PAGE.

CERTIFICATE OF MERGER (Under Section 252-c)	State of Delaware Secretary of State Division of Corporations Delivered 05:30 PM 01/06/2004 FILED 05:22 PM 01/06/2004 SRV 040008205 - 0707723 FILE
of
Borman’s, Inc. (a Delaware corporation)
and
18940 Weaver Corporation (a Michigan corporation)
INTO
Borman’s, Inc. (a Delaware corporation)

1. The name and state of each of the constituent corporations is as follows:

Name	State of Incorporation
Borman’s, Inc. 18940 Weaver Corporation	Delaware Michigan

2. An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with subsection 252-c.

3. The surviving corporation is Borman’s, Inc,, a Delaware corporation.

4. The certificate of incorporation of the surviving corporation shall be its certificate of incorporation.

5. The executed agreement of merger is on file at the principal place of business of the surviving corporation, and the address thereof is: 2 Paragon Drive, Montvale, NJ 07645

6. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation,

7. The number of shares the merged Michigan corporation is authorized to issue is 50,000 at 1.00 par value

IN WITNESS WHEREOF, Borman’s, Inc., has caused this certificate to be signed by William P. Costantini, Senior Vice President this 5th day of December, 2003

/s/ William P. Costantini

William P. Costantini

Senior Vice President

EX-99.T3A.16

Exhibit A-16

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

704590

CERTIFICATE OF INCORPORATION

Of

BRIDGE STUART INC.

(Under Section 402 of the Business Corporation Law)

THE UNDERSIGNED, for the purpose of forming a corporation pursuant to the provisions of Section 402 of the Business Corporation Law of the State of New York, CERTIFIES:

FIRST: The name of the corporation is:

BRIDGE STUART INC.

SECOND: The corporation is formed for the following purposes:

(a) To purchase, lease, exchange, hire or otherwise acquire lands with or without buildings thereon, or any interest therein, whatsoever and wheresoever situated; to erect, construct, rebuild, enlarge, alter, improve, maintain, manage, and operate houses, buildings or other works of any description on any lands owned or leased by the corporation, or upon any other lands; to sell, lease, sublet, mortgage, exchange, or otherwise dispose of any of the lands or any interest therein, or any houses, buildings or other works owned by the corporation; to engage generally in the real estate business, as principal, agent, broker, or otherwise, and generally to buy, sell, lease, mortgage, exchange, manage, operate, and deal in lands or interests in lands, houses, buildings or other works; and to purchase, acquire, hold, exchange, pledge, hypothecate, sell, deal in, and dispose of tax liens and transfers of tax liens on real estate.

SRE

(b) To make, enter into, perform, and carry out contracts for constructing, building, altering, improving, repairing, decorating, maintaining, furnishing and fitting up buildings, tenements, and structures of every description, and to advance money to and enter into agreements of all kinds with builders, contractors, property owners, and others, for said purpose.

(c) To purchase, take, receive, subscribe for or otherwise acquire, own, hold, employ, sell, land, lease, exchange, transfer, or otherwise dispose of, mortgage, pledge, use and otherwise deal in and with, bonds and other obligations, shares, or other securities or interests issued by others, whether engaged in a similar or different business, governmental, or other activities, and any certificates or other instruments representing rights to receive, purchase or subscribe for the same, or representing any other rights or interests therein or in any property or assets; to pay for the same in cash, stock, bonds, obligations, or other securities of this corporation or otherwise; and to exercise as owner or holder of the same any and all rights, powers and privileges in respect thereof.

2

(d) To the extent permitted by law, to make contracts, give guarantees and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage or pledge of, or the conveyance in trust of, all or any of its real or personal property, assets, business or good will, then owned or thereafter acquired, or any interest therein, wherever situated.

(e) To lend money, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested, to the extent now or hereafter permitted by the laws of the State of New York.

(f) To the extent permitted by law, to purchase, receive, take or otherwise acquire, own, hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal in and with its own shares, bonds and other securities.

(g) To the extent permitted by law, to be a promoter, partner, member, stockholder, associate or manager of other business enterprises or ventures, or to the extent permitted in any other jurisdiction to be an incorporator of other corporations, of any type or kind.

(h) To acquire by purchase, exchange or otherwise, all, or any part of, or any interest in, the properties, assets, business and good will of any one or more persons, firms, associations or corporations; to pay for the same in cash, property

3

of its own or other securities; to hold, operate, reorganize, liquidate, sell or in any manner dispose of the whole or any part thereof; and in connection therewith, to assume, guarantee performance of or otherwise provide for any liabilities, obligations or contracts of such persons, firms, associations or corporations, and to conduct the whole or any part of any similar business thus acquired.

(i) To apply for, purchase or otherwise acquire, own, use, introduce, develop, exploit and deal in, sell, assign, or otherwise dispose of and grant licenses or sub-licenses in respect of, or otherwise turn to account, any trademarks, trade-names, patents, inventions, copyrights, service marks, improvements and processes.

(j) To do everything necessary, proper, advisable or convenient for the accomplishment of any of the purposes or the furtherance of any of the powers herein set forth and to do every other act and thing incidental thereto or connected therewith, provided the same be not forbidden by the laws of the State of New York.

The foregoing clauses shall be construed as powers as well as purposes, and the matters expressed in each clause shall, except if otherwise expressly provided, be in no wise limited by reference to or inference from the terms of any other clause, but shall be regarded as independent purposes and powers; and the enumeration of specific purposes and powers shall not be

4

construed to limit or restrict in any manner the meaning of general terms or the general powers of the corporation as conferred by the laws of the State of New York now or hereafter in force; nor shall the expression of one thing be deemed to exclude another not expressed, although it be of like nature.

The corporation shall have and shall be authorized to exercise and enjoy all other powers, rights and privileges granted to corporations formed under the Business Corporation Law and all the powers conferred upon such corporations by the laws of the State of New York, as in force from time to time, or which may be conferred by all acts here to fore or hereafter amendatory of or supplemental to said laws.

THIRD: The office of the corporation shall be located in the City of New York in the County of New York.

FOURTH: The aggregate number of shares which the corporation shall have authority to issue is 200, all of which are without par value and all of which are of the same class.

FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against the corporation may be served and the address to which the Secretary of State shall mail a copy of any process against the corporation which may be served on him is c/o Kramer, Lowenstein, Nessen & Kamin, 500 Fifty Avenue, New York, New York 10036.

SIXTH: The duration of the corporation shall be perpetual.

5

SEVENTH: The Board of Directors of the corporation shall have the power subject to the provisions of the laws of the State of New York, to amend, repeal or adopt the By-Laws of the corporation.

Dated: September 10, 1968

Incorporator:

/s/ Beatrice Harman

BEATRICE HARMAN

500 Fifth Avenue

New York, New York 10036

6

STATE OF NEW YORK,	)
	)	ss.:
COUNTY OF NEW YORK,	)

On the date hereinafter set forth, before me came Beatrice Harman, to me known to be the individual who is described in and who signed the foregoing certificate of incorporation, and he acknowledged to me that she signed the same.

Dated: Sept. 10, 1968

/s/ Mary H. DeWitt

Notary Public

7

704590

CERTIFICATE OF INCORPORATION

Of

BRIDGE STUART INC.

(Under Section 402 of the Business Corporation Law)

Kramer, Lowenstein, Nessen & Kamin

500 Fifth Avenue

New York, N.Y.

10036

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF

BRIDGE STUART INC.

UNDER SECTION 805 –A OF THE BUSINESS CORPORATION LAW

BRIDGE STUART INC., a domestic corporation, hereby certifies: FIRST: That the name of the corporation is BRIDGE STUART INC. SECOND: That its Certificate of Incorporation was filed with the Secretary of State of New York on September 11, 1968. THIRD: That the following change is effected hereby:
	(a) To change the post office address to which the Secretary of State shall mail a copy of any process against the corporation served upon him so that such address shall hereafter be in care of James D. Dougherty, Esq., Supermarkets General Corporation, 301 Blair Road, Woodbridge, New Jersey- 07095.

FOURTH: That the above described change was authorized by the unanimous consent of the sole shareholder of BRIDGE STUART INC.

IN WITNESS WHEREOF, I subscribe this Certificate and affirm that the statements made herein are true under the penalties of perjury, this 2^nd day of November, 1981.

BRIDGE STUART INC.
By	/s/ James D. Dougherty
	James D. Dougherty
	Senior Vice President and Secretary

	A823005 CERTIFICATE OF CHANGE OF BRIDGE STUART INC.
UNDER SECTION 805 –A OF THE BUSINESS CORPORATION LAW
	FILED BY: MARC A. STRASSLER 301 BLAIR ROAD WOODBRIDGE, NEW JERSEY 07095

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

080211000912

New York State

Department of State

Division of Corporations, State Records

and Uniform Commercial Code

41 State Street

Albany, NY 12231

www.dos.state.ny.us

CERTIFICATE OF CHANGE

OF

BRIDGE STUART INC.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

FIRST: The name of the corporation is: BRIDGE STUART INC.

If the name of the corporation has been changed, the name under which it was formed is:  

.

SECOND: The certificate of incorporation was filed by the Department of State on: 9/11/1968

THIRD: The change(s) effected hereby are: [check appropriate statement(s)]

¨      The country location, within this state, in which the office of the corporation is located, is changed to:  

.

x The address to which the Secretary of state shall forward copies of process accepted on behalf of the corporation is changed to read in its entirety as follows: C/O BLUMBERGEXCELSIOR, 62 WHITE ST., 2ND FL., NY, NY 10013

x The corporation hereby: [check one]

x Designates BLUMBERGEXCELSIOR CORPORATE SERVICES, INC. as its registered agent upon whom process against the corporation may be served. The street address of the registered agent is: 62 WHITE ST., 2ND FL., NY, NY 10013

¨ Changes the designation of its registered agent to:                                                                                                                       . The street address of the registered agent is:                                                                                                                                                                  .

¨ Changes the address of its registered agent to:                                                                                                                                               

                                                                                                                                                                                    .

¨ Revokes the authority of its registered agent.

DOS -1556 (Rev. 10/07)

-1-

080211000912

FOURTH: The change was authorized by the board of directors.

/s/    Christopher McGarry	Christopher McGarry
(Signature)	(Name of Signer)
	President
	(Title of Signer)

CERTIFICATE OF CHANGE

OF

BRIDGE STUART INC.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

Filer’s Name BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

Address 62 WHITE ST., 2ND FL.

City, State and Zip Code NEW YORK, NY 10013

NOTE: This form was prepared by the New York State Department of State. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that all documents be prepared under the guidance of an attorney. The certificate must be submitted with a $30 filing fee.

For Office Use Only

-2-

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State Division of Corporations, Records and UCC Albany, NY 12231-0002 www.dos.state.ny.us	Business Corporation Biennial Statement
227885 Business Name: BRIDGE STUART INC. PATHMARK STORES INC 2 PARAGON DRIVE MONTVALE NJ 07645	227885

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer

2 PARAGON DRIVE MONTVALE NJ 07645	Name
	Brendu Galgano
	Address
	2 Paragon Drive
	City	State	Zip
	Montvale	NJ	07645

Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substituted)

PATHMARK STORES INC 2 PARAGON DRIVE MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip

Part 3: Address for Service of Process

C/O CLUMBERGEXCELSIOR 62 WHITE ST. 2ND FL NEW YORK NY 10013	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption

¨ Check if applicable This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filling fee is required for farm corporations.

Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

Signature	Name of Signer (Please Print)
Treasurer
Title of Signer (Please Print)

DOS-1179 (08/06)

EX-99.T3A.17

Exhibit A-17

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

- of -

CLAY-PARK REALTY CO., INC.

(Pursuant to Article Two of the Stock Corporation Law).

– – –

WE, THE UNDERSIGNED, for the purpose of forming a corporation pursuant to Article Two of the Stock Corporation Law of the State of New York, certify:

FIRST: The name of the proposed corporation is CLAY-PARK REALTY CO., INC.

SECOND: The purposes for which this corporation is formed are as follows, to wit:

(a) To take, buy, exchange, lease, or otherwise acquire real estate and any interest or right therein, and to hold, own, operate, control, maintain, manage and develop the some and to construct, maintain, alter, manage and control, directly or through ownership of stock in any other corporation any and all kinds of buildings, stores, offices, warehouses, mills, shops, factories, machinery and plants, and any all other structures and creations which may at any time be necessary, useful, or advantageous for the purposes of this corporation.

(b) To sell, assign and transfer, convey, lease, or otherwise alienate or dispose of, and to mortgage or otherwise encumber the lands, buildings, real and personal property of the corporation wherever situated, and any and all legal and equitable interests therein.

(c) To purchase, sell, lease, manufacture, deal in and deal with every kind of goods, wares and merchandise and every kind of personal property, including patents and patent rights, chattels, easements, privileges, franchises which may lawfully be purchased, sold, produced or dealt in by corporations formed under Article Two of the Stock Corporation Law of the State of New York.

(d) To purchase, acquire, hold and dispose of the state bonds and other evidences of indebtedness of any corporation, domestic or foreign, and to issue in exchange therefor its stocks, bonds or other obligations, and to exercise in respect thereof all the rights, powers and

privileges of individual owners, including the right to vote thereon; and to aid in any manner permitted by law any corporation of which any bonds or other securities or evidences of indebtedness or stocks are held by this corporation, and to do any acts or things designed to protect, improve or enhance the value of any such bonds or other securities or evidence of indebtedness of stock.

(e) As principal, agent or broker, and on commission or otherwise, to buy, sell, exchange, lease, let, grant or take licenses in respect of, improve, develop, repair, manage, maintain and operate real property of every kind corporeal and incorporeal, and every kind of estate, right or interest therein or pertaining thereto; to plan, design, construct, improve, repair, rase and wreck buildings, structures, and works of all kinds, for itself and for others; to buy, sell and deal in building structures and works of all kinds, for itself or for others; to buy, sell and deal in buildings, materials and supplies; to advance loans secured by mortgages or other liens on real estate; to act as loan brokers; generally to do everything suitable, proper and conducive to the successful conduct of a real estate business and real estate agency and brokerage business in all its branches and departments.

(f) The foregoing and following clauses shall be construed as objects and powers in furtherance and not in limitation of the general powers conferred by the laws of the State of New York; and it is hereby expressly provided that the foregoing and following enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation, and that this corporation may do all and everything necessary, suitable or proper for the accomplishment of any of the purposes or objects hereinabove enumerated either alone or in association with other corporations, firms or individuals, to the same extent and as fully as individuals might or could do as principals, agents, contractors or otherwise.

THIRD: The number or shares of stock which the corporation will be authorized to issue is Two Hundred (200) Shares of Common Stock, each of no par value. The capital of the corporation shall be at least equal to the sum of the aggregate par value of all the shares issued having par value, plus the aggregate amount of consideration received by the corporation for the issuance of shares without par value, plus such amounts as, from time to time, by resolution of the Board of Directors, may be transferred thereto.

FOURTH: The office of the corporation is to be located in the City of New York, County of New York, State of New York. The address to which the Secretary of State shall mail a copy of

- 2 -

any process against the corporation which may be served upon him pursuant to law is in care of Tenzer, Greenblatt, Fallon & Kaplan, 1501 Broadway, Manhattan, City of New York.

FIFTH: The duration of said corporation shall be perpetual.

SIXTH: The number of directors shall be four, who need not be stockholders.

SEVENTH: The names and post office addresses of the directors until the first annual meeting of the stock-holders are as follows:

NAMES	POST OFFICE ADDRESSES
BARNETT ROSENFELD	1501 Broadway, New York City
ELVIE HOLZER	1501 Broadway, New York City
HARRIET FLOME	1501 Broadway, New York City
MARY GORDON	1501 Broadway, New York City

EIGHTH: The names and post office addresses of the subscribers of this certificate of incorporation and a statement of the number of shares which each agrees to take in the corporation are as follows:

NAMES	P. O. ADDRESSES	NO. OF SHARES
BARNETT ROSENFELD	1501 Broadway, New York City	1
ELVIE HOLZER	1501 Broadway, New York City	1
HARRIET FLOME	1501 Broadway, New York City	1
MARY GORDON	1501 Broadway, New York City	1

NINTH: The Secretary of State is designated as the agent of the corporation upon whom process in any action or proceeding against it may be served within the State of New York.

TENTH: All of the subscribers of this certificate are of full age, and at least two-thirds of them are citizens of the United States, at least one of them is a resident of the State of New York, and at least one of the persons named as a director is a citizen of the United States and a resident of the State of New York.

- 3 -

IN WITNESS WHEREOF, we have made, subscribed and acknowledged this certificate this 7th day of November, 1945.

- 4 -

On this 7th day of November, 1945, before me personally came MARY GORDON, ELVIE HOLZER, HARRIET FLOME and BARNETT ROSERFELD, to me known and knows to be the individuals described and who executed the foregoing certificate of incorporation, and they duly acknowledged to me that they executed the same.

- 5 -

6510            62

CERTIFICATE OF INCORPORATION

- of -

CLAY-PARK REALTY CO., INC.

- - -

Pursuant to Article Two of

the Stock Corporation Law.

- - -

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE OF ADDRESS TO WHICH SECRETARY

OF STATE IS DIRECTED TO MAIL COPIES OF

PROCESS, PURSUANT TO SEC. 24 OF THE STOCK

CORPORATION LAW.

–  –  –  –

CLAY-PARK REALTY CO. INC., a corporation duly organized and existing under the laws of the State of New York, pursuant to Sec. 24 of the Stock Corporation Law of the State of New York, states:

1. That the Certificate of Incorporation of this corporation was filed with the Secretary of State on November 8, 1945.

2. That the address designated in the aforesaid Certificate of Incorporation as the address to which the Secretary of State is directed to mail copies of process that may be served upon him in actions or proceedings brought against the corporation is as follows:

c/o	TENZER, GREENBLATT, FALLON & KAPLAN,
	Attorneys,
	1501 Broadway
	Borough of Manhattan, City of New York.

3. That the address to which the Secretary of State is directed hereafter to mail copy of process against the corporation is hereby changed to:

3339 Park Avenue,

New York 56, N. Y.

IN WITNESS WHEREOF, said corporation has caused this certificate to be executed in its name and under its corporate seal by its President, ABRAHAM J. DUBIN, this 18^th day of April, 1950.

President.

STATE OF NEW YORK	)
CITY OF NEW YORK	)	SS:
COUNTY OF NEW YORK	)

On this 18^th day of April, 1950, before me personally came ABRAHAM J. DUBIN, to me known and known to me to be the person described in and who executed the foregoing Certificate, and he thereupon duly acknowledged to me that he executed the same, and being duly sworn, deposes and says that he resides at 336 West End Avenue, Borough of Manhattan, City of New York; that he is the President of CLAY-PARK REALTY CO. INC., the corporation described in the foregoing instrument and that he executed the said instrument in the name of said corporation and affixed thereto the corporate seal of such corporation, for the purpose of complying with Sec. 24 of the Stock Corporation Law of the State of New York.

7748            112

CERTIFICATE OF CHANGE OF

ADDRESS TO WHICH SECRETARY

OF STATE IS DIRECTED TO MAIL

COPIES OF PROCESS

Pursuant to Sec. 24 of the

Stock Corporation Law.

of

CLAY-PARK REALTY CO. INC.

– – – – – – – – – – – – –

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF AMENDMENT

of

CERTIFICATE OF INCORPORATION

of

CLAY-PARK REALTY CO., INC.

Pursuant to Section 36 of

the stock Corporation Law

We, the undersigned, being the holders of record of all of the outstanding shares of the corporation entitled to vote, certify:

1. The name of the corporation is CLAY-PARK REALTY CO., INC.

2. The Certificate of Incorporation was filed in the office of the Secretary of State on the 8^th day of November, 1945.

3. The Certificate of Incorporation is hereby amended as authorized in subdivision 2 of Section 35 of the Stock Corporation Law to effect the following amendment:

to change the statement with reference to the number of directors.

4. To accomplish such amendment, paragraph “SIXTH” of the Certificate of Incorporation referring to the number of directors of the corporation is amended to read as follows:

“SIXTH: The number of directors shall be not less than three nor more than eleven. Directors need not be stockholders.”

IN WITNESS WHEREOF, we have made and subscribed this Certificate this 24^th day of May, 1957.

DAITCH CRYSTAL DAIRIES, INC.
By	/s/ Louis H. Taxin
	Louis H. Taxin, President
L. DAITCH & CO., INC.
By	/s/ Herbert B. Daitch
	Herbert B. Daitch, President

STATE OF NEW YORK	)
COUNTY OF NEW YORK	)	SS:

On this 24^th day of May, 1957, before me personally came LOUIS H. TAXIN and HERBERT B. DAITCH, to me known who, being by me duly sworn, did depose and say that they are duly authorized officers of DAITCH CRYSTAL DAIRIES, INC. and L. DAITCH & CO., INC., to wit, the Presidents of each thereof, respectively, the corporations described in and which executed the above Certificate; that they each know the respective seals of said corporations; that the seals affixed to said instrument are such corporate seals; that they are so affixed by orders of the respective Boards of Directors of said corporations, and that they signed their respective names thereto by like order.

STATE OF NEW YORK	)
COUNTY OF NEW YORK	)	SS:

SAUL J. WEINERT, being duly sworn, deposes and says: That he is the Assistant Secretary of CLAY-PARK REALTY CO., INC.; that the persons who executed the foregoing Certificate in person or by proxy constitute the holders of record of all of the outstanding shares of the corporation entitled to vote with relation to the proceedings provided for in this Certificate.

Sworn to before me, this 24^th day of May, 1957.

CERTIFICATE OF AMENDMENT   OF   CERTIFICATE OF INCORPORATION   OF   CLAY-PARK REALTY CO., INC.   (Pursuant to Section 36 of the Stock Corporation Law)     65123

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

873873

CERTIFICATE OF CHANGE

OF

CLAY-PARK REALTY CO., INC.

(Under Section 805-A of the Business Corporation Law)

Pursuant to the provisions of Section 805-A of the Business Corporation Law, the undersigned being respectively the President and the Secretary of CLAY-PARK REALTY CO., INC. (hereinafter called the “Corporation”) hereby certify as follows:

FIRST: The name of the Corporation is CLAY-PARK REALTY CO., INC. The name under which the Corporation was formed is DAITCH AND DUBIN DAIRY STORES CORP.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State on November 7, 1945.

THIRD: The change in the Certificate of Incorporation effected by this Certificate of Change is as follows:

To change the post office address and the location of the office to which the Secretary of State of the State of New York shall mail a copy of any process against the Corporation served upon said Secretary of State.

FOURTH: To accomplish the foregoing change, Article “4” of the Certificate of Incorporation, relating to change of process address, is hereby stricken out in its entirety, and the following new Article is substituted in lieu thereof:

“4: The principal office of said Corporation is to be located in the Borough of Bronx, County of Bronx, City and State of New York, and the Address to which the Secretary of State shall mail a copy of process in any action or proceeding against the Corporation which may be served upon him, shall be 400 Walnut Avenue, Bronx, New York.”

The foregoing change was approved by the Board of Directors.

IN WITNESS WHEREOF, we have subscribed this document on November 19, 1970, and hereby affirm, under the penalties of perjury, that the statements contained herein have been examined by us and are true and correct.

/s/ Herbert B. Daitch

HERBERT B. DAITCH, President

/s/ Robert Sidorsky

ROBERT SIDORSKY, Secretary

-2-

Original

873873

CERTIFICATE OF CHANGE

OF

CLAY-PARK REALTY CO., INC.

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State Division of Corporations, Records and UCC Albany, NY 12231-0002 www.dos.state.ny.us	Business Corporation Biennial Statement
56754 Business Name: CLAY-PARK REALTY CO., INC. CLAY-PARK REALTY CO., INC. ATTN: TAX DEPT 2 PARAGON DR MONTVALE NJ 07645	56754

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer

2 PARAGON DR MONTVALE NJ 07645	Name
	Christian Haub
	Address
	2 Paragon Drive
	City	State	Zip
	Montvale	NJ	07645

Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substitued)

CLAY-PARK REALTY CO., INC. ATTN: TAX DEPT 2 PARAGON DR MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip

Part 3: Address for Service of Process

CLAY-PARK REALTY CO., INC. C/O A & P 2 PARAGON DR MONTVALE NJ 07645	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption

¨ Check if applicable This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filling fee is required for farm corporations.

Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

/s/ Michael Gualtieri	/s/ Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

DOS-1179 (08/06)

EX-99.T3A.18

Exhibit A-18

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “COMPASS FOODS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY–FIFTH DAY OF JUNE, A.D. 1969, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “COMPASS FOODS, INC.”.

/s/ Jeffrey W. Bullock    

Jeffrey W. Bullock, Secretary of State

AUTHENTICATION:    8418718

DATE:    12–10–10

PAGE 1

CERTIFICATE OF INCORPORATION

–of–

COMPASS FOODS, INC.

– – – – – – –

United States Corporation Company

306 South State Street, Dover, Delaware

Albany, N. Y.	Los Angeles, Cal.
Carson City, Nev.	Philadelphia, Pa.
Chicago, IL	St. Louis, Mo.
Jersey City, N.J.	Washington, D.C.

Executive Offices

60 Wall Street, New York, New York 10005

CERTIFICATE OF INCORPORATION

-of-

COMPASS FOODS, INC.

I, THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, do hereby certify as follows:

FIRST:  The name of the corporation is

COMPASS FOODS, INC.

SECOND:  The registered office of the corporation is to be located at 306 South State Street, in the City of Dover, in the County of Kant, in the State of Delaware. The name of its registered agent at that address is the United States Corporation Company.

THIRD:  The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.

Without limiting in any manner the scope and generality of the foregoing, it is hereby provided that the corporation shall have the following purposes, objects and powers:

To develop, experiment with, manufactures, produce, refine, reduce, condense, evaporate, vaporize, blend, analyze, compress, liquify, extract, separate, purify, combine, mix and otherwise prepare for market, and to sell, transport, import, export and

1

generally deal in and with (as principal, agent, broker, factor, commission merchant, contractor, subcontractor, or in any combination thereof, and at wholesale or retail or both) any and all kinds of (a) foods, foodstuffs, feeds, feedstuffs, and all products of the farm, ranoh, dairy, vineyard, orchard or river or salt water and whether used for human or animal consumption or otherwise; (b) drug, pharmaceutical, medicinal, proprietary, chemical and other products, preparations, articles and compounds, as well as the products, by-products and derivatives thereof, and the raw materials, natural resources, natural products and manufactured articles and products which enter into the preparation thereof; (c) any other products that may be profitably dealt in connection with the operation of food or drug stores or commissaries; and (d) raw materials, natural or manufactured articles or products, machinery, equipment, devised, systems, parts, supplies, apparatus and personal property of every kind, nature or description, tangible or intangible, used or capable of being used for any purpose whatsoever; and to engage and participate in any mercantile, manufacturing or trading business of any kind or character.

To purchase, manufacture, produce, assemble, receive, lease or in any manner acquire, hold, own, use, operate, install, maintain, service, repair, process, alter, improve, import, export, sell, lease, assign, transfer and generally to trade and deal in and with raw materials, natural or manufactured articles or products, machinery, equipment, devices, systems, parts, supplies, apparatus, goods, wares, merchandise and personal property of every kind, nature or description, tangible or intangible, used or capable of being used for any purpose whatsoever; and to engage and participate in any mercantile, manufacturing or trading business of any kind or character.

To improve, manage, develop, sell, assign, transfer, lease, mortgage, pledge or otherwise dispose of or turn to account or deal with all or any part of the property of the corporation and from time to time to vary any investment or employment of capital of the corporation.

To borrow money, and to make and issue notes, bonds, debentures, obligations and evidences of indebtedness of all kinds, whether secured by

2

mortgage, pledge or otherwise, without limit as to amount, and to secure the same by mortgage, pledge or otherwise; and generally to make and perform agreements and contracts of every kind and description, including contracts of guaranty and suretyship.

To lend money for its corporate purposes, invest and reinvest its funds, and take, hold and deal with real and personal property as security for the payment of funds so loaned or invested.

To the same extent as natural persons might or could do, to purchase or otherwise acquire, and to hold, own, maintain, work, develop, sell, lease, exchange, hire, convey, mortgage or otherwise dispose of and deal in lands and leaseholds, and any interests, estate and rights in real property, and any personal or mixed property, and any franchises, rights, licenses or privileges necessary, convenient or appropriate for any of the purposes herein expressed.

To apply for, obtain, register, purchase, lease or otherwise to acquire and to hold, own, use, develop, operate and introduce and to sell, assign, grant licenses or territorial rights in respect to, or otherwise to turn to account or dispose of, any copyrights, trade marks, trade names, brands, labels, patent rights, letters patent of the United States or of any other country or government, inventions, improvements and processes, whether used in connection with or secured under letters patent or otherwise.

To participate with others in any corporation, partnership, limited partnership, joint venture, or other association of any kind, or in any transaction, undertaking or arrangement which the participating corporation would have power to conduct by itself, whether or not such participation involves sharing or delegation of control with or to others; and to be an incorporator, promoter or manager of other corporations of any type or kind.

To pay pensions and establish and carry out pension, profit sharing, stock option, stock purchase, stock bonus, retirement, benefit, incentive and commission plans, trusts and provisions for any or all of its directors, officers and employees, and for any or all of the directors, officers and employees of its subsidiaries; and to provide insurance

3

for its benefit on the life of any of its directors, officers or employees, or on the life of any stockholder for the purpose of acquiring at his death shares of its stock owned by such stockholders.

To acquire by purchase, subscription or otherwise, and to hold for investment or otherwise and to use, sell, assign, transfer, mortgage, pledge or otherwise deal with or dispose of stocks, bonds or any other obligations or securities of any corporation or corporations; to merge or consolidate with any corporation in such manner as may be permitted by law; to aid in any manner any corporation whose stocks, bonds or other obligations are held or in any manner guaranteed by this corporation, or in which this corporation is in any way interested; and to do any other acts or things for the preservation, protection, improvement or enhancement of the value of any such stock, bonds or other obligations; and while owner of any such stock, bonds or other obligations to exercise all the rights, powers and privileges of ownership thereof, and to exercise any and all voting powers thereon; and to guarantee the payment of dividends upon any stock, the principal or interest or both, of any bonds or other obligations, and the performance of any contracts.

To do all and everything necessary, suitable and proper for the accomplishment of any of the purposes or the attainment of any of the objects or the furtherance of any of the powers hereinbefore set forth, either alone or in association with other corporations, fires or individuals, and to do every other act or acts, thing or things incidental or appurtenant to or growing out of or connected with the aforesaid business or powers or any part or parts thereof, provided the same be not inconsistent with the Laws under which this corporation is organized.

The business or purpose of the corporation is from time to time to do any one or more of the acts and things hereinabove set forth, and it shall have power to conduct and carry on its said business, or any part thereof, and to have one or more offices, and to exercise any or all of its corporate powers and rights, in the State of Delaware, and in the various other states, territories, colonies and dependencies of the United States, in the District of Columbia, and in all or any foreign countries.

4

The enumeration herein of the objects and purposes of the corporation shall be construed as powers as well as objects and purposes and shall not be deemed to exclude by inference any powers, objects or purposes which the corporation is empowered to exercise, whether expressly by force of the laws of the State of Delaware now or hereafter in effect, or impliedly by the reasonable construction of the said laws.

FOURTH: The total number of shares of stock which the corporation is authorized to issue is one hundred (100) shares of the per value of one hundred dollars ($100.00) each, amounting in the aggregate to ten thousand dollars ($10,000.00).

FIFTH: The name and address of the incorporator are:

NAME	ADDRESS
Fred E. Campbell	420 Lexington Avenue, New York, N. Y. 10017

SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and stockholders:

(1) The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in the by-laws. Election of directors need not be by ballot unless the by-laws so provide.

(2) The Board of Directors shall have power without the assent or vote of the stockholders

(a) To make, alter, amend, change, add to or repeal the By-Laws of the corporations; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mort-

5

gages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends

(b) To determine from time to time whether, and to what extent, and at what times and places, and under what conditions and regulations, the accounts and books of the corporation (other than the stock ledger) or any of them, shall be open to the inspection of the stockholders.

(3) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and as binding upon the corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.

(4) In addition to the powers and authorities herein before or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes

6

of Delaware, of this certificate, and to any by-laws from time to time made by this stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.

SEVENTH: The corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from this to time, indemnify all persons whom it may indemnify pursuant thereto.

EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case

7

may be, agree to any compromise or arrangement and to any reorganization of this cororation [sic] as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

NINTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.

IN WITNESS WHEREOF, I have hereunto set my hand and seal, the 23rd day of June, 1969.

In the presence of:

(L.S.)

8

STATE OF NEW YORK	)
	)
COUNTY OF NEW YORK	)

BE IT REMEMBERED that on this 23rd day of June, 1969, personally came before as, THERESA HANLON, a Notary Public in and for the County and State aforesaid, Fred E. Campbell, party to the foregoing Certificate of Incorporation, known to as personally to be such, and acknowledged the said Certificate to be his act and deed, and that the facts therein stated are true.

GIVEN under my hand and seal of office the day and year aforesaid.

/s/ Theresa Hanlon

Theresa Hanlon, Notary Public

9

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003

030016313 – 0718209

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

COMPASS FOODS, INC.

COMPASS FOODS, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: COMPASS FOODS, INC.

TWO:	That a meeting of the Board of Directors of COMPASS FOODS, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

By:	JOSE MOJICA
	Jose Mojica
	President

EX-99.T3A.19

Exhibit A-19

Delaware

The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “EAST BRUNSWICK STUART LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE NINTH DAY OF SEPTEMBER, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF CONVERSION, CHANGING ITS NAME FROM “EAST BRUNSWICK STUART, INC.” TO “EAST BRUNSWICK STUART LLC”, FILED THE TWENTIETH DAY OF DECEMBER, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF FORMATION, FILED THE TWENTIETH DAY OF DECEMBER, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF DECEMBER, A.D. 2007, AT 11:41 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE SEVENTH DAY OF FEBRUARY, A.D. 2008, AT 4:09 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “EAST BRUNSWICK STUART LLC”.

		/s/ Jeffrey W. Bullock
		Jeffrey W. Bullock, Secretary of State
2942797          8100H	AUTHENTICATION: 8418723
101175319	DATE: 12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 09/09/1998 981351079 – 2942797

CERTIFICATE OF INCORPORATION

OF

EAST BRUNSWICK STUART, INC.

Under Section 102 of the

General Corporation Law

The undersigned, for the purpose of forming a corporation pursuant to the provisions of the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code 1953, as amended (the “GCL”), does hereby certify as follows:

FIRST: The name of the Corporation is EAST BRUNSWICK STUART, INC. (the “Corporation”).

SECOND: The registered office of the Corporation is to be located at 1013 Centre Road, in the City of Wilmington, in the County of New Castle, in the State of Delaware. The name of its registered agent at that address is Corporation Service Company.

THIRD:

A. Purpose

Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: The nature of the business and of the purposes to be conducted and promoted by the Corporation, is to engage solely in the following activities:

1. To acquire that certain parcel of real property, together with all improvements located thereon, in the City of East Brunswick, State of New Jersey, commonly known as 50 Race Track Road (the “Property”).

2. To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.

3. To exercise all powers enumerated in the General Corporation Law of the State of Delaware necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

B. Certain Prohibited Activities

Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: The Corporation shall only incur indebtedness in an amount necessary to acquire, operate and maintain the Property. For so long as any mortgage lien exists on the Property, the Corporation shall not incur, assume, or guaranty any other indebtedness except the Corporation may guarantee the indebtedness of Pathmark Stores, Inc. and its subsidiaries under that certain Credit Agreement dated as of June 30, 1997 among Pathmark Stores, Inc., the lenders party thereto, the Chase Manhattan Bank, as Administrative Agent, and CIBC Inc. and Corestates Bank, N. A., as Co-Agents, as in effect on the date hereof, and as such agreement may be amended, renewed, extended, supplemented or otherwise modified from time to time and any agreement or successive agreements incurred to refund, refinance or replace such credit agreement (the “Credit Agreement”). The Corporation shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (i) the entity (if other than the Corporation) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and assets of the Corporation substantially as an entirety (a) shall be organized and existing under the laws of the United States of America or any State or the District of Columbia, (b) shall include in its organizational documents the same limitations set forth in this Article Third and in Article Fourth, and (c) shall expressly assume the due and punctual performance of the Corporation’s obligations; and (ii) immediately after giving effect to such transaction, no default or event of default under any agreement to which it is a party shall have been committed by this Corporation and be continuing. For so long as a mortgage lien exists on the Property, the Corporation will not voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy code or any similar federal or state statute without the unanimous consent of the Board of Directors. For so long as a mortgage lien exists on the Property, no material amendment to this Certificate of Incorporation or to the corporation’s By-Laws may be made without first obtaining approval of the mortgagee holding a first mortgage lien on the property.

FOURTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: For so long as any mortgage lien exists on the Property, in order to preserve and ensure its separate and distinct corporate identity, in addition to the other provisions set forth in this Certificate of Incorporation, the Corporation shall conduct its affairs in accordance with the following provisions:

1. It shall establish and maintain an office through which its business shall be conducted separate and apart from those of its parent and any affiliate and shall allocate fairly and reasonably any overhead for shared office space.

2. It shall maintain separate corporate records and books of account from those of its parent and any affiliate.

- 2 -

3. Its Board of Directors shall hold appropriate meetings (or act by unanimous consent) to authorize all appropriate corporate actions, and in authorizing such actions, shall observe all corporate formalities.

4. It shall not commingle assets with those of its parent and any affiliate.

5. It shall conduct its own business in its own name.

6. It shall maintain financial statements separate from its parent and any affiliate.

7. It shall pay any liabilities out of its own funds, including salaries of any employees, not funds of its parent or any affiliate.

8. It shall maintain an arm’s length relationship with its parent and any affiliate.

9. It shall not guarantee or become obligated for the debts of any other entity, including its parent or any affiliate or hold out its credit as being available to satisfy the obligations of others, except as set forth above.

10. It shall use stationary, invoices and checks separate from its parent and any affiliate.

11. It shall not pledge its assets for the benefit of any other entity, including its parent and any affiliate, except as required by the Credit Agreement.

12. It shall hold itself out as an entity separate from its parent and any affiliate.

For purpose of this Article Fourth, the following terms shall have the following meanings:

“affiliate” means any person controlling or controlled by or under common control with the parent, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any director, officer or employee of the corporation, its parent, or any affiliate thereof and (ii) any person which receives compensation for administrative, legal or accounting services from this Corporation, its parent or any affiliate. For purposes of this definition, “control” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

- 3 -

“parent” means any individual, corporation, any other corporation owning or controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the corporation.

“person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

FIFTH: The total number of shares of stock which the Corporation is authorized to issue is 100 shares of Common Stock, par value $0.01 per share.

SIXTH: The name and mailing address of the incorporator is as follows:

Name	Address
John A. Calvo	100 Overlook Center Princeton, NJ 08540

SEVENTH: The corporation is to have perpetual existence.

EIGHTH: The original By-Laws of the Corporation shall be adopted by the initial incorporator named herein. Thereafter, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized, in addition to the stockholders, to make, alter, or repeal the By-Laws of the Corporation.

NINTH: A director of the Corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which the director derived an improper personal benefit. All references in this paragraph to a director shall also be deemed to refer to such other person or persons, if any, who, pursuant to any provision of this Certificate of Incorporation in accordance with subsection (a) of Section 141 of Title 8 of the Delaware Code, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Board of Directors by Title 8 of the Delaware Code. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations respecting the Property and shall not constitute a claim against the Corporation in the event that cash flow is insufficient to pay such obligations.

- 4 -

TENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision of the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the corporation. Election of directors need not be by written ballot unless the By-Laws of the Corporation shall so provide.

ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders are granted subject to this reservation, provided, however, that for so long as any mortgage lien exists on the Property, any such amendment shall be made in compliance with the provisions of Article Third.

I, THE UNDERSIGNED, being the incorporator as named above, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true, and accordingly have hereunto set my hand and seal this 8^th day of September 1998.

/s/ John A. Calvo

John A. Calvo

Incorporator

- 5 -

STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 12/20/2001 010662898 – 2942797

CERTIFICATE OF CONVERSION

CONVERTING

EAST BRUNSWICK STUART, INC.

(A Delaware Corporation)

TO

EAST BRUNSWICK STUART LLC

(A Delaware Limited Liability Company)

East Brunswick Stuart, Inc., the corporation that is converting to a Delaware limited liability company (the “Converting Corporation”), and East Brunswick Stuart LLC, the continuing Delaware limited liability company (the “Company”), hereby certify that:

1. Name of Converting Corporation. The name of the Converting Corporation immediately prior to the filing of this Certificate of Conversion was “East Brunswick Stuart, Inc.”.

2. Date and Jurisdiction of Organization of Converting Corporation. The date on which, and the jurisdiction where, the Converting Corporation was organized are as follows:

Date	Jurisdiction
September 9, 1998	Delaware

3. Name of Converted Limited Liability Company. The name of the Delaware limited liability company to which the Converting Corporation has been converted and the name set forth in the Certificate of Formation of the Company filed in accordance with Section 18-214(b) of the Delaware Limited Liability Company Act is “East Brunswick Stuart LLC”.

4. Approval of Conversion. The conversion of the Converting Corporation to the Company has been approved in accordance with the provisions of Section 266 of the General Corporation Law of the State of Delaware and Section 18-214 of the Delaware Limited Liability Company Act.

IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Conversion as of December 20, 2001.

EAST BRUNSWICK STUART, INC.
By:	/s/ Marc Strassler
Name:	Marc Strassler
Title:	Senior Vice President
EAST BRUNSWICK STUART LLC
By:	/s/ Frank Vitrano
Name:	Frank Vitrano
Title:	Authorized Person

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 12/20/2001

010662898 – 2942797

CERTIFICATE OF FORMATION

OF

EAST BRUNSWICK STUART LLC

The undersigned, an authorized person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

FIRST: The name of the limited liability company (hereinafter called the “Company”) is:

EAST BRUNSWICK STUART LLC

SECOND: The address of the registered office of the Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act in the State of Delaware is 2711 Centerville Road, Suite 400, in the City of Wilmington, in the County of New Castle, Delaware 19808. The registered agent for service of process at such address is Corporation Service Company.

THIRD:

A. Purpose. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern; The nature of the business and of the purposes to be conducted and promoted by the Company is to engage solely in the following activities:

(1) To acquire that certain parcel of real property, together with all improvements located thereon, in the Township of East Brunswick, State of New Jersey, commonly known as 50 Race Track Road (the “Property”).

(2) To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.

(3) To exercise all powers enumerated in the Delaware Limited Liability Company Act necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

B. Certain Prohibited Activities. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The Company shall only incur indebtedness in an amount necessary to acquire, operate and maintain the Property. For so long as any mortgage lien exists on the Property, the Company shall not incur, assume, or guaranty any other indebtedness. The Company shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (i) the entity (if other than the Company) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and assets of the Company substantially as an entirety (a) shall be organized and existing under the laws of the United States of America or any State or the District of Columbia, (b) shall include in its organizational documents the same limitations set forth in this Article Third and Article Fourth, and (c) shall expressly assume the due and punctual performance of the Company’s obligations; and (ii) immediately after giving effect to such transaction, no default or event of default under any agreement to which it is a party shall have been committed by this Company and be continuing. For so long as a mortgage lien exists on the Property, the Company will not voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy Code or any similar federal or state statute without the consent of the Member. For so long as a mortgage lien exists on the Property, no material amendment to this Certificate of Formation may be made without first obtaining approval of the mortgagee holding a first mortgage lien on the property.

2

FOURTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: For so long as any mortgage lien exists on the Property, in order to preserve and ensure its separate and distinct corporate identity, in addition to the other provisions set forth in this Certificate of Formation, the Company shall not:

(a) engage in any business or activity other than the ownership, operation and maintenance of the Property, and activities incidental thereto;

(b) acquire or own any material assets other than (i) the Property, and (ii) such incidental personal property as may be necessary for the operation of the Property;

(c) merge into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(d) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualification to do business in the state where the Property is located, if applicable, or amend, modify, terminate or fail to comply with the provisions of the Company’s Certificate of Formation or Articles of Organization or similar organizational documents, as the case may be;

(e) own any subsidiary or make any investment in any person or entity without the consent of Lender;

(f) commingle its assets with the assets of any of its members, general partners, affiliates, principals or of any other person or entity;

3

(g) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than any debt secured by a mortgage that is a lien against the Property, except for trade payables in the ordinary course of its business of owning and operating the Property, provided that such debt is not evidenced by a note and is paid when due;

(h) become insolvent and fail to pay its debts and liabilities from its assets as the same shall become due;

(i) fail to maintain its records, books of account and bank accounts separate and apart from those of the members, partners, principals and affiliates of the Company, the affiliates of a member, partner or principal of the Company, and any other person or entity;

(j) enter into any contract or agreement with any member, general partner, principal or affiliate of the Company, or any member, general partner, principal or affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any member, general partner, principal or affiliate of the Company, or any member, general partner, principal or affiliate thereof;

(k) seek the dissolution or winding up in whole, or in part, of the Company;

(l) fail to correct any known misunderstandings regarding the separate identity of the Company;

(m) hold itself out to be responsible for the debts of another person;

(n) make any loans or advances to any third party, including any member, general partner, principal or affiliate of the Company, or any member, general partner, principal or affiliate thereof;

4

(o) fail to file its own tax returns;

(p) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Company is responsible for the debts of any third party (including any member, general partner, principal or affiliate of the Company, or any member, general partner, principal or affiliate thereof):

(q) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;

(r) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors; or

(s) share any common logo with or hold itself out as or be considered as a department or division of (i) any general partner, principal, member or affiliate of the Company, (ii) any affiliate of a general partner, principal or member of the Company, or (iii) any other person or entity.

FIFTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations respecting the Property and shall not constitute a claim against the Company in the event that cash flow is insufficient to pay such obligations.

5

SIXTH: This Certificate of Formation may be amended form time to time by the Member, provided, however, that for so long as any mortgage lien exists on the Property, any such amendment shall be made in compliance with the provisions of Article Third hereof.

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of East Brunswick Stuart LLC this 20^th day of December, 2001.

/s/ Marc A. Strassler

Marc A. Strassler

Authorized Person

6

State of Delaware

Secretary of State

Division of Corporations

Delivered 11:41 AM 12/03/2007

FILED 11:41 AM 12/03/2007

SRV 071274891 – 2942797 FILE

CERTIFICATE OF AMENDMENT

OF

EAST BRUNSWICK STUART LLC

The undersigned, for the purpose of amending the Certificate of Formation of East Brunswick Stuart LLC, which was filed with the Secretary of State of the State of Delaware on December 20, 2001 (the “Certificate”), pursuant to Section of 18-202 of the Delaware Limited Liability Company Act, does hereby certify the following:

FIRST: The name of the limited liability company is: East Brunswick Stuart LLC.

SECOND: The Certificate is hereby amended by deleting each of Article Third, Article Fourth, Article Fifth and Article Sixth in its entirety.

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 3rd day of December, 2007.

/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Senior Vice President

State of Delaware

Secretary of State

Division of Corporations

Delivered 04:11 PM 02/07/2008

FILED 04:09 PM 02/07/2008

SRV 080131690 – 2942797 FILE

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

1. Name of Limited Liability Company: EAST BRUNSWICK STUART LLC                                                                         

2. The Certificate of Formation of the limited liability company is hereby amended as follows:

To change the registered agent as follows: Its registered office in the State of Delaware is to be located at: 1220 N. Market St., Suite 806, Wilmington, DE 19801, County of NEW CASTLE and its registered agent at such address is: BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 7^TH day of FEB, A.D. 08.

By:	/s/ Christoper McGarry
	Authorized Person(s)

Name:	CHRISTOPER MCGARRY
	Print or Type

EX-99.T3A.20

Exhibit A-20

STATE OF OHIO DEPARTMENT OF STATE		TED W. BROWN SECRETARY OF STATE
			RECEIPT NO. 113106
DATE 8/17/76		485607	E184–  1617	057
		NUMBER
RECEIVED OF

OR FILED BY         BORMAN’S, INC.                                                                                                                                            

THE SUM OF $                  50.00   FOR FILING     ARF                                                                                                                         OF    

FARMER JACK’S OF OHIO, INC.
RETURNED TO:	113106	ARF	$	50.00
C T CORPORATION SYSTEM
ATT: S.L.GAHLAU
615 GRISWOLD ST.
DETROIT, MI 48226
		TOTAL FEE	$	50.00
NAME:
FARMER JACK’S OF OHIO, INC.

ARTICLES OF INCORPORATION

OF

FARMER JACK’S OF OHIO, INC.

*    *    *

THE UNDERSIGNED, desiring to form a corporation for profit, under Sections 1701.01 et seq. of the Revised Code of Ohio, do hereby certify:

FIRST: The name of said corporation shall be FARMER JACK’S OF OHIO, INC.

SECOND: The place in the State of Ohio where its principal office is to be located is Cleveland in Cuyahoga County.

THIRD: The purposes for which it is formed are:

To engage in any lawful act or activity for which corporations may be formed under Sections 1701.01 to 1701.98 inclusive of the Revised Code of Ohio.

To purchase or otherwise acquire, lease as lessee, invest in, hold, use, lease as lessor, encumber, sell, exchange, transfer, and dispose of property of any description or any interest therein.

To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and tradenames, relating to or useful in connection with any business of this corporation.

To acquire by purchase, subscription or otherwise, and to receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge, or otherwise dispose of or deal in and with any of the shares of the capital stock, or any voting trust certificates in respect of the shares of capital stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other securities, obligations, choses in action and evidences of indebtedness or interest issued or created by any corporations, joint stock companies, syndicates, associations, firms, trusts or persons, public or private, or by the government of the United States of America or by any foreign government, or by any state, territory, province, municipality or other political subdivision or by any governmental agency, and as owner thereof to possess and exercise all the rights, powers and privileges of ownership, including the right to execute consents and vote thereon, and to do any and all acts and things necessary or advisable for the preservation, protection, improvement and enhancement in value thereof.

To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic or government or colony or dependency thereof.

To purchase or otherwise acquire all or any part of the business, good will, rights, property and assets, and to assume all or any part of the liabilities of any corporation, association, partnership or individual engaged in any business in which any corporation organized under sections 1701.01 et seq. of the Revised Code of Ohio is entitled to engage.

II

To borrow money, and issue, sell, and pledge its notes, bonds, and other evidences of indebtedness, and secure any of its obligations by mortgage, pledge, or deed of trust of all or any of its property, and guarantee or secure obligations of any person.

To purchase, hold, sell and transfer the shares of its own capital stock to the extent permitted by law but no such purchase may be made when there is reasonable ground for believing that the corporation is unable, or, by such purchase, may be rendered unable to satisfy its obligations and liabilities.

To conduct its business, and to have and maintain one or more offices, within and without the State of Ohio and in all other states and territories, in the District of Columbia, in all dependencies, colonies, or possessions of the United States of America and in foreign countries; and to purchase, or otherwise acquire, hold, own, equip, improve, manage, operate, promote, finance, sell, convey, mortgage or otherwise dispose of real and personal property in all such states and places, to the extent that the same may be permissible under the laws thereof.

To carry on any other lawful business and to do any and every thing necessary, suitable, convenient or proper for the accomplishment of any of the purposes or the attainment of any one or all of the objects hereinbefore enumerated or incidental to the powers herein named or for the enhancement of the value of the properties of the corporation or which shall at any time appear conducive thereto or expedient, either as holder of, or as interested in, any property or otherwise; to have all the rights, powers, and privileges now or hereafter conferred by the laws of the State of Ohio upon corporations

III

organized under sections 1701.01 et seq. of the Revised Code of Ohio or under any act amendatory thereof, supplemental thereto or substituted therefor.

The objects and purposes specified in the foregoing clauses shall, except where otherwise expressed, be in nowise limited or restricted by reference to, or inference from, the terms of any other clause in these articles of incorporation, but the objects and purposes specified in each of the foregoing clauses of this article shall be regarded as independent objects and purposes.

FOURTH: The authorized number of shares of the corporation is Five Hundred (500) all of which shall be with a par value of One Dollar ($1.00) each.

FIFTH: The amount of stated capital with which the corporation will begin business is Five Hundred Dollars ($500.00).

SIXTH: The following provisions are hereby agreed to for the purpose of defining, limiting and regulating the exercise of the authority of the corporation, or of the directors, or of all of the shareholders:

The board of directors is expressly authorized to set apart cut of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose or to abolish any such reserve in the manner in which it was created, and to purchase on behalf of the corporation any shares issued by it to the extent of the surplus of the aggregate of its assets over the aggregate of its liabilities plus stated capital.

IV

The corporation may in its regulations confer powers upon its board of directors in addition to the powers and authorities conferred upon it expressly by Sections 1701.01 et seq. of the Revised Code of Ohio.

Any meeting of the shareholders or the board of directors may be held at any place within or without the State of Ohio in the manner provided for in the regulations of the corporation.

Any amendments to the articles of incorporation may be made from time to time, and any proposal or proposition requiring the action of shareholders may be authorized from time to time by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the corporation.

SEVENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in its articles of incorporation, in the manner now or hereafter prescribed by Sections 1701.01 et seq. of the Revised Code of Ohio, and all rights conferred upon shareholders herein are granted subject to this reservation.

IN WITNESS WHEREOF, We have hereunto subscribed our names this 13^th day of August, 1976.

/s/ Sharon L. Gahlau

Sharon L. Gahlau

/s/ James L. Mulvdhill

James L. Mulvdhill

/s/ Candace M. Railing

Candace M. Railing

V

Original Appointment of Agent

The undersigned, being at least a majority of the incorporators of
FARMER JACK’S OF OHIO, INC.				,
	(Name of Corporation)
hereby appoint C T CORPORATION SYSTEM, a corporation having a business address in the
county in which                             FARMER JACK’S OF OHIO, INC.
	(Name of Corporation)
has its principal office, upon which any process, notice or demand required or permitted by statute
to be served upon the corporation may be served. Its complete address is Union Commerce
Blig.                                     ,	Cleveland                             ,	Cuyahoga	County, Ohio 44115.
(Street or Avenue)	(City or Village)
	FARMER JACK’S OF OHIO, INC.
	(Name of Corporation)
	/s/ Sharon L. Gahlau
	Sharon L. Gahlau
	/s/ James L. Mulvihill
	James L. Mulvihill
	/s/ Candace M. Railing
	Candace M. Railing
	(INCORPORATORS NAMES SHOULD BE TYPED OR PRINTED BENEATH SIGNATURES)
		Detroit, Michigan, Ohio
	August 13, 1976
FARMER JACK’S OF OHIO, INC.
	(Name of Corporation)
Gentlemen: C T CORPORATION SYSTEM hereby accepts appointment as agent of your corporation upon which process, tax notices or demands may be served.
	C T CORPORATION SYSTEM
By	/s/ James L. Mulvihill
	(Signature of Officer Signing and Title)
	James L. Mulvihill, Asst. Vice President

	State of Ohio		Anthony J. Celebrezze, Jr.
	Department of State		Secretary of State
	Date 12/15/81	Number 485607	Receipt No.	143623
			F005-1281	146

Received of BORMAN’S INC.

or filed by                                                                                                                                                                                                      The sum of $                         10.00 for filing         REN                                                                                                                            of FARMER JACK’S OF OHIO, INC.

		REN		10.00
Returned to:	143623		$
BORMAN’S INC
P.O. BOX 446
DETROIT, MI 48232
Name:		Total Fee:	$	10.00
FARMER JACK’S OF OHIO, INC.

The State of Ohio

Anthony J. Celebrezze, Jr.

Secretary of State

485607

It is hereby certified that the Secretary of State of Ohio has custody of the Records of Incorporation and Miscellaneous Filings; that

said records show the filing and recording of:         REN                                                                                                                               

                                                                                                                                                                                                                       of:

            FARMER JACK’S OF OHIO, INC.

United States of America State of Ohio Office of the Secretary of State	Recorded on Roll     F005     at Frame     1283     of the Records of Incorporation and Miscellaneous Filings.
	Witness my hand and the seal of the Secretary of State, at the City of Columbus, Ohio, this     10TH     day of     DEC    , A.D. 1981.
	/s/ Anthony J. Celebrezze, Jr.
	Anthony J. Celebrezze, Jr.
	Secretary of State

STATE OF OHIO

DEPARTMENT OF TAXATION

Secretary of State: December 3, 1981

This is to certify that all corporate franchise reports required to be made by the

FARMER JACK’S OF OHIO, INC.

thru the year         1981                     have been filed in pursuance of law, and that all taxes or fees

from such corporation have been paid. Additional tax liability may be incurred at a later date due to

a departmental audit of the corporation’s franchise tax returns.

Certificate for Reinstatement
(Sec. 5733.22 R.C.)	DEPARTMENT OF TAXATION
Tax I. D. #0043 1461
Charter No.         485607	By
		TAX COMMISSIONER

EX-99.T3A.21

Exhibit A-21

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “FOOD BASICS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SEVENTH DAY OF JUNE, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “FOOD BASICS, INC.”.

		/s/ Jeffrey W. Bullock
		Jeffrey W. Bullock, Secretary of State
3408929    8100H		AUTHENTICATION:	8418725
101175324		DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

FOOD BASICS, INC.

FIRST. The name of this corporation shall be:

FOOD BASICS, INC.

SECOND. Its registered office in the State of Delaware is to be located at 2711 Centerville Road Suite 400 in the City of Wilmington, County of New Castle and its registered agent at such address is CORPORATION SERVICE COMPANY

THIRD. The purpose or purposes of the corporation shall be:

To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

FOURTH. The total number of shares of stock which this corporation is authorized to issue is:

One Hundred (100) Shares With A Par Value Of Ten Cents ($.10) Per Share

FIFTH. The name and address of the incorporator is as follows:

Tracy Manganelli

Corporation Service Company

2711 Centerville Road Suite 400

Wilmington, DE 19808

SIXTH. The Board of Directors shall have the power to adopt, amend or repeal the by-laws.

SEVENTH. No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.

IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named, has executed, signed and acknowledged this certificate of incorporation this 27th day of June, 2001.

/s/ Tracy Manganelli

Tracy Manganelli

Incorporator

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

FOOD BASICS, INC.

FOOD BASICS, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: FOOD BASICS, INC.

TWO:	That a meeting of the Board of Directors of FOOD BASICS, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	/s/ Jose Mojica
By:	Jose Mojica
	President

EX-99.T3A.22

Exhibit A-22

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

–of–

GRAMATAN FOODTOWN CORP.

Pursuant to Article Two of the Stock Corporation Law.

WE, the undersigned, desiring to form a business corporation, pursuant to Article Two of the Stock Corporation Law of the State of New York, do hereby make, subscribe and acknowledge this Certificate for that purpose as follows:

FIRST: The name of the proposed corporation is:

GRAMATAN FOODTOWN CORP.

SECOND: The purposes for which it is to be formed are as follows:

A. To buy, sell, mortgage, exchange, deal in, lease, let, hire, hold, improve and develop real estate and any interest or right therein, and to buy and sell and generally deal in evidences of indebtedness secured or unsecured.

B. To manufacture, purchase, or otherwise acquire, own, hold, exchange, let, hire or lease, mortgage, pledge, sell, assign and transfer, or otherwise dispose of, to invest, trade, deal in and deal with, grow, process, service, develop and improve goods, wares and merchandise, warehouses, and real and personal property of every class and description and any and all rights and interests therein, in any of the states, districts, territories or colonies of the United States, and in any and all foreign countries subject to the laws of such state, district, territory, colony or country.

C. To acquire, and pay for in cash, stocks or bonds of this corporation or otherwise, the good will, rights, assets and property and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm, association or corporation to the extent that a corporation organised under the Article aforementioned may do.

D. To apply for, purchase, obtain, register, acquire, hold, own, use, sell, assign, lease, grant licenses in respect of, mortgage, or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, concessions, formulas, copyrights, brands, marks, trademarks and tradenames, advertising rights, easements, privileges and franchises of any and every description.

E. To purchase, hold, sell, exchange, assign, transfer, mortgage, pledge or otherwise dispose of or deal in shares of the capital stock of, or any bonds, notes, securities or evidences of indebtedness of any private, public, quasi-public or municipal corporation,

domestic or foreign, or of any domestic or foreign state, government or governmental authority, or of any political or administrative subdivision or department thereof, and while the owner thereof to exercise all the rights, powers and privileges of ownership including the right to vote same for any and all purposes.

F. To issue bonds, debentures, or obligations of this corporation from time to time, for any of the objects or purposes of this corporation, and to secure the same by mortgage, pledge, deed of trust, or otherwise.

G. To purchase, hold, own, sell and transfer the shares of its own capital stock; provided it shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital except as otherwise permitted by law; and provided further that shares of its own capital stock belonging to it shall not be voted upon directly or indirectly.

H. In general, to do any and all things which any corporation organized under the Article aforementioned may do, and to have and exercise all the powers conferred by the laws of New York upon corporations formed under the act hereinbefore referred to, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do.

I. The foregoing clauses shall be construed both as objects and powers, and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation.

THIRD: The total number of shares that may be issued by the corporation is two hundred (200) shares all of which are to be of one class and without par value. Such shares without par value may be issued from time to time for such consideration as from time to time may be fixed by the Board of Directors.

FOURTH: The capital of the corporation shall be at least equal to the sum of the aggregate par value of all issued shares having par value, plus the aggregate amount of consideration received by the corporation for the issuance of shares without par value, plus such amounts as from time to time by resolution of the Board of Directors may be transferred thereto.

FIFTH: The office of the corporation is to be located in the County of Westchester, City of Mount Vernon, State of New York.

SIXTH: Its duration shall be perpetual.

SEVENTH: The number of its directors shall be not less than three nor more than nine.

-2-

EIGHTH: The names and post office addresses of its directors until the first annual meeting of the stockholders are as follows:

Names	Post Office Addresses
MARILYN SCHUMAN	36 West 44th Street, New York 36, N.Y.
RUDOLPH BIRNBAUM	36 West 44th Street, New York 36, N.Y.
IRVING ROSENFELD	36 West 44th Street, New York 36, N.Y.

NINTH: The name and post office address of each subscriber to this certificate and a statement of the number of shares of stock which each agree to take, are as follows:

Names	Post Office Addresses	No. of Shares
MARILYN SCHUMAN	36 W. 44th St., New York 36, N.Y.	1
RUDOLPH BIRNBAUM	36 W. 44th St., New York 36, N.Y.	1
IRVING ROSENFELD	36 W. 44th St., New York 36, N.Y.	1

TENTH: The Secretary of State is designated as the agent of the corporation upon whom process in any action or proceeding against it may be served, and the address within the State of New York to which the Secretary of State shall mail a copy of process in any action or proceeding against the corporation which may be served upon him is c/o IRVING ROSENFELD, 36 West 44th Street, New York City.

ELEVENTH: All of the subscribers to this certificate are of full age; at least two thirds of them are citizens of the United States, and at least one of them is a resident of the State of New York. All the persons named as directors are of full age, and at least one of them is a citizen of the United States and a resident of the State of New York.

IN WITNESS WHEREOF, we have made, subscribed and acknowledged this Certificate this 22 day of September, 1955.

STATE OF NEW YORK COUNTY OF NEW YORK	) )	ss:

On the 22^nd day of September, 1955, before me personally came MARILYN SCHUMAN, RUDOLPH BIRNBAUM, and IRVING ROSENFELD, to me known and known to me to be the individuals mentioned in and who executed the foregoing instrument and they severally duly acknowledged to me that they executed the same.

-3-

CERTIFICATE OF INCORPORATION

–of–

GRAMATAN FOODTOWN CORP.

                        

                         Dated: September 22, 1995.

IRVING ROSENFELD

BAR BUILDING

36 WEST 44^TH STREET

NEW YORK CITY

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF

GRAMATAN FOODTOWN CORP.

(Under Section 805-A of the Business Corporation Law)

Pursuant to the provisions of Section 805-A of the Business Corporation Law, the undersigned being respectively the President and the Secretary of GRAMATAN FOODTOWN CORP. (hereinafter called the “Corporation”) hereby certify as follows:

FIRST: The name of the Corporation is GRAMATAN FOODTOWN CORP.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State on September 26, 1955.

THIRD: The change in the Certificate of Incorporation effected by this Certificate of Change is as follows:

To change the post office address and to change the location of the office to which the Secretary of State of the State of New York shall mail a copy of any process against the Corporation served upon said Secretary of State.

1

FOURTH: To accomplish the foregoing change, Article TENTH of the Certificate of Incorporation, relating to change of process address, is hereby stricken out in its entirety, and the following new Article is substituted in lieu thereof:

“TENTH: The principal office of said Corporation is to be located in the Borough of Bronx, County of Bronx, City and State of New York, and the address to which the Secretary of State shall mail a copy of process in any action or proceeding against the Corporation which may be served upon him, shall be 400 Walnut Avenue, Bronx, New York.”

The foregoing change was approved by the Board of Directors.

IN WITNESS WHEREOF, we have subscribed this document on September 30th, 1970, and hereby affirm, under the penalties of perjury, that the statements contained herein have been examined by us and are true and correct.

/s/ Herbert B. Daitch

HERBERT B. DAITCH, President

/s/ Robert Sidorsky

ROBERT SIDORSKY, Secretary

2

ORIGINAL                

CERTIFICATE OF CHANGE

OF

GRAMATAN FOODTOWN CORP.

(Under Section 805-A of the Business Corporation Law)

GUGGENHEIMER & UNTERMYER

80 PINE STREET, NEW YORK, N.Y. 10005

3

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State	Business Corporation	For Internal Use Only
Division of Corporations, Records and UCC Albany, NY 12231-0002 www.dos.state.ny.us	Biennial Statement
1  0  4  8  6  2 Business Name: GRAMATAN FOODTOWN CORP.
	104862	Filed By:
GRAMATAN FOODTOWN CORP. ATTN: TAX DEPT		Cash # (If different than film #):  2247
2 PARAGON DR
MONTVALE NJ 07645		Required Fee:	$9.00
		Filing Period:	09/2009
		(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer
ERIC CLAUS 2 PARAGON DRIVE MONTVALE NY 07645	Name
	Address
	City	State	Zip
Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substituted)
GRAMATAN FOODTOWN CORP. ATTN: TAX DEPT 2 PARAGON DR MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip
Part 3: Address for Service of Process
GRAMATAN FOODTOWN CORP. 400 WALNUT AVE BRONX NY 10454	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption
¨ Check if applicable	This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filing fee is required for farm corporations.
Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

/s/ Michael Gualtieri	Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

091002002248 DOS-1179 (08/06)

EX-99.T3A.23

Exhibit A-23

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

	CERTIFICATE OF INCORPORATION
	OF
	GRAPE FINDS LICENSING CORP.
Under Section 402 of the Business Corporation Law

FIRST: The name of the corporation is GRAPE FINDS LICENSING CORP.

SECOND: This corporation is formed to engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law, provided that it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body.

THIRD: The county within this state in which the office of the corporation is to be located is New York County.

FOURTH: The total number of shares which the corporation shall have the authority to issue and a statement of the par value of each share are: 100 No Par Value.

FIFTH: The Secretary of State is designated as agent of the corporation upon whom process against the corporation may be served. The address to which the Secretary of State shall mail a copy of any process accepted on behalf of the corporation is:

Grape Finds Licensing Corp.

c/o Best Cellars Inc.

180 Varick Street

Fourth Floor

New York, New York 10014

/s/ Richard A. Marmet

Richard A. Marmet

180 Varick Street

New York, New York 10014

1

CERTIFICATE OF INCORPORATION

OF

GRAPE FINDS LICENSING CORP.

Under Section 402 of the Business Corporation Law

Filed by: Richard A. Marmet c/o Best Cellars Inc. 180 Varick Street Fourth Floor New York, New York 10014

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State Division of Corporations, Records and UCC	Business Corporation Biennial Statement	For Internal Use Only
Albany, NY 12231-0002 www.dos.state.ny.us
	2827647	Filed By:
GRAPE FINDS LICENSING CORP. 2 PARAGON DR		Cash # (If different than film #):
MONTVALE NJ 07645		Required Fee:	$9.00
		Filing Period:	10/2010
		(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer
ERIC CLAUSE 2 PARAGON DR MONTVALE NJ 07645	Name
	Sam Martin
	Address
	2 Paragon Drive
	City	State	Zip
	Montvale	NJ	07645
Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substitued)
GRAPE FINDS LICENSING CORP. 2 PARAGON DR MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip
Part 3: Address for Service of Process
GRAPE FINDS LICENSING CORP. C/O BEST CLELLARS INC 2 PARAGON DR MONTVALE NJ 07645	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption
¨	This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filling fee is required for farm corporations.
Check if applicable

Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person
/s/    Michael Gualtieri	Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

	DOS-1178 (08/05)
101112002528

EX-99.T3A.24

Exhibit A-24

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

GREENLAWN LAND DEVELOPMENT CORP.

(Under Section 402 of the Business Corporation Law)

The undersigned, a natural person of at least 18 years of age and acting as the incorporator of the corporation hereby being formed under the Business Corporation Law, certifies that:

FIRST: The name of the corporation is:

GREENLAWN LAND DEVELOPMENT CORP.

SECOND: The corporation is formed for the following purpose or purposes:

To engage generally in the real estate business in any lawful capacity, and generally to purchase, take, receive, lease or otherwise acquire, own, hold, use, improve and otherwise deal in and with, and sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of lands, real estate, real property, chattels real, and estates, interests, rights and equities of all kinds in lands.

To create, manufacture, contract for, buy, sell, import, export, distribute, market and generally deal in, at wholesale and retail, as principal, agent, broker, commission merchant, licensor, licensee or otherwise, any and all

1

kinds of goods, wares and merchandise, and to offer, promote, and render services of every nature and description directly as well as through or for others.

To buy, sell, lease, hold, own, use, improve and otherwise deal in and with, as principal, agent or otherwise, real property, improved and unimproved, and personal property, tangible or intangible, including, without limitation, securities and obligations of any issuer, whether or not incorporated.

To have, in furtherance of its corporate purposes, all of the powers conferred upon corporations organized under the Business Corporation Law.

THIRD: The city, incorporated village or town and the county within the State of New York in which the office of the corporation is to be located are as follows:

City, Incorporated Village or Town	County
Islip	Suffolk

FOURTH: The aggregate number of shares which the corporation shall have authority to issue is twenty thousand (20,000), par value $1.00 per share, all of which shall be of one class and shall be common stock.

FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against the

2

corporation may be served. The post office address within or without the State of New York to which the Secretary of State shall mail a copy of any process against the corporation served upon him is:

c/o Bartel, Engelman & Fishman, One Dag Hammarskjold Plaza, New York, New York 10017. Attention: Richard E. Gutman, Esq.

SIXTH: The accounting period which the corporation intends to establish as its first calendar or fiscal year for reporting the franchise tax imposed upon business corporations by Article 9-A of the Tax Law of the State of New York is:

the period ending January 31.

SEVENTH: No holder of shares of any class of the corporation, now or hereafter authorized, shall have any preemptive right to subscribe for or purchase any shares of any class of the corporation, now or hereafter authorized, or any options, warrants or rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time be issued, sold or offered for sale by the corporation.

Subscribed and affirmed by me as true under the penalties of perjury on October 29, 1976.

/s/    Richard E. Gutman

Richard E. Gutman, Incorporator

One Dag Hammarskjold Plaza

New York, New York 10017

3

CERTIFICATE OF RESERVATION

STATE OF NEW YORK	7825 DEPARTMENT OF STATE

	I DO HEREBY CERTIFY TO THE
RESERVATION OF NAME

(corporation name)	(date filed)
OF	ON
GREENLAWN LAND DEVELOPMENT CORP.	OCTOBER 29, 1976
TO BE FILMED AS MICROFILM FRAME NUMBER:
	352581-1

THE ABOVE CORPORATE NAME HAS BEEN RESERVED FOR A PERIOD OF SIXTY DAYS FROM THE ABOVE DATE FOR THE USE OF
Bartell Engelman & Fisherman
FOR
Creation of a domestic corporation	Secretary of State

NAME AND ADDRESS OF FILER Bartell Engelman & Fisherman 1 Dag Hammarsjkold Plaza New York, NY

x  CHK.            ¨  M.O.            ¨  CASH $    10

$10.00	CERTIFICATE	TOTAL	$10.00
		REFUND OF	$	TO FOLLOW

CERTIFICATE OF RESERVATION MUST ACCOMPANY CERTIFICATE OF INCORPORATION OR APPLICATION OF AUTHORITY WHEN PRESENTED FOR FILING.

R662-518 R

4

CERTIFICATE OF INCORPORATION

OF

GREENLAWN LAND DEVELOPMENT CORP.

(Under Section 402 of the Business Corporation Law)

BARTEL ENGELMAN & FISHMAN

ONE DAG HAMMARSKJOLD PLAZA

NEW YORK, NEW YORK 10017

(212) 752-9111

5

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/    Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

New York State

Department of State

Division of Corporations, State Records

and Uniform Commercial Code

41 State Street

Albany, NY 12231

www.dos.state.ny.us

	CERTIFICATE OF CHANGE
	OF
	GREENLAWN LAND DEVELOPMENT CORP.
	(Insert Name of Domestic Corporation)
Under Section 805-A of the Business Corporation Law

FIRST: The name of the corporation is:     GREENLAWN LAND DEVELOPMENT  CORP.

.

If the name of the corporation has been changed, the name under which it was formed is:

.

SECOND: The certificate of incorporation was filed by the Department of State on: 11/8/1976

.

THIRD: The change(s) effected hereby are: [Check appropriate box(es)]

¨	The county location, within this state, in which the office of the corporation is located, is changed to:                                                      .
xx	The address to which the Secretary of State shall forward copies of process accepted on behalf of the corporation is changed to read in its entirety as follows:
	C/O BLUMBERGEXCELSIOR CORPORATE SERVICES, INC., 62 White St., New York, New York 10013
¨	The corporation hereby: [Check one]
	x	Designates BLUMBERGEXCELSIOR CORPORATE SERVICES, INC. as its registered agent upon whom process against the corporation may be served. The street address of the registered agent is 62 WHITE ST., NY, NY 10013.
	¨	Changes the designation of its registered agent to:                                                                                                                                                     . The street address of the registered agent is:
			.
	¨	Changes the address of its registered agent to:
			.
	¨	Revokes the authority of its registered agent.

DOS-1556 (Rev. 5/04)

1

FOURTH: The change was authorized by the board of directors.

/s/ JOSE MOJICA	Jose Mojica, Vice President
(Signature)	(Name and Title of Signer)

BLU 39 DRAWDOWN

CERTIFICATE OF CHANGE

OF

GREENLAWN LAND DEVELOPMENT CORP.

(Insert Name of Domestic Corporation)

Under Section 805-A of the Business Corporation Law

BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

Filer’s Name

Address 62 WHITE STREET

City, State and Zip Code NY, NY 10013

NOTE: This form was prepared by the New York State Department of State. You are not required to use this form. You must draft your own form or use forms available at legal stationery stores. The Department of State recommends that all documents be prepared under the guidance of an attorney. The certificate must be submitted with a $30 filing fee.

For Official Use Only

2

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State	Business Corporation	For Internal Use Only
Division of Corporations, Records and UCC	Biennial Statement
Albany, NY 12231-0002 www.dos.state.ny.us
	414532	Filed By:
GREENLAWN LAND DEVELOPMENT CORP.
ATTN: TAX DEPT		Cash # (If different than film #):
2 PARAGON DR
MONTVALE NJ 07645		Required Fee:		$9.00
		Filing Period:		11/2010
		(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer
ATTN: TAX DEPT 2 PARAGON DR MONTAUK NJ 07645	Name
	Sam Martin
	Address
	ATTN: Tax Dept. 2 Paragon Drive
	City	State	Zip
	Montvale	NJ	07645
Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substitued)
GREENLAWN LAND DEVELOPMENT CORP. ATTN: TAX DEPT 2 PARAGON DR MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip
Part 3: Address for Service of Process
C/O BLUMBERGEXCELSIOR CORPORATE SERVICES, INC. 62 WHITE ST. NEW YORK NY 10013	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption
¨ Check if applicable	This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filing fee is required for farm corporations.
Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

/s/ Michael Gualtieri	Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

EX-99.T3A.25

Exhibit A-25

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “HOPELAWN PROPERTY I, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF MAY, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “HOPELAWN PROPERTY I, INC.”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2895268    8100H	AUTHENTICATION:	8418727
101175332	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

HOPELAWN PROPERTY I, INC.

The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “General Corporation Law of the State of Delaware”), hereby certifies that:

FIRST: The name of the corporation (hereinafter called the “corporation”) is HOPELAWN PROPERTY I, INC.

SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company.

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one thousand. The par value of each of such shares is one dollar. All such shares are of one class and are shares of Common Stock.

FIFTH: The name and the mailing address of the incorporator are as follows:

NAME	MAILING ADDRESS
Camille Silva	375 Hudson Street, 11th Floor New York, New York 10014

SIXTH: The corporation is to have perpetual existence.

-1-

SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided:

1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase “whole Board” and the phrase “total number of directors” shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot.

2. After the original or other Bylaws of the corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of § 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised by the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation for staggered terms pursuant to the provisions of subsection (d) of § 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the corporation unless provisions for such classification shall be set forth in this certificate of incorporation.

-2-

3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of § 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class.

NINTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of § 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented.

TENTH: The corporation shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

ELEVENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article ELEVENTH.

Signed on May 1, 1998.

/s/ Camille Silva

Camille Silva, Incorporator

-3-

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

HOPELAWN PROPERTY I, INC.

HOPELAWN PROPERTY I, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: HOPELAWN PROPERTY I, INC.

TWO:	That a meeting of the Board of Directors of HOPELAWN PROPERTY I, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: CORPORATION SERVICE COMPANY
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	/s/ Jose Mojica
By:	Jose Mojica
	President

EX-99.T3A.26

Exhibit A-26

DFI/CORP/38	United States of America
RECORD 2/00
	State of Wisconsin
	DEPARTMENT OF FINANCIAL INSTITUTIONS

To All to Whom These Presents Shall Come, Greeting:

I, RAY ALLEN, Deputy Administrator, Division of Corporate & Consumer Services, Department of Financial Institutions, do hereby certify that the annexed copy has been compared by me with the record on file in the Corporation Section of the Division of Corporate & Consumer Services of this department and that the same is a true copy thereof and the whole of such record; and that I am the legal custodian of said record, and that this certification is in due form.

	IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the official seal of the Department.
	/s/ Ray Allen
	RAY ALLEN, Deputy Administrator Division of Corporate & Consumer Services Department of Financial Institutions
DATE: DEC 14 2010	BY:

Effective July 1, 1996, the Department of Financial Institutions assumed the functions previously performed by the Corporations Division of the Secretary of State and is the successor custodian of corporate records formerly held by the Secretary of State.

THIS DOCUMENT IS TO BE RECORDED IN DANE COUNTY

ARTICLES OF INCORPORATION

OF

KOHL’S FOOD STORES, INC.

I, the undersigned natural person of the age of eighteen years or more, acting as incorporator of a corporation under the Wisconsin Business Corporation Law, adopt the following Articles of Incorporation for such corporation:

ARTICLE I

Name

The name of the corporation is Kohl’s Food Stores, Inc.

ARTICLE II

Purposes

The purposes for which the corporation is organized are to engage in any lawful activity within the purposes for which a corporation may be organized under the Wisconsin Business Corporation Law, Chapter 180 of the Wisconsin Statutes.

ARTICLE III

Capital Stock

The aggregate number of shares which the corporation shall have authority to issue is Fifty-six Thousand (56,000) shares, consisting of one class only, designated as “Common Stock” of the par value of One Dollar ($1.00) per share.

ARTICLE IV

Preemptive Rights

No holder of any stock of the corporation shall have any preemptive right to purchase, subscribe for, or otherwise acquire any shares of stock of the corporation of any class now or hereafter authorized, or any securities exchangeable for or convertible into such shares.

ARTICLE V

Directors

The number of directors shall be fixed by, or in the manner provided in, the Bylaws.

ARTICLE VI

Registered Office and Agent

The address of the initial registered office of the corporation is 25 West Main Street, Madison, Dane County, Wisconsin 53703 and the name of its initial registered agent at such address is United States Corporation Company.

ARTICLE VII

Right to Purchase Own Shares and Partial Liquidation

The corporation shall have the right to acquire its own shares from time to time, upon such terms and conditions as the Board of Directors shall fix. The Board of Directors of the corporation may, from time to time, distribute to shareholders in partial liquidation out of stated capital or net capital surplus a portion of its assets in cash or property as further provided by law.

ARTICLE VIII

Incorporator

The name and address of the incorporator is Thomas W. O’Brien, 780 North Water Street, Milwaukee, Wisconsin 53202.

Executed in triplicate this 16th day of September, 1983.

/s/ Thomas W. O’Brien

Thomas W. O’Brien

STATE OF WISCONSIN	)
	)	SS
MILWAUKEE COUNTY	)

Personally came before me this 16th day of September, 1983, the above-named Thomas W. O’Brien, to me known to be the person who executed the foregoing instrument and acknowledged the same.

Notary Public, State of Wisconsin
My Commission:	expires 8/4/85

This document was drafted by:

Thomas W. O’Brien, Esq.

of Quarles & Brady,

780 North Water Street

Milwaukee, Wisconsin 53202

LLB4: X

-2-

PLEASE RETURN TO:

Ms. Ruth Bartels

Stroud Stroud Willink

Thompson and Howard

United States Corporation Company

25 West Main Street

Suite 300

Madison WI 53703

(Form 4) - 1983		CORPORATION DIVISION
AMENDMENT	State of Wisconsin	P.O. Box 7846
(stock corp.)	SECRETARY OF STATE	Madison, WI 53707
RESOLVED, that the Articles of Incorporation be and hereby are amended by striking out the whole of Article III, “Capital Stock,” thereof as it now exists and inserting in lieu and instead thereof a new Article III, reading in its entirety as follows: “III: The aggregate number of shares of stock which the corporation shall have authority to issue is sixty thousand (60,000) shares, consisting of one class only, designated as ‘Common Stock’ of the par value of One Dollar ($1.00) per share”; and FURTHER RESOLVED, that the President, the Executive Vice President, any Vice President and the Secretary of the corporation be, and each of them hereby is, authorized and directed on the corporation’s behalf to execute all documents, take all steps and perform such acts as they shall deem necessary or desirable to carry into effect the purpose and intent of the foregoing resolution. The undersigned officers of Kohl’s Food Stores, Inc., a Wisconsin corporation with registered office in Dane County, Wisconsin, CERTIFY that the foregoing amendment of the articles of incorporation of said corporation was consented to in writing by the holders of all shares entitled to vote the subject matter of said amendment, duly signed by said shareholders or in their names by their duly authorized attorneys. Executed in duplicate and seal (if any) affix this 18th day of February, 1986.

/s/    L. G. Zettle

L. G. Zettle

Executive Vice President

/s/    R. G. Ulrich

R. G. Ulrich

Secretary

(Affix seal or state that there is none)

This document was drafted by Thomas O’Brien, Esq. of Quarles & Brady (Section 14.38(14) Wis. Statutes)

Return to:	Thomas W. O’Brien, Esq.
	Quarles & Brady
	780 North Water Street
	Milwaukee, WI 53202-3589

EX-99.T3A.27

Exhibit A-27

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF STATE

DECEMBER 13, 2010

TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:

KWIK SAVE INC.

I, Basil L Merenda, Secretary of the Commonwealth of Pennsylvania do hereby certify that the foregoing and annexed is a true and correct copy of

1 ARTICLES OF INCORPORATION filed on July 26, 1965

2 CHANGE OF REGISTERED OFFICE – Domestic filed on February 18, 1986

3 CHANGE OF REGISTERED OFFICE – Domestic filed on December 6, 1995

4 CHANGE OF REGISTERED OFFICE – Domestic filed on January 13, 2003

which appear of record in this department.

	IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal of the Secretary’s Office to be affixed, the day and year above written.
	Secretary of the Commonwealth

DSCB-1 (Rev. 12-59) 3-1-65.22   1382

Articles      of Incorporation COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU

In compliance with the requirements of the Business Corporation Law, approved the 5th day of May, A. D. 1933, P. L. 364, as amended, the undersigned, all of whom are of full age and at least two-thirds of whom are citizens of the United States or its territories or possessions, desiring that they may be incorporated as a business corporation, do hereby certify:

1. The name of the corporation is: Kwik Save, Inc.

2. The location and post office address of its initial registered office in this Commonwealth is:

321 Penn Avenue	Scranton, Pa.		Lackawanna
Number	Street	City	County

3. The purpose or purposes of the corporation are:*

To manufacture, buy, sell, and deal in toys, beauty aids, housewares, patented drugs, and any other property of any nature whatsoever, and to buy, sell, own and lease as lessor or lessee and otherwise acquire and hold real, personal and mixed property of any and every kind whatsoever, and to do and perform all things necessary and incidental to accomplish the aforementioned purposes.

4. The term of its existence is: perpetual

5. The aggregate number of shares which the corporation shall have authority to issue is:**

One thousand (1000) shares having a par value of Ten ($10.00) Dollars per share all of the same class.

*Note:

Do not recite Powers set forth in Section 302 of the Act.

**Note:

There should be set forth the number and par value of all shares having par value, the number of shares without par value, and the stated capital applicable thereto. If the shares are to be divided into classes, a description of each class and a statement of the preferences, qualifications, limitations, restrictions, and the special or relative rights granted to, or imposed upon, the shares of each class.

Certification#: 9167976-1 Page 1 of 8

3-1-65.22     1383    

6. The names and addresses of each of the first directors, who shall serve until the first annual meeting, are:

NAME	ADDRESS
	(Including street and number, if any)
Arthur L. Abrams	1200 Pine St., Scranton, Pa.
Ruth F. Abrams	1200 Pine St., Scranton, Pa.
Daniel J. Houlihan	600 Scranton Life Bldg., Scranton, Pa.

7. The names and addresses of each of the incorporators and the number and class of shares subscribed by each are:

NAME	ADDRESS	NUMBER AND CLASS OF SHARES
(Including street and number, if any)
Arthur L. Abrams	1200 Pine St., Scranton, Pa.	10
Ruth F. Abrams	1200 Pine St., Scranton, Pa.	1
Daniel J. Houlihan	600 Scranton Life Bldg., Scranton, Pa.	1

IN TESTIMONY WHEREOF, the incorporators have signed and sealed these Articles of Incorporation this 22nd day of July, 1965.

(SEAL)		(SEAL)
(SEAL)		(SEAL)
(SEAL)		(SEAL)

Approved and filed in the Department of State on the 26th day of July A. D. 1965.

Secretary of the Commonwealth

                                              vms

Certification#: 9167976-1 Page 2 of 8

3-1-65.22     1384    

Commonwealth of Pennsylvania

Department of State

Office of the

Secretary of the Commonwealth

To all to whom these Presents shall come, Greeting:

WHEREAS, Under the provisions of the Business Corporation Law, approved the 5th day of May, Anno Domini, one thousand nine hundred and thirty-three, P. L. 364, as amended, the Department of State is authorized and required to issue a

CERTIFICATE OF INCORPORATION

evidencing the incorporation of a business corporation organized under the terms of that law.

AND WHEREAS, The stipulations and conditions of that law have been fully complied with by the persons desiring to incorporate as

KWIK SAVE INC.

THEREFORE, KNOW YE, That subject to the Constitution of this Commonwealth and under the authority of the Business Corporation Law, I do by these presents, which I have caused to be sealed with the Great Seal of the Commonwealth, create, erect, and incorporate the incorporators of and the subscribers to the shares of the proposed corporation named above, their associates and successors, and also those who may thereafter become subscribers or holders of the shares of such corporation, into a body politic and corporate in deed and in law by the name chosen and hereinbefore specified, which shall exist perpetually and shall be invested with and have and enjoy all the powers, privileges, and franchises incident to a business corporation and be subject to all the duties, requirements, and restrictions specified and enjoyed in and by the Business Corporation Law and all other applicable laws of this Commonwealth.

Given under my Hand and the Great Seal of the Commonwealth, at the City of Harrisburg, this 26th day of July in the year of our Lord one thousand nine hundred and sixty-five and of the Commonwealth the one hundred and ninetieth

Secretary of the Commonwealth

                                              bsm

Certification#: 9167976-1 Page 3 of 8

APPLICANT’S ACC’T NO.
DSCE: BCL—307 (Rev. 8-72)
Entry Fee: $40	Line for numbering # 194133 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU
Statement of Change of Registered Office Domestic Business Corporation

In compliance with the requirements of section 307 of the Business Corporation Law Act of May 5, 1933 (P. L. 364) (15 P. S. #1307) the undersigned corporation, desiring to effect a change of registered office, does hereby certify that:

1. The name of the corporation is:

KWIK SAVE, INC.

2. The address of its present registered office in this Commonwealth is (the Department of State is hereby authorized to correct the following statement to conform to the records of the Department.

321 Penn Avenue
(NUMBER)		(STREET)
Scranton,	Pennsylvania
(CITY)		(ZIP CODE)

3. The address to which the registered office in this Commonwealth is to be changed to is:

c/o United States Corporation Company, 225 South 15th Street
(NUMBER)		(STREET)
Philadelphia	Pennsylvania	19102
(CITY)		(ZIP CODE)

4. Such change was authorized by resolution duly adopted by at least a majority of the members of the board of directors of the corporation.

IN TESTIMONY WHEREOF, the undersigned corporation has caused this Statement to be signed by a duly authorized officer, and its corporate seal, duly attested by another such officer, to be hereunto affixed, this                  day of                 , 19    .

KWIK SAVE, INC.
NAME OF CORPORATION
By	/s/ Gregory K. Raven
	SIGNATURE
	Gregory K. Raven Treasurer
	(TITLE: PRESIDENT, VICE PRESIDENT, ETC)

Attest

/s/ Robert G. Ulrich

(SIGNATURE)

Robert G. Ulrich, Secretary

(TITLE SECRETARY ASSISTANT SECRETARY ETC)

M BURR KEIM COMPANY PHILADELPHIA

Certification#: 9167976-1 Page 4 of 8

Microfilm Number          Filed with Department of State on         

Entity Number 194133
	Secretary of the Commonwealth

STATEMENT OF CHANGE OF REGISTERED OFFICE

DCSB: 15-1507/4144/5507/6144/8506 (Rev 90)

Indicate type of entity (check one):

XXXXX	Domestic Business Corporation (15 Pa.C.S. ss1507)
	Foreign Business Corporation (15 Pa.C.S. ss4144)
	Domestic Nonprofit Corporation (15 Pa.C.S. ss5507)
	Foreign Nonprofit Corporation (15 Pa.C.S. ss6144)
	Domestic Limited Partnership (15 Pa.C.S. ss8506)

In compliance with the requirements of the applicable provisions of 15 Pa.C.S. (relating to corporations and unincorporated associations) the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that:

1. The name of the corporation or limited partnership is:

KWIK SAVE INC.

2. The (a) address of this corporation’s or limited partnership’s current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (the Department is hereby authorized to correct the following information to conform to the records of the Department):

(a) c/o United States Corporation Company

225 S. 15th Street, Philadelphia, PA 19102 Philadelphia

For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes.

Certification#: 9167976-1 Page 5 of 8

3. (Complete part (a) or (b)):

(a) The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is:

Number and Street City State Zip County

(b) The registered office of the corporation or limited partnership shall be provided by:

c/o: United States Corporation Company                      Dauphin

Name of Commercial Registered Office Provider County

For a corporation or limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes.

4. (Strike out if a limited partnership): Such change was authorized by the Board of Directors of the corporation.

IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership has caused this statement to be signed by a duly authorized officer thereof this                      of                      , 199                     .

KWIK SAVE INC.
BY:
TITLE:	Vice President

Certification#: 9167976-1 Page 6 of 8

PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU Statement of Change of Registered Office (15 Pa.C.S.)
	xx	Domestic Business Corporation (§ 1507)
Entity Number		Foreign Business Corporation (§ 4144)
		Domestic Nonprofit Corporation (§ 5507)
		Foreign Nonprofit Corporation (§ 6144)
		Domestic Limited Partnership (§ 8506)

Name			Document will be returned to the name and address you enter to the left. Ü
JOSE MOJICA
Address
62 WHITE STREET
City	State	Zip Code
NY, NY 10013

Fee $52	Filed in the Department of State on Jan 13, 2003
	Secretary of the Commonwealth

In compliance with the requirements of the applicable provisions of 15 Pa.C.S. (relating to corporations and unincorporated associations), the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that:

1.      The name is:

KWIK SAVE INC.

2.      The (a) address of its initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is:
(a) Number and street	City	State	Zip	County
(b) Name of Commercial Registered Office Provider				County
c/o: UNITED STATES CORPORATION COMPANY

3       Complete part (a) or (b)
(a)     The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is                                                                                                                                DAUPHIN CTY
800 NORTH SECOND ST., STE 100, HARRISBURG, PA 17102
Number and street	City	State	Zip	County
(b)    The registered office of the corporation or limited partnership shall be provided by:
c o
Name of Commercial Registered Office Provider				County

Certification#: 9167976-1 Page 7 of 8

DSCB:15-1507/4144/5507/6144/8506-2

4.      Strike out if a limited partnership:

Such change was authorized by the Board of Directors of the corporation.

IN TESTIMONY WHEREOF, the undersigned has caused this Application for Registration to be signed by a duly authorized officer thereof this

27^TH day of DECEMBER, 2002.

KWIK SAVE INC.

Name of Corporation/Limited Partnership

Signature

PRESIDENT

Title

Certification#: 9167976-1 Page 8 of 8

EX-99.T3A.28

Exhibit A-28

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “LANCASTER PIKE STUART, LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF FORMATION, FILED THE TWENTIETH DAY OF JANUARY, A.D. 1999, AT 9 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1999, AT 3:30 O’CLOCK P.M.

CERTIFICATE OF CORRECTION, FILED THE FOURTH DAY OF JUNE, A.D. 1999, AT 9 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-EIGHTH DAY OF JANUARY, A.D. 2000, AT 4:30 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF DECEMBER, A.D. 2007, AT 11:41 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE NINTH DAY OF SEPTEMBER, A.D. 2008, AT 10:51 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “LANCASTER PIKE STUART, LLC”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2995122    8100H	AUTHENTICATION:	8418733
101175335	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF FORMATION

OF

LANCASTER PIKE STUART, LLC

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

FIRST: The name of the limited liability company (hereinafter called the “Company”) is:

LANCASTER PIKE STUART, LLC

SECOND: The address of the registered office of the Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act in the State of Delaware is 1013 Centre Road, in the City of Wilmington, in the County of New Castle, Delaware. The registered agent for service of process at such address is Corporation Services Company.

THIRD:

A. Purpose. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The nature of the business and of the purposes to be conducted and promoted by the Company is to engage solely in the following activities:

(1) To acquire that certain parcel of real property, together with all improvements located thereon, in the City of Wilmington, State of Delaware, commonly known as 3901 Lancaster Pike (the “Property”).

(2) To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.

(3) To exercise all powers enumerated in the Delaware Limited Liability Company Act necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

B. Certain Prohibited Activities Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The Company shall only incur indebtedness in an amount necessary to acquire, operate and maintain the Property. For so long as any mortgage lien exists on the Property, the Company shall not incur, assume, or guaranty any other indebtedness except the Company may guarantee the indebtedness of Pathmark Stores, Inc. and its subsidiaries under that certain Credit

PH02A/26454.1

Agreement dated as of June 30, 1997 among Pathmark Stores, Inc., the lenders party thereto, the Chase Manhattan Bank, as Administrative Agent, and CIBC Inc. and Corestates Bank, N.A., as Co-Agents, as in effect on the date hereof, and as such agreement may be amended, renewed, extended, supplemented or otherwise modified from time to time and any agreement or successive agreements incurred to refund, refinance or replace such credit agreement (the “Credit Agreement”). The Company shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (i) the entity (if other than the Company) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and assets of the Company substantially as an entirety (a) shall be organized and existing under the laws of the United States of America or any State or the District of Columbia, (b) shall include in its organizational documents the same limitations set forth in this Article Third and Article Fourth, and (c) shall expressly assume the due and punctual performance of the Company’s obligations; and (ii) immediately after giving effect to such transaction, no default or event of default under any agreement to which it is a party shall have been committed by this Company and be continuing. For so long as a mortgage lien exists on the Property, the Company will not voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy Code or any similar federal or state statute without the consent of the Member. For so long as a mortgage lien exists on the Property, no material amendment to this Certificate of Formation may be made without first obtaining approval of the mortgagee holding a first mortgage lien on the property.

FOURTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: For so long as any mortgage lien exists on the Property, in order to preserve and ensure its separate and distinct corporate identity, in addition to the other provisions set forth in this Certificate of Formation, the Company shall conduct its affairs in accordance with the following provisions:

a. It shall establish and maintain an office through which its business shall be conducted separate and apart from those of its parent and any affiliate and shall allocate fairly and reasonably any overhead for shared office space.

b. It shall maintain separate corporate records and books of account from those of its parent and any affiliate.

c. Its Member shall hold appropriate meetings (or act by written consent) to authorize all appropriate actions, and in authorizing such actions, shall observe all formalities applicable to limited liability companies.

d. It shall not commingle assets with those of its parent and any affiliate.

e. It shall conduct its own business in its own name.

f. It shall maintain financial statements separate from its parent and any affiliate.

g. It shall pay any liabilities out of its own funds, including salaries of any employees, not funds of its parent or any affiliate.

PH02A/26454.1 - 2 -

h. It shall maintain an arm’s length relationship with its parent and any affiliate.

i. It shall not guarantee or become obligated for the debts of any other entity, including its parent or any affiliate or hold out its credit as being available to satisfy the obligations of others, except as set forth above.

j. It shall use stationary, invoices and checks separate from its parent and any affiliate.

k. It shall not pledge its assets for the benefit of any other entity, including its parent and any affiliate, except as required by the Credit Agreement.

1. It shall hold itself out as an entity separate from its parent and any affiliate.

For purpose of this Article Fourth, the following terms shall have the following meanings:

“affiliate” means any person controlling or controlled by or under common control with the parent, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any director, officer or employee of the Company, its parent, or any affiliate thereof and (ii) any person which receives compensation for administrative, legal or accounting services from this Company, its parent or any affiliate. For purposes of this definition, “control” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“parent” means any individual, corporation, any other corporation owning or controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the Company.

“person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

FIFTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations respecting the Property and shall not constitute a claim against the Corporation in the event that cash flow is insufficient to pay such obligations.

SIXTH: This Certificate of Formation may be amended from time to time by the Member, provided, however, that for so long as any mortgage lien exists on the Property, any such amendment shall be made in compliance with the provisions of Article Third hereof.

PH02A/26454.1 - 3 -

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Lancaster Pike Stuart, LLC this 19^th day of January, 1999.

LANCASTER PIKE STUART, INC.

/s/ Marc A. Strassler

Marc A. Strassler

Senior Vice President and Secretary

PH02A/26454.1 - 4 -

CONSENT TO USE OF NAME

LANCASTER PIKE STUART, INC., a corporation organized under the laws of the State of Delaware, hereby consents to the organization of Lancaster Pike Stuart, LLC, a limited liability company, in the State of Delaware.

IN WITNESS WHEREOF, Lancaster Pike Stuart, Inc. has caused this Consent to be executed this 19^th day of January, 1999.

LANCASTER PIKE STUART, INC., a Delaware corporation
By:	/s/ Marc A. Strassler
	Name: Marc A. Strassler
	Title: Senior Vice President and Secretary

PH02A/26455.1

CERTIFICATE OF MERGER

The undersigned limited liability company organized and existing under and by virtue of Chapter 18 of Title 6 of the Delaware Code.

DOES HEREBY CERTIFY:

FIRST: The name and state of formation of the constituent limited liability company to this merger is Lancaster Pike Stuart, LLC, a Delaware limited liability company. The name and state of incorporation of the constituent corporation to this merger is Lancaster Pike Stuart, Inc., a Delaware corporation.

SECOND: An agreement of merger (the “Plan of Merger”) has been approved and executed by each of the constituent business entities to be merged hereby.

THIRD: The surviving entity to this merger is Lancaster Pike Stuart, LLC, a Delaware limited liability company.

FOURTH: The executed Plan of Merger is on file at the principal place of business of Lancaster Pike Stuart, LLC, the surviving entity to this merger, at 200 Milik Street, Carteret, NJ 07008.

FIFTH: A copy of the Plan of Merger will be furnished by Lancaster Pike Stuart, LLC, the surviving entity to this merger, on request and without cost to any member of the constituent limited liability company to this merger and to any shareholder of the constituent corporation to this merger.

IN WITNESS WHEREOF, Lancaster Pike Stuart, LLC, the surviving entity to this merger, has caused this Certificate of Merger to be executed by its duly authorized signatory this 17^th day of February, 1999.

Lancaster Pike Stuart, LLC
by:	Lancaster Pike Stuart, Inc.
	Sole Member
by:	/s/ Marc A. Strassler
	Marc A. Strassler Senior Vice President

CERTIFICATE OF CORRECTION

REGARDING

CERTIFICATE OF MERGER FILED ON FEBRUARY 22, 1999

The undersigned, a corporation and a limited liability company each incorporated or organized under and by virtue of the Delaware Code.

EACH DO HEREBY CERTIFY:

FIRST: Lancaster Pike Stuart, LLC, a Delaware limited liability company, filed with the Secretary of State of the State of Delaware on February 22, 1999 a Certificate of Merger providing for the merger of Lancaster Pike Stuart, Inc., a Delaware corporation, with and into Lancaster Pike Stuart, LLC, with Lancaster Pike Stuart, LLC the surviving entity of such merger.

SECOND: The aforesaid Certificate of Merger was filed in error, and the merger between Lancaster Pike Stuart, Inc. and Lancaster Pike Stuart, LLC is null and void ab initio and of no effect.

THIRD: The continued, uninterrupted and separate existence of Lancaster Pike Stuart, Inc. and Lancaster Pike Stuart, LLC is confirmed.

IN WITNESS WHEREOF, Lancaster Pike Stuart, Inc. and Lancaster Pike Stuart, LLC have caused this Certificate of Correction to be executed by their respective duly authorized signatories this 28^th day of May, 1999.

Lancaster Pike Stuart, LLC		Lancaster Pike Stuart, Inc.
by:	Lancaster Pike Stuart, Inc.	by:	/s/ Marc A. Strassler
	Sole Member		Marc A. Strassler
			Senior Vice President
by:	/s/ Marc A. Strassler
	Marc A. Strassler
	Senior Vice President

0663634.01

CERTIFICATE OF MERGER

The undersigned limited liability company organized and existing under and by virtue of Chapter 18 of Title 6 of the Delaware Code.

DOES HEREBY CERTIFY:

FIRST: The name and state of formation of the constituent limited liability company to this merger is Lancaster Pike Stuart, LLC, a Delaware limited liability company. The name and state of incorporation of the constituent corporation to this merger is Lancaster Pike Stuart, Inc., a Delaware corporation.

SECOND: An agreement of merger (the “Plan of Merger”) has been approved and executed by each of the constituent business entities to be merged hereby.

THIRD: The surviving entity to this merger is Lancaster Pike Stuart, LLC, a Delaware limited liability company.

FOURTH: The executed Plan of Merger is on file at the principal place of business of Lancaster Pike Stuart, LLC, the surviving entity to this merger, at 200 Milik Street, Carteret, NJ 07008.

FIFTH: A copy of the Plan of Merger will be furnished by Lancaster Pike Stuart, LLC, the surviving entity to this merger, on request and without cost to any member of the constituent limited liability company to this merger and to any shareholder of the constituent corporation to this merger.

IN WITNESS WHEREOF, Lancaster Pike Stuart, LLC, the surviving entity to this merger, has caused this Certificate of Merger to be executed by its duly authorized signatory this 27^th day of January, 2000.

Lancaster Pike Stuart, LLC
by:	Lancaster Pike Stuart, Inc.
	Sole Member
by:	/s/ Marc A. Strassler
	Marc A. Strassler
	Senior Vice President

0711541.01

PLAN OF MERGER

This PLAN OF MERGER (“Plan”) is entered into on this 27^th day of January, 2000 by and between Lancaster Pike Stuart, Inc., a Delaware corporation (the “Corporation”), and Lancaster Pike Stuart LLC, a Delaware limited liability company (the “LLC”).

W I T N E S S E T H:

WHEREAS, the directors and shareholders of the Corporation, on the one hand, and the sole member of the LLC on the other hand, have each determined that it is in the best interests of each of the parties hereto that the Corporation be merged with and into the LLC so that the LLC is the surviving entity,

NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, do hereby agree as follows:

1. Terms of Merger. At and as of the Effective Time (as defined herein), the Corporation shall merge with and into the LLC, with the LLC as the surviving entity. The “Effective Time” shall be the date and time on which the LLC shall file a Certificate of Merger in the form attached hereto with the Secretary of State of the State of Delaware.

2. Conversion of Equity. At and as of the Effective Time, all of the outstanding common stock of the Corporation shall be collectively converted into a one hundred percent (100%) membership interest in the LLC. After the Effective Time, all of the common stock of the Corporation shall be deemed to be canceled and retired.

3. Effect of Merger. At and as of the Effective Time, the separate corporate existence of the Corporation shall terminate and all of the property, real, personal and mixed, and franchises of the Corporation, and all debts due on whatever account to it, shall be deemed to be transferred to and vested in the LLC, without further action, and the title to any real estate, or any interest therein, vested in the Corporation shall not revert or be in any way impaired by reason of the Merger.

IN WITNESS WHEREOF, each of the parties hereto has caused this Plan of Merger to be executed by its respective duly authorized signatory the day and year first above written.

Lancaster Pike Stuart, Inc.		Lancaster Pike Stuart LLC
by:	/s/ Marc A. Strassler	by:	Lancaster Pike Stuart, Inc.
	Marc A. Strassler		Sole Member
	Senior Vice President
		by:	/s/ Marc A. Strassler
			Marc A. Strassler
			Senior Vice President

Document No. 0711536.01

CERTIFICATE OF AMENDMENT

OF

LANCASTER PIKE STUART, LLC

The undersigned, for the purpose of amending the Certificate of Formation of Lancaster Pike Stuart, LLC, which was filed with the Secretary of State of the State of Delaware on January 20, 1999 (the “Certificate”), pursuant to Section of 18-202 of the Delaware Limited Liability Company Act, does hereby certify the following:

FIRST: The name of the limited liability company is: Lancaster Pike Stuart, LLC.

SECOND: The Certificate is hereby amended by deleting each of Article Third, Article Fourth, Article Fifth and Article Sixth in its entirety.

THIRD: Article Second of the Certificate is hereby amended to read in its entirety as follows:

“SECOND: The address of the registered office of the Company in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of the registered agent of the Company at such address is Corporation Service Company.”

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment this 3rd day of December, 2007.

/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Senior Vice President

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

1. Name of Limited Liability Company: LANCASTER PIKE STUART, LLC

2. The Certificate of Formation of the limited liability company is hereby amended as follows:

To change the registered agent as follows: Its registered office in the State of Delaware is to be located at: 1220 N. Market St., Suite 806, Wilmington, DE 19801, County of NEW CASTLE and its registered agent at such address is: BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 9TH day of SEPTEMBER, A.D. 2008.

By:	/s/ Jose Mojica
	Authorized Person(s)
Name:	JOSE MOJICA
	Print or Type

EX-99.T3A.29

Exhibit A-29

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

LBRO REALTY, INC.

(Under Section 402 of the Business Corporation Law)

The undersigned, being a natural person of at least 21 years of age and acting as the incorporator of the Corporation, hereby being formed under the Business Corporation Law of the State of New York, certifies:

FIRST: The name of the Corporation shall be LBRO REALTY, INC.

SECOND: The Corporation is formed for the following purposes:

1. To purchase, take, receive, lease or otherwise acquire, own, hold, use, improve and otherwise deal in and with, and sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of lands, real estate, real property, chattels real, and estates, interests, rights and equities of all kinds in lands.

To subdivide, improve and develop lands; to establish subdivisions, in towns, cities and villages and to dedicate land for ways, roads, streets, alleys, sidewalks, parkways, parks and other purposes; and to engage in, conduct and carry on any business or undertaking for the improvement of property owned by the Corporation or in which it may have an interest.

To build, purchase, take, receive, lease or otherwise acquire, own, hold, use, maintain, alter, repair and improve, and sell, convey, mortgage, pledge, lease, exchange,

transfer and otherwise dispose of buildings, structures, works and improvements of all kinds; to plan, establish, furnish, decorate, equip, improve, maintain, lease, sublease, sell, convey, exchange and transfer space, offices, rooms, suites and apartments; and to manufacture, purchase or otherwise acquire, own, use, install, maintain, repair, operate and deal in and with, and sell, mortgage, pledge, lease or otherwise dispose of fixtures, improvements and furnishings of all kinds and any articles, materials, machinery, equipment and property used for or in connection with any business or property of the Corporation.

To engage in the business of managing, supervising and operating real property, buildings and structures; to negotiate and consummate, for itself or for others, leases and other contracts with respect to such property; to enter into contracts, either as principal or as agent, for the furnishing, maintenance, repair or improvement of any property managed, supervised or operated by the Corporation; to furnish management, financial and other services; to purchase or otherwise acquire, own, use, improve, maintain, operate, sell, lease and otherwise dispose of any articles, materials, machinery and equipment used for or in connection with any business of the Corporation; and to engage in and conduct, or authorize, license or permit others to engage in and conduct, any business or activity incident, necessary, advisable or advantageous to the ownership of property, buildings and structures managed, supervised or operated by the Corporation.

- 2 -

2. To conduct a general mercantile business, and to purchase, manufacture or otherwise acquire, pledge, lease, invest in, make or receive consignments or bailments of, import, export, mortgage, sell, assign and transfer, or otherwise dispose of, and generally to deal in commodities and products and merchandise, goods, wares, machinery, fabrics of every description, whether natural or synthetic, including plastic materials, of every description, printed materials, and articles of commerce, whether constituting real or personal property of every kind, character and description whatsoever, and wheresoever, situated, at any place or places in the United States of America or foreign countries throughout the world.

3. To act as broker, or as commercial, sales, business commission merchant, or financial agent, factor del credere or otherwise, or as attorney-in-fact for individuals, copartnerships, joint stock associations or corporations, foreign or domestic, including governments or governmental authorities; and to aid and assist, promote and conserve the interests of and afford facilities for the continuous transaction of business by its principals and patrons in the United States of America or in foreign countries throughout the world.

4. To act as forwarding, shipping and freight agent and as clearance and customhouse broker.

5. To purchase or otherwise acquire, hold, own, maintain, improve, operate, mortgage, sell, convey or otherwise dispose of, and to lease real and personal property of

- 3 -

every class and description in any of the states, districts or territories of the United States and in any foreign countries, subject to the laws of such state, district, territory or country.

6. To manufacture, purchase, rent, use and dispose of machinery, tools and apparatus.

7. To purchase or otherwise acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage, or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names.

8. For its corporate purposes on any terms and without limit, to borrow or receive money, and from time to time, to make, accept, endorse, execute and issue bonds, debentures, promissory notes, drafts, bills of exchange and other obligations of the Corporation, and to secure the payment of any such obligations by mortgage, pledge, deed, indenture, agreement or other instruments of trust, or by other lien upon, assignment of or agreement in regard to all or any part of the property rights or privileges of the Corporation wherever situated, whether now owned or hereafter to be acquired.

9. To purchase or otherwise acquire, hold, cancel, reissue, sell, resell, pledge, transfer and otherwise dispose of shares of its own capital stock, so far as may be permitted by law.

- 4 -

10. To purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of shares of capital stock of, or bonds, securities, or evidence of indebtedness created by any other corporation or corporations organized under the law of this state or any other state, country, nation or government, and while the owner thereof, to exercise all the rights, powers, and privilege of ownership.

11. To make, enter into, perform and carry out contracts, agreements, and obligations of every sort and kind, which may be necessary or convenient for the business of this company or business of a similar nature, with any person, firm, corporation, private, public or municipal, body politic under the government of the United States or any state, territory, possession or colony thereof, or any foreign government, so far as, and to the extent that, the same may be done and performed by corporations organized under the New York Business Corporation Law.

12. To acquire and pay for in cash, stock or bonds of this Corporation or otherwise, the good will, rights, assets and property, and to undertake or assume the whole or any part of the obligations or liabilities of any person, firm association or corporation.

13. To do all and everything necessary or convenient for the accomplishment of the objects or purposes herein enumerated, or necessary, incidental or appropriate to the protection of the Corporation.

- 5-

14. In general, to carry on any other similar business in connection with the foregoing, and to have and exercise all the powers conferred from time to time by the laws of New York upon corporations formed under the New York Business Corporation Law, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do.

15. The foregoing clauses of this ARTICLE SECOND shall be construed as purposes, objects and powers, and the matters expressed in each clause shall not be limited in any way, except as otherwise expressly provided, by reference to or inference from the terms of any other clause (or any other matter within the same clause), but shall be regarded as independent purposes, objects and powers; and the enumeration of specified purpose, objects and powers shall not be construed to exclude, limit or restrict in any manner any power, right or privilege given to the Corporation by law, or to limit or restrict in any manner the meaning of the general terms of such clauses, or the general powers of the Corporation, nor shall the expression of one thing be deemed to exclude another, although it be of like nature, not expressed.

THIRD: The city, incorporated village or town and the county within the State of New York in which the office of the Corporation is to be located are as follows:

Town of Oceanside

County of Queens

- 6 -

FOURTH: The aggregate number of shares which the Corporation shall have authority to issue is 200 shares, all of which are without par value and all of which are of the same class.

FIFTH: The Secretary of State is designated as the agent of the Corporation upon whom process in any action or proceeding against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is:

c/o Trubin Sillcocks et al. 375 Park Avenue New York, New York 10022

IN WITNESS WHEREOF, the undersigned has executed and acknowledged this Certificate this 13th day of March, nineteen hundred and seventy-five.

	(Incorporator)
c/o	Trubin Sillcocks et al.
	375 Park Avenue
	New York, New York 10022
(Address of Incorporator)

STATE OF NEW YORK	)
	)	SS.:
COUNTY OF NEW YORK	)

On the date hereinafter set forth, before me personally came S. Katherine Oechler to me known, and known to me to be the person described in and who executed the foregoing Certificate and she acknowledged to me that she executed the same.

Dated: MARCH 13, 1975	/s/ John Gutheil
	Notary Public
	JOHN GUTHEIL NOTARY PUBLIC, State of New York No. 1608860 Qualified in Westchester County Term Expires March 30, 1975

CERTIFICATE OF INCORPORATION

OF

LBRO REALTY, INC.

Under Section 402 of the Business Corporation Law

TRUBIN SILLCOCKS EDELMAN & KNAPP

375 Park Avenue

New York, New York 10022

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF MERGER

OF

LBRO REALTY, INC.

AND

NWCM CORP.

INTO

LBRO REALTY, INC.

(Under Section 904 of the Business Corporation Law)

The undersigned, Ira Waldbaum and Julia Waldbaum, being president and secretary, respectively of LBRO REALTY, INC. and Ira Waldbaum and Julia Waldbaum, being president and secretary, respectively, of NWCM CORP., said corporations being domestic corporations organized and existing by virtue of the laws of the State of New York, do hereby certify and set forth:

FIRST: The Board of Directors of each of the constituent corporations has duly adopted a Plan of Merger setting forth the terms and conditions of the merger of said corporations.

SECOND: The name of each of the constituent corporations is LBRO REALTY, INC. and NWCM CORP. and the name of the surviving corporation is LBRO REALTY, INC.

THIRD; The date when the Certificate of Incorporation of LBRO REALTY, INC. was filed by the Department of

State was March 14, 1975 and the date when the Certificate of Incorporation of NWCM CORP. was filed by the Department of State was November 26, 1974.

FOURTH: That as to each constituent corporation the Plan of Merger sets forth the designation and number of outstanding shares of each class and series, the specifications of the classes and series entitled to vote on the Plan of Merger, and the specification of each class and series entitled to vote as a class on the Plan of Merger, as follows:

LBRO REALTY, INC.

Designation of each outstanding class and series of shares	Number of outstanding shares of each class	Designation of class and series entitled to vote	Classes and series entitled to vote as a class
Common Stock no par value	200	Common Stock no par value	none

NWCM CORP.

Designation of each outstanding class and series of shares	Number of outstanding shares of each class	Designation of class and series entitled to vote	Classes and series entitled to vote as a class
Common Stock no par value	200	Common Stock no par value	none

FIFTH: That the merger was authorized by the shareholders of LBRO REALTY, INC. by unanimous written consent of the holders of all outstanding shares entitled to vote and that the merger was authorized by the shareholders of NWCM CORP. by unanimous written consent of the holders of all outstanding shares entitled to vote.

- 2 -

SIXTH: The amendments or changes to be made in the Certificate of Incorporation of LBRO REALTY, INC. are as follows:

Article FIFTH is deleted in its entirety and a New Article FIFTH is to be added to read:

FIFTH: The Secretary of State is designated as the agent of the Corporation upon whom process in any action or proceeding against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is: c/o Bartel Engelman & Fishman

                                                                                                        One Dag Hammarskjold Plaza

                                                                                                        New York, New York 10017

IN WITNESS WHEREOF, we have signed this certificate on October 31, 1977, and affirm the truth of the statements contained therein under penalty of perjury.

/s/ Ira Waldbaum

IRA WALDBAUM, President of LBRO REALTY, INC.

/s/ Julia Waldbaum

JULIA WALDBAUM, Secretary of LBRO REALTY, INC.

/s/ Ira Waldbaum

IRA WALDBAUM, President of NWCM CORP.

/s/ Julia Waldbaum

JULIA WALDBAUM, Secretary of NWCM CORP.

- 3 -

CERTIFICATE OF MERGER

OF

LBRO REALTY, INC.

AND

NWCM CORP.

INTO

LBRO REALTY, INC.

(Under Section 904 of the Business Corporation)

Bartel Engelman & Fishman

One Dag Hammarskjold Plaza

New York, New York 10017

(212-752-9111)

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF THE

CERTIFICATE OF INCORPORATION

OF

LBRO Realty, Inc.

    (Under Section 805A of the Business Corporation Law)

The undersigned, pursuant to the provisions of Section 805 (a) of the Business Corporation Law of the State of New York, hereby amends the Certificate of Incorporation of LBRO Realty, Inc., a New York corporation (the “Corporation”), and certifies that:

FIRST: The name of the Corporation is LBRO Realty, Inc.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York on March 14, 1975.

THIRD: The Certificate of Incorporation is hereby amended pursuant to Section 805 (a) of the Business Corporation Law, to effect a change of the post office address to which the Secretary of State shall mail a copy of process against the Corporation served upon him.

FOURTH: The paragraph in the Certificate of Incorporation of the Corporation which refers to the designation of agent for service of process is hereby amended to read as follows:

“The Secretary of State is designated as the agent of the Corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of each process against it served upon him is in care of Kenneth Gordon, Esq., Tenzer, Greenblatt, Fallon & Kaplan, 405 Lexington Avenue, New York, New York 10 17 4.”

FIFTH: The change of the Certificate of Incorporation was authorized by the unanimous written consent of the Board of Directors of the Corporation.

IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 21^st day of May, 1981.

/s/ Ira Waldbaum

President - Ira Waldbaum

/s/ Julia Waldbaum

Secretary - Julia Waldbaum

-2-

CERTIFICATE OF CHANGE

OF THE

CERTIFICATE OF INCORPORATION

OF

LBRO REALTY, INC.

TENZER, GREENBLATT, FALLON & KAPLAN

COUNSELLORS AT LAW

THE CHRYSLER BUILDING

405 LEXINGTON AVENUE

NEW YORK, N. Y. 10174

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State

Division of Corporations, Records and UCC

Albany, NY 12231-0002

www.dos.state.ny.us

LBRO REALTY, INC.

ATTN: TAX DEPARTMENT

2 PARAGON DRIVE

MONTVALE NJ 07645

Business Corporation

Biennial Statement

364939                

For Internal Use Only
Filed By:	AH

Cash # (if different than film #):
Required Fee:	$9.00
Filing Period:	03/2009
(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer
ERIC CLAUS 2 PARAGON DR MONTVALE NJ 07645	Name
	Address
	City	State	Zip
Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substituted)
LBRO REALTY, INC. ATTN: TAX DEPARTMENT 2 PARAGON DRIVE MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip
Part 3: Address for Service of Process
UNITED STATES CORPORATION COMPANY 15 COLUMBUS CIRCLE NEW YORK NY 10023-7773	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption
¨ Check if applicable	This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filing fee is required for farm corporations.
Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

/s/ Michael Gualtieri	Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

	DOS-1179 (08/06)
090320002421

EX-99.T3A.30

Exhibit A-30

Corporations Section P.O. Box 13697 Austin, Texas 78711-3697 Hope Andrade Secretary of State

Office of the Secretary of State

The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below:

LO-LO DISCOUNT STORES, INC.

Filing Number: 22243900

Articles of Incorporation	March 11, 1966
Articles Of Amendment	December 11, 1978
Articles of Amendment	June 08, 1981
Articles of Amendment	August 11, 1981

In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on December 13, 2010.
	/s/ Hope Andrade Hope Andrade Secretary of State

Come visit us on the internet at http://www.sos.state.tx.us/

Phone: (512) 463-5555	Fax: (512) 463-5709	Dial: 7-1-1 for Relay Services
Prepared by: SOS-WEB	TID: 10266	Document: 345320810003

ARTICLES OF INCORPORATION

OF

TAP, INCORPORATED

STATE OF TEXAS	)
	)
COUNTY OF DALLAS	)

We, the undersigned natural persons of the age of twenty-one (21) years or more, all three of whom are citizens of the State of Texas, acting as incorporators of a corporation under the Texas Business Corporation Act, do hereby adopt the following Articles of Incorporation for such corporation:

ARTICLE I

The name of the corporation is TAP, INCORPORATED.

ARTICLE II

The period of its duration is perpetual.

ARTICLE III

The purpose or purposes for which the corporation is organized are to sell, dispense, distribute and market beer, wine and related beverages, and carry on the business of the selling, distributing, and marketing of beer, wine and related beverages, and to do any and all things necessary and pertaining to said business; to engage in dispensing, distributing, marketing and selling of beer, wine and related beverages and generally to purchase, lease and otherwise acquire a building or buildings or space in a building or buildings of such extent and character as may be suitable and adequate for the said distribution, selling, dispensing and marketing of beer, wine and related beverages; to hold, own, lease, rent or sell such business or businesses; to maintain any premises so acquired as a place for the dispensing, distributing, marketing or selling of beer, wine and related beverages; to engage in any marketing, selling, distributing and

dispensing of beer, wine and related beverages business whatsoever (where not pre-empted by law), which the corporation may deem convenient or proper in furtherance of any of the purposes herein mentioned or otherwise; to conduct its business in the State of Texas and other states, the District of Columbia and the territories and possessions of the United States; and to have and to exercise all powers authorized by the laws of the State of Texas under which the corporation is formed, whether expressly set forth herein or not, as such laws are now in effect or may be at any time hereafter be amended; to purchase, or otherwise acquire, own, mortgage, pledge, rent, lease, distribute, sell, in whatever manner deemed necessary or desirable, assign and transfer or otherwise dispose of, and to invest, trade, deal in and with goods, wares and merchandise, equipment and personal property of every class and description and patents and processes pertaining thereto, and to do any and everything necessary and appropriate in carrying out such enterprise; to do each and everything necessary and proper for the accomplishment of any or more of the purposes or the attainment of any one or more of the objects hereinabove enumerated or conducive to or expedient for the interest or benefit of the corporation; to contract and subcontract with others accordingly, and in addition, to exercise or possess all powers, rights and privileges necessary or incidental to the purposes for which this corporation is formed, or to its activities in which it is engaged; to acquire, hold, use, sell, assign, lease, grant, license in respect of, mortgage, hypothecate, or otherwise dispose of or deal in letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, relative to or useful in connection with any business of this corporation; to enter into, make and perform contracts of every kind and description, with any person, firm, association, corporation, municipality, county, state, body politic or government or colony or dependency thereof; to have and to exercise all powers conferred by the

laws of Texas upon corporations formed under the Texas Business Corporation Act; the objects and purposes specified in the foregoing clause shall be regarded as independent purposes and shall not be limited, except as otherwise expressed, by the terms of any other clause in this certificate of incorporation.

ARTICLE IV

The aggregate number of shares which the corporation shall have authority to issue is Ten Thousand (10,000) shares of common stock of the par value of One ($1.00) Dollar each, totaling Ten Thousand ($10,000.00) Dollars.

ARTICLE V

The corporation will not commence business until it has received for the issuance of its shares consideration of the value of One Thousand ($1,000.00) Dollars, consisting of money, labor done, or property actually received, of which the sum is not less than One Thousand ($1,000.00) Dollars.

ARTICLE VI

The post office address of its initial registered office is P. O. Box 6147, Terminal Annex, 2301 North Field Street, Dallas, Texas, in the City of Dallas, in the County of Dallas, State of Texas, and the name of its initial registered agent at such address is G. L. Harrison.

ARTICLE VII

The number of Directors constituting the initial Board of Directors is three (3), and the names and addresses of the persons who are to serve as Directors until the first annual meeting of the shareholders, or until their successors are elected and qualified are:

R. O. Whiddon

4126 Courtshire Road

Dallas, Texas

C. L. Harrison

6217 Ellsworth Street

Dallas, Texas

G. L. Harrison

11060 Lawn Haven Road

Dallas, Texas

ARTICLE VIII

The names and addresses of the incorporators are:

R. O. Whidden

4126 Courtshire Road

Dallas, Texas

C. L. Harrison

6217 Ellsworth Street

Dallas, Texas

G. L. Harrison

11060 Lawn Haven Road

Dallas, Texas

ARTICLE IX

The internal affairs of the corporation shall be conducted in accordance with the Texas Business Corporation Act and the by-laws of this corporation, except that cumulative voting in the election of Directors by a shareholder giving one candidate as many votes as the number of such Directors multiplied by the number of such shareholder’s shares shall equal, or by such shareholder distributing shares voted on the same principle among any number of candidates, is hereby expressly prohibited. The shareholders of the corporation hereby delegate to the Board of Directors, the power to adopt, alter, amend or repeal the by-laws of the corporation.

IN WITNESS WHEREOF, we have hereunto set our hands this 9^TH day of MARCH, 1966.

STATE OF TEXAS	)
	)
COUNTY OF DALLAS	)

BEFORE ME, the undersigned authority, on this day personally appeared R. O. WHIDDON, C. L. HARRISON and G.L. HARRISON, who each being

by me duly sworn, severally declared that they are the persons who signed the foregoing document as incorporators, and that the statements therein contained are true.

Notary Public in and for Dallas County, T E X A S

ARTICLES OF AMENDMENT

TO THE

ARTICLES OF INCORPORATION

OF

TAP, INCORPORATED

— — — — — — — — —

Pursuant to the provisions of Art. 4.04 of the Texas Business Corporation Act, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation:

ARTICLE ONE. The name of the corporation is TAP, INCORPORATED.

ARTICLE TWO. The following amendment to the Articles of Incorporation was adopted by the written consent of the shareholders of the corporation on December 4, 1978 and the consent shall have the same force and effect as a unanimous vote of the shareholders. The amendment alters or changes Article I of the original Articles of Incorporation and the Article is hereby amended to read as follows:

“ARTICLE I. The name of the corporation is LO-LO DISCOUNT STORES, INC.”

ARTICLE THREE: The number of shares of the corporation outstanding at the time of such adoption was 1,000 and the number of shares entitled to vote thereon was 1,000.

ARTICLE FOUR. The number of shares voted for such amendment was 1,000; and the number of shares voted against such amendment was -0-.

Dated: December 5, 1978

TAP, INCORPORATED
By
	President
By
	Secretary

STATE OF NEW JERSEY	)
	)	ss:
COUNTY OF BERGEN	)

I, Joyce Bolden, a Notary Public, do hereby certify that on this 6 day of December, 1978, personally appeared before me R. F. Doyle, who declared he is President of the corporation executing the foregoing document, and being first duly sworn, acknowledged that he signed the foregoing document in the capacity therein set forth and declared that the statements therein contained are true.

IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year before written.

/s/ Joyce Bolden

Notary Public

JOYCE BOLDEN

NOTARY PUBLIC OF NEW JERSEY

My Commission Expires 1981

-2-

ARTICLES OF AMENDMENT

TO THE

ARTICLES OF INCORPORATION

OF

LO-LO DISCOUNT STORES, INC.

— — — — — — — — — — — — — —

Pursuant to the provisions of Art. 4.04 of the Texas Business Corporation Act, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation:

ARTICLE ONE. The name of the corporation is LO-LO DISCOUNT STORES, INC.

ARTICLE TWO. The following amendment to the Articles of Incorporation was adopted by the written consent of the sole shareholder of the corporation on May 27, 1981, and the consent shall have the same force and effect as a unanimous vote of the shareholders. The amendment alters or changes Article I of the original Articles of Incorporation and the Article is hereby amended to read as follows:

“ARTICLE I. The name of the corporation is NFS HOLDINGS, INC.”.

ARTICLE THREE. The number of shares of the corporation outstanding at the time of such adoption was 1,000 and the number of shares entitled to vote thereon was 1,000.

ARTICLE FOUR. The number of shares voted for such amendment was 1,000; and the number of shares voted against such amendment was -0-.

Dated: May 28, 1981

LO-LO DISCOUNT STORES, INC.
By
	Vice President
By
	Secretary

STATE OF NEW JERSEY	)
	)	ss:
COUNTY OF BERGEN	)

I, Alice M. Solleder, a Notary Public, do hereby certify that on this 28th day of May, 1981, personally appeared before me R. G. Ulrich, who declared he is Vice President of the corporation executing the foregoing document, and being first duly sworn, acknowledged that he signed the foregoing document in the capacity therein set forth and declared that the statements therein contained are true.

IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year before written.

/s/ Alice M. Solleder

Notary Public

ALICE M SOLLEDER G2700

Notary Public of New Jersey

Commission Expires February 27, 1985

- 2 -

ARTICLES OF AMENDMENT

TO THE

ARTICLES OF INCORPORATION

OF

NFS HOLDINGS, INC.

Pursuant to the provisions of Art. 4.04 of the Texas Business Corporation Act, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation:

ARTICLE ONE. The name of the corporation is NFS HOLDINGS, INC.

ARTICLE TWO. The following amendment to the Articles of Incorporation was adopted by the written consent of the sale shareholder of the corporation on July 27, 1981, which consent has the same force and effect as a unanimous vote of the shareholders. The amendment alters or changes Article I of the original Articles of Incorporation and the Article is hereby amended to read as follows:

“ARTICLE I. The name of the corporation is LO-LO DISCOUNT STORES, INC.”.

ARTICLE THREE. The number of shares of the corporation outstanding at the time of such adoption was 1,000 and the number of shares entitled to vote thereon was 1,000.

ARTICLE FOUR. The number of shares voted for such amendment 1,000; and the number of shares voted against such amendment was -0-.

Dated: July 28, 1981

NFS HOLDINGS, INC.

By    

Vice President

By    

Secretary

STATE OF NEW JERSEY	)
	)	SS.:
COUNTY OF BERGEN	)

I, Marilyn C. Tomicki, a Notary Public, do hereby certify that on this 28th day of July, 1981, personally appeared before me R. G. Ulrich, who declared he is Vice President of the corporation executing the foregoing document, and being first duly sworn, acknowledged that he signed the foregoing document in the capacity therein set forth and declared that the statements therein contained are true.

IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year before written.

/s/ Marilyn C. Tomicki

Notary Public

MARILYN C. TOMICKI #G02701

Notary Public of New Jersey

Commission Expires February 27, 1985

EX-99.T3A.31

Exhibit A-31

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF THE STATE OF THE DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “MACDADE BOULEVARD STUART, LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE NINTH DAY OF SEPTEMBER, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1999, AT 3:30 O’CLOCK P.M.

CERTIFICATE OF CORRECTION, FILED THE FOURTH DAY OF JUNE, A.D. 1999, AT 12 O’CLOCK P.M.

CERTIFICATE OF CONVERSION, CHANGING ITS NAME FROM “GLENOLDEN STUART, INC.” TO “MACDADE BOULEVARD STUART, LLC”, FILED THE TWENTY-NINTH DAY OF JULY, A.D. 2005, AT 9:41 O’CLOCK A.M.

CERTIFICATE OF FORMATION, FILED THE TWENTY-NINTH DAY OF JULY, A.D. 2005, AT 9:41 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE NINTH DAY OF SEPTEMBER, A.D. 2008, AT 10:56 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “MACDADE BOULEVARD STUART, LLC”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2942856 8100H	AUTHENTICATION:	8418734
101175339	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

GLENOLDEN STUART, INC.

Under Section 102 of the

General Corporation Law

The undersigned, for the purpose of forming a corporation pursuant to the provisions of the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code 1953, as amended (the “GCL”), does hereby certify as follows:

FIRST: The name of the Corporation is GLENOLDEN STUART, INC. (the “Corporation”).

SECOND: The registered office of the Corporation is to be located at 1013 Centre Road, in the City of Wilmington, in the County of New Castle, in the State of Delaware. The name of its registered agent at that address is Corporation Services Company.

THIRD:

A. Purpose

Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: The nature of the business and of the purposes to be conducted and promoted by the Corporation, is to engage solely in the following activities:

1. To acquire that certain parcel of real property, together with all improvements located thereon, in the City of Glenolden, State of Pennsylvania, commonly known as 140 North MacDade Boulevard (the “Property”).

2. To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.

3. To exercise all powers enumerated in the General Corporation Law of the State of Delaware necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

B. Certain Prohibited Activities

Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: The Corporation shall only incur indebtedness in an amount necessary to acquire, operate and maintain the Property. For so long as any mortgage lien exists on the Property, the Corporation shall not incur, assume, or guaranty any other indebtedness except the Corporation may guarantee the indebtedness of Pathmark Stores, Inc. and its subsidiaries under that certain Credit Agreement dated as of June 30, 1997 among Pathmark Stores, Inc., the lenders party thereto, the Chase Manhattan Bank, as Administrative Agent, and CIBC Inc. and Corestates Bank, N.A., as Co-Agents, as in effect on the date hereof, and as such agreement may be amended, renewed, extended, supplemented or otherwise modified from time to time and any agreement or successive agreements incurred to refund, refinance or replace such credit agreement (the “Credit Agreement”). The Corporation shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (i) the entity (if other than the Corporation) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and assets of the Corporation substantially as an entirety (a) shall be organized and existing under the laws of the United States of America or any State or the District of Columbia, (b) shall include in its organizational documents the same limitations set forth in this Article Third and in Article Fourth, and (c) shall expressly assume the due and punctual performance of the Corporation’s obligations; and (ii) immediately after giving effect to such transaction, no default or event of default under any agreement to which it is a party shall have been committed by this Corporation and be continuing. For so long as a mortgage lien exists on the Property, the Corporation will not voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy code or any similar federal or state statue without the unanimous consent of the Board of Directors. For so long as a mortgage lien exists on the Property, no material amendment to this Certificate of Incorporation or to the corporation’s By-Laws may be made without first obtaining approval of the mortgagee holding a first mortgage lien on the property.

FOURTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Corporation to the contrary, the following shall govern: For so long as any mortgage lien exists on the Property, in order to preserve and ensure its separate and distinct corporate identity, in addition to the other provisions set forth in this Certificate of Incorporation, the Corporation shall conduct its affairs in accordance with the following provisions:

1. It shall establish and maintain an office through which its business shall be conducted separate and apart from those of its parent and any affiliate and shall allocate fairly and reasonably any overhead for shared office space.

2. It shall maintain separate corporate records and books of account from those of its parent and any affiliate.

- 2 -

3. Its Board of Directors shall hold appropriate meetings (or act by unanimous consent) to authorize all appropriate corporate actions, and in authorizing such actions, shall observe all corporate formalities.

4. It shall not commingle assets with those of its parent and any affiliate.

5. It shall conduct its own business in its own name.

6. It shall maintain financial statements separate from its parent and any affiliate.

7. It shall pay any liabilities out of its own funds, including salaries of any employees, not funds of its parent or any affiliate.

8. It shall maintain an arm’s length relationship with its parent and any affiliate.

9. It shall not guarantee or become obligated for the debts of any other entity, including its parent or any affiliate or hold out its credit as being available to satisfy the obligations of others, except as set forth above.

10. It shall use stationary, invoices and checks separate from its parent and any affiliate.

11. It shall not pledge its assets for the benefit of any other entity, including its parent and any affiliate, except as required by the Credit Agreement.

12. It shall hold itself out as an entity separate from its parent and any affiliate.

For purpose of this Article Fourth, the following terms shall have the following meanings:

“affiliate” means any person controlling or controlled by or under common control with the parent, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any director, officer or employee of the corporation, its parent, or any affiliate thereof and (ii) any person which receives compensation for administrative, legal or accounting services from this Corporation, its parent or any affiliate. For purposes of this definition, “control” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

- 3 -

“parent” means any individual, corporation, any other corporation owning or controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the corporation.

“person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

FIFTH: The total number of shares of stock which the Corporation is authorized to issue is 100 shares of Common Stock, par value $0.01 per share.

SIXTH: The name and mailing address of the incorporator is as follows:

Name	Address
John A. Calvo	100 Overlook Center Princeton, NJ 08540

SEVENTH: The corporation is to have perpetual existence.

EIGHTH: The original By-Laws of the Corporation shall be adopted by the initial incorporator named herein. Thereafter, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized, in addition to the stockholders, to make, alter, or repeal the By-Laws of the Corporation.

NINTH: A director of the Corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which the director derived an improper personal benefit. All references in this paragraph to a director shall also be deemed to refer to such other person or persons, if any, who, pursuant to any provision of this Certificate of Incorporation in accordance with subsection (a) of Section 141 of Title 8 of the Delaware Code, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Board of Directors by Title 8 of the Delaware Code. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the corporation to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations respecting the Property and shall not constitute a claim against the Corporation in the event that cash flow is insufficient to pay such obligations.

- 4 -

TENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision of the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the corporation. Election of directors need not be by written ballot unless the By-Laws of the Corporation shall so provide.

ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders are granted subject to this reservation, provided, however, that for so long as any mortgage lien exists on the Property, any such amendment shall be made in compliance with the provisions of Article Third.

I, THE UNDERSIGNED, being the incorporator as named above, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and that the facts herein stated are true, and accordingly have hereunto set my hand and seal this 8^th day of September 1998.

/s/ John A. Calvo

John A. Calvo

Incorporator

- 5 -

CERTIFICATE OF MERGER

The undersigned limited liability company organized and existing under and by virtue of Chapter 18 of Title 6 of the Delaware Code,

DOES HEREBY CERTIFY:

FIRST: The name and state of formation of the constituent limited liability company to this merger is Glenolden Stuart, LLC, a Delaware limited liability company. The name and state of incorporation of the constituent corporation to this merger is Glenolden Stuart, Inc., a Delaware corporation.

SECOND: An agreement of merger (the “Plan of Merger”) has been approved and executed by each of the constituent business entities to be merged hereby.

THIRD: The surviving entity to this merger is Glenolden Stuart, LLC, a Delaware limited liability company.

FOURTH: The executed Plan of Merger is on file at the principal place of business of Glenolden Stuart, LLC, the surviving entity to this merger, at 200 Milik Street, Carteret, NJ 07008.

FIFTH: A copy of the Plan of Merger will be furnished by Glenolden Stuart, LLC, the surviving entity to this merger, on request and without cost to any member of the constituent limited liability company to this merger and to any shareholder of the constituent corporation to this merger.

IN WITNESS WHEREOF, Glenolden Stuart, LLC, the surviving entity to this merger, has caused this Certificate of Merger to be executed by its duly authorized signatory this 17^th day of February, 1999.

Glenolden Stuart, LLC
by:	Glenolden Stuart, Inc.
	Sole Member
by:	/s/ Marc A. Strassler
	Marc A. Strassler
	Senior Vice President

CERTIFICATE OF CORRECTION

REGARDING

CERTIFICATE OF MERGER FILED ON FEBRUARY 22, 1999

The undersigned, a corporation and a limited liability company each incorporated or organized under and by virtue of the Delaware Code,

EACH DO HEREBY CERTIFY:

FIRST: Glenolden Stuart, LLC, a Delaware limited liability company, filed with the Secretary of State of the State of Delaware on February 22, 1999 a Certificate of Merger providing for the merger of Glenolden Stuart, Inc., a Delaware corporation, with and into Glenolden Stuart, LLC, with Glenolden Stuart, LLC the surviving entity of such merger.

SECOND: The aforesaid Certificate of Merger was filed in error, and the merger between Glenolden Stuart, Inc. and Glenolden Stuart, LLC is null and void ab initio and of no effect.

THIRD: The continued, uninterrupted and separate existence of Glenolden Stuart, Inc. and Glenolden Stuart, LLC is confirmed.

IN WITNESS WHEREOF, Glenolden Stuart, Inc. and Glenolden Stuart, LLC have caused this Certificate of Correction to be executed by their respective duly authorized signatories this 28^th day of May 1999.

Glenolden Stuart, LLC		Glenolden Stuart, Inc.
by:	Glenolden Stuart, Inc.	by:	/s/ Marc A. Strassler
	Sole Member		Marc A. Strassler
			Senior Vice President
by:	/s/ Marc A. Strassler
	Marc A. Strassler
	Senior Vice President

CERTIFICATE OF CONVERSION

CONVERTING GLENOLDEN STUART, INC.

(A Delaware Corporation)

TO

MACDADE BOULEVARD STUART, LLC

(A Delaware Limited Liability Company)

PURSUANT TO SECTION 266

OF THE DELAWARE GENERAL CORPORATION LAW

1) The name of the corporation immediately prior to filing this Certificate is Glenolden Stuart, Inc.

2) The date the Certificate of Incorporation was filed on is September 9, 1998.

3) The original name of the corporation as set forth in the Certificate of Incorporation is Glenolden Stuart, Inc.

4) The name of the limited liability company as set forth in the Certificate of Formation is MacDade Boulevard Stuart, LLC.

5) The conversion has been approved in accordance with the provisions of Section 266.

	GLENOLDEN STUART, INC.
By:	/s/ Marc A. Strassler
	Marc A. Strassler
	Senior Vice President

#31827-1

STATE OF DELAWARE

CERTIFICATE OF FORMATION

OF

MACDADE BOULEVARD STUART, LLC

FIRST:	The name of the limited liability company is MacDade Boulevard Stuart, LLC (the “Company”).
SECOND:	The Company’s registered office in the State of Delaware is located at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered agent of the Company for service of process at such address is Corporation Service Company.
THIRD:	Notwithstanding any provision hereof, or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The nature of the business and of the purposes to be conducted and promoted by the Company is to engage solely in the following activities:
	1.	To acquire that certain parcel of real property, together with all improvements located thereon, in the City of Glenolden, State of Pennsylvania, commonly known as 140 North MacDade Boulevard’ (the “Property”).
	2.	To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.
	3.	To exercise all powers enumerated in the Delaware Limited Liability Company Act necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation this 29th day of July, 2005.

/s/ Marc Strassler

Marc Strassler

Authorized Person

#31830-1

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

1. Name of Limited Liability Company: MACDADE BOULEVARD STUART, LLC

2. The Certificate of Formation of the limited liability company is hereby amended as follows:

To change the registered agent as follows: Its registered office in the State of Delaware is to be located at: 1220 N. Market St., Suite 806, Wilmington, DE 19801, County of NEW CASTLE and its registered agent at such address is: BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 9TH day of SEPTEMBER, A.D. 2008.

By: /s/ Jose Mojica

Authorized Person(s)
Name:	JOSE MOJICA
Print or Type

EX-99.T3A.32

Exhibit A-32

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

McCLEAN AVENUE PLAZA CORP.

(Under Section 402 of the Business Corporation Law)

The undersigned, for the purpose of forming a corporation pursuant to the provisions of the Business Corporation Law of the State of New York, hereby certifies that:

FIRST: The name of the corporation is McClean Avenue Plaza Corp. (the “Corporation”).

SECOND: The Corporation is formed for the following purposes:

(a) To acquire, by purchase, lease, or otherwise, lands and interest in lands, and to own, hold, improve, develop, and manage any real estate so acquired, and to erect, or cause to be erected, on any lands owned, held, or occupied by the Corporation, buildings or other structures, with their appurtenances, and to manage, operate, lease, rebuild, enlarge, alter or improve any buildings or other structures, now or hereby erected on any lands so owned, held, or occupied, and to encumber or dispose of any lands or interest in lands, and any buildings or other structures, and any stores, shops, suites, rooms, or part of any buildings or other structures, at any time owned or held by the Corporation.

(b) To acquire, by purchase, lease, manufacture or otherwise, any personal property deemed necessary or useful in the equipment, furnishing, improvement, development, or management of any property, real or personal, at any time owned, held, or occupied by the Corporation and

to invest, trade, and deal in any personal property deemed beneficial to the Corporation, and to encumber or dispose of any personal property at any time owned or held by the Corporation.

(c) To do and participate in all things necessary, suitable or proper for the accomplishment of any of the Corporation’s purposes or powers and the attainment of any of its objects or incidental to or growing out of or connected with such purposes, powers and objects or any of them.

The purposes set forth above shall not be deemed to limit the Corporation from engaging in any lawful business in which a corporation organized under the provisions of the Business Corporation Law of the State of New York may engage.

THIRD: The office of the Corporation shall be located in the Town of Islip, County of Suffolk and the State of New York.

FOURTH: The aggregate number of shares which the Corporation shall have authority to issue is 200, of Common Stock, $1.00 par value per share.

FIFTH: The Secretary of State is hereby designated the agent of the Corporation upon whom process against the Corporation may be served, and the address to which the Secretary of State shall mail a copy of the process against the Corporation which may be served upon him is c/o Kenneth Gordon, Barovick Konecky Schwartz Kay & Schiff, One Dag Hammarskjold Plaza, New York, New York 10017.

-2-

IN WITNESS WHEREOF, the undersigned has made, signed and acknowledged this Certificate of Incorporation this 7th day of November, 1980.

/s/ Kathy E. Eshleman

Kathy E. Eshleman

Barovick Konecky Schwartz Kay & Schiff

One Dag Hammarskjold Plaza

New York, New York 10017

STATE OF NEW YORK	)
	:	ss.:
COUNTY OF NEW YORK	)

On this 7th day of November, 1980, before me personally came Kathy E. Eshleman, to me known and known to me to be the person described in who executed the foregoing Certificate, and she acknowledged to me that she executed same.

/s/ Bernice Rutsky

Bernice Rutsky

Notary Public, State of New York

No. 44340782

Filed in Rockland County

Commission Expires March     ,         

-3-

CERTIFICATE OF INCORPORATION

OF

McCLEAN AVENUE PLAZA CORP.

(Under Section 402 of the Business Corporation Law)

BAROVICK KONECKY BRAUN SCHWARTZ & KAY

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

ONE DAG HAMMARSKJOLD PLAZA

NEW YORK, N. Y. 10017

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

McCLEAN AVENUE PLAZA CORP.

(Under Section 805 of the Business Corporation Law)

The undersigned, pursuant to the provisions of Section 805(a) of the Business Corporation Law of the State of New York, hereby amends the Certificate of Incorporation of McClean Avenue Plaza Corp., a New York corporation (the “Corporation”), and certifies that:

FIRST: The name of the Corporation is McClean Avenue Plaza Corp.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York, on the 14th day of November, 1980.

THIRD: Article FIRST of the Certificate of Incorporation of the Corporation is hereby amended to read in its entirety as follows:

“FIRST: The name of the corporation is McLean Avenue Plaza Corp. (the “Corporation”).

FOURTH: The Corporation has no shareholders and no subscribers for shares whose subscriptions have been

accepted and has elected no directors or officers. The amendment hereinabove receited has been authorized by the written consent of the sole incorporator of the Corporation.

IN WITNESS WHEREOF, I hereunto sign my name and affirm that the statements made herein are true under the penalties of perjury this 21st day of November, 1980.

/s/ Kathy E. Eshleman

Kathy E. Eshleman

Sole Incorporator

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

McCLEAN AVENUE PLAZA CORP.

(Under Section 805 of the Business Corporation Law)

BAROVICK KONECKY BRAUN SCHWARTZ & KAY

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

ONE DAG HAMMARSKJOLD PLAZA

NEW YORK, N. Y. 10017

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF THE

CERTIFICATE OF INCORPORATION

OF

McLean Avenue Plaza Corp.

(Under Section 805A of the Business Corporation Law)

The undersigned, pursuant to the provisions of Section 805(a) of the Business Corporation Law of the State of New York, hereby amends the Certificate of Incorporation of McLean Avenue Plaza Corp., a New York corporation (the “Corporation”), and certifies that:

FIRST: The name of the Corporation is McLean Avenue Plaza Corp.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York on November 14, 1980 under the name McClean Avenue Corp.

THIRD: The Certificate of Incorporation is hereby amended pursuant to Section 805(a) of the Business Corporation Law, to effect a change of the post office address to which the Secretary of State shall mail a copy of process against the Corporation served upon him.

FOURTH: The paragraph in the Certificate of Incorporation of the Corporation which refers to the designation of event for service of process is hereby amended to read as follows:

“The Secretary of State is designated as the agent of the Corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of each process against it served upon him is in care of Kenneth Gordon, Esq., Tenzer, Greenblatt, Fallon & Kaplan, 405 Lexington Avenue, New York, New York 10174.”

FIFTH: The change of the Certificate of Incorporation was authorized by the unanimous written consent of the Board of Directors of the Corporation.

IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 21st day of May, 1981.

/s/ Ira Waldbaum

President - Ira Waldbaum

/s/ Kenneth Gordon

Secretary - Kenneth Gordon

-2-

CERTIFICATE OF CHANGE

OF THE

CERTIFICATE OF INCORPORATION

OF

McLEAN AVENUE PLAZA CORP.

TENZER, GREENBLATT, FALLON & KAPLAN

COUNSELLORS AT LAW

THE CHRYSLER BUILDING

405 LEXINGTON AVENUE

NEW YORK, N.Y. 10174

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

Certificate of Change

of

MCLEAN AVENUE PLAZA CORP.

(Under Section 805-A of the Business Corporation Law)

FIRST: The name of the corporation (the “corporation”) is

MCLEAN AVENUE PLAZA CORP.

The name under which the corporation was formed is

MCCLEAN AVENUE PLAZA CORP.

SECOND: The certificate of incorporation of the corporation was filed by the Department of State on

11-14-1980

THIRD: The certificate of incorporation of the corporation is hereby changed, so as to change the post office address to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon said Secretary of State and to accomplish said change, the statement in the certificate of incorporation relating to said post office address is hereby stricken and the following statement is substituted in lieu thereof:

“The post office address within the State of New York to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon him is c/o UNITED STATES CORPORATION COMPANY 80 State Street, Albany, New York 12207.”

FOURTH: A notice of the proposed change was mailed by the undersigned to the corporation not less than 30 days prior to the date of the delivery of this certificate to the Department of State and the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of State of New York is required to mail copies of process.

IN WITNESS WHEREOF, we have subscribed this document on the date set forth below and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct.

Date: March 3, 1997

UNITED STATES CORPORATION COMPANY

s\ William G. Popeo

William G. Popeo, Vice President

s\ John H. Pelletier

John H. Pelletier, Asst. Secretary

CERTIFICATE OF CHANGE

of

MCLEAN AVENUE PLAZA CORP.

(Under Section 805-A of the Business Corporation Law)

Anne Grigorakos

UNITED STATES CORPORATION COMPANY

375 Hudson Street, 11th Floor

New York, New York 10014

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

Certificate of Change

of

Certificate of Incorporation

of

MCLEAN AVENUE PLAZA CORP.

Pursuant to Section 805-A of the Business Corporation Law

IT IS HEREBY CERTIFIED:

FIRST: The name of the corporation is MCLEAN AVENUE PLAZA CORP.

SECOND: The Certificate of Incorporation was filed by the Department of State of the State of New York on 11/14/80, under the original name: Mcclean Avenue PLAZA Corp

THIRD: The change to the Certificate of Incorporation effected by this Certificate of Change is as follows:

To change the Paragraph which sets forth, the service of process address of the Corporation. The Paragraph shall read as follows:

The Secretary of State of the State of New York is hereby designated as agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process served upon him is c/o BLUMBERGEXCELSIOR CORPORATE SERVICES, INC., 62 WHITE ST., NY, NY 10013

FOURTH: The certificate of change was authorized first by the board, followed by vote of the holders of all outstanding shares entitled to vote thereon.

IN WITNESS WHEREOF, the undersigned Assistant Secretary has executed this Certificate of Change this 27^TH day of December, 2002.

MCLEAN AVENUE PLAZA CORP.

/s/ Jose Mojica

JOSE MOJICA

ASSISTANT SECRETARY

Certificate of Change

of

Certificate of Incorporation

of

MCLEAN AVENUE PLAZA CORP.

Pursuant to Section 805-A of the Business Corporation Law

BLU-39

BILLED

Filed By:

BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

62 WHITE ST.

NEW YORK, NY 10013

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro

First Deputy Secretary of State

Rev. 06/07

NYS Department of State

Division of Corporations, Records and UCC

Albany, NY 12231-0002

www.dos.state.ny.us

MCLEAN AVENUE PLAZA CORP.

ATTN: TAX DEPARTMENT

2 PARAGON DRIVE

MONTVALE NJ 07645

Business Corporation

Biennial Statement

662989                

For Internal Use Only
Filed By:	KH

Cash # (if different than film #):
Required Fee:	$9.00
Filing Period:	11/2010

(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer
ATTN: TAX DEPT 2 PARAGON DR MONTVALE NY 07645	Name
	Sam Martin
	Address
	Attn: Tax Dept 2 Paragon Drive
	City	State	Zip
	Montvale	NJ	07645
Part 2: Street Address of the Principal Executive Office (A Post Office Box cannot be substituted)
MCLEAN AVENUE PLAZA CORP. ATTN: TAX DEPARTMENT 2 PARAGON DRIVE MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City	State	Zip
Part 3: Address for Service of Process
C/O BLUMBERGEXCELSIOR CORPORATE SERVICES, INC. 62 WHITE ST. NEW YORK NY 10013	Name
	Address
	City	State	Zip

Part 4: Farm Corporation Exemption
¨ Check if applicable	This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filing fee is required for farm corporations.
Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

/s/ Michael Gualtieri	Michael Gualtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

DOS-1179 (08/08)

EX-99.T3A.33

Exhibit A-33

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

ARTICLES OF ORGANIZATION OF A

DOMESTIC LIMITED LIABILITY COMPANY

Pursuant to Chapter 12 of Title 13.1 of the Code of Virginia the undersigned states as follows.

1 The name of the limited liability company is

MILIK SERVICE COMPANY, LLC

The name must contain the words “limited company” or “limited liability company” or the abbreviation “L.C”, “LC”, “L.L.C” or “LLC”

2 A The name of the limited liability company’s initial registered agent is

Corporation Service Company

B The registered agent is (mark appropriate box):
	(1)	an INDIVIDUAL who is a resident of Virginia and
		¨	a member or manager of the limited liability company
		¨	a member or manager of a limited liability company that is a member or manager of the limited liability company
		¨	an officer or director of a corporation that is a member or manager of the limited liability company
		¨	a general partner of a general or limited partnership that is a member or manager of the limited liability company
		¨	a trustee of a trust that is a member or manager of the limited liability company
		¨	a member of the Virginia State Bar
			OR
	(2)	x	a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia.

3 The limited company’s initial registered office address, including the street and number, if any which is identical to the business office of the initial registered agent, is

[    ] South 12th Street PO BOX 1463	Richmond, VA	23218
(number street)	(city or town)	(zip)

Which is physically located in the ¨ county or x city of Richmond

4 The limited liability company’s principal office address, including the street and number, if any, is

200 Milik Street	Carteret, NJ	07008
(number street)	(city or town)	(zip)

5 Organizer

/s/ Elizabeth A. Truitt	July 20, 2006
(signature)	(date)
Elizabeth A. Truitt	800.927.9800
(printed name)	(telephone number (optional))

SEE INSTRUCTIONS ON THE REVERSE

COMMONWEALTH OF VIRGINIA

STATE CORPORATION COMMISSION

AT RICHMOND, JULY 24, 2006

The State Corporation Commission has found the accompanying articles submitted on behalf of

MILIK SERVICE COMPANY, LLC

to comply with the requirements of law, and confirms payment of all required fees. Therefore, it is ORDERED that this

CERTIFICATE OF ORGANIZATION

be issued and admitted to record with the articles of organization in the Office of the Clerk of the Commission, effective July 24, 2006.

STATE CORPORATION COMMISSION
By
	Commissioner

DLLCACPT

CIS0306

06-07-21-0622

Commonwealth of Virginia

State Corporation Commission

I Certify the following from the Records of the Commission:

The foregoing is a true copy of the articles of organization filed in this office by MILIK SERVICE COMPANY, LLC.

Nothing more is hereby certified.

	Signed and Sealed at Richmond on this Date: December 14, 2010
	/s/ Joel H. Peck
	Joel H. Peck, Clerk of the Commission

CIS0505

EX-99.T3A.34

Exhibit A-34

CERTIFICATE OF INCORPORATION

OF

MONTVALE HOLDINGS, INC.

To: The Secretary of State

State of New Jersey

Pursuant to the provisions of the New Jersey Business Corporation Act, the undersigned, being a natural person of at least 18 years of age and acting as the incorporator of the corporation hereby being organized thereunder, certifies that:

FIRST: The name of the corporation (hereinafter called the “corporation”) is

MONTVALE HOLDINGS, INC.

SECOND: The corporation is organized to engage in any activity within the purposes for which corporations may be organized under the New Jersey Business Corporation Act, and, in addition and without limiting the generality of the foregoing, for the following purpose or purposes:

[Herein insert specific purposes]

To carry on a general mercantile, industrial, investing, and trading business in all its branches; to devise, invent, manufacture, fabricate, assemble, install, service, maintain, alter, buy, sell, import, export, license as licensor or licensee, lease as lessor or lessee, distribute, job, enter into, negotiate, execute, acquire, and assign contracts in respect of, acquire, receive, grant, and assign licensing arrangements, options, franchises, and other rights in respect of, and generally deal in and with, at wholesale and retail, as principal, and as sales, business, special, or general agent, representative, broker, factor, merchant, distributor, jobber, advisor, and in any other lawful capacity, goods, wares, and merchandise, commodities, and unimproved, improved, finished, processed, and other real, personal, and mixed property of any and all kinds, together with the components, resultants, and by-products thereof; to acquire by purchase or otherwise own, hold, lease, mortgage, sell, or otherwise dispose of, erect, construct, make, alter, enlarge, improve, and to aid or subscribe toward the construction, acquisition or improvement of any factories, shops, storehouses, buildings, and commercial and retail establishments of every character, including all equipment, fixtures, machinery, implements and supplies necessary, or incidental to, or connected with, any of the purposes or business of the corporation; and generally to perform any and all acts connected therewith or arising therefrom or incidental thereto, and all acts proper or necessary for the purpose of the business.

NJ BC D-:CERTIFICATE OF INCORPORATION-MASTER 02/96-1

To engage generally in the real estate business as principal, agent, broker, and in any lawful capacity, and generally to take, lease, purchase, or otherwise acquire, and to own, use, hold, sell, convey, exchange, lease, mortgage, work, clear, improve, develop, divide, and otherwise handle, manage, operate, deal in and dispose of real estate, real property, lands, multiple-dwelling structures, houses, buildings and other works and any interest or right therein; to take, lease, purchase or otherwise acquire, and to own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and otherwise handle, and deal in and dispose of, as principal, agent, broker, and in any lawful capacity, such personal property, chattels, chattels real, rights, easements, privileges, choses in action, notes, bonds, mortgages, and securities as may lawfully be acquired, held, or disposed of; and to acquire, purchase, sell, assign, transfer, dispose of, and generally deal in and with, as principal, agent, broker, and in any lawful capacity, mortgages and other interests in real, personal, and mixed properties; to carry on a general construction, contracting, building, and realty management business as principal, agent, representative, contractor, subcontractor, and in any other lawful capacity.

To apply for, register, obtain, purchase, lease, take licenses in respect of or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to account, grant licenses and immunities in respect of, manufacture under and to introduce, sell, assign, mortgage, pledge or otherwise dispose of, and, in any manner deal with and contract with reference to:

(a) inventions, devices, formulae, processes and any improvements and modifications thereof;

(b) letters patent, patent rights, patented processes, copyrights, designs, and similar rights, trade-marks, trade symbols, and other indications of origin and ownership granted by or recognized under the laws of the United States of America or of any state or subdivision thereof, or of any foreign country or subdivision thereof, and all rights connected therewith or appertaining thereunto;

(c) franchises, licenses, grants, and concessions.

To have all of the powers conferred upon corporations organized under the New Jersey Business Corporation Act.

NJ BC D-:CERTIFICATE OF INCORPORATION-MASTER 02/96-2

* * * * * * * * * *

[PAR SHARES]

THIRD: The aggregate number of shares which the corporation shall have authority to issue is 1,000, all of which are of a par value of $1.00 dollars each, and all of which are of the same class.

* * * * * * * * * *

FOURTH: The address of the initial registered office of the corporation within the State of New Jersey is c/o Corporation Service Company, 830 Bear Tavern Road, West Trenton, New Jersey 08628; and the name of the initial registered agent at such address is Corporation Service Company.

FIFTH: The number of directors constituting the first Board of Directors of the corporation is three; and the name and the address of the person[s] who [is][are] to serve as the first director[s] of the corporation are as follows:

NAME	ADDRESS
Timothy J. Courtney	2 Paragon Drive, Montvale, New Jersey 07645
Robert G. Ulrich	2 Paragon Drive, Montvale, New Jersey 07645
Mary Ellen Offer	2 Paragon Drive, Montvale, New Jersey 07645

SIXTH: The name and the address of the incorporator are as follows:

NAME	ADDRESS
Robert G. Ulrich	2 Paragon Drive Montvale, New Jersey 07645

NJ BC D-:CERTIFICATE OF INCORPORATION-MASTER 02/96-3

SEVENTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its shareholders or any class thereof, as the case may be, it is further provided:

1. The management of the business and the conduct of the affairs of the corporation, including the election of the Chairman of the Board of Directors, if any, the President, the Treasurer, the Secretary, and other principal officers of the corporation, shall be vested in its Board of Directors.

2. The Board of Directors shall have the power to remove directors for cause and to suspend directors pending a final determination that cause exists for removal.

3. The corporation shall, to the fullest extent permitted by Section 14A:3-5 of the New Jersey Business Corporation Act, as the same may be amended and supplemented, indemnify any and all corporate agents whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said Section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of shareholders, or otherwise, and shall continue as to a person who has ceased to be a corporate agent and shall inure to the benefit of the heirs, executors, administrators, and personal representatives of such a corporate agent. The term “corporate agent” as used herein shall have the meaning attributed to it by Sections 14A:3-5 and 14A:5-21 of the New Jersey Business Corporation Act and by any other applicable provision of law.

4. The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by subsection 14A:2-7(3) of the New Jersey Business Corporation Act, as the same may be amended and supplemented.

* * * * * * * * * *

[GRANT PREEMPTIVE RIGHTS]

EIGHTH: The shareholders shall have preemptive rights.

* * * * * * * * * *

NJ BC D-:CERTIFICATE OF INCORPORATION-MASTER 02/96-4

NINTH: The duration of the corporation is to be perpetual.

Signed on FEB. 6, 1997

/s/ Robert G. Ulrich

Robert G. Ulrich, Incorporator

NJ BC D-:CERTIFICATE OF INCORPORATION-MASTER 02/96-5

STATE OF NEW JERSEY

DEPARTMENT OF THE TREASURY

FILING CERTIFICATION (CERTIFIED COPY)

MONTVALE HOLDINGS, INC.

100694867

I, the Treasurer of the State of New Jersey, do hereby certify, that the above named business did file and record in this department the below listed document(s) and that the foregoing is a true copy of the Certificate of Incorporation as the same is taken from and compared with the original(s) filed in this office on the date set forth on each instrument and now remaining on file and of record in my office.

	IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 13th day of December, 2010
	/s/ Andrew P Sidamon-Eristoff Andrew P Sidamon-Eristoff
Certificate Number: 118963167	State Treasurer
Verify this certificate online at
https://www1.state.nj.us/TYTR_StandingCert/JSP/Verify_Cert.jsp

Page 1 of 1

EX-99.T3A.35

Exhibit A-35

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “NORTH JERSEY PROPERTIES, INC. VI” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SEVENTH DAY OF APRIL, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “NORTH JERSEY PROPERTIES, INC. VI”.

		/s/ Jeffrey W. Bullock
		Jeffrey W. Bullock, Secretary of State
2888829    8100H		AUTHENTICATION:	8418758
101175365		DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

NORTH JERSEY PROPERTIES, INC. VI

The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “General Corporation Law of the State of Delaware”), hereby certifies that:

FIRST: The name of the corporation (hereinafter called the “corporation”) is NORTH JERSEY PROPERTIES, INC. VI.

SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company.

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one thousand. The par value of each of such shares is one dollar. All such shares are of one class and are shares of Common Stock.

FIFTH: The name and the mailing address of the incorporator are as follows:

NAME	MAILING ADDRESS
Camille Silva	375 Hudson Street, 11th Floor
	New York, New York 10014

SIXTH: The corporation is to have perpetual existence.

-1-

SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided:

1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase “whole Board” and the phrase “total number of directors” shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot.

2. After the original or other Bylaws of the corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of § 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised by the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation for staggered terms pursuant to the provisions of subsection (d) of § 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the corporation unless provisions for such classification shall be set forth in this certificate of incorporation.

-2-

3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of § 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class.

NINTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of § 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented.

TENTH: The corporation shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

ELEVENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article ELEVENTH.

Signed on April 24, 1998.

/s/ Camille Silva

Camille Silva, Incorporator

-3-

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

NORTH JERSEY PROPERTIES, INC. VI

NORTH JERSEY PROPERTIES, INC. VI, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: NORTH JERSEY PROPERTIES, INC. VI

TWO: That a meeting of the Board of Directors of NORTH JERSEY PROPERTIES, INC. VI, said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: Corporation Service Company.

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	/s/ Jose Mojica
By:	Jose Mojica
	President

EX-99.T3A.36

Exhibit A-36

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “ONPOINT, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF MAY, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “HAMILTON PROPERTY I, INC.” TO “ONPOINT, INC.” FILED THE TWELFTH DAY OF FEBRUARY, A.D. 2008, AT 4:10 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “ONPOINT, INC.”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2895262        8100H	AUTHENTICATION:	8418762
101175373	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

HAMILTON PROPERTY I, INC.

The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the “General Corporation Law of the State of Delaware”), hereby certifies that:

FIRST: The name of the corporation (hereinafter called the “corporation”) is HAMILTON PROPERTY I, INC.

SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company.

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one thousand. The par value of each of such shares is one dollar. All such shares are of one class and are shares of Common Stock.

FIFTH: The name and the mailing address of the incorporator are as follows:

NAME	MAILING ADDRESS
Camille Silva	375 Hudson Street, 11th Floor New York, New York 10014

SIXTH: The corporation is to have perpetual existence.

-1-

SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided:

1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase “whole Board” and the phrase “total number of directors” shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot.

2. After the original or other Bylaws of the corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of § 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised by the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation for staggered terms pursuant to the provisions of subsection (d) of § 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the corporation unless provisions for such classification shall be set forth in this certificate of incorporation.

-2-

3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of § 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class.

NINTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of § 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented.

TENTH: The corporation shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

ELEVENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article ELEVENTH.

Signed on May 1, 1998.

/s/ Camille Silva

Camille Silva, Incorporator

-3-

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

HAMILTON PROPERTY I, INC.

HAMILTON PROPERTY I, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: HAMILTON PROPERTY I, INC.

TWO:	That a meeting of the Board of Directors of HAMILTON PROPERTY I, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

By:	/s/ Jose Mojica
	Jose Mojica
	President

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

OF CERTIFICATE OF INCORPORATION

The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:

FIRST: That pursuant to that certain Consent In Lieu Of Meeting dated 02/12/2008, the sole Director of the Board of Directors of HAMILTON PROPERTY I, INC. adopted resolutions to amend the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and requested the consent of the sole stockholder of said corporation for consideration thereof. The resolution setting forth the proposed amendments are as follows:

RESOLVED, that the Certificate of Incorporation of the corporation be amended by changing the Article thereof numbered “FIRST” so that, as amended, said Article shall be and read as follows:

“The name of the corporation (hereinafter called the “corporation”) is ONPOINT, INC.”

RESOLVED, that the Certificate of Incorporation of the corporation be amended by changing the Article thereof numbered “THIRD” so that, as amended, said Article shall be and read as follows:

“The purpose of the corporation is to (i) consolidate intellectual property for the purpose of outside sales activity, (ii) to market future brands of the Great Atlantic & Pacific Tea Company, Inc. and (iii) to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

SECOND: That pursuant to that certain Consent In Lieu Of Meeting dated 02/12/2008, the sole stockholder of the corporation consented to the amendments set forth above in Paragraph FIRST of this Certificate.

THIRD: That said amendments were duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware, specifically in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

FOURTH: That the capital of the corporation shall not be reduced under or by reason of said amendments.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 12 day of February, 2008.

By:	/s/ Christopher McGarry
Title:	PRESIDENT
Name:	CHRISTOPHER McGARRY

235020-1

EX-99.T3A.37

Exhibit A-37

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF “PATHMARK STORES, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

RESTATED CERTIFICATE, FILED THE NINETEENTH DAY OF SEPTEMBER, A.D. 2000, AT 9:01 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE FIFTEENTH DAY OF JANUARY, A.D. 2003, AT 10:30 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF OWNERSHIP IS THE SEVENTEENTH DAY OF JANUARY, A.D. 2003, AT 12 O’CLOCK P.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-NINTH DAY OF DECEMBER, A.D. 2006, AT 11:36 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE THIRD DAY OF DECEMBER, A.D. 2007, AT 10 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SEVENTH DAY OF FEBRUARY, A.D. 2008, AT 4:11 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE SIXTH DAY OF AUGUST, A.D. 2010, AT 10:27 O’CLOCK A.M.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2128334        8100X	AUTHENTICATION:	8418769
101175383	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

PATHMARK STORES, INC.

Pursuant to the provisions of Sections 245 and 303 of the General Corporation Law of the State of Delaware (the “DGCL”), Pathmark Stores, Inc., a corporation organized and existing under and by virtue of the DGCL (the “Corporation”), does hereby certify as follows:

FIRST: The name of the Corporation is Pathmark Stores, Inc.

SECOND: The Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of Delaware on June 5, 1987. The Certificate of Incorporation was restated on June 20, 1997. The original name of the corporation was SMG Intermediate Holdings Corporation XV

THIRD: This Amended and Restated Certificate of Incorporation amends and restates the Restated Certificate of Incorporation, as amended to date, and has been duly adopted in accordance with Sections 242, 245 and 303 of the DGCL, pursuant to the authority granted to the Corporation prior to reorganization (the “Debtor”) under Section 303 of the DGCL to put into effect and carry out the Debtor’s Joint Plan of Reorganization (the “Plan”) under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). Provision for the making of this Amended and Restated Certificate of Incorporation is contained in the order of the Bankruptcy Court having jurisdiction under the Bankruptcy Code for the reorganization of the Corporation.

The Amended and Restated Certificate of Incorporation is hereby amended and restated to read in full as follows:

ARTICLE I

NAME

The name of the Corporation is Pathmark Stores, Inc.

ARTICLE II

REGISTERED OFFICE AND AGENT

The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Rd., Ste 400, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc.

ARTICLE III

CORPORATE PURPOSES

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

CWT\NYLIBI\492061.8

ARTICLE IV

CAPITAL STOCK

A. Authorized Shares. The total number of shares of capital stock that the Corporation shall have the authority to issue is 105,000,000, of which (i) 100,000,000 shares shall be shares of Common Stock with a par value of $0.01 per share (the “Common Stock”) and (ii) 5,000,000 shares shall be shares of Preferred Stock with a par value of $0.01 per share (the “Preferred Stock”).

B. Common Stock. The following is a statement of the powers, preferences and participating, optional or other special rights, and the qualifications, limitations and restrictions of the Common Stock of the Corporation:

Holders of Common Stock shall be entitled to receive ratably such dividends and other distributions in cash, stock of any corporation or property of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefore and shall be entitled, after payment of all prior claims, to receive ratably all assets of the Corporation upon the liquidation, dissolution or winding up of the Corporation.

Holders of Common Stock shall have no redemption, conversion or preemptive rights to purchase or subscribe for securities of the Corporation.

C. Preferred Stock. The Board of Directors is expressly authorized to provide for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and to fix for such class or series the voting powers (if any) and such distinctive designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series and as may be permitted by the DGCL.

ARTICLE V

BOARD OF DIRECTORS

The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors. The number of directors of the Corporation shall be fixed in the manner provided in the Amended and Restated By-Laws of the Corporation.

ARTICLE VI

POWERS OF BOARD OF DIRECTORS

In furtherance of, and not in limitation of the powers conferred by statute, the Board of Directors shall have the power to adopt, amend or repeal the Amended and Restated By-Laws of the Corporation.

CWT\NYLIBI\492061.8 -2-

ARTICLE VII

AMENDMENTS

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE VIII

LIMITATION OF LIABILITY

No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for conduct as a director, provided that this Article shall not eliminate the liability of a director for any act or omission for which such elimination of liability is not permitted under the DGCL. No amendment to the DGCL that further limits the act or omissions for which elimination of liability is permitted shall affect the liability of a director for any act or omission which occurs prior to the effective date of such amendment.

ARTICLE IX

INDEMNITY

A. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

CWT\NYLIBI\492061.8 -3-

B. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of Delaware or such other court shall deem proper.

C. Notwithstanding the other provisions of this Article, to the extent that a present or former director, officer, employee or agent of the Corporation has been successful on the merits or otherwise, in defense of any action, suit or proceeding referred to in Paragraphs A and B hereof, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

D. Any indemnification under Paragraphs A and B hereof (unless ordered by a court) shall be paid by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstance because the person has met the applicable standard of conduct set forth in Paragraphs A and B hereof. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

E. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

F. Any indemnification under Paragraphs A, B and C hereof, or advance of expenses under Paragraph E hereof, shall be made promptly, and in any event within 60 days, upon the written notice of the director, officer, employee or agent. The right to indemnification or advances as granted by this Article shall be enforceable by the director, officer, employee or

CWT\NYLIBI\492061.8 -4-

agent in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person’s costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Paragraph E hereof where the required undertaking, if any, has been received by the Corporation) that the claimant has not met the standard of conduct set forth in Paragraph A or B hereof, but the burden of proving such defense shall be on the Corporation. Neither failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Paragraph A or B hereof, nor the fact that there has been actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

G. The indemnification and advancement of expenses provided by, or granted pursuant to this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.

H. The Corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article.

I. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

J. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director, officer, employee and agent of the Corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law.

CWT\NYLIBI\492061.8 -5-

ARTICLE X

BANKRUPTCY MATTERS

Notwithstanding any other provision contained herein, the Corporation, as a Debtor (as defined in the Plan) under the Plan shall not issue nonvoting equity securities in connection with the Plan and shall comply, to the extent applicable, with Section 1123(a)(6) of the Bankruptcy Code. After the Effective Date (as defined in the Plan), this Article XI may be amended or repealed by the affirmative vote of a majority of the outstanding stock entitled to vote thereon in accordance with Section 242 of the DGCL.

ARTICLE XI

CANCELLATION OF PRE-PETITION CAPITAL STOCK

All shares of capital stock of the Corporation that are authorized, issued and outstanding, as well as any options, warrants, calls, subscriptions or other similar rights or other agreements or commitments, contractual or otherwise, obligating the Corporation to issue, transfer or sell any shares of capital stock, prior to the filing of this Amended and Restated Certificate of Incorporation shall be canceled on the Effective Date (as defined in the Plan), and the holders thereof shall have no further rights with respect thereto, except as provided in the Plan.

IN WITNESS WHEREOF, Pathmark Stores, Inc. has caused this Amended and Restated Certificate of Incorporation to be signed by Marc Strassler, its Senior Vice President this 16^th day of September, 2000.

PATHMARK STORES, INC.
By:	/s/ Marc Strassler
	Name:	Marc Strassler
	Title:	Senior Vice President

CWT\NYLIBI\492061.8 -6-

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

BUCKS STUART, INC.

WITH AND INTO

PATHMARK STORES, INC.

Pursuant to Section 253 of the General Corporation Law

of the State of Delaware

Pathmark Stores, Inc., a Delaware corporation (the “Corporation”), HEREBY CERTIFIES AS FOLLOWS:

FIRST: The Corporation is a corporation incorporated on June 5, 1987, under the laws of the State of Delaware.

SECOND: The Corporation owns all the outstanding capital stock of Bucks Stuart, Inc., a corporation incorporated on June 16, 1970, under the laws of the Commonwealth of Pennsylvania (“Bucks Stuart”); and

THIRD: The Corporation, by the following resolutions of its Board of Directors, duly adopted by Unanimous Written Consent of its directors, filed with the minutes of its Board of Directors as of November 26, 2002 and determined to merge Bucks Stuart with and into the Corporation:

RESOLVED, that the Corporation merge Bucks Stuart, Inc., a Pennsylvania corporation (“Bucks Stuart”) with and into the Corporation pursuant to a Plan of Merger dated November 26, 2002 (“Merger”);

RESOLVED, that the Merger will be effective on January 17, 2003 at 12:00 p.m. (the “Effective Time”);

RESOLVED, that at the Effective Time of the Merger, each share of the Common Stock, par value $10 per share, of Bucks Stuart which is issued and outstanding immediately prior to such Effective Time, shall be deemed canceled;

RESOLVED, that, at the Effective Time, each share of the Common Stock, par value $.01 per share, of the Corporation which is issued and outstanding immediately prior to such Effective Time, shall remain outstanding following such Effective Time;

RESOLVED, that, at the Effective Time, the separate existence of Bucks Stuart shall cease, Bucks Stuart shall be merged with and into the Corporation, which shall be the surviving corporation (the “Surviving Corporation”), and the Surviving Corporation, without further action, shall possess all the rights, privileges, powers and franchises, public and private, of both the Corporation and Bucks Stuart, and shall be subject to all the debts, liabilities, obligations, restrictions, disabilities and duties of both the Corporation and Bucks Stuart;

RESOLVED, that the Certificate of Incorporation and By-Laws of the Corporation, as in effect immediately prior to each Effective Time, shall be the Certificate of Incorporation and By-Laws of the Surviving Corporation until thereafter amended, as provided by law or such Certificate of Incorporation;

RESOLVED, that the directors and officers of the Corporation as of each Effective Time shall be the directors and officers of the Surviving Corporation, until their successors are duly elected and approved; and

RESOLVED, that the proper officers of the Corporation and its Board of Directors be, and each of them acting alone hereby is, authorized to take all such further action and to prepare, execute, deliver and file all such agreements, instruments, documents and certificates (including, without limitation, memoranda of contribution) in the name and on behalf of the Corporation, under its corporate seal or otherwise, and to incur and to pay all such fees and expenses as they, or any one of them, shall deem necessary, proper or advisable in order to carry out the intent and effectuate the purpose of the foregoing resolutions.

[SPACE INTENTIONALLY LEFT BLANK]

2

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be signed by Marc Strassler, its Senior Vice President, and attested by David Cherna, its Assistant Secretary, as of this 14th day of January, 2003.

PATHMARK STORES, INC.
By:	/s/ Marc Strassler
	Marc Strassler
	Senior Vice President

ATTEST:

/s/ David Cherna

David Cherna

Assistant Secretary

3

CERTIFICATE OF MERGER

MERGING

PTMK LLC

INTO

PATHMARK STORES, INC.

Pathmark Stores, Inc., a Delaware corporation, does hereby certify that:

FIRST: The name and state of domicile of each of the constituent entities in the merger are as follows:

Name	State of Domicile
PTMK LLC	Delaware
Pathmark Stores, Inc.	Delaware

SECOND: An Agreement and Plan of Merger (the “Merger Agreement”) between the parties to the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent entities in accordance with the requirements of Section 264(c) of the General Corporation Law of the State of Delaware and Section 18-209 of the Delaware Limited Liability Company Act.

THIRD: The name of the surviving corporation is Pathmark Stores, Inc.

FOURTH: The Amended and Restated Certificate of Incorporation of Pathmark Stores, Inc. prior to the merger shall be the Amended and Restated Certificate of Incorporation of the surviving corporation.

FIFTH: The executed Merger Agreement is on file at an office of the surviving corporation. The address of such office is: 200 Milik Street, Carteret, NJ 07008.

SIXTH: A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of the constituent corporation and any member of the constituent limited liability company.

[Signature page follows.]

#33095

IN WITNESS WHEREOF, Pathmark Stores, Inc. has caused this Certificate of Merger to be executed by a duly authorized officer as of December 20, 2006.

PATHMARK STORES, INC.
By:	/s/ Marc Strassler
	Name:	Marc Strassler
	Title:	Senior Vice President

#33095

CERTIFICATE OF MERGER

OF

SAND MERGER CORP.

WITH AND INTO

PATHMARK STORES, INC.

(Under Section 251 of the Delaware General Corporation Law)

Pathmark Stores, Inc., a Delaware corporation, does hereby certify to the following facts relating to the merger of Sand Merger Corp. with and into Pathmark Stores, Inc. (the “Merger”):

FIRST: The name and state of incorporation of each of the constituent corporations to the Merger are:

(a) Sand Merger Corp., a Delaware corporation (“Merger Sub”); and

(b) Pathmark Stores, Inc., a Delaware corporation (“Pathmark”).

SECOND: An Agreement and Plan of Merger, dated as of March 4, 2007, as amended to date (the “Merger Agreement”), by and among The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Parent”), Merger Sub, a wholly owned subsidiary of Parent, and Pathmark, has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251(c) of the Delaware General Corporation Law (the “DGCL”).

THIRD: The name of the surviving corporation will be Pathmark Stores, Inc.

FOURTH: The certificate of incorporation of Pathmark as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation.

FIFTH: The executed Merger Agreement is on file at the principal place of business of the surviving corporation: 200 Milik Street, Carteret, New Jersey 07008.

SIXTH: A copy of the Merger Agreement will be furnished by the surviving corporation, on request and without cost, to any stockholder of either Merger Sub or Pathmark.

SEVENTH: This Certificate of Merger and the Merger provided for herein between the constituent corporations shall be effective at the time of filing of this Certificate of Merger with the Secretary of State of Delaware.

(Signature page follows)

IN WITNESS WHEREOF, this Certificate of Merger has been signed on behalf of the surviving corporation to the Merger by a duly authorized officer on December 3, 2007.

PATHMARK STORES, INC.
/s/ Marc Strassler
Name:	Marc A. Strassler
Title:	Senior Vice President

STATE OF DELAWARE

CERTIFICATE OF CHANGE

OF REGISTERED AGENT AND/OR

REGISTERED OFFICE

The Board of Directors of PATHMARK STORES, INC., a Delaware Corporation, on this 7TH day of FEB, A.D. 2008, do hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is 1220 N. MARKET ST. SUITE 806 Street, in the City of WILMINGTON, County of NEW CASTLE Zip Code 19801.

The name of the Registered Agent therein and in charge thereof upon whom process against this Corporation may be served, is BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

The Corporation does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by an authorized officer, the 7TH day of FEB, A.D., 08.

By:	/s/ Christopher McGarry
	Authorized Officer
Name:	Christopher McGarry
	Print or Type
Title:	President

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

OF CERTIFICATE OF INCORPORATION

The corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:

FIRST: That at a meeting of the Board of Directors of PATHMARK STORES, INC. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered “IV CAPITAL STOCK” so that, as amended, said Article shall be and read as follows:

A. Authorized Shares. The total number of shares of capital stock that the Corporation shall have the authority to issue is 3,000 of which (i) 2,500 shares shall be shares of Common Stock with a par value of $0.01 per share (the “Common Stock”); and (ii) 500 shares shall be shares of Preferred Stock with a par value of $0.01 per share (the “Preferred Stock”).

SECOND: That thereafter, pursuant to resolution of its Board of Directors, a special meeting of the stockholders of said corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this 28 day of July, 2010.

By:	/s/ Christopher McGarry
	Authorized Officer
Title:	Vice President & Secretary
Name:	Christopher W. McGarry
	Print or Type

EX-99.T3A.38

Exhibit A-38

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “PLAINBRIDGE LLC” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWELFTH DAY OF APRIL, A.D. 1993, AT 1 O’CLOCK P.M.

CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-NINTH DAY OF JANUARY, A.D. 1996, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF OWNERSHIP IS THE SECOND DAY OF FEBRUARY, A.D. 1996.

CERTIFICATE OF OWNERSHIP, FILED THE EIGHTH DAY OF JUNE, A.D. 2000, AT 9 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SEVENTH DAY OF MARCH, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF CONVERSION, CHANGING ITS NAME FROM “PLAINBRIDGE, INC.” TO “PLAINBRIDGE LLC”, FILED THE TWENTY-FIFTH DAY OF APRIL, A.D. 2001, AT 9 O’CLOCK A.M.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2332251        8100H	AUTHENTICATION:	8418776
101175395	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

Delaware	PAGE 2
The First State

CERTIFICATE OF FORMATION, FILED THE TWENTY-FIFTH DAY OF APRIL, A.D. 2001, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE SEVENTH DAY OF FEBRUARY, A.D. 2008, AT 4:08 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY, “PLAINBRIDGE LLC”.

	/s/ Jeffrey W. Bullock
	Jeffrey W. Bullock, Secretary of State
2332251        8100H	AUTHENTICATION:	8418776
101175395	DATE:	12-10-10
You may verify this certificate online at corp.delaware.gov/authver.shtml

CERTIFICATE OF INCORPORATION

OF

PLAINBRIDGE, INC.

ARTICLE I

Name

The name of the corporation is Plainbridge, Inc. (the “Corporation”).

ARTICLE II

Registered Office and Registered Agent

The address of the registered office of the Corporation in the State of Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover. The name of the registered agent of the Corporation at such address is The Prentice-Hall Corporation System, Inc.

ARTICLE III

Corporate Purpose

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “General Corporation Law”).

ARTICLE IV

Capital Stock

(1) Authorized Capital. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 60,000 shares, consisting of 30,000 shares of Class A Common Stock, par value $0.01 per share (“Class A Common Stock”) and 30,000 shares of Class B Common Stock par value $0.01 per share (the “Class B Common Stock”; Class A Common Stock and Class B Common Stock being collectively referred to herein as “Common Stock”).

8872L/102

The powers, preferences and rights, and the qualifications, limitations and restrictions thereof, of each class of stock, and the express grant of authority to the Board of Directors to fix by resolution the qualifications, limitations and restrictions thereof which are not fixed by this Certificate of Incorporation, are as set forth below.

(2) Class A Common Stock and Class B Common Stock. (a) Except as otherwise provided in this Article IV, Class A Common Stock and Class B Common Stock shall have the same rights and privileges and shall rank equally, share ratably and be identical in all respects as to all matters, including rights in liquidation.

(b) Dividends. When, as and if dividends are declared on Common Stock, whether payable in cash, in property or in securities of the Corporation, the holders of Class A Common Stock and Class B Common Stock shall be entitled to share equally, share for share, in such dividends; provided, however, that if dividends or distributions are declared that are payable in shares of, or in subscription or other rights to acquire shares of, Class A Common Stock or Class B Common Stock, dividends or distributions shall be declared that are payable at the same rate on all classes of Common Stock, and the dividends or distributions payable in shares of, or in subscription or other rights to acquire shares of, any particular class of Common Stock shall be payable only to holders of such class.

(c) Exchange and Conversion. Subject to and upon compliance with the provisions of this clause (c), each record holder of shares of Class A Common Stock or Class B Common Stock shall be entitled at any time and from time to time to exchange any or all of the shares of Class A Common Stock or Class B Common Stock held by such holder for the same number of shares of Class B Common Stock or Class A Common Stock, as the case may be; provided, however, that no holder of Class B Common Stock shall be entitled to exchange any share of Class B Common Stock to the extent that, as a result of such exchange, such holder and its affiliates, directly or indirectly, would own, control or have power to vote a greater quantity of securities of any kind issued by the Corporation than such holder and its affiliate shall be permitted to own, control or have power to vote under any law or under any regulation, rule or other requirement of any governmental authority at the time applicable to such holder and its affiliates; and provided further that, if any holder or prospective transferee (each, an “Electing Person”) of any Common Stock shall so elect by written notice to the

Corporation stating that such election is irreversible, such Electing Person shall only be entitled to exchange Class B Common Stock for Class A Common Stock in connection with the sale or other transfer to another person of such Stock, then such exchange shall be effected solely by surrender of such Class B Common Stock to the Corporation whereupon the Corporation shall promptly deliver the shares of Class A Common Stock resulting from such exchange to the transferee thereof and any voting rights to which the holder of such Class A Common Stock is entitled shall come into being only upon delivery by the Corporation of such Class A Common Stock to the transferee thereof. If such Electing Person shall at any time and for any reason hold shares of Common Stock of the Corporation entitled to voting rights (other than the voting rights described in the proviso to Section (5) of this Article IV) then, anything in this Certificate of Incorporation to the contrary notwithstanding, for so long as such Electing Person shall hold such shares of Common Stock such Electing Person shall not be entitled to exercise any such voting rights.

(d) Manner of Exchange. Each exchange of shares of Class B Common Stock for Class A Common Stock or vice versa pursuant to clause (C) above shall be effected by (and the Corporation shall be obligated to issue the certificate evidencing shares of the Common Stock of the other class upon) the surrender of the certificate or certificates evidencing such shares to be exchanged at the principal office if the Corporation (or such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holders of the Common Stock) at any time during its usual business hours, together with written notice by the holder desiring such exchange or desiring to receive new certificates to evidence such conversion stating that (i) such holder desires to exchange the shares, or a stated number of the shares, of Common Stock evidenced by such certificate or certificates for certificates evidencing Class A Common Stock or Class B Common Stock, as the case may be, (ii) in the case of any exchange of Class B Common Stock for Class A Common Stock, upon such exchange, such holder and its affiliates shall not, directly or indirectly, own, control or have power to vote a greater quantity of securities of any kind issued by the Corporation than such holder and its affiliates are permitted to own, control or have power to vote under any applicable law, regulation, rule or other governmental requirement and (iii) in the case of any exchange of Class B Common Stock for Class A Common Stock, either that such holder is not an Electing Person or, if such holder is an Electing Person, that such exchange is

to be effected only in accordance the terms of the last proviso of Section (2) (c) of this Article IV. Such notice shall also stated the name or names (with addresses) and denominations in which the certificate or certificates for the Common Stock issuable on such exchange are to be issued and shall include instructions for delivery thereof. Promptly after such surrender and the receipt of such written notice, the Corporation shall issue and deliver in accordance with such instructions the certificate or certificates evidencing the Common Stock issuable upon such exchange, and the Corporation shall also deliver to the exchanging holders a certificates evidencing any shares of Common Stock which were evidenced by the certificate or certificates surrendered to the Corporation in connection with such exchange but which were not exchanged. Any such exchange of class B Common stock for class A Common Stock, or vice versa, to the extent permitted by law shall be deemed to have been effected as of the close of business on the date on which such certificate or certificates have been surrendered and such notice has been received, and, in each such case, at such time the rights of the holder of such formerly held class of Common Stock (or specified portion thereof) as such holder shall cease and the person or persons in whose name of names the certificates evidencing shares of the Common stock are to be issued upon such exchange shall be deemed to have become the holder or holders of record of the shares of the Common Stock evidenced thereby.

(e) Subdivision or Combination. If the corporation shall in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by reverse stock split or otherwise) the outstanding shares of any class of Common Stock, the outstanding shares of each other class of Common Stock shall be proportionately subdivided or combined.

(f) Reservation of Class A Common Stock and Class B Common Stock for Exchange. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock or its treasury shares, solely for the purpose of issuance upon the exchange of the Class B Common Stock, such number of shares of Class A Common Stock as are then issuable upon the exchange of all then outstanding shares of the Class B Common Stock, and shall take like action with respect to shares of Class B Common Stock issuable on exchange of shares of Class A Common Stock, also as provided in this Section (2) of Article IV. The Corporation covenants that all shares of Class A Common Stock and Class B Common Stock which are issuable upon exchange shall, when issued, be duly and validly issued,

fully paid and nonassessable and free from all taxes, liens and charges. The Corporation shall take all such action as may be necessary to assure that all such shares of Class A Common Stock and Class B Common Stock may be so issued without violation of any law or regulation applicable to the Corporation or any requirements of any domestic securities exchange upon which shares of class A Common Stock or Class B Common Stock may be listed; provided, however, that in this regard the Corporation shall be entitled to rely on the statements of the holders of Class B Common Stock required under Section (2) (d) of the Article IV. The Corporation shall not take any action which would effect the number of shares of Class A Common Stock or Class B Common Stock outstanding or issuable for any purpose unless immediately following such action the Corporation would have authorized but unissued shares, or treasury shares, of Class A Common Stock or Class B Common Stock, as the case may be, not then reserved or required to be reserved for any purpose other than the purpose of issuance upon exchange of the Class A Common Stock and of the Class B Common Stock, sufficient to meet the reservation requirements of the first sentence of this Section (2) (f).

(g) Certain Registration of Common Stock to be Issued Upon Exchange. If any shares of Common Stock required to be reserved for purposes of exchanges hereunder require, before such shares may be issued upon exchange, registration with or approval of any governmental authority under any federal or state law (other than any registration under the Securities Act of 1933, as then in effect, or any similar Federal statute then in force, or any state securities law, required by reason of any transfer involved in such exchange), or listing on any domestic securities exchange, the Corporation shall, at its expense and as expeditiously as possible, use its best efforts to cause such shares to be duly registered or approved or listed, as the case may be.

(h) Cost for Issuance of Certificates. The issuance of certificates for shares of one class of Common Stock upon exchange of shares of another class shall be made without charge to the holders of such shares requesting such exchange for any issuance tax in respect thereof or other cost incurred by the Corporation in connecting with such exchange and the related issuance of shares of Common Stock; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the holder or former holder of Common Stock exchanged.

(3) Exchanges. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registrations of shares or Common Stock. Upon the surrender of any certificate evidencing shares of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate in exchange therefore evidencing in the aggregate the same number of shares of the same class evidenced by the surrendered certificate (and the Corporation forthwith shall cancel such surrendered certificate). subject to the requirements of applicable securities laws. Each such new certificate shall be registered in such name and shall evidence such number of shares of the same class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any certificate in a name other than that of the holder of the surrendered certificate.

(4) Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of Common Stock and, in the case of any such loss, theft or destruction. Upon receipt of indemnity reasonably satisfactory to the Corporation, or, in the case of any such mutilation, upon surrender of such certificates, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind evidencing the number of shares of the class evidenced by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate. The term “outstanding” when used in this Section (4) with reference to the shares of Common Stock as of any particular time shall not include any such shares evidenced by any certificate in lieu of which a new certificate has been executed and delivered by the Corporation in accordance with Section (3) of Article IV or this Section (4) of Article IV, but shall include only those shares evidenced by such new certificate.

(5) Voting Rights. Except as otherwise provided by law and this Certificate of Incorporation or as otherwise from time to time provided by law, the holders of Class A

Common Stock shall be entitled to one vote per share on all matters to be voted on by the stockholders of the Corporation, and the holders of Class B Common Stock shall have no right to vote on any matter to be voted on by the stockholders of the Corporation (including, without limitation, any election or removal of the directors of the Corporation) and shares of Class B Common Stock shall not be included in determining the number of shares voting or entitled to vote on such matters; provided, however, that the holders of Class B Common Stock shall be included in determining the number of shares voting or entitled to vote on, and shall be entitled to vote one vote per share (voting as a single class with the then outstanding shares of Class A Common Stock) on, any consolidation or merger of the Corporation with or into any other corporation or corporations, any sale, lease or exchange of all or substantially all of the Corporation’s property and assets, and any liquidation, dissolution or winding up of the Corporation, to be voted on by the stockholders of the Corporation. At any meeting of the stockholders of the Corporation, the presence in person or by proxy of a majority in number of the outstanding shares of Common Stock entitled to notice thereof and to vote thereat shall be sufficient to constitute a quorum for the election of directors.

ARTICLE V

Directors

(1) Elections of directors of the Corporation need not be by written ballot, except and to the extent provided in the By-laws of the Corporation.

(2) To the fullest extent permitted by the General Corporation Law as it now exists and as it may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.

(3) Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VI

Indemnification of Directors, Officers and Others

(1) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any

threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person seeking indemnification did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

(2) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

(3) To the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding

referred to in Sections (1) and (2) of this Article VI, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

(4) Any indemnification under Sections (1) and (2) of this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such Sections (1) and (2). Such determination shall be made (a) by the Board of Directors of the Corporation by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders of the Corporation.

(5) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation authorized in this Article VI. Such expenses (including attorneys’ fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors of the Corporation deems appropriate.

(6) The indemnification and advancement of expenses provided by, or granted pursuant to, the other sections of this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.

(7) The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against

any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Section 145 of the General Corporation Law.

(8) For purposes of this Article VI, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

(9) For purposes of this Article VI, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves service by, such director, officer, employee or agent with respect to any employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VI.

(10) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

(11) Any repeal or modification of this Article VI by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VII

By-laws

The directors of the Corporation shall have the power to adopt, amend or repeal by-laws.

ARTICLE VIII

Reorganization

Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganizations shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

ARTICLE IX

Amendment

The Corporation reserves the right to amend, alter, change or repeal any provision of this Certificate of Incorporation, in the manner now or hereafter prescribed by law, and all rights conferred on stockholders in this Certificate of Incorporation are subject to this reservation.

ARTICLE X

Incorporator

The name and mailing address of the sole incorporator is as follows:

Name	Mailing Address
Jennifer B. Reiners	Shearman & Sterling 599 Lexington Avenue New York, NY 10022

I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 12th day of April, 1993.

/s/ Jennifer B. Reiners

Jennifer B. Reiners

CERTIFICATE OF OWNERSHIP

AND MERGER OF

TRAUTS-SOUTH PLAINFIELD, INC.

INTO

PLAINBRIDGE, INC.

It is hereby certified that:

1. Plainbridge, Inc. (hereinafter sometimes referred to as the “Corporation”) is a business corporation of the State of Delaware and the surviving corporation.

2. The Corporation is the owner of all of the outstanding shares of stock of Trauts-South Plainfield, Inc., which is a business corporation of the State of New Jersey.

3. The laws of the jurisdiction of organization of Trauts-South Plainfield, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction.

4. The Corporation hereby mergers Trauts-South Plainfield, Inc. into the Corporation.

5. The following is a copy of the resolutions adopted on January 26, 1996 by the Board of Directors of the Corporation to merge the said Trauts-South Plainfield, Inc. into the Corporation:

RESOLVED, that Trauts-South Plainfield, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Trauts-South Plainfield, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Trauts-South Plainfield, Inc. in its name.

RESOLVED, that this Corporation assume all of the obligations of Trauts-South Plainfield, Inc.

RESOLVED, that this Corporation shall cause to be executed and filed and/or recorded, the documents prescribed by the laws of the State of Delaware, by the laws of the State of New Jersey, and by the laws of any other appropriate jurisdiction, and will cause to be performed all necessary acts within the jurisdiction of organization of Trauts-South Plainfield, Inc. and of this Corporation, and in any other appropriate jurisdiction.

RESOLVED, that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions shall be February 2, 1996, and that, insofar as the General Corporation Law of the State of Delaware shall govern the same, said time shall be the effective merger time.

Executed on January 26, 1996.

PLAINBRIDGE, INC.
By:	/s/ Marc Strassler
	Marc Strassler
	Vice President

4971.1 2

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING EACH OF

EATONTOWN STUART, INC.

AND

PACIFIC TRUCKING CORP.

WITH AND INTO

PLAINBRIDGE, INC.

Pursuant to Section 253 of the General Corporation Law

of the State of Delaware

Plainbridge, Inc., a Delaware corporation (the “Corporation”), HEREBY CERTIFIES AS FOLLOWS:

FIRST: The Corporation is a corporation incorporated on April 12, 1993 under the laws of the State of Delaware;

SECOND: The Corporation owns all the outstanding capital stock of Eatontown Stuart, Inc., a corporation incorporated on September 18, 1991, under the laws of the State of New Jersey (“Eatontown Stuart”); and

the Corporation owns all the outstanding capital stock of Pacific Trucking Corp., a corporation incorporated on June 13, 1969, under the laws of the State of New Jersey (“Pacific”);

THIRD: The Corporation, by the following resolutions of the Board of Directors duly adopted by unanimous written consent of its directors, filed with the minutes of its Board of Directors as of June 7, 2000, determined to merge each of Eatontown Stuart and Pacific with and into the Corporation;

RESOLVED, that the Corporation merge Eatontown Stuart, Inc., a New Jersey corporation (“Eatontown Stuart”), with and into the Corporation pursuant to a Plan of Merger dated June 7, 2000 (“Merger 1”);

RESOLVED, that the Corporation merge Pacific Trucking Corp., a New Jersey corporation (“Pacific”) (collectively with Eatontown Stuart, the “Subsidiaries”), with and into the Corporation pursuant to a Plan of Merger dated June 7, 2000 (“Merger 2”);

023534-1

RESOLVED, that, at the Effective Time of Merger 1, each share of the Common Stock, without nominal or par value, of Eatontown Stuart which is issued and outstanding immediately prior to such Effective Time, shall be deemed canceled;

RESOLVED, that, at the Effective Time of Merger 2, each share of the Common Stock, without nominal or par value, of Pacific which is issued and outstanding immediately prior to such Effective Time, shall be deemed canceled;

RESOLVED, that, at each Effective Time, each share of the Common Stock, par value $.01 per share, of the Corporation which is issued and outstanding immediately prior to such Effective Time, shall remain outstanding following such Effective Time;

RESOLVED, that, at each Effective Time, the separate existence of the respective Subsidiary shall cease, the respective Subsidiary shall be merged with and into the Corporation, which shall be the surviving corporation (the “Surviving Corporation”), and the Surviving Corporation, without further action, shall possess all the rights, privileges, powers and franchises, public and private, of both the Corporation and the respective Subsidiary, and shall be subject to all the debts, liabilities, obligations, restrictions, disabilities and duties of both the Corporation and the respective Subsidiary;

#23534-1 2

RESOLVED, that the Certificate of Incorporation and By-Laws of the Corporation, as in effect immediately prior to each Effective Time, shall be the Certificate of Incorporation and By-Laws of the Surviving Corporation until thereafter amended as provided by law or such Certificate of Incorporation;

RESOLVED, that the directors and officers of the Corporation as of each Effective Time shall be the directors and officers of the Surviving Corporation, until their successors are duly elected or appointed;

RESOLVED, that the proper officers of the Corporation and its Board of Directors be, and each of them acting alone hereby is, authorized to take all such further action and to prepare, execute, deliver and file all such agreements, instruments, documents and certificates in the name and on behalf of the Corporation, under its corporate seal or otherwise, and to incur and to pay all such fees and expenses as they, or any one of them, shall deem necessary, proper or advisable in order to carry out the intent and effectuate the purpose of the foregoing resolutions.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be signed by Frank Vitrano, its Executive Vice President, and attested by Marc Strassler, its Secretary, as of this 7^th day of June, 2000.

PLAINBRIDGE, INC.
By:	/s/ Frank Vitrano
	Frank Vitrano
	Executive Vice President

ATTEST:

/s/ Marc Strassler

Marc Strassler

Secretary

#23534-1 3

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

PATHMARK RISK MANAGEMENT CORPORATION

WITH AND INTO

PLAINBRIDGE, INC.

Pursuant to Section 253 of the General Corporation Law of the State of Delaware

Plainbridge, Inc., a Delaware corporation (the “Corporation”), HEREBY CERTIFIES AS FOLLOWS:

FIRST: The Corporation is a corporation incorporated on April 12, 1993 under the laws of the State of Delaware;

SECOND: The Corporation owns all the outstanding capital stock of Pathmark Risk Management Corporation, a corporation incorporated on April 20, 1971, under the laws of the State of New Jersey (“PRMC”); and

THIRD: The Corporation, by the following resolutions of the Board of Directors duly adopted by unanimous written consent of its directors, filed with the minutes of its Board of Directors as of March 7, 2001, determined to merge PRMC with and into the Corporation:

RESOLVED, that the Corporation merge Pathmark Risk Management Corporation, a New Jersey corporation (“PRMC”), with and into the Corporation pursuant to a Plan of Merger dated March 7, 2001 (the “Merger”);

RESOLVED, that at the Merger will be effective upon filing of (i) the Certificate of Merger with the Secretary of State of the State of New Jersey in such form as is required by, and executed in accordance with, the relevant provisions of the New Jersey Business Corporations Act (the “NJBCA”); and (ii) the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware, in such form as is required by and executed in accordance with, the relevant provisions of the Delaware General Corporation Law (the “DGCL”) (the time of effectiveness of the Merger being the “Effective Time” for the Merger);

#25466-1

RESOLVED, that the Effective Time, each share of the Common Stock, par value $.01 per share, of the Corporation which is issued and outstanding immediately prior to the Effective Time, shall remain outstanding following the Effective Time;

RESOLVED, that at the Effective Time, the separate existence of the PRMC shall cease, shall be merged with and into the Corporation, which shall be the surviving corporation (the “Surviving Corporation”), and the Surviving Corporation, without further action, shall possess all the right, privileges, powers and franchises, public and private, of both the Corporation and PRMC, and shall be subject to all the debts, liabilities, obligations, restrictions, disabilities and duties of both the Corporation and PRMC;

RESOLVED, that the Certificate of Incorporation and By-Laws of the Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and By-Laws of the Surviving Corporation until thereafter amended as provided by law or such Certificate of Incorporation;

RESOLVED, that the directors and officers of the Corporation as of the Effective Time shall be the directors and officers of the Surviving Corporation, until their successors are duly elected or appointed;

RESOLVED, that the proper officers of the Corporation and its Board of Directors be, and each of them acting alone hereby is, authorized to take all such further action and to prepare, execute, deliver and file all such agreements, instruments, documents and certificates (including without limitation, memoranda of contribution) in the name and on behalf of the Corporation, under its corporate seal or otherwise, and to incur and to pay all such fees and expenses as they, or any one of them, shall deem necessary, proper or advisable in order to carry out the intent and effectuate the purpose of the foregoing resolutions.

[SPACE INTENTIONALLY LEFT BLACK]

#25466-1 2

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be signed by Frank Vitrano, its Executive Vice President, and attested by Marc Strassler, its Secretary, as of this 8^th day of March, 2001.

	PLAINBRIDGE, INC.
By:	/s/ Frank Vitrano
	Frank Vitrano
	Executive Vice President

ATTEST:

/s/ Marc Strassler

Marc Strassler

Secretary

#25466-1 3

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

PAULS TRUCKING CORP.

WITH AND INTO

PLAINBRIDGE, INC.

Pursuant to Section 253 of the General Corporation Law of the State of Delaware

Plainbridge, Inc., a Delaware corporation (the “Corporation”), HEREBY CERTIFIES AS FOLLOWS:

FIRST: The Corporation is a corporation incorporated on April 12, 1993 under the laws of the State of Delaware;

SECOND: The Corporation owns all the outstanding capital stock of Pauls Trucking Corp., a corporation incorporated on January 23, 1962, under the laws of the State of New Jersey (“PTC”); and

THIRD: The Corporation, by the following resolutions of the Board of Directors duly adopted by unanimous written consent of its directors, filed with the minutes of its Board of Directors as of March 23, 2001, determined to merge PTC with and into the Corporation:

RESOLVED, that the Corporation merge Pauls Trucking Corp., a New Jersey corporation (“PTC”), with and into the Corporation pursuant to a Plan of Merger dated March 23, 2001 (the “Merger”);

RESOLVED, that the Merger will be effective upon the filing of the Certificate of Ownership and Merger with the Secretary of State of the State of Delaware, in such form as is required by and executed in accordance with, the relevant provisions of the Delaware General Corporation Law (the time of effectiveness of the Merger being the “Effective Time” for the Merger);

#25843-1

RESOLVED, that at the Effective Time, each share of the Common Stock, par value $.01 per share, of the Corporation which is issued and outstanding immediately prior to the Effective Time, shall remain outstanding following the Effective Time;

RESOLVED, that at the Effective Time, the separate existence of PTC shall cease, shall be merged with and into the Corporation, which shall be the surviving corporation (the “Surviving Corporation”), and the Surviving Corporation, without further action, shall possess all the right, privileges, powers and franchises, public and private, of both the Corporation and PTC, and shall be subject to all the debts, liabilities, obligations, restrictions, disabilities and duties of both the Corporation and PTC;

RESOLVED, that the Certificate of Incorporation and By-Laws of the Corporation, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and By-Laws of the Surviving Corporation until thereafter amended as provided by law or such Certificate of Incorporation;

RESOLVED, that the directors and officers of the Corporation as of the Effective Time shall be the directors and officers of the Surviving Corporation, until their successors are duly elected or appointed;

RESOLVED, that the proper officers of the Corporation and its Board of Directors be, and each of them acting alone hereby is, authorized to take all such further action and to prepare, execute, deliver and file all such agreements, instruments, documents and certificates (including without limitation, memoranda of contribution) in the name and on behalf of the Corporation, under its corporate seal or otherwise, and to incur and to pay all such fees and expenses as they, or any one of them, shall deem necessary, proper or advisable in order to carry out the intent and effectuate the purpose of the foregoing resolutions.

[SPACE INTENTIONALLY LEFT BLACK]

#25843-1 2

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Ownership and Merger to be signed by Frank Vitrano, its Executive Vice President, and attested by Marc Strassler, its Secretary, as of this 23^rd day of March, 2001.

	PLAINBRIDGE, INC.
By:	/s/ Frank Vitrano
	Frank Vitrano
	Executive Vice President

ATTEST:

/s/ Marc Strassler

Marc Strassler

Secretary

#25843-1 3

CERTIFICATE OF CONVERSION

CONVERTING

PLAINBRIDGE, INC.

(A Delaware Corporation)

TO

PLAINBRIDGE LLC

(A Delaware Limited Liability Company)

Plainbridge, Inc., the corporation that is converting to a Delaware limited liability company (the “Converting Corporation”), and Plainbridge LLC, the continuing Delaware limited liability company (the “Company”), hereby certify that:

1. Name of Converting Corporation. The name of the Converting Corporation immediately prior to the filing of this Certificate of Conversion was “Plainbridge, Inc.”.

2. Date and Jurisdiction of Organization of Converting Corporation. The date on which, and the jurisdiction where, the Converting Corporation was organized are as follows:

Date	Jurisdiction
April 12, 1993	Delaware

3. Name of Converted Limited Liability Company. The name of the Delaware limited liability company to which the Converting Corporation has been converted and the name set forth in the Certificate of Formation of the Company filed in accordance with Section 18-214(b) of the Delaware Limited Liability Company Act is “Plainbridge LLC”.

#25406-1

4. Approval of Conversion. The conversion of the Converting Corporation to the Company has been approved in accordance with the provisions of Section 266 of the General Corporation Law of the State of Delaware and Section 18-214 of the Delaware Limited Liability Company Act.

5. Effective Time. This Certificate shall be effective on May 4, 2001.

IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Conversion as of April 18, 2001.

PLAINBRIDGE, INC.
By:	/s/ Marc Strassler
Name:	Marc Strassler
Title:	Senior Vice President
PLAINBRIDGE LLC
By:	/s/ Frank Vitrano
Name:	Frank Vitrano
Title:	Executive Vice President

#25406-1

CERTIFICATE OF FORMATION

OF

PLAINBRIDGE LLC

This Certificate of Formation is being executed as of April 18, 2001 for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq. (the “Delaware LLC Act”).

The undersigned, being duly authorized to execute and file this Certificate of Formation, does hereby certify as follows:

1. Name. The name of the limited liability company is Plainbridge LLC (the “Company”).

Registered Office and Registered Agent. The Company’s registered office in the State of Delaware is located at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered agent of the Company for service of process at such address is Corporation Service Company.

2. Conversion. The Company has been converted to a Delaware limited liability company pursuant to Section 18-214 of the Delaware LLC Act. The Company constitutes a continuation of the existence of the converted other entity in the form of a Delaware limited liability company.

3. Effective Time. This Certificate shall be effective on May 4, 2001.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of the day and year first above written.

/s/ Marc Strassler

Marc Strassler

Authorized Person

#25407-1

STATE OF DELAWARE

CERTIFICATE OF AMENDMENT

1. Name of Limited Liability Company: PLAINBRIDGE LLC

2. The Certificate of Formation of the limited liability company is hereby amended as follows:

To change the registered agent as follows: Its registered office in the State of Delaware is to be located at: 1220 N. Market St., Suite 806, Wilmington, DE 19801, Country of NEW CASTLE and its registered agent at such address is: BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 7^TH day of FEB, A.D. 08.

By:	/s/ Christopher McGarry
	Authorized Person(s)
Name:	CHRISTOPHER MCGARRY
	Print or Type

EX-99.T3A.39

Exhibit A-39

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “S E G STORES, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE THIRD DAY OF MARCH, A.D. 1987, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “BORMAN’S ACQUISITION CORP.” TO “S E G STORES, INC.”, FILED THE EIGHTH DAY OF APRIL, A.D. 1987, AT 1 O’CLOCK P.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWELFTH DAY OF MAY, A.D. 1998, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “S E G STORES, INC.”.

	/s/ Jeffrey W. Bullock Jeffrey W. Bullock, Secretary of State AUTHENTICATION:    8418781
2119000    8100H	DATE: 12-10-10
101175404

You may verify this certificate online

at corp.delaware.gov/authver.shtml

FILED

MAR 9 1987

CERTIFICATE OF INCORPORATION

OF

Borman’s Acquisition Corp.

* * * * *

1. The name of the corporation is Borman’s Acquisition Corp.

2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmin on, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

3. The nature of the business or purposes to be conducted or promoted as to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

4. The total number of shares of Common stock which the corporation shall have authority to issue is three thousand (3,000); all of such shares shall be without par value.

5. The name and mailing address of each incorporator is as follows:

NAME	MAILING ADDRESS
D. A. Hampton	Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801
J. A. Grodzicki	Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801
S. J. Queppet	Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801

6. The corporation is to have perpetual existence.

7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the by-laws of the corporation.

8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide.

Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation.

9. No director shall be held personally liable to the corporation or any stockholder for monetary damages for breach of fiduciary duty of as a director, except for any matter in respect of which such director shall be liable under Section 174 of Title 8 of the Delaware Code (relating to the Delaware General Corporation Law) or any amendment thereto or successor provision thereto or shall be liable by reason that, in addition to any and

all other requirements for such liability, he (i) shall have breached his duty of loyalty to the corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this Article, nor the adoption of any provision of the certificate of incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

10. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 3rd day of March            , 1987.

/s/ D. A. Hampton

D. A. Hampton

/s/ J. A. Grodzick

J. A. Grodzick

/s/ S. J. Queppet

S. J. Queppet

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

BEFORE PAYMENT OF CAPITAL

OF

BORMAN’S ACQUISITION CORP.

We, the undersigned, being all of the directors of Borman’s Acquisition Corp., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware

DO HEREBY CERTIFY:

FIRST: That Article 1 of the Certificate of Incorporation be and it hereby is amended to read as follows:

“1. The name of the corporation is

      S E G STORES, INC.”

SECOND: That the corporation has not received any payment for any of its stock.

THIRD: That the amendment was duly adopted in accordance with the provisions of Section 241 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, we have signed this certificate this                  day of April, 1987.

/s/ Paul Borman

Paul Borman

/s/ Daniel J. Church

Daniel J. Church

/s/ Ted J. Simon

Ted J. Simon

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 05/12/1998

981181899 – 2119000

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE

AND OF REGISTERED AGENT

It is hereby certified that:

1. The name of the corporation (hereinafter called the “corporation”) is S E G STORES, INC.

2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle.

3. The registered agent of the corporation within the State of Delaware is hereby changed to Corporation Service Company, the business office of which is identical with the registered office of the corporation as hereby changed.

4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors.

Signed on 4.6.98

/s/ William Moss

William Moss, Treasurer

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003

030016524 – 2119000

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

S E G STORES, INC.

S E G STORES, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: S E G STORES, INC.

TWO:	That a meeting of the Board of Directors of S E G STORES, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:
	RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:
	From
	TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.
	To
	TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 27^lh day of December, 2002

/s/	JOSE MOJICA
By:	Jose Mojica
	President

EX-99.T3A.40

Exhibit A-40

Delaware	PAGE 1
The First State

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OR A MERGER WITH A RESTATED CERTIFICATE ATTACHED OF “SHOPWELL, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

RESTATED CERTIFICATE, FILED THE SIXTH DAY OF JUNE, A.D. 1977, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE FIFTEENTH DAY OF MAY, A.D. 1978, AT 9 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SIXTH DAY OF MAY, A.D. 1978, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE THIRTEENTH DAY OF SEPTEMBER, A.D. 1983, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE TENTH DAY OF AUGUST, A.D. 1984, AT 9 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SIXTH DAY OF APRIL, A.D. 1985, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF OWNERSHIP IS THE THIRTIETH DAY OF

	/s/ Jeffrey W. Bullock Jeffrey W. Bullock, Secretary of State AUTHENTICATION:    8418786
0452728     8100X
101175410		DATE: 12-10-10

You may verify this certificate online

at corp.delaware.gov/authver.shtml

Delaware	PAGE 2
The First State

APRIL, A.D. 1985.

CERTIFICATE OF OWNERSHIP, FILED THE FIRST DAY OF AUGUST, A.D. 1986, AT 10 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF OWNERSHIP IS THE SECOND DAY OF AUGUST, A.D. 1986.

CERTIFICATE OF CORRECTION, FILED THE ELEVENTH DAY OF JUNE, A.D. 1987, AT 10 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE FIFTH DAY OF JANUARY, A.D. 1999, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

CERTIFICATE OF MERGER, FILED THE FOURTH DAY OF AUGUST, A.D. 2003, AT 1:02 O’CLOCK P.M.

CERTIFICATE OF CORRECTION, FILED THE ELEVENTH DAY OF SEPTEMBER, A.D. 2003, AT 12:40 O’CLOCK P.M.

CERTIFICATE OF MERGER, FILED THE TWENTY-THIRD DAY OF OCTOBER, A.D. 2003, AT 11:15 O’CLOCK A.M.

	/s/ Jeffrey W. Bullock Jeffrey W. Bullock, Secretary of State AUTHENTICATION:    8418786
0452728    8100X
101175410		DATE: 12-10-10

You may verify this certificate online

at corp.delaware.gov/authver.shtml

CERTIFICATE OF CORRECTION

FILED TO CORRECT A

CERTAIN ERROR IN THE CERTIFICATE OF

OWNERSHIP AND MERGER MERGING

S ACQUISITION CORPORATION INTO

SHOPWELL, INC.

S Acquisition Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

1. The name of the corporation is S Acquisition Corporation.

2. That a Certificate of Ownership and Merger was filed by the Secretary of State of Delaware on August 1, 1986 and that said certificate requires correction as permitted by subsection (F) of section 103 of The General Corporation Law of the State of Delaware.

3. The inaccuracy or defect of said certificate is included in EXHIBIT B to the certificate as follows:

EXHIBIT B

TO

CERTIFICATE OF OWNERSHIP AND MERGER MERGING

S ACQUISITION CORPORATION INTO

THE ARO CORPORATION

* * *

. . . WHEREAS, The Great Atlantic & Pacific Tea Company, a Maryland corporation (“A&P”), a New York Corporation, . . . ;

and should be corrected to read as follows:

EXHIBIT B

TO

CERTIFICATE OF OWNERSHIP AND MERGER MERGING

S ACQUISITION CORPORATION INTO

SHOPWELL, INC.

* * *

. . . WHEREAS, The Great Atlantic & Pacific Tea Company, a Maryland corporation (“A&P”), . . . .

IN WITNESS WHEREOF, said S Acquisition Corporation has caused this certificate to be signed by Mr. Louis Sherwood, its President, and attested by Mr. Robert G. Ulrich, its Secretary, this 9^th day of June, 1987.

ATTEST:

Certificate of Correction to correct a certain error in the Certificate of Ownership and Merger of the “SHOPWELL, INC.”, filed in this office on August 1, 1986, as received and filed in this office the eleventh day of June, A.D. 1987, at 10 o’clock A.M.

CERTIFICATE OF AMENDMENT  

OF  

CERTIFICATE OF INCORPORATION  

OF  

SHOPWELL, INC.  

Adopted in accordance with the provisions

of Section 242 of the General Corporation

Law of the State of Delaware

WE, MARTIN ROSENGARTEN, President, and LAURENCE R. BUXBAUM, Secretary of SHOPWELL, INC., a corporation existing under the laws of the State of Delaware, DO HEREBY CERTIFY under the seal of the said Corporation as follows:

FIRST, that Article FOURTH of the Certificate of Incorporation of the Corporation has been amended to read in its entirety as follows:

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is four million (4,000,000) and the par value thereof shall be fifty cents ($.50) per share.

SECOND, that such amendment has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware by the affirmative vote of the holders of a majority of the Common Stock

of the Corporation, which is the only class of stock of the Corporation issued and outstanding, at a duly held meeting of stockholders.

THIRD, that the capital of the Corporation will not be reduced under or by reason of the amendment.

IN WITNESS WHEREOF, we have signed this certificate and caused the corporate seal of said SHOPWELL, INC. to be hereunto affixed this 22nd day of August, 1983.

	/s/ Martin Rosengarten
	Martin Rosengarten President
ATTEST:
	/s/ Laurence R. Buxbaum
	Laurence R. Buxbaum Secretary

–2–

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

ONE STOP SHOP, INC.

(a New York corporation)

INTO

SHOPWELL, INC.

(Pursuant to Section 253 of the General Corporation

Law of Delaware)

Shopwell, Inc., a corporation incorporated on the 7th day of January, 1952, pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify that this corporation owns 100% of the capital stock of One Stop Shop, Inc., a corporation incorporated on the 6th day of December, 1978, pursuant to the provisions of the Business Corporation Law of the State of New York, and that this corporation, by a resolution of its Board of Directors duly adopted at a meeting held on the 24th day of January, 1985, determined to merge said One Stop Shop, Inc. into itself, which resolution is in the following words:

WHEREAS, this Corporation lawfully owns 100% of the outstanding stock, without par value, of One Stop Shop, Inc., a corporation organized and existing under the laws of New York; and

WHEREAS, this Corporation desires to merge into itself said One Stop Shop, Inc., and to be possessed of all the estate, property, rights, privileges and franchises of said corporation;

NOW, THEREFORE, IT IS

RESOLVED, that this Corporation merge into itself said One Stop Shop, Inc. and assume all of its liabilities and obligations; and it is further

RESOLVED, that the Corporation adopt a Plan of Merger in accordance with the Business Corporation Law of the State of New York in substantially the form submitted at this meeting; and it is further

RESOLVED, that the President or a Vice-President, and the Secretary or Assistant Secretary of this Corporation be and they hereby are directed to make and execute, under the corporate seal of this Corporation:

(i) a Certificate of Ownership and Merger setting forth a copy of the resolution to merge said One Stop Shop, Inc. and assume its liabilities and obligations, and the date of adoption thereof, and to cause the same to be filed in the office of the Secretary of State of Delaware and a certified copy thereof to be recorded in the office of the Recorder of the county in which the Corporation’s registered office in the State of Delaware is located; and

(ii) a Certificate of Merger under the Business Corporation Law of the State of New York, and to cause the same to be filed with the Department of State of the State of New York; and it is further

RESOLVED, that the Merger shall become effective on April 30, 1985; and it is further

-2-

RESOLVED, that the officers of this Corporation be and they hereby are authorized and directed to do all acts and things whatsoever, whether within or without the States of Delaware and New York, which may be in any way necessary or proper to effect said merger.

IN WITNESS WHEREOF, said Shopwell, Inc. has caused its corporate seal to be affixed and this certificate to be signed by Stuart Spivak its Vice-President, and attested by Laurence R. Buxbaum, its Secretary, this 11^th day of April, 1985.

/s/ Stuart Spivak

Stuart Spivak

Vice-President

[Corporate Seal]

Attest:

/s/ Laurence R. Buxbaum

Laurence R. Buxbaum, Secretary

– 3 –

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

Law Offices

Feldesman & D’Atri

122 East 42^nd Street

New York, N.Y. 10017

———

697-3070

CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

It is hereby certified that:

1.    The present name of the corporation (hereinafter called the “Corporation”) is SHOPWELL, INC.

2.    The name under which the Corporation was originally incorporated is Daitch Crystal Dairies, Inc., and the date of filing the original Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware is January 7, 1952.

3.    The Certificate of Incorporation of the Corporation is hereby amended as follows:

(a)    The paragraphs numbered 1 and 2(c) of Article ELEVENTH of the Certificate of Incorporation of the Corporation are hereby deleted, and paragraphs 2, 3 and 4 thereof are hereby renumbered 1, 2, and 3, respectively.

(b)    The following articles, numbered FOURTEENTH through SIXTEENTH, are hereby added to the Certificate of Incorporation:

“FOURTEENTH:    The number of directors which shall constitute the whole Board of Directors of the Corporation shall be not less than eleven (11) nor more than thirteen (13), as may from time to time be fixed by the Board of Directors. The Board shall be divided into three classes, to be known as Class 1, Class 2 and Class 3 and which classes shall be as nearly equal as possible. The number of directors initially in Class 1 shall be three, in Class 2, four, and in Class 3, four. Each director shall serve for a term ending on the third annual meeting following the meeting at which such director was elected; provided, however, that the directors first elected to Class 1 shall serve for a term ending on the annual meeting next ensuing, the directors first elected to Class 2 shall serve for a term ending on the second annual meeting following the meeting at which such directors were first elected, and the directors first elected to Class 3 shall serve for a term ending on the third annual meeting following the meeting at which such directors were first elected. The foregoing notwithstanding, each director shall serve until his successor shall have been duly elected and qualified, unless he shall resign, become disqualified, disabled or shall otherwise be removed. There shall be no more than one annual meeting of stockholders in each twelve-month period, unless the Board of Directors otherwise authorizes.

For purposes of the preceding paragraph, directors “first elected” to each class shall be the directors elected at the annual meeting of stockholders of the Corporation held on May 4, 1978. At each annual election held thereafter, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed.

The Board of Directors of the Corporation may elect a person to fill a vacancy on the Board of Directors. Such elected director shall serve for the unexpired portion of the term of

the director he replaces or if such vacancy was created by an increase in the size of the Board of Directors, until the term expires of the directors in the same class as such director.

The affirmative vote of a majority of the total number of the Board of Directors shall be necessary to constitute an act of the Board.

No director of the Corporation shall be removed from his office as a director unless (a) the director to be removed has been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation by a court of competent jurisdiction and such adjudication is no longer subject to direct appeal, and such removal is authorized by the holders of at least two-thirds of the outstanding shares entitled to vote or unless (b) the director to be removed has been convicted of a felony by a court of competent jurisdiction and such conviction is no longer subject to direct appeal.

FIFTEENTH: In the event that it is proposed that this Corporation enter into a merger or consolidation with any other corporation or that this Corporation sell substantially all of its assets or business to another corporation, the affirmative vote of the holders of not less than eighty percent (80%) of the total voting power of all outstanding shares of stock of this Corporation shall be required for the approval of any such proposal; provided, however, that the foregoing shall not apply to any such merger, consolidation or sale of assets or business if such transaction is approved by resolutions of the Board of Directors of this Corporation.

SIXTEENTH: The provisions set forth in Articles FOURTEENTH and FIFTEENTH above and in this Article SIXTEENTH may not be repealed or amended in any respect unless such repeal or amendment is approved by the affirmative vote of the holders of both (a) a majority of the total voting power of all outstanding shares of stock of this Corporation and (b) at least eighty percent (80%) of the shares of stock of this Corporation voting upon such repeal or amendment.”

4. This Amendment of the Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

Executed at New York, New York, on May 4, 1978.

Corporate Seal

/s/    Martin Rosengarten

MARTIN ROSENGARTEN, President

Attest:

/s/    Howard B. Weinreich

HOWARD B. WEINREICH, Secretary

2

STATE OF NEW YORK	SS.:
COUNTY OF NEW YORK

BE IT REMEMBERED that, on May 4, 1978, before me, a Notary Public duly authorized by law to take acknowledgment of deeds, personally came MARTIN ROSENGARTEN, President of SHOPWELL, INC., who duly signed the foregoing instrument before me and acknowledged that such signing is his act and deed, that such instrument as executed is the act and deed of said corporation, and that the facts stated therein are true.

GIVEN under my hand on May 4, 1978.

/s/    Philip H. Horwitz

Notary Public

PHILIP H. HORWITZ

NOTARY PUBLIC, State of New York

No. 31-6972075

Qualified in New York County

Commission Expires March 30, 1980

3

CERTIFICATE OF OWNERSHIP AND MERGER

OF

NEW JERSEY SHOPWELL FOODS, INC.

BY

SHOPWELL, INC.,

DATED: January    , 1978

CERTIFICATE OF OWNERSHIP AND MERGER

OF

NEW JERSEY SHOPWELL FOODS, INC.

BY

SHOPWELL, INC.

Pursuant to Section 253 of the General Corporation Law of the State of Delaware

Shopwell, Inc., a corporation formed under the laws of the State of Delaware, desiring to merge New Jersey Shopwell Foods Inc., pursuant to the provisions of Section 253 of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as follows:

FIRST: That Shopwell, Inc., the surviving corporation is a corporation formed under the laws of the State of Delaware and its Certificate of Incorporation was filed in the office of the Secretary of State on the 7th day of January, 1952.

That New Jersey Shopwell Foods, Inc., is a corporation formed under the laws of the State of New Jersey, and its Certificate of Incorporation was filed in the office of the Secretary of State on the 22nd day of November, 1954.

SECOND: That the Board of Directors of Shopwell, Inc., by resolutions duly adopted on the ninth of January, 1978, determined to merge and to assume all of its obligations; said resolutions being as follows:

“WHEREAS, this corporation has acquired and now lawfully owns all of the stock of New Jersey Shopwell Foods, Inc., and desires to merge said corporation;

“NOW, THEREFORE, BE IT RESOLVED, that this corporation merge and it does hereby merge said New Jersey Shopwell Foods, Inc., and does hereby assume all of its obligations; and

“FURTHER RESOLVED, that the proper officers of this corporation be, and they hereby are, authorised and directed to make and execute, in its name and under its corporate seal, and to file in the proper public offices, a certificate of such ownership, setting forth a copy of these resolutions; and

“FURTHER RESOLVED, that the officers of this corporation be, and they hereby are, authorised and directed to take such further action as in their judgment may be necessary or proper to consummate the merger provided for by these resolutions.

IN WITNESS WHEREOF, said Shopwell, Inc., has caused this Certificate to be executed by its officers thereunto duly authorised this 31 day of January, 1978.

SHOPWELL, INC.,

ATTEST:

CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

It is hereby certified that:

1. The present name of the corporation (the “Corporation”) is SHOPWELL, INC.

2. The name under which the Corporation was originally incorporated is Daitch Crystal Dairies, Inc., and the date of filing of the original Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware is January 7, 1952.

3. The Certificate of Incorporation of the Corporation is hereby amended by changing Article FOURTH, so that, as amended, said paragraph shall be read as follows:

“FOURTH:

(1) The total number of shares of all classes of stock which the Corporation has authority to issue is 4,250,000 shares, 4,000,000 shares of which shall be Common Stock, par value of $.50 per share, and 250,000 shares of which shall be Preferred Stock, the par value of which shall be one dollar per share.

(2) The Preferred Stock may be issued from time to time in series as may from time to time be determined by resolution or resolutions of the Board of Directors of this Corporation, and the Board of Directors is hereby expressly vested with authority to provide by resolution or resolutions for the issue of the Preferred Stock in series with variations between series and to fix and set forth in such resolutions the designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of each such series. Shares of any series of Preferred Stock shall have voting rights only if and to the extent fixed and set forth in the resolution or resolutions providing for the issue of such series. Such resolution or resolutions may provide that any series of Preferred Stock shall have no voting rights.

(3) All such shares, options to purchase any of such shares and securities convertible into or exchangeable for any of such shares, may be issued from time to time and for such consideration and upon such terms and conditions and in such manner as the Board of Directors in its sole discretion may from time to time determine.

(4) No holder of any of the shares of the stock or options, warrants or other rights to purchase stock, or of other securities of the Corporation, shall be entitled as of right to purchase or subscribe for any unissued stock of any class or any additional shares of any class to be issued by reason of any increase of the authorized capital stock of the Corporation of any class, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for the stock of the Corporation of any class, or carrying any right to purchase stock of any class, but any such unissued stock, additional authorized issue of any stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms, as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.”

4. This Amendment of the Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

Signed and attested to on August 8, 1984.

/s/ Jay M. Rosengarten

Jay M. Rosengarten

Chairman of the Board

Attest:

/s/ Laurence R. Buxbaum

Laurence R. Buxbaum, Secretary

– 2 –

CERTIFICATE OF OWNERSHIP AND MERGER

MERGING

S ACQUISITION CORPORATION

INTO

SHOPWELL, INC.

(Pursuant to Section 253 of the

General Corporation Law of Delaware)

S Acquisition Corporation, a Delaware corporation (the “Company”), does hereby certify:

FIRST: That the Company is incorporated pursuant to the General Corporation Law of the State of Delaware.

SECOND: That the Company owns more than ninety percent of the outstanding shares of each class of the capital stock of Shopwell, Inc., a Delaware corporation (“Shopwell”).

THIRD: That the name of the corporation surviving the merger is Shopwell, Inc. (the “Surviving Corporation”).

FOURTH: That the Company, by the resolutions of its Board of Directors duly adopted by written consent in lieu of a meeting, dated August 1, 1986, determined (i) to merge the Company into Shopwell upon the terms and subject to the conditions set forth in such resolutions and (ii) that the Certificate of

Incorporation of the Surviving Corporation be amended as set forth in Exhibit A. A true copy of said resolutions is attached hereto as Exhibit B. Such resolutions have not been modified or rescinded and are in full force and effect on the date hereof.

FIFTH: That the proposed merger was approved by a majority of the outstanding stock of the Company by written consent in lieu of a meeting, dated August 1, 1986.

SIXTH: That the proposed merger shall be effective at midnight, August 2, 1986.

IN WITNESS WHEREOF, S Acquisition Corporation has caused its corporate seal to be affixed and this Certificate of Ownership and Merger to be executed in its corporate name by its President, this 1st day of August, 1986.

ATTEST:

EXHIBIT A

TO

CERTIFICATE OF OWNERSHIP AND MERGER MERGING

S ACQUISITION CORPORATION INTO

SHOPWELL, INC.

CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

*            *             *            *

1. Name. The name of the corporation is SHOPWELL, INC.

2. Address: Registered Agent. The address of its registered office in the State of Delaware is The United States Corporation Company, 306 South State Street, in the City of Dover, County of Kent. The name of its registered agent at such address is The United States Corporation Company.

3. Purposes. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

4. Shares. The total number of shares of stock which the corporation shall have authority to issue is One

– 2 –

Hundred (100) and the par value of each of such shares is One Cent ($.01), amounting in the aggregate to One Dollar ($1.00).

Subject to the provisions of this Certificate of Incorporation and except as otherwise provided by law, the stock of the corporation, regardless of class, may be issued for such consideration and for such corporate purposes as the Board of Directors may from time to time determine.

5. Name and Address of Incorporator. The name and mailing address of the sole incorporator is as follows:

NAME	MAILING ADDRESS
Kenneth J. Berman	c/o Cahill Gordon & Reindel 80 Pine Street                           New York, New York 10005

6. Existence. The corporation is to have perpetual existence.

7. Adoption, Amendment and/or Repeal of By-Laws. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the by-laws of the corporation; provided, however, that nothing contained in the by-laws as so made, altered or repealed shall be inconsistent with this Certificate of Incorporation as in force from time to time.

– 3 –

8. Directors; Election of Directors; Meetings; Corporate Books. The number of Directors of the corporation shall be six. Vacancies in the board of Directors shall be filled as provided in the by-laws.

Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the by-laws of the corporation.

9. Amendment and/or Repeal of Certificate. The corporation reserves the right to amend, alter or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

10. Compromises and Arrangements. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the

– 4 –

application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

EXHIBIT B

TO

CERTIFICATE OF OWNERSHIP AND MERGER MERGING

S ACQUISITION CORPORATION INTO

THE ARO CORPORATION

CERTIFIED RESOLUTIONS

OF

S ACQUISITION CORPORATION

(the “Company”)

WHEREAS, the Company, a Delaware corporation, owns more than ninety percent of the oustanding shares of each class of stock of Shopwell, Inc., a Delaware corporation (“Shopwell”); and

WHEREAS, The Great Atlantic & Pacific Tea Company, a Maryland corporation (“A&P”), a New York corporation, as sole stockholder of the Company, desires to effect a merger of the Company into Shopwell pursuant to the provisions of the General Corporation Law of the State of Delaware;

NOW, THEREFORE, BE IT

RESOLVED, that the Company be merged with and into Shopwell, with Shopwell as the surviving corporation in the merger, all in accordance with the following Plan of Merger (the “Merger”):

– 2 –

1. The Merger. Upon the terms and subject to the conditions set forth herein, on the Effective Date (as defined in paragraph 8 hereof), the Company shall be merged with and into Shopwell, which shall be the surviving corporation (Shopwell, in such capacity being hereinafter sometimes called the “Surviving Corporation”). From and after the Effective Date, the status, rights and liabilities of, and the effect of the Merger on, each of Shopwell and the Company (collectively, the “Constituent Corporations”) in the Merger and the Surviving Corporation shall be as provided in Section 259 of the General Corporation Law of the State of Delaware (the “GCL”). At any time, and from time to time after the Effective Date, the last acting officers of the Company, or the corresponding officers of the Surviving Corporation, may. In the name of the Company, execute and deliver all such proper deeds, assignments, and other instruments and take or cause to be taken all such further or other action as the Surviving Corporation may deem necessary or desirable in order to vest, perfect, or confirm in the Surviving Corporation, title to and possession of all of the Constituent Corporations’ property, rights, privileges, powers, franchises, immuntities and interests and otherwise to carry out the purposes of these resolutions and the Merger.

– 3 –

2. Certificate of Incorporation and By-Laws. The Certificate of incorporation of the Surviving Corporation shall be amended as set forth in Exhibit A to the Certificate of Ownership and Merger (as defined in paragraph 8 hereof). The By-Laws of the Company, as in effect immediately prior to the Effective Date, shall continue to be the By-Laws of the Surviving Corporation.

3. Officers and Board of Directors. The directors of Shopwell on the Effective Date shall become the initial directors of the Surviving Corporation until their respective successors are duly elected and qualified. The officers of Shopwell on the Effective Date shall continue as the officers of the Surviving Corporation, to serve in accordance with the By-laws thereof until their respective successors are duly elected and qualified.

4. Terms and Conditions of the Merger. As of the Effective Date, by virtue of the Merger and without any action on the part of the holders thereof:

(a)    All Shares which are held by Shopwell as treasury shares, all authorized and unissued Shares and any Shares owned by the Company, A&P or any other direct or indirect subsidiary of A&P, shall be cancelled.

– 4 –

(b) Each other outstanding Share shall be converted into the right to receive $31.00 net in cash (the “Merger Price”).

(c) Each issued and outstanding share of capital stock of the Company shall be converted into one validly issued, fully paid and non-assessable share of common stock, par value $.01 per share, of the Surviving Corporation (the “Surviving Corporation Common Stock”). Promptly after the Effective Date, the Surviving Corporation shall issue to A&P a stock certificate representing 100 shares of Surviving Corporation Common Stock in exchange for the certificate(s) which formerly represented shares of Common Stock, which shall be cancelled.

5. Payment for Shares. The Company shall authorize one or more persons to act as paying agent in connection with the Merger (the “Paying Agent”). Upon or as soon as practicable after the Effective Date, the Company shall make available and each holder of Shares shall be entitled to receive, upon surrender to the Paying Agent of the certificate or certificates, which immediately prior to the Effective Date represented outstanding Shares, for cancellation, the aggregate

– 5 –

amount of cash into which those Shares shall have been converted in the Merger. Until so surrendered, each certificate, which immediately prior to the Effective Date represented outstanding Shares, shall be deemed for all corporate purposes to evidence only the right to receive, upon surrender, the aggregate amount of cash into which the Shares represented thereby shall have been converted. No interest shall accrue or be paid on the cash payable upon the surrender of the certificate or certificates.

6. Closing of the Company’s Transfer Books. Upon the Effective Date, the stock transfer books of Shopwell shall be closed and no transfer of Shares (other than shares of common stock, par value $.01 per share, into which the capital stock of the Company is to be converted pursuant to the Merger) shall thereafter be made.

7. Rights and Duties of Shopwell as the Surviving Corporation. At the Effective Date, for all purposes the separate existence of the Company shall cease, and the Company shall be merged with and into Shopwell which, as the Surviving Corporation, shall thereupon and thereafter possess all the rights, privileges, powers and franchises as well of a public as of a private nature, and be subject to all the restrictions, disabilities and duties of each of the Constituent Corporations

– 6 –

so merged; and all and singular, the rights, privileges, powers and franchises of each of the Constituent Corporations, and all property, real, personal and mixed, and all debts due to any of the Constituent Corporations on whatever account, as well as for stock subscriptions as all other things in action of belonging to each of such Constituent Corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the Surviving Corporation as they were of the several and respective Constituent Corporations, and the title to any real estate vested by deed or otherwise, under the laws of the State of Delaware, in any of such Constituent Corporations, shall not revert or be in any way impaired by reason of the General Corporation Law of the State of Delaware; but all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities and duties of the respective Constituent Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it. If at any time the Surviving Corporation shall consider or be advised that any further assignment or assurances in law or any things are necessary or desirable to vest in the Surviving

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Corporation, according to the terms hereof, the title of any property or rights of the Company, the last acting officers and directors of the Company or the corresponding officers and directors of the Surviving Corporation, as the case may be, shall and will execute and make all such proper assignments and assurances and do all things necessary or proper to vest title in such property or rights in the Surviving Corporation, and otherwise to carry out the purposes of this Plan of Merger.

8. Effective Date; Dissenting Shares. As used in this Plan of Merger, the term “Effective Date” shall mean the date and time at which an executed Certificate of Ownership and Merger setting forth a copy of these resolutions (the “Certificate of Ownership and Merger”) is filed with the Secretary of State of the State of Delaware pursuant to Sections 253 and 103 of the General Corporation Law of the State of Delaware or if later, midnight, August 2, 1986, or such other date and time as is specified in such executed Certificate of Ownership and Merger. As used in this Plan of Merger, the term “Dissenting Shares” shall mean those shares which are issued and outstanding immediately prior to the Effective Date and which are held by stockholders who have perfected their appraisal rights in the manner provided by Section 262 of the General Corporation Law of the State of Delaware; and further

– 8 –

RESOLVED, that the Chairman of the Board, the President or any Vice President of the Company be, and each of them hereby is, authorized and directed to make, execute and acknowledge a Certificate of Ownership and Merger setting forth a copy of these resolutions to merge the Company with and into Shopwell and to assume said subsidiary’s liabilities and obligations at the Effective Date and to file said certificate in the Office of the Secretary of State of the State of Delaware and a certified copy thereof in the office of the Recorder of Deeds of New Castle County.

*    *    *    *    *

The undersigned, Robert G. Ulrich, Secretary of S Acquisition Corporation, a Delaware corporation, does hereby certify that the foregoing resolutions were duly adopted by the Board of Directors of said corporation by written consent in lieu of meeting, dated August 1, 1986, and that as of the date hereof such resolutions have not been amended or repealed and remain in full force and effect.

– 9 –

Witness my hand the seal of the corporation, this 31st day of July, 1986.

/s/ Robert G. Ulrich

Robert G. Ulrich, Secretary

[Corporate Seal]

RESTATED CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

FILED

JUN 6 1977

RESTATED CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

It is hereby certified that:

1. (a) The present name of the corporation (hereinafter called the “corporation”) is SHOPWELL, INC.

    (b) The name under which the corporation was originally incorporated is Daitch Crystal Dairies, Inc; and the date of filing the original certificate of incorporation of the corporation with the Secretary of State of the State of Delaware is January 7, 1952.

2. The provisions of the certificate of incorporation of the corporation as heretofore amended and/or supplemented, are hereby restated and integrated into the single instrument which is hereinafter set forth, and which is entitled Restated Certificate of Incorporation of Shopwell, Inc. without further amendment and without any discrepancy between the provisions of the certificate of incorporation as heretofore amended and supplemented and the provisions of the said single instrument hereinafter set forth.

3. The Board of Directors of the corporation has duly adopted this Restated Certificate of Incorporation pursuant to the provisions of § 245 of the General Corporation Law of the State of Delaware in the form set forth as follows:

RESTATED

CERTIFICATE OF INCORPORATION

OF

SHOPWELL, INC.

*            *             *            *

FIRST: The name of this corporation is SHOPWELL, INC.

SECOND: Its registered office in the State of Delaware is located at 306 South State Street, City of Dover, County of Kent. The name and address of its registered agent is the United States Corporation Company, 129 South State Street, Dover, Delaware.

THIRD: The nature of the business, or objects or purposes to be transacted, promoted or carried on are:

1. To acquire, produce, buy, sell, process, market, export, import and generally deal in and with, either as principal or agent, milk, butter, cheese and eggs; to preserve the same by refrigeration, condensation, evaporation, chemical or mechanical treatment or processes, or otherwise; to make, buy and sell everything that can be made, or derived from milk or eggs; to pasteurize, sterilize or otherwise treat milks, foods and beverages for the purpose of freeing them from substances and organisms injurious to the health; to certify and warrant the purity of its products; to acquire, maintain and operate dairy plants, creameries, warehouses, factories, plants, machinery and equipment for the aforesaid purposes and for making cans, bottles, boxes, cartons, crates and containers of all kinds; to establish, acquire, maintain, operate, sell or dispose of, markets, stores, stations, depots, gathering, and delivery routes, and systems, equipment, facilities and conveniences of all kinds for gathering, storing, packaging, working upon and handling its materials and supplies, and for advertising, marketing, distributing and delivering its products.

2. To manufacture, buy, sell and generally deal in milk powder and substitutes for milk. To acquire by purchase or otherwise, a farm or farms and to maintain and operate thereon in connection with general farming, a farm or farms at which milk may be produced.

3. To buy, store, sell, ship, import, export and generally deal in fruit, grain, hay, straw, nursery stock, plants, vegetables, roots, feeds, poultry, game, livestock and meats of all kinds; farm implements, machinery, supplies and products of all kinds; to evaporate, can and preserve fruits and vegetables and farm products; to manufacture fruit and vegetable juices; to buy, sell and generally deal in canned and evaporated fruits and vegetables, fruit and vegetable juices; and to raise and produce all kinds of farm and garden products and foods prepared therefrom.

4. To manufacture, buy, store, prepare, package, import and export, treat, cure, raise, sell and generally deal in and with tea, coffee, cocoa, chocolate, spices, meats, fruits, groceries, vegetables and beverages of all kinds; to produce, manufacture, compound, prepare, buy and sell, export and import and generally deal in and with groceries, provisions, condiments, salt, baking powders and all materials and supplies used in the culinary art; and to produce, manufacture, compound, prepare, buy and sell, export and import and generally deal in and with soaps, cosmetics, perfumes, powders and toilet articles, drugs and chemicals, and supplies of all kinds.

5. To manufacture, purchase or otherwise acquire, to hold, own, mortgage, pledge, sell, assign and transfer, or otherwise dispose of, to invest, trade, deal in and deal with, goods, wares and merchandise, and real and personal property of every class and description; and in particular lands, buildings, business concerns and undertakings, mortgages, shares, stocks, debentures, securities, concessions, produce, policies, book debts and claims, and any interest in real or personal property, and any claims against such property, or against any person or company, and to carry on any business, concern or undertaking so acquired.

6. To acquire by purchase, subscription or otherwise, and to own, hold, sell, negotiate, assign, deal in, exchange, transfer, mortgage, pledge or otherwise dispose of any shares of the capital stock, scrip or any voting trust certificates in respect of the shares of capital stock of, or any bonds, mortgages, securities or evidences of indebtedness issued or created by any other corporation, joint stock company or association, public or private, or of the Government of the United States of America, or of any foreign government, or of any state, territory, municipality or other political subdivision or of any governmental agency; and to issue in exchange therefor, in the manner permitted by law, shares of the capital stock, bonds or other obligations of the corporation; and while the holder or owner of any such shares of capital stock, scrip, voting trust certificates, bonds, mortgages or other securities or evidence of indebtedness to possess and exercise in respect thereof any and all rights, powers and privileges of ownership, including the right to vote thereon, and to do any and all acts and things necessary or advisable for the preservation, protection, improvement and enhancement in value thereof.

1

7. To adopt, apply for, obtain, register, purchase, lease, give and take assignments and licenses in respect of or otherwise acquire, and to maintain, protect, hold, own, use, enjoy, control, exercise, develop, operate, introduce, turn to account, grant licenses or other rights in respect of, sell, assign, lease, mortgage, pledge or otherwise dispose of in the United States or any state or territory thereof or the District of Columbia or any foreign country:

(i) any and all inventions, devises, formulae, processes and all improvements and modifications thereof;

(ii) any and all letters patent and/or applications therefor and all rights connected therewith or appertaining thereto;

(iii) any and all copyrights granted;

(iv) any and all licenses, privileges, processes, improvements, trademarks, tradenames, trade symbols and other indications of origin of ownership.

8. To acquire by purchase, exchange, lease or otherwise, and to construct, own, hold, develop, improve, operate, sell, assign, lease, transfer, convey, exchange, mortgage, pledge or otherwise dispose of or encumber real and personal property of any class and description, and any rights, interests or privileges therein, in any state, territory or dependency of the United States of America and in all foreign countries.

9. To institute, enter into, assist, promote, conduct, perform or participate in every kind of commercial, mercantile, manufacturing, trading, real estate, industrial or mining enterprise, business or work, contract, undertaking, venture or operation in the United States or in any foreign country, and for any such purpose to purchase or otherwise acquire, take over, hold, sell, liquidate or otherwise dispose of the real estate, plants, equipment, inventory, merchandise, materials and other assets, stock, goodwill, rights, franchises, patents, and applications therefor, trademarks and tradenames, and other properties of domestic or foreign corporations, firms, associations, syndicates, entities, individuals and others; to continue, alter, extend and develop their business, assume their liabilities, guarantee or become surety for the performance of their obligations, reorganize their capital and participate in any way in their affairs; to take over as a going concern and continue any business so acquired, and to pay for any such business or properties in cash, stock, bonds, debentures or obligations of the corporation or otherwise.

10. To the extent permitted by law, to promote, finance, underwrite, aid and assist, financially or otherwise, any corporation, joint stock company or association, or any firm, entity, individual or syndicate, or any shares of stock or voting trust certificates for shares of stock in which, or any bonds, mortgages, debentures, notes, commercial paper, choses in action, evidences of indebtedness, certificates of interest, contracts and/or other obligations of which or of whom are held by or for this corporation, directly or indirectly, or in the business, financing or welfare of which or of whom this corporation shall have any interest.

11. To borrow money, to issue bonds, debentures, notes or other obligations secured or unsecured of this corporation; to secure the same by mortgage or mortgages or deed or deeds of trust or pledge or other lien upon any or all of the property, rights, privileges and franchises of this corporation wheresoever situate, acquired or to be acquired; to confer upon the holders of any debentures, bonds, notes or other obligations of this corporation, secured or unsecured, the right to vote in respect to the corporate affairs and management of the corporation to the same extent and in the same manner as stockholders of the corporation are entitled to vote and to confer upon such holders the right to convert the same into any class of stock of this corporation now or hereafter to be issued, in each case upon such terms as shall be fixed by the Board of Directors subject to the provisions of the General Corporation Law and of this Certificate as the same may be amended from time to time; to sell, to pledge and otherwise to acquire notes, bonds, debentures or shares of capital stock issued by the corporation and/or any other securities and to hold, to sell, to assign, transfer and to reissue any or all of such shares or other securities; to loan money, secured by mortgages or pledges on personal property or real estate or otherwise, or without security, to the extent permitted by law.

12. To draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments to the extent permitted by law, and to redeem any debt or other obligation before the same shall fall due on any terms and on any advance or premium.

13. To guarantee the payment of dividends upon any capital stock, and by endorsement or otherwise to guarantee the payment of the principal or interest or both on any bonds, debentures, notes, scrip or other obligations or evidences of indebtedness, or the performance of any contracts or obligations, of any other corporation or association, domestic or foreign, or of any firm, individual, syndicate or body politic in which, or of whom, or in the business, financing or welfare of which, or of whom, this corporation may have an interest, insofar and to the extent that such guaranty may be permitted by law.

14. Generally to carry on and undertake any other lawful business of the same general nature, whether as principal or agent, which may from time to time seem to the directors of this corporation

2

capable of being conveniently carried on in connection with the above objects, or calculated directly or indirectly to render valuable or enhance the value of any of the corporation’s properties, privileges or rights.

15. Generally to perform any and all acts connected with, arising from or incidental to the business to be carried on by the corporation, and to do all acts necessary and proper for the purposes of its business.

16. To the same extent and as fully as natural persons lawfully might or could do, to exercise all rights, powers and privileges and to do all and every lawful thing and to enter into, make and perform contracts of every kind, without limitation as to amount, necessary, suitable or convenient and proper for the accomplishment of any of the purposes or the performance of any of the objects hereinbefore enumerated, or incidental to any of the powers hereinbefore enumerated, or which shall at any time appear conducive to or expedient for the protection or benefit of the corporation.

17. In general to carry on any lawful business whether mercantile, manufacturing, mechanical, commercial, trading or otherwise, not forbidden by the laws of the State of Delaware, and to have and exercise all the rights, powers and privileges now or hereafter conferred upon corporations of this character by the laws of Delaware.

18. The business or purpose of the corporation is from time to time to do any one or more of the acts and things hereinabove set forth, and it shall have power to conduct and carry on its said business, or any part thereof, and to have one or more offices, and to exercise any or all of its corporate powers and rights, in the State of Delaware, and in the various other states, territories, colonies and dependencies of the United States, in the District of Columbia, and in all or any foreign countries.

19. The enumeration herein of the objects and purposes of this corporation shall be construed as powers as well as objects and purposes and shall not be deemed to exclude by inference any powers, objects or purposes which this corporation is empowered to exercise, whether expressly by force of the laws of the State of Delaware now or hereafter in effect or impliedly by the reasonable construction of the said laws.

FOURTH: The total number of shares of stock which the corporation shall have authority to issue is two million five hundred thousand (2,500,000) and the par value thereof shall be fifty cents ($.50) per share.

FIFTH: The names and place of residence of each of the incorporators is as follows:

Name	Residence
CHARLES N. CALDWELL		160 Broadway, New York 38, N. V.
HARRY B. DAVIS		160 Broadway, New York 38, N. Y.
DANIEL A. BALDO		160 Broadway, New York 38, N. Y.

SIXTH: The minimum amount of capital with which the corporation will commence business is One Thousand ($1,000) Dollars.

SEVENTH: The corporation is to have perpetual existence.

EIGHTH: The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever.

NINTH: No holder of any stock of the corporation shall be entitled as such, as a matter of right, to subscribe for or purchase shares of any class or series, whether now or hereafter authorized and whether issued for cash, property, services or otherwise, or to purchase or subscribe for securities convertible into or exchangeable for stock of the corporation or any warrants or rights or options entitling the holder thereof to subscribe for or purchase stock, except such rights of subscription or purchase, if any, at such price or prices and upon such terms and conditions as the Board of Directors, in its uncontrolled discretion, may from time to time determine.

Common Stock now or hereafter authorized may be issued or agreed to be issued from time to time for such amount or amounts of consideration not less than the par value thereof as may be fixed from time to lime by the Board of Directors. The Board of Directors in its discretion may fix different amounts and/or kinds of consideration for the issuance of Common Stock, whether issued at the same or different times; and any and all Common Stock so issued, the consideration for which, as fixed by the Board of Directors, has been paid or delivered, shall be fully paid and non-assessable.

TENTH: Each person who is, has been or hereafter becomes a director or officer of the corporation, or who is, has been or hereafter becomes a director or officer of another corporation in which this

3

corporation owns shares of capital stock or of which it is a creditor, which be served as such at the request of the corporation, and the estate of each such person, shall be indemnified against expenses actually and necessarily incurred in connection with the defense of any action, suit, or proceeding in which they, or any of them, are made parties, or a party, by reason of being or having been directors or officers or a director or officer of the corporation, or of such other corporation, except in relation to matters as to which any such director or officer or former director or officer or person shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty. The right of indemnification shall also include indemnification for the reasonable cost of a settlement made with a view to avoiding costs of litigation. The determination of the amount payable by way of indemnification shall be made either by the court in such litigation or by the vote of a majority of the entire Board of Directors but the director or directors to be indemnified shall not vote thereon. In the event that the determination of an amount payable by way of indemnity is by the Board of Directors or in any manner otherwise than pursuant to court order, the corporation shall, within eighteen months from the date or payment, mail to its stockholders of record at the time entitled to vote for the election of directors a statement specifying the persons paid, the amounts of the payments, and the final disposition of the litigation. The corporation shall have the right to intervene in and defend all such actions, suits or proceedings brought against any person or former director or officer of the corporation. Such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled, under any by-law, agreement, vote of stockholders, or otherwise.

ELEVENTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of this corporation, and for further definition, limitation and regulation of the powers of this corporation and of its directors and stockholders:

1. The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in the by-laws, but shall not be less than three. Election of directors need not be by ballot unless the by-laws so provide.

2. The Board of Directors is expressly authorized:

(a) To make, alter, amend and rescind the By-Laws of this corporation, to authorize and cause to be executed mortgages and liens upon the real and personal property of the corporation and to set apart out of any funds from the corporation available for dividends, a reserve or reserves for any proper purposes and to abolish any such reserve in the manner in which it was created.

(b) By resolution or resolutions passed by a majority of the whole Board, to designate one or more committees, each committee to consist of two or more of the directors of the corporation, which, to the extent provided in said resolution or resolutions or in the by-laws of the corporation, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be stated in the by-laws of the corporation or as may be determined from time to time by resolution adopted by the Board of Directors.

(c) When and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders’ meeting duly called for that purpose, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding, to sell, lease or exchange all of the property and assets of the corporation, including its good will and its corporate franchise, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as its Board of Directors shall deem expedient and for the best interests of the corporation.

3. Both stockholders and directors shall have power, if the by-laws so provide, to hold their meetings either within or without the State of Delaware, to have one or more offices in addition to the principal office in Delaware and to keep the books of this corporation (subject to the provisions of the statute) outside of the State of Delaware at such places as may from time to time be designated by them.

4. No contract or other transaction between this corporation and any other firm or corporation shall be affected or invalidated by the fact that any one or more of the directors of this corporation is or are interested in, or is a member, director or officer, or are members, directors or officers, of such firm or corporation, and any director or directors individually or jointly may be a party or parties to or may be interested in any contract or transaction of this corporation or in which this corporation is interested; and no contract, act or transaction of this corporation with any person or persons, firms or corporations, shall be affected or invalidated by the fact that any director or directors of this corporation is a party to or are parties to or interested in such contract, act or transaction, or in any way connected with such person or persons, firms, corporation or association, and each and every person who may become a director of this corporation is hereby relieved from any liability that might otherwise

4

exist, from contracting with this corporation for the benefit of himself or any firm, association or corporation in which he may be in any wise interested.

TWELFTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or in the application of any receiver or receivers appointed for this corporation under the provisions of Section 3883 of the Revised Code of 1915 of said State, or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 43 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.

THIRTEENTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon officers, directors and stockholders herein are granted subject to this reservation.

5

Signed and attested to on May 24, 1977

/s/ Martin Rosengarten

Martin Rosengarten, President

/s/ Howard B. Weinreich

Howard B. Weinreich, Secretary

STATE OF NEW YORK	)
	: s.s.:
COUNTY OF BRONX	)

BE IT REMEMBERED that, on May 24, 1977 before me, a Notary Public duly authorized by law to take acknowledgement of deeds, personally came Martin Rosengarten, President of Shopwell, Inc. who duly signed the foregoing instrument before me and acknowledged that such signing is his act and deed, that such instrument as executed is the act and deed of said corporation, and that the facts stated therein are true.

GIVEN under my hand on May 24, 1977.

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/05/1999

991003885 – 0452728

CERTIFICATE OF MERGER

OF

VIVIOLA LAND CORP., INC.

(a New Jersey corporation)

AND

SHOPWELL, INC.

(a Delaware corporation)

It is hereby certified that:

1. The constituent business corporations participating in the merger herein certified are:

(i) Viviola Land Corp., Inc. (“Viviola”), which is incorporated under the laws of the State of New Jersey; and

(ii) Shopwell, Inc. (“Shopwell”), which is incorporated under the laws of the State of Delaware.

2. The Agreement and Plan of Merger has been approved, adopted, certified, executed, and acknowledged by each of the aforesaid constituent corporations in accordance with the provisions of Section 252 of the Delaware General Corporation Law, and in accordance with Section 14A:10-7 of the New Jersey Business Corporation Act.

3. The name of the surviving corporation in the merger herein certified is Shopwell, which will continue its existence as said surviving corporation under its present name upon the effective date of said merger pursuant to the provisions of the Delaware General Corporation Law.

4. Upon effectiveness of the merger, Viviola shall be merged with and into Shopwell, the separate existence of Viviola shall cease and Shopwell shall continue as the surviving corporation under the name Shopwell, Inc. Shopwell shall succeed to and possess all the rights, privileges, powers and franchises and be subject to all of the debts, liabilities and duties of Viviola.

5. The current certificate of incorporation of Shopwell shall be the certificate of incorporation of the surviving corporation.

6. The executed Agreement and Plan of Merger between the constituent corporations is on file at the principal place of business of the surviving corporation, the address of which is 2 Paragon Drive, Montvale, New Jersey 07645.

7. A copy of the aforesaid Agreement and Plan of Merger will be furnished by the surviving corporation, on request, and without cost, to any stockholder of each of the constituent corporations.

8. The authorized capital stock of Viviola consists of 100 shares of Common Stock of a par value of $1.00 each.

Executed on this 28^th day of December, 1998.

SHOPWELL, INC.
By:	/s/ Michael J. Larkin
	Name: Michael J. Larkin Title: President

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/09/2003

030016528 – 0452728

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

SHOPWELL, INC.

SHOPWELL, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: SHOPWELL, INC.

TWO: That a meeting of the Board of Directors of SHOPWELL, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

By:	JOSE MOJICA
	Jose Mojica
	President

State of Delaware – Division of Corporations

DOCUMENT FILING SHEET

FAX

Priority 1 (One hr) Priority 2 (Two Hr.) Priority 3 (Same Day) Priority 4 (24 Hour) Priority 5 (Must Approval) Priority 6 (Reg. Approval) Priority 7 (Reg. Work)

DATE SUBMITTED	8-4-03
REQUESTOR NAME	INCORPORATING SERVICES, LTD.	FILE DATE     8-4-03
ADDRESS	15 E NORTH STREET	FILE TIME _____________
	DOVER, DE 19901
ATTN.	EDIE DOWNES
PHONE	678 – 0855
NAME of COMPANY/ENTITY	Shopwell, INC.
	“Please See Comments Below”

030507056	0452728	9008413
SRV NUMBER	FILE NUMBER	FILER’S NUMBER	RESERVATION NO.

TYPE OF DOCUMENT Merger                             DOCUMENT CODE                 0250

CHANGE of NAME _________________ CHANGE of AGENT/OFFICE __________ CHANGE OF STOCK ____________

CORPORATIONS			METHOD of RETURN
FRANCHISE TAX	$_____
FILING FEE TAX	$_____	_____	MESSENGER/PICKUP
RECEIVING & INDEXING	$_____	_____	FED. EXPRESS Acct.# _____
CERTIFIED COPIES NO. 1	$_____	_____	REGULAR MAIL
SPECIAL SERVICES	$_____	_____	FAX No. _____
KENT COUNTY RECORDER	$_____	_____	OTHER _____
NEW CASTLE COUNTY RECORDER	$_____
SUSSEX COUNTY RECORDER	$_____		COMMENTS/FILING INSTRUCTIONS
TOTAL	$_____		3688861 – Associated Group Grocers, Inc.
			3688864 – London Terrace Supermarket, Inc.
			3688867 – Payless Grocery Corp.
			3688868 – Shopmore, Inc.
			3688869 – Shopwell International, LTD.
			3688871 – Shopwell Realties, Inc.
			3688873 – Shopwell’s Pharmacy, Inc.
			3688874 – Shopwell’s Value Center, Inc.

CREDIT CARD CHARGES
You have my authorization to charge my credit card for this service:
	Exp. Date

Signature Printed Name

AGENT USE ONLY	INSTRUCTIONS
	1.   Fully shade in the required Priority square using a dark pencil or marker, staying within the square. 2.   Each request must be submitted as a separate item, with its own Filing sheet as the FIRST PAGE.

State of Delaware

Secretary of State

Division of Corporations

Delivered 01:15 PM 08/04/2003

FILED 01:02 PM 08/04/2003

SRV 030507056 –0452728 FILE

CERTIFICATE OF MERGER

(Under Section 252-c)

OF

ASSOCIATED GROUP GROCERS, INC.

(a New York corporation)

LONDON TERRACE SUPERMARKET, INC.

(a New York corporation)

PAY LESS GROCERY CORP.

(a New York corporation)

SHOPMORE, INC.

(a New York corporation)

SHOPWELL INTERNATIONAL, LTD.

(a New York corporation)

SHOPWELL REALTIES, INC.

(a New York corporation)

SHOPWELL’S PHARMACY, INC.

(a New York corporation)

SHOPWELL’S VALUE CENTER, INC.

(a New York corporation)

and

SHOPWELL, INC.

(a Delaware corporation)

INTO

SHOPWELL, INC.

(a Delaware corporation)

1. The name and state of each of the constituent corporations is as follows:

Name	State of Incorporation
ASSOCIATED GROUP GROCERS, INC.	(a New York corporation)
LONDON TERRACE SUPERMARKET, INC.	(a New York corporation)
PAY LESS GROCERY CORP.	(a New York corporation)
SHOPMORE, INC.	(a New York corporation)
SHOPWELL INTERNATIONAL, LTD.	(a New York corporation)
SHOPWELL REALTIES, INC.	(a New York corporation)
SHOPWELL’S PHARMACY, INC.	(a New York corporation)
SHOPWELL’S VALUE CENTER, INC.	(a New York corporation)
SHOPWELL, INC.	(a Delaware corporation)

2. An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with subsection 252-c.

3. The surviving corporation is SHOPWELL, INC., a Delaware corporation.

4. The certificate of incorporation of the surviving corporation shall be its certificate of incorporation.

5. The executed agreement of merger is on file at the principal place of business of the surviving corporation, and the address thereof is: 2 Paragon Drive, Montvale, NJ 07645

6. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.

7. The number of shares the merged New York corporations are authorized to issue are as follows

ASSOCIATED GROUP GROCERS, INC.	200	common
LONDON TERRACE SUPERMARKET, INC.	200	common
PAY LESS GROCERY CORP.	200	common
SHOPMORE, INC.	100	common
SHOPWELL INTERNATIONAL, LTD.	200	common
SHOPWELL REALTIES, INC.	20,000	common
SHOPWELL’S PHARMACY, INC.	200	common
SHOPWELL’S VALUE CENTER, INC.	200	common

IN WITNESS WHEREOF,    The corporations listed below, have caused this certificate to be signed by William P. Constantini, Senior Vice President of all this 28^th day of July, 2003.

ASSOCIATED GROUP GROCERS, INC.

LONDON TERRACE SUPERMARKET, INC.

PAY LESS GROCERY CORP.

SHOPMORE, INC.

SHOPWELL INTERNATIONAL, LTD.

SHOPWELL REALTIES, INC.

SHOPWELL’S PHARMACY, INC.

SHOPWELL’S VALUE CENTER, INC.

SHOPWELL, INC.

/s/ William P. Costantini

William P. Costantini

Senior Vice President

State of Delaware

Secretary of State

Division of Corporations

Delivered 12:40 PM 09/11/2003

FILED 12:40 PM 09/11/2003

SRV 030586327 – 0452728 FILE

CORRECTED CERTIFICATE

OF

CERTIFICATE OF MERGER

(Under Section 103F)

OF

ASSOCIATED GROUP GROCERS, INC.

(a New York corporation)

LONDON TERRACE SUPERMARKET, INC.

(a New York corporation)

PAY LESS GROCERY CORP.

(a New York corporation)

SHOPMORE, INC.

(a New York corporation)

SHOPWELL INTERNATIONAL, LTD.

(a New York corporation)

SHOPWELL REALTIES, INC.

(a New York corporation)

SHOPWELL’S PHARMACY, INC.

(a New York corporation)

SHOPWELL’S VALUE CENTER, INC.

(a New York corporation)

and

SHOPWELL, INC.

(a Delaware corporation)

INTO

SHOPWELL, INC.

(a Delaware corporation)

A. This corrected certificate of certificate of merger which corrects the merger filed on 8/04/2003 is filed in other to remove the incorrectly named company ASSOCIATED GROUP GROCERS, INC. (a New York corporation) and to insert in it’s place Freshtown, Inc. (a New York corporation)

B. The corrected certificate shall in it’s entirety read as follows:

CORRECTED CERTIFICATE

OF

CERTIFICATE OF MERGER

(Under Section 252-c)

OF

FRESHTOWN, INC.

(a New York corporation)

LONDON TERRACE SUPERMARKET, INC.

(a New York corporation)

PAY LESS GROCERY CORP.

(a New York corporation)

SHOPMORE, INC.

(a New York corporation)

SHOPWELL INTERNATIONAL, LTD.

(a New York corporation)

SHOPWELL REALTIES, INC.

(a New York corporation)

SHOPWELL’S PHARMACY, INC.

(a New York corporation)

SHOPWELL’S VALUE CENTER, INC.

(a New York corporation)

and

SHOPWELL, INC.

(a Delaware corporation)

INTO

SHOPWELL, INC.

(a Delaware corporation)

1. The name and state of each of the constituent corporations is as follows:

Name	State of Incorporation
FRESHTOWN, INC.	(a New York corporation)
LONDON TERRACE SUPERMARKET, INC.	(a New York corporation)
PAY LESS GROCERY CORP.	(a New York corporation)
SHOPMORE, INC.	(a New York corporation)
SHOPWELL INTERNATIONAL, LTD.	(a New York corporation)
SHOPWELL REALTIES, INC.	(a New York corporation)
SHOPWELL’S PHARMACY, INC.	(a New York corporation)
SHOPWELL’S VALUE CENTER, INC.	(a New York corporation)
SHOPWELL, INC.	(a Delaware corporation)

2. An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with subsection 252-c.

3. The surviving corporation is SHOPWELL, INC., a Delaware corporation.

4. The certificate of incorporation of the surviving corporation shall be its certificate of incorporation.

5. The executed agreement of merger is on file at the principal place of business of the surviving corporation, and the address thereof is: 2 Paragon Drive, Montvale, NJ 07645

6. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.

7. The number of shares the merged New York corporations arc authorized to issue are as follows

FRESHTOWN, INC.	100	common
LONDON TERRACE SUPERMARKET, INC.	200	common
PAY LESS GROCERY CORP.	200	common
SHOPMORE, INC.	100	common
SHOPWELL INTERNATIONAL, LTD.	200	common
SHOPWELL REALTIES, INC.	20,000	common
SHOPWELL’S PHARMACY, INC.	200	common
SHOPWELL’S VALUE CENTER, INC.	200	common

IN WITNESS WHEREOF,      SHOPWELL, INC., has caused this certificate to be signed by William P. Costantini, Senior Vice President this 11th day of Sept.     , 2003.

SHOPWELL, INC

/s/ William P. Costantini

William P. Costantini

Senior Vice President

State of Delaware

Secretary of State

Division of Corporations

Delivered 11:37 AM 10/23/2003

FILED 11:15 AM 10/23/2003

SRV 030680889 – 0452728 FILE

CERTIFICATE OF MERGER

(Under Section 252-c)

D.C.D. LEASING CORP.

(a New York corporation)

INTO

SHOPWELL, INC.

(a Delaware corporation)

1. The name and state of each of the constituent corporations is as follows:

Name	State of Incorporation
D.C.D. LEASING CORP.	(a New York corporation)
SHOPWELL, INC.	(a Delaware corporation)

2. An agreement of merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with subsection 252-c.

3. The surviving corporation is SHOPWELL, INC., a Delaware corporation.

4. The certificate of incorporation of the surviving corporation shall be its certificate of incorporation.

5. The executed agreement of merger is on file at the principal place of business of the surviving corporation, and the address thereof is: 2 Paragon Drive, Montvale, NJ 07645

6. A copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.

7. The number of shares the merged New York corporation is authorized to issue is 200 common shares.

IN WITNESS WHEREOF, SHOPWELL, INC., has caused this certificate to be signed by William P. Costantini, Senior Vice President this 14th day of October, 2003.

/s/ William P. Costantini

William P. Costantini

Senior Vice President

EX-99.T3A.41

Exhibit A-41

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of
the Department of State, at the City of
Albany, on December 13, 2010.

/s/ Daniel E. Shapiro

Daniel E. Shapiro
First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF INCORPORATION

OF

SPRING LANE PRODUCE CORP.

Under Section 402 of the Business Corporation Law

The undersigned, being a natural person of at least 18 years of age and acting as the incorporator of the corporation hereby being formed under the Business Corporation Law, certifies that:

FIRST: The name of the corporation is SPRING LANE PRODUCE CORP.

SECOND: The corporation is formed for the following purpose or purposes:

To engage in the business of warehousing and distributing produce and other products.

To carry on a general mercantile, industrial, investing, and trading business in all its branches; to devise, invent, manufacture, fabricate, assemble, install, service, maintain, alter, buy, sell, import, export, license as licensor or licensee, lease as lessor or lessee, distribute, job, enter into, negotiate, execute, acquire, and assign contracts in respect of, acquire, receive, grant, and assign licensing arrangements, options, franchises, and other rights in respect of, and generally deal in and with, at wholesale and retail, as principal, and as sales, business, special, or general agent, representative, broker, factor, merchant, distributor, jobber, advisor, and in any other lawful capacity, goods, wares, merchandise, commodities, and unimproved, improved, finished, processed, and other real, personal, and mixed property of any and all kinds, together with the components, resultants, and by-products thereof; to acquire by purchase or otherwise own, hold, lease, mortgage, sell, or otherwise dispose of, erect, construct, make, alter, enlarge, improve, and to aid or subscribe toward the construction, acquisition or improvement of any factories, shops, storehouses,

buildings, and commercial and retail establishments of every character, including all equipment, fixtures, machinery, implements and supplies necessary, or incidental to, or connected with, any of the purposes or business of the corporation; and generally to perform any and all acts connected therewith or arising therefrom or incidental thereto, and all acts proper or necessary for the purpose of the business.

To engage generally in the real estate business as principal, agent, broker, and in any lawful capacity, and generally to take, lease, purchase, or otherwise acquire, and to own, use, hold, sell, convey, exchange, lease, mortgage, work, clear, improve, develop, divide, and otherwise handle, manage, operate, deal in and dispose of real estate, real property, lands, multiple-dwelling structures, houses, buildings and other works and any interest or right therein; to take, lease, purchase or otherwise acquire, and to own, use, hold, sell, convey, exchange, hire, lease, pledge, mortgage, and otherwise handle, and deal in and dispose of, as principal, agent, broker, and in any lawful capacity, such personal property, chattels, chattels real, rights, easements, privileges, choses in action, notes, bonds, mortgages, and securities as may lawfully be acquired, held, or disposed of; and to acquire, purchase, sell, assign, transfer, dispose of, and generally deal in and with, as principal, agent, broker, and in any lawful capacity, mortgages and other interests in real, personal, and mixed properties; to carry on a general construction, contracting, building, and realty management business as principal, agent, representative, contractor, subcontractor, and in any other lawful capacity.

To apply for, register, obtain, purchase, lease, take licenses in respect of or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to account, grant licenses and immunities in respect of, manufacture under and to introduce, sell, assign, mortgage, pledge or otherwise dispose of, and, in any manner deal with and contract with reference to:

-2-

(a) inventions, devices, formulae, processes and any improvements and modifications thereof;

(b) letters patent, patent rights, patented processes, copyrights, designs, and similar rights, trade-marks, trade symbols and other indications of origin and ownership granted by or recognized under the laws of the United States of America or of any state or subdivision thereof, or of any foreign country or subdivision thereof, and all rights connected therewith or appertaining thereunto;

(c) franchises, licenses, grants and concessions.

To have, in furtherance of the corporate purposes, all of the powers conferred upon corporations organized under the Business Corporation Law subject to any limitations thereof contained in this certificate of incorporation or in the laws of the State of New York.

THIRD: The office of the corporation is to be located in the City of New York, County of Bronx, State of New York.

FOURTH: The aggregate number of shares which the corporation shall have authority to issue is one hundred, all of which are without par value, and all of which are of the same class.

FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against the corporation may be served. The post office address within the State of New York to which the Secretary of State shall mail a copy of any process against the corporation served upon him is: 1 Dag Hammarskjold Plaza, c/o Bartel, Engelman & Fishman, Esqs., Attention: Kenneth Gordon, Esq., New York, New York 10017.

SIXTH: The duration of the corporation is to be perpetual.

SEVENTH: Any action required or permitted to be taken by the Board of Directors of the corporation or of any

-3-

committee thereof may be taken without a meeting if all members of the Board of Directors or of any committee thereof consent in writing to the adoption of a resolution authorizing the action.

Any one or more members of the Board of Directors of the corporation or of any committee thereof may participate in a meeting of said Board or of any such committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time.

EIGHTH: No holder of any of the shares of any class of the corporation shall be entitled as of right to subscribe for, purchase, or otherwise acquire any shares of any class of the corporation which the corporation proposes to issue or any rights or options which the corporation proposes to grant for the purchase of shares of any class of the corporation or for the purchase of any shares, bonds, securities, or obligations of the corporation which are convertible into or exchangeable for, or which carry any rights, to subscribe for, purchase, or otherwise acquire shares of any class of the corporation; and any and all of such shares, bonds, securities or obligations of the corporation, whether now or hereafter authorized or created, may be issued, or may be reissued or transferred if the same have been reacquired and have treasury status, and any and all of such rights and options may be granted by the Board of Directors to such persons, firms, corporations and associations, and for such lawful consideration, and on such terms, as the Board of Directors in its discretion may determine, without first offering the same, or any thereof, to any said holder. Without limiting the generality of the foregoing stated denial of any and all preemptive rights, no holder of shares of any class of the corporation shall have any preemptive rights in respect of the matters, proceedings, or transaction specified in subparagraphs (1) to (6), inclusive, of paragraph (e) of Section 622 of the Business Corporation Law.

NINTH: Except as may otherwise be specifically provided in this certificate of incorporation, no provision of this certificate of incorporation is intended by the corporation to be construed as limiting, prohibiting, denying, or abrogating any of the general or specific powers or rights conferred under the Business Corporation Law upon the corporation, upon its shareholders, bondholders, and security holders, and upon its directors, officers, and other corpo-

-4-

rate personnel, including, in particular, the power of the corporation to furnish indemnification to directors and officers in the capacities defined and prescribed by the Business Corporation Law and the defined and prescribed rights of said persons to indemnification as the same are conferred by the Business Corporation Law.

TENTH: The accounting period which the corporation intends to establish as its first calendar or fiscal year for reporting the Franchise Tax on business corporations imposed by Article 9-A of the Tax Law of the State of New York is as follows: the period ending December 31, 1975.

Subscribed and affirmed by me as true under the penalties of perjury on December 10, 1975.

Frances A. Wrigley, Incorporator

521 Fifth Avenue

New York, New York 10017

-5-

CERTIFICATE OF INCORPORATION

OF

SPRING LANE PRODUCE CORP.

Under Section 402 of the Business Corporation Law

Bartel, Engelman & Fishman, Esqs. 1 Dag Hammarskjold Plaza New York, New York 10017  

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.     Daniel E. Shapiro First Deputy Secretary of State

Rev. 06/07

CERTIFICATE OF CHANGE

OF THE

CERTIFICATE OF INCORPORATION

OF

Spring Lane Produce Corp.

(Under Section 805A of the Business Corporation Law)

The undersigned, pursuant to the provisions of Section 805 (a) of the Business Corporation Law of the State of New York, hereby amends the Certificate of Incorporation of Spring Lane Produce Corp., a New York corporation (the “Corporation”), and certifies that:

FIRST: The name of the Corporation is Spring Lane Produce Corp.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York on December 15, 1975.

THIRD: The Certificate of Incorporation is hereby amended pursuant to Section 805 (a) of the Business Corporation Law, to effect a change of the post office address to which the Secretary of State shall mail a copy of process against the Corporation served upon him.

FOURTH: The paragraph in the Certificate of Incorporation of the Corporation which refers to the designation

of agent for service of process is hereby amended to read as follows:

“The Secretary of State is designated as the agent of the Corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of each process against it served upon him is in care of Kenneth Gordon, Esq., Tenzer, Greenblatt, Fallon & Kaplan, 405 Lexington Avenue, New York, New York 10174.”

FIFTH: The change of the Certificate of Incorporation was authorized by the unanimous written consent of the Board of Directors of the Corporation.

IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 21^st day of May, 1981.

President - Ira Waldbaum

Secretary - Aaron Malinsky

-2-

CERTIFICATE OF CHANGE OF THE CERTIFICATE OF INCORPORATION OF SPRING LANE PRODUCE CORP.
TENZER, GREENBLATT, FALLON & KAPLAN COUNSELLORS AT LAW THE CHRYSLER BUILDING 405 LEXINGTON AVENVUE NEW YORK, N.Y. 10174

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

	WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.
	Daniel E. Shapiro First Deputy Secretary of State

Rev. 06/07

Certificate of Change

of

Certificate of Incorporation

of

SPRING LANE PRODUCE CORP.

Pursuant to Section 805-A of the Business Corporation Law

IT IS HEREBY CERTIFIED:

FlRST: The name of the corporation is SPRING LANE PRODUCE CORP.

SECOND: The Certificate of Incorporation was filed by the Department of State of the State of New York on 12/15/1975,

THIRD: The change to the Certificate of Incorporation effected by this Certificate of Change is as follows:

To change the Paragraph which sets forth, the service of process address of the Corporation. The Paragraph shall read as follows:

“FIFTH: The Secretary of State of the State of New York is hereby designated as agent of the Corporation upon whom process against the Corporation may be served. The post office address to which the Secretary of State shall mail a copy of any process served upon him is c/o BlumbergExcelsior Corporate Services, inc., 62 White Street, NY, NY 10013

IN WITNESS WHEREOF, the undersigned Vice President has executed this Certificate of Change this 26^th day of November, 2003.

SPRING LANE PRODUCE CORP.

Jose Mojica

Jose Mojica. VICE PRESIDENT

Certificate of Change

of

Certificate of Incorporation

of

SPRING LANE PRODUCE CORP.

Pursuant to Section 805-A of the Business Corporation Law

Filed By:

BLUMBERGEXCELSIOR CORPORATE SERVICES, INC.

62 WHITE ST.

NEW YORK, NY 10013

STATE OF NEW YORK

DEPARTMENT OF STATE

I hereby certify that the annexed copy has been compared with the original document in the custody of the Secretary of State and that the same is a true copy of said original.

	WITNESS my hand and official seal of the Department of State, at the City of Albany, on December 13, 2010.
	Daniel E. Shapiro First Deputy Secretary of State

Rev. 06/07

NYS Department of State

Division of Corporations, Records and UCC

Albany, NY 12231-0002

www.dos.state.ny.us

Business Corporation

Biennial Statement

386644

Business Name:

SPRING LANE PRODUCE CORP.

SPRING LANE PRODUCE CORP.

ATTN: TAX DEPARTMENT

2 PARAGON DRIVE

MONTVALE NJ 07645

386644

For Internal Use Only

AR 10011500

Filed By: 2539

Cash # (If different than [Illegible] #):

Required Fee: $9.00

Filing Period: 12/2009

(Make checks payable to the Department of State)

The Business Corporation Law requires corporations to update information with the Department of State every two years in the calendar month in which the corporation was formed or authorized. Farm Corporations are EXEMPT from this requirement and should complete Parts 4 and 5 ONLY. Please review the information in Parts 1, 2 and 3. Update the information in the space provided, if necessary. If no changes are necessary, proceed to Part 5. A corporation which fails to timely file its Biennial Statement shall be shown to be past due on the Department of State’s records.

Part 1: Name and Business Address of Chief Executive Officer

2 PARAGON DR MONTVALE NJ 07645	Name Dave Kelly
	Address 2 Paragon Dr
	City	State	Zip
	Montvale	NJ	07645
Part 2: Street Address of the Principal Executive Office (a Post Office Box cannot be substitued)
SPRING LANE PRODUCE CORP. ATTN: TAX DEPARTMENT 2 PARAGON DRIVE MONTVALE NJ 07645	Address Line 1
	Address Line 2
	City State Zip

Part 3: Address for Service of Process

C/O BLUMBERGEXCELSIOR CORPORATE SERVICES, INC. 62 WHITE ST	Name
	Address
NEW YORK NY 10013
	City	State	Zip

Part 4: Farm Corporation Exemption

Check if applicable This corporation is a farm corporation and is NOT required to update information with the Department of State every two years. A farm corporation is a corporation engaged in the production of crops, livestock and livestock products on land used in agricultural production. Farm corporations should complete Parts 4 and 5 ONLY and return the form to the Department of State. No filing fee is required for farm corporations.

Part 5: Signature of Officer, Director, Attorney-in-Fact or Authorized Person

	Michael Galtieri
Signature	Name of Signer (Please Print)
Vice President
Title of Signer (Please Print)

EX-99.T3A.42

Exhibit A-42

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “SUPER FRESH FOOD MARKETS, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF MAY, A.D. 1982, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “THE QUALITY FOOD COMPANY, INC.” TO “SUPER FRESH FOOD MARKETS, INC.”, FILED THE TWENTY-EIGHTH DAY OF MAY, A.D. 1982, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “SUPER FRESH FOOD MARKETS, INC.”.

CERTIFICATE OF INCORPORATION   OF   THE QUALITY FOOD COMPANY, INC.   ********

THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows:

FIRST: The name of the Corporation is

THE QUALITY FOOD COMPANY, INC.

SECOND: The registered office of the Corporation is to be located at 306 South State Street, in the City of Dover, in the County of Kent, in the State of Delaware. The name of its registered agent at that address is the United States Corporation Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.

FOURTH: The total number of shares of stock which the Corporation is authorized to issue is One Thousand (1,000) with par value of One Dollar ($1.00).

FIFTH: The name and address of the Incorporator are as follows:

NAME	ADDRESS
Diane Princi	70 Pine Street, New York, N.Y. 10270

SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

(1) The number of directors of the Corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws. Election of directors need not be by ballot unless the by-laws so provide.

(2) The Board of Directors shall have power without the assent or vote of the stockholders to make, alter, amend, change, add to or repeal the by-laws of the Corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.

(3) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract,

-2-

and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and a binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.

(4) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.

SEVENTH: The Corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.

EIGHTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any

-3-

class of them, and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation .

-4-

NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.

IN WITNESS WHEREOF, I have hereunto set my hand and seal.

	(L.S.)
Diane Princi

-5-

CERTIFICATE OF AMENDMENT Of CERTIFICATE OF INCORPORATION Of   THE QUALITY FOOD COMPANY, INC.

Adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

The undersigned, being the holder of record of all outstanding shares of the stock of The Quality Food Company, Inc., a corporation existing under the laws of the State of Delaware, does hereby certify as follows:

1) That the certificate of said corporation has been amended as follows:

By striking out the whole of article “FIRST” thereof as it now exists and inserting in lieu and instead thereof a new article “FIRST” reading as follows:

“FIRST: The name of the corporation is SUPER FRESH FOOD MARKETS, INC.”

2) That such amendment has been duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware by unanimous written consent of all of the stockholders entitled to vote in accordance with the provisions of Section 228 of the General Corporate Law of the State of Delaware.

IN WITNESS WHEREOF we have signed this certificate this 24th day of May, 1982.

ATTEST:	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., sole stockholder
	By
Secretary	Senior Vice President

0692C

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

SUPER FRESH FOOD MARKETS, INC.

SUPER FRESH FOOD MARKETS, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: SUPER FRESH FOOD MARKETS, INC.

TWO: That a meeting of the Board of Directors of SUPER FRESH FOOD MARKETS, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington. DE 19808 and its registered agent at such address is; United States Corporation Company.

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

By:	JOSE MOJICA
	Jose Mojica President

EX-99.T3A.43

Exhibit A-43

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “SUPER FRESH/SAV-A-CENTER, INC.” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FOURTH DAY OF APRIL, A.D. 1985, AT 9 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM “SAV-A-CENTER INC.” TO “SUPER FRESH/SAV-A-CENTER, INC.”, FILED THE TWENTY-FIRST DAY OF DECEMBER, A.D. 1989, AT 9 O’CLOCK A.M.

CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE NINTH DAY OF JANUARY, A.D. 2003, AT 9 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “SUPER FRESH/SAV-A-CENTER, INC.”.

CERTIFICATE OF INCORPORATION   OF   SAV-A-CENTER INC.   * * * * * * * * * *

THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation. Law of the State of Delaware, does hereby certify as follows:

FIRST: The name of the Corporation is

SAV-A-CENTER INC.

SECOND: The registered office of the Corporation is to be located at 306 South State Street, in the City of Dover, in the County of Kent, in the State of Delaware. The name of its registered agent at that address is the United States Corporation Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware.

FOURTH: The total number of shares of stock which the Corporation is authorized to issue is One Thousand (1,000) all of which are classified as Common Stock with a par value of One Dollar ($1.00).

FIFTH: The name and address of the Incorporator are as follows:

NAME	ADDRESS
Dennis E. Howarth	70 Pine Street, New York, N.Y. 10270

SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

(1) The number of directors of the Corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws. Election of directors need not be by ballot unless the by-laws so provide.

(2) The Board of Directors shall have power without the assent or vote of the stockholders to make, alter, amend, change, add to or repeal the by-laws of the Corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends.

(3) The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders

-2-

called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interest, or for any other reason.

(4) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.

SEVENTH: The Corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.

-3-

EIGHTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them, and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholder or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation.

-4-

NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.

IN WITNESS WHEREOF, I have hereunto set my hand and seal.

	(L.S.)
Dennis E. Howarth

-5-

	DATE SUBMITTED 12-19-89
FILED BY:	THE PRENTICE-HALL CORPORATION	FILE DATE Dec. 21, 1989
	SYSTEM, INC. JERI	TIME 9am
	Job #007-90-50050/Sandi	FILER’S NO. 9000012
NAME OF COMPANY	SAV-A-CENTER, INC.
RESERVATION #
TYPE OF DOCUMENT	CERT OF AMENDMENT	FILE NUMBER 20602-87
CHANGES NAME	TO: SUPER FRESH/SAV-A-CENTER, INC.	SECTION NO. 0242N
CHANGES AGENT/OFFICE
STOCK $
TO $
	FRANCHISE TAX	$
	Filing Fee Tax	$15.
	Receiving and Indexing	$25.
	No. 2 Certified Copies	$20.
	No. Pages (If Prepared by the Division of Corp.)	$
OTHER		$
OTHER		$
	SPECIAL SERVICES	$
	SPECIAL SERVICES	$
	TOTAL	$
24-HOUR		DO NOT USE
	SECRETARY OF STATE

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SAV-A-CENTER, INC.

Adopted in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware.

It is hereby certified that:

1) The name of the corporation (hereinafter called the “corporation” has been SAV-A-CENTER, INC. and that the certificate of said corporation has been amended as follows:

By striking out the whole of article “FIRST” thereof as it now exists and inserting in lieu and instead thereof a new article “FIRST” reading as follows:

“FIRST: The name of the corporation is SUPER FRESH/SAV-A-CENTER, INC.”

2) That such amendment has been duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware in accordance with the provisions of Sections 228 and 242 of the General Corporate Law of the State of Delaware.

IN WITNESS WHEREOF, we have signed this certificate this 18th day of December, 1989.

ATTEST:	SAV-A-CENTER, INC.
	By:
Robert G. Ulrich		Fred Corrado
Secretary		Vice President and Treasurer

DISK 40

SAVACER2

CERTIFICATE OF CHANGE

OF

REGISTERED OFFICE/AGENT

OF

SUPER FRESH/SAV-A-CENTER, INC.

SUPER FRESH/SAV-A-CENTER, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:

FIRST: The name of the corporation is: SUPER FRESH/SAV-A-CENTER, INC.

TWO: That a meeting of the Board of Directors of SUPER FRESH/SAV-A-CENTER, INC., said change was duly adopted in accordance with the provisions of Sections 133 and 102 of the General Corporation Law of the State of Delaware, resolutions were duly adopted setting forth a proposed change of the Certificate of Incorporation of said corporation, declaring said change to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed change is as follows:

RESOLVED, that the Certificate of Incorporation of this corporation be change by changing the present registered agent/office by changing article TWO as follows:

From

TWO: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Ste 400, Wilmington, DE 19808 and its registered agent at such address is: United States Corporation Company.

To

TWO: Its registered office in the State of Delaware is to be located at: 15 East North Street, in the City of Dover, County of Kent, DE 19901 and its registered agent at such address is: XL CORPORATE SERVICES, INC.

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed by Jose Mojica its President 18^th day of December, 2002

	JOSE MOJICA
By:	Jose Mojica
	President

EX-99.T3A.44

Exhibit A-44

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF STATE

DECEMBER 13, 2010

TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:

SUPER MARKET SERVICE CORP.

I, Basil L Merenda, Secretary of the Commonwealth of Pennsylvania do hereby certify that the foregoing and annexed is a true and correct copy of

1 ARTICLES OF INCORPORATION filed on January 3, 1958

2 CHANGE OF REGISTERED OFFICE – Domestic filed on January 13, 2003

which appear of record in this department.

Certification#: 9167974-1 Page 1 of 5

3-1-58.02

966

DSCB-1 Rev. 8-57

Articles of Incorporation

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF STATE

CORPORATION BUREAU

In compliance with the requirements of the Business Corporation Law, approved the 5th day of May, A. D. 1933, P. L. 364, as amended, the undersigned, desiring that they may be incorporated as a business corporation, do hereby certify:

1. The name of the corporation is: Super Market Service Corp.

2. The location and post office address of its initial registered office in this Commonwealth is:

321	Penn Avenue	Scrainon	Lackawanna
Number	Street	City	County

3. The purpose or purposes of the corporation are:*

To manufacture, buy, sell and deal in toys, beauty aids, house wares and any other property of any nature whatsoever, and to buy, sell, own and lease as lessor or lessee and otherwise acquire and hold real, personal and mixed property of any and every kind whatsoever, and to do and perform all things necessary and incidental to accomplish the aforementioned purposes.

4. The term of its existence is: perpetual

5. The aggregate number of shares which the corporation shall have authority to issue is:** One Thousand Five Hundred (1,500) shares having a par value of One Hundred ($100.00) Dollars per share all of the same class.

*Note: Do not recite Powers set forth in Section 302 of the Act.

**Note: There should be set forth the number and par value of all shares having par value, the number of shares without par value, and the stated capital applicable thereto. If the shares are to be divided into classes, a description of each class and a statement of the preferences, qualifications, limitations, restrictions, and the special or relative rights granted to, or imposed upon, the shares of each class.

FILING FEE - $30.00

Certification#: 9167974-1 Page 1 of 5

Certification#: 9167974-1 Page 2 of 5

3-1-58.02 967

6. The names and addresses of each of the first directors are:

NAME ADDRESS

(Including street and number, if any)

Arthur L. Abrams 1200 Pine Street Scranton, Pennsylvania

Alvin H. Greenwald 523 Clay Avenue Scranton, Pennsylvania

Ruth Abrams 1200 Pine Street Scranton, Pennsylvania

7. The names and addresses of each of the incorporators and the number and class of shares subscribed by each are:

NAME ADDRESS [ILLEGIBLE] AND CLASS OF SHARES

(Including street and number, if any)

Arthur L. Abrams 1200 Pine St., Scranton, Pa. Ten (10)

Alvin H. Greenwald 523 Clay Ave., Scranton, Pa. One (1)

Ruth Abrams 1200 Pine St., Scranton, Pa. One (1)

Commonwealth of Pennsylvania [ILLEGIBLE]

County of Lackawanna

Before me a Notary Public in and for the county aforesaid, personally came the above named, Arthur L. Abrams and Alvin H. Greenwald

Who, in due form of law, acknowledged the foregoing instrument to be their act and deed for the purposes therein specified.

Sworn to before me this 2nd

day of January A.D. 1958

By commission expires:

Approved and filed in the Department or State on the 3rd day of January A.D. 1958.

Secretary of the Commonwealth

Note: [ILLEGIBLE] shall be signed [ILLEGIBLE] the incorporators and acknowledged by at least [ILLEGIBLE] of them.

9167974-1 Page 2 of 5

Certification#: 9167974-1 Page 3 of 5

DSCB-20 (REV. 1-58)

3-1-58.02 968

To All To Whom These Presents Shall Come, Greeting:

Whereas, Under the provisions of the Business Corporation Law, approved the 5th day of May, Anno Domini, one thousand nine hundred and thirty-three, P. L. 364 as amended, the Department of State is authorized and required to issue a

CERTIFICATE of INCORPORATION

evidencing the incorporation of a business corporation organized under the terms of that law.

And Whereas, The stipulations and conditions of that law have been fully complied with by the persons desiring to incorporate as

SUPER MARKET SERVICE CORP.

Therefore, Know De, That subject to the Constitution of this Commonwealth and under the authority of the Business Corporation Law, I do by these presents, which I have caused to be sealed with the Great Seal of the Commonwealth, create, erect, and incorporate the incorporators of and the subscribers to the shares of the proposed corporation named above, their associates and successors, and also those who may thereafter become subscribers or holders of the shares of such corporation, into a body politic and corporate in deed and in law by the name chosen and hereinbefore specified, which shall exist perpetually and shall be invested with, and have and enjoy all the powers, privileges, and franchises incident to a business corporation and be subject to all the duties, requirements, and restrictions specified and enjoined in and by the Business Corporation Law and all other applicable laws of this Commonwealth.

Given under my Hand and the Great Seal of the Commonwealth, at the City of Harrisburg, this 3rd day of January in the year of our Lord one thousand nine hundred and fifty-eight and of the Commonwealth the one hundred and eighty-second

Secretary of the Commonwealth

Certification#: 9167974-1 Page 3 of 5

Certification#: 9167974-1 Page 4 of 5

2003003-305

PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU

Statement of Change of Registered Office (15 Pa C.S.)

[Illegible] Domestic Business Corporation ($1507)

Foreign Business Corporation ($4144)

Domestic Nonprofit Corporation ($5507)

Foreign Nonprofit Corporation ($6144)

Domestic Limited Partnership ($8506)

Name			Document will be returned to the name and address you enter to the left.
JOSE MOJICA
Address
62 WHITE STREET
City	State	Zip Code
NY NY-10013

Fee $52

Filed in the Department of State on

Secretary of the Commonwealth

In compliance with requirements of the applicable provisions of 15 Pa C.S. (relating to corporations and unincorporated associations), the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that:

1 The name is

SUPER MARKET SERVICE CORP.

2 The (a) address of its initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is:

Number and street City State Zip County

(b) Name of Commercial Registered Office Provider                                                                                       Country

UNITED STATES CORPORATION COMPANY

3. Complete part [Illegible]

(a) The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is

800 NORTH SECOND ST., STE 100, HARRISBURG, PA 17102

Number and street City State Zip County

(b) The registered office of the corporation or limited partnership shall be provided by:

Name of Commercial Registered Office Provider County

Certification#: 9167974-1 Page 4 of 5

Certification#: 9167974-1 Page 5 of 5

EX-99.T3A.45

Exhibit A-45

I, Glenn C. Kenton, Secretary of State of the State of Delaware, do hereby certify that the attached is a true and correct copy of Certificate of                     Incorporation                      filed in this office on             September 23, 1982            .

CERTIFICATE OF INCORPORATION   OF   SUPER PLUS FOOD WAREHOUSE, INC.

I, THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, do hereby certify as follows:

FIRST: The name of the corporation is

SUPER PLUS FOOD WAREHOUSE, INC.

SECOND: Its registered office is to be located at 306 South State Street, in the City of Dover, in the County of Kent, in the State of Delaware. The name of its registered agent at that address is the United States Corporation Company.

THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

FOURTH: The total number of shares of stock which the corporation is authorized to issue is one thousand (1,000) shares of the par value of ten dollars ($10.00) each.

FIFTH: The name and address of the single incorporator are

Catherine McNealy 70 Pine Street, New York, N.Y. 10270

SIXTH: The By-Laws of the corporation may be made, altered, amended, changed, added to or repealed by the Board of Directors without the assent or vote of the stockholders. Elections of directors need not be by ballot unless the By-Laws so provide.

SEVENTH: The corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.

EIGHTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.

IN WITNESS WHEREOF, I have hereunto set my hand and seal, the 22nd day of September, 1982.

In the presence of:

            E. PELLECCHIA                

            CATHERINE McNEALY                (L.S.)

            Catherine McNealy                                

EX-99.T3A.46

Exhibit A-46

STATE OF NEW JERSEY

DEPARTMENT OF TREASURY

SHORT FORM STANDING

SUPERMARKETS OIL COMPANY, INC.

8719823000

I, the Treasurer of the State of New Jersey, do hereby certify that the above-named New Jersey Domestic Profit Corporation was registered by this office on March 12, 1963.

As of the date of this certificate, said business continues as an active business in good standing in the State of New Jersey, and its Annual Reports are current.

I further certify that the registered agent and registered office are:

XI Corporation Service Inc

691 State Highway 33

Trenton, NJ 08619

	CERTIFICATE OF INCORPORATION OF SUPERMARKETS OIL COMPANY, INC.

This is to certify that we, the undersigned, do hereby associate ourselves into a corporation under and by virtue of Title 14 of the revised Statutes of New Jersey, 1937, and the several supplements thereto and acts amendatory thereof, and do severally agree to take the number of shares of capital stock set opposite our respective names.

1. The name of the corporation is SUPERMARKETS OIL COMPANY, INC.

2. The location of the principal office in this state is 1416 Morris Avenue, Union, New Jersey.

3. The name of the agent therein and in charge thereof upon whom process against this corporation may be served is MILTON PERLMUTTER.

4. The objects for which this corporation is formed are:

A. To engage in the business of operating

gasoline service stations and retail stores to sell gasoline, petroleum and related products and any and all items normally sold in gasoline service stations, hardware stores, supermarket stores, garden supply stores, and auto supply stores, and to engage in the business of selling at retail and wholesale any and all gasoline and petroleum products incidental and related thereto and to maintain and conduct food markets and supermarkets and to establish and conduct general stores, shops and offices for the transaction of every kind of mercantile business and in connection therewith, but without limiting the generality thereof:

(1) To grow, produce, manufacture, process, refine, pack, freeze, bottle, can or other-wise prepare for sale, at wholesale and retail and to deal in gasoline, food, petroleum, food products, toys, cosmetics, drugs, hardware, cigarettes. alcoholic beverages, magazines and related products of any and every description.

(2) To purchase, receive on consignment, to sell or to barter commodities and goods of every nature and description.

-2-

(3) TO ERECT, CONSTRUCT, OCCUPY, LEASE, BUY, SELL AND OPERATE STORES, DEPARTMENTS, CONCESSIONS, PUBLIC AND PRIVATE WAREHOUSES AND DISTRIBUTION FACILITIES OF ALL KINDS IN CONNECTION WITH THE FOREGOING PURPOSES.

(4) TO OWN, TO LEASE, AND TO DEAL IN PROPERTY OF ALL KINDS, BOTH REAL AND PERSONAL, TANGIBLE AND INTANGIBLE.

(5) TO DO EVERYTHING NECESSARY, PROPER, ADVISABLE OR CONVENIENT FOR THE ACCOMPLISHMENT OF THE PURPOSES HEREINABOVE SET FORTH AND TO DO ALL OTHER THINGS INCIDENTAL THERETO OR CONNECTED THEREWITH WHICH ARE NOT FORBIDDEN BY TITLE 14 OF THE REVISED STATUTES OF NEW JERSEY, OTHER LAW, OR BY THIS CERTIFICATE OF INCORPORATION.

(6) TO CARRY OUT THE PURPOSES AND POWERS HEREIN SET FORTH IN ANY STATE, TERRITORY, DISTRICT OR POSSESSION OF THE UNITED STATES OR ANY FOREIGN COUNTRY TO THE EXTENT THAT SUCH PURPOSES ARE NOT FORBIDDEN BY THE LAW OF SUCH PLACES; AND, IN THE CASE OF ANY SUCH PLACE IN WHICH ONE OR MORE OF SUCH PURPOSES ARE FORBIDDEN BY LAW, TO LIMIT THE PURPOSE OR PURPOSES WHICH THE CORPORATION PROPOSES TO CARRY OUT IN SUCH PLACE TO SUCH PURPOSE OR PURPOSES AS ARE NOT FORBIDDEN BY THE LAW THEREOF IN ANY CERTIFICATE OR APPLICATION TO DO BUSINESS IN SUCH PLACE.

B. SUBJECT TO ANY SPECIFIC WRITTEN LIMITATIONS OR RESTRICTIONS IMPOSED BY LAW AND IN FURTHERANCE OF THE OBJECTS AND PURPOSES SET FORTH HEREINABOVE, THE CORPORATION SHALL HAVE AND EXERCISE THE FOLLOWING SPECIFIC POWERS:

(1) TO HAVE THE CAPACITY TO ACT POSSESSED BY NATURAL PERSONS.

(2) TO ELECT OR APPOINT OFFICERS AND AGENTS AND DEFINE THEIR DUTIES AND FIX THEIR COMPENSATION.

(3) TO ACT IN THE STATE OF NEW JERSEY AND IN ANY STATE,

-2-

TERRITORY, DISTRICT OR POSSESSION OF THE UNITED STATES OR IN ANY FOREIGN COUNTRY IN THE CAPACITY OF, OR REPRESENTATIVE FOR, ANY INDIVIDUAL, ASSOCIATION, CORPORATION OR OTHER LEGAL ENTITY RESPECTING ANY BUSINESS, THE PURPOSES OF WHICH ARE SIMILAR TO THE PURPOSES SET FORTH IN PARAGRAPH A HEREOF.

(4) TO ACQUIRE, (BY PURCHASE, EXCHANGE, LEASE, HIRE OR OTHERWISE), HOLD, OWN, IMPROVE, MANAGE, OPERATE, LET AS LESSOR, SELL, CONVEY OR MORTGAGE, EITHER ALONE OR IN CONJUNCTION WITH OTHERS, REAL ESTATE OF EVERY KIND, CHARACTER AND DESCRIPTION WHATSOEVER AND WHERESOEVER SITUATED AND HAVE ANY INTEREST THEREIN.

(5) TO ACQUIRE, (BY PURCHASE, EXCHANGE, LEASE, HIRE OR OTHERWISE), HOLD, OWN, MANAGE OPERATE, MORTGAGE, PLEDGE, HYPOTHECATE, EXCHANGE, SELL, DEAL IN, AND DISPOSE OF, EITHER ALONE OR IN CONJUNCTION WITH OTHERS, PERSONAL PROPERTY AND COMMODITIES OF EVERY KIND, CHARACTER AND DESCRIPTION WHATSOEVER AND WHERESOEVER SITUATED AND ANY INTEREST THEREIN.

(6) TO PURCHASE, TAKE, RECEIVE, SUBSCRIBE FOR, OR OTHERWISE ACQUIRE, OWN HOLD, VOTE, USE, EMPLOY, SELL, MORTGAGE, LEND, PLEDGE, OR OTHERWISE DISPOSE OF AND OTHERWISE USE AND DEAL IN AND WITH SHARES OR OTHER INTERESTS IN OR OBLIGATIONS OF, OTHER DOMESTIC OR FOREIGN CORPORATIONS, ASSOCIATIONS, PARTNERSHIPS, OR INDIVIDUALS, OR DIRECT OR INDIRECT OBLIGATIONS OF THE UNITED STATES OR ANY GOVERNMENT, STATE, TERRITORY, GOVERNMENTAL DISTRICT OR MUNICIPALITY, OR ANY INSTRUMENTALITY THEREOF.

(7) TO PURCHASE, TAKE, RECEIVE, OR OTHERWISE ACQUIRE, HOLD, OWN, PLEDGE, TRANSFER, SELL OR OTHERWISE DISPOSE OF, THE SHARES OF THE CORPORATION.

(8) TO ACQUIRE, (BY APPLICATION, ASSIGNMENT, PURCHASE, EXCHANGE, LEASE, HIRE OR OTHERWISE), HOLD, OWN, USE, LICENSE, LEASE, SELL, CONVEY OR MORTGAGE, EITHER ALONE OR IN CONJUNCTION WITH OTHERS, THE ABSOLUTE OR ANY PARTIAL OR QUALIFIED INTEREST IN AND TO CHARTER, FRANCHISE, LICENSES, PERMITS, WHETHER INDETERMINATE OR OTHERWISE, CERTIFICATES OF

-3-

CONVENIENCE AND NECESSITY, CERTIFICATES OF AUTHORITY, MEMBERSHIPS, SEATS ON COMMODITY AND OTHER EXCHANGES AND OTHER AUTHORIZATION INCLUDING BUT NOT LIMITING THE GENERALITY THEREOF, AUTHORIZATION AND LICENSES TO CONDUCT PUBLIC WAREHOUSES FOR COMMODITIES OR OTHER PERSONAL PROPERTY OF ALL KINDS.

(9) TO ACQUIRE, (BY APPLICATION, ASSIGNMENT, PURCHASE, EXCHANGE, LEASE, HIRE OR OTHERWISE), HOLD, OWN, USE, LICENSE, LEASE AND SELL, EITHER ALONE OR IN CONJUNCTION WITH OTHERS, THE ABSOLUTE OR ANY PARTIAL OR QUALIFIED INTEREST IN AND TO INVENTIONS, IMPROVEMENTS, LETTERS PATENT AND APPLICATIONS THEREFOR, LICENSES, FORMULAS, PRIVILEGES, PROCESSES, COPYRIGHTS AND APPLICATIONS THEREFOR, TRADE MARKS AND APPLICATIONS THEREFOR, AND TRADE NAMES AND APPLICATIONS THEREFOR.

(10) TO ACQUIRE, (BY PURCHASE, EXCHANGE, LEASE, HIRE OR OTHERWISE) HOLD, OWN, USE, ASSIGN, LEASE, SELL, CONVEY OR MORTGAGE, EITHER ALONE OR (IN CONJUNCTION WITH OTHERS, THE RIGHTS, PROPERTY AND BUSINESS OF ANY PERSONS ENTITY, PARTNERSHIP, ASSOCIATION OR CORPORATION HERETOFORE OR HEREAFTER ENGAGED IN ANY BUSINESS, THE PURPOSE OF WHICH IS SIMILAR TO THE PURPOSES SET FORTH IN PARAGRAPH A HEREOF.

(11) TO ENTER INTO ANY LAWFUL ARRANGEMENTS FOR SHARING PROFITS, UNION OF INTEREST, RECIPROCAL ASSOCIATIONS OR COOPERATIVE ASSOCIATIONS WITH ANY CORPORATION, ASSOCIATION, PARTNERSHIP, INDIVIDUAL OR OTHER LEGAL ENTITY FOR THE CARRYING ON OF ANY BUSINESS, THE PURPOSE OF WHICH IS SIMILAR TO THE PURPOSES SET FORTH IN PARAGRAPH A HEREOF AND TO ENTER INTO ANY GENERAL OR LIMITED PARTNERSHIP, THE PURPOSE OF WHICH IS SIMILAR TO SUCH PURPOSES.

(12) TO ENTER INTO, MAKE, PERFORM AND CARRY OUT OR CANCEL AND RESCIND CONTRACTS FOR ANY LAWFUL PURPOSE PERTAINING TO ITS BUSINESS.

(13) TO MAKE ANY GUARANTEE RESPECTING STOCKS, DIVIDENDS, SECURITIES, INDEBTEDNESS, INTEREST, CONTRACTS, OR OTHER OBLIGATIONS CREATED BY ANY INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION OR OTHER ENTITY.

-4-

(14) TO BORROW OR RAISE MONIES FOR ANY OF THE PURPOSES OF THE CORPORATION SET FORTH IN PARAGRAPH A HEREOF AND FROM TIME TO TIME WITHOUT LIMIT AS TO AMOUNT; TO EXECUTE, ACCEPT, ENDORSE AND DELIVER AS EVIDENCE OF SUCH BORROWING, ALL KINDS OF SECURITIES, INCLUDING BUT WITHOUT LIMITING THE GENERALITY THEREOF, PROMISSORY NOTES, DRAFTS, BILLS OF EXCHANGE, WARRANTS, BONDS, DEBENTURES AND OTHER NEGOTIABLE OR NON-NEGOTIABLE INSTRUMENTS AND EVIDENCES OF INDEBTEDNESS; AND TO SECURE THE PAYMENT AND FULL PERFORMANCE OF SUCH SECURITIES BY MORTGAGE OR BY PLEDGE, CONVEYANCE OR ASSIGNMENT IN TRUST OF THE WHOLE OR ANY PART OF THE ASSETS OF THE CORPORATION, REAL, PERSONAL, OR MIXED, INCLUDING CONTRACT RIGHTS, WHETHER AT THE TIME OWNED OR THEREAFTER ACQUIRED.

(15) TO LEND MONEY FOR ANY OF THE PURPOSES SET FORTH IN PARAGRAPH A HEREOF, INVEST ITS FUNDS FROM TIME TO TIME AND TAKE AND HOLD REAL AND PERSONAL PROPERTY AS SECURITY FOR THE PAYMENT OF FUNDS SO LOANED OR INVESTED.

(16) THE CORPORATION SHALL INDEMNIFY ANY DIRECTOR, OFFICER, OR EMPLOYEE, OR FORMER DIRECTOR, OFFICER, OR EMPLOYEE OF THE CORPORATION, OR ANY PERSON WHO MAY HAVE SERVED AT ITS REQUEST AS A DIRECTOR, OFFICER OR EMPLOYEE OF ANOTHER CORPORATION IN WHICH IT OWNS SHARES OF CAPITAL STOCK, OR OF WHICH IT IS A CREDITOR, AGAINST EXPENSES ACTUALLY AND NECESSARILY INCURRED BY HIM IN CONNECTION WITH THE DEFENSE OF ANY ACTION, SUIT OR PROCEEDINGS IN WHICH HE IS MADE A PARTY BY REASON OF BEING OR HAVING BEEN SUCH DIRECTOR, OFFICER OR EMPLOYEE, EXCEPT IN RELATION TO MATTERS AS TO WHICH HE SHALL BE ADJUDGED IN SUCH ACTION, SUIT, OR PROCEEDINGS TO BE LIABLE FOR NEGLIGENCE OR MISCONDUCT IN THE PERFORMANCE OF DUTY. THE CORPORATION MAY ALSO REIMBURSE TO ANY DIRECTOR, OFFICER OR EMPLOYEE THE REASONABLE COSTS OF SETTLEMENT OF ANY SUCH ACTION, SUIT OR PROCEEDINGS, IF IT SHALL BE FOUND BY A MAJORITY OF A COMMITTEE COMPOSED OF THE DIRECTORS NOT INVOLVED IN THE MATTER IN CONTROVERSY (WHETHER OR NOT A QUORUM) THAT IT WAS TO THE INTERESTS OF THE CORPORATION THAT SUCH SETTLEMENT BE MADE AND THAT SUCH DIRECTOR, OFFICER OR EMPLOYEE WAS NOT GUILTY OF NEGLIGENCE OR MISCON-

-5-

DUCT. SUCH RIGHTS OF INDEMNIFICATION AND REIMBURSEMENT SHALL NOT BE DEEMED EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH SUCH DIRECTOR, OFFICER OR EMPLOYEE MAY BE ENTITLED UNDER ANY BY-LAW, AGREEMENT, VOTE OF SHAREHOLDERS, OR OTHERWISE.

(17) THE CORPORATION SHALL ALSO HAVE POWER TO CONDUCT ITS BUSINESS IN ALL ITS BRANCHES, HAVE ONE OR MORE OFFICES, AND UNLIMITEDLY TO HOLD, PURCHASE, MORTGAGE AND CONVEY REAL AND PERSONAL PROPERTY IN ANY STATE, TERRITORY, DISTRICT OR POSSESSION OF THE UNITED STATES AND IN ANY FOREIGN COUNTRY OR PLACE.

(18) TO HAVE AND EXERCISE ALL POWERS NECESSARY OR CONVENIENT TO EFFECT ANY OR ALL OF THE PURPOSES FOR WHICH THE CORPORATION IS ORGANIZED.

5. THE TOTAL AUTHORIZED CAPITAL STOCK OF THIS CORPORATION IS ONE THOUSAND (1,000) SHARES OF COMMON STOCK WITHOUT NOMINAL OR PAR VALUE. THIS STOCK SHALL NOT CARRY WITH IT ANY PRE-EMPTIVE RIGHTS.

ALL OR ANY PART OF SAID SHARES OF COMMON STOCK WITHOUT NOMINAL OR PAR VALUE MAY BE ISSUED BY THE CORPORATION FROM TIME TO TIME AND FOR SUCH CONSIDERATION AS MAY BE DETERMINED UPON, OR FIXED BY THE BOARD OF DIRECTORS AS PROVIDED BY LAW.

6. THE CORPORATION WILL COMMENCE BUSINESS WITH THE TOTAL OF ONE HUNDRED (100) SHARES OF COMMON STOCK HAVING A TOTAL VALUATION OF ONE THOUSAND ($1,000) DOLLARS. THE NAMES AND POST OFFICE ADDRESSES OF THE INCORPORATORS AND THE NUMBER OF SHARES SUBSCRIBED FOR BY EACH (THE AGGREGATE OF WHICH SUBSCRIPTION BEING THE AMOUNT OF CAPITAL STOCK WITH WHICH THE CORPORATION COMMENCES BUSINESS) ARE AS FOLLOWS:

-6-

NAMES AND ADDRESSES	NUMBER OF SHARES
Philip Lindeman, II	98
Philip L. Chapman	1
Norman Bruck	1

7. THE DURATION OF THE CORPORATION SHALL BE PERPETUAL.

8. THE BOARD OF DIRECTORS SHALL HAVE THE POWER TO ENTER INTO CONTRACTS AND TRANSACTIONS ON BEHALF OF THIS CORPORATION WITH ANY ONE OR MORE OF ITS DIRECTORS OR OFFICERS, AND WITH OTHER FIRMS, ASSOCIATIONS OR CORPORATIONS IN WHICH SUCH DIRECTORS OR OFFICERS MAY BE INTERESTED, EITHER AS MEMBERS, STOCKHOLDERS, OFFICERS OR DIRECTORS; AND IN THE ABSENCE OF FRAUD, NO SUCH CONTRACT OR TRANSACTION SHALL IN ANY WAY BE AVOIDED OR OTHERWISE AFFECTED BY THE FACT THAT ANY ONE OR MORE OF THE DIRECTORS OR OFFICERS OF THIS CORPORATION ARE PARTIES THERETO OR ARE INTERESTED THEREIN, AS AFORESAID, PROVIDED SUCH INTEREST IS DISCLOSED OR KNOWN TO THE BOARD OF DIRECTORS. ANY SUCH INTERESTED DIRECTOR OF THE CORPORATION MAY BE COUNTED IN DETERMINING THE EXISTENCE OF A QUORUM AT ANY MEETING OF THE BOARD OF DIRECTORS OF THE CORPORATION AT WHICH IT AUTHORIZED ANY SUCH CONTRACT OR TRANSACTION, AND MAY VOTE THEREAT TO AUTHORIZE SUCH CONTRACT OR TRANSACTION WITH LIKE FORCE AND EFFECT AS IF HE WERE NOT INTERESTED THEREIN.

9. THE POWER TO MAKE AND ALTER BY-LAWS FOR THE CORPORATION MAY BE EXERCISED BY THE BOARD OF DIRECTORS. BY-LAWS MADE BY THE BOARD OF DIRECTORS MAY BE ALTERED OR REPEALED BY THE STOCKHOLDERS.

IN WITNESS WHEREOF, WE HAVE HEREUNTO SET OUR HANDS AND SEALS THIS 11^th DAY of March     , NINETEEN HUNDRED AND SIXTY-THREE.

STATE OF NEW JERSEY)
:	ss.:
COUNTY OF ESSEX        )

BE IT REMEMBERED THAT on THIS 11th DAY OF March    , 1963, BEFORE ME, THE SUBSCRIBER, A NOTARY PUBLIC OF NEW JERSEY, PERSONALLY APPEARED PHILIP LINDEMAN, II, PHILIP L. CHAPMAN and NORMAN BRUCK                                 WHO, I AM SATISFIED, ARE THE PERSONS NAMED IN AND WHO EXECUTED THE FOREGOING CERTIFICATE OF INCORPORATION, AND I HAVING FIRST MADE KNOWN TO THEM AND EACH OF THEM THE CONTENTS THEREOF, THEY DID EACH ACKNOWLEDGE THAT THEY SIGNED, SEALED AND DELIVERED THE SAME AS THEIR VOLUNTARY ACT AND DEED.

EX-99.T3A.47

Exhibit A-47

Office of the Secretary of the State of Connecticut

I, the Connecticut Secretary of the State, and keeper of the seal thereof, DO HEREBY CERTIFY, that the certificate of incorporation of

THE OLD WINE EMPORIUM OF WESTPORT, INC.

a domestic STOCK corporation, was filed in this office on October 06, 1969, a certificate of dissolution has not been filed, the corporation has filed all annual reports, and so far as indicated by the records of this office such corporation is in existence.

Secretary of the State

Date Issued: July 28, 2009

Business ID: 0042312 Express Certificate Number: 2009177076001

Note: To verify this certificate, visit the web site http://www.concord.sots.ct.gov

CERTIFICATE OF INCORPORATION

OF

SHOPWELL LIQUORS, INC.

The undersigned, for the purpose of forming a corporation under the provisions of the Stock Corporation Act of the State of Connecticut, does hereby certify that:

FIRST: The name of the corporation is SHOPWELL LIQUORS, INC.

SECOND: The nature of the business to be transacted, or the purposes to be promoted or carried out by the corporation, which shall be in addition to the authority of the corporation to engage in any lawful act or activity for which corporations may be formed under the Stock Corporation Act, are as follows:

To the extent permitted corporations organized under the Stock Corporation Act and pursuant to municipal, State and Federal permits, licenses, restrictions and regulations, to sell at wholesale and retail and generally to distribute any and all kinds of alcoholic, distilled, fermented or non-fermented beverages, including, but not limited to, liquors, whiskies, wines, cordials, brandies, spirits, gins, bear, ale, porter and other malt products.

To acquire by purchase, devise, exchange, concession, easement, contract, lease or otherwise, to hold, own, use, control, manage, improve, maintain and develop, to mortgage, pledge, grant, sell, convey, exchange, assign, divide, lease, sublease, or otherwise encumber and dispose of, and to deal and trade in, real estats improved or unimproved,

lands, leaseholds, options, concessions, easements, tenements, hereditaments and interests in real, mixed, and personal property, of every kind and description wheresoever situsted, and any and all rights therein.

To apply for, register, obtain, purchase, lease, take licenses in respect of or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to account, grant licenses and immunities in respect of, manufacture under and to introduce, sell, assign, mortgage, pledge or otherwise dispose of, and, in any mannar deal with and contract with reference to:

(a) inventions, devices, formulae, processes and any improvements and modifications thereof;

(b) letters patent, patent rights, patented processes, copyrights, designs, and similar rights, trade-marks, trade symbols and other indications of origin and ownership granted by or recognized under the laws of the United States of America or of any state or subdivision thereof, or of any foreign country or subdivision thereof, and all rights connected therewith or appertaining thereunto;

(c) franchises, licenses, grants and concessions.

To have and to exercise all powers granted by law and by the Connecticut Stock Corporation Act and all legal powers necessary or convenient to effect any or all of the purposes stated in this certificate of Incorporation or to transact the stated business of the corporation.

THIRD: The authorized number of shares of the corporation is One Hundred (100), all of which are designated as Common shares and are without nominal or par value.

2.

FOURTH: No holder of any of the shares of the corporation shall be entitled as of right to purchase or subscribe for any unissued shares of any class or any additional shares of any class to be issued by reason of any increase of the authorized shares of the corporation or bonds, certificates of indebtedness, debentures or other securities convertible into shares of the corporation or carrying any right to purchase shares of any class, but any such unissued shares or such additional authorized issue of any shares or of other securities convertible into shares, or carrying any right to purchase shares, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its discretion.

FIFTH: The minimum amount of stated capital with which the corporation shall commence business is One Thousand Dollars.

I, the undersigned, do hereby declare under the penalties of perjury that the statements contained in the foregoing document are true and do hereby sign this document at New York, New York, on October 1, 1969.

/s/    WILLIAM J. COHEN

WILLIAM J. COHEN, Incorporator

3.

DESIGNATION OF ADDRESS

To the Secretary of the State of Connecticut ,

Hartford

Connecticut

Pursuant to Section 33-300(b) of the Connecticut General Statutes, SHOPWELL LIQUORS, INC.

A corporation organized and existing under the laws of the State of Connecticut, and having its executive offices at 400 Walnut Avenue, New York, New York 10454

respectfully requests that all matter required or permitted by the Connecticut Stock Corporation Act to be mailed to it by the Secretary of the State be mailed to the following address, and to no other address of the corporation:

400 Walnut Avenue

New York, New York 10454

In WITNESS WHEREOF, said corporation has caused this certificate to be signed by its incorporator on this 1st day of October, 1969.

SHOPWELL LIQUORS, INC.
By	/s/    WILLIAM J. COHEN
	WILLIAM J. COHEN, Incorporator

Note : This document has a $4.00 filing fee.

CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION BY ACTION OF 16.38 ¨   INCORPORATORS ¨   BOARD OF DIRECTORS þ
  BOARD OF DIRECTORS
AND SHAREHOLDERS (Stock Corporation
)  ¨  BOARD OF DIRECTORS
      AND MEMBERS (Non Stock Corporation ) 

STATE OF CONNECTICUT   SECRETARY OF THE STATE FOR OFFICE USE ONLY
ACCOUNT NO.938389 INITIALS nd

1. NAME OF CORPORATION                                                Shopwell Liquors, Inc. DATE                           May 28, 1970

2. The Certificate of incorporation is x A. AMENDED ONLY ¨ B. AMENDED AND RESTATED ¨ C. RESTATED ONLY by the following resolution

RESOLVED, that Article THIRD of the Certificate of Incorporation relating to the number of shares authorized, is hereby amended to read as follows:

“THIRD: The authorized number of shares of the Corporation is five hundred (500), all of which are designated as common shares and are without nominal or par value.”

3. (Omit if 2 A is checked)

(a) The above resolution merely restates and does not change the provisions of the original Certificate of incorporation as supplemented and amended to date, except as follows: (Indicate amendments made, if any. If none, so indicate)

(b) Other than as indicated in par. 3(o), there is no discrepancy between the provisions of the original Certificate of Incorporation as supplemented to date, and the provisions of this Certificate Restating the Certificate of Incorporation.

¨ 4. The above resolution was adopted by vote of at least two-thirds of the incorporators before the organization meeting of the corporation, and approved in writing by all subscribers (if any) for shares of the corporation, for if nonstock corporation, by all applicants for membership entitled to vote, if any

We (at least two-thirds of the incorporators) hereby declares, under the penalties of perjury, that the statements made in the foregoing certificate are true.

SIGNED SIGNED SIGNED

APPROVED

As subscribers or, if nonstock corporation all application for membership entitled to vote. If none, so indicate.

SIGNED SIGNED SIGNED

CERTIFICATE AMENDING OR RESTATING CERTIFICATE OF INCORPORATION BY ACTION OF 61.38 ¨   INCORPORATION ¨   BOARD OF DIRECTORS x
  BOARD OF DIRECTORS
AND SHAREHOLDERS (Stock Corporation
)  ¨       BOARD OF
DIRECTORS AND
SHAREHOLDERS (Non Stock Corporation ) 

STATE OF CONNECTICUT   SECRETARY OF THE STATE For office use only
ACCOUNT NO. INITIALS

1. NAME OF CORPORATION                                                SHOPWELL LIQUORS, INC.   DATE                           December 5, 1983

2. The Certificate of incorporation is x A. AMENDED ONLY ¨ B. AMENDED AND RESTATED ¨ C. RESTATED ONLY by the following resolution

RESOLVED, that the appropriate officers, on behalf of the Corporation, be, and they hereby are, authorized and directed to execute and file the Certificate of the Corporation’s Certificate of Incorporation in the form annexed Amendment of hereto, effecting a change of the Corporation’s name to THE WINE EMPORIUM, INC., and to take such other action as may be necessary or appropriate to effectuate the terms of this resolution.

3. (Omit if 2 A is checked.)

(a) The above resolution merely restates and does not change the provisions of the original Certificate of Incorporations as supplemented and amended to date, except as follows: (Indicate amendments made, if any, if none, so indicate)

(b) Other than as indicated in Par. 3 (a), there is no discrepancy between the provisions of the original Certificate of Incorporation as supplemented to date and the provisions of this Certificate Restating the Certificate of Incorporation.

BY ACTION OF INCORPORATIONS

¨ 4. The above resolution was adopted by vote of at least two-thirds of the incorporation before the organization meeting of the corporation, and approved in writing by all subscribers (if any) for shares of the corporation, (o.if nonstock corporation, by all applicants for membership entitled to vote, if any)

We (at least two-thirds of the incorporatorr hereby declare, under the penalties’ of false statement that the statements made in the foregoing certificate are true.

SIGNED SIGNED SIGNED

APPROVED

(All subscribers, or, if nonstock corporation, all application for membership entitled to vote, if none, so indicate)

SIGNED SIGNED SIGNED

(Over)

CERTIFICATE OF REINSTATEMENT OF A DISSOLVED CORPORATION STOCK CORPORATION	FILING #0001670341 PG 01 OF 10 VOL B-00098 FILED 12/06/1996 08:30 AM PAGE 00049 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE
61-308 NEW 11/92

STATE

SECRETARY OF THE STATE

30 Trinity Street, Hartford, CT 06106

Must be accompanied by items listed in C.G.S. §33-388(e), as amended.

1. Name of Corporation (if former name is no longer available, name must be amended by simultaneously filing a certificate of amendment.):

The Wine Emporium, Inc.

2. It has been resolved to reinstate the corporation by the following resolution:

Resolved:     The officers of the company shall undertake those actions necessary or appropriate to reinstate the company in the State of Connecticut.

3. The manner of adopting the resolution was as follows: (Check ONE, A or B)

x A. By the board of directors and shareholders, pursuant to Conn. Gen. Stat. §§33-388(b) and 33-376(d)(5).

Vote Required for Adoption 51 Vote Favoring Adoption 100

¨ B. By the board of directors acting alone, pursuant to Conn. Gen Stat. §§33.388(b) and 33.376(d)(4)

The number of affirmative votes required to adopt such resolution is:                 

The number of director’s votes in favor of the resolution was:                 

We hereby declare, under the penalties of false statement. that the statements made in the foregoing certificate are true.

NAME OF PRESOENT VICE PRESIDENT (Print Type) Timothy J. Courtney	NAME OF SECRETARY ASSISTANT SECRETARY (Print Type) Robert Ulrich
SIGNED BY (President Vice President)	SIGNED BY (Security Assistant Secretary)
[ELLIGIBLE]	[ELLIGIBLE]

FOR OFFICE USE ONLY Rec. CC GS          Peter A. Berdon          132 Temple Street          New Haven, CT 06510 [ELLIGIBLE]

STATE OF CONNECTICUT   DEPARTMENT OF REVENUE SERVICES

September 24,1996

FILLINIG #0001670341 PG 02 OF 10 VOL B-00098

FILED 12/06/1996 08 .30 AM PAGE 00050

SECRETARY OF THE STATE

CONNECTICUT SECRETARY OF THE STATE

Berdon ,Young & Margolis ,PC

132 Temple Street

New Haven, CT 06510

Attn: Peter A. Berdon

RE: Wine Emporium, Inc .

CT Tax Reg . # 0707539-000

Dear Taxpayer:

We received your request for assistance in reintsatating your corporation. The Connecticut Office of The Secretary of State will require that you submit several items to then before your corporation can be reinstated. This letter will provide you with the necessary release from the Department of Revenue Services.

The records of the Department of Revenue Services show that Wine Emporum, Inc,.

x Has paid all taxes due and payable to the Commissioner of Revenue Services.

¨ Was not liable for any taxes payable to the Commissioner of Revenue Services.

x Has made satisfactory arrangement to remit taxes due and payable to the Commissioner of Revenue Services.

This statement or release will be valid to June 1, 1997.

A Certificate of Reinstatement must be secured on or before this date.

This release letter, a release letter from the Connecticut Department of Labor and your Application for reinstatement must be filed with the office of The Secretary of state. 30 Trinity Street .Hartford.connecticut 06115 (A filing fee is required ).The Department of Labor is located at 200 Folly Book Boulevard . Wethersfield. Connecticut 06109

If you have any question regarding out release letter, please call me.

Very truly yours.

/s/ Ellen M. Phskowski

Ellen M. Phskowski

Tax Unit Manager

Audit Divison

Corporation tax office

Telephone (8601 541-4041)

AC-835(Rev.5/95)

FILING #0001670341 PG 03 OF 10 VOI, 8-00098 FILED 12/06/1996 08.30 AM PAGE 00051 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE

UC-89

(Rev.9/92)

October 9, 1996

OFFICE OF THE SECRETARY OF THE STATE

CORPORATION DIVISION

30 TRINITY STREET

HARTFORD, CONNECTICUT 06106

RE: THE WINE EMPORIUM, INC.

IN ACCORDANCE WITH THE PROVISIONS OF THE GENERAL STATUTES OF THE STATE OF CINNECTICUT- REVISION OF 1958 AS AMENDED. YOU ARE HEREBY NOTIFIED THAT BY THE BEST AVAILABLE INFORMATION IT IS OUR BELIFE THE SUBJECT CORPORATION HAS MADE HAS MADE ACCEPTABLE PROVISIONS FOR FUTURE PAYMENT FOR CONTRIBUTIONS DUE TO THE DEPARTMNT OF LABOR

VERY TRULY YOURS.
	ADMINISTRATOR UNEMPLOYMENT COMPENSTATION

SUPERVISOR, EMPLOYER STATUS

APPOINTMENT OF STATUTORY AGENT FOR SERVICE
DOMESTIC CORPORATION		FILING #0001670341 PG 04 OF 10 VOL B-00098
61-6 Rev. 6/93	Secre	FILED 12/06/1996 08:30 AM PAGE 00052
	30	SECRETARY OF THE STATE
	Hart	CONNECTICUT SECRETARY OF THE STATE

Complete All Blanks

Enter Name of Corporation here:

The Wine Emporium, Inc.

The above corporation appoints as its statutory agent for service, one of the following:

Name of Natural Person Who is Resident of Connecticut	Business Address	Zip Code
	132 Temple Street	06510
	New Haven, CT
	Residence Address	Zip Code
	2350 Montowese Street
Peter A. Berdon, Esq.	Brandford. CT	06405
Name of Connecticut Corporation	Address of Principal Office in Conn.	(If none, enter address of
	Appointee’s statutory agent for service)
Name of Corporation	Address of Principle Office in Conn.
(Not organized under the Laws of Conn.*)	(If none. Enter “Secretary of the State of Conn.”)

* Which has procured a Certificate of Authority to translet business or conduct affairs in the state.

AUTHORIZATION

Original Appointment (Must be Signed by a majority of Incorporation	Name of Incorporator (Print or Type)	Signed (Incorporator)	Date
	Name of Incorporator (Print or Type)	Signed (Incorporator)
	Name of Incorporator (Print or Type)	Signed (Incorporator)

Subsequent Appointment	Name of President, Vice President, Secretary or Assistant Secretary	Date
	Robert Ulrich, Assistant Secretary	10/1/96
	Signed (President or Vice President, Secretary Assistant Secretary) /s/ Robert Ulrich

Acceptance: Name of Statutory Agent for Service (Print or Type)	Signed (Statutory Agent for Service)
Peter A. Berdon, Esq.	/s/ Peter A. Berdon

For Official Use Only

Rec: CC	Peter A. Berdon, Esq.
	132 Temple Street
	New Haven, CT 06510

	FILING #0001670341 PG 05 OF 10 VOL B-00098
	FILED 12/06/1996 08:20 AM PAGE 00053
CONNECTICUT S	SECRETARY OF THE STATE
	CONNECTICUT SECRETARY OF THE STATE

Re:

30 Trinity Street

Hartford, CT 06106 -

Report Due: OCTOBER, 1996.

1. Name of Corp: WINE EMPORIUM, INC. THE

2. Business ID: 0042312

3. Report is due on/or before last business day of: OCTOBER, 1996.

4. This corporation is DOMESTIC/STOCK. Fee is $75.00.

Corporate
Name:	WINE EMPORIUM, INC. THE
Mailing:	400 WALNUT AVE
Address:	NEW YORK, NY 10454
Changes:	United States Corp
	30     High Street
	Hartford, CT 06103

5.      Current Connecticut Address:	Changes:
6.        Foreign Office Address:
(Foreign Corps Only)
7.        Executive Office Address:
(Foreign Corps Only)

	FILING #0001670341 PG 06 OF 10 VOL B-00098
	FILED 12/06/1996 08:30 AM PAGE 00054
-	SECRETARY OF THE STATE
	CONNECTICUT SECRETARY OF THE STATE

Business ID: 0042312

8. Attached hereto are all the officers and directors of the corporation with their business and residence addresses.

I HEREBY DECLARE UNDER THE PENALTIES OF FALSE STATEMENT THAT THE STATEMENTS MADE IN THE FOREGOING REPORT ARE TRUE.

9. Date:   11  /  8  /  96

  Mo   Da   Yr

10.    Print Signing Officer Name:	Robert  Ulrich
Title:	Assistant Secretary
11.    Officer Signature:	[ILLIGIBLE]

(Pres., V.P., Sec., Asst. Sec., Treas. only may sign the report)

	FILING #0001670341 PG O7 OF 10 VOL B-00098
Report Al	FILED 12/06/1996 08:30 AM PAGE 00055
	SECRETARY OF THE STATE
	CONNECTICUT SECRETARY OF THE STATE

Business ID: 0042312

Domestic corporations must report a president and a secretary that are two different people. EACH CORPORATION MUST DESIGNATE DIRECTORS ON THE TITLES LINE.

1. Full Legal Name:	David Hoalt
Title (s):	President/Director
Residence Addr:	c/o 2 Paragon Drive
	Montvale, NJ 07645
Business Addr:	The Wine Emporium
	2 Paragon Drive
	Montvale, NJ 07645
Changes:
2. Full Legal Name:	Eric Dorne
Title(s):	Vice President
Residence Addr:	7 Raymnd Circle
	Westfield, MA 01085
Business Addr:	The Wine Emporium
	2 Paragon Drive
	Montvale, NJ 07645
Changes:
3. Full Legal Name :	William Moss
Title(s):	Treasurer
Residence Addr:	2 Oweno Place
	Mahwah, NJ 07430
Business Addr:	The Wine Emporium
	2 Paragon Drive
	Montvale, NJ 07645
Changes:
4. Full Legal Name :	Timothy J, Courtney
Title (s):	Vice President/Secretary
Residence Addr:	77 Lilyan Street
	Waldwick, NJ 07413
Business Addr:	The Wine Emporium
	2 Paragon Drive
	Montvale, NJ 07645

	FILING #0001670341 PG 08 OF 10 VOL B-00098
Report A	FILED 12/06/1996 08:30 AM PAGE 00056
	SECRETARY OF THE STATE
	CONNECTICUT SECRETARY OF THE STATE

Business ID: 0042312

Domestic corporations must report a president and a secretary that

are two different people. EACH CORPORATION MUST DESIGNATE DIRECTORS ON THE TITLES LINE.

5. Full Legal Name:	Robert G. Ulrich
Title(s):	Vice President/Assistant Secretary/Director
Residence Addr:	500 Weymouth Drive Wykoff, NJ 07481
Business Addr:	The Wine Emporium 2 Paragon Drive Montvale, NJ 07645
Changes:
6. Full Legal Name:	Fred Corrado
Title(s):	c/o 2 Paragon Drive
Residence Addr:	Montvale, NJ 07645
Business Addr:	The Wine Emporium 2 Paragon Drive Montvale, NJ 07645
Changes:
7. Full Legal Name:
Title(s):
Residence Addr:
Business Addr:
Changes:
8. Full Legal Name:
Title(s):
Residence Addr:
Business Addr:

CERTIFICATE AMENDING OF RESTATING CERTIFICATE OF INCORPORATION

61-38 Rev.9/90

Stock Corporation

FILING #0001670341 PG 09 OF 10 VOL B-00098

FILED 12/06/1996 08:30 AM PAGE 00057

SECRETARY OF THE STATE

CONNECTICUT SECRETARY OF THE STATE

STATE OF SECRETARY

30 TRINITY STREET

HARTFORD,CT 06106

Business I.D.# 0042312

1. Name of Corporation (Please enter name within lines)

The Wine Emporium, Inc.

2 The Certificate of incorporation is (Check one)

x A. Amended only, pursuant to Conn.Gen. Start. §33-360.

¨ B. Amended only, to cancel authorized shares (state number of shares to be cancelled, the class the series, if any. and the par value, P.A.90-107).

¨ C. Restated only, pursuant to Conn. Gen. Stat. §33-362(a)

¨ D. Amended and restated, pursuant to conn, Gen. Stat. §33-362(c)

¨ E. Restarted and superseded pursuant to Conn, Gen. Stat. §33-362(d)

Set forth here the resolution of amendment and/or restatement Use an 8 ¹/2 x11 attached sheet if more space is needed. Conn. Gen. Stat.§1-9.

Resolved : The Corporation’s name shall be changed from the Wine Emporium Inc, The Old Wine Emporium of Westport, Inc.,

(if 2A or 2B is checked go to 5 & 6 to complete this certificate it 2C or 2D is checked. complete 3A or 3B if 2E is. Complete 4)

3 (check one)

¨ A This certificate purports merely to restate but not to change the provision of the or original Certificate of incorporation as supplement and amended to date and there is no discrepancy between the provisions of the original Certificate of Incorporation as supplemented and amended to date and the provisions of this Reshated Certificate of incorporation (If 3 A is checked go to 5 & 6 to complete this certificate).

x B This Restated Certificate of Incorporation shall give effect in the amendment(s) (if 3B is cheked.checked 4.if true. and go to 5 & 6 to complete this Certificate)

4 (Check if true )

x This restated Certificate of incorporation was adopted by the gretest vote which wold have been quired to amend any provision of the Certificate of incorporation as an effect below such vote and super sedes such Certificate of Incorporation.

5. The manner of adopting the resolution was as follows: (Check one A, or B, or C)

x	A.      By the board of directors and shareholders, pursuant to Conn. Gen. Stat. §33 – 360. Vote of Shareholders: (Check (i) or (ii), and check (iii) if applicable)
		(i)	x       No shares are required to be voted as a class; the shareholder’s vote was as follows:
		Vote Required for Adoption -51-                     Vote Favoring Adoption -100-
		(ii)	¨        There are shares of more than one class entitled to vote as a class. The designation of each class required for adoption of the resolution and the vote of each class in favor of adoption were as follows: (Use an 8 1/2 × 11 attached sheet if more space is needed. Conn. Gan. Stat. § 1 – 9.)
		(iii)	¨        Check here if the corporation [Cut off by FILED stamp] Stat. §33 – 311a(a).
¨	B.	By the board of directors acting alone, [Cut off by FILED stamp]
		The number of affirmative votes required to adopt such resolution is:
		The number of directors’ votes in favor of the resolution was:

We hereby declare, under the penalties of false statement, that the statements made in the foregoing certificate are true:

(Pant of Type)	signature	(Print of Type)	signature
Name of Pres / V. Pres. Timothy J. Courtney	/s/	Name of Sec Assent Sec. Robert Ulrich	/s/

¨ C.      The corporation does not have any shareholders. The resolution was adopted by vote of at least two-thirds of the incorporations before the organization meeting of the corporation, and approved in writing by all subscribers to shares of the corporation. If there are no subscabers, state NONE below.

We (at east two-thirds of the incorporators) hereby declare under the penalties of false statement that the statements made in the foregoing certificate are true.

Signed Incorporator Signed Incorporator Signed Incorporator

Signed subscriber Signed subscriber Signed subscriber

    (Use an 8 1/2 × 11 attached sheet if more space is needed Conn. Gen. Stat. § 1-9)

6. Dated at Montvale, NJ this 1^st day of October 1996

Rec. CC GS (Type of Print)

Peter A Berdon, Esq.

132 Temple Street

New Haven, CT 06510

Please provide this name and complete address for mailing receipt

EX-99.T3A.48

Exhibit A-48

State of South Dakota

OFFICE OF THE SECRETARY OF STATE

Certificate of Existence

Domestic Corporation

ORGANIZATIONAL ID #: DB023380

I, Chris Nelson, Secretary of State of the State of South Dakota, do hereby certify that THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. was duly incorporated under the laws of this state on April 25, 1984 for a perpetual term of existence.

I, further certify that said corporation has complied with the laws of this State relative to the formation of corporation of its kind and is now a regularly and properly organized and existing corporation under the laws of this State and is in good standing, as shown by the records of this office. The annual report required by law has been filed with our office and articles of dissolution have not been filed. This certificate is not to be construed as an endorsement, recommendation or notice of approval of the corporation’s financial condition or business activities and practices. Such information is not available form this office.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed that Great Seal of the State of South Dakota, at Pierre, the Capital, this July 30, 2009.   /s/ Chris Nelson Chris Nelson Secretary of State

STATE OF SOUTH DAKOTA

OFFICE OF

THE SECRETARY OF STATE

Certificate Of Incorporation

Business Corporation

I, ALICE KUNDERT, Secretary of State of the State of South Dakota, hereby certify that duplicate originals of the Articles of Incorporation of THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. duly signed and verified, pursuant to the provisions of the South Dakota Business Corporation Act, have been received in this office and are found to conform to law.

ACCORDINGLY and by virtue of the authority vested in me by law, I hereby issue this Certificate of Incorporation of THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA COMPANY, INC, and attach hereto a duplicate original of the articles of Incorporation.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of South Dakota, at Pierre, the Capital, this 25^th day of April A.D 1984 Secretary of State Deputy

APR 25 1984

Filed this 25^th day of

April,1984

SECRETARY OF STATE

ARTICLES OF INCORPORATION

OF

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

Executed by the undersigned for the purpose of forming a South Dakota Corporation under the South Dakota Business Corporation Act.

ARTICLE I

The name of the corporation is The South Dakota Great Atlantic & Pacific Tea Company, Inc.

ARTICLE II

The period of existence is perpetual.

ARTICLE III

The purpose or purpose for which the corporation is organized are to act as a holding company for stocks, bonds, securities of all kinds and descriptions, cash, pension funds, all types of real and personal property, and other things of value, and to engage in any lawful act or activity for which corporation may be organized under the business corporation law of the state of South Dakota.

ARTICLE IV

The number of shares which it shall have authority to issue, itemized by class, part value of shares, shares without par value, and series , if any, with a class:

1,000 shares common stock, without preference or class of $10.00 per share par value.

ARTICLE V

The corporation will not commence business until consideration of the value of at least $1,000.00 has been received for the issuance of shares.

ARTICLE VI

The name of its registered agent and the address of its registered office are: United States Corporation Company, P. O. Box 160, 503 South Pierre Street, Pierre, South Dakota, 57501.

ARTICLE VII

The number of directors, constituting the Board of Directors is four and the names and addresses of the directors are listed as follows:

NAME	ADDRESS
JoAnne Knight	503 South Pierre Street Pierre, South Dakota 57501
J. W. Rowe	2 Paragon Drive Montvale, New Jersey 07645
V. A. Cardace	2 Paragon Drive Montvale, New Jersey 07645
R.G. Ulrich	2 Paragon Drive Montvale, New Jersey 07645

ARTICLE VIII

The name and address of the incorporator is :

NAME	ADDRESS
JoAnne Knight	503 South Pierre Street Pierre, South Dakota 57501

ARTICLE IX

These Articles may be amended in the manner authorized by law at the time or amendment.

Executed in duplicate this 25th day April, 1984.

State of South Dakota	)
	) ss
County of Hughes	)

On this the 25^th day of April, 1984, before me, the under-signed officer, personally appeared JoAnne Knight, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument , and acknowledged to me that she executed the same for the purposes therein contained.

2

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Notary Public

(SEAL)	DAVID A. GERDES	DAVID A. GERDES
	Notary Public	Notary Public
	My Commission Expires	My Commission Expires
	September 25, 1984	September 25, 1984

State of South Dakota	)
	) ss
County of Hughes	)

JoAnne Knight, being first duly sworn, deposes and says: That she is the person described in and who signed the foregoing Articles of Incorporation as incorporator therein; that she has read said Articles and knows the contents thereof; that the incorporator intends in good faith to form a corporation for the purpose of the promotion of a lawful business set forth in said Articles, and not for the purpose of enabling any corporation or corporations to avoid the provisions of Chapter 37-1 of the South Dakota Complied Laws of 1967 relating to unlawful trusts and combinations, and laws amendatory thereto.

Subscribed and sworn to before me this 25th day of April, 1984.

Notary Public

(SEAL)	DAVID A. GERDES
	Notary Public
	My Commission Expires
	September 25, 1984

3

EX-99.T3A.49

Exhibit A-49

Office of the Secretary of the State of Connecticut

I, the Connecticut Secretary of the State, and keeper of the seal thereof, DO HEREBY CERTIFY, that the certificate of incorporation of

TRADEWELL FOODS OF CONN., INC.

a domestic STOCK corporation, was filed in this office on June 23, 1941, a certificate of dissolution has not been filed, the corporation has filed all annual reports, and so far as indicated by the records of this office such corporation is in existence.

Secretary of the State

Date Issued: July 28, 2009

Business ID: 0088391 Express Certificate Number: 2009177052001

Note: To verify this certificate, visit the web site http:// www.concord.sotes.ct.gov

CERTIFICATE OF INCORPORATION

We, the subscribers, certify that we do hereby associate ourselves as a body politic and corporate under the statute laws of the State of Connecticut; and we further certify:

FIRST: That the name of the corporation is TRADEWELL FOODS OF CONN. INC.

SECOND: That said corporation is to be located in the Town of Greenwich in the State of Connecticut.

THIRD: That the nature of the business to be transacted, and the purposes to be promoted or carried out, by said corporation, are as follows:

(a) To buy and sell merchandise, and conduct mercantile operations, and in so doing, to particularly make, purchase and acquire groceries, fruits, vegetables, fruits products, meats, confectionery, fish, poultry, butter, eggs, dairy products and all other kinds of foods and food products, whether fresh, smoked, pickled, preserved or canned, and to sell the same at wholesale and retail. In carrying on such business, said corporation shall have the power to do all things properly connected with mercantile business of such character and to carry on the same in the manner as such kinds of business are ordinarily conducted.

(b) To grow, raise, cultivate, catch or otherwise produce, or acquire, to bake, bottle, brew, can, cure, cut, distill, harvest, manufacture, pack, preserve, refine, ripen, salt, slaughter, or otherwise prepare for market, to buy and sell, to export and import, and generally to deal in and carry on business in all varieties of food, food products and food preparations, and all articles, animals and things useful as, or in connection with, any variety of food, food products and food preparations, and especially to deal in and carry on business in the following, amongst others: baking powder, biscuits, bread, butter and butterine, cake, candy, cereals, cheese, chocolate, cocoas, coffee, confectionery, crackers, drugs and medicines, eggs, fish and other sea foods, flour, fruits, grains, live scock, meats, mild and other dairy products, molasses, nuts, oleomargarine, ples, poultry, sauce, spices, sugar, tea, vegetables, wines and other spirits and beverages.

(c) To carry on all or any of the businesses of dealers in articles and commodities of personal and household use and consumption.

(d) To cure, manufacture, buy, sell and generally to deal in tobacco in all its forms and to do all things incidental to the business of tobacconists.

(e) In connection with the foregoing to manufacture, market and prepare for market, buy, sell, deal in and deal with, import and export tin, and any products of tin, glassware and any article of glassware, or any other article, receptacle, package or thing which may be useful in connection with the manufacture or markeing, vending, or shipping of the products or the company, or like products

(f) To apply for, purchase, or in any manner to acquire, and to hold, own, use and operate, and to sell or in any manner dispose of, and to grant, license other rights in respect of, and in any manner deal with, any and all rights, inventions, improvements and processes used in connection with or secured under letters patent or copyrights of the United States or other countries, or otherwise, and to work, operate or develop the same, and to carry on any business, manufacturing or otherwise, which may directly or indirectly effectuate those objects or any one of them.

(g) To purchase, lease or otherwise acquire and to hold, own, sell or dispose of real and personal property of all kinds and in particular lands, buildings, business concerns and under-takings, shares of stock, mortgages, bonds, debentures, and other trade names, patents, and patent rights, copyrights and any interest in real or personal property.

(h) To borrow money and to loan and advance money upon mortgages on personal or real property or on either of them.

(i) To purchase, acquire, exchange, hold and dispose of all manner or kinds of stocks, bonds, mortgages, securities or other instruments and evidences of indebtedness of any corporation, domestic or foreign, or any individual or individuals; to issue and exchange therefor its stocks, bonds, or other obligations or some one or more of them, and while owner of any of such stocks, bonds, mortgages, securities or other obligations, to possess and exercise in respect thereof all the rights, powers and privileges of individual owners thereof and exercise any and all voting powers thereon. Stock in other corporations or associations held by this corporation shall be voted in the name of this corporation by such of its officers as the Board of Directors shall designate, upon the majority votes of their whole number or by a proxy thereunto duly authorized by like vote of said board.

(j) To do everything suitable and proper for the purpose of furthering the business aforesaid and the accomplishment of any of the objects or the furtherance of any of the powers aforesaid to enable it to carry on its lawful transactions of the above business or any other business similar to or connected therewith wherever the same may be permited by law and to the same extent as the laws of this state will permit and as fully and with all the powers that the laws of this state will confer upon corporations and organizations under this act and to do all and any of the businesses above mentioned and set forth to same extent as natural persons might or could do.

FOURTH: That the amount of the capital stock of said Corporation hereby authorized is $20,000.00 divided into 400 shares of the par value of $50.00 each.

FIFTH: That the amount of capital stock with which this corporation shall commence business is $1,000.00.

SIXTH: That the duration of said corporation is unlimited.

SEVENTH:

SIGNATURES OF INCORPORATORS

Name	Residence
Benjamin Rabinovitz	245 Griswold Drive West Hartford, Connecticut

Isadore M. Goldfarb 64 Enfield Street Hartford, Connecticut

Michael Goldberg 46 Deerfield Avenue Hartford , Connecticut

Dated at Hartford, this 20th day of June, 1941.

State of Connecticut	)
	)     as. Hartford , June 20, 1941.
County of Hartford	)

Personally appeared Benjamin Rabinovitz, Isadore M. Goldfarb, and Michel Goldberg, being all of the incorporators of Tradeweel Foods of Conn. Inc., and made solemn oath to the truth of the foregoing certificate by them respectively subscribed , before me.

Danie1 A. Bason

Commissioner of Superior Court .

CERTIFICATE OF MERGER

We, the undersigned, a majority of the directors of each of the following named corporations organized under the statute laws of the State Connecticut, to wit:

The        TRADEWELL FOODS OF CONN. INCORPORATED          

located in the town of                 Greenwich                             and                               

The         SOLSTAN MEAT CORPORATION                                                           

located in the town of         Greenwich                                                                       

all in the State of Connecticut, for the purpose of effecting a merger of the above-named corporations under and by virtue of the provisions of the statute laws of said state, said corporations being engaged in business of the same or similar nature, hereby enter into an agreement as follows:

WHEREAS, it is deemed expedient that TRADEWELL FOODS OF CONN. INCORPORATED merge into itself THE SOLSTAN MEAT CORPORATION and acquire and be possessed of all the estate, property, rights, privileges and franchise of the said THE SOLSTAN MEAT CORPORATION and assure the liabilities of the said corporation; and

WHEREAS, all of the issued and outstanding capital stock of each of the said corporations is now owned directly or indirectly by the same stockholders;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the said corporations do hereby merge the capital stock, franchises and property of the said corporations, so as to form one corporation, which shall be the continuing corporation, under and in pursuance of the laws of the State of Connecticut in such case made and provided; and by these presents do hereby covenant and agree upon and prescribe the terms and conditions of said merger and the mode of carrying the same into effect, which said terms and conditions and mode of carrying the same into effect they mutually covenant and agree to observe, viz:

1. From and after the effective date of the merger, herein after set forth, all of the property, whether real, personal or mixed, of the said THE SOLSTAN MEAT CORPORATION, and all debts due to it on whatever account, shall be the property of the continuing corporation; and all debts, liabilities and duties of the said THE SOLSTAN MEAT CORPORATION shall thenceforth be the obligations of the continuing corporation.

2. In consideration of the aforesaid assumption by the continuing corporation of the debts, liabilities and duties of THE SOLSTAN MEAT CORPORATION, the certificates of stock of THE SOLSTAN MEAT CORPORATION shall be surrendered and cancelled, and the stockholders of the said THE SOLSTAN MEAT CORPORATION shall not be entitled to any interest whatever in any of the capital stock of the continuing corporation, nor to any compensation of any nature whatever for the stock so surrendered by them.

And we further agree:

First     That the name of the resultant corporation shall be TRADEWELL FOODS OF CONN., INC.

Second     That the following are the names and places of residence of all of its first directors

NAME	RESIDENCE
Herbert B. Daitch	Justin Road, Harrison, N. Y.
Louis H. Taxin	91 Brite Avenue, Scarsdale, N. Y.
Saul J. Weinert	141 Margaret Blvd., Merrick, N. Y.
Abraham Levine	55 Knolls Crescent, New York 63, N. Y.
Abraham J. Dubin	The Madison, Madison Ave. & 58th St., N.Y. 22, N. Y.

Third       That said corporation and its principal office or place of business is to be located in the town of         Greenwich          in the State of Connecticut.

Fourth     That the nature of the business to be transacted, and the purposes to be promoted or carried out, by said corporation, are as follows:

(a) To buy and sell merchandise, and conduct mercantile operations, and in so doing, to particularly make, purchase and acquire groceries, fruits, vegetables, fruit products, meats, confectionery, fish, poultry, butter, eggs, dairy products and all other kinds of foods and food products, whether fresh, smoked, pickled, preserved or canned, and to sell the same at wholesale and retail. In carrying on such business, said corporation shall have the power to do all things properly connected with mercantile business of such character and to carry on the same in the manner as such kinds of business are ordinarily conducted.

(b) To grow, raise, cultivate, catch or otherwise produce, or acquire, to bake, bottle, brew, can, cure, cut, distill, harvest, manufacture, pack, preserve, refine, ripen, salt, slaughter, or otherwise prepare for market, to buy and sell, to export and import, and generally to deal in and carry on business in all varieties or food, food products and food preparations, and all articles, animals and things useful as, or in connection with, any variety of food, food, products and food preparations, and especially to deal in and carry on business in the following, amongst others: baking powder, biscuits, bread, butter and butterine, cake, candy, cereals, cheese, chocolate, cocoas, coffee, confectionery, crackers, drugs and medicines, eggs, fish and other sea foods, flour, fruits, grains, live stock, meats, mild and other dairy products, molasses, nuts, oleomargarine, pies, poultry, sauce, spices, sugar, tea, vegetables, wines and other spirits and beverages.

(c) To carry on all or any of the businesses of dealers in articles and commodities of personal and household use and consumption.

(d) To cure, manufacture, buy, sell and generally to deal in tobacco in all its forms and to do all things incidental to the business of tobacconists.

(e) In connection with the foregoing to manufacture, market and prepare for market, buy, sell, deal in and deal with, import and export tin, and any products of tin, glassware and any article of glassware, or any other article, receptacle, package or thing which may be useful in connection with the manufacture or marketing, vending or shipping of the products of the company, or like products.

(f) To apply for, purchase, or in any manner to acquire, and to hold, own, use and operate, and to sell or in any manner dispose of, and to grant, license other rights in respect of, and in any manner deal with, any and all rights, inventions, improvements and processes used in connection with or secured under letters patent or copyrights of the United States or other countries, or otherwise, and to work, operate or develop the same, and to carry on any business, manufacturing or otherwise, which may directly or indirectly effectuate those objects or any one of them.

(g) To purchase, lease or otherwise acquire and to hold, own, sell or dispose of real and personal property of all kinds and in particular lands, buildings, business concerns and undertakings, shares of stock, mortgages, bonds, debentures, and other securities, merchandise, book debts and claims, trade marks, trade names, patents, and patent rights, copyrights and any interest in real or personal property.

(h) To borrow money and to loan and advance money upon mortgages on personal or real property or on either of them.

(i) To purchase, acquire, exchange, hold and dispose of all manner or kinds of stocks, bonds, mortgages, securities or other instruments and evidences of indebtedness of any corporation, domestic or foreign, or any individual or individuals; to issue and exchange thereof its stocks, bonds, or other obligations or some one or more of them, and while owner of any of such stocks, bonds, mortgages, securities or other obligations, to possess and exercise in respect thereof all the rights, powers and privileges of individual owners thereof and exercise any and all voting powers thereon. Stock in other corporations or associations held by this corporation shall be voted in the name of this corporation by such of its officers as the Board of Directors shall designate, upon the majority votes of their whole number or by a proxy thereunto duly authorized by like vote of said board.

(j) To do everything suitable and proper for the purpose of furthering the business aforesaid and the accomplishment of any of the objects or furtherance of any of the powers aforesaid to enable it to carry on its lawful transactions of the above business or any other business similar to or connected therewith wherever the same may be permitted by law and to the same extent as the laws of this state will permit and as fully and with all the powers that the laws of this state will confer upon corporations and organizations under this act and to do all and any of the businesses above mentioned and set forth to the same extent as natural persons might or could do.

Fifth. That the combined capital stock of the corporations hereby merging is Twenty Thousand Dollars, and the amount of the capital stock of said resultant corporation hereby authorized is Twenty Thousand Dollars, divided into four hundred shares of common stock of the par value of Fifty Dollars each.

Sixth. That the duration of said resultant corporation is unlimited.

Seventh. That the amount of capital stock with which this corporation shall commence business is One Thousand dollars divided into twenty shares of the par value of Fifty dollars.

Eighth. The effective date of such merger shall be the first Monday following approval of this Certificate by the Secretary of State.

That the manner of converting the shares of capital stock of each of the old corporations into shares of the capital stock of the resultant corporation is as follows:

Each share of capital stock, par value $50 per share, of TRADEWELL FOODS OF CONN. INCORPORATED, shall be one share of capital stock, par value $50 per share, of the resultant corporation; all of the issued and outstanding capital stock of THE SOLSTAN CORPORATION shall be surrendered and cancelled. In witness whereof, we have hereunto set our hands and attached the seals of the several corporations at NEW YORK, N. Y. this 10^th day of February 1956.

I, SAUL J. WEINERT ass’t Secretary of xxx TRADEWELL FOODS OF CONN. INCORPORATED a corporation organized under the statute laws of the State of Connecticut hereby certify that the foregoing agreement was on the 15^th day of February 1956, submitted to the stockholders of said corporation at a meeting called for the purpose of considering the same, notice thereof having been waived, and that two-thirds or more of all the outstanding stock of each class voted to approve such merger.

I, SAUL J. WEINERT ass’t Secretary of The SOLSTAN MEAT CORPORATION a corporation organized under the statute laws of the State of Connecticut hereby certify that the foregoing agreement was on the 15^th day of February 1956, submitted to the stockholders of said corporation at a meeting called for the purpose of considering the same, notice thereof having been waived, and that two-thirds or more of all the outstanding stock of each class voted to approve such merger.

I,                      Secretary of The                      a corporation organized under the statute laws of the State of Connecticut hereby certify that the foregoing agreement was on the                      day of                      19    , submitted to the stockholders of said corporation at a meeting called for the purpose of considering the same, notice thereof having been given, and publication thereof having been duly made, as required by law, and that two-thirds or more of all the outstanding stock of each class voted to approve such “merger or” consolidation.

Personally appeared SAUL J. WEINERT ass’t Secretary of The TRADEWELL FOODS OF CONN. INCORPORATED and made oath to the truth of the foregoing certificate by him signed, before me.

Personally appeared SAUL J. WEINERT ass’t Secretary of The SOLSTAN MEAT CORPORATION and made oath to the truth of the foregoing certificate by him signed, before me.

Personally appeared                          Secretary of The                          and made oath to the truth of the foregoing certificate by him signed, before me.

* Unless such date is given it is by law fixed as the first Monday following approval by the Secretary.

* Strike out that which does not apply.

CERTIFICATE OF

MERGER

OF

TRADEWELL FOODS OF CONN.        

                      INCORPORATED              and                        

The     SOLSTAN MEAT CORPORATION                        

                                         AS

              TRADEWELL FOODS OF CONN.,          

                                         INC.                                     

CERTIFICATE OF MERGER

OF

SHOPWELL OF PLAINVILLE, INC.

INTO

TRADEWELL FOODS OF CONN., INC.

1. The name of the surviving corporation in the merger is

TRADEWELL FOODS OF CONN., INC.

2. The Plan of Merger is as follows:

(a) From and after the effective date of the merger hereinafter set forth, all of the property, whether real, personal or mixed, of the said SHOPWELL OF PLAINVILLE, INC. and all debts due it on whatever account, shall be the property of the continuing corporation; and all debts, liabilities and duties of the said SHOPWELL OF PLAINVILLE, INC. shall thenceforth be the obligations of the continuing corporation.

(b) In consideration of the aforesaid assumption by the continuing corporation of the debts, liabilities and duties of SHOPWELL OF PLAINVILLE, INC., the certificates of stock of SHOPWELL OF PLAINVILLE, INC. shall be surrendered and cancelled, and the stockholders of the said SHOPWELL OF PLAINVILLE, INC. shall not be entitled to any interest whatever in any of the capital stock of the continuing corporation, nor to any compensation of any nature whatever for the stock so surrendered by them.

3. The Plan of Merger was adopted by the merging corporations in the following manner:

(a) The plan was approved by resolution adopted by the Board of Directors of each merging corporation.

(b) The plan was approved by the unanimous vote

of all of the outstanding shares of each merging corporation.

Dated at 400 Walnut Ave., this 28 day of May, 1968.

Personally appeared Herbert B. Daitch and Robert Sidorsky and made oath to the truth of the above certificate insofar as it pertains to TRADEWELL FOODS OF CONN., INC., before me.

Personally appeared Herbert B. Daitch and Robert Sidorsky and made oath to the truth of the above certificate insofar as it pertains to SHOPWELL OF PLAINVILLE, INC., before me.

CERTIFICATE OF MERGER

OF

TRADEWELL FOODS OF CONN., INC. and

SHOPWELL FOODS OF CONN., INC.

1. The name of the surviving corporation in the merger is TRADEWELL FOODS OF CONN., INC.

2. A copy of the Plan of Merger is annexed hereto and made a part hereof as though fully set forth herein.

3. The Plan of Merger was adopted by the merging corporations in the following manner:

(a) The Plan was approved by resolutions adopted by the board of directors of each merging corporation.

(b) SHOPWELL FOODS OF CONN., INC. has 10 common shares outstanding all of which voted to adopt the Plan by resolutions.

(c) Since the Plan of Merger will not effect any change in or amendment to the Certificate of Incorporation of the surviving corporation and no new shares of said surviving corporation are to be issued, no shareholders’ meeting was held for adoption of the Plan, pursuant to Section 33-376 (b) (2) of the Connecticut Stock Corporation Act.

Dated this 20^th day of December, 1968.

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Personally appeared          SEYMBUR D. SIMPSON          and         ROBERT SIDORSKY          and made oath to the truth of the above certificate insofar as it pertains to TRADEWELL FOODS OF CONN., INC., before me.

Personally appeared         SEYMBUR D. SIMPSON         and         ROBERT SIDORSKY         and made oath to the truth of the above certificate insofar as it pertains to SHOPWELL FOODS OF CONN., INC., before me.

AGREEMENT OF MERGER OF

SHOPWELL FOODS OF CONN., INC.

INTO

TRADEWELL FOODS OF CONN., INC.

I.         (a) The names of the constituent corporations to the merger are, respectively, SHOPWELL FOODS OF CONN., INC. and TRADEWELL FOODS OF CONN., INC.

(b) The name of the surviving corporation is TRADEWELL FOODS OF CONN., INC.

II.       (a) SHOPWELL FOODS OF CONN., INC. has outstanding 10 common shares entitled to vote.

(b) TRADEWELL FOODS OF CONN., INC. has outstanding 21 1/2 common shares entitled to vote.

(c) Daitch Crystal Dairies, Inc., located at 400 Walnut Avenue, New York, New York 10454 is the sole shareholder of each of the constituent corporations.

III.       The terms and conditions of the merger are as follows:

The bylaws of TRADEWELL FOODS OF CONN., INC., a constituent corporation, as in effect at the time the merger shall become effective, shall be the bylaws of the surviving corporation.

The first annual meeting of the shareholders of the surviving corporation, TRADEWELL FOODS OF CONN., INC., held after the effective date of this merger shall be the next annual meeting provided by its bylaws.

When the merger shall become effective the separate existence of SHOPWELL FOODS OF CONN., INC. shall cease and said corporation shall be merged into the surviving corporation, and the surviving corporation shall possess all the rights, privileges, powers and franchises of a public as well as of a private nature and be subject to all the restrictions, disabilities and duties of each of the corporations, parties to this Agreement, and all and singular, the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, and all debts due to each of said corporations on whatever account, for share subscriptions as well as for all other things in action or belonging to each of such corporations, shall be vested in the surviving corporation; and all property, rights and privileges, powers and franchises and all and every other interest shall be thereafter as effectually the property of the surviving corporation as they were of the several and respective constituent

-2-

corporations, and the title to any real estate, whether by deed or otherwise, vested in any of said corporations, parties hereto, shall not revert or be in any way impaired by reason of this merger, provided that all rights of creditors and all liens upon the property of any of said corporations, parties hereto, shall be preserved unimpaired, and all debts, liabilities and duties of SHOPWELL FOODS OF CONN., INC., shall thenceforth attach to the said surviving corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.

If at any time the surviving corporation shall consider or be advised that any further assignments or assurances in law or any things are necessary or desirable to vest in the surviving corporation, according to the terms thereof, the title to any property or rights of SHOPWELL FOODS OF CONN., INC., the proper Officers and Directors of SHOPWELL FOODS OF CONN., INC., shall and will execute and deliver all such proper assignments and assurances and do all things necessary or proper to vest title in such property or rights in the surviving corporation, and otherwise to carry out the purposes of this Plan of Merger.

-3-

IV.       The manner and basis of conversion of the shares of the constituent corporations are as follows:

A. All of the ten (10) shares of SHOPWELL FOODS OF CONN., INC. shall be surrendered and cancelled.

B. No new shares of TRADEWELL FOODS OF CONN., INC. shall be issued since the sole shareholder is SHOPWELL FOODS OF CONN., INC. also owns all of the shares of TRADEWELL FOODS OF CONN., INC.

V.        The Certificate of Incorporation of TRADEWELL FOODS OF CONN., INC., as in effect at the time the merger shall become effective, shall be the Certificate of Incorporation of the surviving corporation, no amendments or changes thereto being effected as a result of this merger.

Dated: December 10, 1968.

T68089

[illigible]

70 a.r. filed

CERTIFICATE OF MERGER

OF

SHOPWELL BAKER INC.

INTO

TRADEWELL FOODS OF CONN. INC.

1. The name of the surviving corporation in the merger is

TRADEWELL FOODS OF CONN., INC.

2. The Plan of Merger is as follows:

(a) From and after the effective date of the merger hereinafter set forth, all of the property, whether real, personal or mixed, of the said SHOPWELL BAKER, INC. and all debts due it on whatever account, shall be the property of the continuing corporation; and all debts, liabilities and duties of the said SHOPWELL BAKER, INC. shall thenceforth be the obligations of the continuing corporation.

(b) In consideration of the aforesaid assumption by the continuing corporation of the debts, liabilities and duties of SHOPWELL BAKER, INC. the certificates of stock of SHOPWELL BAKER, INC. shall be surrendered and cancelled, and the stockholders of the said SHOPWELL BAKER, INC. shall not be entitled to any interest whatever in any of the capital stock of the continuing corporation, nor to any compensation of any nature whatever for the stock so surrendered by them.

3. The Plan of Merger was adopted by the merging corporations in the following manner:

(a) The Plan was approved by resolution adopted by the Board of Directors of each merging corporation.

(b) The Plan was approved by the unanimous vote

.

CERTIFICATE OF MERGER

of

401 WEST STATE ST. CORPORATION

into

TRADEWELL FOODS OF CONN. INC.

The undersigned corporations by their duly authorized officers do hereby certify that:

FIRST: The names of the merging corporations are 401 WEST STATE ST. CORPORATION, which is a corporation of the State of Connecticut, and which is to be the terminating corporation, and TRADEWELL FOODS OF CONN. INC., which is a corporation of the State of Connecticut, and which is to be the surviving corporation.

SECOND: The Plan of Merger, which has been duly approved by resolution adopted by the directors of each of the merging corporations and approved and adopted by the shareholders thereof, is as follows:

(a) From and after the effective date of the merger, all of the property of 401 West State St. Corporation shall be the property of Tradewell Foods of Conn. Inc., and all debts, liabilities and duties of 401 West State St. Corporation shall thenceforth be the obligations of tradewell Foods of Conn. Inc.

(b) In consideration of the foregoing assumption of obligations, the sole shareholder of 401 West State St. Corporation shall surrender the certificates of stock held by it in such corporation, which certificates shall be surrendered and cancelled, and such shareholder shall receive in exchange therefore 100 shares of stock in Tradewell Foods of Conn. Inc.

THIRD: (a) The number of outstanding shares of 401 West State St. Corporation at the time of the time of the approval and adoption of the Plan of Merger by its shareholders is 300 shares, all of which are of one class and entitled to vote; and the voting power of said shares is one vote per share or an aggregate of 300 votes.

(b) The number of outstanding shares of Tradewell Foods of Conn. Inc. at the time of the approval and adoption of the

Plan of Merger by its shareholders is 21-1/2 shares, all of which are of one class and entitled to vote; and the voting power of said shares in one vote per share or an aggregate of 21-1/2 votes.

FOURTH: The shareholder vote required to approve and adopt the Plan of Merger on behalf of 401 West State St. Corporation is 225 votes; and the shareholder vote required to approve and adopt the Plan of Merger on behalf of Tradewell Foods of Conn. Inc. is 15 votes.

FIFTH: All of the shareholders of 401 West State St. Corporation and Tradewell Foods of Conn. Inc. approved and adopted the Plan of Merger on its behalf by their consent in writing signed by them without a meeting of shareholders; and the voting power represented by the shares held by said consenting shareholders was all of the votes of both such corporations.

Dated at New York, N.Y., on November 26, 1973

The undersigned do hereby declare under the penalties of false statement that the statements contained in the foregoing Certificate of Merger are true insofar as they pertain to 401 West State St. Corporation.

Dated at New York, N.Y., on November 26, 1973

The undersigned do hereby declare under the penalties of false statement that the statements contained in the foregoing Certificate of Merger are true insofar as they pertain to Tradewell Foods of Conn. Inc.

-2-

STATE OF NEW YORK               )

                                                         )   SS.:

COUNTY OF NEW YORK           )

Personally appeared Seymbur Simpson B Robert Sidorsky and made oath to the truth of the foregoing certificate, insofar as it pertains to 401 West State St. Corporation, before me.

Personally appeared Herbert Daitch B Robert Sidorsky and made oath to the truth of the foregoing certificate, insofar as it pertains to Tradewell Foods of Conn. Inc., before me.

CERTIFICATE OF MERGER

The undersigned corporations by their duly authorized officers do hereby certify that:

FIRST: The names of the merging corporations are L. DAITCH CORP. OF CONNECTICUT and SHOPWELL OF WESTPORT, INC., each of which is a corporation of the State of Connecticut, and which are to be the terminating corporations, and TRADEWELL FOODS OF CONN., INC., which is a corporation of the State of Connecticut, and which is to be the surviving corporation.

SECOND: The surviving corporation owns all of the outstanding shares of each of the terminating corporations.

THIRD: The Certificate of Incorporation of the surviving corporation does not prohibit a merger of the kind herein certified and does not require the approval of its shareholders to authorize such merger.

FOURTH: The Certificate of Incorporation of the surviving corporation will not be changed by reason of the merger herein certified.

FIFTH: The Plan of Merger, which has been duly approved by resolution adopted by the Board of Directors of each of the merging corporations, is as follows:

“PLAN OF MERGER approved on July 22, 1974 by L. Daitch Corp. of Connecticut and Shopwell of Westport, Inc., each of which is a corporation of the State of Connecticut, and by resolution duly adopted by their Boards of Directors on said date, and approved by Tradewell Foods of Conn., Inc., a corporation of the State of Connecticut, and by resolution duly adopted by its Board of Directors on said date.

1. L. Daitch Corp. of Connecticut and Shopwell of Westport, Inc., each of which is a corporation of the State of Connecticut, shall be merged with and into Tradewell Foods of Conn., Inc., which is a corporation of the State of Connecticut, and which owns all of the outstanding shares of L. Daitch Corp. of Connecticut and Shopwell of Westport, Inc.

2. No shares of Tradewell Foods of Conn., Inc. will be issued as a result of the mergers herein provided for. Upon the effective date of said mergers, all of the issued shares of L. Daitch Corp. of Connecticut and Shopwell of Westport, Inc. shall be surrendered and extinguished, and each issued share of Tradewell Foods of Conn., Inc. shall continue to represent one issued share of said surviving corporation.

3. The effective date of the mergers herein provided for shall be September 28, 1974.”

Dated at New York, N.Y.

on August 15, 1974

The undersigned do hereby declare under the penalties of false statement that the statements contained in the foregoing Certificate of Merger are true insofar as they pertain to Tradewell Foods of Conn., Inc., L. Daitch Corp. of Connecticut and Shopwell of Westport, Inc., respectively.

WHEREAS, the Corporation desires to be reinstated as a corporation in good standing in the State of Connecticut, it is hereby

RESOLVED, that the officers of the Corporation be, and the same hereby are, authorized and directed to take all actions and make all filings necessary to cause the Corporation to be reinstated as a corporation in good standing in the State of Connecticut.

3.

Action by unanimous consent of Shareholders and Board of Directors

ACTION BY UNANIMOUS CONSENT OF

SHAREHOLDERS AND BOARD OF DIRECTORS

We, the undersigned, being the sole Shareholder and all of the Directors of Tradewell Foods of Conn., Inc., do hereby waive the necessity of notice of a special joint meeting of the Shareholders and Board of Directors of the Corporation and the necessity of holding such a meeting for the purpose of acting upon such resolution and do hereby consent to the adoption and adopt the following resolution to have the same forward effect as if adopted at a formal meeting:

WHEREAS, the Corporation desires to be reinstated as a corporation in good standing in the State of Connecticut, it is hereby

RESOLVED, that the officers of the Corporation be, and the same hereby are, authorized and directed to take all actions and make all filings necessary to cause the Corporation to be reinstated as a corporation in good standing in the State of Connecticut, and it is further

RESOLVED, that the original of this document be made a part of the official minutes of the Corporation.

Dated: November 17, 1982

                      SHOPWELL, INC.,                       as Sole Shareholder           DIRECTORS OF TRADEWELL           FOODS OF CONN., INC.

EX-99.T3A.50

Exhibit A-50

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 09:00 AM 01/20/1999

991023426 – 2995120

CERTIFICATE OF FORMATION

OF

UPPER DARBY STUART, LLC

The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the “Delaware Limited Liability Company Act”), hereby certifies that:

FIRST: The name of the limited liability company (hereinafter called the “Company”) is:

UPPER DARBY STUART, LLC

SECOND: The address of the registered office of the Company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act in the State of Delaware is 1013 Centre Road, in the City of Wilmington, in the County of New Castle, Delaware. The registered agent for service of process at such address is Corporation Services Company.

THIRD:

A. Purpose. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The nature of the business and of the purposes to be conducted and promoted by the Company is to engage solely in the following activities:

(1) To acquire that certain parcel of real property, together with all improvements located thereon, in the City of Upper Darby, Commonwealth of Pennsylvania, commonly known as 421 South 69th Street (the “Property”).

(2) To own, hold, sell, assign, transfer, operate, lease, mortgage, pledge and otherwise deal with the Property.

(3) To exercise all powers enumerated in the Delaware Limited Liability Company Act necessary or convenient to the conduct, promotion or attainment of the business or purposes otherwise set forth herein.

B. Certain Prohibited Activities. Notwithstanding any provision hereof or of any other document governing the formation, management or operation of the Company to the contrary, the following shall govern: The Company shall only incur indebtedness in an amount necessary to acquire, operate and maintain the Property. For so long as any mortgage lien exists on the Property, the Company shall not incur, assume, or guaranty any other indebtedness except the Company may

PH02A/26453.1

guarantee the indebtedness of Pathmark Stores, Inc. and its subsidiaries under that certain Credit Agreement dated as of June 30, 1997 among Pathmark Stores, Inc., the lenders party thereto, the Chase Manhattan Bank, as Administrative Agent, and CIBC Inc. and Corestates Bank, N.A., as Co-Agents, as in effect on the date hereof, and as such agreement may be amended, renewed, extended, supplemented or otherwise modified from time to time and any agreement or successive agreements incurred to refund, refinance or replace such credit agreement (the “Credit Agreement”). The Company shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity unless (i) the entity (if other than the Company) formed or surviving such consolidation or merger or that acquired by conveyance or transfer the properties and assets of the Company substantially as an entirety (a) shall be organized and existing under the laws of the United States of America or any State or the District of Columbia, (b) shall include in its organizational documents the same limitations set forth in this Article Third and Article Fourth, and (c) shall expressly assume the due and punctual performance of the Company’s obligations: and (ii) immediately after giving effect to such transaction, no default or event of default under any agreement to which it is a party shall have been committed by this Company and be continuing. For so long as a mortgage lien exists on the Property, the Company will not voluntarily commence a case with respect to itself, as debtor, under the Federal Bankruptcy Code or any similar federal or state statute without the consent of the Member. For so long as a mortgage lien exists on the Property, no material amendment to this Certificate of Formation may be made without first obtaining approval of the mortgagee holding a first mortgage lien on the property.

FOURTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: For so long as any mortgage lien exists on the Property, in order to preserve and ensure its separate and distinct corporate identify, in addition to the other provisions set forth in this Certificate of Formation, the Company shall conduct its affairs in accordance with the following provisions:

a. It shall establish and maintain an office through which its business shall be conducted separate and apart from those of its parent and any affiliate and shall allocate fairly and reasonably any overhead for shared office space.

b. It shall maintain separate corporate records and books of account from those of its parent and any affiliate.

c. Its Member shall hold appropriate meetings (or act by written consent) to authorize all appropriate actions, and in authorizing such actions, shall observe all formalities applicable to limited liability companies.

d. It shall not commingle assets with those of its parent and any affiliate.

e. It shall conduct its own business in its own name.

f. It shall maintain financial statements separate from its parent and any affiliate.

PH02A/26453.1 - 2 -

g. It shall pay any liabilities out of its own funds, including salaries of any employees, not funds of its parent or any affiliate.

h. It shall maintain an arm’s length relationship with its parent and any affiliate.

i. It shall not guarantee or become obligated for the debts of any other entity, including its parent or any affiliate or hold out its credit as being available to satisfy the obligations of others, except as set forth above.

j. It shall use stationary, invoices and checks separate from its parent and any affiliate.

k. It shall not pledge its assets for the benefit of any other entity, including its parent and any affiliate, except as required by the Credit Agreement.

l. It shall hold itself out as an entity separate from its parent and any affiliate.

For purpose of this Article Fourth, the following terms shall have the following meanings:

“affiliate” means any person controlling or controlled by or under common control with the parent, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any director, officer or employee of the Company, its parent, or any affiliate thereof and (ii) any person which receives compensation for administrative, legal or accounting services from this Company, its parent or any affiliate. For purposes of this definition, “control” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“parent” means any individual, corporation, any other corporation owning or controlling, directly or indirectly, fifty percent (50%) or more of the voting stock of the Company.

“person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

FIFTH: Notwithstanding any provision hereof or of any document governing the formation, management or operation of the Company to the contrary, the following shall govern: Any indemnification shall be fully subordinated to any obligations respecting the Property and shall not constitute a claim against the Corporation in the event that cash flow is insufficient to pay such obligations.

SIXTH: This Certificate of Formation may be amended from time to time by the Member, provided, however, that for so long as any mortgage lien exists on the Property, any such amendment shall be made in compliance with the provisions of Article Third hereof.

PH02A/26453.1 - 3 -

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Upper Darby Stuart, LLC this 14^th day of January, 1999.

UPPER DARBY STUART, INC.

/s/ Marc A. Strassler

Marc A. Strassler

Senior Vice President and Secretary

PH02A/26453.1 - 4 -

EX-99.T3A.51

Exhibit A-51

Waldbaum Cert of Inc

Filed DEC 19, 1921

CERTIFICATE OF INCORPORATION

WE, THE UNDERSIGNED, desiring to form a corporation pursuant to and in conformity with the provisions of the Business Corporation Law, all being of full age, all being citizens of the United States, and all of us residents of the State of New York, do hereby certify:-

FIRST:- That the name of the proposed corporation is WALDBAUN, INC.

SECOND:- The purpose for which said corporation is formed is to buy and sell, on commission or otherwise and generally at wholesale and retail, both or either, butter, milk, cheese and all other dairy products, eggs, poultry, fruits, meats and vegetables, and all kinds of farm produce, and to transact all business incidental or appurtenant thereto and in all things which may be conveniently or advantageously dealt in and with any such business.

(a) To buy, sell, trade and deal in, at wholesale and retail, groceries, provisions, food supplies, wares, produce and all other articles and things incidental to a grocery store, vegetable, food supply, produce and provision mercantile business, and to deal generally in all merchandise and articles for personal, domestic and household use.

(b) To generally carry on a mercantile or merchandise business and to purchase, sell and deal in such goods, supplies and merchandise, and conduct and operate the same in the State of New York and elsewhere, as wholesalers or as retailers, or as both, either for itself, as agent, or for the account of others.

(c) To purchase or otherwise acquire any interests in any patents, brevets brevets d’invention, licenses, concessions and the like conferring an exclusive or non-exclusive or limited right to use, or any secret or other information as to any invention in relation to any of the purposes for which this corporation is organized and to any of the business which may be carried on by it, or generally any invention which may seem to the company capable of being profitably dealt with. To use, exercise, develop, grant licenses in respect of, or otherwise to turn to account any such trade marks, patents, licenses, processes, and the like or any such property or rights.

(d) To purchase, improve, develop, hold and enjoy real estate in fee simple, upon ground rent or lease, and to lease, mortgage, and sell the same in such parts or paroels, improved or unimproved, and on such terms as to time and manner of payment as may be agreed upon.

(e) To purchase, lease, or otherwise acquire, in whole or in part, the business, good will, rights, franchises and property of every kind, and to undertake the whole or any part of the assets or liabilities, of any person, firm, association or corporation engaged in or authorized to conduct any business similar to any business authorized to be conducted by this corporation, or owning property necessary or suitable for its purposes, and to pay for the same in cash, in the stocks or bonds of the company, or otherwise; to hold or in any manner dispose of the whole or any part of the business or property so acquired, and to exercise all the powers necessary or incidental to the conduct of such business.

(f) Subject to the provisions of law, the company may purchase or otherwise acquire, hold and re-issue the shares of its capital stock.

(g) To acquire by purchase, subscription or otherwise and to hold or dispose of stocks, bonds or any other obligations of any corporation formed for, or then or engaged in or pursuing any one or more of the kinds of business, purposes, objects or operations above indicated, or therefore owning or holding any property of any kind herein mentioned, or of any corporation owning or holding the stocks or the obligations of any such corporation.

(h) The business or purposes of the company is from time to time to do any one or more of the acts and things herein set forth.

THIRD:- The amount of the capital stock of said corporation is Twenty-five thousand dollars ($25,000.) and the number of shares of which said capital stock shall consist is two hundred and fifty(250), each of which is to be of the par value of One hundred dollars($100.). All of the stock shall be common stock.

FOURTH:- The amount of capital with which the corporation will begin business is Twenty thousand($20,000.) dollars.

FIFTH:- That the principal office is to be located in the Borough of Brooklyn, City and State of New York.

SIXTH:- The duration of said corporation is to be perpetual.

SEVENTH:- The number of directors of said corporation is three.

EIGHTH:- The names and post office addresses of the directors for the first year as follows:-

NAME	POST OFFICE ADDRESS
SAMUEL WALDBAUM	285 Quincy Street, Brooklyn, N.Y.
WOLF WALDBAUM	759 Greene Avenue, Brooklyn, N.Y.
ISIDORE WALDBAUM	759 Greene Avenue, Brooklyn, N.Y.

NINTH:- The names and post office addresses of the subscribers of this certificate and the number of shares of which each agrees to take in said corporation are as follows:-

NAME	POST OFFICE ADDRESS	NO. OF SHARES
SAMUEL WALDBAUM	285 Quincy St. Brooklyn, N.Y.	1
WOLF WALDAUM	759 Greene Ave. Brooklyn, N.Y.	1
ISIDORE WALDBAUM	759 Greene Ave. Brooklyn, N.Y.	1

TENTH:- It is provided that at all elections of directors of this corporation, each stockholder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors to be elected, and that he may cast all such votes for a single director or may distribute them among the number to be voted for, or any two or more of them, as he may see fit, it being intended hereby that the stockholders of this corporation may exercise the right of cumulative voting as provided in Section 24 of the Stock Corporation Law.

ELEVENTH:- The corporation shall be empowered to enact a By-Law and have the right and authority to restrict the rights of the stockholders to sell, transfer or otherwise dispose of their shares of stock and all persons dealing with this corporation, with respect to its stock and otherwise, and its stockholders shall be bound by the provisions of the By-Laws relating to such limitations and restrictions.

TWELFTH:- Except as otherwise prohibited by Law, the By-Laws of the corporation may permit and allow any and all of the directors or officers of the company, notwithstanding their official relation to it, to enter into, negotiate, consumate and perform any contract or agreement of any nature between the company and themselves or any firms or corporation in which such director or officers may be interested, directly or indirectly, in any matter relating to the business of the company, provided such contract or agreement shall not be in the nature of a secret agreement for the advantage or profit of such director or officer, the intent being to relieve each and every person who may be or become a director of the company, of any disability that might otherwise exist in contracting with this corporation.

IN WITNESS WHEREOF we have made, signed, sealed and executed this certificate the 17^th day of November, in the year one thousand nine hundred twenty-one.

In the presence of

STATE OF NEW YORK	:
CITY OF NEW YORK	:	SS:
COUNTY OF NEW YORK	:

On this 17^th day of November, 1921, before me personally appeared SAMUEL WALDBAUM, WOLF WALDBAUM AND ISIDORE WALDBAUM, to me known and known to me to be the individuals described in and who executed the foregoing certificate, and they duly and severally acknowledged to me that they executed the same.

	NOTARY PUBLIC
	KINGS COUNTY CLERK’S NO. 5
	– N.Y. COUNTY CLERK’S NO. 12

RESTATED CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

PURSUANT TO SECTION 40 OF THE STOCK CORPORATION LAW

*  *  *  *  *  *  *

We, the undersigned, IRA WALDBAUM and JULIA WALDBAUM, being respectively the president and the secretary of WALDBAUM, INC., hereby certify:

1. The name of the corporation is WALDBAUM, INC.

2. The certificate of incorporation was filed in the Office of the Secretary of State on the 19th day of December, 1921.

3. The certificate of incorporation is amended to eliminate purposes clause and add newly revised purposes clause, to authorize new shares, to change issued shares and eliminate unissued shares, to increase the maximum number of directors to fifteen, to eliminate Article TENTH providing for cumulative voting, to insert a provision abolishing preemptive rights, to eliminate Article ELEVENTH authorizing the Board of Directors to adopt by-laws restricting stock transfers, to insert an indemnification provision for officers, directors and stockholders for certain expenses pursuant to §63 of the General Corporation Law, to insert a provision to give the Board of Directors the right to adopt, repeal, amend and alter the by-laws, subject to by-laws adopted by the stockholders, and to insert a provision that none of the officers and directors need be stockholders, and to change the address for mailing of service of process.

a. The certificate of incorporation is amended by eliminating Article SECOND in its entirety and substituting therefor a new Article SECOND.

b. Article THIRD and Article FOURTH as previously amended by the CERTIFICATE OF CHANGE filed November 29, 1946 are amended so as to provide for two million shares of common stock, par value $1.00 per share; 85 issued shares of common stock, par value $100.00 per share are changed into 732,870 shares of new common stock, par value $1.00 per share (each share issued of common stock being changed into 8,622 shares of new common stock); 1200 shares of issued preferred stock, par value $100.00 per share are changed into 10,007 shares of new common stock, par value $1.00 per share; 165 shares of unissued common stock, par value $100.00 and 550 shares of unissued preferred stock, par value $100.00 are eliminated.

c. Article SEVENTH which now provides for a maximum of nine directors will be amended to now provide for a maximum of fifteen directors.

d. Article TENTH which provides for cumulative voting will be eliminated and instead thereof, there will be inserted a new Article TENTH, the effect of which will be to abolish preemptive rights.

e. Article ELEVENTH which authorizes the Board of Directors to adopt by-laws restricting stock transfers is eliminated and instead thereof, there will be inserted a new Article ELEVENTH indemnifying officers, directors, and stockholders from certain expenses pursuant to §63 of the General Corporation Law.

f. A new Article THIRTEENTH will be inserted to provide that the Board of Directors has the right to adopt, repeal, amend and alter the by-laws of the corporation, subject to by-laws adopted by the stockholders.

g. A new Article FOURTEENTH will be inserted to provide that none of the officers and directors of the corporation need be stockholders.

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4. The Certificate of Incorporation, by which the corporation was formed, as amended and supplemented by all certificates heretofore filed pursuant to law and as further amended by the filing of this Restated Certificate of Incorporation reads in full as follows:

FIRST: The name of the proposed corporation is WALDBAUM, INC.

SECOND: The purpose for which the corporation is formed and the business or objects to be carried on and promoted by it are as follows:

To manufacture, assemble, fabricate, produce, purchase, import, receive, lease as lessee, or otherwise acquire, own, hold, store, use, repair, service, maintain, mortgage, pledge or otherwise encumber, sell, assign, lease as lessor, distrubute, export and otherwise dispose of, and generally to trade and deal in and with, as principal, agent or otherwise, groceries, dairy products, meats and vegetables, provisions, produce, poultry, fish, game, foodstuffs, food products, food supplies, teas coffees and beverages, of every character and description, dry goods, cloth, furs, haberdashery, hosiery, millinery, dresses, clocks, suits, hats, clothes, furniture, outfits, gloves, laces, books and shoes, upholstery, jewelry, watches, clocks, books, restaurant operators, tobacconists, cigar makers, confectionary, barbering and hairdressing, photographs, printing, publishing, engraving, stationery, decorations, chemicals, drugs, and such other general merchandise as is ordinarily dealt in by a store selling everything pertaining to goods, wares and merchandise for personal, domestic, household or general use, and to provide and conduct refreshment rooms, reading and writing rooms, rest rooms, dressing rooms and recreation and amusement facilities, and all other and any other articles of a similar or cognate character.

To carry on and conduct a general agency business, to act, and to appoint others to act, as general agent, special agent, broker, factor, manufacturers agent, purchasing agent, sales agent, distributing agent, representative and commission merchant, for individuals, firms, associations, and corporations in the distribution, delivery, purchase and sale of goods, wares, merchandise, property, commodities and articles of commerce of every kind and description, and in selling, promoting the sale of, advertising and introducing, and contracting for the

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sale, introduction, advertisement and use of, services of all kinds, relating to any and all kinds of businesses, for any and all purposes.

To establish, conduct and carry on the general business of a department store and mail order business and all the branches thereof and in connection therewith to carry on all or any of the trades and businesses of dry goods merchants, cloth manufacturers, furriers, haberdashers, hosiers, milliners, dress-makers, cloakmakers, tailors, hatters, clothiers, furnishers, outfitters, glovers, lace manufacturers, boot and shoe makers, saddlers, harness-makers, cabinet-makers, upholsterers, jewelers, gold-and-silversmiths, watch and clock makers, booksellers, restaurant keepers, tobacconists, cigar makers, confectioners, barbers, hairdressers, photographers, printers, publishers, engravers, stationers, decorators, chemists, druggists, and such other general merchandise as is ordinarily dealt in by a store selling everything pertaining to goods, wares and merchandise for personal, domestic, household or general use, and to provide and conduct refreshment rooms, reading and writing rooms, rest rooms, dressing rooms and recreation and amusement facilities.

To buy, sell, exchange, and otherwise trade or deal in or with, export, import, manufacture, grow, raise, otherwise produce, prepare, adapt, handle, store and distribute groceries, dairy products, meats and vegetables, provisions, produce, poultry, fish, game, foodstuffs, food products, food supplies, teas, coffees and beverages, of every character and description, and any and all other articles of a similar or cognate character; and to carry on and conduct a general wholesale and/or retail grocery, provision and restaurant business and any other business or trade suitable or convenient to be carried on in connection therewith or upon the premises used therefor; and to own, manage, control and operate warehouses, stores and chains of stores.

To acquire by purchase, subscription or otherwise, and to receive, hold, own, sell, exchange, pledge, mortgage or otherwise dispose of or deal in all kinds of stocks, bonds, mortgages, debentures, trust receipts, notes, and other securities, obligations, contracts, choses in action and evidence of indebtedness generally of any corporations, associations, firms, trusts, persons, governments, states, colonies, municipalities and other organizations; to receive, collect and dispose of interest, dividends and income upon, of and from any of the foregoing and any other property held or owned by it and to exercise any and all rights, powers and privileges of individual ownership or interest in respect of any and all such stocks or other securities or obligations, including the right to execute consents and vote

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thereon, for any and all purposes, and to do any and all acts and things for the preservation, protection, improvement and enhancement in value thereof and to guarantee the same or become surety in respect thereto, and to aid by loan, subsidy, guarantee or otherwise, those issuing, creating or responsible for the same, and to exercise any and all of said powers, either on its own account, or with or as agent for other persons, firms, corporations or other organizations; and in connection with or in furtherance of any of the business of the corporation, to guarantee or become surety on the obligations, securities or contracts of any other person, firm or corporation, insofar as permitted by law.

To improve, manage and operate real property; to develop real property generally; to buy, sell and exchange real property; to rent and lease real property, improved and unimproved; to make all mortgages of real property and borrow money thereon by mortgage or otherwise; to loan money upon real property, and to take mortgages and assignments of mortgages of the same; to buy, sell and deal in bonds and loans secured by mortgages or other liens on real property.

To acquire by purchase, lease, exchange, hire, gift, devise or otherwise, lands or any interest therein; to erect and construct and operate apartment houses, theatres, buildings, factories and works of every description on any land of the corporation, or upon any other land; to reconstruct, renovate, rehabilitate and improve existing houses, buildings, factories or works thereon; to convert, appropriate and dedicate any such land into and for roads, streets, alleys, avenues and other conveniences; to sell, lease, let, mortgage, farm, improve and otherwise dispose of and manage the lands, houses, buildings and other property of the corporation, to undertake or direct the management and sale of real property, buildings and lands, and to buy and hold real estate of every description, for investment or otherwise.

To deal in, buy, sell acquire, convey, lease, sublet or farm-let, mortgage and encumber real estate or other property, real, personal or mixed, and to sub-divide plot, improve and develop lands for the purpose of sale or otherwise, and to do and perform all things needful or lawful for the development and improvement of same for agricultural, residence, trade or business purposes without limitation as to amount.

To manufacture, purchase, or otherwise acquire, own, mortgage, pledge, sell, assign and transfer, or otherwise dispose of, to invest, trade, deal in and deal with goods, wares and merchandise and real and personal property of every class and description.

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To borrow money, and from time to time, to make, accept, endorse, execute and issue bonds, debentures, promissory notes, bills of exchange, and other obligations of the corporation for moneys borrowed or in payment for property acquired or for any of the other objects or purposes of the corporation or its business and to secure the payment of any such obligations by mortgage, pledge, deed, indenture, agreement or other instrument of trust, or by other lien upon, assignment of or agreement in regard to all or any part of the property, rights or privileges of the corporation, wherever situated, whether now owned or hereinafter to be acquired.

To acquire and take over as a going concern and to carry on the business of any person, firm, association or corporation engaged in any business which this corporation is authorized to carry on, and in connection therewith to acquire the good will and all or any part of the assets and to assume or otherwise provide for all or any of the liabilities of the owner or owners of any such business.

To invest and reinvest the money and funds of the Company in any manner not specifically prohibited by law and to lend the money and funds of the Company with or without security in such manner and upon such terms as may be prescribed by the Board of Directors.

To issue stock of this corporation in exchange for property, real or personal, tangible or intangible, or to acquire any of the things which it is herein authorized to acquire, or in exchange for services.

To purchase, hold, sell and transfer the shares of its own capital stock; provided it shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital except as otherwise permitted by law; and provided further that the shares of its own capital stock belonging to it shall not be voted upon directly or indirectly.

Own, operate and maintain parking lots, garages, stores, depots, repair shops, filling and service stations and to render services of all sorts to owners of motor trucks, automobiles, motors and vehicles; to buy, sell and deal in petroleum and all of its products, gasoline, oils and greases of every nature and description.

To apply for, obtain, register, purchase, lease, or otherwise to acquire, and to hold, use, own, operate and introduce, and to sell, assign, pledge, or otherwise dispose of any copyrights, trademarks, trade names, patents, inventions, improvements, formulas and processes used in connection with

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or secured under letters patent of the United States or of any foreign country, or elsewhere, or otherwise, and to use, exercise, develop, grant, licenses in respect of, or otherwise turn to account any such copyrights, trade-marks, trade names, patents, inventions, improvements, formulas, processes and the like, or any such property or rights, and with a view to the working and development thereof to carry on any lawful business which this corporation may consider calculated to effectuate the use, exercise or development thereof.

To conduct manufacturing operations of all kinds; to manufacture, purchase or otherwise acquire, own, hold, mortgage, pledge, sell, assign, transfer or otherwise dispose of, invest, trade, deal in and deal with, goods, wares, merchandise and property, tangible or intangible, and of every class and description; to transact a general mercantile business.

Subject to the provisions of law, to issue, sell, purchase, retire, redeem, hold, reissue, transfer, and otherwise dispose of shares of its own capital stock of any class and to enter into any contracts, agreements, or undertakings of any nature in aid of, or otherwise in connection with any issue, sale, purchase, retirement, redemption, holding, reissue transfer, or other disposition of any shares of its capital stock.

To purchase or otherwise acquire the whole or any part of the business, good will, rights, property and assets, and to assume or undertake or guaranty the whole or any part of the liabilities of any persons, partnership, association or corporation, as a going concern, or otherwise, and to pay for the same in cash, notes, stock, bonds, debentures, or other securities of this corporation, or otherwise, in any manner permitted by law.

To make and enter into, and to carry out, any and all contracts with any person, firm, association or corporation, private, public or municipal, and with any government or public authorities, and for or in relation to any of the businesses, objects or purposes herein set forth, or any business lawfully carried on by this corporation.

In connection with or in furtherance of any of the business of the corporation, to make and enter into any guaranty or agreement of suretyship respecting the payment and/or performance of bonds, mortgages, debentures and other securities, contracts, obligations, interests, dividends, rents, earnings, profits, premiums, credits, payments or transfers of property of any kind.

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To carry on all or any part of the foregoing object as principal or agent, or in connection or conjunction with any person, firm, trust, corporation or other organization and in any part of the world, and in general to do any and all things and carry on any business incident to the foregoing, and to exercise all the powers conferred upon the corporation by the laws of the State of New York or any other law that may be now or hereafter applicable to the corporation, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do.

To do all and everything necessary, suitable and proper for the accomplishment of any of the purposes, or the attainment of any of the objects, or the furtherance of any of the powers hereinbefore set forth, either alone or in association with other corporations, associations, firms or individuals, and either as principal or as agent, and to do every other lawful act or acts, thing or things incidental or appurtenant to or growing out of, or connected with the aforesaid business or businesses, or object or objects, purpose or purposes, or any part or parts thereof.

To conduct its business and any or all of its branches, and to acquire, own, dispose of and generally deal with real and personal property, and to establish and maintain offices and agencies, so far as permitted by law, in any state or territory of the United States of America and in the District of Columbia and in any and all dependencies, colonies or possessions of the United States and in foreign countries.

To own, manage, control and operate food markets, food supermarkets and general supermarkets.

To buy, dress, prepare for use, sell distribute, trade and deal in meats, cattle, sheep, hogs, poultry, game birds and animals, fish, oysters and sea food products, lard, tallow, fat, grease and other animal products, milk, butter, eggs and other dairy products, fruits and vegetables, groceries, canned goods and food products of every description.

To raise, purchase, sell and slaughter cattle, sheep, swine and other livestock for food purposes; to preserve, pack, prepare for market, buy, sell, trade and deal in fresh, salt and smoked meats and provisions and food products of all kinds usually prepared and manufactured at meat packing houses; to carry on a general packing house business and such other business as may be incidental thereto or connected therewith; to build, equip, maintain and operate abattoirs, stockyards, refrigerating and cold storage houses and such other buildings, machinery, appliances and accessories as may be necessary, appurtenant or incidental to the furtherance of any of the business or purposes of the company; to prepare for market and sell, and to purchase, sell and trade in all kinds of animal products, including

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hides, hair, bristles, fat, tallow, lard, grease, oil, offal, horn, bone, boneblack, glue, fertilizers and any and all byproducts obtainable from the slaughtering of animals for food purposes.

In general, to do any and all things and exercise any and all powers which may now or hereafter be lawful for the corporation to do or exercise under and in pursuance of the laws of the State of New York or any other laws that may now or hereafter be applicable to the corporation.

The foregoing clauses are cumulative and shall be construted both as objects and powers and as in furtherance of and not in limitation of the general powers conferred by the State of New York; and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation.

THIRD: The amount of the capital stock shall be Two Million Dollars ($2,000,000.).

FOURTH: The number of shares of which the capital stock shall consist is two million (2,000,000) shares of common stock of the par value of One Dollar ($1.00) per share.

FIFTH: The principal office is to be located in the Borough of Brooklyn, City and State of New York.

The Secretary of State is designated as the agent of the corporation upon whom process in any action or proceeding against the corporation may be served, and the address to which process may be mailed is 2300 Linden Blvd., Brooklyn, N.Y.

SIXTH: The duration of said corporation is to be perpetual.

SEVENTH: The number of directors of said corporation shall not be less than three (3) nor more than fifteen (15) in number.

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EIGHTH: The names and post office addresses of the directors for the first year are as follows:

NAME	POST OFFICE ADDRESS
SAMUEL WALDBAUM	285 Quincy Street, Brooklyn, N.Y.
WOLF WALDBAUM	759 Greene Avenue, Brooklyn, N.Y.
ISIDORE WALDBAUM	759 Greene Avenue, Brooklyn, N.Y.

NINTH: The names and post office addresses of the subscribers of this certificate and the number of shares of which each agrees to take in said corporation are as follows:

NAME	POST OFFICE ADDRESS	NO. OF SHARES
SAMUEL WALDBAUM	285 Quincy St., Brooklyn, N.Y.	1
WOLF WALDBAUM	759 Greene Ave., Brooklyn, N.Y.	1
ISIDORE WALDBAUM	759 Greene Ave., Brooklyn, N.Y.	1

TENTH: No stockholder of this corporation shall by reason of his holding shares of any class have any preemptive or preferential right to purchase or subscribe to any shares of any class of this corporation, now of hereafter to be authorized or any notes, debentures, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, now or hereafter to be authorized, whether or not the issuance of any such shares, or such notes, debentures, bonds or other securities, would adversely affect the dividend or voting rights of such stockholder, other than such rights, if any, as the Board of Directors, in its discretion from time to time may grant, and at such price as the Board of Directors in its discretion may fix; and the Board of Directors may issue shares of any class of this corporation, or any notes, debentures, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, without offering any such shares of any class, either in whole or in part, to the existing stockholders of any class.

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ELEVENTH: Any person made a party to any action, suit or proceeding by reason of the fact that he, his testator or intestate, is or was a director, officer or employee of the corporation or of any corporation which he served as such at the request of the corporation, shall be indemnified by the corporation against the reasonable expenses, including attorneys’ fees, actually and necessarily incurred by him in connection with the defense of such action, suit or proceeding, or in connection with any appeal therein, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such officer, director or employee is liable for negligence or misconduct in the performance of his duties. Such right of indemnification shall not be deemed exclusive of any other rights to which such director, officer or employee may be entitled apart from this statute.

TWELFTH: Except as otherwise prohibited by law, the by-laws of the corporation may permit and allow any and all of the directors or officers of the company, notwithstanding their official relation to it, to enter into, negotiate, consumate and perform any contract or agreement of any nature between the company and themselves or any firms or corporation in which such director or officers may be interested, directly or indirectly, in any matter relating to the business of the company, provided such contract or agreement shall not be in the nature of a secret agreement for the advantage or profit of such director or officer, the intent being to relieve each and every person who may be or become a director of the company, of any disability that might otherwise exist in contracting with this corporation.

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THIRTEENTH: The Board of Directors has the right to adopt, repeal, amend and alter the by-laws of the corporation, subject to by-laws adopted by the stockholders.

FOURTEENTH: None of the officers and directors, present or future, of the corporation need be stockholders.

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IN WITNESS WHEREOF, we have made, subscribed and acknowledged this certificate this 7^th day of July, 1961.

IRA WALDBAUM

JULIA WALDBAUM

STATE OF NEW YORK    )

                                              )        ss:

COUNTY OF NEW YORK)

On the 7^th day of July, 1961, before me personally came IRA WALDBAUM and JULIA WALDBAUM, to me known, and known to me to be the persons described in and who executed the foregoing certificate, and they severally duly acknowledged that they executed the same.

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STATE OF NEW YORK    )

                                              )        ss:

COUNTY OF NEW YORK)

IRA WALDBAUM, being duly sworn, deposes and says:

That he is the president of WALDBAUM, INC.:

That the number of additional shares not resulting from a change of shares which the corporation is hereby authorized to issue is 1,257,123 and the par value thereof is One Dollar ($1.00) per share; the number of common shares changed is 85 and the par value thereof is One Hundred Dollars ($100.00) per share and the number of shares resulting from such change is 732,870 and the par value thereof is One Dollar ($1.00) per share: and the number of preferred shares changed is 1200 shares and the par value thereof is One Hundred Dollars ($100.00) per share and the number of shares resulting from such change is 10,007 and the par value thereof is One Dollar ($1.00) per share.

President

Subscribed and sworn to

before me this 7^th day

of July, 1961.

STATE OF NEW YORK	)
	)	ss:
COUNTY OF NEW YORK	)

IRA WALDBAUM and JULIA WALDBAUM, being duly sworn, depose and say and each for himself deposes and says: that IRA WALDBAUM is the president of WALDBAUM, INC., and that JULIA WALDBAUM is the secretary of said corporation; that they have been authorized to execute and file the foregoing certificate by the votes, cast in person or by proxy, of the holders of record of two-thirds of the outstanding shares entitled to vote at the stockholders’ meeting at which such votes were cast, with relation to the proceedings provided for in the foregoing certificate;

That they have also been authorized to execute and file the foregoing certificates by the votes, cast in person of by proxy, of the holders of record of two-thirds of the outstanding shares of each class which will be adversely affected by the proceedings provided for by the foregoing certificate and which was entitled to vote at the stockholders’ meeting at which such votes were cast with relation to such proceedings:

That neither the certificate of incorporation nor any other certificate filed pursuant to law requires a larger proportion of votes;

That such votes were cast at a stockholders’ meeting held upon written waiver, pursuant to Sec. 31 of the General Corporation Law, of the notice required by Sec. 45 of the Stock Corporation Law, by every stockholder entitled to said notice or entitled to participate in the action to be taken;

and that such meeting was held on the 7^th day of July, 1961.

/s/

IRA WALDBAUM, President

/s/

JULIA WALDBAUM, Secretary

Subscribed and sworn to
before me this 7th day
of July, 1961.

STATE OF NEW YORK	)
	)	ss:
COUNTY OF NEW YORK	)

IRA WALDBAUM and IRVING LEFFEL, being duly and severally sworn, each for himself deposes and says: that he, the said IRA WALDBAUM, is president and that he, the said IRVING LEFFEL, is treasurer of WALDBAUM, INC., and that by resolution of the board of directors of said corporation a sum at lease equal to the amount of increase of the aggregate par value of its issued shares having par value provided for in the foregoing certificate has been transferred from surplus to capital.

President

Treasurer

Subscribed and sworn to
before me this 7th day
of July, 1961.
Notary Public

RESTATED CERTIFICATE

OF INCORPORATION

OF

WALDBAUM, INC.

PURSUANT TO SECTION 40

OF THE

STOCK CORPORATION LAW

STATE OF NEW YORK

DEPARTMENT OF STATE

FILED JUL 17 1961

TAX $ 990.75

FILING FEE $ 30

Secretary of State

By:

LEWIS, DURANTE & BARTEL

ATTORNEYS AT LAW

685, MADISON AVENUE

NEW YORK 21, N.Y.

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

Under Section 805 of the Business Corporation Law

IRA WALDBAUM and JULIA WALDBAUM, being respectively the President and Secretary of WALDBAUM, INC. (hereinafter called the “corporation”), do hereby certify as follows:

1. The name of the Corporation is WALDBAUM, INC.

2. The Certificate of Incorporation was filed by the Department of State on December 19, 1921.

3. The Certificate of Incorporation is hereby amended as authorized by Section 801 of the Business Corporation Law to increase the total number of shares of Common Stock which the Corporation shall be authorized to issue and to authorize the creation of a new class

1.

of Preferred Stock, and to fix the number and the par value of the shares of each class and the designations, relative rights, preferences and limitations of the classes of shares, as follows:

Article THIRD, which presently reads:

“THIRD: The amount of the capital stock shall be Two Million Dollars ($2,000,000).”

shall be amended to read as follows:

“THIRD: The amount of the capital stock shall be Eight Million Dollars ($8,000,000).”

Article FOURTH, which is to be deleted in its entirety, presently read as follows:

“FOURTH: The number of shares of which the capital stock shall consist is two million (2,000,000) shares of common stock of the par value of One Dollar ($1.00) per share.”

The deleted Article FOURTH is to be replaced by a new Article FOURTH, which after the amendment will read as follows:

“FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is Eight Million (8,000,000) shares, of which One Million (1,000,000) shares shall be

2.

shares of Preferred Stock, of the par value of One Dollar ($1.00) per share (“Preferred Stock”), and Seven Million (7,000,000) shares shall be shares of Common Stock, of the par value of One Dollar ($1.00) per share (“Common Stock”).

The designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of each class of stock of the Corporation which are fixed by this Certificate of Incorporation, and the express grant of authority of the Board of Directors of the Corporation to fix by resolution the designations and the powers, preferences and rights of each such class, and the qualifications, limitations or restrictions thereof, are as follows:

1. Shares of Preferred Stock may be issued from time to time in one or more series. All shares of Preferred Stock shall be of equal rank and shall be identical in all respects, except in respect of the particulars fixed by the Board of Directors for series of the Preferred Stock as permitted hereby. Each series of Preferred Stock shall be distinctively designated and all shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except that shares of any one series with cumulative dividend rights which are issued at different times may differ as to the dates from which dividends thereon shall be cumulative.

2. Authority is hereby expressly granted to the Board of Directors to create and provide for the issue of series of the Preferred Stock from time to time by

3.

resolution, and, in connection with the creation of each such series, to fix, by the resolution providing for the creation and issue of shares of such series, the following provisions of the shares of such series, so far as not inconsistent with the provisions of this Article FOURTH applicable to all series of Preferred Stock:

(a) The designation of such series and the number of shares which shall constitute such series;

(b) The provisions, if any, for dividends on shares of such series, and, if provisions are made for dividends, the dividend rate and the times at which holders of shares of such series shall be entitled to receive the dividends, whether the dividends shall be cumulative, and if so, from which date or dates, and the other conditions, if any, including rights of priority, if any, on which the dividends shall be paid;

(c) The provisions, if any, for the redemption or purchase of shares of such series, and, if provisions are made for redemption, the time or times and the price or prices at which the shares of such series shall be subject to redemption in whole or in part, and the other terms and conditions, if any, on which shares of such series may be redeemed or purchased;

(d) The rights, if any, to which holders of the shares of such series shall be entitled in the event of the dissolution of or upon any distribution of the assets of the Corporation:

4.

(e) The sinking fund or purchase fund provisions, if any, for the redemption or purchase of shares of such series and, if any such fund is so provided for the benefit of such shares, the amount of such fund and the manner of its application;

(f) The extent of the voting powers, if any, of the shares of such series;

(g) Whether or not the shares of such series shall be convertible into, or exchangeable for, shares of any other class or classes of stock, or of any series thereof, of the Corporation, and, if so convertible or exchangeable, the conversion or exchange price or prices or rates, the adjustments thereof and the other terms and conditions, if any, on which such shares shall be so convertible or exchangeable ; and

(h) Any other preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of shares of such series as are not fixed and determined hereby.

3. At every meeting of the stockholders of the Corporation, every holder of Common Stock entitled to vote shall be entitled to one vote for each share of Common Stock registered in his name on the books of the Corporation.

4. Except as may be provided in the terms and conditions fixed by the Board of Directors for any series of Preferred Stock, the number of authorized shares of

5.

any class or classes of stock of the Corporation may be increased or decreased by the affirmative vote of the holders of a majority of the outstanding shares of stock of the Corporation entitled to vote.”

4. The above amendments to the Certificate of Incorporation were authorized by the affirmative vote of the holders of a majority of all outstanding shares entitled to vote thereon at the Annual Meeting of Stock-holders of the Corporation held on June 19, 1969.

IN WITNESS WHEREOF, the undersigned have executed this Certificate and hereby affirm under penalty of perjury the truth of the statements contained therein, this 19^th day of July, 1969.

/s/ Ira Waldbaum

IRA WALDBAUM, President

/s/ Julia Waldbaum

JULIA WALDBAUM, Secretary

6.

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

Under Section 805 of the Business Corporation Law

7.

CERTIFICATE OF CHANGE

UNDER SECTION 805-A OF THE BUSINESS CORPORATION LAW

RE, THE UNDERSIGNED, IRA WALDBAUM and IRVING LEFFEL, being respectively the president and the assistant secretary of the New York Corporation named herein, hereby certify:

1. The name of the Corporation is WALDBAUM, INC.

2. The certificate of incorporation of said Corporation was filed by the Office of the Secretary of State, or by the Department of State, on December 19, 1921

3. The following changes were authorized by the Board of Directors: To change the principal office of the Corporation to “700 Eastgate Boulevard South, Garden City, New York 11532 (Nassau County)” and to change the post office address to which the Secretary of State shall mail a copy of process which may be served on him in any action or proceeding against the Corporation from “c/o Lewis, Durante & Bartel, 655 Madison Avenue, New York, New York”                                                                   to c/o “Javits Trubin sillcocks & Edelman, 375 Park Avenue, New York, New York 10022.”

IN WITNESS WHEREOF, we have signed this certificate on the 15^th day of December, 1969 and we affirm the statements contained herein as true under penalties of perjury.

/s/ Ira Waldbaum

IRA WALDBAUM, President

/s/ Irving Leffel

IRVING LEFFEL, Assistant Secretary

1

CERTIFICATE OF CHANGE

UNDER SECTION 805-A OF THE

BUSINESS CORPORATION LAW

WALDBAUM INC.
700 Eastgate Boulevard South
Garden City, New York

2

CERTIFICATE OF CHANGE

OF

WALDBAUM, INC.

Under Section 805-A of the

Business Corporation Law

The undersigned, Ira Waldbaum and Julia Waldbaum, being respectively the President and Secretary of the Corporation, hereby certify as follows:

FIRST: The name of the Corporation is Waldbaum, Inc.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State on the 19^th day of December, 1921.

THIRD: The change to be effected by this Certificate of Change is as follows:

To change the principal office of the Corporation to the “Town of Islip, County of Suffolk”.

FOURTH: The change of the Certificate of Incorporation was authorized by a vote of a majority of directors at a meeting of the Board of Directors at which a quorum was present .

IN WITNESS WHEREOF, we hereunto sign our names

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and affirm that the statements made herein are true under the penalties of perjury this 14^th day of November, 1974.

WALDBAUM, INC.

/s/ Ira Waldbaum

Ira Waldbaum, President

/s/ Julia Waldbaum

Julia Waldbaum, Secretary

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CERTIFICATE OF CHANGE

OF

WALDBAUM, INC.

Under Section 805-A of the Business Corporation Law

STATE OF NEW YORK

DEPARTMENT OF STATE

FILED NOV 20 1974

TAX $NONE

FILING FEE $10

TRUBIN SILLCOCKS EDELMAN & KNAPP

375 Park Avenue

New York, New York 10022

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CERTIFICATE OF CHANGE

OF

WALDBAUM, INC.

(Under Section 805-A of the

Business Corporation Law)

1. The name of the corporation is Waldbaum, Inc.

2. The Certificate of Incorporation was filed by the Department of State on December 19, 1921.

3. The Certificate of Incorporation is amended to change the post-office address to which the Secretary of State shall mail a copy of process against the Corporation served upon him.

4. To accomplish the foregoing, Article FIFTH of the Certificate of Incorporation is deleted in its entirety, and a new Article FIFTH is hereby substituted in lieu thereof to read as follows:

“FIFTH: The office of the Corporation is to be located in the Town of Islip, the County of Suffolk and the State of New York.

The Secretary of State of the State of New York is hereby designated as the agent of the Corporation upon whom process in any action against the Corporation may be served. The post-office address to which the Secretary of State shall mail a copy of any process against the Corporation served upon him is c/o Bartel Engelman & Fishman, One Dag Hammarskjold Plaza, New York, New York 10017.”

1

5. The foregoing change of the Certificate of Incorporation was approved by the Board of Directors of the Corporation.

IN WITNESS WHEREOF, we have signed this certificate on the 13^th day of May, 1976, and the affirm the statements contained herein as true under penalty of perjury.

/s/ Ira Waldbaum

Ira Waldbaum, President

/s/ Julia Waldbaum

Julia Waldbaum, Secretary

2

CERTIFICATE OF CHANGE

OF

WALDBAUM, INC.

(Under Section 805-A of the

Business Corporation Law)

STATE OF NEW YORK

DEPARTMENT OF STATE

TAX $NONE

FILING FEE $10

FILED MAY 25 1976

3

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

(Under Section 805 of the Business Corporation Law)

The undersigned, pursuant to the provisions of Section 805(a) of the Business Corporation Law of the State of New York, hereby amends the Certificate of Incorporation of Waldbaum, Inc., a New York corporation (the “Corporation”), and certifies that:

FIRST: The name of the Corporation is Waldbaum, Inc.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York, on the 19th day of December, 1921.

THIRD: Article FIFTH of the Certificate of Incorporation is deleted in its entirety, and a new Artice FIFTH is hereby substituted in lieu thereof to read as follows:

“FIFTH: The office of the Corporation is to be located in the Town of Islip, the County of Suffolk and the State of New York.

The Secretary of State is designated as the agent of the Corporation upon whom process against the Corporation may be served, and the address to which the Secretary of State shall mail a copy of any process against

1

the Corporation served upon him is c/o The President, Waldbaum, Inc., Hemlock Street and Boulevard Avenue, Central Islip, New York 11722.”

FOURTH: The change of the Certificate of Incorporation was authorized by the unanimous written consent of the Executive Committee of the Board of Directors of the Corporation.

IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury, this 23^rd day of March 1981.

/s/ Ira Waldbaum

Ira Waldbaum, President

/s/ Julia Waldbaum

Julia Waldbaum, Secretary

2

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

(Under Section 805 of the Business Corporation Law)

3

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

Under Section 805 of the Business Corporation Law

The undersigned, Ira Waldbaum and Julia Waldbaum, being respectively, the President and Secretary of Waldbaum, Inc. (the “Corporation”) pursuant to the provisions of Section 805 (a) of the Business Corporation Law of the State of New York hereby amend the Certificate of Incorporation of the Corporation and certify as follows:

FIRST: The name of the Corporation is Waldbaum, Inc.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York, on the 19^th day of December, 1921.

THIRD: The Certificate of Incorporation is amended to increase the number of shares of Common Stock authorized of the Corporation from 8,000,000 shares of which One Million shares are shares of Preferred Stock, $1 par value (“Preferred Stock”) and Seven Million (7,000,000) shares are shares of Common Stock, $1.par value (“Common Stock”) to Thirteen Million (13,000,000) shares of which One Million (1,000,000) shares shall be shares of Preferred Stock, $1 par value, and

Twelve Million (12,000,000) shares shall be shares of Common Stock, par value $1.00 per share. Article THIRD and FOURTH of the Certificate of Incorporation, as amended, restated and supplemented by any certificate filed pursuant to law, are hereby amended so as to read as follows:

THIRD: The amount of capital stock shall be Thirteen Million Dollars ($13,000,000).

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is thirteen million (13,000,000) shares of which one million (1,000,000) shares shall be shares of Preferred Stock of the par value of One Dollar ($1.00) per share (“Preferred Stock”) and Twelve Million (12,000,000) shares shall be shares of Common Stock, of the par value of One Dollar ($1.00) per share (“Common Stock”).

FOURTH: This Amendment to the Certificate of Incorporation was authorized by the vote of a majority of all outstanding shares entitled to vote on an amendment to the Certificate of Incorporation at an annual meeting of shareholders, held on May 17, 1984 at the offices of the Corporation.

FIFTH: Except as expressly amended herein, the Certificate of Incorporation shall continue in full force and effect.

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IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury this 17^th day of May 1984.

/s/ Ira Waldbaum

Ira Waldbaum

President

/s/ Julia Waldbaum

Julia Waldbaum

Secretary

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STATE OF NEW YORK

DEPARTMENT OF STATE

FILED JUN 21 1984

AMT. OF CHECK $2573.50

FILING FEE $60

TAX $2500.50

REFUND $            

SPEC HANDLE $10

BY:

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

WALDBAUM, INC.

Under Section 805 of the Business Corporation Law

The undersigned, Ira Waldbaum and Julia Waldbaum, being respectively, the President and Secretary of Waldbaum, Inc. (the “Corporation”) pursuant to the provisions of Section 805 (a) of the Business Corporation Law of the State of New York, hereby amend the Certification of Incorporation of the Corporation and certify as follows:

FIRST: The name of the Corporation is Waldbaum, Inc.

SECOND: The Certificate of Incorporation of the Corporation was filed by the Department of State, Albany, New York, on the 19^th day of December, 1921.

THIRD: The Certificate of Incorporation is amended to redesignate the Common Stock as Class A Stock and to create a new class of stock by changing the number of shares of the Corporation authorized from Thirteen Million (13,000,000) shares of which One Million (1,000,000) shares are shares of Preferred Stock, $1.00 par value (“Preferred Stock” ) and Twelve Million (12,000,000) shares are shares of Common Stock, $1.00 par value (“Common Stock”) to Twenty Million (20,000,000) shares of which

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One Million (1,000,000) shares shall be shares of Preferred Stock, $1.00 par value, Twelve Million (12,000,000) shares shall be shares of Class A Stock, par value $1.00 per share and Seven Million (7,000,000) shares shall be shares of Class B Stock, par value $1.00 per share and to establish the rights, powers and limitations of the Class A Stock and the Class B Stock. Article THIRD and FOURTH of the Certificate of Incorporation, as amended, restated and supplemented by any certificate filed pursuant to law, are hereby amended so as to read as follows:

THIRD: The amount of capital stock shall be Twenty Million Dollars ($20,000,000).

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is Twenty Million (20,000,000) shares of which One Million (1,000,000) shares shall be shares of Preferred stock of the par value of One Dollars ($1.00) per share (“Preferred Stock”), Twelve Million (12,000,000) shares shall be shares of Class A Stock, of the par value of One Dollar ($1.00) per share (“Class A Stock”) and Seven Million (7,000,000) shares shall be shares of Class B Stock, of the par value of One Dollar ($1.00) per share (“Class B Stock”).

The designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, of each class of stock of the Corporation which are fixed by this Certificate of Incorporation, and the express grant of authority of the Board of Directions of-the Corporation to fix by resolution the designations and the powers, preferences and rights of each such class, and the qualifications, limitations or restrictions thereof, are as follows:

1. Shares of Preferred Stock may be issued from time to time in one or more series. All shares of Preferred Stock shall be of equal rank and shall be identical in all respects, except in respect of the particulars fixed by the Board of Directors for series of the Preferred Stock as permitted hereby. Each series of Preferred Stock shall be distinctively designated and all shares of any one series of Preferred Stock shall be identical in all respects with all other shares of such series, except that shares of

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any one series with cumulative dividend rights which are issued at different times may differ as to the dates from which dividends thereon shall be cumulative.

2. Authority is hereby expressly granted to the Board of Directors to create and provide for the issue of series of the Preferred Stock from time to time by resolution, and, in connection with the creation of each such series, to fix, by the resolution providing for the creation and issue of shares of such series, the following provisions of the shares of such series, so far as not inconsistence with the provisions of this Article FOURTH applicable to all series of Preferred Stock:

(a) The designation of such series and the number of shares which shall constitute such series;

(b) The provisions, if any, for dividends on shares of such series, and, if provisions are made for dividends, the dividend rate and the times at which holders of shares of such series shall be entitled to receive the dividends, whether the dividends shall be cumulative, and if so, from which date or dates, and the other conditions, if any, including rights of priority, if any, on which the dividends shall be paid;

(c) The provisions, if any, for the redemption or purchase of shares of such series, and, if provisions are made for redemption, the time or times and the price or prices at which the shares of such series shall be subject to redemption in whole or in part, and the other terms and conditions, if any, on which shares of such series may be redeemed or purchased;

(d) The rights, if any, to which holders of the shares of such series shall be entitled in the event of the dissolution of or upon any distribution of the assets of the Corporation;

(e) The sinking fund or purchase fund provisions, if any, for the redemption or purchase of shares of such series and, if any such fund is so provided for the benefit of such shares, the amount of such fund and the manner of its application;

(f) The extent of the voting powers. if any, of the shares of such series;

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(g) Whether or not the shares of such series shall be convertible into, or exchangeable for, shares of any other class or classes of stock, or of any series thereof, of the Corporation, and, if so convertible or exchangeable, the conversion or exchange price or prices or rates, the adjustments thereof and the other terms and conditions, if any, on which such shares shall be so convertible or exchangeable; and

(h) Any other preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of shares of such series as are not fixed and determined hereby.

3(a) Subject to the rights of the holders of the Preferred Stock and subject to any other provisions of the Certificate of Incorporation, as amended from time to time, holders of Class A Stock and Class B Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefore, provided, that in the case of cash dividends, if at any time a cash dividend is paid, the Class A Stock shall be entitled to an amount per share equal to $.05 per share per annum greater than the amount paid on the Class B Stock on a non-cumulative basis. Further, in the case of dividends or other distributions payable in stock of the Corporation other than Preferred Stock, including distributions pursuant to stock splits or divisions of stock of the Corporation other than Preferred Stock, which occur after the initial issuance of shares of Class B Stock by the Corporation, holders of Class A Stock and Class B Stock shall be entitled to receive such. stock distributions in an equal amount per share and only shares of Class A Stock will be distributed with respect to Class A Stock and only Class B Stock will be distributed with respect to Class B Stock.

(b) At every meeting of the shareholders every holder of Class A Stock shall be entitled to one vote in person or by proxy for each share of Class A Stock standing in his name on the transfer books of the Corporation and every holder of Class B Stock shall be entitled to ten votes per share for each share of Class B Stock standing in his name on the transfer books of the Corporation.

-4-

(c) Except as may otherwise be required by law or by this Article FOURTH, holders of Class A Stock and Class B Stock shall vote together as a single class, subject to any voting rights which may be granted to holders of Preferred Stock.

(d) In the event of a sale of all or substantially all of the assets of the Corporation or merger in which the Corporation is not the surviving entity, all shares of Class B Stock will automatically convert back into shares of Class A Stock without exchange of certificates, or further notice to holders of the Class B Stock.

(e) Subject to the terms and conditions of this Article FOURTH, each share of Class B Stock shall be convertible at any time or from time to time, at the option of the respective holder thereof, at the office of any transfer agent for Class B Stock, and at such other place or places, if any, as the Board of Directors may designate, or, if the Board of Directors shall fail so to designate, the principal office of the Corporation (attention of the Secretary of the Corporation), into one fully paid and non-assessable share of Class A Stock. The Corporation will as soon as practicable after such deposit of a certificate or certificates for Class B Stock, issue and deliver at the office of said transfer agent (or other place as provided above) to the person for whose accounts such Class B Stock is so surrendered, or to his nominee or nominees, a certificate or certificates for the number of full shares of Class A Stock to which he shall be entitled as aforesaid. Such conversion shall be deemed to have been made as of the date of such surrender of Class B Stock to be converted; and the person or persons entitled to receive the Class A Stock issuable upon conversion of the Class B Stock shall be treated for all purposes as the record holder or holders of such Class A Stock on such date.

(f) The Corporation shall at all times reserve and keep available, out of its authorized and unissued or treasury stock, solely for the purpose of effecting the conversion of Class B Stock, such number of shares of Class A Stock as shall from time to time be sufficient to effect the conversion of all shares of Class B Stock from time to time outstanding.

4. Except as may be provided in the terms and conditions fixed by the Board of Directors for any series of Preferred Stock, or as may be required by law, the number of authorized shares of any class or classes of stock of the Corporation may be increased or

-5-

decreased by the affirmative vote of the holders of a majority of the outstanding shares of stock of the Corporation entitled to vote.

FOURTH: This Amendment to the Certificate of Incorporation was authorized by the Board of Directors followed by the vote of a majority of all outstanding shares entitled to vote on an amendment to the Certificate of Incorporation at an annual meeting of shareholders, held on June 13, 1985 at the offices of the Corporation.

FIFTH: Except as expressly amended herein, the Certificate of Incorporation shall continue in full force and effect.

IN WITNESS WHEREOF, we hereunto sign our names and affirm that the statements made herein are true under the penalties of perjury this 13th day of June, 1985.

/s/ Ira Waldbaum

Ira Waldbaum,

President

/s/ Julia Waldbaum

Julia Waldbaum,

Secretary

-6-

CERTIFICATE OF AMENDMENT   OF THE   CERTIFICATE OF INCORPORATION   OF   WALDBAUM, INC.   Under Section 805 of the Business Corporation Law STATE OF NEW YORK DEPARTMENT OF STATE   FILED JUN 19 1985   AMT. OF CHECK $3,570 FILING FEE $60 TAX $3,500 COUNTY FEE $             COPY $             CERT $             REFUND $               By:

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EX-99.T3B.2

Exhibit B-2

BY-LAWS

OF

TWO THOUSAND EIGHT BROADWAY, INC.

ARTICLE I

OFFICES

SECTION 1. PRINCIPAL OFFICE. – The principal office of the corporation shall be in the City and County of New York.

SECTION 2. OTHER OFFICES. – The corporation may have such other offices and places of business, within or without the State of New York, as shall be determined by the directors.

ARTICLE II

SHAREHOLDERS

SECTION 1. PLACE OF MEETINGS. – Meetings of the shareholders may be held at such place or places, within or without the State of New York, as shall be fixed by the directors and stated in the notice of the meeting.

SECTION 2. ANNUAL MEETING. – The annual meeting of shareholders for the election of directors and the transaction of such other business as may properly come before the meeting shall be held on the third Thursday of April.

SECTION 3. NOTICE OF ANNUAL MEETING. – Notice of the annual meeting shall be given to each shareholder entitled to vote, at least ten days prior to the meeting.

SECTION 4. SPECIAL MEETINGS. – Special meetings of the shareholders for any purpose or purposes may be called by the President or Secretary and must be called upon receipt by either of them of the written request of the holders of twenty-five percent of the stock then outstanding and entitled to vote.

SECTION 5. NOTICE OF SPECIAL MEETING. – Notice of a special meeting, stating the time, place and purpose or purposes thereof, shall be given to each shareholder entitled to vote, at least ten days prior to the meeting. The notice shall also set forth at whose direction it is being issued.

SECTION 6. QUORUM. – At any meeting of the shareholders, the holders of a majority of the shares of stock then entitled to vote, shall constitute a quorum for all purposes, except as otherwise provided by law or the Certificate of Incorporation.

SECTION 7. VOTING. – At each meeting of the shareholders, every holder of stock then entitled to vote may vote in person or by proxy, and, except as may be otherwise provided by the Certificate of Incorporation, shall have one vote for each share of stock registered in his name.

SECTION 8. ADJOURNED MEETINGS. – Any meeting of shareholders may be adjourned to a designated time and place by a vote of a majority in interest of the shareholders present in person or by proxy and entitled to vote, even though less than a quorum is so present. No notice of such an adjourned meeting need be given, other than by announcement at the meeting, and any business may be transacted which might have been transacted at the meeting as originally called.

SECTION 9. ACTION BY WRITTEN CONSENT OF SHAREHOLDERS. – Whenever by any provision of statute or of the Certificate of Incorporation or of these By-Laws, the vote of shareholders at a meeting thereof is required or permitted to be taken in connection with any corporate action, the meeting and vote of shareholders may be dispensed with, if all the shareholders who would have been entitled to vote upon the action if such meeting were held, shall consent in writing to such corporate action being taken.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER. – The number of directors of the corporation shall be three (3), who shall hold office for the term of one year and until their successors are elected and qualify. The number of directors may be increased or decreased from time to time by amendment to these By-Laws made by a majority of the Board of Directors or by the shareholders. The number of directors may be less than three when all of the shares are owned by less than three shareholders, but in such event the number of directors may not be less than the number of shareholders. Directors need not be shareholders.

SECTION 2. POWERS. – The Board of Directors may adopt such rules and regulations for the conduct of its meetings, the exercise of its powers and the management of the affairs of the corporation as it may deem proper, not inconsistent with the laws of the State of New York, the Certificate of Incorporation or these By-Laws.

In addition to the powers and authorities by these By-Laws expressly conferred upon them, the directors may exercise all such powers of the corporation and do such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the shareholders.

SECTION 3. MEETING, QUORUM, ACTION WITHOUT MEETING. – Meetings of the Board may be held at any place, either within or outside the State of New York, provided a quorum be in attendance. Except as may be otherwise provided by the Certificate of Incorporation or by the Business Corporation Law, a majority of the directors in office shall constitute a quorum at any meeting of the Board and the vote of a majority of a quorum of directors shall constitute the act of the Board.

The Board of Directors may hold an annual meeting, without notice, immediately after the annual meeting of shareholders. Regular meetings of the Board of Directors may be established by a resolution adopted by the Board. The Chairman of the Board (if any) or the President or Secretary may call, and at the request of any two directors, must call a special meeting of the Board of Directors, five days’ notice of which shall be given by mail, or two days’ notice personally or by telegraph or cable to each director.

Any one or more members of the Board or any Committee thereof may participate in a meeting of such Board or Committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

Any action required or permitted to be taken by the Board or any Committee thereof may be taken without a meeting if all members of the Board or the Committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board or Committee shall be filed with the minutes of the proceedings of the Board or Committee.

SECTION 4. VACANCIES, REMOVAL. – Except as otherwise provided in the Certificate of Incorporation or in the following paragraph, vacancies occurring in the membership of the Board of Directors, from whatever cause arising (including vacancies occurring by reason of the removal of directors without cause and newly created directorships resulting from any increase in the authorized number of directors), may be filled by a majority vote of the remaining directors, though less than a quorum, or such vacancies may be filled by the shareholders.

Except where the Certificate of Incorporation contains provisions authorizing cumulative voting or the election of one or more directors by class or their election by holders of bonds, or requires all action by shareholders to be by a greater vote, any one or more of the directors may be removed, (a) either for or without cause, at any time, by vote of the shareholders holding a majority of the outstanding stock of the corporation entitled to vote, present in person or by proxy, at any special meeting of the shareholders or, (b) for cause, by action of the Board of Directors at any regular or special meeting of the Board. A vacancy or vacancies occurring from such removal may be filled at the special meeting of shareholders or at a regular or special meeting of the Board of Directors.

SECTION 5. COMMITTEES. – The Board of Directors, by resolution adopted by a majority of the entire Board, may designate from its members an Executive Committee or other committee or committees, each consisting of three or more members, with such powers and authority (to the extent permitted by law) as may be provided in said resolution.

ARTICLE IV

OFFICERS

SECTION 1. EXECUTIVE OFFICERS. – The executive officers of the corporation shall be a President, one or more Vice Presidents, a Treasurer and a Secretary, all of whom shall be elected annually by the directors, who shall hold office during the pleasure of the directors. In addition, the Board of Directors my elect a Chairman of the Board of Directors. Except for the offices of President and Secretary, any two offices or more may be held by one person. Provided, however, when all of the issued and outstanding stock of the corporation is owned by one person, such person may hold all or any combination of offices. All vacancies occurring among any of the officers shall be filled by the directors. Any officer may be removed at any time by the affirmative vote of a majority (unless the Certificate of Incorporation required a larger vote) of the directors present at a special meeting of directors called for the purpose.

SECTION 2. OTHER OFFICERS. – The Board of Directors may appoint such other officers and agents with such powers and duties as it shall deem necessary.

SECTION 3. THE CHAIRMAN OF THE BOARD. – The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors or the Executive Committee.

SECTION 4. THE PRESIDENT. – The President, who may, but need not he a director, shall, in the absence or non-election of a Chairman of the Board, preside at all meetings of the shareholders and directors. While the directors are not in session, he shall have general management and control of the business and affairs of the corporation.

SECTION 5. THE VICE-PRESIDENT. – The Vice-President, or if there be more than one, the senior Vice-President, as determined by the Board of Directors, in the absence or disability of the President, shall exercise the powers and perform the duties of the President and each Vice-President shall exercise such other powers and perform such other duties as shall be prescribed by the directors.

SECTION 6. THE TREASURER. – The Treasurer shall have custody of all funds, securities and evidences of indebtedness of the corporation; he shall receive and give receipts and acquittances for moneys paid in on account of the corporation, and shall pay out of the funds on hand all bills, pay-rolls, and other just debts of the corporation, of whatever nature, upon maturity; he shall enter regularly in books to be kept by him for that purpose, full and accurate accounts of all moneys received and paid out by him on account of the corporation, and he shall perform all other duties incident to the office of Treasurer and as may be prescribed by the directors.

SECTION 7. THE SECRETARY. – The Secretary shall keep the minutes of all proceedings of the directors and of the shareholders; he shall attend to the giving and serving of all notices to the shareholders and directors or other notice required by law or by these By-Laws; he shall affix the seal of the corporation to deeds, contracts and other instruments in writing requiring a seal, when duly signed or when so ordered by the directors; he shall have charge of the certificate books and stock books and such other books and papers as the Board may direct, and he shall perform all other duties incident to the office of Secretary.

SECTION 8. SALARIES. – The salaries of all officers shall be fixed by the Board of Directors, and the fact that any officer is a director shall not preclude him from receiving a salary as an officer, or from voting upon the resolution providing the same.

ARTICLE V

CAPITAL STOCK

SECTION 1. FORM AND EXECUTION OF CERTIFICATES. – Certificates of stock shall be in such form as required by the Business Corporation Law of New York and as shall be adopted by the Board of Directors. They shall be numbered and registered in the order issued; shall be signed by the Chairman or a Vice-Chairman of the Board (if any) or by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the corporate seal or a facsimile thereof. When such a certificate is countersigned by a transfer agent or registered by a registrar, the signatures of any such officers may be facsimile.

SECTION 2. TRANSFER. – Transfer of shares shall be made only upon the books of the corporation by the registered holder in person or by attorney, duly authorized, and upon surrender of the certificate or certificates for such shares properly assigned for transfer.

SECTION 3. LOST OR DESTROYED CERTIFICATES. – The holder of any certificate representing shares of stock of the corporation may notify the corporation of any loss, theft or destruction thereof, and the Board of Directors may thereupon, in its discretion, cause a new certificate for the same number of shares, to be issued to such holder upon satisfactory proof of such loss, theft or destruction, and the deposit of indemnity by way of bond or otherwise, in such form and amount and with such surety or sureties as the Board of Directors may require, to indemnify the corporation against loss or liability by reason of the issuance of such new certificates.

SECTION 4. RECORD DATE. – In lieu of closing the books of the corporation, the Board of Directors may fix, in advance, a date, not exceeding fifty days, nor less than ten days, as the record date for the determination of shareholders entitled to receive notice of, or to vote, at any meeting of shareholders, or to consent to any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividends, or allotment of any rights, or for the purpose of any other action.

ARTICLE VI

MISCELLANEOUS

SECTION 1. DIVIDENDS. – The directors may declare dividends from time to time upon the capital stock of the corporation from the surplus or net profits available therefor.

SECTION 2. SEAL. – The directors shall provide a suitable corporate seal which shall be in charge of the Secretary and shall be used as authorized by the By-Laws.

SECTION 3. FISCAL YEAR. – The fiscal year of the corporation shall be the last Saturday in February.

SECTION 4. CHECKS, NOTES, ETC. – Checks, notes, drafts, bills of exchange and orders for the payment of money shall he signed or endorsed in such manner as shall be determined by the directors.

The funds of the corporation shall be deposited in such bank or trust company, and checks drawn against such funds shall be signed in such manner as may be determined from time to time by the directors.

SECTION 5. NOTICE AND WAIVER OF NOTICE. – Any notice required to be given under these By-laws maybe waived by the person entitled thereto, in writing, by telegram, cable or radiogram, and the presence of any person at a meeting shall constitute waiver of notice thereof as to such person.

Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated; and any notice so required shall be deemed to be sufficient if given by depositing it in a post office or post box in a sealed postpaid wrapper, addressed to such shareholder, officer or director, at such address as appears on the books of the corporation and such notice shall be deemed to have been given on the day of such deposit.

ARTICLE VII

AMENDMENTS

SECTION 1. BY SHAREHOLDERS – These By-laws may be amended at any shareholders’ meeting by vote of the shareholders holding a majority (unless the Certificate of Incorporation requires a larger vote) of the outstanding stock having voting power, present either in person or by proxy, provided notice of the amendment is included in the notice or waiver of notice of such meeting.

SECTION 2. BY DIRECTORS. – The Board of Directors may also amend these By-Laws at any regular or special meeting of the Board by a majority (unless the Certificate of Incorporation requires a larger vote) vote of the entire Board, but any By-Laws so made by the Board of Directors may be altered or repealed by the shareholders.

EX-99.T3B.3

Exhibit B-3

BY-LAWS

of

AAL REALTY CORP.

A New York Corporation

ARTICLE I

SHAREHOLDERS MEETINGS

Section 1. Place of Meetings. Meetings of shareholders shall be held at the principal office of the corporation or at such other place within or without the State of New York as shall be stated in the notice of meeting or waiver thereof.

Section 2. Annual Meetings. The annual meeting of shareholders for the election of directors and the transaction of such other business as may properly come before the meeting shall be held at 3:15 P. M. on the first Monday of October of each year, if not a legal holiday, and if a legal holiday then on the next business day not a legal holiday.

Section 3. Special Meetings. Special meetings of shareholders may be called at any time for any purpose or purposes by the board of directors or by the president and shall be called by the president or secretary at the written request of the holders of a majority of the issued and outstanding shares entitled to vote thereat, which request shall be delivered to the president and shall state the purpose or purposes for which it is requested that the meeting be called.

Section 4. Notice of Meetings. Written notice of the place, date, and hour of each meeting of shareholders, indicating (unless it is the annual meeting) that the notice is being issued by or at the direction of the person or persons calling the meeting, shall be given, personally or by mail, not less than ten nor more than fifty days before the date of the meeting, to each shareholder entitled to vote at said meeting and to any other shareholder to whom the giving of notice may be required by law, at his address as it appears on the record of shareholders, or at such other address as he shall have filed with the secretary as his address for the mailing of such notices. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called. If, at any meeting, action is proposed to be taken which would, if taken, entitle shareholders to receive payment for their shares pursuant to the Business Corporation Law, the notice of such meeting shall also include such statement as may be required by law. Notice of a meeting need not be given to any shareholder who, in person or by proxy, either attends the meeting without protest prior to the conclusion of the meeting or submits, before or after the meeting, a signed waiver of notice.

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Section 5. Quorum and Adjournments. Presence in person or by proxy of the holders of a majority of the outstanding shares entitled to vote thereat shall constitute a quorum at all meetings of shareholders, provided that when a specific item of business is required to be voted on by a class or series, the holders of a majority of the shares of such class or series shall constitute a quorum for the transaction of such specified item of business. The shareholders present may adjourn the meeting from time to time despite the absence of a quorum. When a meeting is adjourned to another time or place, it shall not be necessary (unless a new record date is fixed by the directors) to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting the shareholders may transact any business that might have been transacted on the original date of the meeting.

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Section 6. Voting. Each holder of record of shares entitled to vote at a meeting may vote in person or by proxy and shall have one vote for every such share standing in his name on the record of shareholders, unless otherwise provided in the certificate of incorporation. Directors shall be elected by a plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote in the election. Any corporate action, other than the election of directors, to be taken by vote of the shareholders shall, except as otherwise required by law or by the certificate of incorporation, be authorized by a majority of the votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon. A list of shareholders as of the record date, certified by the secretary or a transfer agent, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder.

Section 7. Conduct of Meetings. Shareholders meetings shall be presided over by the president, and in his absence, by a vice president, and if none is present, by a chairman chosen at the meeting. The secretary of the corporation, and in his absence, an assistant secretary, and if none is present, a person chosen at the meeting, shall act as secretary of the meeting.

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Section 8. Written Consent of Shareholders without a Meeting. Whenever shareholders are required or permitted to take any action by vote such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon.

ARTICLE II

BOARD OF DIRECTORS

Section 1. Powers, Number, Term and Qualifications. Except as otherwise provided in the certificate of incorporation, the business of the corporation shall be managed by the board of directors, each of whom shall be at least twenty-one years of age. The number of directors constituting the entire board of directors shall not be less than three, except that if all the shares of the corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders. Subject to such limitations, the number of directors may be fixed and from time to time increased or decreased by action of a majority of the entire board of directors or by the shareholders, but no decrease shall shorten the term of any incumbent director. If not otherwise fixed by the board of directors or shareholders, the number of directors shall be three. Unless his directorship shall theretofore be vacated by resignation, death, removal, or otherwise, each director shall hold office until the next annual meeting of shareholders and until his successor has been elected and qualified.

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Section 2. Vacancies. Any vacancies in the board of directors resulting from death, resignation, increase in the number of directors, or any cause other than removal by the shareholders, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by vote of the shareholders. A director elected by the directors or shareholders to fill a vacancy shall hold office for the unexpired term of his predecessor.

Section 3. Removals. The shareholders may remove any director with or without cause and fill the vacancy in the board of directors thus created.

Section 4. Action by the Board. Except as otherwise provided by statute, the certificate of incorporation, or these by-laws, one-third of the entire board of directors shall constitute a quorum for the transaction of business or of any specified item of business and the vote of a majority of the directors present at a meeting at the time of the vote, if a quorum is present at the time, shall be the act of the board.

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Section 5. Place, Time and Notice of Meetings of the Board; Adjournments. Meetings of the board of directors may be held at any place, within or without the State of New York, as may from time to time be fixed by the board or as may be specified in the notice of meeting. Regular meetings of the board of directors may be held without notice at such times as may from time to time be fixed by the board, and special meetings may be held at any other time upon the call of any officer or director by oral, telegraphic, or written notice delivered, sent, or mailed to each director not less than two days before such meeting. The annual meeting of the board of directors may be held without notice immediately after the annual meeting of shareholders. A notice of meeting, or waiver of notice, need not specify the purpose of the meeting. Notice of meeting need not be given to any director who attends the meeting without protest or who signs, before or after the meeting, a waiver of notice. A majority of the directors present, whether or not a quorum, may adjourn any meeting to another time and place without notice other than announcement at the meeting.

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Section 6. Committees. The board, by resolution adopted by a majority of the entire board, may appoint an executive committee and other committees, each consisting of three or more directors, with such powers permitted by law as shall be conferred or authorized by the resolution appointing them. A majority of any such committee may determine its action and fix the time and place of its meetings, unless the board of directors shall otherwise determine. Each such committee shall serve at the pleasure of the board which may at any time fill vacancies in, change the membership of, or discharge any such committee.

ARTICLE III

OFFICERS

Section 1. Election, Term of Office and Vacancies. The board of directors at its meeting following the annual meeting of shareholders shall elect or appoint a president, a secretary, and a treasurer. The board may also elect or appoint one or more vice presidents and such other officers as it may from time to time determine. Any two or more offices may be held by the same person except the offices of president and secretary. Each officer shall hold office until the meeting of the board following the next annual meeting of shareholders and until his successor has been elected or appointed and qualified, but the board may remove any officer with or without cause at any time. Vacancies may be filled by the board at any time.

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Section 2. Powers and Duties. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may from time to time be specifically conferred or imposed by the board of directors. The president shall be the chief executive officer of the corporation.

Section 3. Shares of Other Corporations. Whenever the corporation is the holder of shares of any other corporation any or all rights and powers of the corporation as such shareholder (including the attendance, acting and voting at shareholders meetings, and execution of waivers, consents, and proxies) may be exercised on behalf of the corporation by the president, any vice president, or by such other person as the board of directors may authorize.

ARTICLE IV

CERTIFICATES FOR SHARES

Section 1. Certificates. Certificates representing shares of the corporation shall be signed by the president or a vice president and by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the seal of the corporation or a facsimile thereof

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and countersigned and registered in such manner, if any, as the board of directors may prescribe. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or an assistant transfer agent, or registered by a registrar other than the corporation itself or an employee. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued it may be issued by the corporation with the same effect as if he were such officer at the date of issue.

Section 2. Transfer of Shares. The shares of the corporation may be transferred only by the holder in person or by his attorney upon surrender for cancellation of certificates for the shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer, and of payment of transfer taxes, as the corporation or its agents may require.

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Section 3. Fixing Record Date. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or for the purpose of any other action, the board of directors may fix a record date for any such determination of shareholders, which date shall be not more than fifty nor less than ten days before the date of any such meeting, nor more than fifty days prior to any other action; and in any such case, only shareholders of record at the time so fixed shall be entitled to notice of and to vote at such meeting or to express such consent or dissent, or to receive such dividend, distribution or rights, or to be considered, shareholders for purposes of such other action, as the case may be.

Section 4. Lost or Destroyed Certificates. No certificate for shares shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of such evidence of loss, destruction, or theft and on delivery to the corporation, if the board of directors shall so require, of a bond of indemnity in such amount and upon such terms and secured by such surety as the board of directors may in its discretion require.

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Section 5. Transfer Agent and Registrar. The board of directors may appoint one or more transfer agents and one or more registrars and may require all certificates for shares to bear the signature or signatures of any of them.

ARTICLE V

CORPORATE SEAL

The seal of the corporation shall be circular in form and contain the name of the corporation and the year and state of its organization.

ARTICLE VI

AMENDMENTS

The by-laws may be amended, added to, or repealed at any time by the board of directors, except that the directors shall have no power to (a) change the quorum for meetings of shareholders or of the board of directors, (b) change any provisions of the by-laws with respect to the removal of directors or filling vacancies in the board resulting from removal by the shareholders, or (c) limit the right of shareholders to amend these by-laws. The by-laws may also be amended, added to, or repealed by vote of the shareholders entitled to vote in the election of any directors.

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EX-99.T3B.4

Exhibit B-4

BY-LAWS

OF

ADBRETT CORP.

ARTICLE I – OFFICES

The office of the Corporation shall be located in the City and State designated in the Articles of Incorporation. The Corporation may also maintain offices at such other places within or without the United States as the Board of Directors may, from time to time, determine.

ARTICLE II – MEETING OF SHAREHOLDERS

Section 1 – Annual Meetings:

The annual meeting of the shareholders of the Corporation shall be held within five months after the close of the fiscal year of the Corporation, for the purpose of electing directors, and transacting such other business as may properly come before the meeting.

Section 2 – Special Meetings:

Special meetings of the shareholders may be called at any time by the Board of Directors or by the President, and shall be called by the President or the Secretary at the written request of the holders of ten per cent (10%) of the shares then outstanding and entitled to vote thereat, or as otherwise required under the provisions of the Business Corporation Act.

Section 3 – Place of Meetings:

All meetings of shareholders shall be held at the principal office of the Corporation, or at such other places as shall be designated in the notices or waivers of notice of such meetings.

By-Laws - 1

Section 4 – Notice of Meetings:

(a) Except as otherwise provided by Statute, written notice of each meeting of shareholders, whether annual or special, stating the time when and place where it is to be held, shall be served either personally or by mail, not less than ten or more than fifty days before the meeting, upon each shareholder of record entitled to vote at such meeting, and to any other shareholder to whom the giving of notice may be required by law. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called, and shall indicate that it is being issued by, or at the direction of, the person or persons calling the meeting. If, at any meeting, action is proposed to be taken that would, if taken, entitle shareholders to receive payment for their shares pursuant to Statute, the notice of such meeting shall include a statement of that purpose and to that effect. If mailed, such notice shall be directed to each such shareholder at his address, as it appears on the records of the shareholders of the Corporation, unless he shall have previously filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case, it shall be mailed to the address designated in such request.

(b) Notice of any meeting need not be given to any person who may become a shareholder of record after the mailing of such notice and prior to the meeting, or to any shareholder who attends such meeting, in person or by proxy, or to any shareholder who, in person or by proxy, submits a signed waiver of notice either before or after such meeting. Notice of any adjourned meeting of shareholders need not be given, unless otherwise required by statute.

Section 5 – Quorum:

(a) Except as otherwise provided herein, or by statute, or in the Certificate of Incorporation (such Certificate and any amendments thereof being hereinafter collectively referred to as the “Certificate of Incorporation”), at all meetings of shareholders of the Corporation, the presence at the commencement of such meetings in person or by proxy of shareholders holding of record a majority of the total number of shares of the Corporation then issued and outstanding and entitled to vote, shall be necessary and sufficient to constitute a quorum for the transaction of any business. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

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(b) Despite the absence of a quorum at any annual or special meeting of shareholders, the shareholders, by a majority of the votes cast by the holders of shares entitled to vote thereon, may adjourn the meeting. At any such adjourned meeting at which a quorum is present, any business may be transacted at the meeting as originally called if a quorum had been present.

Section 6 – Voting:

(a) Except as otherwise provided by statute or by the Certificate of Incorporation, any corporate action, other than the election of directors, to be taken by vote of the shareholders, shall be authorized by a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon.

(b) Except as otherwise provided by statute or by the Certificate of Incorporation, at each meeting of shareholders, each holder of record of stock of the Corporation entitled to vote thereat, shall be entitled to one vote for each share of stock registered in his name on the books of the Corporation.

(c) Each shareholder entitled to vote or to express consent or dissent without a meeting, may do so by proxy; provided, however, that the instrument authorizing such proxy to act shall have been executed in writing by the shareholder himself, or by his attorney-in-fact thereunto duly authorized in writing. No proxy shall be valid after the expiration of eleven months from the date of its execution, unless the person executing it shall have specified therein the length of time it is to continue in force. Such instrument shall be exhibited to the Secretary at the meeting and shall be filed with the records of the Corporation.

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(d) Any resolution in writing, signed by all of the shareholders entitled to vote thereon, shall be and constitute action by such shareholders to the effect therein expressed, with the same force and effect as if the same had been duly passed by unanimous vote at a duly called meeting of shareholders and such resolution so signed shall be inserted in the Minute Book of the Corporation under its proper date.

ARTICLE III – BOARD OF DIRECTORS

Section 1 – Number, Election and Term of Office:

(a) The number of the directors of the Corporation shall be two (2), unless and until otherwise determined by vote of a majority of the entire Board of Directors.

(b) Except as may otherwise be provided herein or in the Certificate of Incorporation, the members of the Board of Directors of the Corporation, who need not be shareholders, shall be elected by a majority of the votes cast at a meeting of shareholders, by the holders of shares, present in person or by proxy, entitled to vote in the election.

(c) Each director shall hold office until the annual meeting of the shareholders next succeeding his election, and until his successor is elected and qualified, or until his prior death, resignation or removal.

Section 2 – Duties and Powers:

The Board of Directors shall be responsible for the control and management of the affairs, property and interests of the Corporation, and may exercise all powers of the Corporation, except as are in the Certificate of Incorporation or by statute expressly conferred upon or reserved to the shareholders.

Section 3 – Annual and Regular Meetings; Notice:

(a) A regular annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place of such annual meeting of shareholders.

By-Laws - 4

(b) The Board of Directors, from time to time, may provide by resolution for the holding of other regular meetings of the Board of Directors, and may fix the time and place thereof.

(c) Notice of any regular meeting of the Board of Directors shall not be required to be given and, if given, need not specify the purpose of the meeting; provided, however, that in case the Board of Directors shall fix or change the time or place of any regular meeting, notice of such action shall be given to each director who shall not have been present at the meeting at which such action was taken within the time limited, and in the manner set forth in paragraph (b) Section 4 of this Article III, with respect to special meetings, unless such notice shall be waived in the manner set forth in paragraph (c) of such Section 4.

Section 4 – Special Meetings; Notice:

(a) Special meetings of the Board of Directors shall be held whenever called by the President or by one of the directors, at such time and place as may be specified in the respective notices or waivers of notice thereof.

(b) Except as otherwise required by statute, notice of special meetings shall be mailed directly to each director, addressed to him at his residence or usual place of business, at least two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegram, radio or cable, or shall be delivered to him personally or given to him orally, not later than the day before the day on which the meeting is to be held. A notice, or waiver of notice, except as required by Section 8 of this Article III, need not specify the purpose of the meeting.

(c) Notice of any special meeting shall not be required to be given to any director who shall attend such meeting without protesting prior thereto or at its commencement, the lack of notice to him, or who submits a signed waiver of notice, whether before or after the meeting. Notice of any adjourned meeting shall not be required to be given.

Section 5 – Chairman:

At all meetings of the Board of Directors, the Chairman of the Board, if any and if present, shall preside. If there shall be no Chairman, or he shall be absent, then the President shall preside, and in his absence, a Chairman chosen by the directors shall preside.

By-Laws - 5

Section 6 – Quroum and Adjournments:

(a) At all meetings of the Board of Directors, the presence of a majority of the entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws.

(b) A majority of the directors present at the time and place of any regular or special meeting, although less than a quorum, may adjourn the same from time to time without notice, until a quorum shall be present.

Section 7 – Manner of Acting:

(a) At all meetings of the Board of Directors, each director present shall have one vote, irrespective of the number of shares of stock, if any, which he may hold.

(b) Except as otherwise provided by statute, by the Certificate of Incorporation, or by these By-Laws, the action of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. Any action authorized, in writing, by all of the directors entitled to vote thereon and filed with the minutes of the corporation shall be the act of the Board of Directors with the same force and effect as if the same had been passed by unanimous vote at a duly called meeting of the Board.

Section 8 – Vacancies:

Any vacancy in the Board of Directors occurring by reason of an increase in the number of directors, or by reason of the death, resignation, disqualification, removal (unless a vacancy created by the removal of a director by the shareholders shall be filled by the shareholders at the meeting at which the removal was effected) or inability to act of any director, or otherwise, shall be filled for the unexpired portion of the term by a majority vote of the remaining directors, though less than a quorum, at any regular meeting or special meeting of the Board of Directors called for that purpose.

Section 9 – Resignation:

Any director may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or such officer, and the acceptance of such resignation shall not be necessary to make it effective.

By-Laws - 6

Section 10 – Removal:

Any director may be removed with or without cause at any time by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares of the Corporation at a special meeting of the shareholders called for that purpose, and may be removed for cause by action of the Board.

Section 11 – Salary:

No stated salary shall be paid to directors, as such, for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided, however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.

Section 12 – Contracts:

(a) No contract or other transaction between this Corporation and any other Corporation shall be impaired, affected or invalidated, nor shall any director be liable in any way by reason of the fact that any one or more of the directors of this Corporation is or are interested in, or is a director or officer, or are directors or officers of such other Corporation, provided that such facts are disclosed or made known to the Board of Directors.

(b) Any director, personally and individually, may be a party to or may be interested in any contract or transaction of this Corporation, and no director shall be liable in any way by reason of such interest, provided that the fact of such interest be disclosed or made known to the Board of Directors, and provided that the Board of Directors shall authorize, approve or ratify such contract or transaction by the vote (not counting the vote of any such director) of a majority of a quorum, notwithstanding the presence of any such director at the meeting at which such action is taken. Such director or directors may be counted in determining the presence of a quorum at such meeting. This Section shall not be construed to impair or invalidate or in any way affect any contract or other transaction which would otherwise be valid under the law (common, statutory or otherwise) applicable thereto.

By-Laws - 7

Section 13 – Committees:

The Board of Directors, by resolution adopted by a majority of the entire Board, may from time to time designate from among its members an executive committee and such other committees, and alternate members thereof, as they may deem desirable, each consisting of three or more members, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each such committee shall serve at the pleasure of the Board.

ARTICLE IV – OFFICERS

Section 1 – Number, Qualifications, Election and Term of Office;

(a) The officers of the Corporation shall consist of a President, a Secretary, a Treasurer, and such other officers, including a Chairman of the Board of Directors, and one or more Vice Presidents, as the Board of Directors may from time to time deem advisable. Any officer other than the Chairman of the Board of Directors may be, but is not required to be, a director of the Corporation. Any two or more offices may be held by the same person.

(b) The officers of the Corporation shall be elected by the Board of Directors at the regular annual meeting of the Board following the annual meeting of shareholders.

(c) Each officer shall hold office until the annual meeting of the Board of Directors next succeeding his election, and until his successor shall have been elected and qualified, or until his death, resignation or removal.

Section 2 – Resignation:

Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, or to the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or by such officer, and the acceptance of such resignation shall not be necessary to make it effective.

By-Laws - 8

Section 3 – Removal:

Any officer may be removed, either with or without cause, and a successor elected by a majority vote of the Board of Directors at any time.

Section 4 – Vacancies:

A vacancy in any office by reason of death, resignation, inability to act, disqualification, or any other cause, may at any time be filled for the unexpired portion of the term by a majority vote of the Board of Directors.

Section 5 – Duties of Officers:

Officers of the Corporation shall, unless otherwise provided by the Board of Directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these by-laws, or may from time to time be specifically conferred or imposed by the Board of Directors. The President shall be the chief executive officer of the Corporation.

Section 6 – Sureties and Bonds:

In case the Board of Directors shall so require, any officer, employee or agent of the Corporation shall execute to the Corporation a bond in such sum, and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful performance of his duties to the Corporation, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands.

Section 7 – Shares of Other Corporations:

Whenever the Corporation is the holder of shares of any other Corporation, any right or power of the Corporation as such shareholder (including the attendance, acting and voting at shareholders’ meetings and execution of waivers, consents, proxies or other instruments) may be exercised on behalf of the Corporation by the President, any Vice President, or such other person as the Board of Directors may authorize.

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ARTICLE V – SHARES OF STOCK

Section 1 – Certificate of Stock:

(a) The certificates representing shares of the Corporation shall be in such form as shall be adopted by the Board of Directors, and shall be numbered and registered in the order issued. They shall bear the holder’s name and the number of shares, and shall be signed by (i) the Chairman of the Board or the President or a Vice President, and (ii) the Secretary or Treasurer, or any Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.

(b) No certificate representing shares shall be issued until the full amount of consideration therefore has been paid, except as otherwise permitted by law.

(c) To the extent permitted by law, the Board of Directors may authorize the issuance of certificates for fractions of a share which shall entitle the holder to exercise voting rights, receive dividends and participate in liquidating distributions, in proportion to the fractional holdings; or it may authorize the payment in cash of the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined; or it may authorize the issuance, subject to such conditions as may be permitted by law, of scrip in registered or bearer form over the signature of an officer or agent of the Corporation, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder, except as therein provided.

Section 2 – Lost or Destroyed Certificates:

The holder of any certificate representing shares of the Corporation shall immediately notify the Corporation of any loss or destruction of the certificate representing the same. The Corporation may issue a new certificate in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed. On production of such evidence of loss or destruction as the Board of Directors in its discretion may require, the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond in such sum as the Board may direct, and with such surety or sureties as may be satisfactory to the Board, to indemnify the Corporation against any claims, loss, liability or damage it may suffer on account of the issuance of the new certificate. A new certificate may be issued without requiring any such evidence or bond when, in the judgment of the Board of Directors, it is proper so to do.

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Section 3 – Transfers of Shares:

(a) Transfers of shares of the Corporation shall be made on the share records of the Corporation only by the holder of record thereof, in person or by his duly authorized attorney, upon surrender for cancellation of the certificate or certificates representing such shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer and of payment of transfer taxes as the Corporation or its agents may require.

(b) The Corporation shall be entitled to treat the holder of record of any share or shares as the absolute owner thereof for all purposes and, accordingly, shall not be bound to recognize any legal, equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.

Section 4 – Record Date:

In lieu of closing the share records of the Corporation, the Board of Directors may fix, in advance, a date not exceeding fifty days, nor less than ten days, as the record date for the determination of shareholders entitled to receive notice of, or to vote at, any meeting of shareholders, or to consent to any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividends, or allotment of any rights, or for the purpose of any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided for herein, such determination shall apply to any adjournment thereof, unless the directors fix a new record date for the adjourned meeting.

By-Laws - 11

ARTICLE VI – DIVIDENDS

Subject to applicable law, dividends may be declared and paid out of any funds available therefore, as often, in such amounts, and at such time or times as the Board of Directors may determine.

ARTICLE VII – FISCAL YEAR

The fiscal year of the Corporation shall be the year ending on the Saturday closest to January 31, unless and until otherwise determined by vote of a majority of the entire Board of Directors.

ARTICLE VIII – CORPORATE SEAL

The corporate seal, if any, shall be in such form as shall be approved from time to time by the Board of Directors.

ARTICLE IX – AMENDMENTS

Section 1 – By Shareholders:

All by-laws of the Corporation shall be subject to alteration or repeal, and new by-laws may be made, by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares entitled to vote in the election of directors at any annual or special meeting of shareholders, provided that the notice or waiver of notice of such meeting shall have summarized or set forth in full therein, the proposed amendment.

Section 2 – By Directors:

The Board of Directors shall have power to make, adopt, alter, amend and repeal, from time to time, by-laws of the Corporation; provided, however, that the shareholders entitled to vote with respect thereto as in this Article IX above-provided may alter, amend or repeal by-laws made by the Board of Directors, except that the Board of Directors shall have no power to change the quorum for meetings of shareholders or of the Board of Directors, or to change any provisions of the by-laws with respect to the removal of directors or the filling of vacancies in the Board resulting from the removal by the shareholders. If any by-law regulating an impending election of directors is adopted, amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of shareholders for the election of directors, the by-law so adopted, amended or repealed, together with a concise statement of the changes made.

By-Laws - 12

ARTICLE X – INDEMNITY

(a) Any person made a party to any action, suit or proceeding, by reason of the fact that he, his testator or intestate representative is or was a director, officer or employee of the Corporation, or of any Corporation in which he served as such at the request of the Corporation, shall be indemnified by the Corporation against the reasonable expenses, including attorney’s fees, actually and necessarily incurred by him in connection with the defense of such action, suit or proceedings, or in connection with any appeal therein, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding, or in connection with any appeal therein that such officer, director or employee is liable for negligence or misconduct in the performance of his duties.

(b) The foregoing right of indemnification shall not be deemed exclusive of any other rights to which any officer or director or employee may be entitled apart from the provisions of this section.

(c) The amount of indemnity to which any officer or any director may be entitled shall be fixed by the Board of Directors except that in any case where there is no disinterested majority of the Board available, the amount shall be fixed by arbitration pursuant to the then existing rules of the American Arbitration Association.

The undersigned Incorporator certifies that he has adopted the foregoing by-laws as the first by-laws of the Corporation.

Dated: March 20, 1984

Incorporator

By-Laws - 13

EX-99.T3B.5

Exhibit B-5

BY-LAWS

-of-

Hurst Leasing Corp.

ARTICLE 1

OFFICES

Section 1. Principal Office

The principal office of the Corporation shall be in the city, incorporated village or town and the county within the State of New York as is designated in the Certificate of Incorporation.

Section 2. Additional Offices

The Corporation may also have offices and places of business at such other places, within or without the State of New York, as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF SHAREHOLDERS

Section 1. Time and Place

Meetings of the shareholders of the Corporation may be held at such time and place within or without the State of New York as shall be stated in the notice of the meeting, or in a duly executed waiver of notice thereof.

Section 2. Annual Meeting

The annual meeting of the shareholders shall be held in each year on the date fixed by the Directors, and the shareholders shall then elect a Board or Directors and transact such other business as may properly be brought before the meeting.

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Section 3. Notice of Annual Meeting

Written notice of the place, date and hour of the annual meeting of shareholders shall be given personally or by mail to each shareholder entitled to vote thereat, not less than ten (10) nor more than fifty (50) days prior to the meeting.

Section 4. Special Meetings

Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by law or by the Certificate of Incorporation, may be called by the President or the Board of Directors, and shall be called by the President at the written request of shareholders holding at least twenty percent (20%) in amount of shares of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 5. Notice of Special Meeting

Written notice of a special meeting of shareholders, stating the place, date and hour of the meeting, the purpose or purposes for which the meeting is called, and by or at whose direction it is being issued, shall be given personally or by mail to each shareholder entitled to vote thereat, not less than ten (10) nor more than fifty (50) days prior to the meeting.

Section 6. Quorum

Except as otherwise provided by law or by the Certificate of Incorporation or these By-Laws, the holders of a majority of the shares of the Corporation issued and outstanding and entitled to vote thereat shall be necessary to and shall constitute a quorum for the transaction of business at all meetings of the shareholders; provided, however, that when a specified item of business is required to be voted on by a class or series, voting as a class, the holders of a majority of the share of such class or series issued and outstanding and entitled to vote thereat shall constitute a quorum for the transaction of such specified item of business. If a quorum shall not be present at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, until a quorum shall be present. At any such adjourned meeting at which a quorum may be present any business may be transacted which might have been transacted at the meeting as originally notified.

Section 7. Voting

(a) At any meeting of the shareholders every shareholder having the right to vote shall be entitled to vote in person or by proxy. Each shareholder shall have one (1) vote for each share of stock having voting power which is registered in his name on the books of the Corporation. Except where another date shall have been fixed as a record date for the determination of its shareholders entitled to vote, no share of stock shall be voted at any election of Directors which shall have been transferred on the books of the Corporation within twenty (20) days next preceding such election of Directors.

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Section 7. Voting (continued)

(b) Except as otherwise provided by law or by the Certificate of Incorporation or these By-Laws, all elections of Directors shall be decided by a plurality of the votes cast, and all other matters shall be decided by a majority of the votes cast.

Section 8. Proxies

A proxy, to be valid, shall be executed in writing by the shareholder or by his attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof, unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except in those cases where an irrevocable proxy is permitted by law.

Section 9. Written Consents

Whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon.

ARTICLE III

DIRECTORS

Section 1. Board of Directors

Subject to any provision in the Certificate of Incorporation, the business of the Corporation shall be managed by its Board of Directors, each of whom shall be at least eighteen (18) years of age.

Section 2. Number; Tenure

(a) The number of Directors constituting the entire Board of Directors shall be fixed from time to time by resolution of the shareholders, but shall in no event be less than three (3), except that where all the shares of the Corporation are owned beneficially and of record by less than three (3) shareholders, the number of Directors may be less than three (3) but not less than the number of shareholders. The Board of Directors shall initially be composed of Four (4) Director (s).

(b) Directors shall be elected at the annual meeting of the shareholders, except as provided in Section 3 of this Article III. Except as otherwise provided by the Certificate of Incorporation, each Director shall be elected to serve until the next annual meeting of shareholders and until his successor has been elected and qualified.

Section 3. Resignation; Removal

Any Director may resign at any time. Except as otherwise provided by law, the Board of Directors may, by majority vote of all Directors then in office, remove a Director for cause. Subject to applicable provisions of law, any or all of the Directors may be removed with or without cause by vote of the shareholders.

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Section 4. Vacancies

Except as otherwise provided by the Certificate of Incorporation, if any vacancies occur in the Board of Directors by reason of the death, resignation, retirement, disqualification or removal from office of any Director with cause, or if any new directorships are created, all of the Directors then in office, although less than a quorum, may, by majority vote, choose a successor or successors, or fill the newly created directorships, and the Directors so chosen shall hold office until the next annual meeting of the shareholders and until their successors shall be duly elected and qualified, unless sooner displaced; provided, however, that if in the event of any such vacancy, the Directors remaining in office shall be unable, by majority vote, to fill such vacancy within thirty (30) days of the occurrence thereof, the President or the Secretary may call a special meeting of the shareholders at which such vacancy shall be filled. In the event of any vacancy created by removal from office of any Director without cause, such special meeting of the shareholders shall be so called within thirty (30) days of the occurrence thereof, at which meeting such vacancy may be filled.

ARTICLE IV

MEETINGS OF THE BOARD

Section 1. Place

Except as otherwise provided by the Certificate of Incorporation, the Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of New York as may be determined by the Board of Directors. Any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or such committee by means of a conference, telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

Section 2. Regular Meetings

Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors.

Section 3. Special Meetings

Special meetings of the Board of Directors may be called by the Chairman of the Board, if any, or by the President on two (2) days’ notice to each Director, either personally or by mail or by telegram; special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of one (1) Director.

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Section 4. Quorum; Voting

At all meetings of the Board of Directors a majority of the entire Board shall be necessary to constitute a quorum for the transaction of business, and the vote of a majority of the Directors present at the time of the vote if a quorum is present shall be the act of the Board of Directors, except as may be otherwise specifically provided by law. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of any such adjournment shall be given to any Directors who were not present and, unless announced at the meeting, to the other Directors.

Section 5. Compensation

Directors, as such, shall not receive any stated salary for their services, but, by resolution of the Board of Directors, a fixed fee and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided, however, that nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

ARTICLE V

NOTICES

Section 1. Form; Delivery

Notices to Directors and shareholders shall be in writing and may be delivered personally or by mail or telegram. Notice by mail shall be deemed to be given at the time when deposited in the post office or a letter box, in a post-paid sealed wrapper, and addressed to Directors or shareholders at their addresses appearing on the records of the Corporation.

Section 2. Waiver

Whenever a notice is required to be given by any statute, the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. In addition, any shareholder attending a meeting of shareholders in person or by proxy without protesting prior to the conclusion of the meeting the lack of notice thereof to him, and any Director attending a meeting of the Board of Directors without protesting prior to the meeting or at its commencement, such lack of notice shall be conclusively deemed to have waived notice of such meeting.

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ARTICLE VI

OFFICERS

Section 1. Officers

The officers of the Corporation shall be a President, one or more Vice-Presidents, a Secretary, a Treasurer, and such other officers including a Chairman of the Board as may be determined by the Board of Directors. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary; provided, however, that if all of the issued and outstanding stock of the Corporation is owned by one (1) person, such person may hold all or any combination of offices.

Section 2. Authority and Duties

All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-Laws, or, to the extent not so provided, by the Board of Directors.

Section 3. Term of Office; Removal

All officers shall be elected by the Board of Directors and each shall hold office until the meeting of the Board of, Directors following the next annual meeting of shareholders, and until his successor has been elected or appointed and qualified.

Section 4. Compensation

The compensation of all officers of the Corporation shall be fixed by the Board of Directors, and the compensation of agents shall either be so fixed or shall be fixed by officers thereunto duly authorized.

Section 5. Vacancies

If an office becomes vacant for any reason, the Board of Directors shall fill the vacancy. Any officer so appointed or elected by the Board of Directors shall serve only until the unexpired term of his predecessor shall have expired unless re-elected by the Board of Directors.

Section 6. The President

The President shall be the Chief Executive Officer of the Corporation; in the absence of the Chairman of the Board, or if there be no Chairman, he shall preside at all meetings of the shareholders and Directors; he shall be ex-officio a member of all standing committees, shall have general and active management and control of the business and affairs of the Corporation, subject to the control of the Board of Directors, and shall see that all orders and resolutions of the Board of Directors are carried into effect.

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Section 7. The Vice-President

The Vice-President or, if there be more than one, the Vice-Presidents, in the order of their seniority or in any other order determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President, and shall generally assist the President and perform such other duties as the Board of Directors or the President shall prescribe.

Section 8. The Secretary

The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall Act. He shall keep in safe custody the seal of the Corporation and, when authorized by the Board, affix the same to any instrument requiring it and, when so-affixed, it-shall be attested by his signature or by the signature of the Treasurer or an Assistant Treasurer or Assistant Secretary. He shall keep in safe custody the certificate books and shareholder records and such other books and records as the Board may direct and shall perform all other duties incident to the office of the Secretary. He shall also generally assist the president and perform such other duties as the Board of Directors or the President shall prescribe.

Section 9. The Assistant Secretary

During the absence or disability of the Secretary, any Assistant Secretary, or if there be more than one, the one so designated by the Secretary or by the Board of Directors, shall have all the powers and functions of the Secretary.

Section 10. The Treasurer

The Treasurer shall have the care and custody of the corporate funds, and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation is such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and Directors, at the regular meeting of the Board of Directors, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

Section 11. The Assistant Treasurer

During the absence or disability of the Treasurer, any Assistant Treasurer, or if there be more than one, the one so designated by the Treasurer or by the Board of Directors, shall have all the powers and functions of the Treasurer.

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Section 12. Bonds

In case the Board of Directors shall so require, any officer or agent of the Corporation shall give the Corporation a bond for such term, in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

ARTICLE VII

SHARE CERTIFICATES

Section 1. Form; Signature

The certificates for shares of the Corporation shall be in such form as shall be determined by the Board of Directors and shall be numbered consecutively and entered in the books of the Corporation as they are issued. Each certificate shall exhibit the registered holder’s name and the number and class of shares, and shall be signed by the Chairman or a Vice-Chairman of the Board of Directors, if there be any, or the President or a Vice-President and the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, and shall bear the seal of the Corporation or a facsimile thereof.

Section 2. Lost Certificates

The Board of Directors may direct a new share certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost or destroyed.

Section 3. Registration of Transfer

Upon surrender to the Corporation or any transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation or such transfer agent to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

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Section 4. Registered Shareholders

Except as otherwise provided by law, the Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends or other distributions, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or legal claim to or interest in such share or shares on the part of any other person, whether or not it has actual or other notice thereof, except as otherwise provided by the laws of the State of New York.

Section 5. Record Date

For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shares or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any .other action affecting the interests of shareholders, the Board of Directors may fix, in advance, a record date. Such date shall not be more than fifty (50) nor less than ten (10) days before the date of any such meeting, nor more than fifty (50) days prior to any other action.

In each such case, except as otherwise provided by law, only such persons as shall be shareholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any adjournment thereof, or to express such consent or dissent, or to receive payment of such dividend, or such allotment of rights, or otherwise to be recognized as shareholders for the related purpose, notwithstanding any registration of transfer of shares on the books of the Corporation after any such record date so fixed.

ARTICLE VIII

GENERAL PROVISIONS

Section 1. Fiscal Year

The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 2. Dividends

Dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting and may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and the law.

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Section 3. Reserves

Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purposes as the Board of Directors shall deem conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the, manner in which it was created.

Section 4. Checks

All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 5. Seal

The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal New York.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

ARTICLE IX

AMENDMENTS

Section 1. Adoption; Amendment; Repeal

By-Laws of the Corporation may be adopted, amended or repealed by vote of the holders of the shares at the time entitled to vote in the election of any Directors. By-Laws of the Corporation may also be adopted, amended or repealed by the Board of Directors, but any By-Law adopted by the Board of Directors, may be amended or repealed by the shareholders entitled to vote thereon as herein provided.

Section 2. Amendments Affecting Election of Directors:

Notice

If any By-Law regulating an impending election of Directors is adopted, amended or repealed by the Board, there shall be set forth in the notice of the next meeting of shareholders for the election of Directors the By-Law so adopted, amended or repealed, together with a concise statement of the changes made.

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EX-99.T3B.6

Exhibit B-6

BY-LAWS

OF

APW SUPERMARKET CORPORATION

(hereinafter called the “Corporation”)

ARTICLE I

OFFICES

Section 1. Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED

OFFICE AND REGISTERED AGENT

OF

APW SUPERMARKET CORPORATION

The Board of Directors of:

APW SUPERMARKET CORPORATION

a Corporation of the State of Delaware, on this 30th day of April, A.D. 1999, does hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is:

1013 Centre Road, in the City of Wilmington, in the County of New Castle, Delaware, 19805.

The name of the Registered Agent therein and in charge thereof upon whom process against the Corporation may be served, is: CORPORATION SERVICE COMPANY.

APW SUPERMARKET CORPORATION

a Corporation of the State of Delaware, does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated.

IN WITNESS WHEREOF, said corporation has caused this Certificate to be signed by Robert G. Ulrich this 30^th day of April A.D. 1999.

Authorized Officer

Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on the third Thursday in April each year and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Unless waived as provided herein, written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

Section 3. Special Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chairman, if there be one, or (ii) The President, if there be one, (iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by any such officer at the request in writing of a majority of the Board of Directors or at the request in writing of stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Unless waived as

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provided herein, written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.

Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.

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Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing,

4

setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

Section 7. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.

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Section 8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

ARTICLE III

DIRECTORS

Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen members, the exact number, of which shall initially be fixed by the Incorporator and thereafter from time to time by the unanimous vote or consent of the Board of Directors. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders.

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Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a unanimous vote or consent of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier resignation or removal.

Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.

Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors.

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Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or a majority of the directors. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

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Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any Meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.

Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting.

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Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.

Section 9. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings.

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Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest

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and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

ARTICLE IV

OFFICERS

Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a director) and one or more Vice-Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation.

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Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.

Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice-President and any such officer may, in the name of and on behalf of the Corporation, take all

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such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. He shall be the Chief Executive Officer of the Corporation, and except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 5. President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. If there be no Chairman of the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 6. Vice-Presidents. At the request of the President or in his absence or in the event of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice-President or the Vice-Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice-President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.

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Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

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Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

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Section 9. Assistant Secretaries. Except as may be otherwise provided in these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice-President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

Section 10. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice-President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in

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such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

Section 11. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

ARTICLE V

STOCK

Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice-President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation.

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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in lace of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed

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certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefore, which shall be cancelled before a new certificate shall be issued.

Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in

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advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.

ARTICLE VI

NOTICES

Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex or cable.

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Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as

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the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

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ARTICLE VIII

INDEMNIFICATION

Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by

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judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or

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not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors

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so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case.

Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another

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enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term “another enterprise” as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be.

Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director, officer, employee or agent may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director, officer, employee or agent is proper in the circumstances

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because he has met the applicable standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application.

Section 6. Expenses Payable in Advance. Expenses incurred in defending or investigating a threatened or pending action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII.

Section 7. Non-exclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-Law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as

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to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise.

Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article VIII.

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Section 9. Meaning of “Corporation” for Purposes of Article VIII. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

Section 10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

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ARTICLE IX

AMENDMENTS

Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the majority vote or consent of the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.

Section 2. Entire Board of Directors. As used in this Article IX and in these By-Laws generally, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.

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EX-99.T3B.7

Exhibit B-7

BY-LAWS

OF

APW SUPERMARKETS, INC.

ARTICLE I – OFFICES

The office of the Corporation shall be located in the County of Suffolk, State of New York. The Corporation may also maintain offices at such other places within or without the United States as the Board of Directors may, from time to time, determine.

ARTICLE II – MEETING OF SHAREHOLDERS

Section 1 – Annual Meetings:

The annual meeting of the shareholders of the Corporation shall be held within five months after the close of the fiscal year of the Corporation, for the purpose of electing directors, and transacting such other business as may properly come before the meeting.

Section 2 – Special Meetings:

Special meetings of the shareholders may be called at any time by the Board of Directors or by the President, and shall be called by the President or the Secretary at the written request of the holders of ten per cent (10%) of the shares then outstanding and entitled to vote thereat, or as otherwise required under the provisions of the Business Corporation Law.

Section 3 – Place of Meetings:

All meetings of shareholders shall be held at the principal office of the Corporation, or at such other places as shall be designated in the notices or waivers of notice of such meetings.

Section 4 – Notice of Meetings:

(a) Except as otherwise provided by Statute, written notice of each meeting of shareholders, whether annual or special, stating the time when and place where it is to be held, shall be served either personally or by mail, not less than ten or more than fifty days before the meeting, upon each shareholder of record entitled to vote at such meeting, and to any other shareholder to whom the giving of notice may be required by law. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called, and shall indicate that it is being issued by, or at the direction of, the person or persons calling the meeting. If, at any meeting, action is proposed to be taken that would, if taken, entitle shareholders to receive payment for their shares pursuant to Statute, the notice of such meeting shall include a statement of that purpose and to that effect. If mailed, such notice shall be directed to each such shareholder at his address, as it appears on the records of the shareholders of the Corporation, unless he shall have previously filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case, it shall be mailed to the address designated in such request.

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(b) Notice of any meeting need not be given to any person who may become a shareholder of record after the mailing of such notice and prior to the meeting, or to any shareholder who attends such meeting, in person or by proxy, or to any shareholder who, in person or by proxy, submits a signed waiver of notice either before or after such meeting. Notice of any adjourned meeting of shareholders need not be given, unless otherwise required by statute.

Section 5 – Quorum:

(a) Except as otherwise provided herein, or by statute, or in the Certificate of Incorporation (such Certificate and any amendments thereto being hereinafter collectively referred to as the “Certificate of Incorporation”), at all meetings of shareholders of the Corporation, the presence at the commencement of such meetings in person or by proxy of shareholders holding of record a majority of the total number of shares of the Corporation then issued and outstanding and entitled to vote, shall be necessary and sufficient to constitute a quorum for the transaction of any business. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b) Despite the absence of a quorum at any annual or special meeting of shareholders, the shareholders, by a majority of the votes cast by the holders of shares entitled to vote thereon, may adjourn the meeting. At any such adjourned meeting at which a quorum is present, any business may be transacted at the meeting as originally called if a quorum had been present.

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Section 6 – Voting:

(a) Except as otherwise provided by statute or by the Certificate of Incorporation, any corporate action, other than the election of directors, to be taken by vote of the shareholders, shall be authorized by a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon.

(b) Except as otherwise provided by statute or by the Certificate of Incorporation, at each meeting of shareholders, each holder of record of stock of the Corporation entitled to vote thereat, shall be entitled to one vote for each share of stock registered in his name on the books of the Corporation.

(c) Each shareholder entitled to vote or to express consent or dissent without a meeting, may do so by proxy; provided, however, that the instrument authorizing such proxy to act shall have been executed in writing by the shareholder himself, or by his attorney-in-fact thereunto duly authorized in writing. No proxy shall be valid after the expiration of eleven months from the date of its execution, unless the person executing it shall have specified therein the length of time it is to continue in force. Such instrument shall be exhibited to the Secretary at the meeting and shall be filed with the records of the Corporation.

(d) Any resolution in writing, signed by all of the shareholders entitled to vote thereon, shall be and constitute action by such shareholders to the effect therein expressed, with the same force and effect as if the same had been duly passed by unanimous vote at a duly called meeting of shareholders and such resolution so signed shall be inserted in the Minute Book of the Corporation under its proper date.

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Section 7 – Consent of Shareholders in Lieu of Meeting:

Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of shareholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing.

ARTICLE III – BOARD OF DIRECTORS

Section 1 – Number, Election and Term of Office:

(a) The number of the directors of the Corporation shall be three (3) unless and until otherwise determined by vote of a majority of the entire Board of Directors. The number of Directors shall not be less than three, unless all of the outstanding shares are owned beneficially and of record by less than three shareholders, in which event the number of directors shall not be less than the number of directors permitted by statute.

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(b) Except as may otherwise be provided herein or in the Certificate of Incorporation, the members of the Board of Directors of the Corporation, who need not be shareholders, shall be elected by a majority of the votes cast at a meeting of shareholders, by the holders of shares, present in person or by proxy, entitled to vote in the election.

(c) Each director shall hold office until the annual meeting of the shareholders next succeeding his election, and until his successor is elected and qualified, or until his prior death, resignation or removal.

Section 2 – Duties and Powers:

The Board of Directors shall be responsible for the control and management of the affairs, property and interests of the Corporation, and may exercise all powers of the Corporation, except as are in the Certificate of Incorporation or by statute expressly conferred upon or reserved to the shareholders.

Section 3 – Annual and Regular Meetings; Notice:

(a) A regular annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place of such annual meeting of shareholders.

(b) The Board of Directors, from time to time, may provide by resolution for the holding of other regular meetings of the Board of Directors, and may fix the time and place thereof.

(c) Notice of any regular meeting of the Board of Directors shall not be required to be given and, if given, need not specify the purpose of the meeting; provided, however, that in case the Board of Directors shall fix or change the time or place of any regular meeting, notice of such action shall be given to each

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director who shall not have been present at the meeting at which such action was taken within the time limited, and in the manner set forth in paragraph (b) Section 4 of this Article III, with respect to special meetings, unless such notice shall be waived in the manner set forth in paragraph (c) of such Section 4.

Section 4 – Special Meetings; Notice:

(a) Special meetings of the Board of Directors shall be held whenever called by the President or by one of the directors, at such time and place as may be specified in the respective notices or waivers of notice thereof.

(b) Except as otherwise required by statute, notice of special meetings shall be mailed directly to each director, addressed to him at his residence or usual place of business, at least two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegram, radio or cable, or shall be delivered to him personally or given to him orally, not later than the day before the day on which the meeting is to be held. A notice, or waiver of notice, except as required by Section 8 of this Article III, need not specify the purpose of the meeting.

(c) Notice of any special meeting shall not be required to be given to any director who shall attend such meeting without protesting prior thereto or at its commencement, the lack of notice to him, or who submits a signed waiver of notice, whether before or after the meeting. Notice of any adjournment of a meeting shall not be required to be given.

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Section 5 – Chairman of Meetings of Board of Directors:

At all meetings of the Board of Directors, the Chairman of the Board, if any and if present, shall preside as chairman of the meeting. If there shall be no Chairman of the Board, or he shall be absent, then the President shall preside, and in his absence, a chairman of the meeting chosen by the directors shall preside.

Section 6 – Quorum and Adjournments:

(a) At all meetings of the Board of Directors, the presence of a majority of the entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws.

(b) A majority of the directors present at the time and place of any regular or special meeting, although less than a quorum, may adjourn the same from time to time without notice, until a quorum shall be present.

Section 7 – Manner of Acting:

(a) At all meetings of the Board of Directors, each director present shall have one vote, irrespective of the number of shares of stock, if any, which he may hold.

(b) Except as otherwise provided by statute, by the Certificate of Incorporation, or by these By-Laws, the action of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. Any action authorized, in writing, by all of the directors entitled to vote thereon and filed with the minutes of the corporation shall be the act of the Board of Directors with the same force and effect as if the same had been passed by unanimous vote at a duly called meeting of the Board.

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(c) Any one or more members of the Board of Directors may participate in a meeting of the Board of Directors by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

Section 8 – Vacancies:

Any vacancy in the Board of Directors occurring by reason of an increase in the number of directors, or by reason of the death, resignation, disqualification, removal (unless a vacancy created by the removal of a director by the shareholders shall be filled by the shareholders at the meeting at which the removal was effected) or inability to act of any director, or otherwise, shall be filled for the unexpired portion of the term by a majority vote of the remaining directors, though less than a quorum, at any regular meeting or special meeting of the Board of Directors called for that purpose.

Section 9 – Resignation:

Any director may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or such officer, and the acceptance of such resignation shall not be necessary to make it effective.

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Section 10 – Removals:

Any director may be removed with or without cause at any time by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares of the Corporation at a special meeting of the shareholders called for that purpose, and may be removed for cause by action of the Board.

Section 11 – Salary:

No stated salary shall be paid to directors, as such, for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board, provided, however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.

Section 12 – Contracts:

(a) No contract or other transaction between this Corporation and any other Corporation shall be impaired, affected or invalidated, nor shall any director be liable in any way by reason of the fact that any one or more of the directors of this Corporation is or are interested in, or is a director or officer, or are directors or officers of such other Corporation, provided that such facts are disclosed or made known to the Board of Directors.

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(b) Any director, personally and individually, may be a party to or may be interested in any contract or transaction of this Corporation, and no director shall be liable in any way by reason of such interest, provided that the fact of such interest be disclosed or made known to the Board of Directors, and provided that the Board of Directors shall authorize, approve or ratify such contract or transaction by the vote (not counting the vote of any such director) of a majority of a quorum, notwithstanding the presence of any such director at the meeting at which such action is taken. Such director or directors may be counted in determining the presence of a quorum at such meeting. This Section shall not be construed to impair or invalidate or in any way affect any contract or other transaction which would otherwise be valid under the law (common, statutory or otherwise) applicable thereto.

Section 13 – Committees:

The Board of Directors, by resolution adopted by a majority of the entire Board, may from time to time designate from among its members an executive committee and such other committees, and alternate members thereof, as they may deem desirable, each consisting of three or more members, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each such committee shall serve at the pleasure of the Board.

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ARTICLE IV – OFFICERS

Section 1 – Number, Qualifications, Election and Term of Office:

(a) The officers of the Corporation shall consist of a President, a Secretary, a Treasurer, and such other officers, including a Chairman of the Board of Directors, and one or more Vice Presidents, as the Board of Directors may from time to time deem advisable. Any officer other than the Chairman of the Board of Directors may be, but is not required to be, a director of the Corporation.

(b) The officers of the Corporation shall be elected by the Board of Directors at the regular annual meeting of the Board following the annual meeting of shareholders.

(c) Each officer shall hold office until the annual meeting of the Board of Directors next succeeding his election, and until his successor shall have been elected and qualified, or until his death, resignation or removal.

Section 2 – Resignation:

Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, or to the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or by such officer, and the acceptance of such resignation shall not be necessary to make it effective.

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Section 3 – Removal:

Any officer may be removed, either with or without cause, and a successor may be elected by a majority vote of the Board of Directors at any time.

Section 4 – Vacancies:

A vacancy in any office by reason of death, resignation, inability to act, disqualification, or any other cause, may at any time be filled for the unexpired portion of the term by a majority vote of the Board of Directors.

Section 5 – Duties of Officers:

Officers of the Corporation, unless otherwise provided by the Board of Directors, each shall have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be set forth in these By-Laws, or may from time to time be specifically conferred or imposed by the Board of Directors.

Section 6 – Chairman of the Board of Directors:

The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the shareholders and of the Board of Directors. He shall be the Chief Executive Officer of the Corporation, and except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 7 – President:

The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the shareholders and the Board of Directors. If there be no Chairman of the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 8 – Vice-Presidents:

Each Vice-President shal1 have such duties and shal1 perform such duties and have such other powers as the Board of Directors from time to time may prescribe.

Section 9 – Secretary:

The Secretary shall attend all meeting of the Board of Directors and all meetings of shareholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the shareholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either, the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

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Section 10 – Treasurer:

The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, and the President. He shall have the authority to enter into and execute on the Corporation’s behalf all banking arrangements.

Section 11 – Assistant Secretaries:

Except as may be otherwise provided in these By-Laws, Assistant Secretaries, if there by any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice-President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

Section 12 – Assistant Treasurers:

Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice-President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting shall have all the powers of and be subject to all the restrictions upon the Treasurer.

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Section 13 – Other Officers:

Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

Section 14 – Sureties and Bonds:

In case the Board of Directors shall so require, any officer, employee or agent of the Corporation shall execute to the Corporation a bond in such sum, and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful performance of his duties to the Corporation, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands.

Section 15 – Shares of Other Corporations:

Whenever the Corporation is the holder of shares of any other Corporation, any right or power of the Corporation as such shareholder (including the attendance, acting and voting at shareholders’ meetings and execution of waivers, consents, proxies or other instruments) may be exercised on behalf of the Corporation by the President, Vice President, or such other person as the Board of Directors may authorize.

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ARTICLE V – SHARES OF STOCK

Section 1 – Certificate of Stock:

(a) The certificates representing shares of the Corporation shall be in such form as shall be adopted by the Board of Directors, and shall be numbered and registered in the order issued. They shall bear the holder’s name and the number of shares, and shall be signed by (i) the Chairman of the Board or the President or a Vice President, and (ii) the Secretary or Treasurer, or any Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.

(b) No certificate representing shares shall be issued until the full amount of consideration therefor has been paid, except as otherwise provided by law.

(c) To the extent permitted by law, the Board of Directors may authorize the issuance of certificates for fractions of a share which shall entitle the holder to exercise voting rights, receive dividends and participate in liquidating distributions, in proportion to the fractional holdings; or it may authorize the payment in cash of the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined; or it may authorize the issuance, subject to such conditions as may be permitted by law, of scrip in registered or bearer form over the signature of an officer or agent of the Corporation, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder, except as therein provided.

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Section 2 – Lost or Destroyed Certificates:

The holder of any certificate representing shares of the Corporation shall immediately notify the Corporation of any loss or destruction of the certificate representing the same. The Corporation may issue a new certificate in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed. On production of such evidence of loss or destruction as the Board of Directors in its discretion may require, the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond in such sum as the Board may direct, and with such surety or sureties as may be satisfactory to the Board, to indemnify the Corporation against any claims, loss, liability or damage it may suffer on account of the issuance of the new certificate. A new certificate may be issued without requiring any such evidence or bond when, in the judgment of the Board of Directors, it is proper to do so.

Section 3 – Transfers of Shares:

(a) Transfers of shares of the Corporation shall be made only on the share records of the Corporation by the holder of record thereof, in person or by his duly authorized attorney, upon surrender for cancellation of the certificate or certificates representing such shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer and of payment of transfer taxes as the Corporation or its agents may require.

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(b) The Corporation shall be entitled to treat the holder of record of any share or shares as the absolute owner thereof for all purposes and, accordingly, shall not be bound to recognize any legal, equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.

Section 4 – Record Date:

In lieu of closing the share records of the Corporation, the Board of Directors may fix, in advance, a date not exceeding fifty days, nor less than ten days, as the record date for the determination of shareholders entitled to receive notice of, or to vote at, any meeting of shareholders, or to consent to any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividends, or allotment of any rights, or for the purpose of any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided for herein, such determination shall apply to any adjournment thereof, unless the directors fix a new record date for the adjourned meeting.

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ARTICLE VI – DIVIDENDS

Subject to applicable law, dividends may be declared and paid out of any funds available therefor, as often, in such amounts, and at such time or times as the Board of Directors may determine.

ARTICLE VII – FISCAL YEAR

The fiscal year of the Corporation shall be fixed by the Board of Directors from time to time, subject to applicable law.

ARTICLE VIII – CORPORATE SEAL

The corporate seal, if any, shall be in such form as shall be approved from time to time by the Board of Directors.

ARTICLE IX – CHECKS, DRAFTS, ETC.

All checks, drafts or other orders for payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents, as may be authorized so to do from time to time by the Board of Directors, the Chairman of the Board, the President or the Treasurer.

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ARTICLE X – AMENDMENTS

Section 1 – By Shareholders:

All by-laws of the Corporation shall be subject to alteration or repeal, and new by-laws may be made, by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares entitled to vote in the election of directors at any annual or special meeting of shareholders, provided that the notice or waiver of notice of such meeting shall have summarized or set forth in full therein, the proposed amendment.

Section 2 – By Directors:

The Board of Directors shall have power to make, adopt, alter, amend and repeal, from time to time, by-laws of the Corporation; provided, however, that the shareholders entitled to vote with respect thereto as in this Article X above-provided may alter, amend or repeal by-laws made by the Board of Directors.

ARTICLE XI – INDEMNIFICATION AND INSURANCE

Section 1 – Right to Indemnification:

(a) To the full extent authorized by law, now or hereafter enacted, the Corporation shall indemnify any person made or threatened to be made a party in any civil or criminal action or proceeding by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other entity in any capacity at the request of the Corporation. Such indemnification shall include payment of judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys, fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, provided that no indemnification may be made to or on behalf of such person if (i) his acts were committed in bad faith or were the result of his active and deliberate dishonesty and were material to such action or proceedings or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.

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(b) The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not in itself create a presumption that any such person did not act in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Corporation or that he had reasonable cause to believe that his conduct was unlawful.

Section 2 – Other Indemnification:

The Corporation may, to the fullest extent permitted by law, indemnify or advance the expenses of any other person including agents and employees to whom the Corporation is permitted by law to provide indemnification or advancement of expenses.

Section 3 – Payment of Expenses in Advance:

To the fullest extent permitted by the New York Business Corporation Law, the Corporation will advance to any person who may be entitled to indemnification under Sections 1 or 2 sums with which to pay expenses incurred by that person in defending against the claims, actions or proceedings for which such person may become entitled to indemnification, upon receipt of an undertaking by or on behalf of such person to repay the sums which are advanced if it is ultimately determined that such person is not entitled to indemnification under Sections 1 or 2 or to the extent the sums which are advanced exceed the indemnification to which such person is entitled.

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Section 4 – New York Business Corporation Law:

All references to the New York Business Corporation Law in this Article XI shall mean such Law as it may from time to time be amended.

Section 5 – Insurance:

The Corporation may purchase and maintain insurance to indemnify officers, directors and others against costs or liabilities incurred by them in connection with the performance of their duties and any activities undertaken by them for, or at the request of, the Corporation, to the fullest extent permitted by the New York Business Corporation Law.

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EX-99.T3B.8

Exhibit B-8

BY-LAWS

OF

BERGEN STREET PATHMARK, INC.

(A New Jersey Corporation)

ARTICLE I

SHAREHOLDERS

1. CERTIFICATES REPRESENTING SHARES

Certificates representing shares shall set forth thereon the statements prescribed by Section 14A:7-11, and where applicable, Sections 14A:5-21 and 14A:12-5, of the New Jersey Business Corporation Act and by any other applicable provision of law and shall be signed by the Chairman or Vice Chairman of the Board of Directors, if any, or by the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the corporate seal or a facsimile thereof. If the certificate is countersigned by a transfer agent or registrar, who is not an officer or employee of the corporation, any and all other signatures may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of its issue.

No certificate shall be issued for any share until such share is fully paid.

The corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the Board of Directors may require the owner of any lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate.

2. FRACTIONAL SHARE INTERESTS

Unless otherwise provided in its certificate of incorporation, the corporation may, but shall not be obliged to, issue fractions of a share and certificates therefor on original issue or otherwise when necessary to effect share

transfers, dividends, distributions, exchanges or reclassifications, or to effect mergers, consolidations or reorganizations. By action of the Board, the corporation may, in lieu of issuing fractional snares, pay cash equal to the value of such fractional share or issue scrip in registered or bearer form which shall entitle the holder to receive a certificate for a full share upon the surrender of such scrip aggregating a full share. A certificate for a fractional share shall entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any distribution of assets of the corporation in the event of liquidation, but scrip shall not entitle the holder to exercise such voting rights, receive dividends or participate in any such distribution of assets unless such scrip shall so provide. All scrip shall be issued subject to the condition that it shall become void if not exchanged for certificates representing full shares before a specified date.

3. SHARE TRANSFERS

Upon compliance with provisions restricting the transferability of shares, if any, transfers of shares of the corporation shall be made only on the share record of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes due thereon.

4. RECORD DATE FOR SHAREHOLDERS

For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day next preceding the day on which the meeting is held; the record date for determining shareholders for any purpose other than that specified in the preceding clause shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this paragraph, such determination shall apply to any adjournment thereof, unless the directors fix a new record date under this paragraph for the adjourned meeting.

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5. MEANING OF CERTAIN TERMS

As used herein in respect of the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “shareholder” or “shareholders” refers to an outstanding share or shares and to a holder or holders of record of outstanding shares when the corporation is authorized to issue only one class of shares, and said reference is also intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the Certificate of Incorporation confers such right where there are two or more classes or series of shares or upon which or upon whom the New Jersey Business Corporation Act confers such rights notwithstanding that the Certificate of Incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder.

6. SHAREHOLDER MEETING

TIME. The annual meeting shall be held at the time fixed, from time to time, by the directors, provided that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. If, for any reason, the directors shall fail to fix the time for an annual meeting, such meeting shall be held at noon on the first [            ] in [            ]. A special meeting shall be held on the date fixed by the directors.

PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of New Jersey, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of New Jersey.

CALL. Annual meetings may be called by the directors or by the President or by any officer instructed by the directors to call the meeting. Special meetings may be called in like manner.

NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of every meeting shall be given, stating the time, place, and purpose or purposes of the meeting. If any action is proposed to be taken which would, if taken, entitle shareholders to dissent and to receive payment for their shares, the notice shall include a statement of that purpose and to that effect. The notice of every meeting shall be given, personally or by mail, and, except as otherwise provided by the New Jersey Business Corporation Act, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived before or after the taking of any action, to each shareholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States post office department. When a meeting is adjourned to another time or place, it shall not be necessary to give notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken and at the adjourned

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meeting only such business is transacted as might have been transacted at the original meeting. However, if after the adjournment the directors fix a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder on the new record date. Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice before or after the meeting. The attendance of a shareholder at a meeting without protesting prior to the conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him.

VOTING LIST. The officer or agent having charge of the stock transfer books for shares of the corporation shall make and certify a complete list of the shareholders entitled to vote at the shareholders’ meeting or any adjournment thereof. Such list shall be arranged alphabetically within each class and series, if any, with the address of, and the number of shares held by, each shareholder; be produced at the time and place of the meeting; be subject to the inspection of any shareholder during the whole time of the meeting; and be prima facie evidence as to who are the shareholders entitled to examine such list or to vote at such meeting.

CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting — the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present, by a chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting.

PROXY REPRESENTATION. Every shareholder may authorize another person or persons to act for him by proxy in all matters in which a shareholder is entitled to participate, whether by waiving notice of or the lapse of the prescribed period of time before any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the shareholder or his agent. No proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein, but in no event shall a proxy be valid after three years from the date of execution. Unless it is coupled with an interest, a proxy shall be revocable at will. A proxy shall not be revoked by the death or incapacity of the shareholder, but such proxy shall continue in force until revoked by the personal representative or guardian of the shareholder. The presence at any meeting of any shareholder who has give a proxy shall not revoke such proxy unless the shareholder shall file written notice of such revocation with the Secretary of the meeting prior to the voting of such proxy. A person named in a proxy as the attorney or agent of a shareholder may, if the proxy so provides, substitute another person to act in his place, including any other person named as an attorney or agent in the same proxy. The substitution shall not be effective until an instrument effecting it is filed with the Secretary of the corporation.

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INSPECTORS – APPOINTMENT. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed by the directors or shall fail to qualify, if appointed, the person presiding at the shareholders’ meeting may, and, on the request of any shareholder entitled to vote thereat, shall, make such appointment. In case any person appointed as inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding at the meeting. Each inspector appointed, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. No person shall be elected a director at a meeting at which he has served as an inspector. The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. If there are three or more inspectors, the act of a majority shall govern. On request of the person presiding at the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question or matter determined by them. Any report made by them shall be prima facie evidence of the facts therein stated, and such report shall be filed with the minutes of the meeting.

QUORUM. Except for meetings ordered by the Superior Court to be called and held pursuant to Section 14A:5-2 and 14A:5-3 of the New Jersey Business Corporation Act, the holders of the shares entitled to cast at least a majority of the votes at a meeting shall constitute a quorum at the meeting of shareholders for the transaction of business. The shareholders present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Less than a quorum may adjourn.

VOTING. Each share shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes case shall elect, and no election need be by ballot unless a shareholder demands the same before the voting begins. Any other action shall be authorized by a majority of the votes cast except where the New Jersey Business Corporation Act prescribes a different proportion of votes.

7. SHAREHOLDER ACTION WITHOUT MEETINGS

Any action required or permitted to be taken at a meeting of shareholders may be taken without a meeting if all the shareholders consent thereto in writing.

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Except as otherwise provided by the New Jersey Business Corporation Act, any action required or permitted to be taken at a meeting of shareholders may be taken without a meeting upon the written consent of less than all the shareholders entitled to vote thereon if the shareholders who so consent would be entitled to cast at least the minimum number of votes which would be required to take such action at a meeting at which all shareholders entitled to vote thereon were present. In the event of such written action, prompt notice of such action shall be given to all shareholders who would have been entitled to vote upon the action if such meeting were held.

The written consents of the shareholders shall be filed within the minutes of proceedings of shareholders.

ARTICLE II

GOVERNING BOARD

1. FUNCTIONS, DEFINITIONS AND COMPENSATION

The business and affairs of the corporation shall be managed and conducted by a governing board, which is herein referred to as the “Board of Directors” or “directors” notwithstanding that the members thereof may otherwise bear the titles of trustees, managers, or governors or any other designated title, and notwithstanding that only one director legally constitutes the Board. The word “director” or “directors” likewise herein refers to a member or to members of the governing board notwithstanding the designation of a different official title or titles. The use of the phrase “entire board” herein refers to the total number of directors which the corporation would have if there were no vacancies. The Board of Directors, by the affirmative vote of a majority of directors in office and irrespective of any personal interest of any of them, shall have authority to establish reasonable compensation of directors for services to the corporation as directors, officers, or otherwise.

2. QUALIFICATIONS AND NUMBER

Each director shall be at least eighteen years of age. A director need not be a shareholder, a citizen of the United States, or a resident of the State of New Jersey. The number of directors constituting the entire board shall not be less than three, except that where all the shares with voting power of the corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders. The directors shall have the power from time to time, in the interim between annual and special meetings of the shareholders, to increase or decrease the number of directors subject to the minimum number hereinbefore prescribed.

3. ELECTION AND TERM

The first Board of Directors shall hold office until the first annual meeting of shareholders and until their successors have been elected and qualified. Thereafter, directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next succeeding annual

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meeting of shareholders and until their successors have been elected and qualified. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors, newly created directorships and any existing vacancies in the Board of Directors, including vacancies resulting from the removal of directors for cause or without cause, may be filled by the affirmative vote of the remaining directors, although less than a quorum exists, or by the sole remaining director. A director may resign by written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation. When one or more directors shall resign from the Board of Directors effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.

4. REMOVAL OF DIRECTORS

One or more of all the directors or the corporation may be removed for cause of without cause by the shareholders. The Board of Directors shall have the power to remove directors for cause and to suspend directors pending a final determination that cause exists for removal.

5. MEETINGS

TIME. Meetings shall be held at such time as the Board of Directors shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble.

PLACE. Meetings shall be held at such place within or without the State of New Jersey as shall be fixed by the Board.

CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, by the President, or by a majority of the directors in office.

NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the business to be transacted at, or the purpose of, the meeting. Any requirement of furnishing a notice shall be waived by any director who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior to the conclusion of the meeting, the lack of notice to him. Notice of an adjourned meeting need not be given if the time and place are fixed at the meeting at which the adjournment is taken and if the period of adjournment does not exceed ten days in any one adjournment.

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QUORUM AND ACTION. A majority of the entire Board shall constitute a quorum except when a vacancy or vacancies prevent such majority, whereupon a majority of the directors in office shall constitute a quorum, provided such majority shall constitute not less than the greater of at least two persons or at least one-third of the entire Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, the act of the Board shall be the act, at a meeting duly assembled, by vote of a majority of the directors present at the time of the vote, a quorum being present at such time.

CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present, shall preside at all meetings. Otherwise, the President, if present, or any director chosen by the Board, shall preside.

6. COMMITTEES

Whenever the Board of Directors shall consist of more than three members, the Board of Directors, by resolution adopted by a majority of the Board of Directors, may appoint from among its members three or more directors to constitute an Executive Committee and one or more other committees, each of which, to the extent provided in the resolution appointing it, shall have and may exercise all of the authority of the Board of Directors with the exception of any authority the delegation of which is prohibited by Section 14A:6-9 of the New Jersey Business Corporation Act. Actions taken at a meeting of any such committees shall be reported to the Board of Directors at its next meeting following such committee meeting; except that, when the meeting of the Board is held within two days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board at its second meeting following such committee meeting. A majority of the entire Executive Committee or of any other committee shall constitute a quorum, except where a vacancy or vacancies prevent such majority, whereupon a majority of the members in office shall constitute a quorum, provided such majority shall constitute not less than the greater of at least two persons or at least one-third of the entire committee.

7. INFORMAL ACTION

Any action required or permitted to be taken pursuant to authorization voted at a meeting of the Board of Directors or any committee thereof may be taken without a meeting, if, prior or subsequent to such action, all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the Board of Directors or committee. Such consent shall have the same effect as a unanimous vote of the Board of Directors or committee for all purposes and may be stated as such in any certificate or other document filed with the Secretary of State of the State of New Jersey.

Any or all directors may participate in a meeting of the Board or a committee of the Board by means of conference telephone or any means of communication by which all persons participating in the meeting are able to hear each other.

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ARTICLE III

OFFICERS

1. EXECUTIVE OFFICERS

The directors shall elect or appoint a President, a Secretary, and a Treasurer, and may elect or appoint a Chairman of the Board, a Vice Chairman of the Board, one or more Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, and such other officers and agents as they shall determine. The President may but need not be a director. Any two or more offices may be held by the same person but no officer shall execute, acknowledge, or verify any instrument in more than one capacity if such instrument is required by law to be executed, acknowledged, or verified by two or more officers.

2. TERM OF OFFICE; REMOVAL

Unless otherwise provided in the resolution of election or appointment, each officer shall hold office until the meeting of the Board of Directors following the next annual meeting of shareholders and until his successor has been elected and qualified.

The Board of Directors may remove any officer for cause or without cause. An officer may resign by written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation.

3. AUTHORITY AND DUTIES

All officers, as between themselves and the corporation, shall have such authority and perform such duties in the management of the corporation as may be provided in these By-Laws, or, to the extent not so provided, by the Board of Directors.

4. THE CHAIRMAN OF THE BOARD OF DIRECTORS

The Chairman of the Board of Directors, if present and acting, shall preside at all meetings of the Board of Directors, otherwise, the President, if present, shall preside, or if the President does not so preside, any other director chosen by the Board shall preside.

5. THE PRESIDENT

The President shall be the chief executive officer of the corporation.

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6. VICE PRESIDENTS

Any Vice President that may have been appointed, in the absence or disability of the President, shall perform the duties and exercise the powers of the President, in the order of their seniority, and shall perform such other duties as the Board of Directors shall prescribe.

7. THE SECRETARY

The Secretary shall keep in safe custody the seal of the corporation and affix it to any instrument when authorized by the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors. The Secretary (or in his absence, an Assistant Secretary, but if neither is present another person selected by the Chairman for the meeting) shall have the duty to record the proceedings of the meetings of the stockholders and directors in a book to be kept for that purpose.

8. THE TREASURER

The Treasurer shall have the care and custody of the corporate funds, and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, the Treasurer shall give the corporation a bond for such term, in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.

ARTICLE IV

STATUTORY NOTICES TO SHAREHOLDERS

The directors may appoint the Treasurer or other fiscal officer and/or the Secretary or any other officer to cause to be prepared and furnished to shareholders entitled thereto any special notice which may be required by any provision of law.

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ARTICLE V

REGISTERED OFFICE, BOOKS AND RECORDS

The address of the registered office of the corporation in the State of New Jersey is 200 Milik Street, Carteret, New Jersey 07008 and the name of the registered agent of the corporation at said address is Marc A. Strassler, Esq. Whenever any law of the State of New Jersey shall require that any corporate certificate, report, or statement made, published, filed, or recorded, state the residence or post office address of any shareholder, director, or officer, it shall be sufficient if the aforesaid address of the registered office be stated.

The corporation shall keep books and records of account and minutes of the proceedings of its shareholders, Board of Directors, and the Executive Committee and other committee or committees, if any. Such books, records and minutes may be kept within or outside the State of New Jersey. The corporation shall keep at its registered office, or at the office of its transfer agent in the State of New Jersey, a record or records containing the names and addresses of all shareholders, the number, class and series of shares held by each and the dates when they respectively became the owners of record thereof, except that in the case of shares listed on a national securities exchange, the records of the holders of such shares may be kept at the office of the corporation’s transfer agent within or without the State of New Jersey. Any of the foregoing books, minutes or records may be in written form or in any other form capable of being converted into written form within a reasonable time.

ARTICLE VI

CORPORATE SEAL

The corporate seal shall be in such form as the Board of Directors shall prescribe.

ARTICLE VII

FISCAL YEAR

The fiscal year of the corporation shall end on the Saturday closest to January 31 in each year, and the succeeding year shall begin on the day next succeeding the last day of the preceding fiscal year, unless changed by the Board of Directors.

ARTICLE VIII

CONTROL OVER BY-LAWS

The power to amend, alter and repeal these By-Laws and to adopt new By-Laws shall be vested in the Board of Directors; provided, that the Board of Directors may delegate such power, in whole or in part, to the stockholders; and provided, further, that any By-Law which provides for the election of directors by classes for staggered terms shall be adopted by the stockholders.

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ARTICLE IX

INDEMNITY

Any person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans) (hereinafter an “indemnitee”), shall be indemnified and held harmless by the corporation to the fullest extent authorized by the New Jersey Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification than permitted prior thereto), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such indemnitee in connection with such action, suit or proceeding, if the indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of the proceeding, whether by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation and (b) with respect to any criminal action or proceeding, had reasonable cause to believe such conduct was unlawful.

Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans) shall be indemnified and held harmless by the corporation to the fullest extent authorized by the New Jersey Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification than permitted prior thereto), against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court in which such suit or action was brought, shall determine upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court shall deem proper.

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All reasonable expenses incurred by or on behalf of the indemnitee in connection with any suit, action or proceeding, may be advanced to the indemnitee by the corporation.

The rights to indemnification and to advancement of expenses conferred in this section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise.

The indemnification and advancement of expenses provided by this section shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

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EX-99.T3B.9

Exhibit B-9

AMENDED AND RESTATED BYLAWS

OF

BEST CELLARS DC, INC.

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the District of Columbia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

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Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any

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change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not

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less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the District of Columbia, it’s principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of

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Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that maybe appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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ARTICLE II

Board of Directors

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the District of Columbia and at such times as the Board of Directors may from time to time determine.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the District of Columbia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors, Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

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ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

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ARTICLE IV

Officers

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

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ARTICLE V

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any Certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.3. Board Determination Regarding Uncertificated Shares. Notwithstanding anything to the contrary in these By-laws, including anything in Sections 5.1 and 5.2, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares.

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ARTICLE VI

Indemnification

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director of officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person, Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a Written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

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Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise of nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the mariner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

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ARTICLE VII

Miscellaneous

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

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EX-99.T3B.10

Exhibit B-10

BY-LAWS

of

BEST CELLARS INC.

ARTICLE I

OFFICES

Section 1. Principal Office

The principal office of the Corporation shall be in the City of New York, County of New York, and State of New York.

Section 2. Additional Offices

The Corporation may also have offices and places of business at such other places, within or without the State of New York, as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF SHAREHOLDERS

Section 1. Time and Place

The annual meeting of the shareholders of the Corporation and all special meetings of shareholders may be held at such time and place within or without the State of New York as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Annual Meeting

The annual meeting of shareholders shall be held on the first Tuesday of September of each year, if not a legal holiday or, if a legal holiday, then on the next business day thereafter, and the shareholders shall then elect a Board of Directors and transact such other business as may properly be brought before the meeting.

Section 3. Notice of Annual Meeting

Notice of the place, date and hour of the annual meeting of shareholders shall be given, as provided in Article V of these By-laws, to each shareholder entitled to vote thereat, not less than ten (10) nor more than fifty (50) days prior to the meeting.

Section 4. Special Meetings

Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by law or by the Certificate of Incorporation, may be called by the President or by action of the Board of Directors, and shall be called by the President or Secretary at the written request of shareholders holding at least twenty-five percent (25%) of the voting shares of the Corporation. Such request shall state the purpose or purposes of the proposed meeting.

Section 5. Notice of Special Meeting

Notice of any special meeting of shareholders, stating the place, date and hour of the meeting, the purpose or purposes for which the meeting is called, and by or at whose direction it is being issued, shall be given, as provided in Article V of these By-Laws, to each shareholder entitled to vote thereat, not less than ten (10) nor more than fifty (50) days prior to the meeting.

Section 6. Quorum

Except as otherwise provided by the Certificate of Incorporation or by law, the holders of one-third (1/3) of the shares of the Corporation entitled to vote thereat shall be necessary to and shall constitute a quorum for the transaction of business at any meeting of the shareholders. If a quorum shall not be present at any meeting of the shareholders, the shareholders entitled to vote thereat present in person or represented by proxy shall have power to adjourn the meeting from time to time until a quorum shall be present. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. No notice of the adjourned meeting need be given if the date, time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, provided, that if, after the adjournment, the Board fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to vote at such meeting. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.

Section 7. Voting

(a) Every shareholder having the right to vote shall be entitled to vote in person or by proxy at any meeting of the shareholders. Except as otherwise provided in the Certificate of Incorporation, each shareholder shall have one (1) vote for each share of stock having voting power which is registered in his name on the books of the Corporation.

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(b) Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, Directors shall be elected by a plurality, and all other matters shall be decided by a majority, of the votes cast by holders of voting shares of the Corporation.

(c) At each meeting of the shareholders, the polls shall be opened and closed, the proxies and ballots shall be received and taken in charge, and all questions relating to the existence of a quorum, the qualification of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by one or more inspectors of election. Such inspectors may be appointed in advance of the meeting by the Board of Directors or, if not so appointed, the chairman of the meeting may, and on the request of any shareholder entitled to vote thereat shall, appoint one or more such inspectors. If for any reason, any of the inspectors appointed shall fail to attend or refuse or be unable to serve, the vacancy may be filled in like manner. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability, and the oath so taken shall be filed with the minutes of such meeting. On request of the chairman of the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question or matter determined by them, and execute a certificate of any fact found by them. The requirement of inspectors at any shareholders’ meeting shall be deemed to have been waived unless compliance therewith is requested by a shareholder present in person or by proxy and entitled to vote at such meeting.

Section 8. Proxies

A proxy, to be valid, shall be executed in writing by the shareholder or by his attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except in those cases where an irrevocable proxy is permitted by law.

Section 9. Consents

Whenever by any provision of law shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. Nothing in this paragraph shall be construed to alter or modify any provision of law or of the Certificate of Incorporation under which the written consent of the holders of less ..than all outstanding shares is sufficient for corporate action.

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ARTICLE III

DIRECTORS

Section 1. Number; Tenure

(a) The number of Directors constituting the entire Board of Directors shall be fixed from time to time by resolution of the shareholders or adopted by a majority of the entire Board, but shall not be less than three (3), except that where all the shares of the Corporation are owned beneficially and of record by less than three (3) shareholders, the number of Directors may be less than three (3) but not less than the number of shareholders. The Board of Directors shall initially be composed of three (3) Directors. As used in these By-Laws, “entire Board” means the total number of directors which the Corporation would have if there were no vacancies.

(b) Except as otherwise provided in these By-Laws for the filling of vacancies, Directors shall be elected at each annual meeting of shareholders to serve until the next annual meeting of shareholders and until their respective successors shall have been elected and qualified.

Section 2. Powers

The Board of Directors may adopt such rules and regulations for the conduct of its meetings, the exercise of its powers and the management of the affairs of the Corporation as it may deem proper, not inconsistent with the laws of the State of New York, the Certificate of Incorporation or these By-Laws.

In addition to the powers and authorities by these By-Laws expressly conferred upon them, the Directors may exercise all such powers of the Corporation and do such lawful acts and things as are not by statute, by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the shareholders.

Section 3. Resignation; Removal

Any Director may resign at any time, by giving written notice of such resignation to the Board of Directors or to the President, and such resignation shall be effective upon delivery of such notice or at such time as may be specified in such notice.

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Except where the Certificate of Incorporation contains provisions authorizing cumulative voting or the election of one or more Directors by class or their election by holders of bonds, or requires all action by shareholders to be by a greater vote, any one or more of the Directors may be removed, (a) either for or without cause, at any time, by vote of the shareholders holding a majority of the outstanding stock of the Corporation entitled to vote, present in person or by proxy, at any special meeting of the shareholders or, (b) for cause, by action of the Board of Directors at any regular or special meeting of the Board. A vacancy or vacancies occurring from such removal may be filled at the special meeting of shareholders held for that purpose or at a regular or special meeting of the Board of Directors.

When by the provisions of the Certificate of Incorporation, the Corporation shall have cumulative voting, no Director may be removed when the votes, cast against his removal would be sufficient to elect him if voted cumulatively at an election at which the same total number of votes were cast and the entire Board, or the entire class of Directors of which he is a member, were then being elected.

When by the provisions of the Certificate of Incorporation the holders of the shares of any class or series, or holders of bonds, voting as a class, are entitled to elect one or more Directors, any Director so elected may be removed only by the applicable vote of the holders of the shares of that class or series, or the holders of such bonds, voting as a class.

Section 4. Vacancies

If any vacancy shall occur in the Board of Directors for any reason, including vacancies occurring by reason of the removal of Directors with or without cause and newly created directorships resulting from an increase in the number of directors, such vacancy may be filled by vote of a majority of the Directors then in office, even if the same be less than a quorum, and each Director so chosen shall hold office until the next annual meeting of shareholders and until his successor shall have been elected and qualified, unless sooner removed; provided, however, that if in the event of any such vacancy, the Directors remaining in office shall not, by majority vote, fill such vacancy within thirty (30) days of the occurrence thereof, the President or Secretary may call a special meeting of the shareholders at which such vacancy may be filled.

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Section 5. Executive Committee and Other Committees

The Board of Directors, by resolution adopted by a majority of the entire Board, may designate from among its members an executive committee and other committees, each consisting of three (3) or more Directors, and each of which, to the extent provided in said resolution or in these By-Laws, and except as limited by law or the Certificate of Incorporation, shall have all of the authority of the Board of Directors. The Board of Directors may designate one or more Directors as alternate members of any such committee, who may replace any absent member of members at any meeting of such committee. The Board of Directors, by resolution adopted by a majority of the entire Board, may remove a Director from membership in any such committee with or without cause. Each such committee shall keep regular minutes of its proceedings and shall report thereon to the Board from time to time as required.

Section 6. Liability of Directors in Certain Cases

(a) Directors of the Corporation who vote for or concur in any of the following corporate actions shall be jointly and severally liable to the Corporation for the benefit of its creditors or shareholders, to the extent of any injury suffered by such persons, respectively, as a result of such action (all sections herein cited refer to the Business Corporation Law of the State of New York):

(1) The declaration of any dividend or other distribution to the extent that it is contrary to the provisions of paragraphs (a) and (b) of Section 510 (Dividends or other distributions in cash or property).

(2) The purchase of the shares of the Corporation to the extent that it is contrary to the provisions of Section 513 (Purchase or redemption by a Corporation of its own shares).

(3) The distribution of assets to shareholders after dissolution of the Corporation without paying or adequately providing for all known liabilities of the Corporation, excluding any claims not filed by creditors within the time limit set in a notice given to creditors under articles 10 (Non-judicial dissolution) or 11 (Judicial dissolution).

(4) The making of any loan contrary to Section 714 (Loans to directors).

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(b) A Director who is present at a meeting of the Board, or any committee thereof, when action specified in paragraph (a) is taken shall be presumed to have concurred in the action unless his dissent thereto shall be entered in the minutes of the meeting, or unless he shall submit his written dissent to the person acting as secretary of the meeting before the adjournment thereof, or shall deliver or send by registered mail such dissent to the Secretary of the Corporation promptly after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action. A Director who is absent from a meeting of the Board, or any committee thereof, when such action is taken shall be presumed to have concurred in the action unless he shall deliver or send by registered mail his dissent thereto to the Secretary of the Corporation or shall cause such dissent to be filed with the minutes of the proceedings of the Board or committee within a reasonable time after learning of such action.

(c) Any Director against whom a claim is successfully asserted under this section shall be entitled to contribution from the other Directors who voted for or concurred in the action upon which the claim is asserted.

(d) Directors against whom a claim is successfully asserted under this section shall be entitled, to the extent of the amounts paid by them to the Corporation as a result of such claims (all sections herein cited refer to the Business Corporation Law of the State of New York):

(1) Upon payment to the Corporation of any amount of an improper dividend or distribution, to be subrogated to the rights of the Corporation against shareholders who received such dividend or distribution with knowledge of facts indicating that it was not authorized by Section 510, in proportion to the amounts received by them respectively.

(2) Upon payment to the Corporation of any amount of the purchase price of an improper purchase of shares, to have the Corporation rescind such purchase of shares and recover for their benefit, but at their expense, the amount of such purchase price from any seller who sold such shares with knowledge of facts indicating that such purchase of shares by the Corporation was not authorized by Section 513.

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(3) Upon payment to the Corporation of the claim of any creditor by reason of a violation of subparagraph (a)(3) of this Section 6 of the By-Laws, to be subrogated to the rights of the Corporation against shareholders who received an improper distribution of assets.

(4) Upon payment to the Corporation of the amount of any loan made contrary to Section 714, to be subrogated to the rights of the Corporation against a Director who received the improper loan.

(e) A Director shall not be liable under this section if, in the circumstances, he performed his duty to the Corporation under Section 717 of the Business Corporation Law of the State of New York.

ARTICLE IV

MEETINGS OF THE BOARD

Section 1. Place

The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of New York.

Section 2. Regular Meetings

Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be fixed by resolution of the Board. In addition, the Board may hold an annual meeting, without notice, immediately following the annual meeting of shareholders.

Section 3. Special Meetings

Special meetings of the Board of Directors may be called by the Chairman of the Board, if any, or by the President or Secretary, on five (5) days’ notice by mail or two (2) days’ notice either personally or by telegram, to each Director as provided in Article V of these By-Laws; special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice upon the written request of any two (2) Directors, unless there shall be only one (1) Director of the Corporation.

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Section 4. Quorum

Except as otherwise provided by the Certificate of Incorporation or by law, at all meetings of the Board of Directors, one-third (1/3) of the entire Board of Directors shall be necessary to constitute a quorum for the transaction of business. Except as may be otherwise provided by law, the vote of a majority of the Directors present at the time of the vote shall, if a quorum is present, be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the Directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Two (2) days’ notice of any such adjournment shall be given, either personally or by telegram, or five (5) days’ notice by mail, to each Director who was not present and, unless announced at the meeting, to the other Directors.

Section 5. Compensation

Directors, as such, shall not receive any stated salary for their services, but, by resolution of the Board of Directors, a fixed fee and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided, however, that nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 6. Written Consent

Any action required or permitted to be taken by the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or such committee, as the case may be, consent in writing to the adoption of a resolution authorizing such action. Every such resolution and the written consents thereto shall be filed with the minutes of the proceedings of the Board or committee.

Section 7. Participation at Meetings by Means of Communications Equipment

Any one or more members of the Board of Directors or any committee thereof may participate in any meeting of the Board or such committee, as the case may be, by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall be deemed to constitute presence in person at such a meeting.

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ARTICLE V

NOTICES

Section 1. Form; Delivery

Notices to Directors and shareholders shall be in writing and may be delivered personally or by mail or, to Directors, by telegram. Notice to a Director or shareholder shall be deemed to have been given: (i) if by mail, when deposited in the United States mail with first class postage thereon prepaid, or (ii) if by telegram, when ordered or, if a delayed delivery is ordered, as of such delayed delivery time, directed to such Director or shareholder at his address appearing on the records of the Corporation, or if he shall have filed with the Secretary of the Corporation a written request that notices to him be mailed to some other address, then directed to him at such other address.

Section 2. Waiver

Whenever a notice is required to be given by any statute, the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by such person or by proxy of the person entitled to such notice whether before or after the meeting, shall be deemed equivalent to such notice. In addition, any shareholder attending a meeting of shareholders in person or by proxy without protesting prior to the conclusion of the meeting the lack of notice thereof to him, and any Director attending a meeting of the Board of Directors without protesting such lack of notice prior to the meeting or at its commencement, shall be conclusively deemed to have waived notice of such meeting.

ARTICLE VI

OFFICERS

Section 1. Officers

The officers of the Corporation shall be a President, a Secretary and a Treasurer, and such other officers, including one or more Vice-Presidents, Assistant Secretaries, Assistant Treasurers and a Chairman of the Board, as may be determined by the Board of Directors. Any two or more offices may be held by the same person, except that the offices of President and Secretary may not be held by the same person unless all of the issued and outstanding stock of the Corporation is owned by such person. No officer except the Chairman of the Board need be a member of the Board of Directors.

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Section 2. Authority and Duties

All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-Laws, or, to the extent not so provided, as may be provided by the Board of Directors.

Section 3. Term of Office; Removal

All officers shall be elected or appointed by the Board of Directors and shall hold office during the pleasure of the Board. Any officer or agent elected or appointed by the Board may be removed with or without cause at any time by the Board. The removal of an officer without cause shall be without prejudice to his contractual rights, if any. The election or appointment of an officer shall not of itself create any contractual rights.

Section 4. Compensation

The compensation of all officers of the Corporation shall be fixed by the Board of Directors, and the compensation of agents shall either be so fixed or shall be fixed by officers thereunto duly authorized. The fact that any officer is a Director shall not preclude him from receiving a salary as an officer, or from voting upon the resolution providing the same.

Section 5. Vacancies

If an office becomes vacant for any reason, the Board of Directors may fill the vacancy, and any officer so appointed or elected by the Board shall serve only until the expiration of the term of his predecessor unless re-elected by the Board of Directors.

Section 6. The Chairman of the Board

The Chairman of the Board of Directors, if there be any, shall preside at all meetings of the shareholders and Directors at which he is present, and shall have such other powers and duties as may from time to time be assigned to him by the Board of Directors, or the Executive Committee, if there be any.

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Section 7. The Chief Executive Officer

The Chief Executive Officer shall be highest officer of the Corporation; in the absence of the Chairman of the Board, or if there be no Chairman, he shall preside at all meetings of the shareholders or Directors at which he is present; he shall have general and active management and control of the business and affairs of the Corporation, subject to the control of the Board of Directors, and shall see that all orders and resolutions of the Board are carried into effect.

Section 8. The Vice-President

The Vice-President or, if there be more than one, the Vice-Presidents in the order of priority determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers and duties of the President, and shall generally assist the President and perform such other duties as the Board shall prescribe.

Section 9. The Secretary

The Secretary shall record, or cause to be recorded, all votes at meetings of the Board of Directors or of the shareholders, and shall keep or cause to be kept minutes of all corporate proceedings, and shall perform like duties for the standing committees when required. He shall give and serve, or cause to be given and served, notice of all meetings of the shareholders and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board of Directors. He shall keep in safe custody the seal of the Corporation and, when authorized by the Board, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary or Assistant Treasurer. He shall keep in safe custody the certificate books and shareholder records and such other books and records as the Board may direct, and shall perform all other duties incident to the office of the Secretary.

Section 10. The Assistant Secretary

During, the absence or disability of the Secretary, the Assistant Secretary, or, if there be more than one, the one so designated by the Secretary or by the Board of Directors, shall have all the powers and duties of the Secretary.

Section 11. The Treasurer

The Treasurer shall have the care and custody of the corporate funds and other valuable effects, including Securities, and all evidence of indebtedness of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and

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shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse out of the funds on hand all bills, payrolls and just debts of the Corporation upon maturity, and shall disburse any other sums out of the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and Directors, at the regular meetings of the Board, or whenever they may require it, an accounting of all his transactions as Treasurer and of the financial condition of the Corporation, and shall perform all other duties incident to the office of Treasurer as may be prescribed by the Board.

Section 12. The Assistant Treasurer

During the absence or disability of the Treasurer, the Assistant Treasurer, or, if there be more than one, the one so designated by the Treasurer or by the Board of Directors, shall have all the powers and duties of the Treasurer.

Section 13. Bonds

If the Board of Directors shall so require, any officer or agent of the Corporation shall give the Corporation a bond for such term, in such sum and with such surety or sureties as shall be satisfactory to the Board, for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

ARTICLE VII

SHARE CERTIFICATES

Section 1. Form; Signature

The certificates for shares of the Corporation shall be in such form as shall be determined by the Board of Directors and shall be numbered consecutively and recorded in the books of the Corporation as they are issued. Each certificate shall state: (i) that the Corporation has been formed under the laws of the State of New York, (ii) that the shares shall be transferable in the manner provided by law and in these By-Laws, and (iii) the registered holder’s name and the number and class of shares, and shall be signed by the Chairman, President or a Vice-President and the Secretary,

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Assistant Secretary, Treasurer or an Assistant Treasurer, and may bear the seal of the Corporation or a facsimile thereof. Where any such certificate is countersigned by a transfer agent, or registered by a registrar, the signature or signatures of which was or were placed on any such certificate, shall have ceased to be such officer before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer at the date of issue.

Section 2. Lost Certificates

The Board of Directors may direct that a new share certificate or certificates be issued in place of any certificate or certificates theretofore issued by the Corporation and alleged to have been lost or destroyed, upon the furnishing to the Corporation of an affidavit to that effect by the person claiming that the certificate has been lost or destroyed. When authorizing such issue of a new certificate or certificates, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to give the Corporation and its transfer agent(s) and registrar(s) a bond in such sum as it may direct (including a bond without limit as to amount) as indemnity against any claim which may be made against the Corporation with respect to the certificate alleged to have been lost or destroyed.

Section 3. Registration of Transfer

Upon surrender to the Corporation or any transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer, it shall be the duty of the Corporation or such transfer agent to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

Section 4. Record Date

For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to expess consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action affecting the interests of shareholders, the Board of Directors may fix, in advance, a record date. Such date shall not be more than fifty (50) nor less than ten (10) days before the date of any such meeting, nor more than fifty (50) days prior to such other action.

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In each such case, except as otherwise provided by law, only such persons as shall be shareholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any adjournment thereof, or to express such consent or dissent, or to receive payment of such dividend or such allotment of rights, or otherwise to be recognized as shareholders for the relevant purpose, notwithstanding any registration of transfer of shares on the books of the Corporation after any such record date so fixed.

ARTICLE VIII

INDEMNIFICATION

Section 1. Indemnification

The Corporation shall indemnify, to the fullest extent permitted by law, any person made, or threatened to be made a party to any action or proceeding, whether civil or criminal, by reason of the fact that he, his testator or intestate, is or was a Director or officer of the Corporation, or served any other corporation of any type or kind, domestic or foreign, or partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity at the request of the Corporation, against judgments, fines, amounts paid in settlement and reasonable expenses including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such Director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Corporation, and, in criminal actions or proceedings, had no reasonable cause to believe that his conduct was unlawful.

Notwithstanding the foregoing, the Corporation shall not indemnify any person adjudged to have breached his duty to the Corporation under Section 717 or Section 715(h) of the Business Corporation Law of the State of New York.

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ARTICLE IX

GENERAL PROVISIONS

Section 1. Fiscal Year

The fiscal year of the Corporation shall end on December 31 in each year; provided, however, that such fiscal year may be changed by resolution of the Board of Directors.

Section 2. Dividends

Subject to any provisions of the Certificate of Incorporation and the laws of the State of New York, dividends upon the outstanding shares of the Corporation may be declared by the Board of Directors out of capital surplus at any regular or special meeting and may be paid in cash, property or shares of the capital stock of the Corporation.

Section 3. Checks; Obligations

All checks, demands for money and notes or other instruments evidencing indebtedness or obligations of the Corporation shall be signed by such officer or officers, or such other person or persons, as the Board of Directors may from time to time designate.

Section 4. Seal

The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal New York”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

ARTICLE X

AMENDMENTS

Section 1. Power to Amend

The shareholders entitled at the time to vote in the election of any Directors shall have power to amend, repeal or adopt By-Laws by majority vote at any annual or special meeting of shareholders. The Board of Directors shall have power to amend, repeal or adopt By-Laws by majority vote at any regular or special meeting of the Board; provided, however, that any By-Law adopted by the Board of Directors may be amended or repealed by the shareholders entitled at the time to vote in the election of any Director.

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Section 2. Amendment Affecting Election of Directors; Notice

If any By–Law regulating an impending election of Directors is adopted, amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of shareholders for the election of Directors the By-Law so adopted, amended or repealed, together with a concise statement of the changes made.

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EX-99.T3B.11

Exhibit B-11

AMENDED AND RESTATED BYLAWS

OF

BEST CELLARS LICENSING CORP.

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of New York, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the Stockholder at such stockholder’s address as it appears on the records of the corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

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Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7. Voting: Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any

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change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not

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less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of New York, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of

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Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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ARTICLE II

Board of Directors

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of New York and at such times as the Board of Directors may from time to time determine.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of New York whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

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ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

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ARTICLE IV

Officers

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

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ARTICLE V

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.3. Board Determination Regarding Uncertificated Shares. Notwithstanding anything to the contrary in these By-laws, including anything in Sections 5.1 and 5.2, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares.

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ARTICLE VI

Indemnification

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

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Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

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ARTICLE VII

Miscellaneous

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

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EX-99.T3B.12

Exhibit B-12

AMENDED AND RESTATED BYLAWS

OF

BEST CELLARS MASSACHUSETTS, INC.

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Massachusetts, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In

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the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon

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which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of

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Massachusetts, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to

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stockholders of record of the corporation, their duly authorized and constituted proxies of such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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ARTICLE II

Board of Directors

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time Upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Massachusetts and at such times as the Board of Directors may from time to time determine.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Massachusetts whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

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ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

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ARTICLE IV

Officers

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the fights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

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ARTICLE V

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.3. Board Determination Regarding Uncertificated Shares. Notwithstanding anything to the contrary in these By-laws, including anything in Sections 5.1 and 5.2, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares.

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ARTICLE VI

Indemnification

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, of a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

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Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint Venture, trust, enterprise or non-profit enterprise.

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

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ARTICLE VII

Miscellaneous

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

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EX-99.T3B.13

Exhibit B-13

AMENDED AND RESTATED BYLAWS

OF

BEST CELLARS VA, INC.

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Virginia, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In

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the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

Section 1.8. Fixing Date for Determination of Stockholders of Record. In Order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the

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Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of of to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such

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action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Virginia, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without

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limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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ARTICLE II

Board of Directors

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Virginia and at such times as the Board of Directors may from time to time determine.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Virginia whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

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ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

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ARTICLE IV

Officers

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 4.2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

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ARTICLE V

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer of an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent Or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such Owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.3. Board Determination Regarding Uncertificated Shares. Notwithstanding anything to the contrary in these By-laws, including anything in Sections 5.1 and 5.2, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares.

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ARTICLE VI

Indemnification

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered arid expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

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Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

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ARTICLE VII

Miscellaneous

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before of after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

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EX-99.T3B.14

Exhibit B-14

AMENDED AND RESTATED BYLAWS

OF

BEV LTD.

ARTICLE I

OFFICES

Section 1. The registered office in the State of Delaware shall be as stated in the Certificate of Incorporation or at such other location in the State of Delaware to which the registered office shall be changed by action of the Board of Directors.

Section 2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the stockholders for the election of directors shall be held at such place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the Corporation, or any action which may be taken at any meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

ARTICLE III

DIRECTORS

Section 1. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.

Section 2. The number of directors which shall constitute the Board of Directors shall be not less than one nor more than five and shall be set by resolution of the Board. Each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders.

Section 3. Vacancies and newly created directorships resulting from any increases in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.

MEETINGS OF THE BOARD OF DIRECTORS

Section 4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.

Section 5. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.

Section 6. At all meetings of the Board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 7. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

Section 8. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

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COMMITTEES OF DIRECTORS

Section 9. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by law to be submitted to the stockholders for approval, or (ii) adopting, amending or repealing any bylaw. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.

COMPENSATION OF DIRECTORS

Section 10. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

REMOVAL OF DIRECTORS

Section 11. Unless otherwise restricted by the Certificate of Incorporation or by law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares then entitled to vote at an election of directors.

ARTICLE IV

NOTICES

Section 1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telephone, email, telex, telecopier or telegram.

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Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE V

OFFICERS

Section 1. The officers of the Corporation shall be a President, a Secretary and a Treasurer or persons who shall act as such, regardless of the name or title by which they may be designated, elected or appointed. The Corporation may also have one or more Senior Vice Presidents or Vice Presidents and such other officers and assistant officers as the Board of Directors may choose. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.

Section 2. The officers and assistant officers shall be chosen by the Board of Directors and shall hold office until their successors are elected and qualified or until their earlier resignation or removal.

Section 3. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board.

Section 4. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

THE PRESIDENT

Section 5. The President shall be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.

Section 6. The President shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.

THE SENIOR VICE PRESIDENTS AND VICE PRESIDENTS

Section 7. In the absence of the President or in the event of his inability or refusal to act, and if a Senior Vice President or Vice President has been appointed by the Board of Directors, the Senior Vice President or Vice President (or in the event there be more than one Senior Vice President or Vice President, the Senior Vice Presidents or Vice Presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Senior Vice Presidents and Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

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THE SECRETARY AND ASSISTANT SECRETARY

Section 8. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

Section 9. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

THE TREASURER AND ASSISTANT TREASURERS

Section 10. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.

Section 11. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

Section 12. If required by the Board of Directors, he shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of this office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

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Section 13. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

ARTICLE VI

CERTIFICATES FOR SHARES

Section 1. The shares of the Corporation shall be represented by a certificate, provided that the Board of Directors may provide, by resolution or resolutions, that some or all of any or all classes or series of its stock shall be uncertificated shares. Certificates shall be signed by, or in the name of the Corporation by, the chairman or vice-chairman of the Board of Directors, or the President or a Senior Vice President or Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation.

Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law of Delaware or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

LOST CERTIFICATES

Section 3. The Board of Directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

TRANSFER OF STOCK

Section 4. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a

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new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation.

REGISTERED STOCKHOLDERS

Section 5. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

ARTICLE VII

GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

CHECKS

Section 2. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

SEAL

Section 3. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

INDEMNIFICATION

Section 4. The Corporation shall indemnify its officers and directors to the fullest extent permitted by the General Corporation Law of Delaware.

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ARTICLE VIII

AMENDMENTS

Section 1. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation, at any meeting of the stockholders or of the Board of Directors. If the power to adopt, amend or repeal bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws.

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EX-99.T3B.15

Exhibit B-15

Annex II

BY-LAWS

OF

BORMAN’S INC.

(hereinafter called the “Corporation”)

ARTICLE I

OFFICES

Section 1. Registered Office. The registered office of the Corporation shall be 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware.

Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.

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Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

Section 3. Special Meetings. Unless otherwise prescribed by law or by the Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chairman, if there be one, (ii) the President, or (iii) any Vice President, and shall be called by any such officer at the request in writing of stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Written

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notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.

Section 4. Quorum. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.

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Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 6. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing,

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setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

Section 7. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.

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Section 8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

ARTICLE III

DIRECTORS

Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen members, the exact number of which shall be fixed time to time by the Board of Directors. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders.

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Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier resignation or removal.

Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.

Section 4. Meetings. The Board of Directors the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or any director. Notice thereof stating the place, date and

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hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.

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Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting.

Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an

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alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.

Section 9. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

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Section 10. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or

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(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

ARTICLE IV

OFFICERS

Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a director) and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation.

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Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and

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may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. He shall be the Chief Executive Officer of the Corporation, and except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 5. President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. If there be no Chairman of the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors.

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Section 6. Vice Presidents. At the request of the President or in his absence or in the event of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.

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Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

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Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

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Section 9. Assistant Secretaries. Except as may be otherwise provided in these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

Section 10. Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful

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performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

Section 11. Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

ARTICLE V

STOCK

Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation.

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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors, shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

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Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.

Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting,

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nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.

ARTICLE VI

NOTICES

Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex or cable.

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Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

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Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

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ARTICLE VIII

INDEMNIFICATION

Section 1. Elimination of Certain Liability of Directors. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or. a knowing violation of law, (c) under Section 174 of the GCL, or (d) for any transaction from which the director derived an improper personal benefit. If the GCL is hereafter amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided, herein, shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended.

Any repeal or modification of the foregoing Section 1 by the stockholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such repeal or modification.

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Section 2. Indemnification and Insurance.

(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the GCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, the rights of indemnification provided hereby shall continue as theretofore notwithstanding such amendment unless such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered

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by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives; provided, however, that, except as provided in subsection 2(b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The right to indemnification conferred in this subsection 2(a) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition provided, however, that, if the GCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such

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director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this section or otherwise. The Corporation may, by action of its board of directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

(b) Right of Claimant to Bring Suit. A claimant may bring suit against the Corporation under subsection 2(a) of this Article only if the Corporation fails to pay in full within thirty days of its receipt of a written claim for payment hereunder. If successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim (including, but not limited to, attorneys’ fees). It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct that make it permissible under the GCL for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such

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defense shall be on the Corporation. Neither the failure of the Corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the GCL, nor an actual determination by the Corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this section shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-Law, agreement, vote of stockholders or disinterested directors or otherwise.

(d) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the GCL.

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ARTICLE IX

AMENDMENTS

Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.

Section 2. Entire Board of Directors. As used in this Article IX and in these By-Laws generally, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.

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EX-99.T3B.16

Exhibit B-16

BY-LAWS

Of

BRIDGE STUART INC.

A New York corporation

ARTICLE I

SHAREHOLDERS MEETINGS

Section 1. Place of Meetings. Meetings of shareholders shall be held at the principal office of the corporation or at such other place within or without the State of New York as shall be stated in the notice of meeting or waiver thereof.

Section 2. Annual Meetings. The annual meeting of shareholders for the election of directors and the transaction of such other business as may properly come before the meeting shall be held at 2:10 P.M. on January 25 of each year, if a business day, and if not a business day then on the next business day.

Section 3. Special Meetings. Special meetings of shareholders may be called at any time for any purpose or purposes by the board of directors or by the president and shall be called by the president or secretary at the written request of the holders of a majority of the issued and outstanding shares entitled to vote thereat, which request shall be delivered to the president and shall state the purpose or purposes for which it is requested that the meeting be called.

Section 4. Notice of Meetings. Written notice of the place, date, and hour of each meeting of shareholders, indicating (unless it is the annual meeting) that the notice is being issued by or at the direction of the person or persons calling the meeting, shall be given, personally or by mail, not less than ten nor more than fifty days before the date of the meeting, to each shareholder entitled to vote at said meeting and to any other shareholder to whom the giving of notice may be required by law, at his address as it appears on the record of shareholders, or at such other address as he shall have filed with the secretary as his address for the mailing of such notices. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called. If, at any meeting, action is proposed to be taken which would, if taken, entitle shareholders to receive payment for their shares pursuant to the Business Corporation Law, the notice of such meeting shall also include such statement as may be required by law. Notice of a meeting need not be given to any shareholder who, in person or by proxy, either attends the meeting without protest prior to the conclusion of the meeting or submits, before or after the meeting, a signed waiver of notice.

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Section 5. Quorum and Adjournments. Presence in person or by proxy of the holders of a majority of the outstanding shares entitled to vote thereat shall constitute a quorum at all meetings of shareholders, provided that when a specific item of business is required to be voted on by a class or series, the holders of a majority of the shares of such class or series shall transaction of such specified item of business. The shareholders present may adjourn the meeting from time to time despite the absence of a quorum. When a meeting is adjourned to another time or place, it shall not be necessary (unless a new record date is fixed by the directors) to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting the shareholders may transact any business that might have been transacted on the original date of the meeting.

Section 6. Voting. Each holder of record of shares entitled to vote at a meeting may vote in person or by proxy and shall have one vote for every such share standing in his name on the record of shareholders, unless otherwise provided in the certificate of incorporation. Directors

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shall be elected by a plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote in the election. Any corporate action, other than the election of directors, to be taken by vote of the shareholders shall, except as otherwise required by law or by the certificate of incorporation, be authorized by a majority of the votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon. A list of shareholders as of the record date, certified by the secretary or a transfer agent, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder.

Section 7. Conduct of Meetings. Shareholders meetings shall be presided over by the president, and in his absence, by a vice president, and if none is present, by a chairman chosen at the meeting. The secretary of the corporation, and in his absence, an assistant secretary, and if none is present, a person chosen at the meeting, shall act as secretary of the meeting.

Section 8. Written Consent of Shareholders without A Meeting. Whenever shareholders are required or permitted to take any action by vote such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon.

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ARTICLE II

BOARD OF DIRECTORS

Section 1. Powers, Number, Term and Qualifications. Except as otherwise provided in the certificate of incorporation, the business of the corporation shall be managed by the board of directors, each of whom shall be at least twenty-one years of age. The number of directors constituting the entire board of directors shall not be less than three, except that if all the shares of the corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders. Subject to such limitations, the number of directors may be fixed and from time to time increased or decreased by action of a majority of the entire board of directors or by the shareholders, but no decrease shall shorten the term of any incumbent director. If not otherwise fixed by the board of directors or shareholders, the number of directors shall be three. Unless his directorship shall theretofore be vacated by resignation, death, removal, or otherwise, each director shall hold office until the next annual meeting of shareholders and until his successor has been elected and qualified.

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Section 2. Vacancies. Any vacancies in the board of directors resulting from death, resignation, increase, in the number of directors, or any cause other than removal by the shareholders, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by vote of the shareholders. A director elected by the directors or shareholders to fill a vacancy shall hold office for the unexpired term of his predecessor.

Section 3. Removals. The shareholders may remove any director with or without cause and fill the vacancy in the board of directors thus created.

Section 4. Action by the Board. Except as otherwise provided by statute, the certificate of incorporation, or these by-laws, one-third of the entire board of directors shall constitute a quorum for the transaction of business or of any specified item of business and the vote of a majority of the directors present at a meeting at the time of the vote, if a quorum is present at the time, shall be the act of the board.

Section 5. Place, Time and Notice of Meetings of the Board; Adjournments. Meetings of the board of directors may be held at any place, within or without the State of New York, as may from time to time be fixed by the board or as may be specified in the notice of meeting. Regular meetings

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of the board of directors may be held without notice at such times as may from time to time be fixed by the board, and special meetings may be held at any other time upon the call of any officer or director by oral, telegraphic, or written notice delivered, sent, or mailed to each director not less than two days before such meeting. The annual meeting of the board of directors may be held without notice immediately after the annual meeting of shareholders. A notice of meeting, or waiver of notice, need not specify the purpose of the meeting. Notice of meeting need not be given to any director who attends the meeting without protest or who signs, before or after the meeting, a waiver of notice. A majority of the directors present, whether or not a quorum, may adjourn any meeting to another time and place without notice other than announcement at the meeting.

Section 6. Committees. The board, by resolution adopted by a majority of the entire board, may appoint an executive committee and other committees, each consisting of three or more directors, with such powers permitted by law as shall be conferred or authorized by the resolution appointing them. A majority of any such committee may determine its action and fix the time and place of its meetings, unless the board of directors shall otherwise determine. Each such committee shall serve at the pleasure of the board which may at any time fill vacancies in, change the membership of, or discharge any such committee.

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ARTICLE III

OFFICERS

Section 1. Election, Term of Office and Vacancies. The board of directors at its meeting following the annual meeting of shareholders shall elect or appoint a president, a secretary, and a treasurer. The board may also elect or appoint one or more vice presidents and such other officers as it may from time to time determine. Any two or more offices may be held by the same person except the offices of president and secretary. Each officer shall hold office until the meeting of the board following the next annual meeting of shareholders and until his successor has been elected or appointed and qualified, but the board may remove any officer with or without cause at any time. Vacancies may be filled by the board at any time.

Section 2. Powers and Duties. Officers of the corporation shall, unless otherwise provided by the board of directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may from time to time be specifically conferred or imposed by the board of directors. The president shall be the chief executive officer of the corporation.

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Section 3. Shares of Other Corporations. Whenever the corporation is the holder of shares of any other corporation any or all rights and powers of the corporation as such shareholder (including the attendance, acting and voting at shareholders meetings, and execution of waivers, consents, and proxies) may be exercised on behalf of the corporation by the president, any vice president, or by such other person as the board of directors may authorize.

ARTICLE IV

CERTIFICATES FOR SHARES

Section 1. Certificates. Certificates representing shares of the corporation shall be signed by the president or a vice president and by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the seal of the corporation or a facsimile thereof and countersigned and registered in such manner, if any, as the board of directors may prescribe. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or an assistant transfer agent, or registered by a registrar other than the corporation itself or an employee. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued it may be issued by the corporation with the same effect as if he were such officer at the date of issue.

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Section 2. Transfer of Shares. The shares of the corporation may be transferred only by the holder in person or by his attorney upon surrender for cancellation of certificates for the shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer, and of payment of transfer taxes, as the corporation or its agents may require.

Section 3. Fixing Record Date. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or for the purpose of any other action, the board of directors may fix a record date for any such determination of shareholders, which date shall be not more than fifty nor less than ten days before the date of any such meeting, nor more than fifty days prior to any other action; and in any such case, only shareholders of record at the time so fixed shall be entitled to notice of and to vote at such meeting or to express such consent or dissent, or to receive such dividend, distribution or rights, or to be considered shareholders for purposes of such other action, as the case may be.

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Section 4. Lost or Destroyed Certificates. No certificate for shares shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of such evidence of loss, destruction, or theft and on delivery to the corporation, if the board of directors shall so require, of a bond of indemnity in such amount and upon such terms and secured by such surety as the board of directors may in its discretion require.

Section 5. Transfer Agent and Registrar. The board of directors may appoint one or more transfer agents and one or more registrars and may require all certificates for shares to bear the signature or signatures of any of them.

ARTICLE V

CORPORATE SEAL

The seal of the corporation shall be circular in form and contain the name of the corporation and the year and state of its organization.

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ARTICLE VI

AMENDMENTS

The by-laws may be amended, added to, or repealed at any time by the board of directors, except that the directors shall have no power to (a) change the quorum for meetings of shareholders or of the board of directors, (b) change any provisions of the by-laws with respect to the removal of directors or filling vacancies in the board resulting from removal by the shareholders, or (c) limit the right of shareholders to amend these by-laws. The by-laws may also be amended, added to, or repealed by vote of the shareholders entitled to vote in the election of any directors.

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EX-99.T3B.17

Exhibit B-17

The Chairman then submitted for the consideration of the meeting, a set of proposed by-laws and stated that the same had been prepared by counsel for the company in accordance with the instructions of the Incorporators.

The same were then taken up, read and considered, clause by clause, and adopted as the by-laws of the corporation.

On motion duly made and carried, the Secretary was directed to spread the said By-Laws at length upon the minutes, said By-Laws being as follows:

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BY-LAWS

of

CLAY-PARK REALTY CO, INC.

Article 1.

MEETING OF STOCKHOLDERS

Sec. 1. ANNUAL MEETING. The annual meeting of Stockholders shall be held at the principal office of the Corporation, in the Borough of Manhattan, City of New York, on the 8th day of November of each year, at 2 o’clock in the after noon of that day. If the day so designated falls upon a Sunday or a legal holiday, then the meeting shall be held upon the first business day thereafter. The Secretary shall serve personally, or by mail a written notice thereof, addressed to each stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which all stockholders not present have waived notice in writing, the giving of notice as above required may be dispensed with.

Sec. 2. QUORUM. The presence, in person or by proxy, of the holders of a majority of the outstanding stock entitled to vote shall be necessary to constitute a quorum for the transaction of business, but a lesser number may adjourn to some future time not less than six nor more than twenty days later, and the secretary shall thereupon give at least three days’ notice by mail to each stockholder entitled to vote who was absent from such meeting.

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Sec. 3. SPECIAL MEETINGS. Special Meetings of Stockholders other than those regulated by statute, may be called at any time by a majority of the Directors. Notice of such meeting stating the purpose for which it is called shall be served personally or by mail, not less than 5 days before the date set for such meeting. If mailed, it shall be directed to a stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which stockholders not present have waived notice in writing, the giving of notice as above described may be dispensed with. The Board of Directors shall also, in like manner, call a special meeting of stockholders whenever so requested in writing by stockholders representing not less than one-half of the capital stock of the company. No business other than that specified in the call for the meeting, shall be transacted at any meeting of the stockholders, except upon the unanimous consent of all the stockholders entitled to notice thereof.

Sec. 4. VOTING. At all meetings of the Stockholders all questions, the manner of deciding which is not specifically regulated by statute, shall be determined by a majority vote of the Stockholders present in person or by proxy; provided, however, that any qualified voter may demand a stock vote, in which case each Stockholder present, in person or by proxy, shall be entitled to cast one vote for each share of stock owned or represented by him. All voting

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shall be viva voce, except that a stock vote shall be ballot, each of which shall state the name of the Stockholder voting and the number of shares owned by him, and in addition if such ballot be cast by proxy, the name of the proxy shall be stated. The casting of all votes at special meetings of Stockholders shall be governed by the provisions of the Stock Corporation Laws of this State.

Sec. 5. ORDER OF BUSINESS. The order of business at all meetings of the stockholders, shall be as follows:—

1. Roll Call.

2. Proof of notice of meeting or waiver of notice.

3. Reading of minutes of preceding meeting.

4. Reports of Officers.

5. Reports of Committees.

6. Election of Inspectors of Election.

7. Election of Directors.

8. Unfinished Business.

9. New Business,

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Article II.

DIRECTORS

Sec. 1. NUMBER. The affairs and business of this Corporation shall be managed by a Board of Directors composed of 4 members who need not be stockholders of record, and at least one of such Directors shall be a resident of the State of New York and a citizen of the United States.

Sec. 2. HOW ELECTED. At the annual meeting of Stockholders, the persons receiving a plurality of the votes cast shall be directors and shall constitute the Board of Directors for the ensuing year.

Sec. 3. TERM OF OFFICE. The term of office of each of the Directors shall be one year, and thereafter until his successor has been elected.

Sec. 4. DUTIES. The Board of Directors shall have the control and general management of the affairs and business of the corporation. Such Directors shall in all cases act as a Board, regularly convened, by a majority, and they may adopt such rules and regulations for the conduct of their meetings and the management of the Company, as they may deem proper, not inconsistent with these By-Laws and the Laws of the State of New York.

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Sec. 5. DIRECTORS’ MEETINGS. Regular meetings of the Board of Directors shall be held immediately following the annual meeting of the Stockholders, and at such other times as the Board of Directors may determine. Special meetings of the Board of Directors may be called by the President at any time, and shall be called by the President or the Secretary upon the written request of one directors.

Sec. 6. NOTICE OF MEETINGS. Notice of meetings, other than the regular annual meeting shall be given by service upon each Director in person, or by mailing to him at his last Known post-office address, at least five days before the date therein designated for such meeting, including the day of mailing, of a written or printed notice thereof specifying the time and place of such meeting, and the business to be brought before the meeting and no business other than that specified in such notice shall be transacted at any special meeting. At any meeting at which every member of the Board of Directors shall be present, although held without notice, any business may be transacted which might have been transacted if the meeting had been duly called.

Sec. 7. QUORUM. At any meeting of the Board of Directors, a majority of the Board shall constitute a quorum for the transaction of business; but in the event of a quorum not being present, a less number may adjourn the meeting to some future time, not more than five days later.

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Sec. 8. VOTING. At all meetings of the Board of Directors, each Director is to have one vote, irrespective of the number of shares of stock that he may hold. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

Sec. 9. VACANCIES. Vacancies in the Board occurring between annual meetings shall be filled for the unexpired portion of the term by a majority of the remaining Directors.

Sec. 10. REMOVAL OF DIRECTORS. Any one or more of the Directors may be removed either with or without cause, at any time by a vote of the stockholders holding a majority of the stock, at any special meeting called for the purpose.

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Article III.

OFFICERS.

Sec. 1. NUMBER. The officers of this Corporation shall be :—

1. President.

2. Vice-President.

3. Secretary.

4. Treasurer.

5.

Sec. 2. ELECTION. All officers of the Corporation shall be elected annually by the Board of Directors at its meeting held immediately after the meeting of stockholders, and shall hold office for the term of one year or until their successors are duly elected.

Sec. 3. DUTIES OF OFFICERS. The duties and powers of the officers of the Company shall be as follows:

PRESIDENT

The President shall preside at all meetings of the Board of Directors and Stockholders.

He shall present at each annual meeting of the Stockholders and Directors a report of the condition of the business of the Company.

He shall cause to be called regular and special meetings of the Stockholders and Directors in accordance with these By-Laws.

22

He shall appoint and remove, employ and discharge, and fix the compensation of all servants, agents, employees, clerks of the Corporation other than the duly appointed officers, subject to the approval of the Board of Directors.

He shall sign and make all contracts and agreements in the name of the Corporation.

He shall see that the books, reports, statements and certificates required by the statutes are properly kept, made and filed according to law.

He shall sign all certificates of stock, notes, drafts or bills of exchange, warrants or other orders for the payment of money duly drawn by the Treasurer.

He shall enforce these By-Laws and perform all the duties incident to the position and office, and which are required by Law.

VICE-PRESIDENT.

During the absence and inability of the President to render and perform his duties or exercise his powers, as set forth in these By-Laws or in the acts under which this Corporation is organized, the same shall be performed and exercised by the Vice-President; and when so acting, he shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon such President.

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SECRETARY.

The Secretary shall keep the minutes of the meetings of the Board of Directors and of the Stockholders in appropriate books.

He shall give and serve all notices of the Corporation.

He shall be custodian of the records and of the seal, and affix the latter when required.

He shall keep the stock and transfer books in the manner prescribed by law, so as to show at all times the amount of capital stock, the manner and the time the same was paid in, the names of the owners thereof, alphabetically arranged, their respective places of residence, their post-office addresses, the number of shares owned by each, the time at which each person became such owner, and the amount paid thereon; and keep such stock and transfer books open daily during business hours at the office of the Corporation, subject to the inspection of any Stockholder of the Corporation, and permit such Stockholder to make extracts from said books to the extent and as prescribed by law.

He shall sign all certificates of stock.

He shall present to the Board of Directors at their stated meetings all communications addressed to him officially by the President or any officer or shareholder of the Corporation.

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He shall attend to all correspondence and perform all the duties incident to the office of Secretary.

TREASURER.

The Treasurer shall have the care and custody of and be responsible for all the funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such bank or banks, trust company or trust companies or safe deposit vaults as the Board of Directors may designate.

He shall sign, make, and endorse in the name of the Corporation, all checks, drafts, warrants and orders for the payment of money, and pay out and dispose of same and receipt therefor, under the direction of the President or the Board of Directors.

He shall exhibit at all reasonable times his books and accounts to any director or stockholder of the Company upon application at the office of the Corporation during business hours.

He shall render a statement of the conditions of the finances of the Corporation at each regular meeting of the Board of Directors, and at such other times as shall be required of him, and a full financial report at the annual meeting of the stockholders.

25

He shall keep at the office of the Corporation, correct books of account of all its business and transactions and such other books of account as the Board of Directors may require.

He shall do and perform all duties appertaining to the office of Treasurer.

26

Sec. 4. BOND. The Treasurer shall, if required by the Board of Directors, give to the Corporation such security for the faithful discharge of his duties as the Board may direct.

Sec. 5. VACANCIES, HOW FILLED. All vacancies in any office, shall be filled by the Board of Directors without undue delay, at its regular meeting, or at a meeting specially called for that purpose.

Sec. 6. COMPENSATION OF OFFICERS. The officers shall receive such salary or compensation as may be determined by the Board of Directors.

Sec. 7. REMOVAL OF OFFICERS. The Board of Directors may remove any officer, by a majority vote, at any time with or without cause.

Article IV.

Sec. 1. SEAL. The seal of the corporation shall be as follows:—

27

Article V.

CERTIFICATES OF STOCK.

Sec. 1. DESCRIPTION OF STOCK CERTIFICATES. The certificates of stock shall be numbered and registered in the order in which they are issued. They shall be bound in a book and shall be issued in consecutive order therefrom, and in the margin thereof shall be entered the name of the person owning the shares therein represented, with the number of shares and the date thereof. Such certificates shall exhibit the holder’s name and the number of shares. They shall be signed by the President or Vice-President, and countersigned by the Secretary or Treasurer and sealed with the seal of the Corporation.

Sec. 2. TRANSFER OF STOCK. The stock of the Corporation shall be assignable and transferable on the books of the Corporation only by the person in whose name it appears on said books, his legal representatives or by his duly authorized agent. In case of transfer by attorney, the power of attorney, duly executed and acknowledged, shall be deposited with the Secretary. In all cases of transfer, the former certificate must be surrendered up and cancelled before a new certificate be issued. No transfer shall be made upon the books of the Corporation within ten days next preceding the annual meeting of the shareholders.

28

Article VI.

DIVIDENDS

Sec. 1. WHEN DECLARED. The Board of Directors shall by vote declare dividends from the surplus profits of the Corporation whenever, in their opinion, the conditions of the Corporation’s affairs will render it expedient for such dividends to be declared.

Article VII.

BILLS, NOTES, ETC.

Sec. 1. HOW MADE. All bills payable, notes, checks, drafts, warrants or other negotiable instruments of the Corporation shall be made in the name of the Corporation, and shall be signed by the Secretary or Treasurer and countersigned by the President or Vice-President. No officer or agent of the Corporation, either singly or jointly with others, shall have the power to make any bill payable, note, check, draft or warrant or other negotiable instrument, or endorse the same in the name of the Corporation, or contract or cause to be contracted any debt or liability in the name or in behalf of the Corporation, except as herein expressly prescribed and provided.

29

Article VIII.

AMENDMENTS.

Sec. 1. HOW AMENDED. These By-Laws may be altered, amended, repealed or added to by an affirmative vote of the stockholders representing one hundred percent of the entire outstanding capital stock having voting power at an annual meeting or at a special meeting called for that purpose, provided that a written notice shall have been sent to each stockholder of record, which notice shall state the alterations, amendments or changes which are proposed to be made in such By-Laws. Only such changes as have been specified in the notice shall be made. If, however, all the stockholders shall be present at any regular or special meeting, these By-Laws may be amended by a unanimous vote, without any previous notice.

30

Upon motion duly made and carried, it was

RESOLVED that the Corporation proceed to carry on the business for which it was incorporated.

The Secretary then presented to the meeting a written proposal from to this Corporation

Upon motion duly made and carried, the said proposal was ordered and filed with the Secretary, and he was requested to spread the same at length upon the minutes; said proposal being as follows: —

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After discussion and consideration of the offer made and by unanimous vote of all the incorporators and subscribers to the capital stock, the following preamble and resolution were adopted.

WHEREAS, has offered to sell and transfer to this Corporation, in return for the issuance to him of shares of full paid and non-assessable shares of the capital stock of the said company, and

WHEREAS it appears that the said business is of the fair value of the amount of the consideration demanded therefor, and that it is to the best interests of the Company to accept such offer,

32

NOW THEREFORE, IT IS RESOLVED that the said offer as set forth in the said proposition, be and the same hereby is approved, and it is recommended that the Board of Directors of this Corporation accept the said proposition, and cause the issuance of stock of the Corporation in payment for the property to be transferred to it pursuant to said offer.

Upon motion duly made and carried, the principal office of the Corporation was fixed at No. 1501 Broadway, in the Borough of Manhattan, City of N.Y. , State of Hew York.

The foregoing minutes were then read, and on motion duly made and carried were approved as and for the minutes of the meeting,

There being no further business before the meeting the same was, on motion, duly adjourned.

Dated the 8th day of November 1945

Secretary.

Chairman.

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EX-99.T3B.18

Exhibit B-18

BY LAWS

OF

COMPASS FOODS, INC.

ARTICLE I.

OFFICES

SECTION 1. The registered office of Compass Foods, Inc. (hereinafter called the “Corporation”) is to be at 306 South State Street in the City of Dover, County of Kent, State of Delaware. The name of its registered agent at that address is the United States Corporation Company.

SECTION 2. The principal office of the Corporation is to be at 2 Paragon Drive, Montvale, New Jersey. (amended 4/17/75)

ARTICLE II.

MEETING OF SHAREHOLDERS

SECTION 1. The annual meeting of the stockholders’ shall be held on the second Tuesday in June, at the time and place designated by the Board of Directors.

SECTION 2. Notice of the time and place of such meeting shall be given by mailing not less than ten days before and not more than fifty days previous to said meeting, postage prepaid, a copy of such notice addressed to each stockholder at his residence or place of business as the same shall appear on the books of the Corporation.

SECTION 3. Special meetings of the stockholders, other than those regulated by statute, may be called at any time by the President or Vice President, who shall designate the time and place thereof.

Notice of such meeting, stating the time, place and object, shall be given to each stockholder by mailing such notice at least ten days previous thereto.

SECTION 4. A majority of the amount of shares having voting power issued and outstanding, represented by the holder in person or by proxy, shall be requisite at every meeting to constitute a quorum for the election of directors or for the transaction of their business.

ARTICLE III.

DIRECTORS

Section 1. The property and business of the Corporation shall be managed by a Board of Directors, four in number, who need not be stockholders of the Corporation. Amended 4/20/77

SECTION 2. The directors of the Corporation shall be elected by ballot for the term of one year and until their successors are elected and qualify, except as hereinafter otherwise provided for filling vacancies.

SECTION 3. Vacancies in the Board of Directors, occurring during the year, shall be filled for the unexpired term by a majority vote of the remaining directors at any meeting of the Board.

SECTION 4. Any director or other elected officer may resign his office at any time, such resignation to be made in writing and to take effect from the time of its receipt by the Corporation, unless some other time is fixed in the resignation, and then from that date. The acceptance of a resignation shall not be required to make it valid.

- 2 -

SECTION 5. Any director may be removed by a majority vote of the Board of Directors, with or without cause.

ARTICLE IV.

MEETINGS OF DIRECTORS

SECTION 1. Regular meetings of the directors shall be held immediately following the annual meeting of stockholders.

“Section 3. Anything set forth herein to the contrary notwithstanding, any action required or permitted to be taken at a meeting of the Board of Directors, or any committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the Board of Directors, or committee, as the case may be. Such consent so executed and filed with the minutes of the proceedings of the Board or committee, as the case may be, shall have the same force and effect as a unanimous vote at a meeting of the Board of Directors, or committee, as the case may be.” Amended 9/25/75

ARTICLE V.

OFFICERS

Section 1. The officers of the Corporation shall be a Chairman of the Board, a President, one or more Vice Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer and a Controller. [Amended 12/4/80]

SECTION 2. Officers shall be elected annually by the Board of Directors. Each officer shall hold office until the next annual election of officers and until his successor shall have been elected and qualified.

SECTION 3. A vacancy in any office because of death, resignation, removal or any other cause shall be filled for the unexpired portion of the term at any meeting of the Board of Directors.

SECTION 4. Any officer may be removed by a majority vote of the Board of Directors, with or without cause.

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SECTION 5. The Chairman of the Board shall act as Chairman and preside at all meetings of the stockholders and the Board of Directors, and in general shall perform such duties as are incident to the office of Chairman of the Board.

SECTION 6. The President shall in general perform such duties as are incident to the office of President, subject to the control of the Board of Directors.

SECTION 7. The Vice Presidents shall have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the President.

SECTION 8. The Secretary shall keep the minutes of the meetings of the Board of Directors and also the minutes of the meetings of the stockholders; he shall attend to the giving and serving of all notices of the Corporation, and shall see that the seal of the Corporation is affixed to all documents the execution of which on behalf of the Corporation under its seal is duly authorized and shall attest such seal; he shall have charge of the certificate books and such other books and papers as the Board may direct, and perform all the duties incidental to his office, subject to control of the Board of Directors.

Section 9. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, or the President. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements. Amended 11/9/79

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ARTICLE VI.

DUTIES OF OFFICERS MAY BE DELEGATED

In case of the absence of an officer of the Corporation or for any other reason that may seem sufficient to the Board, the Board of Directors may delegate his powers and duties to any other officer or any director for the time being.

ARTICLE VII.

Any stockholder, officer or director may waive any notice required to be given under these By-laws.

ARTICLE VIII.

TRANSFERS OF STOCK

Transfers of stock shall only be made on the books of the Corporation by the holder thereof in person or by power of attorney duly executed and filed with the Secretary of the Corporation, and on the surrender of the certificate or certificates of such shares.

ARTICLE IX

Checks and Notes

All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors, the Chairman of the Board, the President, or the Treasurer. Amended 11/9/79

ARTICLE X.

ALTERATION OF BY-LAWS

These By-laws may be altered, amended or repealed and new By-laws adopted by the stockholders or by the Board of Directors by a majority vote at any meeting called for that purpose.

- 5 -

ARTICLE XI.

CORPORATE SEAL

The seal of the Corporation shall be in the form of a circle, and shall bear the name of the Corporation and the year of its incorporation.

- 6 -

EX-99.T3B.19

Exhibit B-19

AMENDED AND RESTATED

OPERATING AGREEMENT

EAST BRUNSWICK STUART LLC

July 30, 2009

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
ARTICLE II FORMATION OF COMPANY			2
2.1	Formation		2
2.2	Name		2
2.3	Principal Place of Business		2
2.4	Registered Office and Registered Agent		2
ARTICLE III BUSINESS OF COMPANY			2
3.1	Permitted Businesses		2
ARTICLE IV NAME AND ADDRESS OF MEMBER			3
4 1	Name and Address		3
4.2	Member Has No Exclusive Duty to Company		3
ARTICLE V MANAGEMENT			3
5.1	Management		3
5.2	Bank Accounts		5
ARTICLE VI STANDARD OF CARE AND INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS			5
6.1	Standard of Care		5
6.2	Indemnification of Member, Board of Managers and Officers		5
ARTICLE VII RIGHTS AND OBLIGATIONS OF MEMBER			6
7.1	Limitation of Liability		6
7.2	Resignation		6
ARTICLE VIII CAPITAL STRUCTURE			6
8.1	Authorized Units		6
8.2	Certificates Evidencing Units		6
ARTICLE IX CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS			6
9 1	Initial Capital Contribution		6
9.2	Additional Capital Contributions		6
9.3	Capital Account		6
ARTICLE X FINANCIAL MATTERS			7
10.1	Financial Reports		7
10.2	Fiscal Year		7
ARTICLE XI ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS			7
11.1	Allocations of Net Profits and Net Losses and Distribution		7
11.2	Loans to Company		7
11.3	Records and Reports		7
11.4	Returns and Other Elections		7
ARTICLE XII TRANSFER OF UNITS			8
12.1	Permitted Transfers		8
ARTICLE XIII DISSOLUTION AND TERMINATION			8
13.1	Dissolution		8
13.2	Certificate of Cancellation		8
ARTICLE XIV MISCELLANEOUS PROVISIONS			9
14.1	Notices		9

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14.2	Applicable Law	9
14.3	Construction	9
14.4	Headings	9
14.5	Waivers	9
14.6	Rights and Remedies Cumulative	9
14.7	Severability	9
14 8	Successors and Assigns	9
14.9	Creditors	9

ii

AMENDED AND RESTATED

OPERATING AGREEMENT

OF

EAST BRUNSWICK STUART LLC

This Amended and Restated Operating Agreement, dated July 30, 2009, is entered into by Pathmark Stores, Inc., a Delaware corporation, as the sole member (the “Member”) of East Brunswick Stuart LLC, a Delaware limited liability company (the “Company”).

ARTICLE I

DEFINITIONS

The following terms used in this Agreement shall have the following meanings:

(a) “Act” means the Delaware Limited Liability Company Act, as the same may be amended from time to time.

(b) “Affiliate” means, with respect to any Person, any other Person, other than an individual, that is directly or indirectly controlling, controlled by or under common control with such Person. For these purposes, “control” (and its correlative meanings) as used with respect to any Person means (i) the power of another Person to exercise, directly or indirectly, more than fifty percent (50%) of the voting power of such Person or (ii) the power to direct or cause the direction, directly or indirectly, of the management and policies of such Person.

(c) “Agreement” means this Amended and Restated Operating Agreement as originally executed and as amended from time to time.

(d) “Board of Managers” means the Person or Persons appointed as managers in accordance with Article V.

(e) “Capital Contribution” means any contribution to the capital of the Company in cash or property by the Member whenever made.

(f) “Certificate” means the Certificate of Formation of the Company as filed by the organizer of the Company with the Secretary of State of Delaware, as the same may be amended from time to time.

(g) “Code” means the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws.

(h) “Distributable Cash” means all cash, revenues and funds received by the Company from Company operations, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii) all cash expenditures incurred in the normal operation of the Company’s business; and (iii) such reserves as the Board of Managers deems necessary for the proper operation of the Company’s business.

(i) “Entity” means any general partnership, limited partnership, corporation, limited liability company, joint venture or association.

(j) “Fiscal Year” means the Company’s fiscal year as described in Article X.

(k) “Net Losses” means, for each Fiscal Year, the losses and deductions of the Company determined in accordance with accounting principles consistently applied from year to year, plus any expenditures described in Section 705(a)(2)(B) of the Code.

(l) “Net Profits” means, for each Fiscal Year, the income and gains of the Company determined in accordance with accounting principles consistently applied from year to year, plus any income described in Section 705(a)(1)(B) of the Code.

(m) “Person” means any individual or Entity, and their heirs, executors, administrators, legal representatives, successors and assigns where the context so permits.

(n) “Units” means the personal property ownership interests in the Company, as designated in accordance with Article VIII of this Agreement, including any and all benefits to which the holder of such personal property ownership interests may be entitled as provided in this Agreement, together with all obligations of such holder to comply with the terms and provisions of this Agreement, including, but not limited to, the rights of the Member in the Distributable Cash, Net Profits, Net Losses and Capital Accounts of the Company with respect to the personal property ownership interests held by the Member.

ARTICLE II

FORMATION OF COMPANY

2.1 Formation. The Company has been organized as a Delaware limited liability company by executing and delivering the Certificate to the Delaware Secretary of State in accordance with and pursuant to the Act.

2.2 Name. The name of the Company is East Brunswick Stuart LLC.

2.3 Principal Place of Business. The Company may locate its place of business at any place or places as the Board of Managers may deem advisable.

2.4 Registered Office and Registered Agent. The Company’s initial registered office shall be 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808 and the registered agent at such address shall be Corporation Service Company.

ARTICLE III

BUSINESS OF COMPANY

3.1 Permitted Businesses. The business of the Company shall be to carry on any other lawful business or activity in connection with the foregoing or otherwise, and to have and exercise all of the powers, rights and privileges which a limited liability company organized pursuant to the Act may have and exercise, subject to any contracts it has entered into.

2

ARTICLE IV

NAME AND ADDRESS OF MEMBER

4.1 Name and Address. The name and address of the sole Member is:

Name	Address
Pathmark Stores, Inc.	2 Paragon Drive, Montvale, NJ 07645

4.2 Member Has No Exclusive Duty to Company. The Member shall not be required to own the Company as its sole and exclusive function and it may have other business interests and may engage in other activities in addition to those relating to the Company. The Company shall not have any right, by virtue of this Agreement, to share or participate in other investments or activities of the Member or in the income or proceeds derived therefrom.

ARTICLE V

MANAGEMENT

5.1 Management.

(a) The business and affairs of the Company shall be managed by the Board of Managers. The Board of Managers shall consist of at least one individual. Each person serving on the Board of Managers is referred to herein as a “Manager” and shall, except to the extent otherwise provided herein, have all the powers of a “manager” under the Act. The Board of Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business and objectives. The Board of Managers may contract with or engage any employee of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation, or any of its subsidiaries or Affiliates to do any of the foregoing. Unless authorized to do so by this Agreement, by the Act or by the Board of Managers, no employee, attorney-in fact or other agent shall have any power or authority to bind the Company. The current Board of Managers is comprised of the following three individuals who have been appointed by the Member: Brenda Galgano, William Moss and Allan Richards.

(b) One or more members of the Board of Managers may be removed by the Member at any time, with or without cause. Any Manager may resign at any time by providing written notice to the Member. Such resignation shall be effective upon receipt by the Member or, if later, at the time specified in such written notice of resignation. If one or more seats on the Board of Managers is vacant, or if at any time a vacancy is created for an additional Manager by the Member or if a vacancy arises due to the incapacity, death, removal or resignation of a Manager, then the Member shall fill the new position or designate a replacement for such Manager by a written action of such new election or replacement. The new or replacement Manager shall be deemed to be a Manager and shall have all authority, power and capacity accorded to a Manager of the Company. In addition, subject to the foregoing, in the absence of

3

action by the Member in the event of a vacancy on the Board of Managers, the remaining Managers, although less than a quorum, may fill such vacancy by vote of a majority of such remaining Managers. Any temporary vacancy on the Board of Managers shall be filled only for the period of the incapacity, illness or absence of the Manager whose place on the Board of Managers is temporarily vacated.

(c) Meetings of the Board of Managers and any committee thereof shall be held at the principal offices of the Company or at such other place as may be determined by the Board of Managers or such committee. The actions taken by the Board of Managers or any committee at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. A vote of the Board of Managers or any committee may be taken either in a meeting of the Managers thereof or by written consent so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such action at a meeting of the Board of Managers or such committee. A meeting of the Board of Managers or any committee may be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be heard. At least a simple majority of the Managers, present in person or represented by proxy, shall constitute a quorum at all meetings of the Board of Managers.

(d) The Board of Managers hereby appoints the officers of the Company as set forth below. The Board of Managers may delegate such duties to any such officers, employees, agents and consultants as the Board of Managers deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties; provided, however, that the Board of Managers may not delegate any of its duties and obligations under this Agreement and may not delegate any duties that are required to be exercised by the Member under the Act or any duties that a board of directors of a Delaware corporation is required to retain and exercise under the Delaware General Corporation Law. Each officer shall serve as such until the earlier of his or her death, resignation or removal by the Board of Managers, with or without cause.

Name	Officer Position(s)
Christopher McGarry	President
William Moss	Vice President & Treasurer
Michael Gualtieri	Vice President
Allan Richards	Vice President & Secretary
Joan Roensch	Assistant Secretary

(e) President. The President of the Company shall have the responsibility for managing the day-to-day business operations and affairs of the Company and supervising its other officers, subject to the direction, supervision and control of the Board of Managers. In general, the President shall have such other powers and perform such other duties as usually pertain to the office of the President of a corporation under Delaware law, including, without limitation, the authority to appoint and terminate officers of the Company and retain and

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terminate employees of the Company to whom the President may delegate his or her duties; provided, however, the President shall be subject to the power of the Board of Managers at any time or from time to time to withhold authority with respect to any matter or assign specific duties and responsibilities to him or her.

(f) Vice Presidents. The Board of Managers may from time to time appoint one or more Vice Presidents who shall have such powers and duties as may be assigned to him or her by the Managers or the President.

(g) Treasurer. The Treasurer shall have such powers and perform such duties as usually pertain to the office of Treasurer of a corporation under Delaware law. The Treasurer shall have custody of the Company’s funds and securities, shall keep full and accurate account of receipts and disbursements, shall have the authority to open bank accounts for the Company, deposit all monies and valuable effects in the name and to the credit of the Company in such depository or depositories as may be designated by the Board of Managers, and shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(h) Secretary. The Secretary shall keep the minutes of all actions of the Member and the Board of Managers, and shall attend to the giving and service of all notices. The Secretary may sign with the Board of Managers, President or Treasurer all certificates representing Units of the Company, if any, and shall have charge of the transfer books, and other papers as the Board of Managers may direct. The Secretary shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(i) Other Officers. The Board of Managers may from time to time appoint one or more Assistant Treasurer, Assistant Secretary or other officers who shall have such powers and duties as may be assigned to him or her by the Board of Managers or the President.

5.2 Bank Accounts. The Treasurer may, from time to time, authorize the opening of bank accounts in the name and on behalf of the Company. The Board of Managers shall determine who shall have the signatory power over such accounts; provided, the Treasurer shall have such signatory authority.

ARTICLE VI

STANDARD OF CARE AND

INDEMNIFICATION OF MEMBER. MANAGER AND OFFICERS

6.1 Standard of Care. Neither the Member nor the Board of Managers nor any officer shall be liable to the Company by reason of its or his actions in the conduct of the business of the Company except for fraud, gross negligence or willful misconduct.

6.2 Indemnification of Member, Board of Managers and Officers. The Company shall, to the fullest extent to which it is empowered to do so by the Act or any other applicable law, indemnify and make advances for expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that it, he or she is or was a Member, Manager, agent, officer, employee or other Person authorized by the Member or the Board of Managers to act on behalf of the Company against losses, damages, expenses (including attorneys fees), judgments, fines and amounts reasonably incurred by it, him or her in connection with such action, suit or proceeding.

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ARTICLE VII

RIGHTS AND OBLIGATIONS OF MEMBER

7.1 Limitation of Liability. The Member will not be personally liable to creditors of the Company for any debts, obligations, liabilities or losses of the Company, whether arising in contract, tort or otherwise, beyond the Member’s Capital Contributions.

7.2 Resignation. The Member may not voluntarily resign as a member of the Company without the appointment of a successor member or members.

ARTICLE VIII

CAPITAL STRUCTURE

8.1 Authorized Units. The Member’s membership interest in the Company shall be designated in Units. The Company is authorized to issue one class of Units designated as Common Units. The total number of Common Units which the Company is authorized to issue is 100 Units. The Member may increase the number of authorized Units and create additional classes and/or series of Units. In the event that the authorized number of Units available for issuance is increased pursuant to this Section 8.1, the Member shall indicate the total number of Units available for issuance with respect to any then existing class and/or series and any new class and/or series after giving effect to such approved increase.

8.2 Certificates Evidencing Units. The Company may, but is not obligated to, issue to the Member certificates specifying the Units of the Member. If a certificate for registered Units is issued and is lost or damaged, it may be replaced on production of the damaged certificate or on satisfactory proof of its loss together with such indemnity, if any, as may be required by the Company.

ARTICLE IX

CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

9.1 Initial Capital Contribution. The Member shall contribute such amount as it determines, in its sole discretion, to contribute.

9.2 Additional Capital Contributions. The Member shall not be required to make any additional Capital Contributions.

9.3 Capital Account. Except as otherwise required in the Act (and subject to Sections 9.1 and 9.2), the Member shall not have any liability to restore all or any portion of a deficit balance in the Member’s Capital Account.

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ARTICLE X

FINANCIAL MATTERS

10.1 Financial Reports. The Board of Managers may cause independent certified public accountants from time to time to be retained by the Company and to prepare (a) as of the end of each Fiscal Year of the Company, (b) as of the date of dissolution of the Company and (c) as of such additional dates as the Board of Managers or Treasurer may direct, in accordance with standard federal tax accounting principles consistently applied, appropriate unaudited financial statements showing the assets, liabilities, capital, profits, expenses, losses and recovered and unrecovered capital expenditures of the Company and a statement showing all amounts credited or debited to the Member’s Capital Account.

10.2 Fiscal Year. The Fiscal Year of the Company shall be fixed by the Board of Managers by resolution duly adopted, and, from time to time, by resolution duly adopted the Board of Managers may alter such fiscal year.

ARTICLE XI

ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS

11.1 Allocations of Net Profits and Net Losses and Distribution. The Net Profits and Net Losses of the Company shall be allocated and Distributable Cash shall be distributed as follows:

Member	Percentage
Pathmark Stores, Inc.		100	%

Distributions of Distributable Cash shall be made by the Company to the Member at such times and in such amounts as the Board of Managers shall determine; provided, however, that cash distributions shall be made to the Member in order for the Member to pay any required federal, state or local taxes incurred as a result of the Net Profits allocated to the Member.

11.2 Loans to Company. Nothing in this Agreement shall prevent the Member from making secured or unsecured loans to the Company by agreement with the Company.

11.3 Records and Reports. At the expense of the Company, the Member, the Board of Managers and the officers shall maintain records and accounts of all operations and expenditures of the Company.

11.4 Returns and Other Elections. The Board of Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and if other tax returns deemed necessary and required in each jurisdiction in which the Company does business. All elections permitted to be made by the Company under federal or state laws shall be made by the Board of Managers in its sole discretion.

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ARTICLE XII

TRANSFER OF UNITS

12.1 Permitted Transfers. The Member shall be entitled to make a permitted transfer of all or any portion of its interests in the Company only upon satisfaction of each of the following conditions:

(a) such transfer does not require the registration or qualification of such interests pursuant to any applicable federal or state securities laws, rules and regulations; and

(b) such transfer does not result in a violation of applicable laws, rules and regulations.

ARTICLE XIII

DISSOLUTION AND TERMINATION

13.1 Dissolution.

(a) The Company shall be dissolved upon the occurrence of any of the following events:

(i) by written notice of the Member;

(ii) upon the bankruptcy or insolvency of the Member or occurrence of any other event which terminates the continued membership of the Member in the Company other than by transfer of all of the Member’s Units to another Person; or

(iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

(b) Dissolution of the Company shall be effective on the day on which an event occurs under Section 13.1(a), but the Company shall not terminate until a certificate of cancellation shall be filed with the Secretary of State of Delaware and the assets of the Company are distributed as provided in Section 13.2 below. Notwithstanding the dissolution of the Company, prior to the termination of the Company, the business of the Company shall continue to be governed by this Agreement.

13.2 Certificate of Cancellation. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Member, a certificate of cancellation shall be executed by one or more authorized persons, which certificate shall set forth the information required by the Act. A certificate of cancellation shall be filed with the Delaware Secretary of State to accomplish the cancellation of the Certificate of the Company upon the dissolution and completion of the winding up of the Company.

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ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Notices. Any notice, demand or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been given when actually received. Any such notice, demand or communication may be given by mail, overnight courier, facsimile or electronic mail and shall be addressed to the Member at the address shown in Article IV, and/or to the Company and the Board of Managers at the principal office of the Company or to such other address as a party may from time to time designate by notice to the other parties.

14.2 Applicable Law. This Agreement, and the application of interpretation hereof, shall be subject to and is governed exclusively by its terms and by the laws of Delaware, and specifically the Act and the Certificate. In the event of a direct conflict between the provisions of the Act or the provisions of the Certificate, such provisions of the Act or the Certificate, as the case may be, will be controlling.

14.3 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.

14.4 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof.

14.5 Waivers. The failure of any party to redress any violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

14.6 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

14.7 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

14.8 Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns.

14.9 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company.

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IN WITNESS WHEREOF, this Amended and Restated Operating Agreement of East Brunswick Stuart LLC is hereby executed as of the date first written above.

East Brunswick Stuart LLC
By:
Name:	CHRISTOPHER McGARRY
Title:	PRESIDENT

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EX-99.T3B.20

Exhibit B-20

BY-LAWS

OF

Food Basics, Inc.

ARTICLE I

OFFICES

1.1 Registered Office: The registered office shall be established and maintained at Centerville Road, Wilmington DE and Corporation Service Co. shall be the registered agent of the Corporation in charge thereof.

1.2 Other Offices: The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require, provided, however, that the corporation’s books and records shall be maintained at such place within the continental United States as the Board of Directors shall from time to time designate.

ARTICLE II

STOCKHOLDERS

2.1 Place of Stockholders’ Meetings: All meetings of the stockholders of the corporation shall be held at such place or places, within or outside the State of Delaware as may be fixed by the Board of Directors from time to time or as shall be specified in the respective notices thereof. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead he held solely by means of remote communication. Stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication participate in a meeting of stockholders and be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the corporation.

2.2 Date and Hour of Annual Meetings of Stockholders: An annual meeting of stockholders shall be held each year within five months after the close of the after the close of the fiscal year of the Corporation.

2.3 Purpose of Annual Meetings: At each annual meeting, the stockholders shall elect the members of the Board of Directors for the succeeding year. At any such annual meeting any further proper business may be transacted.

2.4 Special Meetings of Stockholders: Special meetings of the stockholders or of any class or series thereof entitled to vote may be called by the President or by the Chairman of the Board of Directors, or at the request in writing by stockholders of record owning at least fifty (50%) percent of the issued and outstanding voting shares of common stock of the corporation.

2.5 Notice of Meetings of Stockholders: Except as otherwise expressly required or permitted by law, not less than ten days nor more than sixty days before the date of every stockholders’ meeting the Secretary shall give to each stockholder of record entitled to vote at such meeting, written notice, served personally by mail or by telegram, stating the place, date and hour of the meeting the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Such notice, if mailed shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address for notices to such stockholder as it appears on the records of the corporation. Any notice to stockholders shall be effective if given by a form of electronic transmission consented to by the stockholder to whom notice is to be given.

2.6 Quorum of Stockholders: (a) Unless otherwise provided by the Certificate of Incorporation or by law, at any meeting of the stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b) At any meeting of the stockholders at which a quorum shall be present, a majority of voting stockholders, present in person or by proxy, may adjourn the meeting from time to time without notice other than announcement at the meeting. In the absence of a quorum, the officer presiding thereat shall have power to adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting, other than announcement at the meeting, shall not be required to be given except as provided in paragraph (d) below and except where expressly required by law.

(c) At any adjourned session at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, unless a new record date is fixed by the Board of Directors.

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(d) If an adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

2.7 Chairman and Secretary of Meeting: The President, shall preside at meetings of the stockholders. The Secretary shall act as secretary of the meeting or if he is not present, then the presiding officer may appoint a person to act as secretary of the meeting.

2.8 Voting by Stockholders: Except as may be otherwise provided by the Certificate of Incorporation or these by-laws, at every meeting of the stockholders each stockholder shall be entitled to one vote for each share of voting stock standing in his name on the books of the corporation on the record date for the meeting. Except as otherwise provided by these by-laws, all elections and questions shall be decided by the vote of a majority in interest of the stockholders present in person or represented by proxy and entitled to vote at the meeting.

2.9 Proxies: Any stockholder entitled to vote at any meeting of stockholders may vote either in person or by proxy. A proxy may be in writing, subscribed by the stockholder or his duly authorized attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged. A stockholder may authorize another person to act for such stockholder as proxy by transmitting a telegram, cablegram or other means of electronic transmission to the proxyholder, provided that any such communication must either set forth or be submitted with information from which it can be determined that such communication was authorized by the stockholder.

2.10 Inspectors: The election of directors and any other vote by ballot at any meeting of the stockholders shall be supervised by at least two inspectors. Such inspectors may be appointed by the presiding officer before or at the meeting; or if one or both inspectors so appointed shall refuse to serve or shall not be present, such appointment shall be made by the officer presiding at the meeting.

2.11 List of Stockholders: (a) At least ten days before every meeting of stockholders, the Secretary shall prepare and make a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.

(b) During ordinary business hours, for a period of at least ten days prior to the meeting, such list shall be open to examination by any stockholder for any purpose germane to the meeting, either at the principal place of business of the corporation or on a reasonably accessible electronic network, and the information required to gain access to such list is provided with the notice of the meeting. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place where the meeting is to be held and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall be open to inspection of any stockholder during the meeting on a reasonably accessible electronic network and the information required to access such list shall be provided with the notice of the meeting.

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(d) The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 2.11 or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

2.12 Procedure at Stockholders’ Meetings: Except as otherwise provided by these by-laws or any resolutions adopted by the stockholders or Board of Directors, the order of business and all other matters of procedure at every meeting of stockholders shall be determined by the presiding officer.

2.13 Action By Consent Without Meeting: Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder shall be deemed to be written, signed and dated for the purposes of this section provided that such electronic transmission sets forth information from which the corporation can determine that the electronic transmission was transmitted by the stockholder or proxyholder and the date on which the stockholder or proxyholder transmitted such electronic transmission. The date on which such electronic transmission is transmitted shall be deemed the date on which such consent was signed. No consent given by electronic transmission shall be deemed delivered until reproduced in paper and delivered to the corporation at its registered office in the state, its principal place of business or an officer having custody of the record book of stockholder meetings in the manner provided by the board of directors.

ARTICLE III

DIRECTORS

3.1 Powers of Directors: The property, business and affairs of the corporation shall be managed by its Board of Directors which may exercise all the powers of the corporation except such as are by the law of the State of Delaware or the Certificate of Incorporation or these by-laws required to be exercised or done by the stockholders.

3.2 Number, Method of Election, Terms of Office of Directors: The number of directors which shall constitute the Board of Directors shall be (3) unless and until otherwise determined by a vote of a majority of the entire Board of Directors. Each Director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, provided, however, that a director may resign at any time. Directors need not be stockholders. All elections of directors shall be by written ballot, unless otherwise provided in the certificate of incorporation; if authorized by the board of directors, such requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxyholder.

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3.3 Vacancies on Board of Directors; Removal: (a) Any director may resign his office at any time by delivering his resignation in writing or by electronic transmission to the Chairman of the Board or to the President. It will take effect at the time specified therein or, if no time is specified, it will be effective at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(b) Any vacancy in the authorized number of directors may be filled by majority vote of the stockholders and any director so chosen shall hold office until the next annual election of directors by the stockholders and until his successor is duly elected and qualified or until his earlier resignation or removal.

(c) Any director may be removed with or without cause at any time by the majority vote of the stockholders given at a special meeting of the stockholders called for that purpose.

3.4 Meetings of the Board of Directors: (a) The Board of Directors may hold their meetings, both regular and special, either within or outside the State of Delaware.

(b) Regular meetings of the Board of Directors may be held at such time and place as shall from time to time be determined by resolution of the Board of Directors. No notice of such regular meetings shall be required. If the date designated for any regular meeting be a legal holiday, then the meeting shall be held on the next day which is not a legal holiday.

(c) The first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of the stockholders for the election of officers and the transaction of such other business as may come before it. If such meeting is held at the place of the stockholders’ meeting, no notice thereof shall be required.

(d) Special meetings of the Board of Directors shall be held whenever called by direction of the Chairman of the Board or the President or at the written request of any one director.

(e) The Secretary shall give notice to each director of any special meeting of the Board of Directors by mailing the same at least three days before the meeting or by telegraphing, telexing, or delivering the same not later than the date before the meeting.

Unless required by law, such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting. Any and all business may be transacted at any meeting of the Board of Directors. No notice of any adjourned meeting need be given. No notice to or waiver by any director shall be required with respect to any meeting at which the director is present.

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3.5 Quorum and Action: Unless provided otherwise by law or by the Certificate of Incorporation or these by-laws, a majority of the Directors shall constitute a quorum for the transaction of business; but if there shall be less than a quorum at any meeting of the Board, a majority of those present may adjourn the meeting from time to time. The vote of a majority of the Directors present at any meeting at which a quorum is present shall be necessary to constitute the act of the Board of Directors.

3.6 Presiding Officer and Secretary of the Meeting: The President, or, in his absence a member of the Board of Directors selected by the members present, shall preside at meetings of the Board. The Secretary shall act as secretary of the meeting, but in his absence the presiding officer may appoint a secretary of the meeting.

3.7 Action by Consent Without Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or electronic transmissions are filed with the minutes or proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

3.8 Action by Telephonic Conference: Members of the Board of Directors, or any committee designated by such board, may participate in a meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting.

3.9 Committees: The Board of Directors shall, by resolution or resolutions passed by a majority of Directors designate may designate one or more committees, each of such committees to consist of one or more Directors of the Corporation, for such purposes as the Board shall determine. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.

3.10 Compensation of Directors: Directors shall receive such reasonable compensation for their service on the Board of Directors or any committees thereof, whether in the form of salary or a fixed fee for attendance at meetings, or both, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving in any other capacity and receiving compensation therefor.

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ARTICLE IV

OFFICERS

4.1 Officers, Title, Elections, Terms: (a) The elected officers of the corporation shall be a President, a Treasurer and a Secretary, and such other officers as the Board of Directors shall deem advisable. The officers shall be elected by the Board of Directors at its annual meeting following the annual meeting of the stockholders, to serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election and until their successors are elected and qualified.

(b) The Board of Directors may elect or appoint at any time, and from time to time, additional officers or agents with such duties as it may deem necessary or desirable. Such additional officers shall serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election or appointment. Two or more offices may be held by the same person.

(c) Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

(d) Any officer may resign his office at any time. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time be specified, at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(e) The salaries of all officers of the corporation shall be fixed by the Board of Directors.

4.2 Removal of Elected Officers: Any elected officer may be removed at any time, either with or without cause, by resolution adopted at any regular or special meeting of the Board of Directors by a majority of the Directors then in office.

4.3 Duties: (a) President: The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the Board of Directors. He shall see that all orders and resolutions of the Board of Directors are carried into effect (unless any such order or resolution shall provide otherwise), and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time.

(b) Treasurer: The Treasurer shall (1) have charge and custody of and be responsible for all funds and securities of the Corporation; (2) receive and give receipts for moneys due and payable to the corporation from any source whatsoever; (3) deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositaries as shall be selected by resolution of the Board of Directors; and (4) in general perform all duties

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incident to the office of treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. He shall, if required by the Board of Directors, give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine.

(c) Secretary: The Secretary shall (1) keep the minutes of the meetings of the stockholders, the Board of Directors, and all committees, if any, of which a secretary shall not have been appointed, in one or more books provided for that purpose; (2) see that all notices are duly given in accordance with the provisions of these by-laws and as required by law; (3) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents, the execution of which on behalf of the corporation under its seal, is duly authorized; (4) keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder; (5) have general charge of stock transfer books of the Corporation; and (6) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.

ARTICLE V

CAPITAL STOCK

5.1 Stock Certificates: (a) Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the President and by the Treasurer or the Secretary, certifying the number of shares owned by him.

(b) If such certificate is countersigned by a transfer agent other than the corporation or its employee, or by a registrar other than the corporation or its employee, the signatures of the officers of the corporation may be facsimiles, and, if permitted by law, any other signature may be a facsimile.

(c) In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue.

(d) Certificates of stock shall be issued in such form not inconsistent with the Certificate of Incorporation as shall be approved by the Board of Directors, and shall be numbered and registered in the order in which they were issued.

(e) All certificates surrendered to the corporation shall be canceled with the date of cancellation, and shall be retained by the Secretary, together with the powers of attorney to transfer and the assignments of the shares represented by such certificates, for such period of time as shall be prescribed from time to time by resolution of the Board of Directors.

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5.2 Record Ownership: A record of the name and address of the holder of such certificate, the number of shares represented thereby and the date of issue thereof shall be made on the corporation’s books. The corporation shall be entitled to treat the holder of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by law.

5.3 Transfer of Record Ownership: Transfers of stock shall be made on the books of the corporation only by direction of the person named in the certificate or his attorney, lawfully constituted in writing, and only upon the surrender of the certificate therefor and a written assignment of the shares evidenced thereby. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the corporation for transfer, both the transferor and the transferee request the corporation to do so.

5.4 Lost, Stolen or Destroyed Certificates: Certificates representing shares of the stock of the corporation shall be issued in place of any certificate alleged to have been lost, stolen or destroyed in such manner and on such terms and conditions as the Board of Directors from time to time may authorize.

5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The corporation may maintain one or more transfer offices or agencies where stock of the corporation shall be transferable. The corporation may also maintain one or more registry offices where such stock shall be registered. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock certificates.

5.6 Fixing Record Date for Determination of Stockholders of Record: The Board of Directors may fix, in advance, a date as the record date for the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of the stockholders or any adjournment thereof, or the stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or to express consent to corporate action in writing without a meeting, or in order to make a determination of the stockholders for the purpose of any other lawful action. Such record date in any case shall be not more than sixty days nor less than ten days before the date of a meeting of the stockholders, nor more than sixty days prior to any other action requiring such determination of the stockholders. A determination of stockholders of record entitled to notice or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

5.7 Dividends: Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the corporation.

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ARTICLE VI

SECURITIES HELD BY THE CORPORATION

6.1 Voting: Unless the Board of Directors shall otherwise order, the President, the Secretary or the Treasurer shall have full power and authority, on behalf of the corporation, to attend, act and vote at any meeting of the stockholders of any corporation in which the corporation may hold stock, and at such meeting to exercise any or all rights and powers incident to the ownership of such stock, and to execute on behalf of the corporation a proxy or proxies empowering another or others to act as aforesaid. The Board of Directors from time to time may confer like powers upon any other person or persons.

6.2 General Authorization to Transfer Securities Held by the Corporation (a) Any of the following officers, to wit: the President and the Treasurer shall be, and they hereby are, authorized and empowered to transfer, convert, endorse, sell, assign, set over and deliver any and all shares of stock, bonds, debentures, notes, subscription warrants, stock purchase warrants, evidence of indebtedness, or other securities now or hereafter standing in the name of or owned by the corporation, and to make, execute and deliver, under the seal of the corporation, any and all written instruments of assignment and transfer necessary or proper to effectuate the authority hereby conferred.

(b) Whenever there shall be annexed to any instrument of assignment and transfer executed pursuant to and in accordance with the foregoing paragraph (a), a certificate of the Secretary of the corporation in office at the date of such certificate setting forth the provisions of this Section 6.2 and stating that they are in full force and effect and setting forth the names of persons who are then officers of the corporation, then all persons to whom such instrument and annexed certificate shall thereafter come, shall be entitled, without further inquiry or investigation and regardless of the date of such certificate, to assume and to act in reliance upon the assumption that the shares of stock or other securities named in such instrument were theretofore duly and properly transferred, endorsed, sold, assigned, set over and delivered by the corporation, and that with respect to such securities the authority of these provisions of the by-laws and of such officers is still in full force and effect.

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ARTICLE VII

MISCELLANEOUS

7.1 Signatories: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

7.2 Seal: The seal of the corporation shall be in such form and shall have such content as the Board of Directors shall from time to time determine.

7.3 Notice and Waiver of Notice: Whenever any notice of the time, place or purpose of any meeting of the stockholders, directors or a committee is required to be given under the law of the State of Delaware, the Certificate of Incorporation or these by-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to notice whether before or after the holding thereof, or actual attendance at the meeting in person or, in the case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving of such notice to such persons.

7.4 Indemnity: The corporation shall indemnify its directors, officers and employees to the fullest extent allowed by law, provided, however, that it shall be within the discretion of the Board of Directors whether to advance any funds in advance of disposition of any action, suit or proceeding, and provided further that nothing in this section 7.4 shall be deemed to obviate the necessity of the Board of Directors to make any determination that indemnification of the director, officer or employee is proper under the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.

7.5 Fiscal Year: Except as from time to time otherwise determined by the Board of Directors, the fiscal year of the corporation shall end on the last Saturday of February of every year.

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EX-99.T3B.21

Exhibit B-21

I, the undersigned, Secretary of GRAMATAN FOODTOWN CORP., DO HEREBY CERTIFY that the by-laws annexed hereto are a true and correct copy of the duly adopted by-laws of the said Corporation, and that there have been no amendments thereto.

Dated, September 21, 1956.

BLANCHE C. LEVINE - SECRETARY

BY-LAWS

of

GRAMATAN FOODTOWN CORP.

Article 1.

MEETING OF STOCKHOLDERS

Sec. 1. ANNUAL MEETING. The annual meeting of Stockholders shall be held at the principal office of the Corporation, or at such other places as the Board of Directors may from time to time determine, on the 1st day of October of each year, at 2:00 o’clock in the afternoon of that day. If the day so designated falls upon a Sunday or a legal holiday, then the meeting shall be held upon the first business day thereafter. The Secretary shall serve personally, or by mail a written notice thereof, not less than ten nor more than forty days previous to such meeting addressed to each stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which all stockholders not present have waived notice in writing, the giving of notice as above required may be dispensed with.

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Sec. 2. SPECIAL MEETINGS. Special Meetings of Stockholders other than those regulated by statute, may be called at any time by a majority of the Directors. Notice of such meeting stating the purpose for which it is called shall be served personally or by mail, not less than five days before the date set for such meeting. If mailed, it shall be directed to a stockholder at his address as it appears on the stock book; but at any meeting at which all stockholders shall be present, or of which stockholders not present have waived notice in writing, the giving of notice as above described may be dispensed with. The Board of Directors shall also, in like manner, call a special meeting of stockholders whenever so requested in writing by stockholders representing not less than one-half of the capital stock of the company. The President may in his discretion call a special meeting of stockholders upon ten days notice. No business other than that specified in the call for the meeting, shall be transacted at any meeting of the stockholders, except upon the unanimous consent of all the stockholders entitled to notice thereof.

Sec. 3. VOTING. At all meetings of the Stockholders of record having the right to vote, each stockholder of the Corporation is entitled to one vote for each share of stock having voting power standing in the name of such stockholder on the books of the company. Votes may be cast in person or by written authorized proxy.

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Sec. 4. PROXY. Each proxy must be executed in writing by the stockholder of the Corporation or his duly authorized attorney. No proxy shall be valid after the expiration of eleven months from the date of its execution unless it shall have specified therein its duration.

Every proxy shall be revocable at the discretion of the person executing it or of his personal representatives or assigns.

Sec. 5. QUORUM. The presence in person or by proxy, of the holders of a majority of the stock issued and outstanding entitled to vote shall be necessary to constitute a quorum at all meetings of the stockholders for the transaction of business, but a lesser number may ajourn to some future time by giving at least 5 days written notice to each stockholder entitled to vote who was absent from such meeting.

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Article II.

DIRECTORS

Sec. 1. NUMBER. The affairs and business of this Corporation shall be managed by a Board of Directors composed of three members who need not be stockholders of record, and at least one of such Directors shall be a resident of the State of New York and a citizen of the United States.

Sec. 2. HOW ELECTED. At the annual meeting of Stockholders, the three persons receiving a plurality of the votes cast shall be directors and shall constitute the Board of Directors for the ensuing year.

Sec. 3. TERM OF OFFICE. The term of office of each of the Directors shall be one year, and thereafter until his successor has been elected.

Sec. 4. DUTIES. The Board of Directors shall have the control and general management of the affairs and business of the corporation. Such Directors shall in all cases act as a Board, regularly convened, by a majority, and they may adopt such rules and regulations for the conduct of their meetings and the management of the Company, as they may deem proper, not inconsistent with these By-Laws and the Laws of the State of New York.

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Sec. 5. DIRECTORS’ MEETINGS. Regular meetings of the Board of Directors shall be held immediately following the annual meeting of the Stockholders, and at such other times as the Board of Directors may determine. Special meetings of the Board of Directors may be called by the President at any time, and shall be called by the President or the Secretary upon the written request of one director.

Sec. 6. NOTICE OF MEETINGS. Notice of meetings, other than the regular annual meeting shall be given by service upon each Director in person, or by mailing to him at his last known post-office address at least five days before the date therein designated for such meeting, including the day of mailing, of a written or printed notice thereof specifying the time and place of such meeting, and the business to be brought before the meeting and no business other than that specified in such notice shall be transacted at any special meeting. At any meeting at which every member of the Board of Directors shall be present, although held without notice, any business may be transacted which might have been transacted if the meeting had been duly called.

Sec. 7. VOTING. At all meetings of the Board of Directors, each Director is to have one vote, irrespective of the number of shares of stock that he may hold. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Sec. 8. VACANCIES. Vacancies in the Board occuring between annual meetings shall be filled for the unexpired portion of the term by a majority of the remaining Directors.

Sec. 9. REMOVAL OF DIRECTORS. Any one or more of the Directors may be removed either with or without cause, at any time by a vote of the stockholders holding a majority of the stock, at any special meeting called for the purpose.

Sec. 10. WAIVER OP NOTICE. Whenever by statute, the provisions of the certificate of incorporation or these by-laws the stockholders or the Board of Directors are authorized to take any action after notice, such notice may be waived, in writing, before or after the holding of the meeting, by the person or persons entitled to such notice, or, in the case of a stockholder, by his attorney thereunto authorized.

Sec. 11. QUORUM. At any meeting of the Board of Directors, a majority of the Board shall constitute a quorum for the transaction of business; but in the event of a quorum not being present, a less number may adjourn the meeting to some future time, not more than five days later.

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Article III.

OFFICERS.

Sec. 1. NUMBER. The officers of this Corporation shall be:—

President.

Vice-President.

Secretary - Treas.

Any officer may hold more than one office.

Sec. 2. ELECTION. All officers of the Corporation shall be elected annually by the Board of Directors at its meeting held immediately after the meeting of stockholders, and shall hold office for the term of one year or until their successors are duly elected. Officers need not be members of the board.

The board may appoint such other officers, agents and employees as it shall deem necessary who shall have such authority and shall perform such duties as from time to time shall be prescribed by the board.

Sec. 3. DUTIES OF OFFICERS. The duties and powers of the officers of the Company shall be as follows:

PRESIDENT

The President shall preside at all meetings of the Board of Directors and Stockholders.

He shall present at each annual meeting of the Stockholders and Directors a report of the condition of the business of the Company.

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He shall cause to be called regular and special meetings of the Stockholders and Directors in accordance with these By-Laws.

He shall appoint and remove, employ and discharge, and fix the compensation of all servants, agents, employees, clerks of the Corporation other than the duly appointed officers, subject to the approval of the Board of Directors.

He shall sign and make all contracts and agreements in the name of the corporation.

He shall see that the books, reports, statements and certificates required by the statutes are properly kept, made and filed according to law.

He shall sign all certificates of stock, notes, drafts or bills of exchange, warrants or other orders for the payment of money duly drawn by the Treasurer.

He shall enforce these By-Laws and perform all the duties incident to the position and office, and which are required by Law.

VICE-PRESIDENT.

During the absence and inability of the President to render and perform his duties or exercise his powers, as set forth in these By-Laws or in the acts under which this Corporation is organized, the same shall be performed and exercised by the Vice-President; and when so acting, he shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon such President.

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SECRETARY

The Secretary shall keep the minutes of the meetings of the Board of Directors and of the Stockholders in appropriate books.

He shall give and serve all notices of the Corporation.

He shall be custodian of the records and of the seal, and affix the latter when required.

He shall keep the stock and transfer books in the manner prescribed by law, so as to show at all times the amount of capital stock_s the manner and the time the same was paid in, the names of the owners thereof, alphabetically arranged, their respective places of residence, their post-office addresses, the number of shares owned by each, the time at which each person became such owner, and the amount paid thereon; and keep such stock and transfer books open daily during business hours at the office of the Corporation, subject to the inspection of any Stockholder of the Corporation, and permit such Stockholder to make extracts from said books to the extent and as prescribed by law.

He shall sign all certificates of stock.

He shall present to the Board of Directors at their stated meetings all communications addressed to him officially by the President or any officer or shareholder of the Corporation.

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He shall attend to all correspondence and perform all the duties incident to the office of Secretary.

TREASURER.

The Treasurer shall have the care and custody of and be responsible for all the funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such bank or banks, trust company or trust companies or safe deposit vaults as the Board of Directors may designate.

He shall sign, make, and endorse in the name of the Corporation, all checks, drafts, warrants and orders for the payment of money, and pay out and dispose of same and receipt therefor, under the direction of the President or the Board of Directors.

He shall exhibit at all reasonable times his books and accounts to any director or stockholder of the Company upon application at the office of the Corporation during business hours.

He shall render a statement of the conditions of the finances of the Corporation at each regular meeting of the Board of Directors, and at such other times as shall be required of him, and a full financial report at the annual meeting of the stockholders.

He shall keep at the office of the Corporation, correct books of account of all its business and transactions and such other books of account as the Board of Directors may require.

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He shall do and perform all duties appertaining to the office of Treasurer.

Sec. 4. BOND. The Treasurer shall, if required by the Board of Directors, give to the Corporation such security for the faithful discharge of his duties as the Board may direct.

Sec. 5. VACANCIES, HOW FILLED. All vacancies in any office, shall be filled by the Board of Directors without undue delay, at its regular meeting or at a meeting specially called for that purpose. In the case of the absence of any officer of the Corporation or for any reason that the Board of Directors may deem sufficient, the Board may, except as specifically otherwise provided in these By-Laws, delegate the powers or duties of such officers to any other officer or director for the time being, provided a majority of the entire Board concur therein.

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See. 6. COMPENSATION OF OFFICERS. The officers shall receive such salary or compensation as may be determined by the Board of Directors.

Sec. 7. REMOVAL OF OFFICERS. The Board of Directors may remove any officer, by a majority vote, at any time with or without cause.

Article IV.

CERTIFICATES OF STOCK.

Sec. 1. DESCRIPTION OF STOCK CERTIFICATES. The certificates of stock shall be numbered and registered in the order in which they are issued. They shall be bound in a book and shall be issued in consecutive order therefrom, and in the margin thereof shall be entered the name of the person owning the shares therein represented, with the number of shares and the date thereof. Such certificates shall exhibit the holder’s name and the number of shares. They shall be signed by the President or Vice-President, and countersigned by the Secretary or Treasurer and sealed with the seal of the Corporation.

Sec. 2. TRANSFER OF STOCK. The stock of the Corporation shall be assignable and transferable on the books of the Corporation only by the person in whose name it appears on said books, his legal representatives or by his duly authorized agent. In case of transfer by attorney, the power of attorney,

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duly executed and acknowledged, shall be deposited with the Secretary. In all cases of transfer, the former certificate must be surrendered up and cancelled before a new certificate be issued. No transfer shall be made upon the books of the Corporation within ten days next preceding the annual meeting of the shareholders.

Sec. 3. LOST CERTIFICATES. If a stockholder shall claim to have lost or destroyed a certificate or certificates of stock issued by the Corporation, the Board of Directors may direct at its discretion, a new certificate or certificates issued, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed, and upon the deposit of a bond or other indemnity in such form and with such surities if any as the Board may require.

Article V.

Sec. 1. SEAL. The seal of the corporation shall be as follows:—

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Article VI.

DIVIDENDS

Sec. 1. WHEN DECLARED. The Board of Directors shall by vote declare dividends from the surplus profits of the Corporation whenever, in their opinion, the conditions of the Corporation’s affairs will render it expedient for such dividends to be declared.

Sec. 2. RESERVE. The Board of Directors may set aside out of the net profits of the Corporation available for dividends such sum or sums, before payment of any dividend, as the, Board in their absolute discretion think proper as a reserve fund, to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interests of the Corporation, and they may abolish or modify any such reserve in the manner in which it was created.

Article VII.

BILLS, NOTES, ETC.

Sec. 1. HOW MADE. All bills payable, notes, checks, drafts, warrants or other negotiable instruments of the Corporation shall be made in the name of the Corporation, and shall be signed as the Board of Directors may from time to time direct by resolution.

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No officer or agent of the Corporation, either singly or jointly with others, shall have the power to make any bill payable note, check, draft or warrant or other negotiable instruments or endorse the same in the name of the Corporation, or contract or cause to he contracted any debt or liability in the name or in behalf of the Corporation, except as herein expressly prescribed and provided.

Article VIII.

AMENDMENTS.

Sec. 1. HOW AMENDED. These By-Laws may be altered, amended, repealed or added to by the vote of the Board of Directors of this corporation at any regular meeting of said Board, or at a special meeting of Directors called for that purpose provided a quorum of the Directors as provided by law and by the Certificate of Incorporation, are present at such regular or special meeting. These By-Laws, and any amendments thereto and new By-laws added by the Directors may be amended, altered or replaced by the stockholders at any annual or special meeting of the stockholders.

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Article IX.

FISCAL YEAR

Sec. 1. The Fiscal Year shall begin the day of Upon motion duly made and carried the principal office of the Corporation was fixed at 100 North Third Avenue in the City of Mount Vernon, County of Westchester, State of New York, or at such other places as the Board of Directors may from time to time determine.

Secretary

Chairman

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EX-99.T3B.22

Exhibit B-22

AMENDED AND RESTATED BYLAWS

OF

GRAPE FINDS LICENSING CORP.

ARTICLE I

Meetings of Stockholders

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of New York, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these by-laws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

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Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these by-laws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these by-laws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these by-laws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any

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change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten (10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not

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less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of New York, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of

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Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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ARTICLE II

Board of Directors

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

Section 2,2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of New York and at such times as the Board of Directors may from time to time determine.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of New York whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these by-laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

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ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these by-laws.

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ARTICLE IV

Officers

Section 4.1. Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

Section 4_;2. Powers and Duties of Executive Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

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ARTICLE V

Stock

Section 5.1. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 5.3. Board Determination Regarding Uncertificated Shares. Notwithstanding anything to the contrary in these By-laws, including anything in Sections 5.1 and 5.2, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares.

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ARTICLE VI

Indemnification

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

Section 6.2. Prepayment of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3. Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) or advancement of expenses under this Article VI is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.

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Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise of nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

Section 6.6. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such repeal or modification.

Section 6.7. Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

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ARTICLE VII

Miscellaneous

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 7.6. Amendment of By-Laws. These by-laws may be altered, amended or repealed, and new by-laws made, by the Board of Directors, but the stockholders may make additional by-laws and may alter and repeal any by-laws whether adopted by them or otherwise.

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EX-99.T3B.23

Exhibit B-23

BYLAWS

OF

HOPELAWN PROPERTY I, INC.

(a Delaware corporation)

ARTICLE I

STOCKHOLDERS

1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation. Any or all the signatures on any such certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing such shares.

The corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of the lost, stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate or uncertificated shares.

2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law.

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3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. If the corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose.

4. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and, in the case of shares represented by certificates, on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon.

5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of

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Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining the stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the General Corporation Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “share of stock” or “shares of stock” or “stockholder” or “stockholders” refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the certificate of incorporation, except as any provision of law may otherwise require.

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7. STOCKHOLDER MEETINGS.

- TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors.

- PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of Delaware.

- CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the meeting.

- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. Except as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States Mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice.

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- STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders.

- CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting.

- PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally.

- INSPECTORS. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power

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of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation.

- QUORUM. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum.

- VOTING. Each share of stock shall entitle the holder thereof to one vote. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot.

8. STOCKHOLDER ACTION WITHOUT MEETINGS. Except as any provision of the General Corporation Law may otherwise require, any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law.

ARTICLE II

DIRECTORS

1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase “whole board” herein refers to the total number of directors which the corporation would have if there were no vacancies.

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2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The initial Board of Directors shall consist of one person. Thereafter the number of directors constituting the whole board shall be at least one. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the stockholders or of the directors, or, if the number is not fixed, the number shall be one. The number of directors may be increased or decreased by action of the stockholders or of the directors.

3. ELECTION AND TERM. The first Board of Directors, unless the members thereof shall have been named in the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Except as the General Corporation Law may otherwise require, in the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director.

4. MEETINGS.

- TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble.

- PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board.

- CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of the President, or of a majority of the directors in office.

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- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice.

- QUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these Bylaws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board or action of disinterested directors.

Any member or members of the Board of Directors or of any committee designated by the Board, may participate in a meeting of the Board, or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.

- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside.

5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the General Corporation Law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.

6. COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any

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absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any power or authority the delegation of which is prohibited by Section 141 of the General Corporation Law, and may authorize the seal of the corporation to be affixed to all papers which may require it.

7. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

ARTICLE III

OFFICERS

The officers of the corporation shall consist of a President, a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice-President, one or more other Vice-Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers with such titles as the resolution of the Board of Directors choosing them shall designate. Except as may otherwise be provided in the resolution of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person, as the directors may determine.

Unless otherwise provided in the resolution choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of Directors following the next annual meeting of stockholders and until his successor shall have been chosen and qualified.

All officers of the corporation shall have such authority and perform such duties in the management and operation of the corporation as shall be prescribed in the resolutions of the Board of Directors designating and choosing such officers and prescribing their authority and duties, and shall have such additional authority and duties as are incident to their office except to the extent that such resolutions may be inconsistent therewith. The Secretary or an Assistant Secretary of the corporation shall record all of the proceedings of all meetings and actions in writing of stockholders, directors, and committees of directors, and shall exercise such additional authority and perform such additional duties as the Board shall assign to him. Any officer may be removed, with or without cause, by the Board of Directors. Any vacancy in any office may be filled by the Board of Directors.

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ARTICLE IV

CORPORATE SEAL

The corporate seal shall be in such form as the Board of Directors shall prescribe.

ARTICLE V

FISCAL YEAR

The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors.

ARTICLE VI

CONTROL OVER BYLAWS

Subject to the provisions of the certificate of incorporation and the provisions of the General Corporation Law, the power to amend, alter, or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors or by the stockholders.

I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of the Bylaws of HOPELAWN PROPERTY I, INC., a Delaware corporation, as in effect on the date hereof.

Dated:

Secretary of

HOPELAWN PROPERTY I, INC.

(SEAL)

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City of New York

County of New York

May 11, 1998

ORGANIZATION ACTION IN WRITING OF INCORPORATOR

OF

HOPELAWN PROPERTY I, INC.

(Organized May 11, 1998)

The following action is taken this day through this instrument by the incorporator of the above corporation:

1. The adoption of the initial Bylaws of the corporation.

2. The election of the following person to serve as the director of the corporation until the first annual meeting of stockholders and until this successor is elected and qualified or until his earlier resignation or removal:

Richard J. Scola

/s/ Camille Silva

Camille Silva, Incorporator

BY-LAWS

OF

ARTICLE I

OFFICES

1.1 Registered Office: The registered office shall be established and maintained at and shall be the registered agent of the Corporation in charge hereof.

1.2 Other Offices: The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require, provided, however, that the corporation’s books and records shall be maintained at such place within the continental United States as the Board of Directors shall from time to time designate.

ARTICLE II

STOCKHOLDERS

2.1 Place of Stockholders’ Meetings: All meetings of the stockholders of the corporation shall be held at such place or places, within or outside the State of Delaware as may be fixed by the Board of Directors from time to time or as shall be specified in the respective notices thereof.

2.2 Date and Hour of Annual Meetings of Stockholders: An annual meeting of stockholders shall be held each year within five months after the close of the fiscal year of the Corporation.

2.3 Purpose of Annual Meetings: At each annual meeting, the stockholders shall elect the members of the Board of Directors for the succeeding year. At any such annual meeting any further proper business may be transacted.

2.4 Special Meetings of Stockholders: Special meetings of the stockholders or of any class or series thereof entitled to vote may be called by the President or by the Chairman of the Board of Directors, or at the request in writing by stockholders of record owning at least fifty (50%) percent of the issued and outstanding voting shares of common stock of the corporation.

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2.5 Notice of Meetings of Stockholders: Except as otherwise expressly required or permitted by law, not less than ten days nor more than sixty days before the date of every stockholders’ meeting the Secretary shall give to each stockholder of record entitled to vote at such meeting, written notice, served personally by mail or by telegram, stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Such notice, if mailed shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address for notices to such stockholder as it appears on the records of the corporation.

2.6 Quorum of Stockholders: (a) Unless otherwise provided by the Certificate of Incorporation or by law, at any meeting of the stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b) At any meeting of the stockholders at which a quorum shall be present, a majority of voting stockholders, present in person or by proxy, may adjourn the meeting from time to time without notice other than announcement at the meeting. In the absence of a quorum, the officer presiding thereat shall have power to adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting, other than announcement at the meeting, shall not be required to be given except as provided in paragraph (d) below and except where expressly required by law.

(c) At any adjourned session at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, unless a new record date is fixed by the Board of Directors.

(d) If an adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

2.7 Chairman and Secretary of Meeting: The President, shall preside at meetings of the stockholders. The Secretary shall act as secretary of the meeting or if he is not present, then the presiding officer may appoint a person to act as secretary of the meeting.

2.8 Voting by Stockholders: Except as may be otherwise provided by the Certificate of Incorporation or these by-laws, at every meeting of the stockholders each stockholder shall be entitled to one vote for each share of voting stock standing in his name on the books of the corporation on the record date for the meeting. Except as otherwise provided by these by-laws, all elections and questions shall be decided by the vote of a majority in interest of the stockholders present in person or represented by proxy and entitled to vote at the meeting.

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2.9 Proxies: Any stockholder entitled to vote at any meeting of stockholders may vote either in person or by proxy. Every proxy shall be in writing, subscribed by the stockholder or his duly authorized attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.

2.10 Inspectors: The election of directors and any other vote by ballot at any meeting of the stockholders shall be supervised by at least two inspectors. Such inspectors may be appointed by the presiding officer before or at the meeting; or if one or both inspectors so appointed shall refuse to serve or shall not be present, such appointment shall be made by the officer presiding at the meeting.

2.11 List of Stockholders: (a) At least ten days before every meeting of stockholders, the Secretary shall prepare and make a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.

(b) During ordinary business hours, for a period of at least ten days prior to the meeting, such list shall be open to examination by any stockholder for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.

(c) The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and it may be inspected by any stockholder who is present.

(d) The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 2.11 or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

2.12 Procedure at Stockholders’ Meetings: Except as otherwise provided by these by-laws or any resolutions adopted by the stockholders or Board of Directors, the order of business and all other matters of procedure at every meeting of stockholders shall be determined by the presiding officer.

2.13 Action By Consent Without Meeting: Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

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ARTICLE III

DIRECTORS

3.1 Powers of Directors: The property, business and affairs of the corporation shall be managed by its Board of Directors which may exercise all the powers of the corporation except such as are by the law of the State of Delaware or the Certificate of Incorporation or these by-laws required to be exercised or done by the stockholders.

3.2 Number, Method of Election, Terms of Office of Directors: The number of directors which shall constitute the Board of Directors shall be (     ) unless and until otherwise determined by a vote of a majority of the entire Board of Directors. Each Director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, provided, however, that a director may resign at any time. Directors need not be stockholders.

3.3 Vacancies on Board of Directors; Removal: (a) Any director may resign his office at any time by delivering his resignation in writing to the Chairman of the Board or to the President. It will take effect at the time specified therein or, if no time is specified, it will be effective at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(b) Any vacancy in the authorized number of directors may be filled by majority vote of the stockholders and any director so chosen shall hold office until the next annual election of directors by the stockholders and until his successor is duly elected and qualified or until his earlier resignation or removal.

(c) Any director may be removed with or without cause at any time by the majority vote of the stockholders given at a special meeting of the stockholders called for that purpose.

3.4 Meetings of the Board of Directors: (a) The Board of Directors may hold their meetings, both regular and special, either within or outside the State of Delaware.

(b) Regular meetings of the Board of Directors may be held at such time and place as shall from time to time be determined by resolution of the Board of Directors. No notice of such regular meetings shall be required. If the date designated for any regular meeting be a legal holiday, then the meeting shall be held on the next day which is not a legal holiday.

(c) The first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of the stockholders for the election of officers and the transaction of such other business as may come before it. If such meeting is held at the place of the stockholders’ meeting, no notice thereof shall be required.

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(d) Special meetings of the Board of Directors shall be held whenever called by direction of the Chairman of the Board or the President or at the written request of any one director.

(e) The Secretary shall give notice to each director of any special meeting of the Board of Directors by mailing the same at least three days before the meeting or by telegraphing, telexing, or delivering the same not later than the date before the meeting.

Unless required by law, such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting. Any and all business may be transacted at any meeting of the Board of Directors. No notice of any adjourned meeting need be given. No notice to or waiver by any director shall be required with respect to any meeting at which the director is present.

3.5 Quorum and Action: Unless provided otherwise by law or by the Certificate of Incorporation or these by-laws, a majority of the Directors shall constitute a quorum for the transaction of business; but if there shall be less than a quorum at any meeting of the Board, a majority of those present may adjourn the meeting from time to time. The vote of a majority of the Directors present at any meeting at which a quorum is present shall be necessary to constitute the act of the Board of Directors.

3.6 Presiding Officer and Secretary of the Meeting: The President, or, in his absence a member of the Board of Directors selected by the members present, shall preside at meetings of the Board. The Secretary shall act as secretary of the meeting, but in his absence the presiding officer may appoint a secretary of the meeting.

3.7 Action by Consent Without Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes or proceedings of the Board or committee.

3.8 Action by Telephonic Conference: Members of the Board of Directors, or any committee designated by such board, may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting.

3.9 Committees: The Board of Directors shall, by resolution or resolutions passed by a majority of Directors designate one or more committees, each of such committees to consist of one or more Directors of the Corporation, for such purposes as the Board shall determine. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.

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3.10 Compensation of Directors: Directors shall receive such reasonable compensation for their service on the Board of Directors or any committees thereof, whether in the form of salary or a fixed fee for attendance at meetings, or both, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving in any other capacity and receiving compensation therefor.

ARTICLE IV

OFFICERS

4.1 Officers, Title, Elections, Terms: (a) The elected officers of the corporation shall be a President, a Treasurer and a Secretary, and such other officers as the Board of Directors shall deem advisable. The officers shall be elected by the Board of Directors at its annual meeting following the annual meeting of the stockholders, to serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election and until their successors are elected and qualified.

(b) The Board of Directors may elect or appoint at any time, and from time to time, additional officers or agents with such duties as it may deem necessary or desirable. Such additional officers shall serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election or appointment. Two or more offices may be held by the same person.

(c) Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

(d) Any officer may resign his office at any time. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time has been specified, at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(e) The salaries of all officers of the corporation shall be fixed by the Board of Directors.

4.2 Removal of Elected Officers: Any elected officer may be removed at any time, either with or without cause, by resolution adopted at any regular or special meeting of the Board of Directors by a majority of the Directors then in office.

4.3 Duties: (a) President: The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the Board of Directors. He shall see that all orders and resolutions of the Board of Directors are carried into effect (unless any such order or resolution shall provide otherwise), and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time.

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(b) Treasurer: The Treasurer shall (1) have charge and custody of and be responsible for all funds and securities of the Corporation; (2) receive and give receipts for moneys due and payable to the corporation from any source whatsoever; (3) deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositories as shall be selected by resolution of the Board of Directors; and (4) in general perform all duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. He shall, if required by the Board of Directors, give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine.

(c) Secretary: The Secretary shall (1) keep the minutes of the meetings of the stockholders, the Board of Directors, and all committees, if any, of which a secretary shall not have been appointed, in one or more books provided for that purpose; (2) see that all notices are duly given in accordance with the provisions of these by-laws and as required by law; (3) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents, the execution of which on behalf of the corporation under its seal, is duly authorized; (4) keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder; (5) have general charge of stock transfer books of the Corporation; and (6) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.

ARTICLE V

CAPITAL STOCK

5.1 Stock Certificates: (a) Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the President and by the Treasurer or the Secretary, certifying the number of shares owned by him.

(b) If such certificate is countersigned by a transfer agent other than the corporation or its employee, or by a registrar other than the corporation or its employee, the signatures of the officers of the corporation may be facsimiles, and, if permitted by law, any other signature may be a facsimile.

(c) In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue.

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(d) Certificates of stock shall be issued in such form not inconsistent with the Certificate of Incorporation as shall be approved by the Board of Directors, and shall be numbered and registered in the order in which they were issued.

(e) All certificates surrendered to the corporation shall be canceled with the date of cancellation, and shall be retained by the Secretary, together with the powers of attorney to transfer and the assignments of the shares represented by such certificates, for such period of time as shall be prescribed from time to time by resolution of the Board of Directors.

5.2 Record Ownership: A record of the name and address of the holder of such certificate, the number of shares represented thereby and the date of issue thereof shall be made on the corporation’s books. The corporation shall be entitled to treat the holder of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by law.

5.3 Transfer of Record Ownership: Transfers of stock shall be made on the books of the corporation only by direction of the person named in the certificate or his attorney, lawfully constituted in writing, and only upon the surrender of the certificate therefor and a written assignment of the shares evidenced thereby. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the corporation for transfer, both the transferor and the transferee request the corporation to do so.

5.4 Lost, Stolen or Destroyed Certificates: Certificates representing shares of the stock of the corporation shall be issued in place of any certificate alleged to have been lost, stolen or destroyed in such manner and on such terms and conditions as the Board of Directors from time to time may authorize.

5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The corporation may maintain one or more transfer offices or agencies where stock of the corporation shall be transferable. The corporation may also maintain one or more registry offices where such stock shall be registered. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock certificates.

5.6 Fixing Record Date for Determination of Stockholders of Record: The Board of Directors may fix, in advance, a date as the record date for the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of the stockholders or any adjournment thereof, or the stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or to express consent to corporate action in writing without a meeting, or in order to make a determination of the stockholders for the purpose of any other lawful action. Such record date in any case shall be not more than sixty days nor less than ten days before the date of a meeting of the stockholders, nor more than sixty days prior to any other action requiring such determination of the stockholders. A determination of stockholders of record entitled to notice or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

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5.7 Dividends: Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the corporation.

ARTICLE VI

SECURITIES HELD BY THE CORPORATION

6.1 Voting: Unless the Board of Directors shall otherwise order, the President, the Secretary or the Treasurer shall have full power and authority, on behalf of the corporation, to attend, act and vote at any meeting of the stockholders of any corporation in which the corporation may hold stock, and at such meeting to exercise any or all rights and powers incident to the ownership of such stock, and to execute on behalf of the corporation a proxy or proxies empowering another or others to act as aforesaid. The Board of Directors from time to time may confer like powers upon any other person or persons.

6.2 General Authorization to Transfer Securities Held by the Corporation (a) Any of the following officers, to wit: the President and the Treasurer shall be, and they hereby are, authorized and empowered to transfer, convert, endorse, sell, assign, set over and deliver any and all shares of stock, bonds, debentures, notes, subscription warrants, stock purchase warrants, evidence of indebtedness, or other securities now or hereafter standing in the name of or owned by the corporation, and to make, execute and deliver, under the seal of the corporation, any and all written instruments of assignment and transfer necessary or proper to effectuate the authority hereby conferred.

(b) Whenever there shall be annexed to any instrument of assignment and transfer executed pursuant to and in accordance with the foregoing paragraph (a), a certificate of the Secretary of the corporation in office at the date of such certificate setting forth the provisions of this Section 6.2 and stating that they are in full force and effect and setting forth the names of persons who are then officers of the corporation, then all persons to whom such instrument and annexed certificate shall thereafter come, shall be entitled, without further inquiry or investigation and regardless of the date of such certificate, to assume and to act in reliance upon the assumption that the shares of stock or other securities named in such instrument were theretofore duly and properly transferred, endorsed, sold, assigned, set over and delivered by the corporation, and that with respect to such securities the authority of these provisions of the by-laws and of such officers is still in full force and effect.

By - Laws - 9

ARTICLE VII

MISCELLANEOUS

7.1 Signatories: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

7.2 Seal: The seal of the corporation shall be in such form and shall have such content as the Board of Directors shall from time to time determine.

7.3 Notice and Waiver of Notice: Whenever any notice of the time, place or purpose of any meeting of the stockholders, directors or a committee is required to be given under the law of the State of Delaware, the Certificate of Incorporation or these by-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the holding thereof, or actual attendance at the meeting in person or, in the case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving of such notice to such persons.

7.4 Indemnity: The corporation shall indemnify its directors, officers and employees to the fullest extent allowed by law, provided, however, that it shall be within the discretion of the Board of Directors whether to advance any funds in advance of disposition of any action, suit or proceeding, and provided further that nothing in this section 7.4 shall be deemed to obviate the necessity of the Board of Directors to make any determination that indemnification of the director, officer or employee is proper under the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.

7.5 Fiscal Year: Except as from time to time otherwise determined by the Board of Directors, the fiscal year of the corporation shall end on                    .

By - Laws - 10

EX-99.T3B.24

Exhibit B-24

BY-LAWS

OF

KOHL’S FOOD STORES, INC.

(a Wisconsin corporation)

INTRODUCTION -

VARIABLE REFERENCES

0.01. Date of annual shareholders’ meeting (see Section 2.01) :

10 a.m	1st	Monday	September	1984
(Hour)	(Week)	(Day)	(Month)	(First Year)

*

0.02. Required notice of shareholders’ meeting (See Section 2.04): not less than 10 days.

*

0.03. Authorized number of directors (See Section 3.01):

Four 10-3-83

*

0.04. Required notice of directors’ meetings (See Section 3.05):

(a) not less than 12 hours if by mail, and

*

(b) not less than 12 hours if by telegram or personal delivery.

*

0.05. Authorized number of Vice-Presidents (See Section 4.01):

Ten

*

* These spaces are reserved for official notation of future amendments to these sections.

ARTICLE I. OFFICES

1.01. Principal and Business Offices. The corporation may have such principal and other business offices, either within or without the State of Wisconsin, as the Board of Directors may designate or as the business of the corporation may require from time to time.

1.02. Registered Office. The registered office of the corporation required by the Wisconsin Business Corporation Law to be maintained in the State of Wisconsin may be, but need not be, identical with the principal office in the State of Wisconsin, and the address of the registered office may be changed from time to time by the Board of Directors or by the registered agent. The business office of the registered agent of the corporation shall be identical to such registered office.

ARTICLE II. SHAREHOLDERS

2.01. Annual Meeting. The annual meeting of the shareholders shall be held at the date and hour in each year set forth in Section 0.01, or at such other time and date within thirty days before or after said date as may be fixed by or under the authority of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Wisconsin, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein, or fixed as herein provided, for any annual meeting of the shareholders, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the shareholders as soon thereafter as conveniently may be.

2.02. Special Meeting. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President or the Board of Directors or by the person designated in the written request of the holders of not less than one-tenth of all shares of the corporation entitled to vote at the meeting.

2.03. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Wisconsin, as the place of meeting for any annual meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Wisconsin, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal business office of the corporation in the State of Wisconsin or such other suitable place in the county of such principal office as may be designated by the person calling such meeting, but any meeting may be adjourned to reconvene at any place designated by vote of a majority of the shares represented thereat.

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2.04. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than the number of days set forth in Section 0.02 (unless a longer period is required by law or the articles of incorporation) nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary, or other officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the stock record books of the corporation, with postage thereon prepaid.

2.05. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the close of business on the date on which notice of the meeting is mailed or on the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall be applied to any adjournment thereof except where the determination has been made through the closing of the stock transfer books and the stated period of closing has expired.

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2.06. Voting Records. The officer or agent having charge of the stock transfer books for shares of the corporation shall, before each meeting of shareholders, make a complete record of the shareholders entitled to vote at such meeting, or any adjournment thereof, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such record or transfer books or to vote at any meeting of shareholders. Failure to comply with the requirements of this section shall not affect the validity of any action taken at such meeting.

2.07. Quorum. Except as otherwise provided in the articles of incorporation, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Though less than a quorum of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

2.08. Conduct of Meetings. The President, and in his absence, a Vice-President in the order provided under Section 4.06, and in their absence, any person chosen by the shareholders present shall call the meeting of the shareholders to order and shall act as chairman of the meeting, and the Secretary of the corporation shall act as secretary of all meetings of the shareholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting.

2.09. Proxies. At all meetings of shareholders, a shareholder entitled to vote may vote in person or by proxy appointed in writing by the shareholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. Unless otherwise provided in the proxy, a proxy may be revoked at any time before it is voted, either by written notice filed with the Secretary or the acting secretary of the meeting or by oral notice given by the shareholder to the presiding officer during the meeting. The presence of a shareholder who has filed his proxy shall not of itself constitute a revocation. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. The Board of Directors shall have the power and authority to make rules establishing presumptions as to the validity and sufficiency of proxies.

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2.10. Voting of Shares. Each outstanding share shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are enlarged, limited or denied by the articles of incorporation.

2.11. Voting of Shares by Certain Holders.

(a) Other Corporations. Shares standing in the name of another corporation may be voted either in person or by proxy, by the president of such corporation or any other officer appointed by such president. A proxy executed by any principal officer of such other corporation or assistant thereto shall be conclusive evidence of the signer’s authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, of the designation of some other person by the board of directors or the by-laws of such other corporation.

(b) Legal Representatives and Fiduciaries. Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy, receiver, or assignee for creditors may be voted by him, either in person or by proxy, without a transfer of such shares into his name, provided that there is filed with the Secretary before or at the time of meeting proper evidence of his incumbency and the number of shares held. Shares standing in the name of a fiduciary may be voted by him, either in person or by proxy. A proxy executed by a fiduciary, shall be conclusive evidence of the signer’s authority to act, in the absence of express notice to this corporation, given in writing to the Secretary of this corporation, that such manner of voting is expressly prohibited or otherwise directed by the document creating the fiduciary relationship.

(c) Pledges. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.

(d) Treasury Stock and Subsidiaries. Neither treasury shares, nor shares held by another corporation if a majority of the shares entitled to vote for the election of directors of such other corporation is held by this corporation, shall be voted at any meeting or counted in determining the total number of outstanding shares entitled to vote, but shares of its own issue held by this corporation in a fiduciary capacity, or held by such other corporation in a fiduciary capacity, may be voted and shall be counted in determining the total number of outstanding shares entitled to vote.

(e) Minors. Shares held by a minor may be voted by such minor in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has received written notice or has actual knowledge that such shareholder is a minor.

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(f) Incompetents and Spendthrifts. Shares held by an incompetent or spendthrift may be voted by such incompetent or spendthrift in person or by proxy and no such vote shall be subject to disaffirmance or avoidance, unless prior to such vote the Secretary of the corporation has actual knowledge that such shareholder has been adjudicated an incompetent or spendthrift or actual knowledge of filing of judicial proceedings for appointment of a guardian.

(g) Joint Tenants. Shares registered in the names of two or more individuals who are named in the registration as joint tenants may be voted in person or by proxy signed by any one or more of such individuals if either (i) no other such individual or his legal representative is present and claims the right to participate in the voting of such shares or prior to the vote files with the Secretary of the corporation a contrary written voting authorization or direction or written denial of authority of the individual present or signing the proxy proposed to be voted or (ii) all such other individuals are deceased and the Secretary of the corporation has no actual knowledge that the survivor has been adjudicated not to be the successor to the interests of those deceased.

2.12. Waiver of Notice by Shareholders. Whenever any notice whatever is required to be given to any shareholder of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the shareholder entitled to such notice, shall be deemed equivalent to the giving of such notice; provided that such waiver in respect to any matter of which notice is required under any provision of the Wisconsin Business Corporation Law, shall contain the same information as would have been required to be included in such notice, except the time and place of meeting.

2.13. Unanimous Consent without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof.

ARTICLE III. BOARD OF DIRECTORS

3.01. General Powers and Number. The business and affairs of the corporation shall be managed by its Board of Directors. The number of directors of the corporation shall be as provided in Section 0.03.

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3.02. Tenure and Qualifications. Each director shall hold office until the next annual meeting of shareholders and until his successor shall have been elected, or until his prior death, resignation or removal. A director may be removed from office by affirmative vote of a majority of the outstanding shares entitled to vote for the election of such director, taken at a meeting of shareholders called for that purpose. A director may resign at any time by filing his written resignation with the Secretary of the corporation. Directors need not be residents of the State of Wisconsin or shareholders of the corporation.

3.03. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this by-law immediately after the annual meeting of shareholders, and each adjourned session thereof. The place of such regular meeting shall be the same as the place of the meeting of shareholders which precedes it, or such other suitable place as may be announced at such meeting of shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Wisconsin, for the holding of additional regular meetings without other notice than such resolution.

3.04. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President, Secretary or any two directors. The President or Secretary calling any special meeting of the Board of Directors may fix any place, either within or without the State of Wisconsin, as the place for holding any special meeting of the Board of Directors called by them, and if no other place is fixed the place of meeting shall be the principal business office of the corporation in the State of Wisconsin.

3.05. Notice; Waiver. Notice of each meeting of the Board of Directors (unless otherwise provided in or pursuant to Section 3.03) shall be given by written notice delivered personally or mailed or given by telegram to each director at his business address or at such other address as such director shall have designated in writing filed with the Secretary, in each case not less than that number of hours prior thereto as set forth in Section 0.04. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Whenever any notice whatever is required to be given to any director of the corporation under the articles of incorporation or by-laws or any provision of law, a waiver thereof in writing, signed at any time, whether before or after the time of meeting, by the director entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting and objects thereat to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.

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3.06. Quorum. Except as otherwise provided by law or by the articles of incorporation or these by-laws, a majority of the number of directors as provided in Section 0.03 shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but a majority of the directors present (though less than such quorum) may adjourn the meeting from time to time without further notice.

3.07. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the act of a greater number is required by law or by the articles of incorporation or these by-laws.

3.08. Conduct of Meetings. The President, and in his absence, a Vice-President in the order provided under Section 4.06, and in their absence, any director chosen by the directors present, shall call meetings of the Board of Directors to order and shall act as chairman of the meeting, The Secretary of the corporation shall act as secretary of all meetings of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any Assistant Secretary or any director or other person present to act as secretary of the meeting.

3.09. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled until the next succeeding annual election by the affirmative vote of a majority of directors then in office, though less than a quorum of the Board of Directors; provided, that in case of a vacancy created by the removal of a director by vote of the shareholders, the shareholders shall have the right to fill such vacancy at the same meeting or any adjournment thereof.

3.10. Compensation. The Board of Directors, by affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, may establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise, or may delegate such authority to an appropriate committee. The Board of Directors also shall have authority to provide for or to delegate authority to an appropriate committee to provide for reasonable pensions, disability or death benefits, and other benefits or payments, to directors, officers and employees and to their estates, families, dependents or beneficiaries on account of prior services rendered by such directors, officers and employees to the corporation.

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3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the Board of Directors or a committee thereof of which he is a member at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

3.12. Committees. The Board of Directors by resolution adopted by the affirmative vote of a majority of the number of directors as provided in Section 0.03 may designate one or more committees, each committee to consist of three or more directors elected by the Board of Directors, which to the extent provided in said resolution as initially adopted, and as thereafter supplemented or amended by further resolution adopted by a like vote, shall have and may exercise, when the Board of Directors is not in session, the powers of the Board of Directors in the management of the business and affairs of the corporation, except action in respect to dividends to shareholders, election of the principal officers or the filling of vacancies in the Board of Directors or committees created pursuant to this section. The Board of Directors may elect one or more of its members as alternate members of any such committee who may take the place of any absent member or members at any meeting of such committee, upon request by the President or upon request by the chairman of such meeting. Each such committee shall fix its own rules governing the conduct of its activities and shall make such reports to the Board of Directors of its activities as the Board of Directors may request.

3.13. Unanimous Consent without Meeting. Any action required or permitted by the articles of incorporation or by-laws or any provision of law to be taken by the Board of Directors at a meeting or by resolution may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors then in office.

ARTICLE IV. OFFICERS

4.01. Number. The principal officers of the corporation shall be a President, the number of Vice-Presidents as provided in Section 0.05, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the Board of Directors. Any two or more offices may be held by the same person, except the offices of President and Secretary and the offices of President and Vice-President.

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4.02 Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his successor shall have been duly elected or until his prior death, resignation or removal.

4.03. Removal. Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment shall not of itself create contract rights.

4.04. Vacancies. A vacancy in any principal office because of death, resignation, removal, disqualification or otherwise, shall be filled by the Board of Directors for the unexpired portion of the term.

4.05. President. The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the shareholders and of the Board of Directors. He shall have authority, subject to such rules as may be prescribed by the Board of Directors, to appoint such agents and employees of the corporation as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to them. Such agents and employees shall hold office at the discretion of the President. He shall have authority to sign, execute and acknowledge, on behalf of the corporation, all deeds, mortgages, bonds, stock certificates, contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the course of the corporation’s regular business, or which shall be authorized by resolution of the Board of Directors; and, except as otherwise provided by law or the Board of Directors, he may authorize any Vice-President or other officer or agent of the corporation to sign, execute and acknowledge such documents or instruments in his place and stead. In general he shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.

4.06. The Vice-Presidents. In the absence of the President or in the event of his death, inability or refusal to act, or in the event for any reason it shall be impracticable for the President to act personally, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated by the Board of Directors, or in the absence of any designation,

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then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Any Vice-President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation; and shall perform such other duties and have such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors. The execution of any instrument of the corporation by any Vice-President shall be conclusive evidence, as to third parties, of his authority to act in the stead of the President.

4.07. The Secretary. The Secretary shall: (a) keep the minutes of the meetings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep or arrange for the keeping of a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President, or a Vice-President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general perform all duties incident to the office of Secretary and have such other duties and exercise such authority as from time to time may be delegated or assigned to him by the President or by the Board of Directors.

4.08. The Treasurer. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

4.09. Assistant Secretaries and Assistant Treasurers. There shall be such number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to time authorize. The Assistant Secretaries may sign with the President or a Vice-President certificates for shares of the corporation the issuance

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of which shall have been authorized by a resolution of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such duties and have such authority as shall from time to time be delegated or assigned to them by the Secretary or the Treasurer, respectively or by the President or the Board of Directors.

4.10. Other Assistants and Acting Officers. The Board of Directors shall have the power to appoint any person to act as assistant to any officer, or as agent for the corporation in his stead, or to perform the duties of such officer whenever for any reason it is impracticable for such officer to act personally, and such assistant or acting officer or other agent so appointed by the Board of Directors shall have the power to perform all the duties of the office to which he is so appointed to be assistant, or as to which he is so appointed to act, except as such power may be otherwise defined or restricted by the Board of Directors.

4.11. Salaries. The salaries of the principal officers shall be fixed from time to time by the Board of Directors or by a duly authorized committee thereof, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation.

ARTICLE V. CONTRACTS, LOANS, CHECKS

AND DEPOSITS; SPECIAL CORPORATE ACTS

5.01. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute or deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. In the absence of other designation, all deeds, mortgages and instruments of assignment or pledge made by the corporation shall be executed in the name of the corporation by the President or one of the Vice-Presidents and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an Assistant Secretary, when necessary or required, shall affix the corporate seal thereto; and when so executed no other party to such instrument or any third party shall be required to make any inquiry into the authority of the signing officer or officers.

5.02. Loans. No indebtedness for borrowed money shall be contracted on behalf of the corporation and no evidences of such indebtedness shall be issued in its name unless authorized by or under the authority of a resolution of the Board of Directors. Such authorization may be general or confined to specific instances.

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5.03. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer.

5.04. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as may be selected by or under the authority of a resolution of the Board of Directors.

5.05. Voting of Securities Owned by this Corporation. Subject always to the specific directions of the Board of Directors, (a) any shares or other securities issued by any other corporation and owned or controlled by this corporation may be voted at any meeting of security holders of such other corporation by the President of this corporation if he be present, or in his absence by any Vice-President of this corporation who may be present, and (b) whenever, in the judgment of the President, or in his absence, of any Vice-President, it is desirable for this corporation to execute a proxy or written consent in respect to any shares or other securities issued by any other corporation and owned by this corporation, such proxy or consent shall be executed in the name of this corporation by the President or one of the Vice-Presidents of this corporation, without necessity of any authorization by the Board of Directors, affixation of corporate seal or countersignature or attestation by another officer. Any person or persons designated in the manner above stated as the proxy or proxies of this corporation shall have full right, power and authority to vote the shares or other securities issued by such other corporation and owned by this corporation the same as such shares or other securities might be voted by this corporation.

ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER

6.01. Certificates for Shares. Certificates representing shares of the corporation shall be in such form, consistent with law, as shall be determined by the Board of Directors. Such certificates shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except as provided in Section 6.06.

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6.02. Facsimile Signatures and Seal. The seal of the corporation on any certificates for shares may be a facsimile. The signatures of the President or Vice-President and the Secretary or Assistant Secretary upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent, or a registrar, other than the corporation itself or an employee of the corporation.

6.03. Signature by Former Officers. In case any officer, who has signed or whose facsimile signature has been placed upon any certificate for shares, shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue.

6.04. Transfer of Shares. Prior to due presentment of a certificate for shares for registration of transfer the corporation may treat the registered owner of such shares as the person exclusively entitled to vote, to receive notifications and otherwise to have and exercise all the rights and power of an owner. Where a certificate for shares is presented to the corporation with a request to register for transfer, the corporation shall not be liable to the owner or any other person suffering loss as a result of such registration of transfer if (a) there were on or with the certificate the necessary endorsements, and (b) the corporation had no duty to inquire into adverse claims or has discharged any such duty. The corporation may require reasonable assurance that said endorsements are genuine and effective and compliance with such other regulations as may be prescribed by or under the authority of the Board of Directors.

6.05. Restrictions on Transfer. The face or reverse side of each certificate representing shares shall bear a conspicuous notation of any restriction imposed by the corporation upon the transfer of such shares.

6.06. Lost, Destroyed or Stolen Certificates. Where the owner claims that his certificate for shares has been lost, destroyed or wrongfully taken, a new certificate shall be issued in place thereof if the owner (a) so requests before the corporation has notice that such shares have been acquired by a bona fide purchaser, and (b) files with the corporation a sufficient indemnity bond, and (c) satisfies such other reasonable requirements as may be prescribed by or under the authority of the Board of Directors.

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6.07. Consideration for Shares. The shares of the corporation may be issued for such consideration as shall be fixed from time to time by the Board of Directors, provided that any shares having a par value shall not be issued for a consideration less than the par value thereof. The consideration to be paid for shares may be paid in whole or in part, in money, in other property, tangible or intangible, or in labor or services actually performed for the corporation. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable by the corporation. No certificate shall be issued for any share until such share is fully paid.

6.08. Stock Regulations. The Board of Directors shall have the power and authority to make all such further rules and regulations not inconsistent with the statutes of the State of Wisconsin as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the corporation.

ARTICLE VII. SEAL

7.01. The Board of Directors may provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation and the state of incorporation and the words, “Corporate Seal”.

ARTICLE VIII. INDEMNIFICATION

8.01. Indemnification. The corporation shall indemnify all directors and officers to the fullest extent now or hereafter permitted by the Wisconsin Statutes. This by-law shall not limit the rights of such persons or other persons to indemnification as provided or permitted as a matter of law, under the Wisconsin Statutes or otherwise.

ARTICLE IX. AMENDMENTS

9.01. By Shareholders. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the shareholders by affirmative vote of not less than a majority of the shares present or represented at any annual or special meeting of the shareholders at which a quorum is in attendance.

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9.02. By Directors. These by-laws may also be altered, amended or repealed and new by-laws may be adopted by the Board of Directors by affirmative vote of a majority of the number of directors present at any meeting at which a quorum is in attendance; but no by-law adopted by the shareholders shall be amended or repealed by the Board of Directors if the by-law so adopted so provides.

9.03. Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the by-laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the by-laws so that the by-laws would be consistent with such action, shall be given the same effect as though the by-laws had been temporarily amended or suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized.

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BY-LAWS

OF

KOHL’S FOOD STORES, INC.

ARTICLE I

OFFICES

SECTION 1. REGISTERED OFFICE.—The registered office shall be established and maintained at the office of the United States Corporation Company, in the City of Madison in the County of Dane in the State of Wisconsin and said corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES.—The corporation may have other offices, either within or without the State of Wisconsin, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS.—Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails, to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the corporation in Delaware on the last Friday in March.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS.—Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM.—Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS.—Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS.—Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING.—Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior, notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM.—The number of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

SECTION 2. RESIGNATIONS.—Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective

SECTION 3. VACANCIES.—If the office of any director, member of a committee or other officer becomes vacant, the remaining directors, in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL.—Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER.—The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS.—The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES.—The Board of Directors may, by resolution or resolutions passed by a majority of the whole board; designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS.—The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM.—A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION.—Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING.—Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS.—The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS.—The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHAIRMAN.—The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT.—The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, ..and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE-PRESIDENT.—Each Vice-President shall have such powers and shall perform such duties as shall be assigned to him by the directors.

SECTION 6. The Treasurer. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

SECTION 7. SECRETARY.—The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.— Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

SECTION 1. CERTIFICATES OF STOCK.—Certificate of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles.

SECTION 2. LOST CERTIFICATES.—A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

SECTION 3. TRANSFER OF SHARES .—The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4. STOCKHOLDERS RECORD DATE.—In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5. DIVIDENDS.—Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6. SEAL.—The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL WISCONSIN”, Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 7. FISCAL YEAR.—The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Section 8. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer.

SECTION 9. NOTICE AND WAIVER OF NOTICE.—Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting.

EX-99.T3B.25

Exhibit B-25

BY-LAWS

ARTICLE I – OFFICES

1. The registered office of the corporation shall be at 321 Penn Avenue, Scranton, Pennsylvania.

2. The corporation may also have offices at such other places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II – SEAL

1. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Pennsylvania”.

ARTICLE III – SHAREHOLDERS’ MEETING

1. Meetings of shareholders shall be held at such place within or without the Commonwealth as shall be fixed by the board of directors in the notice thereof. Amended 9/21/70

2. The annual meeting of the shareholders, shall be held on the second Monday of September in each year if not a legal holiday, and if a legal holiday, then on the next secular day following at 2:00 o’clock p.m. when they shall elect a Board of Directors, and transact such other business as may properly be brought before the meeting. If the annual meeting shall not be called and held during any calendar year, any shareholder may call such meeting at anytime thereafter.

3. The presence, in person or by proxy, of the holders of a majority of the outstanding shares entitled to vote shall constitute a quorum at all meetings of the shareholders except as otherwise provided by law, by Articles of Incorporation or by these By-Laws. If however, such quorum shall not be present at any meeting of the shareholders, those entitled to vote thereat shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite number of shares shall be present. In the case of any meeting called for the election of directors, adjournment or adjournments may be taken only from day to day, or for such longer periods not exceeding fifteen days each, as the holders of a majority of the shares present in person or by proxy shall direct, until such directors have been elected, and those who attend the second of such adjourned meetings, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing directors.

4. At each meeting of the shareholders every shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and delivered to the Secretary at the meeting. No unrevoked proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein, but in no event shall a proxy, unless coupled with an interest, be voted on after three years from the date

of its execution. In all elections for directors cumulative voting shall be allowed. Upon demand made by a shareholder at any election for directors before the voting begins, the election shall be by ballot. No share shall be voted at any meeting upon which any installment is due and unpaid. The original share ledger or transfer book, or a duplicate thereof kept in this Commonwealth shall be prima facie evidence of the right of the person named therein to vote thereon.

5. Written notice of the annual meeting shall be mailed to each shareholder entitled to vote thereat, at such address as appears on the books of the corporation, at least five (5) days prior to the meeting.

6. In advance of any meeting of shareholders, the Board of Directors may appoint judges of election, who need not be shareholders, to act at such meeting or any adjournment thereof. If judges of election be not so appointed, the chairman of any such meeting may, and on the request of any shareholder or his proxy, shall make such appointment at the meeting. The number of judges shall be one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares present and entitled to vote shall determine whether one or three judges are to be appointed. On request of the chairman of the meeting, or of any shareholder or his proxy, the judges shall make a report in writing of any challenge or question or matter determined by them, and execute a certificate of any fact found by them. No person who is a candidate for office shall act as a judge.

7. Special meetings of the shareholders may be called at any time by the President, or the Board of Directors, or the holders of not less than one-fifth of all the shares outstanding and entitled to vote. At any time, upon written request of any person entitled to call a special meeting, it shall be the duty of the Secretary to call a special meeting of the shareholders, to be held at such time as the Secretary may fix, not less than ten nor more than sixty days after receipt of the request.

8. Business transacted at all special meetings shall be confined to the objects stated in the call and matters germane thereto.

9. Written notice of a special meeting of shareholders stating the time and place and object thereof, shall be mailed, postage prepaid, to each shareholder entitled to vote thereat at such address as appears on the books of the corporation, at least five days before such meeting, unless a greater period of notice is required by statute in a particular case.

10. The officer or agent having charge of the transfer books shall make at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, with the address of and the number of shares held by each, which list shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting, and shall

be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in this Commonwealth, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book, or to vote in person or by proxy, at any meeting of shareholders.

“11. Anything set forth to the contrary herein notwithstanding, any action which may be taken at a meeting of the shareholders, or of a class of shareholders, may be taken without a meeting, if a consent or consent in writing, setting forth the action so taken, shall be signed by all the shareholders who would be entitled to vote at a meeting for such purpose and shall be filed with the Secretary of the corporation.” Amended 12/4/75

1. The business of this corporation shall be managed by its Board of Directors, three in number, who need not be residents or this Commonwealth or shareholders in the corporation. They shall be elected by the shareholders, at the annual meeting of shareholders of the corporation, and each director shall be elected for the term of one year, and until his successor shall be elected and shall qualify.

2. In addition to the powers and authorities by these By-Laws expressly conferred upon them, the Board may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Articles or by these By-Laws directed or required to be exercised or done by the shareholders.

3. The meetings of the Board of Directors may be held at such place within this Commonwealth, or elsewhere, as a majority of the directors may from time to time appoint, or as may be designated in the notice calling the meeting.

4. Each newly elected Board may meet at such place and time as shall be fixed by the shareholders at the meeting at which such directors are elected and no notice shall be necessary to the newly elected directors in order legally to constitute the meeting, or they may meet at such place and time as may be fixed by the consent in writing of all the directors.

5. Regular meetings of the Board shall be held without notice at the registered office of the company, or at such other time and place as shall be determined by the Board.

6. Special meetings of the Board may be called by the President on one days notice to each director, either personally or by mail or by telegram; special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of two directors,

7. A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business, and the acts of a majority of the directors present at a meeting at which a quorum is present shall be the acts of the Board of Directors. If all the directors shall severally or collectively consent in writing to any action to be taken by the corporation, such action shall be as valid corporate action as though it had been authorized at a meeting of the Board of Directors.

8. Directors as such, shall not receive any stated salary for their services, but by resolution of the Board, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board PROVIDED, that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity, and receiving compensation therefor.

ARTICLE V – OFFICERS

“1. The executive officers of the corporation shall be chosen by the directors and shall be a chairman, president, one or more vice presidents, secretary, and a treasurer. The directors may also elect such other officers as they shall deem necessary. Any two offices may be held by the same person, except the office of president and secretary. Officers shall have such authority and perform such duties as shall from time to time be prescribed by the board.” Amended 9/21/70

2. The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors.

3. The officers of the corporation shall hold office for one year and until their successors are chosen and have qualified. Any officer elected or appointed by the board of directors may be removed by the board of directors whenever in their judgment the best interests of the corporation will be served thereby.

“4. The chairman shall act as chairman and preside at all meetings of the shareholders and the board of directors and in general shall have such authority and perform such duties as shall form time to time be prescribed by the board. He shall be an ex-officio member of all committees.” Amended 9/21/70

4a. The president shall in general have such authority and perform such duties as shall from time to time be prescribed by the board. Amended 9/21/70

5. The Secretary shall attend all sessions of the Board and all meetings of the shareholders and act as clerk thereof, and record all the votes of the corporation and the minutes of all its transactions in a book to be kept for that purpose; and shall perform like duties for all committees of the Board of Directors when required. He shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, and under whose supervision he shall be. He shall keep in safe custody the corporate seal of the corporation, and when authorized by the Board, affix the same to any instrument requiring it.

6. The Treasurer shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall keep the moneys of the corporation in a separate account to the credit of the corporation. He shall disburse the funds of

the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and Directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the corporation.

ARTICLE VI – VACANCIES

1. If the office of any officer or agent, one or more, becomes vacant for any reason, the Board of Directors may choose a successor or successors, who shall hold office for the unexpired term in respect of which such vacancy occurred.

2. Vacancies in the Board of Directors shall be filled by a majority of the remaining members of the Board though less than a quorum, and each person so elected shall be a director until his successor is elected by the shareholders, who may make such election at the next annual meeting of the shareholders or at any special meeting duly called for that purpose and held prior thereto.

ARTICLE VII – CORPORATE RECORDS

1. There shall be kept at the registered office of the corporation an original or duplicate record of the proceedings of the shareholders and of the directors, and the original or a copy of its By-Laws, including all amendments or alterations thereto to date, certified by the Secretary of the corporation. An original or duplicate share register shall also be kept at the

registered office, or at the office of a transfer agent or registrar within this Commonwealth, giving the names of the shareholders in alphabetical order, and showing their respective addresses, the number and classes of shares held by each, the number and date of certificates issued for the shares, and the number and date of cancellation of every certificate surrendered for cancellation.

2. Every shareholder shall have a right to examine, in person or by agent or attorney, at any reasonable time or times, for any reasonable purpose, the share register, books or records of account, and records of the proceedings of the shareholders and directors, and make extracts therefrom.

ARTICLE VIII – SHARE CERTIFICATES, DIVIDENDS, ETC.

1. The share certificates of the corporation shall be numbered and registered in the share ledger and transfer books of the corporation, as they are issued. They shall be signed by the President and Secretary and shall bear the corporate seal.

2. Transfers of shares shall be made on the books of the corporation upon surrender of the certificates therefor, endorsed by the person named in the certificate or by attorney, lawfully constituted in writing. No transfer shall be made inconsistent with the provisions of Article 8 of the Uniform Commercial Code, approved the sixth day of April, one thousand nine hundred fifty-three (Act No. 1), and its amendments and supplements.

3. The Board of Directors may fix a time, not more than fifty days, prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of, or to vote at, any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion, or exchange of shares. In such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of, or to vote at, such meeting, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights as the case may be, notwithstanding any transfer of any shares on the books of the corporation after any record date fixed, as aforesaid. The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of such period, and in such case, written or printed notice thereof shall be mailed at least ten days before the closing thereof to each shareholder of record at the address appearing on the records of the corporation or supplied by him to the corporation for the purpose of notice. While the stock transfer books of the corporation are closed, no transfer of shares shall be made thereon. If no record date is fixed for the determination of shareholders entitled to receive notice of, or vote at, a shareholders’ meeting, transferees of shares which are transferred on the books of the corporation within ten days next preceding the date of such meeting shall not be entitled to notice of or vote at such meeting.

4. Any person claiming a share certificate to be lost or destroyed shall make an affidavit or affirmation of that fact and advertise the same in such manner as the Board of Directors may require, and shall give the corporation a bond of indemnity with sufficient surety to protect the corporation or any person injured by the issue of a new certificate from any liability or expense which it or they may incur by reason of the original certificate remaining outstanding, whereupon a new certificate may be issued of the same tenor and for the same number of shares as the one alleged to be lost or destroyed, but always subject to the approval of the Board of Directors.

5. Subject to the provisions of the statutes, the Board of Directors may declare and pay dividends upon the outstanding shares of the corporation out of its surplus from time to time and to such extent as they deem advisable, in cash, property or in shares of the corporation.

6. Before payment of any dividend there may be set aside out of the net profits of the corporation such sum or sums as the directors, from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interests of the corporation, and the directors may abolish any such reserve in the manner in which it was created.

ARTICLE IX – MISCELLANEOUS PROVISIONS

1. All checks or demands for money and notes of the corporation shall be signed by such officer or officers as the Board of Directors may from time to time designate.

2. The fiscal year shall begin the 1st day of July each year.

3. Whenever written notice is required to be given to any person, it may be given to such person, either personally or by sending a copy thereof through the mail, or by telegram, charges prepaid, to his address appearing on the books of the corporation, or supplied by him to the corporation for the purpose of notice. If the notice is sent by mail or by telegraph, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office for transmission to such person. Such notice shall specify the place, day and hour of the meeting and, in the case of a special meeting, the general nature of the business to be transacted.

4. Any shareholder or director may waive any notice required to be given under these By-laws or by statute to the extent permitted by law. Amended 9/21/70

ARTICLE X — ANNUAL STATEMENT

1. The President and Board of Directors shall present at each annual meeting a full and complete statement of the business and affairs of the corporation for the preceding year. Such statement shall be prepared and presented in whatever manner the Board of Directors shall deem advisable and need not be verified by a certified public accountant.

ARTICLE XI — AMENDMENTS

“1. These By-laws may be altered, amended, or repealed by the majority vote of the members of the board of directors at any regular or special meeting duly convened on notice for that purpose, subject to the powers reserved in the premised to the shareholders by statue.” Amended 9/21/70

WAIVER OF NOTICE OF MEETING OF DIRECTORS

We, the undersigned, being all of the Directors of Kwik Save Inc., do hereby waive all notice of a meeting of the Board of Directors of the Corporation, and duly consent that the first day of September, 1965, at 2 o’clock in the afternoon, be and the same is hereby fixed as the time, and 600 Scranton Life Building, Scranton, Pennsylvania, as the place for holding the same, and that all such business be transacted thereat as may lawfully come before the meeting.

Dated the first day of September, 1965.

/s/ Daniel J, Houlihan

/s/ Arthur L. Abrams

/s/ Ruth F. Abrams

MEETING OF BOARD OF DIRECTORS

Minutes of the meeting of the Board of Directors of Kwik Save Inc. held at 600 Scranton Life Building, Scranton, Pennsylvania on the first day of September, 1965, at two o’clock p. m.

Present:	Arthur L. Abrams
	Ruth F. Abrams
	Daniel J. Houlihan

being all of the Directors of the Corporation.

The following resolution was made, seconded and unanimously adopted:

“RESOLVED that henceforth Northeastern Pennsylvania National Bank and Trust Company, from the funds on deposit with it in the account of this Corporation, Account No. 001-03131-8 be and is hereby authorized to make payment upon and according to the checks, drafts, notes or acceptances of this Corporation.

Signed by	Arthur L. Abrams                    President-Treasurer
	Jack M. Yanover

including checks drawn to his or their own order. This authorization hereby given shall continue until written notice to the contrary shall have been received by said Bank.

“RESOLVED further that any and every authorization to make payment from above account heretofore granted by this Corporation be and the same is now terminated.”

There being no further business, on motion duly made and seconded, the meeting was adjourned.

/s/ Daniel J. Houlihan

Secretary

September 1, 1965

EX-99.T3B.26

Exhibit B-26

AMENDED AND RESTATED

OPERATING AGREEMENT

LANCASTER PIKE STUART, LLC

July 30, 2009

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
ARTICLE II FORMATION OF COMPANY			2
2.1	Formation		2
2.2	Name		2
2.3	Principal Place of Business		2
2.4	Registered Office and Registered Agent		2
ARTICLE III BUSINESS OF COMPANY			2
3.1	Permitted Businesses		2
ARTICLE IV NAME AND ADDRESS OF MEMBER			3
4.1	Name and Address		3
4.2	Member Has No Exclusive Duty to Company		3
ARTICLE V MANAGEMENT			3
5.1	Management		3
5.2	Bank Accounts		5
ARTICLE VI STANDARD OF CARE AND INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS			5
6.1	Standard of Care		5
6.2	Indemnification of Member, Board of Managers and Officers		5
ARTICLE VII RIGHTS AND OBLIGATIONS OF MEMBER			6
7.1	Limitation of Liability		6
7.2	Resignation		6
ARTICLE VIII CAPITAL STRUCTURE			6
8.1	Authorized Units		6
8.2	Certificates Evidencing Units		6
ARTICLE IX CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS			6
9.1	Initial Capital Contribution		6
9.2	Additional Capital Contributions		6
9.3	Capital Account		6
ARTICLE X FINANCIAL MATTERS			7
10.1	Financial Reports		7
10.2	Fiscal Year		7
ARTICLE XI ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS			7
11.1	Allocations of Net Profits and Net Losses and Distribution		7
11.2	Loans to Company		7
11.3	Records and Reports		7
11.4	Returns and Other Elections		7
ARTICLE XII TRANSFER OF UNITS			8
12.1	Permitted Transfers		8
ARTICLE XIII DISSOLUTION AND TERMINATION			8
13.1	Dissolution		8
13.2	Certificate of Cancellation		8
ARTICLE XIV MISCELLANEOUS PROVISIONS			9
14.1	Notices		9

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14.2	Applicable Law	9
14.3	Construction	9
14.4	Headings	9
14.5	Waivers	9
14.6	Rights and Remedies Cumulative	9
14.7	Severability	9
14.8	Successors and Assigns	.,9
14.9	Creditors	9

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AMENDED AND RESTATED

OPERATING AGREEMENT

OF

LANCASTER PIKE STUART, LLC

This Amended and Restated Operating Agreement, dated July 30, 2009, is entered into by Pathmark Stores, Inc., a Delaware corporation, as the sole member (the “Member”) of Lancaster Pike Stuart, LLC, a Delaware limited liability company (the “Company”).

ARTICLE I

DEFINITIONS

The following terms used in this Agreement shall have the following meanings:

(a) “Act” means the Delaware Limited Liability Company Act, as the same may be amended from time to time.

(b) “Affiliate” means, with respect to any Person, any other Person, other than an individual, that is directly or indirectly controlling, controlled by or under common control with such Person. For these purposes, “control” (and its correlative meanings) as used with respect to any Person means (i) the power of another Person to exercise, directly or indirectly, more than fifty percent (50%) of the voting power of such Person or (ii) the power to direct or cause the direction, directly or indirectly, of the management and policies of such Person.

(c) “Agreement” means this Amended and Restated Operating Agreement as originally executed and as amended from time to time.

(d) “Board of Managers” means the Person or Persons appointed as managers in accordance with Article V.

(e) “Capital Contribution” means any contribution to the capital of the Company in cash or property by the Member whenever made.

(f) “Certificate” means the Certificate of Formation of the Company as filed by the organizer of the Company with the Secretary of State of Delaware, as the same may be amended from time to time.

(g) “Code” means the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws.

(h) “Distributable Cash” means all cash, revenues and funds received by the Company from Company operations, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii) all cash expenditures incurred in the normal operation of the Company’s business; and (iii) such reserves as the Board of Managers deems necessary for the proper operation of the Company’s business.

(i) “Entity” means any general partnership, limited partnership, corporation, limited liability company, joint venture or association.

(j) “Fiscal Year” means the Company’s fiscal year as described in Article X.

(k) “Net Losses” means, for each Fiscal Year, the losses and deductions of the Company determined in accordance with accounting principles consistently applied from year to year, plus any expenditures described in Section 705(a)(2)(B) of the Code.

(1) “Net Profits” means, for each Fiscal Year, the income and gains of the Company determined in accordance with accounting principles consistently applied from year to year, plus any income described in Section 705(a)(l)(B) of the Code.

(m) “Person” means any individual or Entity, and their heirs, executors, administrators, legal representatives, successors and assigns where the context so permits.

(n) “Units” means the personal property ownership interests in the Company, as designated in accordance with Article VIII of this Agreement, including any and all benefits to which the holder of such personal property ownership interests may be entitled as provided in this Agreement, together with all obligations of such holder to comply with the terms and provisions of this Agreement, including, but not limited to, the rights of the Member in the Distributable Cash, Net Profits, Net Losses and Capital Accounts of the Company with respect to the personal property ownership interests held by the Member.

ARTICLE II

FORMATION OF COMPANY

2.1 Formation. The Company has been organized as a Delaware limited liability company by executing and delivering the Certificate to the Delaware Secretary of State in accordance with and pursuant to the Act.

2.2 Name. The name of the Company is Lancaster Pike Stuart, LLC.

2.3 Principal Place of Business. The Company may locate its place of business at any place or places as the Board of Managers may deem advisable.

2.4 Registered Office and Registered Agent. The Company’s initial registered office shall be 1013 Centre Road, Wilmington, Delaware 19808 and the registered agent at such address shall be Corporation Service Company.

ARTICLE III

BUSINESS OF COMPANY

3.1 Permitted Businesses. The business of the Company shall be to carry on I any other lawful business or activity in connection with the foregoing or otherwise, and to have and exercise all of the powers, rights and privileges which a limited liability company organized pursuant to the Act may have and exercise, subject to any contracts it has entered into.

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ARTICLE IV

NAME AND ADDRESS OF MEMBER

4.1 Name and Address. The name and address of the sole Member is:

Name	Address
Pathmark Stores, Inc.	2 Paragon Drive, Montvale, NJ 07645

4.2 Member Has No Exclusive Duty to Company. The Member shall not be required to own the Company as its sole and exclusive function and it may have other business interests and may engage in other activities in addition to those relating to the Company. The Company shall not have any right, by virtue of this Agreement, to share or participate in other investments or activities of the Member or in the income or proceeds derived therefrom.

ARTICLE V

MANAGEMENT

5.1 Management.

(a) The business and affairs of the Company shall be managed by the Board of Managers. The Board of Managers shall consist of at least one individual. Each person serving on the Board of Managers is referred to herein as a “Manager” and shall, except to the extent otherwise provided herein, have all the powers of a “manager” under the Act. The Board of Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business and objectives. The Board of Managers may contract with or engage any employee of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation, or any of its subsidiaries or Affiliates to do any of the foregoing. Unless authorized to do so by this Agreement, by the Act or by the Board of Managers, no employee, attorney-in fact or other agent shall have any power or authority to bind the Company. The current Board of Managers is comprised of the following three individuals who have been appointed by the Member: Brenda Galgano, William Moss and Allan Richards.

(b) One or more members of the Board of Managers may be removed by the Member at any time, with or without cause. Any Manager may resign at any time by providing written notice to the Member. Such resignation shall be effective upon receipt by the Member or, if later, at the time specified in such written notice of resignation. If one or more seats on the Board of Managers is vacant, or if at any time a vacancy is created for an additional Manager by the Member or if a vacancy arises due to the incapacity, death, removal or resignation of a Manager, then the Member shall fill the new position or designate a replacement for such Manager by a written action of such new election or replacement. The new or replacement Manager shall be deemed to be a Manager and shall have all authority, power and capacity accorded to a Manager of the Company. In addition, subject to the foregoing, in the absence of

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action by the Member in the event of a vacancy on the Board of Managers, the remaining Managers, although less than a quorum, may fill such vacancy by vote of a majority of such remaining Managers. Any temporary vacancy on the Board of Managers shall be filled only for the period of the incapacity, illness or absence of the Manager whose place on the Board of Managers is temporarily vacated.

(c) Meetings of the Board of Managers and any committee thereof shall be held at the principal offices of the Company or at such other place as may be determined by the Board of Managers or such committee. The actions taken by the Board of Managers or any committee at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. A vote of the Board of Managers or any committee may be taken either in a meeting of the Managers thereof or by written consent so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such action at a meeting of the Board of Managers or such committee. A meeting of the Board of Managers or any committee may be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be heard. At least a simple majority of the Managers, present in person or represented by proxy, shall constitute a quorum at all meetings of the Board of Managers.

(d) The Board of Managers hereby appoints the officers of the Company as set forth below. The Board of Managers may delegate such duties to any such officers, employees, agents and consultants as the Board of Managers deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties; provided, however, that the Board of Managers may not delegate any of its duties and obligations under this Agreement and may not delegate any duties that are required to be exercised by the Member under the Act or any duties that a board of directors of a Delaware corporation is required to retain and exercise under the Delaware General Corporation Law. Each officer shall serve as such until the earlier of his or her death, resignation or removal by the Board of Managers, with or without cause.

Name	Officer Position(s)
Christopher McGarry	President
William Moss	Vice President & Treasurer
Michael Gualtieri	Vice President
Allan Richards	Vice President & Secretary
Joan Roensch	Assistant Secretary

(e) President. The President of the Company shall have the responsibility for managing the day-to-day business operations and affairs of the Company and supervising its other officers, subject to the direction, supervision and control of the Board of Managers. In general, the President shall have such other powers and perform such other duties as usually pertain to the office of the President of a corporation under Delaware law, including, without limitation, the authority to appoint and terminate officers of the Company and retain and

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terminate employees of the Company to whom the President may delegate his or her duties; provided, however, the President shall be subject to the power of the Board of Managers at any time or from time to time to withhold authority with respect to any matter or assign specific duties and responsibilities to him or her.

(f) Vice Presidents. The Board of Managers may from time to time appoint one or more Vice Presidents who shall have such powers and duties as may be assigned to him or her by the Managers or the President.

(g) Treasurer. The Treasurer shall have such powers and perform such duties as usually pertain to the office of Treasurer of a corporation under Delaware law. The Treasurer shall have custody of the Company’s funds and securities, shall keep full and accurate account of receipts and disbursements, shall have the authority to open bank accounts for the Company, deposit all monies and valuable effects in the name and to the credit of the Company in such depository or depositories as may be designated by the Board of Managers, and shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(h) Secretary. The Secretary shall keep the minutes of all actions of the Member and the Board of Managers, and shall attend to the giving and service of all notices. The Secretary may sign with the Board of Managers, President or Treasurer all certificates representing Units of the Company, if any, and shall have charge of the transfer books, and other papers as the Board of Managers may direct. The Secretary shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(i) Other Officers. The Board of Managers may from time to time appoint one or more Assistant Treasurer, Assistant Secretary or other officers who shall have such powers and duties as may be assigned to him or her by the Board of Managers or the President.

5.2 Bank Accounts. The Treasurer may, from time to time, authorize the opening of bank accounts in the name and on behalf of the Company. The Board of Managers shall determine who shall have the signatory power over such accounts; provided, the Treasurer shall have such signatory authority.

ARTICLE VI

STANDARD OF CARE AND

INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS

6.1 Standard of Care. Neither the Member nor the Board of Managers nor any officer shall be liable to the Company by reason of its or his actions in the conduct of the business of the Company except for fraud, gross negligence or willful misconduct.

6.2 Indemnification of Member, Board of Managers and Officers. The Company shall, to the fullest extent to which it is empowered to do so by the Act or any other applicable law, indemnify and make advances for expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that it, he or she is or was a Member, Manager, agent, officer, employee or other Person authorized by the Member or the Board of Managers to act on behalf of the Company against losses, damages, expenses (including attorneys fees), judgments, fines and amounts reasonably incurred by it, him or her in connection with such action, suit or proceeding.

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ARTICLE VII

RIGHTS AND OBLIGATIONS OF MEMBER

7.1 Limitation of Liability. The Member will not be personally liable to creditors of the Company for any debts, obligations, liabilities or losses of the Company, whether arising in contract, tort or otherwise, beyond the Member’s Capital Contributions.

7.2 Resignation. The Member may not voluntarily resign as a member of the Company without the appointment of a successor member or members.

ARTICLE VIII

CAPITAL STRUCTURE

8.1 Authorized Units. The Member’s membership interest in the Company shall be designated in Units. The Company is authorized to issue one class of Units designated as Common Units. The total number of Common Units which the Company is authorized to issue is 100 Units. The Member may increase the number of authorized Units and create additional classes and/or series of Units. In the event that the authorized number of Units available for issuance is increased pursuant to this Section 8.1, the Member shall indicate the total number of Units available for issuance with respect to any then existing class and/or series and any new class and/or series after giving effect to such approved increase.

8.2 Certificates Evidencing Units. The Company may, but is not obligated to, issue to the Member certificates specifying the Units of the Member. If a certificate for registered Units is issued and is lost or damaged, it may be replaced on production of the damaged certificate or on satisfactory proof of its loss together with such indemnity, if any, as may be required by the Company.

ARTICLE IX

CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

9.1 Initial Capital Contribution. The Member shall contribute such amount as it determines, in its sole discretion, to contribute.

9.2 Additional Capital Contributions. The Member shall not be required to make any additional Capital Contributions.

9.3 Capital Account. Except as otherwise required in the Act (and subject to Sections 9.1 and 9.2), the Member shall not have any liability to restore all or any portion of a deficit balance in the Member’s Capital Account.

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ARTICLE X

FINANCIAL MATTERS

10.1 Financial Reports. The Board of Managers may cause independent certified public accountants from time to time to be retained by the Company and to prepare (a) as of the end of each Fiscal Year of the Company, (b) as of the date of dissolution of the Company and (c) as of such additional dates as the Board of Managers or Treasurer may direct, in accordance with standard federal tax accounting principles consistently applied, appropriate unaudited financial statements showing the assets, liabilities, capital, profits, expenses, losses and recovered and unrecovered capital expenditures of the Company and a statement showing all amounts credited or debited to the Member’s Capital Account.

10.2 Fiscal Year. The Fiscal Year of the Company shall be fixed by the Board of Managers by resolution duly adopted, and, from time to time, by resolution duly adopted the Board of Managers may alter such fiscal year.

ARTICLE XI

ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS

11.1 Allocations of Net Profits and Net Losses and Distribution. The Net Profits and Net Losses of the Company shall be allocated and Distributable Cash shall be distributed as follows:

Member	Percentage
Pathmark Stores, Inc.		100	%

Distributions of Distributable Cash shall be made by the Company to the Member at such times and in such amounts as the Board of Managers shall determine; provided, however, that cash distributions shall be made to the Member in order for the Member to pay any required federal, state or local taxes incurred as a result of the Net Profits allocated to the Member.

11.2 Loans to Company. Nothing in this Agreement shall prevent the Member from making secured or unsecured loans to the Company by agreement with the Company.

11.3 Records and Reports. At the expense of the Company, the Member, the Board of Managers and the officers shall maintain records and accounts of all operations and expenditures of the Company.

11.4 Returns and Other Elections. The Board of Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and if other tax returns deemed necessary and required in each jurisdiction in which the Company does business. All elections permitted to be made by the Company under federal or state laws shall be made by the Board of Managers in its sole discretion.

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ARTICLE XII

TRANSFER OF UNITS

12.1 Permitted Transfers. The Member shall be entitled to make a permitted transfer of all or any portion of its interests in the Company only upon satisfaction of each of the following conditions:

(a) such transfer does not require the registration or qualification of such interests pursuant to any applicable federal or state securities laws, rules and regulations; and

(b) such transfer does not result in a violation of applicable laws, rules and regulations.

ARTICLE XIII

DISSOLUTION AND TERMINATION

13.1 Dissolution.

(a) The Company shall be dissolved upon the occurrence of any of the following events:

(i) by written notice of the Member;

(ii) upon the bankruptcy or insolvency of the Member or occurrence of any other event which terminates the continued membership of the Member in the Company other than by transfer of all of the Member’s Units to another Person; or

(iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

(b) Dissolution of the Company shall be effective on the day on which an event occurs under Section 13.1 (a), but the Company shall not terminate until a certificate of cancellation shall be filed with the Secretary of State of Delaware and the assets of the Company are distributed as provided in Section 13.2 below. Notwithstanding the dissolution of the Company, prior to the termination of the Company, the business of the Company shall continue to be governed by this Agreement.

13.2 Certificate of Cancellation. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Member, a certificate of cancellation shall be executed by one or more authorized persons, which certificate shall set forth the information required by the Act. A certificate of cancellation shall be filed with the Delaware Secretary of State to accomplish the cancellation of the Certificate of the Company upon the dissolution and completion of the winding up of the Company.

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ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Notices. Any notice, demand or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been given when actually received. Any such notice, demand or communication may be given by mail, overnight courier, facsimile or electronic mail and shall be addressed to the Member at the address shown in Article IV, and/or to the Company and the Board of Managers at the principal office of the Company or to such other address as a party may from time to time designate by notice to the other parties.

14.2 Applicable Law. This Agreement, and the application of interpretation hereof, shall be subject to and is governed exclusively by its terms and by the laws of Delaware, and specifically the Act and the Certificate. In the event of a direct conflict between the provisions of the Act or the provisions of the Certificate, such provisions of the Act or the Certificate, as the case may be, will be controlling.

14.3 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.

14.4 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof.

14.5 Waivers. The failure of any party to redress any violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

14.6 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

14.7 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

14.8 Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns.

14.9 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company.

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IN WITNESS WHEREOF, this Amended and Restated Operating Agreement of Lancaster Pike Stuart, LLC is hereby executed as of the date first written above.

LANCASTER PIKE STUART, LLC
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	PRESIDENT

10

EX-99.T3B.27

Exhibit B-27

BY-LAWS

of

LBRO REALTY, INC.

ARTICLE I - OFFICES

The principal office of the corporation shall be in the Town of Islip of                      County of             Suffolk             State of New York.

The corporation may also have offices at such other places within or without the State of New York as the board may from time to time determine or the business of the corporation may require.

ARTICLE II - SHAREHOLDERS

1. PLACE OF MEETINGS.

Meetings of shareholders shall be held at the principal office of the corporation or at such place within or without the State of New York as the board shall authorize.

2. ANNUAL MEETING.

The annual meeting of the shareholders shall be held on the day of                     at             M. in each year if not a legal holiday, and, if a legal holiday, then on the next business day following at the same hour, when the shareholders shall elect a board and transact such other business as may properly come before the meeting.

3. SPECIAL MEETINGS.

Special meetings of the shareholders may be called by the board or by the president and shall be called by the president or the secretary at the request in writing of a majority of the board or at the request in writing by shareholders owning a majority in amount of the shares issued and outstanding. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at a special meeting shall be confined to the purposes stated in the notice.

4. FIXING RECORD DATE.

For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other

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action, the board shall fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less than ten days before the date of such meeting, nor more than fifty days prior to any other action. If no record date is fixed it shall be determined in accordance with the provisions of law.

5. NOTICE OF MEETINGS OF SHAREHOLDERS.

Written notice of each meeting of shareholders shall state the purpose or purposes for which the meeting is called, the place, date and hour of the meeting and unless it is the annual meeting, shall indicate that it is being issued by or at the direction of the person or persons calling the meeting. Notice shall be given either personally or by mail to each shareholder entitled to vote at such meeting, not less than ten nor more than fifty days before the date of the meeting. If action is proposed to be taken that might entitle shareholders to payment for their shares, the notice shall include a statement of that purpose and to that effect. If mailed, the notice is given when deposited in the United States mail, with postage thereon prepaid, directed to the shareholder at his address as it appears on the record of shareholders, or, if he shall have filed with the secretary a written request that notices to him be mailed to some other address, then directed to him at such other address.

6. WAIVERS.

Notice of meeting need not be given to any shareholder who signs a waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any shareholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him.

7. QUORUM OF SHAREHOLDERS.

Unless the certificate of incorporation provides otherwise, the holders of a majority of the shares entitled to vote thereat shall constitute a quorum at a meeting of shareholders for the transaction of any business, provided that when a specified item of business is required to be voted on by a class or classes, the holders of a majority of the shares of such class or classes shall constitute a quorum for the transaction of such specified item of business.

When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.

The shareholders present may adjourn the meeting despite the absence of a quorum.

By-Laws B

8. PROXIES.

Every shareholder entitled to vote at a meeting of shareholders or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy.

Every proxy must be signed by the shareholder or his attorney-in-fact. No proxy shall be valid after expiration of eleven months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except as otherwise provided by law.

9. QUALIFICATION OF VOTERS,

Every shareholder of record shall be entitled at every meeting of shareholders to one vote for every share standing in his name on the record of shareholders, unless otherwise provided in the certificate of incorporation,

10. VOTE OF SHAREHOLDERS.

Except as otherwise required by statute or by the certificate of incorporation;

(a) directors shall be elected by a plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote in the election;

(b) all other corporate action shall be authorized by a majority of the votes cast.

11. WRITTEN CONSENT OF SHAREHOLDERS.

Any action that may be taken by vote may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all the outstanding shares entitled to vote thereon or signed by such lesser number of holders as may be provided for in the certificate of incorporation.

ARTICLE III - DIRECTORS

1. BOARD OF DIRECTORS.

Subject to any provision in the certificate of incorporation the business of the corporation shall be managed by its board of directors, each of whom shall be at least 18 years of age and                     be shareholders.

2. NUMBER OF DIRECTORS.

The number of directors shall be three (3)                     When all of the shares are owned by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders.

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3. ELECTION AND TERM OF DIRECTORS.

At each annual meeting of shareholders, the shareholders shall elect directors to hold office until the next annual meeting. Each director shall hold office until the expiration of the term for which he is elected and until his successor has been elected and qualified, or until his prior resignation or removal.

4. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.

Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the board for any reason except the removal of directors without cause may be filled by a vote of a majority of the directors then in office, although less than a quorum exists, unless otherwise provided in the certificate of incorporation. Vacancies occurring by reason of the removal of directors without cause shall be filled by vote of the shareholders unless otherwise provided in the certificate of incorporation. A director elected to fill a vacancy caused by resignation, death or removal shall be elected to hold office for the unexpired term of his predecessor.

5. REMOVAL OF DIRECTORS.

Any or all of the directors may be removed for cause by vote of the shareholders or by action of the board. Directors may be removed without cause only by vote of the shareholders.

6. RESIGNATION.

A director may resign at any time by giving written notice to the board, the president or the secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the board or such officer, and the acceptance of the resignation shall not be necessary to make it effective.

7. QUORUM OF DIRECTORS.

Unless otherwise provided in the certificate of incorporation, a majority of the entire board shall constitute a quorum for the transaction of business or of any specified item of business.

8. ACTION OF THE BOARD.

Unless otherwise required by law, the vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the board. Each director present shall have one vote regardless of the number of shares, if any, which he may hold.

By-Laws D

9. PLACE AND TIME OF BOARD MEETINGS.

The board may hold its meetings at the office of the corporation or at such other places, either within or without the State of New York, as it may from time to time determine.

10. REGULAR ANNUAL MEETING.

A regular annual meeting of the board shall be held immediately following the annual meeting of shareholders at the place of such annual meeting of shareholders,

11. NOTICE OF MEETINGS OF THE BOARD, ADJOURNMENT.

(a) Regular meetings of the board may be held without notice at such time and place as it shall from time to time determine. Special meetings of the board shall be held upon notice to the directors and may be called by the president upon three days notice to each director either personally or by mail or by wire; special meetings shall be called by the president or by the secretary in a like manner on written request of two directors. Notice of a meeting need not be given to any director who submits a waiver of notice whether before or after the meeting or who attends the meeting without protesting prior thereto or at its commencement, the lack of notice to him.

(b) A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. Notice of the adjournment shall be given all directors who were absent at the time of the adjournment and, unless such time and place are announced at the meeting, to the other directors.

12. CHAIRMAN.

At all meetings of the board the president, or in his absence, a chairman chosen by the board shall preside.

13. EXECUTIVE AND OTHER COMMITTEES.

The board, by resolution adopted by a majority of the entire board, may designate from among its members an executive committee and other committees, each consisting of three or more directors. Each such committee shall serve at the pleasure of the board.

14. COMPENSATION.

No compensation shall be paid to directors, as such, for their services, but by resolution of the board a fixed sum and expenses for actual attendance, at each regular or special meeting of the board may be authorized. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor.

By-Laws E

ARTICLE IV – OFFICERS

1. OFFICES, ELECTION, TERM.

(a) Unless otherwise provided for in the certificate of incorporation, the board may elect or appoint a president, one or more vice-presidents, a secretary and a treasurer, and such other officers as it may determine, who shall have such duties, powers and functions as hereinafter provided.

(b) All officers shall be elected or appointed to hold office until the meeting of the board following the annual meeting of shareholders.

(c) Each officer shall hold office for the term for which he is elected or appointed and until his successor has been elected or appointed and qualified.

2. REMOVAL, RESIGNATION, SALARY, ETC.

(a) Any officer elected or appointed by the board may be removed by the board with or without cause.

(b) In the event of the death, resignation or removal of an officer, the board in its discretion may elect or appoint a successor to fill the unexpired term.

(c) Any two or more offices may be held by the same person, except the offices of president and secretary.

(d) The salaries of all officers shall be fixed by the board.

(e) The directors may require any officer to give security for the faithful performance of his duties.

3. PRESIDENT.

The president shall be the chief executive officer of the corporation; he shall preside at all meetings of the shareholders and of the board; he shall have the management of the business of the corporation and shall see that all orders and resolutions of the board are carried into effect.

4. VICE-PRESIDENTS.

During the absence or disability of the president, the vice-president, or if there are more than one, the executive vice-president, shall have all the powers and functions of the president. Each vice-president shall perform such other duties as the board shall prescribe.

By-Laws F

5. SECRETARY.

The secretary shall:

(a) attend all meetings of the board and of the shareholders;

(b) record all votes and minutes of all proceedings in a book to be kept for that purpose;

(c) give or cause to be given notice of all meetings of shareholders and of special meetings of the board;

(d) keep in safe custody the seal of the corporation and affix it to any instrument when authorized by the board;

(e) when required, prepare or cause to be prepared and available at each meeting of shareholders a certified list in alphabetical order of the names of shareholders entitled to vote thereat, indicating the number of shares of each respective class held by each;

(f) keep all the documents and records of the corporation as required by law or otherwise in a proper and safe manner.

(g) perform such other duties as may be prescribed by the board.

6. ASSISTANT-SECRETARIES.

During the absence or disability of the secretary, the assistant-secretary, or if there are more than one, the one so designated by the secretary or by the board, shall have all the powers and functions of the secretary. .

7. TREASURER.

The treasurer shall:

(a) have the custody of the corporate funds and securities;

(b) keep full and accurate accounts of receipts and disbursements in the corporate books;

(c) deposit all money and other valuables in the name and to the credit of the corporation in such depositories as may be designated by the board;

(d) disburse the funds of the corporation as may be ordered or authorized by the board and preserve proper vouchers for such disbursements;

(e) render to the president and board at the regular meetings of the board, or whenever they require it, an account of all his transactions as treasurer and of the financial condition of the corporation;

By-Laws G

(f) render a full financial report at the annual meeting of the shareholders if so requested;

(g) be furnished by all corporate officers and agents at his request, with such reports and statements as he may require as to all financial transactions of the corporation;

(h) perform such other duties as are given to him by these by-laws or as from time to time are assigned to him by the board or the president.

8. ASSISTANT-TREASURER.

During the absence or disability of the treasurer, the assistant-treasurer, or if there are more than one, the one so designated by the secretary or by the board, shall have all the powers and functions of the treasurer.

9. SURETIES AND BONDS.

In case the board shall so require, any officer or agent of the corporation shall execute to the corporation a bond in such sum and with such surety or sureties as the board may direct, conditioned upon the faithful performance of his duties to the corporation and including responsibility for negligence and for the accounting for all property, funds or securities of the corporation which may come into his hands.

ARTICLE V – CERTIFICATES FOR SHARES

1. CERTIFICATES.

The shares of the corporation shall be represented by certificates. They shall be numbered and entered in the books of the corporation as they are issued. They shall exhibit the holder’s name and the number of shares and shall be signed by the president or a vice-president and the treasurer or the secretary and shall bear the corporate seal.

2. LOST OR DESTROYED CERTIFICATES.

The board may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation, alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the corporation a bond in such sum and with such surety or sureties as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed.

By-Laws H

3. TRANSFERS OF SHARES.

(a) Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office. No transfer shall be made within ten days next preceding the annual meeting of shareholders.

(b) The corporation shall be entitled to treat the holder of record of any share as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of New York.

4. CLOSING TRANSFER BOOKS.

The board shall have the power to close the share transfer books of the corporation for a period of not more than ten days during the thirty day period immediately preceding (1) any shareholders’ meeting, or (2) any date upon which shareholders shall be called upon to or have a right to take action without a meeting, or (3) any date fixed for the payment of a dividend or any other form of distribution, and only those shareholders of record at the time the transfer books are closed, shall be recognized as such for the purpose of (1) receiving notice of or voting at such meeting, or (2) allowing them to take appropriate action, or (3) entitling them to receive any dividend or other form of distribution.

ARTICLE VI – DIVIDENDS

Subject to the provisions of the certificate of incorporation and to applicable law, dividends on the outstanding shares of the corporation may be declared in such amounts and at such time or times as the board may determine. Before payment of any dividend, there may be set aside out of the net profits of the corporation available for dividends such sum or sums as the board from time to time in its absolute discretion deems proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the board shall think conducive to the interests of the corporation, and the board may modify or abolish any such reserve.

By-Laws I

ARTICLE VII – CORPORATE SEAL

The seal of the corporation shall be circular in form and bear the name of the corporation the year of its organization and the words “Corporate Seal, New York.” The seal may be used by causing it to be impressed directly on the instrument or writing to be sealed, or upon adhesive substance affixed thereto. The seal on the certificates for shares or on any corporate obligation for the payment of money may be a facsimile, engraved or printed.

ARTICLE VIII – EXECUTION OF INSTRUMENTS

All corporate instruments and documents shall be signed or countersigned, executed, verified or acknowledged by such officer or officers or other person or persons as the board may from time to time designate.

ARTICLE IX – FISCAL YEAR

The fiscal year shall begin the first day of                     in each year.

ARTICLE X – REFERENCES TO CERTIFICATE OF INCORPORATION

Reference to the certificate of incorporation in these by-laws shall include all amendments thereto or changes thereof unless specifically excepted.

ARTICLE XI – BY-LAW CHANGES

AMENDMENT, REPEAL, ADOPTION, ELECTION OF DIRECTORS.

(a) Except as otherwise provided in the certificate of incorporation the by-laws may be amended, repealed or adopted by vote of the holders of the shares at the time entitled to vote in the election of any directors. By-laws may also be amended, repealed or adopted by the board but any by-law adopted by the board may be amended by the shareholders entitled to vote thereon as hereinabove provided.

(b) If any by-law regulating an impending election of directors is adopted, amended or repealed by the board, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the by-law so adopted, amended or repealed, together with a concise statement of the changes made.

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EX-99.T3B.28

Exhibit B-28

BYLAWS OF TAP, INCORPORATED

ARTICLE I.

The name of this corporation is; Tap, Incorporated, with its principal office in Dallas, Dallas County, Texas.

ARTICLE II.

Shareholders and Meetings

1. Shareholders are those whose names appear on the books of the company as holders of one (1) or more shares of the capital stock.

2. Meetings of the shareholders shall be held at the registered office of the corporation, or at such other place as may be designated within the State of Texas by the president or in the notice of such meeting.

3. The annual meeting of the shareholders shall be held on the last Friday in December of each year at the principal office of the company, or at such other place as may be designated by the president within the State of Texas for the election of the Board of Directors for the ensuing year, and all other proper business that may come before the meeting. In the event the Board of Directors fails to call the annual meeting at the designated time, any shareholder may make demand that such meeting be held within a reasonable time, such demand to be made in writing by Registered Mail and directed to any officer of the corporation.

4. Special meetings of the shareholders may be called by the president, the Board of Directors, the holders of not less than one-tenth (1/10) of all the shares entitled to vote at the meetings, or by such other officers as the Board of Directors may specify by resolution.

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5. Notice. Written or printed notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, or at the direction of the president, the secretary, or the officer or person calling the meeting, to each shareholder of record entitled to vote such meeting, unless such notice is waived in writing by the stockholder involved. If the aforesaid notice is mailed, it shall be deemed delivered when deposited in the U.S. Mail addressed to the shareholder at his address and it appears on the stock transfer books of the corporation, with postage thereon pre-paid. The stockholders may all execute a written waiver at any time and hold any meeting forthwith. A waiver of any notice required by these bylaws or bylaws in writing signed by the person or persons entitled to such notice whether before or after the time stated therein, shall be equivalent to the giving of such notice.

6. Closing of transfer books and fixing record date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or any adjournment thereof, are entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of Directors may provide that the stock transfer book shall be closed for a stated period but not to exceed, in any case, fifty (50) days. When closed for the purposes of determining shareholders, entitled to notice of or to vote at a meeting of shareholder, such books shall be closed for at least ten (10) days immediately preceding said meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date an the record

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date for any such determination of shareholders, such date in any case to be not more than fifty (50) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. In the event the stock transfer books are not closed and no record date is fixed by the Board of Directors for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed, or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders.

7. Quorum. The holders of a majority of shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the shareholders but in no event shall a quorum consist of the holders of less than one-third (1/3) of the shares entitled to vote and thus represented in such meeting. Any meeting may be adjourned.

8. Voting. Voting shall be by a majority of the outstanding voting stock represented in person or by proxy, with only those appearing as shareholders on the records of the company as specified above being entitled to vote.

ARTICLE III.

Directors

1. The management of the affairs of a company shall be in the hands of the Board of Directors, and such officers and agents as they may employ.

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2. The Board of Directors shall not be less than three (3) nor more than five (5) in number, the number to be determined by the shareholders from time to time. Said directors shall be elected each year at the annual meeting of the shareholders and hold office until re-election of their successors, or until the next succeeding annual meeting of the shareholders. The number of directors may be increased or decreased from time to time by an amendment to the bylaws, but no decrease shall have the effect of shortening the term of any incumbent director. A director may resign at any time, or be removed by action of the shareholders at a special or annual meeting. The removal of a director may be with or without cause. A director shall not be required to be a stockholder.

3. Vacancies. Any vacancies occurring on the Board of Directors may be filled by the affirmative vote of the majority of the remaining directors no less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting, or at a special meeting of shareholders called for that purpose. The quorum shall be a majority of the directors holding office.

4. The Board of Directors shall as soon after their annual election as conveniently possible, elect from their number, a president, vice president, and secretary-treasurer, all of whom shall hold office for one (1) year and until others are chosen and qualified in their stead, and may elect such other officers as deemed appropriate.

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5. Executive committee of the Board. The Board of Directors, by a resolution adopted by a majority of the number of the directors elected and serving may designate two (2) or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors in the business and affairs of the corporation, except where action of the Board of Directors is specified in the Texas Business Corporation Act or other laws, but the designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law.

6. Place and notice of directors’ meeting. The Board of Directors shall hold its annual meeting on the last Friday in December of each year immediately following the meeting of the shareholders at the same place as said shareholders’ meeting. Other meetings of the Board of Directors, regular or special, may be held either within or without the State of Texas. Regular meetings of the Board of Directors may be held with or without notice, and special meetings of the Board may be held upon twenty-four (24) hour notice either in writing or oral notice. Notice of such special meeting may be waived by any director and attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where the director attends a meeting for express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice for such meeting.

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7. Indemnification of any director or officer. The corporation by appropriate resolution of its Board of Directors ratified by the shareholders at the annual meeting, or special meeting called for such purpose, shall have the power to indemnify any director or officer, or former director or officer, of the corporation, or any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock of which it is a creditor, against expenses actually and necessarily incurred in connection with the defense of any action, suit or proceeding which he is made a party by reason of being or having been such officer or director, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in performance of duty, but such indemnification shall not be deemed exclusive of any other rights to which such director or officer may be entitled, under any bylaw, agreement, vote of shareholders, or otherwise.

8. [NEW; 12/4/75 Mins.]

ARTICLE IV.

Dividends

The Board of Directors of a corporation may, from time to time, declare, and the corporation may pay, dividends on its outstanding shares in cash, property, or in its own shares, except when the corporation is insolvent or when the payment thereof would render the corporation insolvent or when the declaration or payment thereof would be contrary to any restrictions contained in the Articles of Incorporation, subject to the following provisions:

(a) Dividends may be declared and paid in cash or property only out of the unreserved and unrestricted earned surplus of the corporation, except as otherwise provided in the Texas Business Corporation Act.

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(b) Dividends may be declared and paid in the shares of the corporation out of any treasury shares that have been reacquired out of surplus of the corporation.

(c) Dividends may be declared and paid and be authorized, but unissued shares of the corporation at an unrestricted surplus of the corporation upon the following conditions:

(1) If a dividend is payable in its own shares having a par value, such shares shall be issued at the par value thereof and there shall be transferred to state capital at the time such dividend is paid an amount of surplus equal to aggregate par value of the shares to be issued as a dividend.

(2) And the dividend is payable in its own shares without par value, such shares, shall be issued at such value as shall be fixed by the Board of Directors by resolution adopted at the time such dividend is declared, and there shall be transferred to state capital such dividend is paid an amount of surplus equal to the aggregate value so fixed in respect of such shares; and the amount per share so transferred to state capital shall be disclosed to the shareholders receiving such dividend concurrently with payment thereof.

(d) The Board of Directors must, when requested by the holders of at least one-third of the outstanding shares of the corporation, present written report of the situation and amount of business of the corporation and subject to limitation on the authority of the Board of Directors by provisions of law, or the Articles of Incorporation or of these Bylaws, the Board shall declare and provide for payment of such dividends of the profits from the business of the corporation as such Board shall deem expedient.

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ARTICLE V.

OFFICES: The Corporation shall have a:

President. The president shall preside over all means of the directors and stockholders and shall have a general management and supervision of the affairs of the company unless otherwise directed by the directors in the absence of the president.

Vice President. The vice president shall perform such duties as may be assigned to him by the Board of Directors or by the president.

Secretary-Treasurer. The secretary-treasurer shall keep the minutes of the meetings of the proceedings of the corporation shareholders and the Board of Directors, and shall keep at the registered office or principal place of business, or at the office of the company’s transfer agent or register, a record of the shareholders, giving the names and addresses of all shareholders, and the number of classes of shares held by each. He has custody of the sale of the corporation and shall have charge of all books, contracts and documents belonging to the corporation, except those that shall be in charge of some other person authorized to have custody and possession thereof by reason of the Board of Directors. He countersigns stock certificates and attests contracts. He shall cancel and preserve certificates of stock on transfer. He shall perform such other duties as may be assigned him by the Board of Directors.

The secretary-treasurer shall have custody of and be responsible for the monies and funds of the corporation assigned to him, and shall keep books of account as the Directors may direct and perform such other duties that may be assigned him by the Board of Directors.

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Other Officers. Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Directors.

One Person May Hold More Than One Office. Any two or more offices may be held by the same person, except that the president, and secretary shall not be the same person.

Removal of officers. Any officer or agent or member of the Executive Committee elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not in itself create contract rights.

Vacancies. The Board of Directors may fill any vacancies of officers at its annual meeting of the Board, or any special meeting called for such purpose.

Compensation. The compensation of officers and agents shall be fixed from time to time by the Board of Directors.

ARTICLE VI.

Certificates of Stock. Certificates of Stock of the corporation shall be in such form as the Board of Directors may from time to time determine, consistent with the Articles of Incorporation of this corporation. These certificates shall be signed by the president, or the vice president, and countersigned and attested by the Secretary-Treasurer or his assistant, with the corporate seal affixed thereto.

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All certificates shall be consecutively numbered. The name of the person owing the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the company’s books.

Cancellation. All certificates surrendered to the company shall be cancelled and no new certificates shall be issued until the form of certificate for the same number of shares of the same class shall have been surrendered and cancelled.

Transfer. Shares in the capital stock of the company shall be transferred only on the books of the company by the holder thereof in person, or by his attorney, upon surrender and cancellation for a certificate for a like number of chares. The certificates of stock may be transferred, sold, assigned or pledged and an endorsement to the proper effect in writing on the back of the certificate, and the delivery of such certificate by the transferor to the transferee, provided that until notice is given of such transfer to the secretary of the company and the surrender of the certificate of stock for cancellation, and the issue of a new certificate in lieu of that surrender, this corporation shall regard and treat the transferor as being still the owner of the stock. No new certificates of stock shall be issued until the company has furnished all federal and state taxes required by law then in existence for the transfer of stock, and such other legal requirements and documents as may be necessary in the opinion of the company’s counsel.

All surrendered certificates shall be marked “cancelled” with the date of cancellation by the secretary, and shall be immediately posted in the stock book opposite the memorandum stub of the issue thereof.

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Duplicate Certificates. A duplicate certificate of stock may be issued for such certificate as may have been lost or destroyed upon the applicant’s furnishing affidavit that he is the owner of said certificate, that the same has been lost or destroyed, together with a bond of indemnity in the amount satisfactory to the company, and with a surety or sureties satisfactory to the company, conditioned upon the payment of all losses and expenses to which the company may be put by virtue of issuing said duplicate certificate. The company may require a surety company on said bond or indemnity. The Board of Directors shall have power and authority to make any additional rules and regulations as they respectively may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the company.

Treasury of Unissued Shares. The corporation may issue and sell any of its treasury or unissued shares to its officers or employees or to the officers or employees of any subsidiary corporation, without first offering such shares to its shareholders, for such consideration, fixed as provided by law, and upon such terms and conditions as shall be approved by the holders of two-thirds of all shares entitled to vote thereon, or by its Board of Directors pursuant to lack of approval by the shareholders.

ARTICLE VII.

Corporate Seal. The Board of Directors shall provide a suitable seal containing the name of the company, which seal shall be in charge of the secretary.

ARTICLE VIII.

Cumulative Voting Prohibited. Cumulative voting in the election of directors by stockholders giving one candidate as many votes as the number of such directors multiplied by the number of such shareholders’ shares shall equal, or by such stockholders contributing such votes on the same principal among any number of such candidates is expressly prohibited.

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ARTICLE IX.

Creation of Reserves. The corporation may, by resolution of its Board of Directors, create a reserve or reserves out of its earned surplus for any purpose or purposes, and may abolish any such reserve in the same manner. Earned surplus of the corporation to the extent so reserved shall not be available for the payment of dividends or other distributions by the corporation, except as expressly permitted by law.

ARTICLE X.

Amendment of Bylaws. The Bylaws of the corporation may be altered, amended, modified, added to or repealed by a vote of the stockholders holding a majority of the stock of the company, present, in person, or by proxy at the annual or any special meeting of the stockholders of the company, provided that notice of the proposed amendment or changes in the Bylaws is given to each stockholder in advance of any special meeting, or such notice is waived by such stockholders .

ARTICLE XI.

Miscellaneous.

Fiscal Year. The fiscal year of the corporation shall begin on the first day following the last Saturday of February of each year and end on the last Saturday of February of the following year.

Checks. All checks and demands for money and notes of the corporation shall be signed by such officer or officers, or such other person or persons as the Board of Directors may from time to time designate.

Bylaws Invalid. If any part of these Bylaws shall be held invalid or inoperative for any reason, the remaining parts, so far as possible and reasonable, shall be valid and operative.

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WAIVER OF NOTICE OF ORGANIZATION MEETING OF

THE DIRECTORS OF TAP, INCORPORATED

We, the undersigned, who constitute all the Directors of TAP, INCORPORATED, named in the Articles of Incorporation, filed the 11th day of March, 1966, with the Secretary of State of the State of Texas, and duly incorporated under the laws of the State of Texas, hereby acknowledge that we received at least three (3) days notice of the call of said organization meeting by the incorporators of said corporation, to be held on the 6^th day of May, 1966, in the offices of the company at 2301 North Field Street, Dallas, Texas, at 2:00 P.M., as the time and place of the holding of said organization meeting of the Board of Directors, and we do hereby jointly and severally waive any further notice thereof and agree to said time and place and consent to the transaction thereat of any and all business that may come before said meeting, including the adopting of By-Laws the election of officers, the adoption of the form of stock certificates, and the issuance of capital stock of the corporation on subscription received, and any other business that may be deemed necessary or advisable to consider and pass upon at said meeting.

We further waive all requirements of the Statutes of the State of Texas, and any and all requirements both as to notice and publication thereof and consent that said meeting may be held forthwith at 2:00 P.M., on the 6^th day of May, 1966, at the time and place set forth above.

WITNESS OUR HANDS this 6^th day of May, 1966.

EX-99.T3B.29

Exhibit B-29

AMENDED AND RESTATED

OPERATING AGREEMENT

MACDADE BOULEVARD STUART, LLC

July 30, 2009

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
ARTICLE II FORMATION OF COMPANY			2
2.1	Formation		2
2.2	Name		2
2.3	Principal Place of Business		2
2.4	Registered Office and Registered Agent		2
ARTICLE III BUSINESS OF COMPANY			2
3.1	Permitted Businesses		2
ARTICLE IV NAME AND ADDRESS OF MEMBER			3
4.1	Name and Address		3
4.2	Member Has No Exclusive Duty to Company		3
ARTICLE V MANAGEMENT			3
5.1	Management		3
5.2	Bank Accounts		5
ARTICLE VI STANDARD OF CARE AND INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS			5
6.1	Standard of Care		5
6.2	Indemnification of Member, Board of Managers and Officers		5
ARTICLE VII RIGHTS AND OBLIGATIONS OF MEMBER			6
7.1	Limitation of Liability		6
7.2	Resignation		6
ARTICLE VIII CAPITAL STRUCTURE			6
8.1	Authorized Units		6
8.2	Certificates Evidencing Units		6
ARTICLE IX CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS			6
9.1	Initial Capital Contribution		6
9.2	Additional Capital Contributions		6
9.3	Capital Account		6
ARTICLE X FINANCIAL MATTERS			7
10.1	Financial Reports		7
10.2	Fiscal Year		7
ARTICLE XI ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS			7
11.1	Allocations of Net Profits and Net Losses and Distribution		7
11.2	Loans to Company		7
11.3	Records and Reports		7
11.4	Returns and Other Elections		7
ARTICLE XII TRANSFER OF UNITS			8
12.1	Permitted Transfers		8
ARTICLE XIII DISSOLUTION AND TERMINATION			8
13.1	Dissolution		8
13.2	Certificate of Cancellation		8
ARTICLE XIV MISCELLANEOUS PROVISIONS			9
14.1	Notices		9

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14.2	Applicable Law	9
14.3	Construction	9
14.4	Headings	9
14.5	Waivers	9
14.6	Rights and Remedies Cumulative	9
14.7	Severability	9
14.8	Successors and Assigns	9
14.9	Creditors	9

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AMENDED AND RESTATED

OPERATING AGREEMENT

OF

MACDADE BOULEVARD STUART, LLC

This Amended and Restated Operating Agreement, dated July 30, 2009, is entered into by Pathmark Stores, Inc., a Delaware corporation, as the sole member (the “Member”) of MacDade Boulevard Stuart, LLC, a Delaware limited liability company (the “Company”).

ARTICLE I

DEFINITIONS

The following terms used in this Agreement shall have the following meanings:

(a) “Act” means the Delaware Limited Liability Company Act, as the same may be amended from time to time.

(b) “Affiliate” means, with respect to any Person, any other Person, other than an individual, that is directly or indirectly controlling, controlled by or under common control with such Person. For these purposes, “control” (and its correlative meanings) as used with respect to any Person means (i) the power of another Person to exercise, directly or indirectly, more than fifty percent (50%) of the voting power of such Person or (ii) the power to direct or cause the direction, directly or indirectly, of the management and policies of such Person.

(c) “Agreement” means this Amended and Restated Operating Agreement as originally executed and as amended from time to time.

(d) “Board of Managers” means the Person or Persons appointed as managers in accordance with Article V.

(e) “Capital Contribution” means any contribution to the capital of the Company in cash or property by the Member whenever made.

(f) “Certificate” means the Certificate of Formation of the Company as filed by the organizer of the Company with the Secretary of State of Delaware, as the same may be amended from time to time.

(g) “Code” means the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws.

(h) “Distributable Cash” means all cash, revenues and funds received by the Company from Company operations, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii) all cash expenditures incurred in the normal operation of the Company’s business; and (iii) such reserves as the Board of Managers deems necessary for the proper operation of the Company’s business.

(i) “Entity” means any general partnership, limited partnership, corporation, limited liability company, joint venture or association.

(j) “Fiscal Year” means the Company’s fiscal year as described in Article X.

(k) “Net Losses” means, for each Fiscal Year, the losses and deductions of the Company determined in accordance with accounting principles consistently applied from year to year, plus any expenditures described in Section 705(a)(2)(B) of the Code.

(1) “Net Profits” means, for each Fiscal Year, the income and gains of the Company determined in accordance with accounting principles consistently applied from year to year, plus any income described in Section 705(a)(l)(B) of the Code.

(m) “Person” means any individual or Entity, and their heirs, executors, administrators, legal representatives, successors and assigns where the context so permits.

(n) “Units” means the personal property ownership interests in the Company, as designated in accordance with Article VIII of this Agreement, including any and all benefits to which the holder of such personal property ownership interests may be entitled as provided in this Agreement, together with all obligations of such holder to comply with the terms and provisions of this Agreement, including, but not limited to, the rights of the Member in the Distributable Cash, Net Profits, Net Losses and Capital Accounts of the Company with respect to the personal property ownership interests held by the Member.

ARTICLE II

FORMATION OF COMPANY

2.1 Formation. The Company has been organized as a Delaware limited liability company by executing and delivering the Certificate to the Delaware Secretary of State in accordance with and pursuant to the Act.

2.2 Name. The name of the Company is MacDade Boulevard Stuart, LLC.

2.3 Principal Place of Business. The Company may locate its place of business at any place or places as the Board of Managers may deem advisable.

2.4 Registered Office and Registered Agent. The Company’s initial registered office shall be 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808 and the registered agent at such address shall be Corporation Service Company.

ARTICLE III

BUSINESS OF COMPANY

3.1 Permitted Businesses. The business of the Company shall be to carry on any other lawful business or activity in connection with the foregoing or otherwise, and to have and exercise all of the powers, rights and privileges which a limited liability company organized pursuant to the Act may have and exercise, subject to any contracts it has entered into.

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ARTICLE IV

NAME AND ADDRESS OF MEMBER

4.1 Name and Address. The name and address of the sole Member is:

Name	Address
Pathmark Stores, Inc.	2 Paragon Drive, Montvale, NJ 07645

4.2 Member Has No Exclusive Duty to Company. The Member shall not be required to own the Company as its sole and exclusive function and it may have other business interests and may engage in other activities in addition to those relating to the Company. The Company shall not have any right, by virtue of this Agreement, to share or participate in other investments or activities of the Member or in the income or proceeds derived therefrom.

ARTICLE V

MANAGEMENT

5.1 Management.

(a) The business and affairs of the Company shall be managed by the Board of Managers. The Board of Managers shall consist of at least one individual. Each person serving on the Board of Managers is referred to herein as a “Manager” and shall, except to the extent otherwise provided herein, have all the powers of a “manager” under the Act. The Board of Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business and objectives. The Board of Managers may contract with or engage any employee of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation, or any of its subsidiaries or Affiliates to do any of the foregoing. Unless authorized to do so by this Agreement, by the Act or by the Board of Managers, no employee, attorney-in fact or other agent shall have any power or authority to bind the Company. The current Board of Managers is comprised of the following three individuals who have been appointed by the Member: Brenda Galgano, William Moss and Allan Richards.

(b) One or more members of the Board of Managers may be removed by the Member at any time, with or without cause. Any Manager may resign at any time by providing written notice to the Member. Such resignation shall be effective upon receipt by the Member or, if later, at the time specified in such written notice of resignation. If one or more seats on the Board of Managers is vacant, or if at any time a vacancy is created for an additional Manager by the Member or if a vacancy arises due to the incapacity, death, removal or resignation of a Manager, then the Member shall fill the new position or designate a replacement for such Manager by a written action of such new election or replacement. The new or replacement Manager shall be deemed to be a Manager and shall have all authority, power and capacity accorded to a Manager of the Company. In addition, subject to the foregoing, in the absence of

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action by the Member in the event of a vacancy on the Board of Managers, the remaining Managers, although less than a quorum, may fill such vacancy by vote of a majority of such remaining Managers. Any temporary vacancy on the Board of Managers shall be filled only for the period of the incapacity, illness or absence of the Manager whose place on the Board of Managers is temporarily vacated.

(c) Meetings of the Board of Managers and any committee thereof shall be held at the principal offices of the Company or at such other place as may be determined by the Board of Managers or such committee. The actions taken by the Board of Managers or any committee at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. A vote of the Board of Managers or any committee may be taken either in a meeting of the Managers thereof or by written consent so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such action at a meeting of the Board of Managers or such committee. A meeting of the Board of Managers or any committee may be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be heard. At least a simple majority of the Managers, present in person or represented by proxy, shall constitute a quorum at all meetings of the Board of Managers.

(d) The Board of Managers hereby appoints the officers of the Company as set forth below. The Board of Managers may delegate such duties to any such officers, employees, agents and consultants as the Board of Managers deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties; provided, however, that the Board of Managers may not delegate any of its duties and obligations under this Agreement and may not delegate any duties that are required to be exercised by the Member under the Act or any duties that a board of directors of a Delaware corporation is required to retain and exercise under the Delaware General Corporation Law. Each officer shall serve as such until the earlier of his or her death, resignation or removal by the Board of Managers, with or without cause.

Name	Officer Position(s)
Christopher McGarry	President
William Moss	Vice President & Treasurer
Michael Gualtieri	Vice President
Allan Richards	Vice President & Secretary
Joan Roensch	Assistant Secretary

(e) President. The President of the Company shall have the responsibility for managing the day-to-day business operations and affairs of the Company and supervising its other officers, subject to the direction, supervision and control of the Board of Managers. In general, the President shall have such other powers and perform such other duties as usually pertain to the office of the President of a corporation under Delaware law, including, without limitation, the authority to appoint and terminate officers of the Company and retain and

4

terminate employees of the Company to whom the President may delegate his or her duties; provided, however, the President shall be subject to the power of the Board of Managers at any time or from time to time to withhold authority with respect to any matter or assign specific duties and responsibilities to him or her.

(f) Vice Presidents. The Board of Managers may from time to time appoint one or more Vice Presidents who shall have such powers and duties as may be assigned to him or her by the Managers or the President.

(g) Treasurer. The Treasurer shall have such powers and perform such duties as usually pertain to the office of Treasurer of a corporation under Delaware law. The Treasurer shall have custody of the Company’s funds and securities, shall keep full and accurate account of receipts and disbursements, shall have the authority to open bank accounts for the Company, deposit all monies and valuable effects in the name and to the credit of the Company in such depository or depositories as may be designated by the Board of Managers, and shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(h) Secretary. The Secretary shall keep the minutes of all actions of the Member and the Board of Managers, and shall attend to the giving and service of all notices. The Secretary may sign with the Board of Managers, President or Treasurer all certificates representing Units of the Company, if any, and shall have charge of the transfer books, and other papers as the Board of Managers may direct. The Secretary shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(i) Other Officers. The Board of Managers may from time to time appoint one or more Assistant Treasurer, Assistant Secretary or other officers who shall have such powers and duties as may be assigned to him or her by the Board of Managers or the President.

5.2 Bank Accounts. The Treasurer may, from time to time, authorize the opening of bank accounts in the name and on behalf of the Company. The Board of Managers shall determine who shall have the signatory power over such accounts; provided, the Treasurer shall have such signatory authority.

ARTICLE VI

STANDARD OF CARE AND

INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS

6.1 Standard of Care. Neither the Member nor the Board of Managers nor any officer shall be liable to the Company by reason of its or his actions in the conduct of the business of the Company except for fraud, gross negligence or willful misconduct.

6.2 Indemnification of Member, Board of Managers and Officers. The Company shall, to the fullest extent to which it is empowered to do so by the Act or any other applicable law, indemnify and make advances for expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that it, he or she is or was a Member, Manager, agent, officer, employee or other Person authorized by the Member or the Board of Managers to act on behalf of the Company against losses, damages, expenses (including attorneys fees), judgments, fines and amounts reasonably incurred by it, him or her in connection with such action, suit or proceeding.

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ARTICLE VII

RIGHTS AND OBLIGATIONS OF MEMBER

7.1 Limitation of Liability. The Member will not be personally liable to creditors of the Company for any debts, obligations, liabilities or losses of the Company, whether arising in contract, tort or otherwise, beyond the Member’s Capital Contributions.

7.2 Resignation. The Member may not voluntarily resign as a member of the Company without the appointment of a successor member or members.

ARTICLE VIII

CAPITAL STRUCTURE

8.1 Authorized Units. The Member’s membership interest in the Company shall be designated in Units. The Company is authorized to issue one class of Units designated as Common Units. The total number of Common Units which the Company is authorized to issue is 100 Units. The Member may increase the number of authorized Units and create additional classes and/or series of Units. In the event that the authorized number of Units available for issuance is increased pursuant to this Section 8.1, the Member shall indicate the total number of Units available for issuance with respect to any then existing class and/or series and any new class and/or series after giving effect to such approved increase.

8.2 Certificates Evidencing Units. The Company may, but is not obligated to, issue to the Member certificates specifying the Units of the Member. If a certificate for registered Units is issued and is lost or damaged, it may be replaced on production of the damaged certificate or on satisfactory proof of its loss together with such indemnity, if any, as may be required by the Company.

ARTICLE IX

CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

9.1 Initial Capital Contribution. The Member shall contribute such amount as it determines, in its sole discretion, to contribute.

9.2 Additional Capital Contributions. The Member shall not be required to make any additional Capital Contributions.

9.3 Capital Account. Except as otherwise required in the Act (and subject to Sections 9.1 and 9.2), the Member shall not have any liability to restore all or any portion of a deficit balance in the Member’s Capital Account.

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ARTICLE X

FINANCIAL MATTERS

10.1 Financial Reports. The Board of Managers may cause independent certified public accountants from time to time to be retained by the Company and to prepare (a) as of the end of each Fiscal Year of the Company, (b) as of the date of dissolution of the Company and (c) as of such additional dates as the Board of Managers or Treasurer may direct, in accordance with standard federal tax accounting principles consistently applied, appropriate unaudited financial statements showing the assets, liabilities, capital, profits, expenses, losses and recovered and unrecovered capital expenditures of the Company and a statement showing all amounts credited or debited to the Member’s Capital Account.

10.2 Fiscal Year. The Fiscal Year of the Company shall be fixed by the Board of Managers by resolution duly adopted, and, from time to time, by resolution duly adopted the Board of Managers may alter such fiscal year.

ARTICLE XI

ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS

11.1 Allocations of Net Profits and Net Losses and Distribution. The Net Profits and Net Losses of the Company shall be allocated and Distributable Cash shall be distributed as follows:

Member	Percentage
Pathmark Stores, Inc.		100	%

Distributions of Distributable Cash shall be made by the Company to the Member at such times and in such amounts as the Board of Managers shall determine; provided, however, that cash distributions shall be made to the Member in order for the Member to pay any required federal, state or local taxes incurred as a result of the Net Profits allocated to the Member.

11.2 Loans to Company. Nothing in this Agreement shall prevent the Member from making secured or unsecured loans to the Company by agreement with the Company.

11.3 Records and Reports. At the expense of the Company, the Member, the Board of Managers and the officers shall maintain records and accounts of all operations and expenditures of the Company.

11.4 Returns and Other Elections. The Board of Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and if other tax returns deemed necessary and required in each jurisdiction in which the Company does business. All elections permitted to be made by the Company under federal or state laws shall be made by the Board of Managers in its sole discretion.

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ARTICLE XII

TRANSFER OF UNITS

12.1 Permitted Transfers. The Member shall be entitled to make a permitted transfer of all or any portion of its interests in the Company only upon satisfaction of each of the following conditions:

(a) such transfer does not require the registration or qualification of such interests pursuant to any applicable federal or state securities laws, rules and regulations; and

(b) such transfer does not result in a violation of applicable laws, rules and regulations.

ARTICLE XIII

DISSOLUTION AND TERMINATION

13.1 Dissolution.

(a) The Company shall be dissolved upon the occurrence of any of the following events:

(i) by written notice of the Member;

(ii) upon the bankruptcy or insolvency of the Member or occurrence of any other event which terminates the continued membership of the Member in the Company other than by transfer of all of the Member’s Units to another Person; or

(iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

(b) Dissolution of the Company shall be effective on the day on which an event occurs under Section 13.1 (a), but the Company shall not terminate until a certificate of cancellation shall be filed with the Secretary of State of Delaware and the assets of the Company are distributed as provided in Section 13.2 below. Notwithstanding the dissolution of the Company, prior to the termination of the Company, the business of the Company shall continue to be governed by this Agreement.

13.2 Certificate of Cancellation. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Member, a certificate of cancellation shall be executed by one or more authorized persons, which certificate shall set forth the information required by the Act. A certificate of cancellation shall be filed with the Delaware Secretary of State to accomplish the cancellation of the Certificate of the Company upon the dissolution and completion of the winding up of the Company.

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ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Notices. Any notice, demand or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been given when actually received. Any such notice, demand or communication may be given by mail, overnight courier, facsimile or electronic mail and shall be addressed to the Member at the address shown in Article IV, and/or to the Company and the Board of Managers at the principal office of the Company or to such other address as a party may from time to time designate by notice to the other parties.

14.2 Applicable Law. This Agreement, and the application of interpretation hereof, shall be subject to and is governed exclusively by its terms and by the laws of Delaware, and specifically the Act and the Certificate. In the event of a direct conflict between the provisions of the Act or the provisions of the Certificate, such provisions of the Act or the Certificate, as the case may be, will be controlling.

14.3 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.

14.4 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof.

14.5 Waivers. The failure of any party to redress any violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

14.6 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

14.7 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

14.8 Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns.

14.9 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company.

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IN WITNESS WHEREOF, this Amended and Restated Operating Agreement of MacDade Boulevard Stuart, LLC is hereby executed as of the date first written above.

MACDADE BOULEVARD STUART, LLC
By:
Name:	Christopher McGarry
Title:	President

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EX-99.T3B.30

Exhibit B-30

BY-LAWS

OF

McLEAN AVENUE PLAZA CORP.

ARTICLE I

Shareholders

1.1 Annual Meetings. The annual meeting of shareholders of the Corporation, for the election of directors for the ensuing year and for the transaction of such other business as may properly be brought before the meeting, shall be held on such business day in each year as the Board of Directors shall from time to time determine.

1.2 Special Meetings. A special meeting of shareholders, unless otherwise provided by law, may be called at any time by the Board of Directors, the Chairman of the Board (if one or more is elected), or the President and shall be called by the Chairman of the Board (if one or more is elected), the President, a Vice President or the Secretary upon the written request of a majority of the directors or of shareholders holding of records in the aggregate at least a majority of the shares of the Corporation then outstanding and entitled to vote. Any such written request shall specify the purpose or purposes for which the meeting is to be held. Business transacted at any special meeting of shareholders shall be confined to the purposes stated in the notice of meeting.

1.3 Notices of Meetings. Notice of every meeting of shareholders shall be mailed, not less than ten (10) nor more than fifty (50) days prior to the meeting, to each shareholder of record entitled to vote at the meeting, at his address appearing on the stock books of the Corporation, unless he shall have filed with the secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in that request. The notice shall be signed by the Chairman of the Board (if one or more is elected), President, a Vice President, the Secretary, or an Assistant Secretary. The notice shall set forth the purpose or purposes for which the meeting is called and the time when and the place, either within or without the State of New York, where it is to be held.

1.4 Waivers of Notices of Meetings. Anything in these By-Laws to the contrary notwithstanding, notice of any meeting of shareholders need not be given to any shareholder if he or his duly authorized attorney shall waive notice in writing, including telegram, either before or after the meeting, or if he is present at the meeting in person or by proxy.

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1.5 Place of Meetings. Every meeting of shareholders shall be held at the office of the Corporation or at such other place, within or without the State of New York, as may be designated in the notice of meeting pursuant to a resolution of the Board of Directors.

1.6 Quorum and Adjournments. Except as otherwise provided by law or by the Certificate of Incorporation, at any meeting of shareholders, the holders of a majority of the shares of the Corporation entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for the transaction of business. If a quorum is present at any meeting, that quorum shall not be broken by the withdrawal from the meeting of any shareholders or holders of proxies present when the existence of a quorum was determined. Any meeting may be adjourned from time to time and from place to place. If a quorum is not present at any meeting, the holders of a majority of the shares entitled to vote at the meeting who are present, in person or by proxy, may adjourn the meeting from time to time and from place to place, without notice other than announcement at the meeting, until a quorum is obtained. At any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the meeting as originally called. Only those shareholders entitled to vote at the meeting as originally called shall be entitled to vote at any adjournment thereof.

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1.7 Voting. (a) Except as otherwise provided by law or by the Certificate of Incorporation, at any meeting of shareholders, each holder of common stock of record on the record date fixed pursuant to Section 5.4 of these By-Laws shall be entitled to one vote for each share of the Corporation standing in his name on the books of the Corporation on that date. Any of its own stock belonging to the Corporation shall not be voted directly or indirectly.

(b) Any shareholder entitled to vote may vote in person or by proxy duly appointed by an instrument executed in writing by the shareholder or by his duly authorized attorney and delivered to the secretary of the meeting. No proxy shall be valid, however, after the expiration of eleven (11) months from the date of its execution unless the shareholder executing it shall have specified in the proxy the length of time it is to continue in force, which shall be a specific period.

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(c) Except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws, at any meeting of shareholders at which a quorum is present, each matter shall be determined by a vote of the holders of a majority of the shares, present, in person or by proxy, entitled to vote at the meeting and voting on the question.

(d) Except as otherwise provided by law, the vote at any meeting of shareholders on any question or election need not be by ballot unless demanded by a shareholder present in person or by proxy and entitled to vote on the matter, unless directed by the chairman of the meeting. Upon the demand of any such shareholder or upon the direction of the chairman that a vote by ballot be taken on any question or election, such vote shall be signed by the shareholder voting or by his proxy on his behalf, and it shall set forth the number of shares voted.

1.8 Organization and Procedure. (a) The chairman of any meeting of shareholders shall be the Chairman of the Board (if one or more is elected) or, in his absence, the President or, in his absence, a Vice President. In the event that none of those officers shall be present, a chairman of the meeting shall be elected by vote of the holders of a plurality of the shares entitled to vote at the meeting, present in person or by proxy. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of the meeting. In the event that none of those officers shall be present, the chairman of the meeting may appoint any person present to act as secretary of the meeting.

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(b) On any question or election as to which inspectors are required to or may act, one or more inspectors may be appointed by the chairman of the meeting or selected in such other manner as may be provided by law, but the appointment of inspectors shall not be required unless expressly provided by law. No candidate in an election of directors shall be eligible to appointment or election as an inspector. If inspectors are appointed or elected, before entering upon the discharge of their duties, each shall take and sign a written oath to execute the duties of inspector at the meeting with strict impartiality and according to the best of his ability.

(c) The order of business and other matters of procedure at any meeting of shareholders shall be determined by the chairman of the meeting, except as otherwise determined by a vote of the holders of a majority of the shares entitled to vote at the meeting who are present in person or by proxy.

(d) Except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws, items of business properly brought before any meeting of shareholders may be transacted at that meeting whether or not specified in the notice of meeting.

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1.9 Action Without a Meeting. Except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws, any action which is required to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth, the action so taken, shall be signed by the holders of all outstanding shares entitled to vote thereon.

ARTICLE II

Directors

2.1 Powers. The business, property and affairs of the Corporation shall be managed by its Board of Directors. In addition to the powers and authority expressly conferred upon it by these By-Laws, the Board of Directors shall have and may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, by the Certificate of Incorporation or by these By-Laws required to be exercised or done by the shareholders.

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2.2 Number and Term. The number of directors of the Corporation shall not be less than three except that where all the issued and outstanding shares are owned beneficially and of record by less than three shareholders, the number may be less than three but not less than the number of shareholders. Except as otherwise provided by these By-Laws, the directors shall be elected at the annual meeting of shareholders to hold office until the next succeeding annual meeting of shareholders and until their successors shall have been elected and qualified.

2.3 Vacancies. Any vacancy in the Board of Directors, resulting from death, resignation, removal, increase in the number of directors or any other cause, may be filled for the unexpired portion of the term by a majority vote of the remaining directors, whether or not they constitute a quorum, at any regular or special meeting of the Board of Directors. Any vacancy in the Board of Directors, from whatever cause, which has not been filled by action of the remaining directors within ninety (90) days, may be filled by the shareholders at a special meeting called for that purpose.

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2.4 Annual Meeting. The Board of Directors shall meet, without notice of the meeting, for the purpose of organization, the election of officers, and the transaction of other business, on the same day as, at the place at which, and as soon as practicable after, each annual meeting of shareholders. If the annual meeting is not so held, it shall be held at such time and place as may be specified in a notice given as provided in Section 2.6 of these By-Laws for special meetings of the Board of Directors.

2.5 Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and such places, either within or without the State of New York, as the Board of Directors may determine from time to time. Unless required by resolution of the Board of Directors, notice of any regular meeting need not be given. If any day fixed for a regular meeting shall be a legal holiday, the meeting shall be held at the same hour and place on the next succeeding business day that is not a legal holiday.

2.6 Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board (if one or more is elected), the President or a majority of the directors. A special meeting shall be held at any time and place, either within or without the State of New York, as may be specified in the notice of the meeting. Notice of any special meeting shall be mailed to each director at his residence or usual place of business,

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or at such other address as shall have been furnished by him for that purpose, at least three (3) days before the day on which the meeting is to be held; or the notice shall be sent to each director at such place by telegram, or be delivered to him personally or by telephone, no later than twenty-four (24) hours before the time at which the meeting is to be held. The notice of meeting shall state the time and place of the meeting, but need not set forth the purpose or purposes of the meeting, except to the extent required by law.

2.7 Waivers of Notices of Meetings. Anything in these By-Laws or in any resolution adopted by the Board of Directors to the contrary notwithstanding, notice of any meeting of the Board of Directors need not be given to any directors if he shall waive notice in writing, including telegram, either before or after the meeting, or if he is present at the meeting.

2.8 Quorum, Manner of Acting and Adjournments. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-Laws, at any meeting of the Board of Directors, a majority of the directors in office shall constitute a quorum for the transaction of business. The act of a majority of the directors present at any meeting at which a quorum is present shall constitute the

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act of the Board of Directors, except as otherwise provided by law, by the Certificate of Incorporation or by these By-Laws. Any meeting may be adjourned from time to time and from place to place by a majority of the directors present at the meeting, whether or not a quorum is present, without notice other than announcement at the meeting. At any adjourned meeting at which a quorum is present, any business may be transacted that might have been transacted at the meeting as originally called.

2.9 Organization and Business of Meetings. (a) At any meeting of the Board of Directors, the Chairman of the Board (if one or more is elected) or, in his absence, the President or, in the absence of both of them, a director chosen by the majority of the directors present shall act as chairman of the meeting. The Secretary or, in his absence, an Assistant Secretary shall act as secretary of the meeting. In the event that the Secretary and all Assistant Secretaries are absent from the meeting, the chairman of the meeting may appoint any person to act as secretary of the meeting.

(b) Except as otherwise provided by law, any item of business may be transacted at any meeting of the Board of Directors, whether or not specified in the notice of meeting.

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2.10 Resignations and Removal of Directors. (a) Any director may resign at any time by notifying the President, the Secretary or the other directors in writing of his resignation. The resignation shall take effect at the time specified therein. Unless otherwise specified in resignation, its acceptance shall not be necessary to make it effective.

(b) Any director may be removed with or without cause at any time by the shareholders at a duly constituted special meeting of shareholders called for that purpose.

2.11. Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all meembers of the Board or the committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board or committee.

2.12 Meetings by Telephone or Similar Communications Equipment. Any meeting of the Board of Directors or a committee thereof may be held by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at such meeting.

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ARTICLE III

Officers

3.1 Elected Officers. The elected officers of the Corporation shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. The Board of Directors may also elect one or more Chairmen of the Board and one or more Executive Vice Presidents. The President and the Chairman of the Board (if one or more is elected) shall be chosen from among the directors, but no other officer need be a director.

3.2 Election, Tenure of Office and Vacancies. The elected officers shall be elected annually by vote of a majority of the directors then in office, at the annual meeting of the Board of Directors. Each elected officer shall hold office until his successor shall have been duly chosen, or until his death, resignation or removal. A vacancy in any elected office may be filled for the unexpired portion of the term by a vote of a majority of the directors then in office.

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3.3 Additional Officers. The Board of Directors from time to time may appoint such additional officers, including an Assistant Secretary or Assistant Secretaries and an Assistant Treasurer or Assistant Treasurers, as it may deem advisable, each of whom shall hold office for such term, have such powers and perform such duties as are provided in these By-Laws or as the Board of Directors may determine from time to time. Any such additional officer may be removed with or without cause, and any vacancy in any such office may be filled, by the Board of Directors at any time. The Board of Directors may delegate to any committee or elected officer the power to appoint and remove any such additional officer.

3.4 Holding of More than One Office. The same person may hold two or more offices, except that the same person may not be both President and Secretary; provided, however, that in the event that all of the issued and outstanding shares of the Corporation are owned by one person, such person may hold all or any combination of offices.

3.5 Resignations of Officers. Any officer may resign at any time by notifying the Chairman of the Board (if one or more is elected), the President or the Secretary in writing of his resignation. The resignation shall take effect at the time specified therein. Unless otherwise specified in the resignation, its acceptance shall not be necessary to make it effective.

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3.6 Removal of Elected Officers. Any elected officer may be removed at any time, either with or without cause, by resolution adopted at any regular or special meeting of the Board of Directors.

3.7 Duties. The Chairman of the Board (if one or more is elected) shall preside at all meetings of the Board of Directors and shareholders. He shall have such other powers and perform such other duties as are provided in these By-Laws or as the Board of Directors may determine from time to time. The President shall be the chief executive and administrative officer of the Corporation. Subject to the control of the Board of Directors, the President shall have general charge, supervision and control of the property, business and affairs of the Corporation. The Secretary shall record all the proceedings of the meetings of the shareholders and directors in a book to be kept for that purpose and perform such other duties and powers as are provided in these By-Laws, or as the Board of Directors may determine from time to time, or as may be assigned to him by any superior officer. All other officers shall have such duties and powers as are provided in these By-Laws, or as the Board of Directors may determine from time to time or as may be assigned to them by any superior officer.

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3.8 Compensation. Salaries or other compensation of officers shall be fixed from time to time by the Board of Directors or by such committee or officer as has been delegated the power to appoint any particular officer.

3.9 Delegation of Duties. In case of the absence or disability of any officer, or for any other reason that the Board of Directors may deem sufficient, a majority of the directors then in office may, for the time being, delegate or assign any or all of the powers and duties of such officer to any other officer or to any director.

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ARTICLE VI

Indemnification of Directors,

Officers and Employees

4.1 Right to Indemnity. (a) Any person made, or threatened to be made, a party to an action or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of any other corporation which any director or officer served in any capacity at the request of the Corporation (other than an action or proceeding by or in the right of the Corporation) by reason of the fact that he, his testator or intestate, is or was a director or officer of the Corporation or served such other corporation in any capacity, may be indemnified against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement, actually and necessarily incurred by him in connection with such action or proceeding, or any appeal therein, if he acted in good faith for a purpose which he reasonably believed to be in the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith for a purpose which he reasonably believed to be in the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

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(b) Any person made a party to an action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation, may be indemnified against expenses (including attorneys’ fees) actually and necessarily incurred by his in connection with the defense of such action or an appeal therein, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to have breached his duties to the Corporation.

4.2 Determination of Indemnity. Any indemnification under subsections (a) and (b) of Section 4.1 shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 4.1, as the case may be. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action or proceeding (b) if such a quorum is not obtainable by the Board of Directors upon the written opinion of independent legal counsel or (c) by the shareholders.

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4.3 Advance Payment of Expenses. The Corporation may advance the expenses of defending any action under circumstances where it appears that it could indemnify the person involved pursuant to procedure described in Section 4.2; provided, however, that such person shall be required to reimburse the Corporation for any expenses incurred on his behalf if it is ultimately determined that he is ineligible for indemnification.

4.4 Insurance. Except as otherwise provided by law, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is serving another corporation in any capacity whatever at the request of the Corporation, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability pursuant to the provisions of this Article IV.

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ARTICLE V

Stock and Transfers of Stock

5.1 Form and Execution of Certificates. Certificates representing shares of the Corporation shall be in such form as shall be approved from time to time by the Board of Directors. They shall be numbered and registered in the order of their issue. They shall be signed by the Chairman of the Board (if one or more is elected), the President, or a Vice President and by the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer. They shall be sealed with the seal of the Corporation, which may be a facsimile, engraved or printed. When a stock certificate is signed by a transfer agent or by a registrar, any signature of the Chairman of the Board, President, Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer upon the certificate may be a facsimile, engraved or printed. In case any officer who has signed, or whose facsimile signature has been placed upon, any stock certificate shall have ceased to be such officer before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as if he had not ceased to be such officer at the date of its issue.

5.2 Transfer. Transfer of shares shall be made on the books of the Corporation only by the person named in the certificate or his duly authorized attorney, lawfully constituted in writing, and upon surrender of the certificate or certificates for such shares properly endorsed for transfer.

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5.3. Lost, Stolen, Destroyed and Mutilated Certificates. The holder of any shares of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of the certificate therefor. The Board of Directors, in its discretion and after the expiration of such period of time as it may determine to be advisable, may cause to be issued to him a new certificate in place thereof, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of a certificate, upon proof satisfactory to the Board of Directors of such loss, theft or destruction. As a condition to the issuance of a new certificate, the Board of Directors, in its discretion, may require the holder of the lost, stolen, destroyed or mutilated certificate or his legal representative to pay the reasonable expenses of such issuance and/or to give to the Corporation a bond in such form and amount, and with such surety or sureties, if any, as it may direct, to indemnify the Corporation and its transfer agents and registrars, if any, against any loss or expense that may be sustained by any of them as a result of the claim of any other person that he is the lawful holder of the certificates alleged to have been lost, stolen, destroyed or mutilated.

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5.4 Record Date. (a) The Board of Directors may fix a date not more than fifty (50) days nor less than ten (10) days proceeding the date of any meeting of shareholders or the date fixed for the shareholders to express consent to corporate action in writing without a meeting or for the payment of any dividend, the allotment of any rights or for the purpose of any other action, as a record date for the determination of the shareholders entitled to notice of and to vote at such meeting, or entitled to express consent to corporate action in writing without a meeting or entitled to receive any such dividend, allotment of rights or other action, as the case may be. All persons who are holders of record of shares at the date so fixed, and no others, shall be entitled to notice of and to vote at such meeting, or to express consent to corporate action in writing without a meeting, or shall be entitled to receive any such dividend, allotment or rights or other action, notwithstanding any transfer of any shares on the books of the Corporation after such record date fixed as provided herein.

(b) If no record date is otherwise fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the date next preceding the day on which notice is given or, if no notice is given, the day on which the meeting is held and the record date for the determination of the shareholders for any other purpose shall be the close of business on the day on which the resolution of the Board thereto is adopted.

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ARTICLE VI

Voting of Stock of Other Corporations

6.1 Voting of Stock Held by the Corporation. Unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board (if one or more is elected) or, in his absence, the President or, in his absence, a Vice President may from time to time appoint an attorney or attorneys, or an agent or agents, of the Corporation, in the name and on behalf of the Corporation, to cast the votes that the Corporation may be entitled to cast as a shareholder or holder of other securities of any other corporation, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation; and may instruct the person or persons so appointed as to the manner of casting such vote or giving such consent; and may execute or cause to be executed on behalf of the

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Corporation and under its corporate seal or otherwise such written proxies, consents, waivers or other instruments as he may deem necessary or proper in the premises; or, in lieu of such appointment, he may himself attend any meeting of the holders of stock or other securities of such other corporation and vote thereat, or exercise any and all other powers of the Corporation as the holder of such stock or other securities of such other corporation.

ARTICLE VII

Miscellaneous

7.1 Seal. The corporate seal shall be in the form of a circle, and shall bear the name of the Corporation, the year of its organization, the words “New York” and “Corporate Seal.”

7.2 References. Whenever references are made in these By-Laws to the Certificate of Incorporation, such references shall be deemed to refer to the Certificate of Incorporation of the Corporation as, at the time of the adoptiong of these By-Laws, it may have been amended and as, subsequent to that time, it may be amended. Whenever references are made to these By-Laws, such references shall be deemed to be references to these By-Laws as they may from time to time be amended.

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ARTICLE VIII

Amendments of By-Laws

8.1. Amendment by Shareholders of By-Laws. Alterations, amendments or repeals of the By-Laws may be made by vote of the holders of a majority of the shares entitled to vote at any meeting, if the notice of such meeting contains a statement of the proposed alteration, amendment or repeal, or by the Board of Directors by a majority vote of the directors then in office at any regular or special meeting.

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EX-99.T3B.31

Exhibit B-31

MILIK SERVICE COMPANY, LLC

A COMMONWEALTH OF VIRGINIA LIMITED LIABILITY COMPANY

OPERATING AGREEMENT

MILIK SERVICE COMPANY, LLC

OPERATING AGREEMENT

THIS OPERATING AGREEMENT is entered into and shall be effective for all purposes as of July 24, 2006 by Pathmark Stores, Inc., a Delaware Corporation (the “Member”).

RECITALS

WHEREAS, the Member desires to form a Virginia limited liability company pursuant to the Act (as defined in Section 1.1 below).

ARTICLE 1

DEFINITIONS

Any term not defined in this Agreement has the meaning ascribed to it in the Act. As used in this Agreement, the following terms have the following meanings:

“Act” means the Virginia Limited Liability Company Act, Virginia Code §§ 13.1-1000 et.seq., as such act may from time to time be amended, including any successor statute.

“Affiliate” means, with respect to any Person (i) any individual, corporation, limited liability company, partnership, trust or other legal entity directly or indirectly controlling, controlled by or under common control with such Person, (ii) any officer, director, general partner, member or trustee of such Person or (iii) any individual who is an officer, director, general partner, member or trustee of any Person described in clauses (i) or (ii) of this sentence. For purposes of this definition, the terms “controlling,” “controlled by” or “under common control with” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the directors, general partners, members or persons exercising similar authority with respect to such Person.

“Agreement” or “Operating Agreement” means this Operating Agreement of Milik Service Company, LLC, as amended from time to time, which shall constitute the operating agreement of the Company for purposes of the Act. Words such as “herein,” “hereinafter,” “hereof,” “hereto” and “hereunder” refer to this Agreement as a whole, unless the context otherwise requires.

“Articles” means the articles of organization filed in the office of the Commission pursuant to Section 2.2.

“Bankruptcy” means with respect to any Person:

(a) having an order entered for relief with respect to that Person under the Federal Bankruptcy Code,

(b) not paying, or admitting in writing that Person’s inability to pay, that Person’s debts generally as they become due,

(c) making an assignment for the benefit of creditors,

(d) applying for, seeking, consenting to, or acquiescing in the appointment of a receiver, custodian, trustee, examiner, liquidator, or similar official for that Person or any substantial part of that Person’s property or failing to cause the discharge of the same within 60 days of appointment,

(e) instituting any proceeding seeking the entry of any order for relief under the Federal Bankruptcy Code to adjudicate that Person a bankrupt or insolvent, or failing to cause dismissal of such proceeding within 60 days of the institution thereof, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment, or composition of that Person or that Person’s debts, under any law relating to bankruptcy, insolvency, or reorganization or relief of debtors, or failing to file an answer or other pleading denying the material allegations of any such proceeding filed against that Person, or

(f) taking any action to authorize or effect any of the foregoing actions or failing to contest in good faith the appointment of a receiver, trustee, examiner, liquidator, or similar official for that Person or any substantial part of that Person’s property.

“Commission” means the State Corporation Commission of Virginia.

“Company” means Milik Service Company, LLC, the Commonwealth of Virginia limited liability company created by the Articles filed as contemplated by this Operating Agreement.

“Indemnified Person” means the Manager, any officer of the Company, and any Affiliate which performs services for the benefit of the Company, each of their respective partners, officers, directors, trustees, shareholders, members or employees and such other Persons as the Member may designate from time to time, in its sole and absolute discretion.

“Liquidator” means the Manager or such other Person appointed by the Member acting in the capacity of liquidating trustee of the Company.

“Manager” means Frank Vitrano or any Person who is designated as the Manager in accordance with Section 3.2.

“Member” or “Members” means Pathmark Stores, Inc., a Delaware corporation, any successor to Pathmark Stores, Inc. by merger, or any Person who has been duly admitted as a Member pursuant to Section 5.1, who has not ceased to be a Member in accordance with the provisions of this Operating Agreement.

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“Person” means any individual, partnership (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.

“Property” means all real and personal property acquired by the Company, including cash, and any improvements thereto, and shall include both tangible and intangible property.

ARTICLE 2

FORMATION AND ORGANIZATION

2.1 Business Conducted in the Name of the Company

All Company business must be conducted in the name of the Company or such other names that comply with applicable law as the Manager may select from time to time. Title to all assets of the Company shall be taken and held only in the name of the Company.

2.2 Authorized Person; Registered Office; Registered Agent; Principal Office in the United States; Other Offices

The Articles were executed by Elizabeth A. Truitt, as an authorized person of the Company for purposes of filing the Articles. Immediately upon filing of the Articles, Elizabeth A. Truitt ceased to be authorized person of the Company. Pursuant to Section 13.1-1003 of the Act, the Manager or any officer of the Company shall be authorized persons of the Company from and after the date of filing of the Articles for purposes of executing all articles and certificates required to be filed with the Commission.

The registered agent of the Company in the Commonwealth of Virginia shall be the initial registered agent designated in the Articles or such other Person(s) as the Manager may designate from time to time in the manner provided by law. The principal office of the Company shall be 200 Milik Street, Carteret, New Jersey 07008, or such other place(s) as the Manager may designate from time to time. The Company may have such other offices as the Manager may determine from time to time.

2.3 Purpose

The primary purpose and nature of the business to be conducted by the Company is to engage in any and all activities and exercise any power permitted to limited liability companies under the laws of the Commonwealth of Virginia, including the retail sale of gift certificates and gift cards redeemable for merchandise.

2.4 Foreign Qualification

The Manager shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming to this Agreement that are necessary or appropriate to qualify, or, as appropriate, to continue or terminate such qualification of, the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business.

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2.5 Term

The Company shall continue in existence indefinitely except as may be specified in or pursuant to this Operating Agreement or as otherwise required by the Act.

ARTICLE 3

MANAGEMENT OF THE COMPANY

3.1 Actions by the Member

The Member shall not have authority to act for or oil behalf of the Company, or to bind the Company in any way, solely by virtue of being a Member of the Company.

3.2 Manager

The business and affairs of the Company shall be managed by the Manager. The Manager shall have full, exclusive and complete discretion, power and authority, subject in all cases to the provisions of this Agreement and the requirements of applicable law, to manage, control, administer and operate the business and affairs of the Company for the purposes herein stated, to make all decisions affecting such business and affairs, to adopt such accounting rules and procedures as it deems appropriate in the conduct of the business and affairs of the Company and to do all things it deems necessary or desirable in the conduct of the business and affairs of the Company. The Manager may appoint and delegate responsibilities to such officers and other agents as it deems appropriate in its sole discretion.

The initial Manager shall be Frank Vitrano. The Manager may be removed and replaced by the Member at any time with or without cause. The Manager need not be a member of the Company.

3.3 Officers

3.3.1 Number, Election and Term of Office. The officers of the Company shall be a President, a Treasurer and a Secretary, and may at the discretion of the Manager include one or more Vice Presidents, Assistant Treasurers, Assistant Secretaries and other officers. The initial officers of the Company are set forth in Section 3.3.14. The officers of the Company (including but not limited to the initial officers) shall hold their respective offices until such time as their successors are duly appointed by the Manager or until their earlier death, resignation or removal by the Manager with or without cause. Except as otherwise provided by law, any number of offices may be held by the same person.

3.3.2 President. Subject to the direction of the Manager, the President (i) shall be the chief operating officer of the Company, (ii) shall have full responsibility and authority for management of the day-to-day operations of the Company, and (iii) may execute agreements and contracts on behalf of the Company.

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3.3.3 Treasurer. The Treasurer shall have charge of the funds of the Company. He or she shall keep full and accurate accounts of all receipts and disbursements of the Company in books belonging to the Company and shall deposit monies and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Manager. He or she shall disburse the funds of the Company as may be ordered by the Manager, and shall render to the Manager an account of all of his or her transactions as Treasurer and an account of the business and financial position of the Company.

3.3.4 Secretary. The Secretary shall be responsible for preparing and distributing any notices received by the Company or otherwise called for by this Agreement to be given by the Company.

3.3.5 Vice President. The Manager may appoint one or more Vice Presidents of the Company. Each Vice President (i) shall perform such duties as the Manager or the President shall require of such Vice President and (ii) may execute agreements and contracts on behalf of the Company.

3.3.6 Assistant Treasurer. The Manager may appoint one or more Assistant Treasurers of the Company. Each Assistant Treasurer shall perform such duties as the Manager shall require of such Assistant Treasurer. The Assistant Treasurers (in the order of their appointment) shall, during the absence or incapacity of the Treasurer, assume and perform all functions and duties which the Treasurer might lawfully do if present and not under any incapacity.

3.3.7 Assistant Secretary. The Manager may appoint one or more Assistant Secretaries of the Company. Each Assistant Secretary shall perform such duties as the Manager shall require of such Assistant Secretary. The Assistant Secretaries (in the order of their appointment) shall, during the absence or incapacity of the Secretary, assume and perform all functions and duties which the Secretary might lawfully do if present and not under any incapacity.

3.3.8 Other Officers. The Manager may appoint such other officers and agents of the Company as the Manager shall deem necessary or appropriate to carry out the business of the Company upon such terms and conditions as the Manager may determine. Any such officer shall hold his or her respective office for the term specified by the Manager unless earlier removed by the Manager.

3.3.9 Resignation. Any officer or agent of the Company may resign at any time by giving written notice to the Manager or to the President or the Secretary of the Company. Any such resignation shall take effect at the time specified therein or, if no time is specified, upon receipt thereof; and unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.

3.3.10 Removal; Vacancies; Transfer of Duties. Any officer or agent of the Company may be removed from office, with or without cause, at any time, by the Manager. Any vacancy in the office of President, Vice President, Treasurer, Secretary, Assistant Treasurer, Assistant Secretary or other office for any reason shall be filled by a person designated by the Manager to serve until his or her successor is duly appointed or

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until his or her earlier death, resignation or removal. The Manager in its sole and absolute discretion may transfer the power and duties, in whole or in part, of any officer to any other officer or Persons, notwithstanding the provisions of this Agreement, except as otherwise provided by the laws of the Commonwealth of Virginia.

3.3.11 Compensation. The salaries, if any, of all officers of the Company shall be fixed by or in a manner prescribed by the Manager.

3.3.12 Third Party Reliance. Third parties dealing with the Company shall be entitled to rely conclusively upon the power and authority of the officers of the Company as set forth herein.

3.3.13 Execution of Instruments. All checks, drafts, bills of exchange, acceptances, bonds, endorsements, notes or other obligations or evidences of indebtedness of the Company, and all deeds, mortgages, indentures, bills of sale, conveyances, endorsements, assignments, transfers, stock powers or other instruments of transfer, contracts, agreements, dividends or other orders, powers of attorney, proxies, waivers, consents, returns, reports, certificates, demands, notices or documents and other instruments or rights of any nature maybe signed, executed, verified, acknowledged and delivered by such officer or officers or such other Person or Persons (whether or not officers, agents or employees of the Company) as the Manager may from time to time designate.

3.3.14 Initial Officers. The initial officers of the Company are:

President and Treasurer	Frank Vitrano
Senior VP and Secretary	Marc Strassler
Senior VP	Kevin Darrington
Assistant Treasurer	John Marques
Assistant Secretary	Chris Hansen
VP and Assistant Secretary	David Cherna

3.4 Liability to Third Parties/Indemnification

3.4.1 No Member or Manager shall have any personal obligation for any obligations, losses, debts, claims, expenses or encumbrances (collectively, “liabilities”) of or against the Company or its assets, whether such liabilities arise in contract, tort or otherwise, except to the extent that any such liabilities are expressly assumed in writing by such Member.

3.4.2 The Company shall defend, indemnify and hold harmless each Indemnified Person, to the extent permitted by Virginia law, from and against any loss, liability, damage, cost or expense, including reasonable attorneys’ fees (collectively, “loss”) incurred by reason of any demands, claims, suits, actions, or proceedings solely arising out of (a) the Indemnified Person’s relationship to the Company or (b) such Indemnified Person’s capacity as the Manager or an officer; except to the extent such loss arises from an activity where the Indemnified Person is finally determined by a court of competent jurisdiction to have acted in bad faith and in a manner that either involved

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fraud, willful misconduct or gross negligence or a knowing violation of criminal law. Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding, and no less often than monthly, upon receipt of an undertaking by and on behalf of the Indemnified Person to repay such amount, if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company.

ARTICLE 4

CAPITAL CONTRIBUTIONS

4.1 Capital Contributions

The Member may, but shall not be required to, make capital contributions to the Company.

4.2 Return of Capital Contributions

Except as provided elsewhere in this Operating Agreement, the Member is not entitled to the return of any part of its capital contributions or to be paid interest in respect of its capital contributions. An unrepaid capital contribution is not a liability of the Company.

ARTICLE 5

ADMISSION OF ADDITIONAL MEMBERS;

TRANSACTIONS OF MEMBERS WITH THE COMPANY

5.1 Admission of Members

A new Member (including the admission of a Person as a Member in substitution of the existing Member) may be admitted at such times and on such terms and conditions (including the amount of such Person’s capital contributions and the resulting membership interest) as maybe determined by the Manager. No such admission shall be effective until the new Member has agreed in writing to be governed by all the terms and conditions of this Operating Agreement, and any of the provisions of this Operating Agreement shall have been amended or modified to take into account such additional Members as agreed by the Member and the additional Members.

5.2 Business Transactions of Member with Limited Liability Company

Except as otherwise provided in this Agreement, a Member may lend money to and transact other business with the Company and, subject to applicable law, has the same rights and obligations with respect to the transaction as a Person who is not a Member.

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ARTICLE 6

PROFIT, LOSS, INCOME AND DEDUCTIONS

6.1 Determination of Profit and Loss

The profit and loss of the Company shall be determined in accordance with the accounting methods followed for federal income tax purposes and otherwise in accordance with sound accounting principles and procedures applied in a consistent manner. An accounting shall be made for each taxable year by the accountants employed by the Company as soon as possible after the close of each such taxable year to determine the profit or loss of the Company, which shall be credited or debited, as the case maybe, to the Member.

6.2 Allocation of Profits, Losses, Income and Deductions; Distributions

One hundred percent (100%) of the profits, losses, income and deductions of the Company shall be allocated to the Member. The Manager may make distributions to the Member from time to time in its discretion.

ARTICLE 7

DISSOLUTIONS

7.1 Events of Dissolution

The Company shall be dissolved and its affairs shall be wound up upon the first to occur of the following:

(a) the sale or disposition of all or substantially all of the Company assets, and the distribution of the proceeds thereof to the Member;

(b) a determination by the Member to dissolve;

(c) the occurrence of an event that makes it unlawful for the Company’s business to be continued;

(d) the entry of a decree of judicial dissolution under the Act; or

(e) the death, adjudication of incompetency or Bankruptcy of the Member.

7.2 Winding Up

Upon dissolution under Section 7.1, the Company shall conduct no further business, except for taking such action as shall be necessary for the winding up of the affairs of the Company and the liquidation and the distribution of its assets to the Member pursuant to the provisions of this Operating Agreement, and thereupon the Manager shall act as Liquidator of the Company within the meaning of the Act and immediately proceed to wind up and terminate the business and affairs of the Company.

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7.3 Sale of Company Assets

Upon dissolution, the Liquidator shall sell such of the Company assets as it deems necessary or appropriate. In lieu of the sale of any or all of the Company Property, the Liquidator may convey, distribute and assign all or any part of the Company Property to the Member in such form of ownership as shall be determined by the Liquidator to be applicable to the jurisdiction where the Property is located. A full accounting shall be made of the accounts of the Company and of the Company’s assets, liabilities and income, from the date of the last accounting to the date of such dissolution. The profits and losses of the Company shall be determined to the date of dissolution and transferred as provided in Section 6, to the Member. In accounting for distributions of Company Property, such Property shall be valued at its fair value at the date of dissolution as determined in good faith by the Manager. Any difference between the valuation of Company Property and its book value shall be considered as though it represented profit or loss, and shall be allocated to the Member as provided in Section 6. Any gain or loss on disposition of Company Property shall be credited or charged to the Member in the same manner as the difference between the valuation of Company Property and its book value.

7.4 Distribution Upon Liquidation

Immediately following the Company’s liquidation, the Company assets shall be applied in the following order of priority:

(a) first, to the payment and discharge of, or the making of reasonable provisions for, all of the Company’s debts and liabilities to the Member and Persons other than the Member, including contingent, conditional and unmatured liabilities of the Company, and the expenses of dissolution and winding-up, in the order of priority as provided by law, including the establishment of a reserve fund for contingent, conditional and unmatured claims as deemed necessary and reasonable by the Liquidator; and

(b) second, all remaining assets to the Member.

ARTICLE 8

GENERAL PROVISIONS

8.1 Governing Law

This Operating Agreement is governed by and shall be construed in accordance with the laws of the Commonwealth of Virginia, excluding any conflict-of-laws rules or principle that might refer the governance or the construction of this Operating Agreement to the law of another jurisdiction.

8.2 Severability

In the event that any provision of this Agreement shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Operating Agreement.

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8.3 Survival of Rights

Except as provided herein to the contrary, this Operating Agreement shall be binding upon and inure to the benefit of the signatories hereto (as well as to all future parties who are admitted as Members in this Company) and Indemnified Persons, their respective heirs, executors, legal representatives, and permitted successors and assigns.

8.4 No Third-Party Beneficiaries

Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any Person other than the parties hereto any rights or remedies.

8.5 Section Headings

Section headings contained in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning or interpretation of this Agreement or any of its terms and conditions.

8.6 Waiver

No consent or waiver, express or implied by the Member or the Company, to the breach or default by the Member in the performance of its obligations under this Operating Agreement shall be deemed or construed to be a consent or waiver to any other breach or default.

8.7 Securities Laws Restrictions

The interests described in this Agreement have not been registered under the Securities Act of 1933, as amended, or under the securities laws of the Commonwealth of Virginia or any other jurisdiction. Consequently, these interests may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of, except in accordance with the provisions of such laws and this Agreement. By executing this Agreement, the Member represents and acknowledges that it is acquiring its interest for investment purposes only and without a view to distribution.

EXECUTED as of the date first written above.

PATHMARK STORES, INC.
By:	/s/ Marc Strassler
	Name:	Marc Strassler
	Title:	Senior Vice President

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EX-99.T3B.32

Exhibit B-32

BY-LAWS

OF

ARTICLE I - OFFICES

The registered office of the Corporation in the State of New Jersey shall be located as designated in the Certificate of Incorporation. The Corporation may also maintain offices at such other places within or without the State of New Jersey and the United States as the Board of Directors may, from time to time, determine.

ARTICLE II - MEETING OF SHAREHOLDERS

Section 1 - Annual Meetings:

The annual meeting of the shareholders of the Corporation shall be held within five months after the close of the fiscal year of the Corporation, for the purpose of electing directors, and transacting such other business as may properly come before the meeting.

Section 2 - Special Meetings:

Special meetings of the shareholders may be called at any time by the Board of Directors or by the President, and shall be called by the President or the Secretary at the written request of the holders of ten per cent (10%) of the shares then outstanding and entitled to vote thereat, or as otherwise required under the provisions of Title 14A, Corporations General, of the New Jersey Statutes, or any successor thereto (the “Statute”).

Section 3 - Place of Meetings:

All meetings of shareholders shall be held at the principal office of the Corporation, or at such other places as shall be designated in the notices or waivers of notice of such meetings.

Section 4 - Notice of Meetings:

(a) Except as otherwise provided by Statute, written notice of each meeting of shareholders, whether annual or special, stating the time when and place where it is to be held, shall be served either personally or by mail, not less than ten or more than sixty days before the meeting, upon each shareholder of record entitled to vote at such

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meeting, and to any other shareholder to whom the giving of notice may be required by law. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called, and shall indicate that it is being issued by, or at the direction of, the person or persons calling the meeting. If, at any meeting, action is proposed to be taken that would, if taken, entitle shareholders to receive payment for their shares pursuant to Statute, the notice of such meeting shall include a statement of that purpose and to that effect. If mailed, such notice shall be directed to each such shareholder at his address, as it appears on the records of the shareholders of the Corporation, unless he shall have previously filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case, it shall be mailed to the address designated in such request.

(b) Notice of any meeting need not be given to any person who may become a shareholder of record after the mailing of such notice and prior to the meeting, or to any shareholder who attends such meeting, in person or by proxy, or to any shareholder who, in person or by proxy, submits a signed waiver of notice either before or after such meeting. Notice of any adjourned meeting of shareholders need not be given, unless otherwise required by statute.

Section 5 - Quorum:

(a) Except as otherwise provided herein, or by statute, or in the Certificate of Incorporation (such Certificate and any amendments thereof being hereinafter collectively referred to as the “Certificate of Incorporation”), at all meetings of shareholders of the Corporation, the presence at the commencement of such meetings in person or by proxy of shareholders holding of record a majority of the total number of shares of the Corporation then issued and outstanding and entitled to vote, shall be necessary and sufficient to constitute a quorum for the transaction of any business. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b) Despite the absence of a quorum at any annual or special meeting of shareholders, the shareholders, by a majority of the votes cast by the holders of shares entitled to vote thereon, may adjourn the meeting. At any such adjourned meeting at which a quorum is present, any business may be transacted at the meeting as originally called if a quorum had been present.

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Section 6 - Voting:

(a) Except as otherwise provided by statute or by the Certificate of Incorporation, any corporate action, other than the election of directors to be taken by vote of the shareholders, shall be authorized by a majority of votes cast at a meeting of shareholders by the holders of shares entitled to vote thereon.

(b) Except as otherwise provided by statute or by the Certificate of Incorporation, at each meeting of shareholders, each holder of record of stock of the Corporation entitled to vote thereat, shall be entitled to one vote for each share of stock registered in his name on the books of the Corporation.

(c) Each shareholder entitled to vote or to express consent or dissent without a meeting, may do so by proxy; provided, however, that the instrument authorizing such proxy to act shall have been executed in writing by the shareholder himself, or by his attorney-in-fact thereunto duly authorized in writing. No proxy shall be valid after the expiration of eleven months from the date of its execution, unless the persons executing it shall have specified therein the length of time it is to continue in force. Such instrument shall be exhibited to the Secretary at the meeting and shall be filed with the records of the Corporation.

(d) Any resolution in writing, signed by all of the shareholders entitled to vote thereon, shall be and constitute action by such shareholders to the effect therein expressed, with the same force and effect as if the same had been duly passed by unanimous vote at a duly called meeting of shareholders and such resolution so signed shall be inserted in the Minute Book of the Corporation under its proper date.

ARTICLE III - BOARD OF DIRECTORS

Section 1 - Number, Election and Term of Office:

(a) The number of the directors of the Corporation (other than the First Board of Directors named in the Certificate of Incorporation) shall be (         ), unless and until otherwise determined by a majority of the entire Board of Directors.

(b) Except as may otherwise be provided herein or in the Certificate of Incorporation, the members of the Board of Directors of the Corporation, who need not be shareholders, shall be elected by a majority of the votes cast at a meeting of shareholders, by the holders of shares, present in person or by proxy, entitled to vote in the election.

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(c) Each director shall hold office until the annual meeting of the shareholders next succeeding his election, and until his successor is elected and qualified, or until his prior death, resignation or removal.

Section 2 - Duties and Powers:

The Board of Directors shall be responsible for the control and management of the affairs, property and interests of the Corporation, and may exercise all powers of the Corporation, except as are in the Certificate of Incorporation or by statute expressly conferred upon or reserved to the shareholders.

Section 3 - Annual and Regular Meetings; Notice:

(a) A regular annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders at the place of such annual meeting of shareholders.

(b) The Board of Directors, from time to time, may provide by resolution for the holding of other regular meetings of the Board of Directors, and may fix the time and place thereof.

(c) Notice of any regular meeting of the Board of Directors shall not be required to be given and, if given, need not specify the purpose of the meeting; provided, however, that in case the Board of Directors shall fix or change the time or place of any regular meeting, notice of such action shall be given to each director who shall not have been present at the meeting at which such action was taken within the time limited, and in the manner set forth in paragraph (b) Section 4 of this Article III, with respect to special meetings, unless such notice shall be waived in the manner set forth in paragraph (c) of such Section 4.

Section 4 - Special Meetings; Notice:

(a) Special meetings of the Board of Directors shall be held whenever called by the President or by one of the directors, at such time and place as may be specified in the respective notices or waivers of notice thereof.

(b) Except as otherwise required by Statute, notice of special meetings shall be mailed directly to each director, addressed to him at his residence or usual place of business, at least two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegram, mailgram, or cable, or shall be delivered to him personally or given to him orally, not later than the day before the day on which the meeting is to be held. A notice, or waiver of notice, except as required by Section 8 of this Article III, need not specify the purpose of the meeting.

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(c) Notice of any special meeting shall not be required to be given to any director who shall attend such meeting without protesting prior thereto or at its commencement, the lack of notice to him, or who submits a signed waiver of notice, whether before or after the meeting. Notice of any adjourned meeting shall not be required to be given.

Section 5 - Chairman:

At all meetings of the Board of Directors, the Chairman of the Board, if any and if present, shall preside. If there shall be no Chairman, or he shall be absent, then the President shall preside, and in his absence, a Chairman chosen by the Directors shall preside.

Section 6 - Quorum and Adjournments:

(a) At all meetings of the Board of Directors, the presence of a majority of the entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business, except as otherwise provided by law, by the Certificate of Incorporation, or by these By-Laws.

(b) A majority of the directors present at the time and place of any regular or special meeting, although less than a quorum, may adjourn the same from time to time without notice, until a quorum shall be present.

Section 7 - Manner of Acting:

(a) At all meetings of the Board of Directors, each director present shall have one vote, irrespective of the number of shares of stock, if any, which he may hold.

(b) Except as otherwise provided by statute, by the Certificate of Incorporation, or by these By-Laws, the action of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. Any action authorized in writing, by all of the directors entitled to vote thereon and filed with the minutes of the Corporation shall be the act of the Board of Directors with the same force and effect as if the same had been passed by unanimous vote at a duly called meeting of the Board.

Section 8 - Vacancies:

Unless otherwise provided in the Certificate of Incorporation, any vacancy in the Board of Directors occurring by reason of an increase in the number of directors, or by reason of the death, resignation, disqualification, removal (unless a vacancy created by the removal of a director by the shareholders shall be filled by the shareholders at the

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meeting at which the removal was effected) or inability to act of any director, or otherwise, shall be filled for the unexpired portion of the term by a majority vote of the remaining directors, though less than a quorum, at any regular meeting or special meeting of the Board of Directors called for that purpose.

Section 9 - Resignation:

Any director may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or such officer, and the acceptance of such resignation shall not be necessary to make it effective.

Section 10 - Removal:

Any director may be removed with or without cause at any time by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares of the Corporation at a special meeting of the shareholders called for that purpose, and may be removed for cause by action of the Board.

Section 11 - Salary:

No stated salary shall be paid to directors, as such, for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided, however, that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving reasonable compensation therefor.

Section 12 - Contracts:

(a) Unless otherwise provided by Statute, no contract or other transaction between this Corporation and any other Corporation shall be impaired, affected or invalidated nor shall any director be liable in any way by reason of the fact that any one or more of the directors of this Corporation is or are interested in, or is a director or officer, or are directors or officers of such other Corporation, provided that such facts are disclosed or made known to the Board of Directors.

(b) Unless otherwise provided by Statute, any director, personally and individually, may be a party to or may be interested in any contract or transaction of this Corporation, and no director shall be liable in any way by reason of such interest, provided that the fact of such interest be disclosed or made known to the Board of Directors, and provided that the Board of Directors shall authorize, approve or ratify such contract or transaction by the vote (not counting the vote of any such director) of a majority of a quorum,

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notwithstanding the presence of any such director at the meeting at which such action is taken. Such director or directors may be counted in determining the presence of a quorum at such meeting. This Section shall not be construed to impair or invalidate or in any way affect any contract or other transaction which would otherwise be valid under the law (common, statutory or otherwise) applicable thereto.

Section 13 - Committees:

The Board of Directors, by resolution adopted by a majority of the entire Board, may from time to time designate from among its members an executive committee and such other committees, and alternate members thereof, as they may deem desirable, each consisting of one or more members, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each such committee shall serve at the pleasure of the Board.

ARTICLE IV - OFFICERS

Section 1 - Number, Qualifications, Election and Term of Office:

(a) The officers of the Corporation shall consist of a President, a Secretary, a Treasurer, and such other officers, including a Chairman of the Board of Directors, and one or more Vice Presidents, as the Board of Directors may from time to time deem advisable. Any officer other than the Chairman of the Board of Directors may be, but is not required to be, a director of the Corporation. Except as otherwise provided by Statute, any two or more offices may be held by the same person.

(b) The officers of the Corporation shall be elected by the Board of Directors at the regular annual meeting of the Board following the annual meeting of shareholders.

(c) Each officer shall hold office until the annual meeting of the Board of Directors next succeeding his election, and until his successor shall have been elected and qualified, or until his death, resignation or removal.

Section 2 - Resignation:

Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, or to the President or the Secretary of the Corporation. Unless otherwise specified in such written notice, such resignation shall take effect upon receipt thereof by the Board of Directors or by such officer, and the acceptance of such resignation shall not be necessary to make it effective.

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Section 3 - Removal:

Any officer may be removed, either with or without cause, and a successor elected by a majority vote of the Board at any time.

Section 4 - Vacancies:

A vacancy in any office by reason of death, resignation, inability to act, disqualification, or any other cause, may at any time be filled for the unexpired portion of the term by a majority of the vote of the Board of Directors.

Section 5 - Duties of Officers:

Officers of the Corporation shall, unless otherwise provided by the Board of Directors, each have such powers and duties as may be set forth in these by-laws, or may from time to time be specifically conferred or imposed by the Board of Directors. The President shall be the chief executive officer of the Corporation.

Section 6 - Sureties and Bonds:

In case the Board of Directors shall so require, any officer, employee or agent of the Corporation shall execute to the Corporation a bond in such sum, and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful performance of his duties to the Corporation, including responsibility for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands.

Section 7 - Shares of Other Corporations:

Whenever the Corporation is the holder of shares of any other corporation, any right or power of the Corporation as such shareholder (including the attendance, acting and voting at shareholders’ meetings and execution of waivers, consents, proxies or other instruments) may be exercised on behalf of the Corporation by the President, any Vice President, or such other person as the Board of Directors may authorize.

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ARTICLE V - SHARES OF STOCK

Section 1 - Certificate of Stock:

(a) The certificates representing shares of the Corporation shall be in such form as shall be adopted by the Board of Directors, and shall be numbered and registered in the order issued. They shall bear the holder’s name and the number of shares, and shall be signed by (i) the Chairman of the Board or the President or a Vice President, and (ii) the Secretary or Assistant Treasurer, and shall bear the corporate seal.

(b) No certificate representing shares shall be issued until the full amount of consideration therefor has been paid, except as otherwise permitted by law.

(c) To the extent permitted by law, the Board of Directors may authorize the issuance of certificates for fractions of a share which shall entitle the holder to exercise voting rights, receive dividends and participate in liquidating distributions, in proportion to the fractional holdings; or it may authorize the payment in cash of the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined; or it may authorize the issuance, subject to such conditions as may be permitted by law, of scrip in registered or bearer form over the signature of an officer or agent of the Corporation, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder, except as therein provided.

Section 2 - Lost or Destroyed Certificates:

The holder of any certificate representing shares of the Corporation shall immediately notify the Corporation of any loss or destruction of the certificate representing the same. The Corporation may issue a new certificate in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed. On production of such evidence of loss or destruction as the Board of Directors in its discretion may require, the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the Corporation a bond in such sum as the Board may direct, and with such surety or sureties as may be satisfactory to the Board, to indemnify the Corporation against any claims, loss, liability or damage it may suffer on account of the issuance of the new certificate. A new certificate may be issued without requiring any such evidence or bond when, in the judgment of the Board of Directors, it is proper so to do.

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Section 3 - Transfers of Shares:

(a) Transfers of shares of the Corporation shall be made on the share records of the Corporation only by the holder of record thereof, in person or by his duly authorized attorney, upon surrender for cancellation of the certificate or certificates representing such shares, with an assignment or power of transfer endorsed thereon or delivered therewith, duly executed, with such proof of the authenticity of the signature and of authority to transfer and of payment of transfer taxes as the Corporation or its agents may require.

(b) The Corporation shall be entitled to treat the holder of record of any share or shares as the absolute owner thereof for all purposes and, accordingly, shall not be bound to recognize any legal, equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.

Section 4 - Record Date:

In lieu of closing the share records of the Corporation, the Board of Directors may fix, in advance, a date not exceeding sixty days, nor less than ten days, as the record date for the determination of shareholders entitled to receive notice of, or to vote at, any meeting of shareholders, or to consent to any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividends, or allotment of any rights, or for the purpose of any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided for herein, such determination shall apply to any adjournment thereof, unless the directors fix a new record date for the adjourned meeting.

ARTICLE VI - DIVIDENDS

Subject to applicable law, and except as may otherwise be provided in the Certificate of Incorporation, dividends may be declared and paid out of any funds available therefor, as often, in such amounts, and at such time or times as the Board of Directors may determine.

By-Laws - 10

ARTICLE VII - FISCAL YEAR

The fiscal year of the Corporation shall be fixed by the Board of Directors from time to time, subject to applicable law.

ARTICLE VIII - CORPORATE SEAL

The corporate seal shall be in such form as shall be approved from time to time by the Board of Directors.

ARTICLE IX - AMENDMENTS

Section 1 - By Shareholders:

All by-laws of the Corporation shall be subject to alteration or repeal, and new by-laws may be made, by the affirmative vote of shareholders holding of record in the aggregate at least a majority of the outstanding shares entitled to vote in the election of directors at any annual or special meeting of shareholders, provided that the notice or waiver of notice of such meeting shall have summarized or set forth in full therein, the proposed amendment. The shareholders may prescribe that any by-law made by them may not be altered or repealed by the Board of Directors.

Section 2 - By Directors:

Except as otherwise provided in the Certificate of Incorporation, the Board of Directors shall have power to make, adopt, alter, amend and repeal, from time to time, by-laws of the Corporation; provided, however, that the shareholders entitled to vote with respect thereto as in this Article IX above-provided may alter, amend or repeal by-laws made by the Board of Directors, except that the Board of Directors shall have no power to change the quorum for meetings of shareholders or of the Board of Directors, or to change any provisions of the by-laws with respect to the removal of directors or the filling of vacancies in the Board resulting from the removal by the shareholders. If any by-law regulating an impending election of directors is adopted, amended or repealed by the Board of Directors, there shall be set forth in the notice of the next meeting of shareholders for the election of directors, the by-law so adopted, amended or repealed, together with a concise statement of the changes made.

By-Laws - 11

ARTICLE X - INDEMNITY

(a) Except as prohibited by Statute or as otherwise provided in the Certificate of Incorporation, any person made a party to any action, suit or proceeding, by reason of the fact that he, his testator or intestate representative is or was a director, officer or employee of the corporation, or of any Corporation in which he served as such at the request of the Corporation, or otherwise acted as a corporate agent, as defined by Statute, shall be indemnified by the Corporation against the reasonable expenses, including attorney’s fees, actually and necessarily incurred by him in connection with the defense of such action, suit or proceedings, or in connection with any appeal therein, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding, or in connection with any appeal therein that such officer, director or employee is liable for negligence or misconduct in the performance of his duties.

(b) The foregoing right of indemnification shall not be deemed exclusive of any other rights to which any officer or director or employee may be entitled apart from the provisions of this section.

(c) The amount of indemnity to which any officer or any director may be entitled shall be fixed by the Board of Directors, except that in any case where there is no disinterested majority of the Board available, the amount shall be fixed by arbitration pursuant to the then existing rules of the American Arbitration Association.

By-Laws - 12

WAIVER OF NOTICE OF ORGANIZATION MEETING

OF

BOARD OF DIRECTORS

OF

We, the undersigned, being all of the Directors of the Corporation, hereby agree and consent that the organization meeting of the Board of Directors of the Corporation be held on the date and time, and at the place designated hereunder, and do hereby waive all notice whatsoever of such meeting and of any adjournment or adjournments thereof.

We do further agree and consent that any and all lawful business may be transacted at such meeting, or at any adjournment or adjournments thereof, as may be deemed advisable by the Directors present thereat. Any business transacted at such meeting or at any adjournment or adjournments thereof, shall be as valid and legal and of the same force and effect as if such meeting or adjourned meeting were held after notice.

Place of Meeting :

Date of Meeting :

Time of Meeting: :

Dated:                                     

Director

Director

Director

- 1 -

INSTRUCTIONS TO COMPLETE ORGANIZATION WHERE

CORPORATION IS TO HAVE ONE DIRECTOR AND ONE SHAREHOLDER

1 thru 5.     Previously completed in accordance with the Memorandum To Secretary

6. Resolutions Adopted by Sole Director — Page 3 (S) - 4 (S)

Insert corporate name;

Insert the following names as officers:

President                                                                          

Vice-President                                                               

Secretary                                                                          

Treasurer                                                                          

Insert name of sole shareholder and number of shares to be issued.

Insert Date                                                                     

Have sole director sign.

7. Resolutions adopted by sole shareholder - Page 5 (S).

Insert corporate name:

Insert date                                                                        

Have sole shareholder sign.

8. Remove pages 1, 2, 3, 4, 5, 5A, and 6.

9. If offer for shares is required, page 3 (S) must be retyped to include 5A.

- 1(S) -

Appendix A

Share certificate — Remove share certificate marked “Specimen” from Certificate book and insert at Appendix A.

Appendix B

Bank Form — Insert a conformed copy of the bank form.

- 2(S) -

RESOLUTIONS ADOPTED BY SOLE

DIRECTOR IN LIEU OF ORGANIZATION MEETING

OF

The undersigned, being the sole Director hereby adopts the following resolutions:

(1) RESOLVED, that the form of By-Laws annexed hereto are adopted as the By-Laws of this Corporation.

(2) RESOLVED, that the following persons be, and they hereby are, elected to the designated offices of the Corporation, to serve until their successors are elected and qualify:

President                                                                                      

Vice President                                                                             

Secretary                                                                                      

Treasurer                                                                                      

(3) RESOLVED, that the form of seal, an impression of which is affixed hereto, be, and it hereby is, approved and adopted as and for the corporate seal of this Corporation.

(4) RESOLVED, that the specimen form of certificate annexed hereto be, and it hereby is, approved and adopted as the certificate representing the shares of this Corporation.

(5) RESOLVED, that the offer of                          to purchase              shares of the Corporation is hereby accepted, and that upon receipt of the consideration, therein specified, the proper officers of the Corporation are authorized and directed to execute and deliver to such person a certificate for such shares.

- 3(S) -

(6) RESOLVED, that the Secretarial Certificate annexed hereto reflecting the banking arrangements of the Corporation be, and it hereby is, approved and the resolutions set forth therein adopted.

Dated:                    

Director

- 4(S) -

RESOLUTIONS ADOPTED BY SOLE SHAREHOLDER

OF

The undersigned, being the sole shareholder of the above-named Corporation hereby adopts the following resolution:

RESOLVED, that all actions heretofore taken by the Board of Directors of the Corporation are approved, ratified and confirmed.

Dated:                    

Shareholder

- 5(S) -

MINUTES OF ORGANIZATION MEETING

OF

BOARD OF DIRECTORS

The organization meeting of the Board of Directors named in the Certificate of Incorporation of the above-captioned Corporation was held on the date, time and at the place set forth in the written Waiver of Notice signed by all the Directors, fixing such time and place, and prefixed to the minutes of this meeting.

There were present the following:

being all the members of the Board of Directors.

The meeting was called to order by

It was moved, seconded and unanimously carried, that

act as Temporary Chairman, and that

act as Temporary Secretary.

The Chairman reported that first order of business was the adoption of By-Laws and the Secretary thereupon presented a form of By-Laws for the regulation of the affairs of the Corporation. Upon motion duly made, seconded and unanimously carried, said By-Laws were unanimously adopted and a copy thereof was ordered to be inserted in the minute book of the Corporation.

- 2 -

The meeting then proceeded to the election of officers. Upon nominations duly made and seconded, the following were elected and qualified:

President	:
Vice-President	:
Secretary	:
Treasurer	:

- 3 -

The President of the Corporation thereupon assumed the Chair, and the Secretary of the Corporation assumed his duties as Secretary of the meeting.

The Secretary presented to the meeting, a copy of the Certificate of Incorporation, and the Secretary was instructed to prefix said copy to the minutes.

The Secretary submitted to the meeting a seal proposed for use as the corporate seal of the Corporation. Upon motion duly made, seconded and unanimously carried, it was

RESOLVED, that the form of seal submitted to this meeting be, and it hereby is, approved and adopted as the corporate seal of this Corporation, and that an impression thereof be made on the margin of these minutes.

There was presented to the meeting a specimen of a proposed certificate to represent the shares of the Corporation. Upon motion duly made, seconded and unanimously carried, it was

RESOLVED, that the specimen form of certificate which has been presented to this meeting be, and the same hereby is, approved and adopted as the certificate to represent the shares of this Corporation; and it was further

RESOLVED, that the specimen certificate so presented to the meeting be annexed to the minutes thereof.

- 4 -

The banking arrangements of the Corporation were then discussed. After discussion, on motion duly made, seconded and carried, a proposed Secretarial Certificate to be furnished by the Secretary of the Corporation to was unanimously approved, and the resolutions set forth in such Secretarial Certificate were unanimously adopted. A conformed copy of such Secretarial Certificate was ordered annexed to the minutes of the meeting.

- 5 -

The Chairman presented to the meeting a certain written offer addressed to the Corporation by                                      , dated                         , pertaining to the issuance of the shares of the Corporation. A discussion followed. Upon motion duly made, seconded and unanimously carried, it was

RESOLVED, that the written offer dated                 , pertaining to the issuance of shares by                                  be, and the same hereby is in all respects, approved for and on behalf of the Corporation; and it was further

RESOLVED, that a copy of such written offer be annexed to the minutes of this meeting; and it was further

RESOLVED, that the Corporation issue and deliver to

upon receipt of the consideration therefor pursuant to the terms of the aforesaid proposal, a certificate representing                  shares of the Corporation,                              par value per share; and it was further

RESOLVED, that the shares so issued shall be fully paid and non-assessable, and that the value of the aforesaid consideration and the stated capital with respect to such shares shall be

and it was further

RESOLVED, that the officers of the Corporation be, and they hereby are, authorized, empowered and directed to take any and all steps, and to execute and deliver any and all instruments in connection with consummating the transaction contemplated by the aforesaid proposal and in connection with carrying the foregoing resolutions into effect.

- 5-A -

There being no further business to come before the meeting, upon motion duly made, seconded and unanimously carried, the same was adjourned.

Secretary

Attest:

Board of Directors

- 6 -

SPECIMEN FORM OF SHARE CERTIFICATE

Appendix A

CONFORMED COPY OF BANKING RESOLUTIONS

Appendix B

WAIVER OF NOTICE OF FIRST MEETING OF SHAREHOLDERS

OF

We, the undersigned, being all of the shareholders of the Corporation, hereby agree and consent that the first meeting of shareholders of the Corporation be held on the date and time, and at the place designated hereunder, and do hereby waive all notice whatsoever of such meeting and of any adjournment or adjournments thereof.

We do further agree and consent that any and all lawful business may be transacted at such meeting, or at any adjournment or adjournments thereof, as may be deemed advisable by any shareholder present thereat. Any business transacted at such meeting, or at any adjournment or adjournments thereof, shall be as valid and legal and of the same force and effect as if such meeting or adjourned meeting were held after notice.

Place of Meeting :

Date of Meeting :

Time of Meeting: :

Dated:                    

Shareholder

Shareholder

Shareholder

Page 7

MINUTES OF ANNUAL MEETING OF SHAREHOLDERS

OF

The first meeting of shareholders of the above captioned Corporation was held on the date, time and at the place set forth in the written Waiver of Notice signed by the shareholders, fixing such time and place, and prefixed to the minutes of this meeting.

The meeting was called to order by the President, heretofore elected by the Board of Directors, and the following shareholders being all of the shareholders of the Corporation, were present:

There was presented to the meeting the following

1. Copy of Certificate of Incorporation;

2. Copy of the By-Laws of the Corporation, duly adopted by the Board of Directors;

3. Minutes of Organization Meeting of Directors;

4. Corporate certificate book;

5. Corporate certificate record book.

- 8 -

Upon motion duly made, seconded and unanimously carried, it was

RESOLVED, that the items listed above have been examined by all shareholders, and are all approved and adopted, and that all acts taken and decisions reached, as set forth in such documents, be, and they hereby are, ratified and approved by the shareholders of the Corporation.

There being no further business to come before the meeting, upon motion duly made, seconded and unanimously carried, the same was adjourned.

Secretary

Attest:

Page 9

EX-99.T3B.33

Exhibit B-33

BY-LAWS

OF

NORTH JERSEY PROPERTIES, INC. VI

ARTICLE I

OFFICES

1.1 Registered Office: The registered office shall be established and maintained at and shall be the registered agent of the Corporation in charge hereof.

1.2 Other Offices: The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require, provided, however, that the corporation’s books and records shall be maintained at such place within the continental United States as the Board of Directors shall from time to time designate.

ARTICLE II

STOCKHOLDERS

2.1 Place of Stockholders’ Meetings: All meetings of the stockholders of the corporation shall be held at such place or places, within or outside the State of Delaware as may be fixed by the Board of Directors from time to time or as shall be specified in the respective notices thereof.

2.2 Date and Hour of Annual Meetings of Stockholders: An annual meeting of stockholders shall be held each year within five months after the close of the fiscal year of the Corporation.

2.3 Purpose of Annual Meetings: At each annual meeting, the stockholders shall elect the members of the Board of Directors for the succeeding year. At any such annual meeting any further proper business may be transacted.

2.4 Special Meetings of Stockholders: Special meetings of the stockholders or of any class or series thereof entitled to vote may be called by the President or by the Chairman of the Board of Directors, or at the request in writing by stockholders of record owning at least fifty (50%) percent of the issued and outstanding voting shares of common stock of the corporation.

By - Laws - 1

2.5 Notice of Meetings of Stockholders: Except as otherwise expressly required or permitted by law, not less than ten days nor more than sixty days before the date of every stockholders’ meeting the Secretary shall give to each stockholder of record entitled to vote at such meeting, written notice, served personally by mail or by telegram, stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Such notice, if mailed shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address for notices to such stockholder as it appears on the records of the corporation.

2.6 Quorum of Stockholders: (a) Unless otherwise provided by the Certificate of Incorporation or by law, at any meeting of the stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum. The withdrawal of any shareholder after the commencement of a meeting shall have no effect on the existence of a quorum, after a quorum has been established at such meeting.

(b) At any meeting of the stockholders at which a quorum shall be present, a majority of voting stockholders, present in person or by proxy, may adjourn the meeting from time to time without notice other than announcement at the meeting. In the absence of a quorum, the officer presiding thereat shall have power to adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting, other than announcement at the meeting, shall not be required to be given except as provided in paragraph (d) below and except where expressly required by law.

(c) At any adjourned session at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting originally called but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, unless a new record date is fixed by the Board of Directors.

(d) If an adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

2.7 Chairman and Secretary of Meeting: The President, shall preside at meetings of the stockholders. The Secretary shall act as secretary of the meeting or if he is not present, then the presiding officer may appoint a person to act as secretary of the meeting.

2.8 Voting by Stockholders: Except as may be otherwise provided by the Certificate of Incorporation or these by-laws, at every meeting of the stockholders each stockholder shall be entitled to one vote for each share of voting stock standing in his name on the books of the corporation on the record date for the meeting. Except as otherwise provided by these by-laws, all elections and questions shall be decided by the vote of a majority in interest of the stockholders present in person or represented by proxy and entitled to vote at the meeting.

By - Laws - 2

2.9 Proxies: Any stockholder entitled to vote at any meeting of stockholders may vote either in person or by proxy. Every proxy shall be in writing, subscribed by the stockholder or his duly authorized attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.

2.10 Inspectors: The election of directors and any other vote by ballot at any meeting of the stockholders shall be supervised by at least two inspectors. Such inspectors may be appointed by the presiding officer before or at the meeting; or if one or both inspectors so appointed shall refuse to serve or shall not be present, such appointment shall be made by the officer presiding at the meeting.

2.11 List of Stockholders: (a) At least ten days before every meeting of stockholders, the Secretary shall prepare and make a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.

(b) During ordinary business hours, for a period of at least ten days prior to the meeting, such list shall be open to examination by any stockholder for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.

(c) The list shall also be produced and kept at the time and place of the meeting during the whole time of the meeting, and it may be inspected by any stockholder who is present.

(d) The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 2.11 or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders.

2.12 Procedure at Stockholders’ Meetings: Except as otherwise provided by these by-laws or any resolutions adopted by the stockholders or Board of Directors, the order of business and all other matters of procedure at every meeting of stockholders shall be determined by the presiding officer.

2.13 Action By Consent Without Meeting: Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

By - Laws - 3

ARTICLE III

DIRECTORS

3.1 Powers of Directors: The property, business and affairs of the corporation shall be managed by its Board of Directors which may exercise all the powers of the corporation except such as are by the law of the State of Delaware or the Certificate of Incorporation or these by-laws required to be exercised or done by the stockholders.

3.2 Number, Method of Election, Terms of Office of Directors: The number of directors which shall constitute the Board of Directors shall be (            ) unless and until otherwise determined by a vote of a majority of the entire Board of Directors. Each Director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualified, provided, however, that a director may resign at any time. Directors need not be stockholders.

3.3 Vacancies on Board of Directors; Removal: (a) Any director may resign his office at any time by delivering his resignation in writing to the Chairman of the Board or to the President. It will take effect at the time specified therein or, if no time is specified, it will be effective at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(b) Any vacancy in the authorized number of directors may be filled by majority vote of the stockholders and any director so chosen shall hold office until the next annual election of directors by the stockholders and until his successor is duly elected and qualified or until his earlier resignation or removal.

(c) Any director may be removed with or without cause at any time by the majority vote of the stockholders given at a special meeting of the stockholders called for that purpose.

3.4 Meetings of the Board of Directors: (a) The Board of Directors may hold their meetings, both regular and special, either within or outside the State of Delaware.

(b) Regular meetings of the Board of Directors may be held at such time and place as shall from time to time be determined by resolution of the Board of Directors. No notice of such regular meetings shall be required. If the date designated for any regular meeting be a legal holiday, then the meeting shall be held on the next day which is not a legal holiday.

(c) The first meeting of each newly elected Board of Directors shall be held immediately following the annual meeting of the stockholders for the election of officers and the transaction of such other business as may come before it. If such meeting is held at the place of the stockholders’ meeting, no notice thereof shall be required.

By - Laws - 4

(d) Special meetings of the Board of Directors shall be held whenever called by direction of the Chairman of the Board or the President or at the written request of any one director.

(e) The Secretary shall give notice to each director of any special meeting of the Board of Directors by mailing the same at least three days before the meeting or by telegraphing, telexing, or delivering the same not later than the date before the meeting.

Unless required by law, such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting. Any and all business may be transacted at any meeting of the Board of Directors. No notice of any adjourned meeting need be given. No notice to or waiver by any director shall be required with respect to any meeting at which the director is present.

3.5 Quorum and Action: Unless provided otherwise by law or by the Certificate of Incorporation or these by-laws, a majority of the Directors shall constitute a quorum for the transaction of business; but if there shall be less than a quorum at any meeting of the Board, a majority of those present may adjourn the meeting from time to time. The vote of a majority of the Directors present at any meeting at which a quorum is present shall be necessary to constitute the act of the Board of Directors.

3.6 Presiding Officer and Secretary of the Meeting: The President, or, in his absence a member of the Board of Directors selected by the members present, shall preside at meetings of the Board. The Secretary shall act as secretary of the meeting, but in his absence the presiding officer may appoint a secretary of the meeting.

3.7 Action by Consent Without Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes or proceedings of the Board or committee.

3.8 Action by Telephonic Conference: Members of the Board of Directors, or any committee designated by such board, may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at such meeting.

3.9 Committees: The Board of Directors shall, by resolution or resolutions passed by a majority of Directors designate one or more committees, each of such committees to consist of one or more Directors of the Corporation, for such purposes as the Board shall determine. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee.

By - Laws - 5

3.10 Compensation of Directors: Directors shall receive such reasonable compensation for their service on the Board of Directors or any committees thereof, whether in the form of salary or a fixed fee for attendance at meetings, or both, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any Director from serving in any other capacity and receiving compensation therefor.

ARTICLE IV

OFFICERS

4.1 Officers, Title, Elections, Terms: (a) The elected officers of the corporation shall be a President, a Treasurer and a Secretary, and such other officers as the Board of Directors shall deem advisable. The officers shall be elected by the Board of Directors at its annual meeting following the annual meeting of the stockholders, to serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election and until their successors are elected and qualified.

(b) The Board of Directors may elect or appoint at any time, and from time to time, additional officers or agents with such duties as it may deem necessary or desirable. Such additional officers shall serve at the pleasure of the Board or otherwise as shall be specified by the Board at the time of such election or appointment. Two or more offices may be held by the same person.

(c) Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

(d) Any officer may resign his office at any time. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time has been specified, at the time of its receipt by the corporation. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

(e) The salaries of all officers of the corporation shall be fixed by the Board of Directors.

4.2 Removal of Elected Officers: Any elected officer may be removed at any time, either with or without cause, by resolution adopted at any regular or special meeting of the Board of Directors by a majority of the Directors then in office.

4.3 Duties: (a) President: The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall supervise and control all the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the Board of Directors. He shall see that all orders and resolutions of the Board of Directors are carried into effect (unless any such order or resolution shall provide otherwise), and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time.

By - Laws - 6

(b) Treasurer: The Treasurer shall (1) have charge and custody of and be responsible for all funds and securities of the Corporation; (2) receive and give receipts for moneys due and payable to the corporation from any source whatsoever, (3) deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositories as shall be selected by resolution of the Board of Directors; and (4) in general perform all duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the President or by the Board of Directors. He shall, if required by the Board of Directors, give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine.

(c) Secretary: The Secretary shall (1) keep the minutes of the meetings of the stockholders, the Board of Directors, and all committees, if any, of which a secretary shall not have been appointed, in one or more books provided for that purpose; (2) see that all notices are duly given in accordance with the provisions of these by-laws and as required by law; (3) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents, the execution of which on behalf of the corporation under its seal, is duly authorized; (4) keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder; (5) have general charge of stock transfer books of the Corporation; and (6) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the President or by the Board of Directors.

ARTICLE V

CAPITAL STOCK

5.1 Stock Certificates: (a) Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of, the corporation by the President and by the Treasurer or the Secretary, certifying the number of shares owned by him.

(b) If such certificate is countersigned by a transfer agent other than the corporation or its employee, or by a registrar other than the corporation or its employee, the signatures of the officers of the corporation may be facsimiles, and, if permitted by law, any other signature may be a facsimile.

(c) In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue.

By - Laws - 7

(d) Certificates of stock shall be issued in such form not inconsistent with the Certificate of Incorporation as shall be approved by the Board of Directors, and shall be numbered and registered in the order in which they were issued.

(e) All certificates surrendered to the corporation shall be canceled with the date of cancellation, and shall be retained by the Secretary, together with the powers of attorney to transfer and the assignments of the shares represented by such certificates, for such period of time as shall be prescribed from time to time by resolution of the Board of Directors.

5.2 Record Ownership: A record of the name and address of the holder of such certificate, the number of shares represented thereby and the date of issue thereof shall be made on the corporation’s books. The corporation shall be entitled to treat the holder of any share of stock as the holder in fact thereof, and accordingly shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as required by law.

5.3 Transfer of Record Ownership: Transfers of stock shall be made on the books of the corporation only by direction of the person named in the certificate or his attorney, lawfully constituted in writing, and only upon the surrender of the certificate therefor and a written assignment of the shares evidenced thereby. Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the certificates are presented to the corporation for transfer, both the transferor and the transferee request the corporation to do so.

5.4 Lost, Stolen or Destroyed Certificates: Certificates representing shares of the stock of the corporation shall be issued in place of any certificate alleged to have been lost, stolen or destroyed in such manner and on such terms and conditions as the Board of Directors from time to time may authorize.

5.5 Transfer Agent; Registrar; Rules Respecting Certificates: The corporation may maintain one or more transfer offices or agencies where stock of the corporation shall be transferable. The corporation may also maintain one or more registry offices where such stock shall be registered. The Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock certificates.

5.6 Fixing Record Date for Determination of Stockholders of Record: The Board of Directors may fix, in advance, a date as the record date for the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of the stockholders or any adjournment thereof, or the stockholders entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or to express consent to corporate action in writing without a meeting, or in order to make a determination of the stockholders for the purpose of any other lawful action. Such record date in any case shall be not more than sixty days nor less than ten days before the date of a meeting of the stockholders, nor more than sixty days prior to any, other action requiring such determination of the stockholders. A determination of stockholders of record entitled to notice or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

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5.7 Dividends: Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the corporation.

ARTICLE VI

SECURITIES HELD BY THE CORPORATION

6.1 Voting: Unless the Board of Directors shall otherwise order, the President, the Secretary or the Treasurer shall have full power and authority, on behalf of the corporation, to attend, act and vote at any meeting of the stockholders of any corporation in which the corporation may hold stock, and at such meeting to exercise any or all rights and powers incident to the ownership of such stock, and to execute on behalf of the corporation a proxy or proxies empowering another or others to act as aforesaid. The Board of Directors from time to time may confer like powers upon any other person or persons.

6.2 General Authorization to Transfer Securities Held by the Corporation (a) Any of the following officers, to wit: the President and the Treasurer shall be, and they hereby are, authorized and empowered to transfer, convert, endorse, sell, assign, set over and deliver any and all shares of stock, bonds, debentures, notes, subscription warrants, stock purchase warrants, evidence of indebtedness, or other securities now or hereafter standing in the name of or owned by the corporation, and to make, execute and deliver, under the seal of the corporation, any and all written instruments of assignment and transfer necessary or proper to effectuate the authority hereby conferred.

(b) Whenever there shall be annexed to any instrument of assignment and transfer executed pursuant to and in accordance with the foregoing paragraph (a), a certificate of the Secretary of the corporation in office at the date of such certificate setting forth the provisions of this Section 6.2 and stating that they are in full force and effect and setting forth the names of persons who are then officers of the corporation, then all persons to whom such instrument and annexed certificate shall thereafter come, shall be entitled, without further inquiry or investigation and regardless of the date of such certificate, to assume and to act in reliance upon the assumption that the shares of stock or other securities named in such instrument were theretofore duly and properly transferred, endorsed, sold, assigned, set over and delivered by the corporation, and that with respect to such securities the authority of these provisions of the by-laws and of such officers is still in full force and effect.

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ARTICLE VII

MISCELLANEOUS

7.1 Signatories: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

7.2 Seal: The seal of the corporation shall be in such form and shall have such content as the Board of Directors shall from time to time determine.

7.3 Notice and Waiver of Notice: Whenever any notice of the time, place or purpose of any meeting of the stockholders, directors or a committee is required to be given under the law of the State of Delaware, the Certificate of Incorporation or these by-laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the holding thereof, or actual attendance at the meeting in person or, in the case of any stockholder, by his attorney-in-fact, shall be deemed equivalent to the giving of such notice to such persons.

7.4 Indemnity: The corporation shall indemnify its directors, officers and employees to the fullest extent allowed by law, provided, however, that it shall be within the discretion of the Board of Directors whether to advance any funds in advance of disposition of any action, suit or proceeding, and provided further that nothing in this section 7.4 shall be deemed to obviate the necessity of the Board of Directors to make any determination that indemnification of the director, officer or employee is proper under the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145 of the Delaware General Corporation Law.

7.5 Fiscal Year: Except as from time to time otherwise determined by the Board of Directors, the fiscal year of the corporation shall end on

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EX-99.T3B.34

Exhibit B-34

BYLAWS

OF

HAMILTON PROPERTY I, INC.

(a Delaware corporation)

ARTICLE I

STOCKHOLDERS

1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation. Any or all the signatures on any such certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing such shares.

The corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of the lost, stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate or uncertificated shares.

2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law.

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3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. If the corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose.

4. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and, in the case of shares represented by certificates, on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon.

5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of

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Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining the stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the General Corporation Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “share of stock” or “shares of stock” or “stockholder” or “stockholders” refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the certificate of incorporation, except as any provision of law may otherwise require.

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7. STOCKHOLDER MEETINGS.

- TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors.

- PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of Delaware.

- CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the meeting.

- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. Except as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States Mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice.

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- STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders.

- CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting.

- PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if; and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally.

- INSPECTORS. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power

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of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation.

- QUORUM. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum.

- VOTING. Each share of stock shall entitle the holder thereof to one vote. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot.

8. STOCKHOLDER ACTION WITHOUT MEETINGS. Except as any provision of the General Corporation Law may otherwise require, any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law.

ARTICLE II

DIRECTORS

1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase “whole board” herein refers to the total number of directors which the corporation would have if there were no vacancies.

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2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The initial Board of Directors shall consist of one person. Thereafter the number of directors constituting the whole board shall be at least one. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the stockholders or of the directors, or, if the number is not fixed, the number shall be one. The number of directors may be increased or decreased by action of the stockholders or of the directors.

3. ELECTION AND TERM. The first Board of Directors, unless the members thereof shall have been named in the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Except as the General Corporation Law may otherwise require, in the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director.

4. MEETINGS.

- TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble.

- PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board.

- CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of the President, or of a majority of the directors in office.

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- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice.

- QUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these Bylaws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board or action of disinterested directors.

Any member or members of the Board of Directors or of any committee designated by the Board, may participate in a meeting of the Board, or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other.

- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside.

5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the General Corporation Law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.

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6. COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any power or authority the delegation of which is prohibited by Section 141 of the General Corporation Law, and may authorize the seal of the corporation to be affixed to all papers which may require it.

7. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

ARTICLE III

OFFICERS

The officers of the corporation shall consist of a President, a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice-President, one or more other Vice-Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers with such titles as the resolution of the Board of Directors choosing them shall designate. Except as may otherwise be provided in the resolution of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person, as the directors may determine.

Unless otherwise provided in the resolution choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of Directors following the next annual meeting of stockholders and until his successor shall have been chosen and qualified.

All officers of the corporation shall have such authority and perform such duties in the management and operation of the corporation as shall be prescribed in the resolutions of the Board of Directors designating and choosing such officers and prescribing their authority and duties, and shall have such additional authority and duties as are Incident to their office except to the extent that such resolutions may be inconsistent therewith. The Secretary or an Assistant Secretary of the corporation shall record all of the proceedings of all meetings and actions in writing of stockholders, directors, and committees of directors, and shall exercise such additional authority and perform such additional duties as the Board shall assign to him. Any officer may be removed, with or without cause, by the Board of Directors. Any vacancy in any office may be filled by the Board of Directors.

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ARTICLE IV

CORPORATE SEAL

The corporate seal shall be in such form as the Board of Directors shall prescribe.

ARTICLE V

FISCAL YEAR

The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors.

ARTICLE VI

CONTROL OVER BYLAWS

Subject to the provisions of the certificate of incorporation and the provisions of the General Corporation Law, the power to amend, alter, or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors or by the stockholders.

I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of the Bylaws of HAMILTON PROPERTY I, INC., a Delaware corporation, as in effect on the date hereof.

Dated:

Secretary of

HAMILTON PROPERTY I, INC.

(SEAL)

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City of New York

County of New York

May 11, 1998

ORGANIZATION ACTION IN WRITING OF INCORPORATOR

OF

HAMILTON PROPERTY I, INC.

(Organized May 11, 1998)

The following action is taken this day through this instrument by the incorporator of the above corporation:

1. The adoption of the initial Bylaws of the corporation.

2. The election of the following person to serve as the director of the corporation until the first annual meeting of stockholders and until this successor is elected and qualified or until his earlier resignation or removal:

Richard J. Scola

Camille Silva, Incorporator

EX-99.T3B.35

Exhibit B-35

EFFECTIVE NOVEMBER 30, 2005

AMENDED AND RESTATED BY-LAWS

OF

PATHMARK STORES, INC.

ARTICLE I

OFFICES

Pathmark Stores, Inc. (hereinafter called the “Corporation”), may establish or discontinue, from time to time, such offices and places of business within or without the State of Delaware as the Board of Directors may deem proper for the conduct of the Corporation’s business.

ARTICLE II

MEETING OF STOCKHOLDERS

Section II.1 Annual Meeting. The annual meeting of the holders of shares of such class or series of stock as are entitled to notice thereof and to vote thereat pursuant to the provisions of the Amended and Restated Certificate of Incorporation (hereinafter called “Annual Meeting of Stockholders”) for the purpose of electing directors and transacting such other business as may come before it shall be held in each year at such time, on such day and at such place, within or without the State of Delaware, as shall be designated by the Board of Directors.

Section II.2. Special Meetings. In addition to such special meetings as are provided for by law or by the Amended and Restated Certificate of Incorporation, special meetings of the holders of any class or series or of all classes or series of the Corporation’s stock may be called at any time by the Board of Directors and may be held at such time, on such day and at such place, within or without the State of Delaware, as shall be designated by the Board of Directors.

Section II.3. Notice of Meetings. Except as otherwise provided by law, notice of each meeting of stockholders shall be given either by delivering such notice personally or mailing such notice to each stockholder of record entitled to vote thereat. If mailed, the notice shall be directed to the stockholder in a postage-prepaid envelope at his address as it appears on the stock books of the Corporation unless, prior to the time of mailing, he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request. Notice of each meeting of stockholders shall be in such form as is approved by the Board of Directors or the Secretary, as the case may be, and shall state the purpose or purposes for which the meeting is called, the time when and the place where it is to be held, and shall be delivered personally or mailed not more than sixty (60) days and not less than ten (10) days before the day of the meeting. Except as otherwise provided by law, the business which may be transacted at any such meeting of stockholders shall be in accordance with Section II.4 hereof.

Section II.4. Notice of Stockholder Proposal and Director Nomination. Any stockholder entitled to vote at the Annual Meeting of Stockholders may recommend one or more persons to be nominated for election to the Board of Directors or propose business to be brought before the Annual Meeting of Stockholders, or both, only if the stockholder has given timely notice in proper written form of such stockholder’s recommendation or proposal of business. To be timely, a stockholder’s notice must be delivered to or mailed and received by the Secretary of the Corporation at the principal executive offices of the Corporation no more than 90 days but no less than 60 days prior to the one year anniversary of the date of the Annual Meeting of Stockholders of the previous year; provided, however, that in the event the Annual Meeting of Stockholders is called for a date that is not within 30 days before or after such anniversary date,

notice by the stockholder must be received at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which the Corporation’s notice of the date of the meeting is first given or made to stockholders or disclosed to the general public (which disclosure may be effected by means of a publicly available filing with the Securities and Exchange Commission), whichever occurs first.

The written notice of a stockholder’s recommendation that a person be nominated for election as a director at the Annual Meeting of Stockholders shall set forth: (i) the name, age, business address and residence address of each such person in such notice, (ii) the principal occupation or employment of each such person, (iii) the number of shares of capital stock of the Corporation which are beneficially owned by each such person, and (iv) such other information concerning each such person as would be required, under the rules of the Securities and Exchange Commission in a proxy statement soliciting proxies for the election of such person as a director. Such notice shall include a signed consent of each such nominee to serve as a director of the Corporation, if elected. The Board of Directors or a committee thereof shall consider nominating for election as director any person for whom a stockholder timely submits such recommendation in proper form.

A stockholder’s notice to the Secretary proposing business to be brought before the Annual Meeting of Stockholders shall set forth as to each matter of business (i) a brief description of the business desired to be brought before the Annual Meeting of Stockholders and the reasons for conducting such business at the Annual Meeting of Stockholders, (ii) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by the stockholder, and (iv) any material interest of the stockholder in such business. The chairman

of the Annual Meeting of Stockholders shall, if the facts warrant, determine and declare to the meeting that the business was not properly brought before the meeting in accordance with the provisions of this Section II.4, and if so determined, the chairman shall also declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

Section II.5. Waiver of Notice. Anything herein contained to the contrary notwithstanding, notice of any meeting of stockholders shall not be required as to any stockholder who shall attend and participate in the business transacted as such meeting in person or by proxy, or who shall, or whose proxy or attorney duly authorized shall, sign a written waiver thereof, whether before or after the time stated therein. Attendance of a person at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the person attends such meeting for the purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

Section II.6. Organization. The Chairman shall act as chairman at all meetings of stockholders at which he is present, and as such chairman shall call such meetings of stockholders to order and preside thereat. If the Chairman shall be absent from any meeting of stockholders, the duties otherwise provided in this Section II.6 to be performed by him at such meeting shall be performed at such meeting by the director prescribed by Section IV.4 hereof. The Secretary shall act as secretary at all meetings of the stockholders, but in his absence the chairman of the meeting may appoint any person present to act as secretary of the meeting.

Section II.7. Judges. All votes by ballot at any meeting of stockholders shall be conducted by two judges who shall, except as otherwise provided by law, be appointed for the purpose by the chairman of the meeting. The judges shall decide upon the qualifications of voters, count the votes and declare the result.

Section II.8. Stockholders Entitled to Vote. The Board of Directors may fix a date not more than sixty (60) days nor less than ten (10) days prior to the date of any meeting of stockholders, or prior to the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose without a meeting, as a record date for the determination of the stockholders entitled to notice of, and to vote at, such meeting and any adjournment thereof, or to give such consent or express such dissent, and in such case such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any adjournment thereof, or to give such consent or express dissent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. The Secretary shall prepare and make, or cause to be prepared and made, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order and showing the address of each such stockholder and the number of shares registered in the name of each such stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place, specified in the notice of the meeting, within the city where the meeting is to be held, or, if not so specified, at the place where the meeting is to be held. Such list shall be produced and kept at the time and place of the meeting during the whole time thereof, and subject to the inspection of any stockholder who may be present.

Section II.9. Quorum and Adjournment. Except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation, the holders of a majority of the shares of stock entitled to vote at the meeting present in person or by proxy without regard to class or series shall constitute a quorum at all meetings of the stockholders. In the absence of a

quorum, the holders of a majority of such shares of stock present in person or by proxy may adjourn any meeting, from time to time, until a quorum shall be present. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned, provided that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, then a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section II.10. Order of Business. The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting or as is otherwise determined by the vote of the holders of a majority of the shares of stock present in person or by proxy and entitled to vote without regard to class or series at the meeting.

Section II.11. Vote of Stockholders. Except as otherwise permitted by law or by the Amended and Restated Certificate of Incorporation or these Amended and Restated By-Laws, all action by stockholders shall be taken at a stockholders’ meeting. Every stockholder of record, as determined pursuant to Section II.8 hereof, and who is entitled to vote, shall be entitled at every meeting of the stockholders to one vote for every share of stock standing in his name on the books of the Corporation, except as otherwise expressly provided in the Amended and Restated Certificate of Incorporation with respect to any class or series of the Corporation’s capital stock. Every stockholder entitled to vote shall have the right to vote in person or by proxy duly appointed by an instrument in writing, subscribed by such stockholder and executed not more than three (3) years prior to the meeting, unless the instrument provides for a longer period. The attendance at any meeting of stockholders of a stockholder who may theretofore

have given a proxy shall not have the effect of revoking such proxy unless such stockholder shall in writing so notify the secretary of the meeting prior to the voting of the proxy. Election of Directors shall be by ballot, but, unless otherwise provided by law, no vote on any question upon which a vote of the stockholders may be taken need be by ballot unless the chairman of the meeting shall determine that it shall be by ballot or the holders of a majority of the shares of stock present in person or by proxy and entitled to participate in such vote shall so demand. In a vote by ballot, each ballot shall state the number of shares voted and the name of the stockholder or proxy voting. Except as otherwise provided by law, by the Amended and Restated Certificate of Incorporation, by the rules of any national market or national stock exchange upon which shares of stock of the Corporation are listed, or by Section III. 14 hereof, all elections of Directors and all questions shall be decided by the vote of the holders of a majority of the shares of stock present in person or by proxy at the meeting and entitled to vote in the election or on the question.

Section II.12. Consent of Stockholders in Lieu of Meeting. The stockholders may take action without a meeting by written consent in the manner prescribed by Section 228 of the General Corporation Law of the State of Delaware.

Section II.13. Attendance at Stockholders’ Meetings. Except as otherwise provided by the Amended and Restated Certificate of Incorporation or these Amended and Restated By-Laws, any stockholder of the Corporation shall be entitled to attend any meeting of stockholders of the Corporation regardless of whether such stockholder shall be entitled to vote any shares thereat or to have received notice thereof.

ARTICLE III

BOARD OF DIRECTORS

Section III.1. Election and Term. Except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation, and subject to the provisions of Sections III.2, III. 13, and III.14 hereof, directors shall be elected by the stockholders at each Annual Meeting of Stockholders to serve until the next Annual Meeting of Stockholders and until their successors are elected and qualified or until their earlier resignation or removal.

Section III.2. Qualification. Acceptance of the office of director may be expressed orally or in writing. The Board of Directors or the stockholders may fix, from time to time, such qualifications, if any, for election as a director or the continued holding of such office as they may deem appropriate in view of the Corporation’s business.

Section III.3. Number. The number of directors may be fixed from time to time by resolution of the Board of Directors, such resolution to be approved by not less than one more than a majority of the directors then in office, but shall not be less than nine (9) nor more than ten (10).

Section III.4. General Powers. The business, properties and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which, without limiting the generality of the foregoing, shall have power to elect and appoint officers of the Corporation, to appoint and direct agents, to grant general or limited authority to officers, employees and agents of the Corporation, to make, execute and deliver contracts and other instruments and documents in the name and on behalf of the Corporation and over its seal, without specific authority in each case, and to appoint committees of the Board of Directors in addition to those provided for in Article IV hereof, the membership of which may consist of either one or more directors and one or more persons who are not directors or two or more

persons who are not directors, and which may advise the Board of Directors with respect to any matters relating to the conduct of the Corporation’s business. The Board of Directors may designate one or more directors as alternate members of any committee, including those provided for in Article IV hereof, who may replace any absent or disqualified member at any meeting of the committee. In addition, the Board of Directors may exercise all the powers of the Corporation and do all lawful acts and things which are not reserved to the stockholders by law or by the Amended and Restated Certificate of Incorporation.

Section III.5. Place of Meetings. Meetings of the Board of Directors may be held at any place, within or without the State of Delaware, from time to time designated by the Board of Directors.

Section III.6. Organization Meeting. A newly elected Board of Directors shall meet and organize, and also may transact any other business which might be transacted at a regular meeting thereof, as soon as practicable after each Annual Meeting of Stockholders, at the place at which such meeting of stockholders took place, without notice of such meeting, provided at least five (5) of the directors are present. The directors shall at the organizational meeting and from time to time thereon appoint a Chairman from among the members of the Board of Directors then duly elected and serving (the “Chairman”), which Chairman may, but need not, also hold a separate position as an officer and employee of the Corporation. If at least such a number of directors is not present, such organization meeting may be held at any other time or place which may be specified in a notice given in the manner provided in Section III.8 hereof for special meetings of the Board of Directors, or in a waiver of notice thereof.

Section III.7. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times as may be determined by resolution of the Board of Directors and no notice shall be required for any regular meeting. Except as otherwise provided by law or by the rules of any national market or national stock exchange upon which shares of stock of the Corporation are listed, any business may be transacted at any regular meeting of the Board of Directors.

Section III.8. Special Meetings: Notice and Waiver of Notice. Special meetings of the Board of Directors shall be called by the Secretary on the request of the Chairman or the Chief Executive Officer, or on the request of any two (2) directors stating the purpose or purposes of such meeting. Notice of any special meeting shall be in a form approved by the directors pursuant to whose request the meeting was called, subject to the reasonable control of the Secretary. Notices of special meetings shall be mailed to each director, addressed to him at his residence or usual place of business, not later than two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegraph, cable or other form of recorded communication, or be delivered personally or by telephone, not later than the day before such day of meeting. Notice of any meeting of the Board of Directors need not be given to any director if he shall sign a written waiver thereof either before or after the time stated therein, or if he shall be present at the meeting and participate in the business transacted thereat, except if a director attends for the purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any meeting of the Board of Directors shall be a legal meeting without any notice thereof having been given if all the members shall be present thereat. Unless limited by law, by the Amended and Restated Certificate of Incorporation, by these Amended and Restated By-Laws, by the rules of any national market or national stock exchange upon which shares of stock of the Corporation are listed, or by the terms of the notice thereof, any and all business may be transacted at any special meeting.

Section III.9. Organization of Meetings. The Chairman shall preside at all meetings of the Board of Directors at which he is present. If the Chairman shall be absent from any meeting of the Board of Directors, the duties otherwise provided in this Section III.9 to be performed by him at such meeting shall be performed at such meeting by the director prescribed by Section IV.4. The Secretary shall act as the secretary at all meetings of the Board of Directors and in his absence a temporary secretary shall be appointed by the chairman of the meeting.

Section III.10. Quorum and Manner of Acting. Except as otherwise provided in Section III.6 hereof, at every meeting of the Board of Directors five (5) of the directors shall constitute a quorum. Except as otherwise provided by law, or by the Amended and Restated Certificate of Incorporation, or by Sections III.14, IV.1, Article V or Article X hereof, the act of a majority of the directors present at any such meeting, at which a quorum is present, shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting, from time to time, until a quorum is present. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. Members of the Board of Directors or any committee thereof may participate in a meeting of the Board of Directors or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation by a member of the Board of Directors in a meeting pursuant to this Section III.10 shall constitute his presence in person at such meeting.

Section III.11. Voting. On any question on which the Board of Directors shall vote, the names of those voting and their votes shall be entered in the minutes of the meeting when any member of the Board of Directors so requests at the time.

Section III.12. Action Without a Meeting. Except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if prior to such action all members of the Board of Directors or of such committee, as the case any be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or the committee.

Section III.13. Resignations. Any director may resign at any time upon written notice of resignation to the Corporation. Any resignation shall be effective immediately unless a date certain is specified for it to take effect, in which event it shall be effective upon such date, and acceptance of any resignation shall not be necessary to make it effective, irrespective of whether the resignation is tendered subject to such acceptance.

Section III.14. Filling of Vacancies. Except as otherwise provided by law or the Amended and Restated Certificate of Incorporation, in case of any increase in the number of directors, or of any vacancy in the Board of Directors, including any prospective vacancy to result from the effectiveness at a future date of a resignation therefrom, the additional director or directors may be elected, or, as the case may be, the vacancy or vacancies may be filled, by the Board of Directors at any meeting by affirmative vote of a majority of the remaining directors though the remaining directors be less than the quorum provided in Section III.10 hereof, or by a sole remaining director. If the Corporation is required to have a nominating or governance committee (or other committee performing similar function) by the rules of any national market

or national stock exchange upon which shares of stock of the Corporation are listed, such committee shall be involved in the election of directors to fill any vacancy in the Board of Directors to the extent and in the manner set forth in its charter. The directors so chosen shall hold office until the next Annual Meeting of Stockholders and until their successors are elected and qualified or until their earlier removal or resignation.

ARTICLE IV

COMMITTEES

Section IV.1. Constitution and Powers. The Board of Directors may, by resolution adopted by affirmative vote of a majority of the whole Board of Directors, appoint one or more committees of the Board of Directors which shall have such powers and duties as the Board of Directors shall properly determine. Such committees of the Board of Directors shall be composed of one or more directors.

Section IV.2. Place of Meetings. Meetings of any committee of the Board of Directors may be held at any place, within or without the State of Delaware, from time to time designated by the Board of Directors or such committee.

Section IV.3. Meetings; Notice and Waiver of Notice. Regular meetings of any committee of the Board of Directors shall be held at such times as may be determined by resolution either of the Board of Directors or of such committee and no notice shall be required for any regular meeting. Special meetings of any committee shall be called by the secretary thereof upon request of any member. Notice of any special meeting of any committee shall be in a form approved by the Chairman. Notices of special meetings shall be mailed to each member, addressed to him at his residence or usual place of business, not later than two (2) days before the day on which the meeting is to be held, or shall be sent to him at such place by telegraph, cable or any other form of recorded communication, or be delivered personally or by telephone,

not later than the day before such day of the meeting. Neither the business to be transacted at, nor the purpose of, any special meeting of any committee need be specified in any notice or written waiver of notice unless so required by the Amended and Restated Certificate of Incorporation or these Amended and Restated By-Laws. Notices of any such meeting need not be given to any member of any committee, however, if waived by him as provided in Section III.8 hereof, and the provisions of such Section III.8 with respect to waiver of notice of meetings of the Board of Directors shall apply to meetings of any committee as well.

Section IV.4. Organization of Meetings. The director present who has served the longest as a director, except as otherwise expressly provided in these Amended and Restated By-Laws or by the Board of Directors or the committee, shall preside at all meetings of any committee. The Secretary, except as otherwise expressly provided by the Board of Directors, shall act as secretary at all meetings of any committee and in his absence a temporary secretary shall be appointed by the chairman of the meeting.

Section IV.5. Quorum and Manner of Acting. A majority of the members of any committee then in office (or one director if a committee of one) shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of such committee. In the absence of a quorum, a majority of the members of any committee present, or, if two or fewer members shall be present, any member of the committee present or the Secretary, may adjourn any meeting, from time to time, until a quorum is present. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. The provisions of Section III.10 hereof with respect to participation in a meeting of a committee of the Board of Directors and the provisions of Section III.12 hereof with respect to action taken by a committee of the Board of Directors without a meeting shall apply to participation in meetings of and action taken by any committee.

ARTICLE V

OFFICERS

Section V.1. The Board of Directors shall elect the following executive officers: a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer, a Secretary; and it shall elect or appoint from time to time such other or additional officers (including, without limitation, Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries) as in its opinion are desirable for the conduct of the business of the Corporation, unless otherwise required by the Amended and Restated Certificate of Incorporation.

Section V.2. The term of all executive officers shall be for one year, or until their respective successors are chosen and qualify. Any officer or Agent shall be subject to removal for or without cause at any time by the affirmative vote of a majority of the whole Board of Directors. Vacancies in any office may be filled at any regular or special meeting of the Board.

Section V.3. The officers of the Corporation shall, unless otherwise ordered by the Board of Directors, each have such powers and duties as generally pertain to their respective offices as well as such powers and duties as from time to time may be conferred by the Board of Directors.

Section V.4. Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President or any Vice President shall have full power and authority on behalf of the Corporation to attend and to vote at any meeting of stockholders of any corporation in which this Corporation may hold stock, and may exercise on behalf of this Corporation any and all of the rights and powers incident to the ownership of such stock at any such meeting, and shall have power and authority to execute and deliver proxies, waivers and consents on behalf of the Corporation in connection with the exercise by the Corporation of the rights and powers incident to the ownership of such stock. The Board of Directors from time to time may confer like powers upon any other person or persons.

ARTICLE VI

STOCK AND TRANSFERS OF STOCK

Section VI.1. Stock Certificates. The capital stock of the Corporation shall be represented by certificates signed by, or in the name of the Corporation by, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President or any Vice President and the Secretary or an Assistant Secretary, and sealed with the seal of the Corporation. In case any such officer who has signed any such certificate shall have ceased to be such officer before such certificate is delivered by the Corporation, it may nevertheless be issued and delivered by the Corporation with the same effect as if such officer had not ceased to be such at the date of its delivery. The certificates representing the capital stock of the Corporation shall be in such form as shall be approved by the Board of Directors.

Section VI.2. Transfers of Stock. Transfers of stock shall be made on the books of the Corporation by the Secretary or the Assistant Secretary of the Corporation, or by an attorney lawfully constituted in writing, and upon surrender and cancellation of a certificate or certificates for a like number shares of the same class or series of stock, with duly executed assignment and power of transfer endorsed thereon or attached thereto, and with such proof of the authenticity of the signatures as the Corporation or its agents may reasonably require and with all required stock transfer tax stamps affixed thereto and cancelled or accompanied by sufficient funds to pay such taxes.

Section VI.3. Lost Certificates. In case any certificate of stock shall be lost, stolen or destroyed, the Board of Directors, in its discretion, or any officer or officers thereunto duly authorized by the Board of Directors, may authorize the issue of a substitute certificate in place of the certificate so lost, stolen or destroyed; provided, however, that, in each such case, the applicant for a substitute certificate shall furnish evidence to the Corporation, which it determines in its discretion is satisfactory, of the loss, theft or destruction of such certificate and of the ownership thereof, and also such security or indemnity as may be required by it.

Section VI.4. Determination of Stockholders of Record for Certain Purposes. The Board of Directors may fix, in advance, a date, not more than sixty (60) days prior to the date of payment of any dividend or other distribution, or the date for the allotment of rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to receive payment of any such dividend or other distribution, or any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of its capital stock, and in such case only stockholders of record on the date so fixed shall be entitled to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.

ARTICLE VII

CORPORATE SEAL

Section VII.1. Seal. The seal of the Corporation shall be in the form of a circle and shall bear the name of the Corporation and, in the center of the circle, the words “Corporate Seal, Delaware” and the figures “1987”.

Section VII.2. Affixing and Attesting. The seal of the Corporation shall be in the custody of the Secretary, who shall have power to affix it to the proper corporate instruments and documents, and who shall attest it. In his absence, it may be affixed and attested by an Assistant Secretary, or by the Treasurer or an Assistant Treasurer or by any other person or persons as may be designated by the Board of Directors.

ARTICLE VIII

INDEMNIFICATION

Section VIII.1. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

Section VIII.2. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at

the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of Delaware or such other court shall deem proper.

Section VIII.3. Notwithstanding the other provisions of this Article, to the extent that a present or former director, officer, employee or agent of the Corporation has been successful on the merits or otherwise, in defense of any action, suit or proceeding referred to in Sections VIII.1 and VIII.2 hereof, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

Section VIII.4. Any indemnification under Sections VIII.1 and VIII.2 hereof (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstance because the person has met the applicable standard of conduct set forth in Sections VIII.1 and VIII.2 hereof. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1)

by a majority vote of the directors who are not parties to such action, suit or proceeding even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

Section VIII.5. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

Section VIII.6. Any indemnification under Sections VIII. 1, VIII.2 and VIII.3 hereof, or advance of expenses under Section VIII.5 hereof, shall be made promptly, and in any event within 60 days, upon the written notice of the director, officer, employee or agent. The right to indemnification or advances as granted by this Article shall be enforceable by the director, officer, employee or agent in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person’s costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section VIII.5 hereof where the required undertaking, if any, has been received by the Corporation) that the claimant has not met

the standard of conduct set forth in Section VIII.1 or VIII.2 hereof, but the burden of proving such defense shall be on the Corporation. Neither failure of the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) to have made a determination that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in Section VIII.1 or VIII.2 hereof, nor the fact that there has been actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section VIII.7. The indemnification and advancement of expenses provided by, or granted pursuant to this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.

Section VIII.8. The Corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article.

Section VIII.9. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section VIII.10. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director, officer, employee and agent of the Corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action by or in the right of the Corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law.

ARTICLE IX

MISCELLANEOUS

Section IX.1. Fiscal Year. The fiscal year of the Corporation shall end on the Saturday closest to January 31 in each year and the succeeding fiscal year shall begin on the day next succeeding the last day of the preceding fiscal year, unless changed by the Board of Directors.

Section IX.2. Signatures on Negotiable Instruments. All bills, notes, checks or other instruments for the payment of money shall be signed or countersigned by such officers or agents and in such manner as, from time to time, may be prescribed by resolution (whether general or special) of the Board of Directors, or may be prescribed by any officer or officers, or any officer and agent jointly, thereunto duly authorized by the Board of Directors.

Section IX.3. References to the Amended and Restated Certificate of Incorporation. Whenever reference is made to the Amended and Restated Certificate of Incorporation, such reference is to the Amended and Restated Certificate of Incorporation of the Corporation, as amended, including all documents deemed by the General Corporation Law of the State of Delaware to constitute a part thereof.

ARTICLE X

AMENDMENTS

These Amended and Restated By-Laws may be altered, amended or repealed at any Annual Meeting of Stockholders, or at any special meeting of holders of shares of stock entitled to vote thereon, provided that in the case of a special meeting, notice of such proposed alteration, amendment or repeal be included in the notice of meeting, by a vote of the holders of a majority of the shares of stock present in person or by proxy at the meeting and entitled to vote thereon, or (except as otherwise expressly provided in any By-Law adopted by the stockholders) by the Board of Directors at any valid meeting by affirmative vote of a majority of the whole Board of Directors.

EX-99.T3B.36

Exhibit B-36

LIMITED LIABILITY COMPANY AGREEMENT

OF

PLAINBRIDGE LLC

A Delaware Limited Liability Company

DATED AS OF:

May 4, 2001

TABLE OF CONTENTS

Section		Page No
1.	Name; Formation		1
2.	Definitions; Rules of Construction		1
3.	Purpose		3
4.	Offices		3
5.	Members		3
6.	Term		3
7.	Management of the Company		3
8.	Capital Contributions; Capital Accounts; Administrative Matters; Certificates		4
9.	Assignments of Interests		6
10.	Resignation		7
11.	Additional Members		7
12.	Distributions		7
13.	Return of Capital		7
14.	Dissolution		7
15.	Winding Up of the Company		8
16.	Limitation on Liability		9
17.	Standard of Care; Indemnification of Managers, Officers, Employees and Agents		9
18.	Amendments		10
19.	Governing Law		10

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Schedule I -	Identification of Members, Addresses and Capital Contributions
Exhibit A -	Bylaws
Exhibit B -	Form of Certificate

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LIMITED LIABILITY COMPANY AGREEMENT

OF

PLAINBRIDGE LLC

THE UNDERSIGNED is executing this Limited Liability Company Agreement (this “Agreement”) for the purpose of (i) effectuating the conversion of Plainbridge, Inc., a Delaware corporation (the “Converted Corporation”), to a Delaware limited liability company (the “Company”), and (ii) adopting a limited liability company agreement for the governance of the business and affairs of the Company, each pursuant to the provisions of the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq. (the “Delaware Act”).

1. Name; Formation. The name of the Company shall be Plainbridge LLC, or such other name as the Board of Managers may from time to time hereafter designate. The Company constitutes a continuation of the existence the Converted Corporation in the form of a Delaware limited liability company. In accordance with Section 18-214(b) of the Delaware Act, the Certificate of Conversion (converting the Converted Corporation to the Company) and the Certificate of Formation of the Company have been duly executed by a Member or other person designated by a Member or by any officer, agent or employee of the registered agent of the Company in the State of Delaware (any such person being an authorized person to take such action) and filed in the Office of the Secretary of State of the State of Delaware. As provided in Section 18-214(d) of the Delaware Act, the existence of the Company is deemed to have commenced on April 12, 1993, the date the Converted Corporation was originally organized under the laws of the State of Delaware.

2. Definitions; Rules of Construction. In addition to terms otherwise defined herein, the following terms are used herein as defined below:

“Board of Managers” means the board of managers referenced in Section 7 hereof.

“Bylaws” shall mean the Bylaws of the Company as amended from time to time which Bylaws are expressly incorporated herein by reference as part of this Agreement. The initial Bylaws of the Company are attached hereto as Exhibit A and are hereby adopted and approved by the Members.

“Capital Contribution” means, with respect to any Member, the amount or value of cash (or promissory obligations), property or services contributed by such Member to the Company in accordance with Section 8 hereof.

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“Certificate” means a certificate substantially in the form of Exhibit B to this Agreement issued by the Company that evidences an Interest in the Company.

“Initial Member” means Pathmark Stores, Inc., a Delaware corporation.

“Interest” means the ownership interest of a Member in the Company (which shall be considered personal property for all purposes), consisting of (i) such Member’s Percentage Interest in profits, losses, allocations and distributions, (ii) such Member’s right to vote or grant or withhold consents with respect to Company matters as provided herein or in the Delaware Act and (iii) such Member’s other rights and privileges as provided herein or in the Delaware Act.

“Manager” means a member of the Board of Managers as designated in, or selected pursuant to, Section 7 hereof.

“Members” means the Initial Member and all other persons or entities admitted as additional or substituted Members pursuant to this Agreement, so long as they remain Members. Reference to a “Member” means any one of the Members.

“Majority in Interest of the Members” means Members whose Percentage interests aggregate to greater than fifty percent of the Percentage Interests of all Members.

“Percentage Interest” means a Member’s share of the profits and losses of the Company and the Member’s percentage right to receive distributions of the Company’s assets. The Percentage Interest of each Member shall initially be the percentage set forth opposite such Member’s name on Schedule I hereto, as such Schedule shall be amended from time to time in accordance with the provisions hereof. The combined Percentage Interest of all Members shall at all times equal 100%.

Words used herein, regardless of the number and gender used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires, and, as used herein, unless the context clearly requires otherwise, the words “hereof,” “herein,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provisions hereof.

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3. Purpose. The purposes and powers of the Company shall be to engage in any lawful business or activity that may be engaged in by a limited liability company formed under the Delaware Act, as such businesses or other activities may be determined by the Board of Managers from time to time.

4. Offices.

(a) The principal office of the Company, and such additional offices as the Board of Managers may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the Board of Managers may designate from time to time.

(b) The registered office of the Company in the State of Delaware is located at 2711 Centerville Road, Suite 400, Wilmington, Delaware. The registered agent of the Company for service of process at such address is Corporation Service Company. Such registered office or registered agent may be changed by the Board of Managers from time to time.

5. Members. The name and business, mailing or residence address of each Member of the Company are as set forth on Schedule I attached hereto, as the same may be amended from time to time.

6. Term. The term of the Company shall be perpetual unless the Company is dissolved and terminated in accordance with Section 14 of this Agreement

7. Management of the Company.

(a) Subject to the delegation of right and powers as provided for herein and in the Bylaws, the Board of Managers shall have the sole right to manage the business of the Company and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Company. No Member, by reason of its status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions specified herein or in the Delaware Act to be voted on or approved by the Members. At any time that there is only one Member, any and all action provided for herein or in the Bylaws to be taken or approved by the “Members” shall be taken or approved by the sole Member.

(b) The Company shall have such officers as are provided for in the Bylaws, and such officers shall be elected, removed and perform such functions as are provided in the Bylaws. The Board of Managers may appoint, employ, or otherwise contract with such other persons or entities for the transaction of the business of the Company or the performance of services for or on behalf of the Company as it shall determine in its sole discretion. The Board of Managers may delegate to any officer of the Company or to any such other person or entity such authority to act on behalf of the Company as the Board of Managers may from time to time deem appropriate in its sole discretion. The salaries or other compensation, if any, of the officers and agents of the Company shall be fixed from time to time by the Board of Managers.

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(c) Except as otherwise provided by the Board of Managers or in the Bylaws, when the taking of such action has been authorized by the Board of Managers, any Manager or officer of the Company, or any other person specifically authorized by the Board of Managers, may execute any contract or other agreement or document on behalf of the Company and may execute on behalf of the Company and file with the Secretary of State of the State of Delaware any certificates or filings provided for in the Delaware Act.

(d) The Board of Managers shall consist of three (3) Managers or such other number as the Board of Managers shall determine. The Board of Managers shall initially be composed of the following individuals:

Joseph Adelhardt

Frank Vitrano

Marc Strassler

Vacancies on the Board of Managers from whatever cause shall be filled by the remaining Managers, or, if there be none, by a vote of a Majority in Interest of the Members, Managers shall serve for a term of one (1) year and thereafter until their respective successors are duly elected by the Members or until their earlier death, retirement, incapacity or removal. Managers can be removed with or without cause by a vote of a Majority in Interest of the Members. Determinations to be made by the Managers in connection with the conduct of the business of the Company shall be made in the manner provided in the Bylaws, unless otherwise specifically provided herein.

8. Capital Contributions; Capital Accounts; Administrative Matters; Certificates.

(a) The Initial Member has contributed to the Company the cash or other property identified on Schedule I hereto. Except as otherwise agreed by all Members, the Initial Member shall have no right or obligation to make any further capital contributions to the Company. Persons or entities hereafter admitted as Members of the Company shall make such contributions of cash (or promissory obligations), property or services to the Company as shall be determined by the Members, acting unanimously, at the time of each such admission.

(b) At any time that the Company has more than one Member, it is the intention of the Members that the Company shall be taxed as a “partnership” for federal, state, local and foreign income tax purposes, and the following provisions shall apply:

(i) A single, separate capital account shall be maintained for each Member. Each Member’s capital account shall be credited with the amount of money and the fair market value of property (net of any liabilities secured by such contributed property that the Company assumes or takes subject to) contributed by that Member to the Company; the amount

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of any Company liabilities assumed by such Member (other than in connection with a distribution of Company property), and such Member’s distributive share of Company profits (including tax exempt income). Each Member’s capital account shall be debited with the amount of money and the fair market value of property (net of any liabilities that such Member assumes or takes subject to) distributed to such Member, the amount of any liabilities of such Member assumed by the Company (other than in connection with a contribution); and such Member’s distributive share of Company losses (including items that may be neither deducted nor capitalized for federal income tax purposes).

(ii) Notwithstanding any provision of this Agreement to the contrary, each Member’s capital account shall be maintained and adjusted in accordance with the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), and the regulations thereunder (the “Regulations”), including, without limitation, (x) the adjustments permitted or required by Internal Revenue Code Sections 704(b) and, to the extent applicable, the principles expressed in Internal Revenue Code Section 704(c) and (y) adjustments required to maintain capital accounts in accordance with the “substantial economic effect test” set forth in the Regulations under Internal Revenue Code Section 704(b).

(iii) Any Member, including any substitute Member, who shall receive an Interest (or whose Interest shall be increased) by means of a transfer to him of all or a part of the Interest of another Member, shall have a capital account that reflects the capital account associated with the transferred Interest (or the applicable percentage thereof in case of a transfer of a part of an Interest).

(iv) The fiscal year of the Company shall end on the Saturday closest to January 31 in each year and the succeeding fiscal year shall begin on the day next succeeding the last day of the preceding fiscal year, unless changed by the Board of Managers. The books and records of the Company shall be maintained in accordance with generally accepted accounting principles and Section 704(b) of the Internal Revenue Code and the Regulations.

(v) All items of Company income, gain, loss, deduction, credit or the like shall be allocated among the Members in accordance with their respective Percentage Interests as set forth in Schedule I.

(c) At any time that the Company has only one Member, it is the intention of the Member that the Company shall be disregarded for federal, state, local and foreign income tax purposes and that all items of income, gain, loss, deduction, credit or the like of the Company shall be treated as items of income, gain, loss, deduction, credit or the like of the Member.

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(d) (i) Each Member’s Interest in the Company shall be evidenced by a Certificate. Each Certificate shall be executed by the President or any Vice President and the Secretary or any Assistant Secretary (or other persons designated by the Board of Managers or in the Bylaws).

(ii) The Company shall keep or cause to be kept a register in which, subject to such regulations as the Board of Managers may adopt, the Company will provide for the registration of Interests and the registration of transfers of Interests. The Board of Managers shall maintain such register and provide for such registration. Upon surrender for registration of transfer of any Certificate, and subject to the further provisions of this Section 8(d) and the limitations on transfer contained elsewhere in this Agreement or in the Bylaws, the Company will cause the execution, in the name of the registered holder or the designated transferee, of one or more new Certificates, evidencing the same aggregate Percentage Interest as did the Certificate surrendered. Every Certificate surrendered for registration of transfer shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Board of Managers duly executed, by the registered holder thereof or such holder’s authorized attorney.

(iii) The Company shall issue a new Certificate in place of any Certificate previously issued if the record holder of the Certificate (A) makes proof by affidavit, in form and substance satisfactory to the Board of Managers, that a previously issued Certificate has been lost, destroyed or stolen, (B) requests the issuance of a new Certificate before the Company has received notice that the Certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim, (C) if requested by the Board of Managers, delivers to the Company a bond, in form and substance satisfactory to the Board of Managers, with such surety or sureties and with fixed or open liability as the Board of Managers may direct, to indemnify the Company, as registrar, against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate, and (D) satisfies any other reasonable requirements imposed by the Board of Managers.

(iv) An Interest in the Company evidenced by a Certificate shall constitute a security for all purposes of Article 8 of the Uniform Commercial Code promulgated by the National Conference of Commissioners on Uniform State Laws, as in effect in Delaware or any other applicable jurisdiction. Delaware law shall constitute the local law of the Company’s jurisdiction in its capacity as the issuer of Interests.

9. Assignments of Interests.

(a) No Member may sell, assign, pledge or otherwise transfer or encumber (collectively “transfer”) all or any part of its interest in the Company, and no transferee of all or any part of the interest of a Member shall be admitted as a substituted Member, without, in either event, having obtained the prior written consent of all other Members.

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(b) The Board of Managers shall amend Schedule I hereto from time to time to reflect transfers made in accordance with, and as permitted under, this Section 9. Any purported transfer in violation of this Section 9 shall be null and void and shall not be recognized by the Company.

10. Resignation. No Member Shall have the right to resign from the Company except with the consent of all of the other Members and upon such terms and conditions as may be specifically agreed upon between such other Members and the resigning Member. The provisions hereof with respect to distributions upon resignation are exclusive and no Member shall be entitled to claim any farther or different distribution upon resignation under Section 18-604 of the Delaware Act or otherwise.

11. Additional Members. The Members, acting unanimously, shall have the right to admit additional Members upon such terms and conditions, at such time or times, and for such Capital Contributions as shall be determined by all of the Members; and in connection with any such admission, the Board of Managers shall amend Schedule 1 hereof to reflect the name, address and Capital Contribution of the additional Member and any agreed upon changes in Percentage Interests.

12. Distributions. Distributions of cash or other assets of the Company shall be made at such times and in such amounts as the Board of Managers may determine. Distributions shall be made to (and profits and losses shall be allocated among) Members pro rata in accordance with their respective Percentage Interests.

13. Return of Capital. No Member or Manager shall have any liability for the return of any Member’s Capital Contribution which Capital Contribution shall be payable solely from the assets of the Company at the absolute discretion of the Board of Managers, subject to the requirements of the Delaware Act.

14. Dissolution. The Company shall be dissolved and its affairs wound up and terminated upon the first to occur of the following:

(a) The determination of all of the Members to dissolve the Company;

(b) The sale or other disposition of all or substantially all of the assets of the Company in one transaction or a series of related transactions; or

(c) The occurrence of any event causing a dissolution of the Company under Section 18-801 of the Delaware Act, unless the Company is continued as permitted under the Delaware Act.

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15. Winding Up of the Company. If the Company is dissolved pursuant to Section 14 hereof, the Managers, or if there is no remaining Manager, such person as is designated by a Majority in Interest of the Members (the remaining Managers or such person being herein referred to as the “Liquidator”), shall proceed to wind up the business and affairs of the Company upon such terms, price and conditions as are determined by the Liquidator in accordance with the terms hereof and the requirements of the Delaware Act. A reasonable amount of time shall be allowed for the period of winding up in light of prevailing market conditions and so as to avoid undue loss in connection with any sale of Company assets. This Agreement shall remain in full force and effect and continue to govern the rights and obligations of the Members and Managers and the conduct of the Company during the period of winding up the Company’s affairs. The Liquidator, if other than a Manager, shall have and may exercise, without further authorization or consent of Members, all of the powers conferred upon the Managers under the terms of this Agreement to the extent necessary or desirable in the good faith judgment of the Liquidator to carry out the duties and functions of the Liquidator hereunder for and during such period of time as shall be reasonably required in the good faith judgment of the Liquidator to complete the winding up and liquidation of the Company. The Liquidator shall liquidate the assets of the Company, and apply and distribute the proceeds of such liquidation in the following order of priority, unless otherwise required by mandatory provisions of applicable law:

(a) to creditors, including Members who are creditors, to the extent otherwise permitted by law, in satisfaction of the liabilities of the Company (whether by payment or by the establishment of reserves of cash or other assets of the Company for contingent liabilities in amounts, if any, determined by the Liquidator to be appropriate for such purposes), other than liabilities for distributions to Members and former Members under Sections 18-601 or 18-604 of the Delaware Act,

(b) to Members and former Members in satisfaction of liabilities for distributions under 18-601 or 18-604 of the Delaware Act; and

(c) thereafter to the Member or, if the Company has more than one Member, to Members in proportion to the positive balances of their respective capital accounts (determined after allocating all income, gain, deduction, loss and other like items arising in connection with the liquidation of Company assets and otherwise making all capital account adjustments required by Section 8(b)).

Notwithstanding the provisions of this Section 15 which require the liquidation of the assets of the Company, if on dissolution of the Company, the Liquidator determines that a prompt sale of part or all of the Company’s assets would be impractical or would cause undue loss to the value of Company assets, the Liquidator may defer for a reasonable time (up to three (3) years) the liquidation of any assets, except those necessary to timely satisfy liabilities of the Company (other than those to Members), and/or may distribute to the Members, in lieu of cash, as tenants in common undivided interests in such Company assets as the Liquidator deems not suitable for liquidation.

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Any such in-kind distributions shall be made in accordance with the priorities referenced in this Section 15 as if cash equal to the fair market value of the distributed assets were being distributed. Any such distributions in kind shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any joint operating agreements or other agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable methods of valuation as it may adopt.

16. Limitation on Liability. The debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member, Manager or officer of the Company shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member, Manager and/or officer.

17. Standard of Care; Indemnification of Managers, Officers, Employees and Agents.

(a) No Manager or officer of the Company shall have any personal liability whatsoever to the Company or any Member on account of such Manager’s or officer’s status as a Manager or officer or by reason of such Manager’s or officer’s acts or omissions in connection with the conduct of the business of the Company; provided, however, that nothing contained herein shall protect any Manager or officer against any liability to the Company or the Members to which such Manager or officer would otherwise be subject by reason of (i) any act or omission of such Manager or officer that involves actual fraud or willful misconduct or (ii) any transaction from which such Manager or officer derived improper personal benefit.

(b) The Company shall indemnify and hold harmless each Manager and officer and the affiliates of any Manager or officer (each an “Indemnified Person”) against any and all losses, claims, damages, expenses and liabilities (including, but not limited to, any investigation, legal and other reasonable expenses incurred in connection with, and any amounts paid; in settlement of, any action, suit, proceeding or claim) of any kind or nature whatsoever that such Indemnified Person may at any time become subject to or liable for by reason of the formation, operation or termination of the Company, or the Indemnified Person’s acting as a Manager or officer under this Agreement, or the authorized actions of such Indemnified Person in connection with the conduct of the affairs of the Company (including, without limitation, indemnification against negligence, gross negligence or breach of duty); provided, however, that no Indemnified Person shall be entitled to indemnification if and to the extent that the liability otherwise to be indemnified for results from (i) any act or omission of such Indemnified Person that involves actual fraud or willful misconduct or (ii) any transaction from which such Indemnified Person derived improper personal benefit. The indemnities hereunder shall survive termination of the Company. Each Indemnified Person shall have a claim against the property and assets of the Company for payment of any indemnity amounts from time to time due hereunder, which amounts shall be paid or properly reserved for prior to the making of distributions by the Company to Members. Costs and expenses that are subject to indemnification hereunder shall, at the request of any Indemnified Person, be advanced by the Company to or on behalf of such Indemnified Person prior to final resolution of a matter, so long as such Indemnified Person shall have provided the Company with a written undertaking to reimburse the Company for all amounts so advanced if it is ultimately determined that the Indemnified Person is not entitled to indemnification hereunder.

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(c) The contract rights to indemnification and to the advancement of expenses conferred in this Section 17 shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, agreement, vote of the Managers or otherwise.

(d) The Company may maintain insurance, at its expense, to protect itself and any Manager, officer, employee or agent of the Company or another limited liability company, corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Delaware Act

(e) The Company may, to the extent authorized from time to time by the Board of Managers, grant rights to indemnification and to advancement of expenses to any employee or agent of the Company to the fullest extent of the provisions of this Section 17 with respect to the indemnification and advancement of expenses of Managers and officers of the Company.

(f) Notwithstanding the foregoing provisions of this Section 17, the Company shall indemnify an Indemnified Person in connection with a proceeding (or part thereof) initiated by such Indemnified Person only if such proceeding (or part thereof) was authorized by the Board of Managers of the Company; provided, however, that an Indemnified Person shall be entitled to reimbursement of his or her reasonable counsel fees with respect to a proceeding (or part thereof) initiated by such Indemnified Person to enforce his or her right to indemnity or advancement of expenses under the provisions of this Section 17 to the extent the Indemnified Person is successful on the merits in such proceeding (or part thereof).

18. Amendments. This Agreement may be amended only upon the written consent of all Members.

19. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of May 4, 2001.

MEMBER:
PATHMARK STORES, INC.
By:	/s/ Marc Strassler
	Name:	Marc Strassler
	Title:	Senior Vice President

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SCHEDULE I

Member

Name & Address	Capital Contribution	Percentage Interest
Pathmark Stores, Inc. 200 Milik Street Carteret, NJ 07008	The money, property or services previously contributed by the Initial Member to the Converted Corporation, the identified and agreed value of which are recorded in the books and records of the Company.	100%

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EXHIBIT B

CERTIFICATE FOR INTEREST IN

PLAINBRIDGE LLC

A Delaware Limited Liability Company

No. 1

PLAINBRIDGE LLC, a Delaware limited liability company (the “Company”), hereby certifies that

PATHMARK STORES, INC. (the “Holder”)

is the registered owner of an Interest in the Company (“Interest”), constituting the Percentage Interest (as such term is defined the below referenced Company Agreement) in the Company set forth on Schedule I to the Company Agreement as such Schedule is amended from time to time. The rights, powers and privileges associated with the Interest are set forth in the Limited Liability Company Agreement of the Company dated as of May 4, 2001 (the “Company Agreement”), as the same may, from time to time, be amended or amended and restated, under which the Company was formed and is existing, copies of which are on file at the principal office of the Company in Carteret, New Jersey. The terms of the Company Agreement are incorporated herein by reference.

The Holder, by accepting this Certificate, is deemed to have agreed to become a member of the Company, if admitted as such in accordance with the terms of the Company Agreement, and to comply with and be bound by, and to have executed, the Company Agreement.

This Certificate and the Interest evidenced hereby are transferable in accordance with the terms of the Company Agreement (subject to the limitations on transfer therein contained). No Interest may be transferred unless and until this Certificate, or a written instrument of transfer satisfactory to the Company, is duly endorsed or executed for transfer by the Holder or the Holder’s duly authorized attorney, and this Certificate (together with any separate written instrument of transfer) is delivered to the Company for registration of transfer.

Dated:                     , 2001	PLAINBRIDGE LLC
ATTEST:
	By:
Name: Marc Strassler	Name:	Frank Vitrano
Title: Secretary	Title:	Executive Vice President

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[FORM OF REVERSE SIDE OF CERTIFICATE]

ASSIGNMENT OF INTEREST

FOR VALUE RECEIVED, the undersigned (the “Assignor”), hereby assigns, conveys, sells and transfers unto:

Please print or typewrite Name and Address of Assignee

Please insert Social Security or other Taxpayer

Identification Number of Assignee

                % Percentage Interest of the Interest evidenced by this Certificate. Assignor irrevocably constitutes and appoints the Company as its attorney-in-fact with full power of substitution to transfer the Interest, or any lesser designated Percentage Interest of the Interest as referenced herein, on the books of the Company.

Date:
	Signature

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EXHIBIT A

BYLAWS

OF

PLAINBRIDGE LLC

INTRODUCTION

A. Agreement. These Bylaws shall be subject to the Limited Liability Company Agreement, as from time to time in effect (the “Agreement”), of PLAINBRIDGE LLC, a Delaware limited liability company (the “Company”). In the event of any inconsistency between the terms hereof and the terms of the Agreement, the teams of the Agreement shall control.

B. Definitions. Capitalized terms used herein and not herein defined are used as defined in the Agreement.

ARTICLE I

Meetings of Members

Section 1. Place of Meetings and Meetings by Telephone. Meetings of Members shall be held at any place designated by the Managers. In the absence of any such designation, meetings of Members shall be held at the principal place of business of the Company. Any meeting of the Members may be held by conference telephone or similar communication equipment so long as all Members participating in the meeting can hear one another, and all Members participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting.

Section 2. Call of Meetings. An annual meeting of the Members, for the election of Managers to succeed those whose terms expire and for the transaction of such other business may properly come before the meeting, shall be held on such date and at such time as the Board of Managers shall each year fix, which date shall be within thirteen months subsequent to the date of formation of the Company or the last annual meeting of Members. In addition, meetings of the Members may be called at any time by the Managers or by the President for the purpose of taking action upon any matter requiring the vote or authority of the Members as provided herein or in the Agreement or upon any other matter as to which such vote or authority is deemed by the Managers to be necessary or desirable. Meetings of the Members to act on any matter upon which Members may vote as provided in the Agreement or the Delaware Act shall be called promptly by the Managers upon the written request of a Majority in Interest of the Members.

Section 3. Notice of Meetings of Members. All notices of meetings of Members shall be sent or otherwise given in accordance with Section 4 of this Article I not less then ten (10) nor more than ninety (90) days before the date of the meeting. The notice shall specify (i) the place, date and hour of the meeting, and (ii) the general nature of the business to be transacted.

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Section 4. Manner of Giving Notice. Notice of any meeting of Members shall be given personally or by telephone to each Member or sent by first class mail, by telegram or telecopy (or similar electronic means) or by a nationally recognized overnight courier, charges prepaid, addressed to the Member at the address of that Member appearing on the books of the Company or given by the Member to the Company for the purpose of notice. Notice shall be deemed to have been given at the time when delivered either personally or by telephone, or at the time when deposited in the mail or with a nationally recognized overnight courier, or when sent by telegram or telecopy (or similar electronic means).

Section 5. Adjourned Meeting; Notice. Any meeting of Members, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the Percentage Interests represented at that meeting, either in person or by proxy. When any meeting of Members is adjourned to another time or place, notice need not be given of the adjourned meeting, unless a new record date of the adjourned meeting is fixed or unless the adjournment is for more than sixty (60) days from the date set for the original meetings in which case the Managers shall set a new record date and shall give notice in accordance with the provisions of Sections 3 and 4 of this Article I. At any adjourned meeting, the Company may transact any business that might have been transacted at the original meeting.

Section 6. Quorum; Voting. At any meeting of the Members, a Majority in Interest of the Members, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of Members holding a higher aggregate Percentage Interest is required by the Agreement or applicable law. Except as otherwise required by the Agreement, these Bylaws or applicable law, all matters shall be determined by a Majority in Interest of the Members.

Section 7. Waiver of Notice by Consent of Absent Members. The transactions of a meeting of Members, however called and noticed and wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice if a quorum is present either in person or by proxy and if either before or after the meeting, each person entitled to vote who was not present in person or by proxy signs a written waiver of notice or a consent to a holding of the meeting or an approval of the minutes. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any meeting of Members. Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the beginning of the meeting.

Section 8. Member Action by Written Consent Without a Meeting. Except as provided in the Agreement, any action that may be taken at any meeting of Members (including any annual meeting of Members) may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by a Majority in Interest of the Members (or Members holding such higher aggregate Percentage Interest as is required to authorize or take such action under the terms of the Agreement, these Bylaws or applicable law). Any such written consent may be executed and given

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by telecopy or similar electronic means. Such consents shall be filed with the Secretary of the Company and shall be maintained in the Company’s records. Every written consent shall bear the date of signature of each Member who signs the consent and no written consent shall be effective to take the Company action referred to therein unless, within sixty (60) days of the date the earliest dated consent is delivered to the Company, a written consent or consents signed by a sufficient Percentage Interest of Members to take the subject action are properly delivered to the Company.

Section 9. Record Date for Member Notice, Voting and Giving Consents.

(a) For purposes of determining the Members entitled to vote or act at any meeting or adjournment thereof, the Managers may fix in advance a record date which shall not be greater than ninety (90) days nor fewer than ten (10) days before the date of any such meeting. If the Managers do not so fix a record date, the record date for determining Members entitled to notice of or to vote at a meeting of Members shall be at the close of business on the business day immediately preceding the day on which notice is given, or if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.

(b) The record date for determining Members entitled to give consent to action in writing without a meeting, (i) when no prior action of the Managers has been taken, shall be the day on which the first written consent is given, or (ii) when prior action of the Managers has been taken, shall be (x) such date as determined for that purpose by the Managers, which record date shall not precede the date upon which the resolution fixing it is adopted by the Managers and shall not be more than 20 days after the date of such resolution, or (y) if no record date is fixed by the Managers the record date shall be the close of business on the day on which the Managers adopt the resolution relating to that action.

(c) Only Members of record on the record date as herein determined shall have any right to vote or to act at any meeting or give consent to any action relating to such record date, provided mat no Member who transfers all or part of such Member’s Interest after a record date (and no transferee of such Interest) shall have the right to vote or act with respect to the transferred Interest as regards the matter for which the record date was set.

Section 10. Proxies. Every Member entitled to vote or act on any matter at a meeting of Members shall have the right to do so either in person or by proxy, provided that an instrument authorizing such a proxy to act is executed by the Member in writing and dated not more than eleven(11) months before the meeting, unless the instrument specifically provides for a longer period. A proxy shall be deemed executed by a Member if the Member’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the Member or the Member’s attorney-in-fact. A valid proxy that does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it before the vote pursuant to that proxy by a writing delivered to the Company stating that the proxy is revoked, by a subsequent proxy executed by the person who executed the earlier proxy or by attendance at the meeting and voting in person by the person who executed the

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earlier proxy or (ii) written notice of the death or incapacity of the maker of that proxy is received by the Company before the vote pursuant to that proxy is counted. A proxy purporting to be executed by the person who executed that proxy or on behalf of a Member shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger.

ARTICLE II

Managers and Meetings of Managers

Section 1. Powers. The powers of the Managers shall be as provided in the Agreement.

Section 2. Number of Managers. The number of Managers shall be as provided in the Agreement.

Section 3. Vacancies. Vacancies in the authorized number of Managers may be filled as provided in the Agreement.

Section 4. Place of Meetings and Meetings by Telephone. All meetings of the Managers may be held at any place that has been designated from time to time by resolution of the Managers. In the absence of such a designation, regular meetings shall be held at the principal place of business of the Company. Any meeting, regular or special, may be held by conference telephone or similar communication equipment so long as all Managers participating in the meeting can hear one another, and all Managers participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting.

Section 5. Regular Meetings. Regular meetings of the Managers shall be held at such times and at such places as shall be fixed by unanimous approval of the Managers. Such regular meetings may be held without notice.

Section 6. Special Meetings. Special meetings of the Managers for any purpose or purposes may be called at any time by any Manager or by the President. Notice of the time and place of a special meeting shall be delivered personally or by telephone to each Manager and sent by first-class mail, by telegram or telecopy (or similar electronic means) or by nationally recognized overnight courier, charges prepaid, addressed to each Manager at that Manager’s address as it is shown on the records of the company. In case the notice is mailed, it shall be deposited in the United States mail at least five (5) calendar days before the time of the holding of the meeting. In case the notice is delivered personally or by telephone or by telegram, telecopy (or similar electronic means) or overnight courier, it shall be given at least two (2) calendar days before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the Manager or to a person at the office of the Manager who the person giving the notice has reason to believe will promptly communicate it to the Manager. The notice need not specify the purpose of the meeting.

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Section 7. Quorum. A majority of the authorized number of Managers shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 9 of this Article II. Every act or decision done or made by the affirmative vote of a majority of the Managers present at a meeting duly held at which a quorum is present shall be regarded as the act of the Managers, except to the extent that the vote of a higher number of Managers is required by the Agreement, these Bylaws or applicable law.

Section 8. Waiver of Notice. Notice of any meeting need not be given to any Manager who either before or after the meeting signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the records of the Company or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any Manager who attends the meeting without protesting before or at its commencement the lack of notice to that Manager.

Section 9. Adjournment. A majority of the Managers present, whether or not constituting a quorum, may adjourn any meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given unless the meeting is adjourned for more than forty-eight (48) hours, in which case notice of the time and place shall be given before the time of the adjourned meeting in the manner specified in Section 6 of this Article II.

Section 10. Action Without a Meeting. Any action to be taken by the Managers at a meeting may be taken without such meeting by the written consent of a majority of the Managers then in office (or such higher number of Managers as is required to authorize or take such action under the terms of the Agreement, these Bylaws or applicable law). Any such written consent may be executed and given by telecopy or similar electronic means. Such written consents shall be filed with the minutes of the proceedings of the Managers. If any action is so taken by the Managers by the written consent of less than all of the Managers, prompt notice of the taking of such action shall be furnished to each Manager who did not execute such written consent, provided that the effectiveness of such action shall not be impaired by any delay or failure to furnish such notice.

Section 11. Delegation of Power; Committees. Any Manager may, by power of attorney, delegate his power for a period not exceeding six (6) months at any one time to any other Manager or Managers; provided that in no case shall fewer than two (2) Managers personally exercise the powers granted to the Managers, except as otherwise provided by resolution of the Managers. A Manager represented by another Manager pursuant to such power of attorney shall be deemed to be present for purposes of establishing a quorum and satisfying any voting requirements. The Managers may, by resolution, delegate, any or all of their powers and duties granted hereunder or under the Agreement to one or more committees of the Managers, each consisting of one or more Managers, or to one or more officers, employees or agents, including without limitation Members, and to the extent any such powers or duties are so delegated, action by the delegate or delegates shall be deemed for all purposes to be action by the Managers. All such delegates shall serve at the pleasure of the Managers. To the extent applicable, notice shall be given to, and action may be taken by, any delegate of the Managers as herein provided with respect to notice to, and action by, the Managers.

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ARTICLE III

Officers

Section 1. Officers. The officers of the Company shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. The Company may also have, at the discretion of the Managers, such other officers as may be appointed in accordance with the provisions of Section 3 of this Article III. Any number of offices may be held by the same person. Each of the officers of the Company may but need not be a Manager.

Section 2. Election of Officers. Subject to any provisions of the Agreement applicable to initial appointment and term of officers, the officers of the Company, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article III, shall be chosen by the Managers, and each shall serve at the pleasure of the Managers. The appointment of officers shall be considered by the Managers at their first meeting after every annual election of Managers by the Members.

Section 3. Subordinate Officers. The Managers may appoint and may empower the President to appoint such other officers as the business of the Company may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in these Bylaws or as the Managers (or, to the extent the power to prescribe authorities and duties of subordinate officers is delegated to him, the President) may from time to time determine.

Section 4. Removal and Resignation of Officers. Any officer may be removed, with or without cause, by the Managers at any regular or special meeting of the Managers or by such officer, if any, upon whom such power of removal may be conferred by the Managers. Any officer may resign at any time by giving written notice to the Company. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and unless otherwise specified in notice of a resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company under any contract to which the officer is a party.

Section 5. Vacancies in Offices. A vacancy in any office because of death, resignation, removal, disqualification or other cause shall be filled in the manner prescribed in these Bylaws for regular appointment to that office. The President may make temporary appointments to a vacant office pending action by the Managers.

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Section 6. President. The President shall be the chief executive officer of the Company and shall, subject to the control of the Managers, have general supervision, direction and control of the business and the officers of the Company. He or she shall preside at all meetings of the Members. He or she shall have the general powers and duties of management usually vested in the office of President of a corporation and shall have such other powers and duties as may be prescribed by the Managers, the Agreement or these Bylaws.

Section 7. Vice Presidents. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Managers, shall perform all the duties of the President and when so acting shall have all powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Managers or the President or by these Bylaws.

Section 8. Secretary. The Secretary shall keep or cause to be kept at the principal place of business of the Company or such other place as the Managers may direct a book of minutes of all meetings and actions of Managers, committees or other delegates of Managers and Members with the time and place of holding, whether regular or special, and if special, how authorized, the notice given, the names of those present at Managers’ meetings or committee or other delegate meetings, the Percentage Interest present or represented at meetings of Members and the proceedings. The Secretary shall keep or cause to be kept at the principal place of business of the Company, a register or a duplicate register showing the names of all Members and their addresses, the number and classes of Percentage Interest held by each, the number and date of certificates issued for the same, if any, and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give or cause to be given notice of all meetings of the Members and of the Managers (or committees or other delegates thereof) required to be given by these Bylaws or by applicable law and shall have such other powers and perform such other duties as may be prescribed by the Managers or the President or by these Bylaws.

Section 9. Treasurer. The Treasurer shall keep and maintain or cause to be kept and maintained adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of the assets, liabilities, receipts, disbursements, gains, losses, capital and retained earnings the Company. The books of account shall at all reasonable times be open to inspection by any Manager. The Treasurer shall deposit all monies and other valuables in the name and to the credit of the Company with such depositaries as may be designated by the Managers. He or she shall disburse the funds of the Company as may be ordered by the Managers, shall render to the President and Managers, whenever they request it, an account of all of his or her transactions as chief financial officer and of the financial condition of the Company and shall have other powers and perform such other duties as may be prescribed by the Managers or the President or these Bylaws.

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ARTICLE IV

Records and Reports

Section 1. Maintenance and Inspection of Member Registrar. The Company shall maintain at its principal place of business a record of its Members, giving the names and addresses of all Members and the Percentage Interest held by each Member. Subject to such reasonable standards (including standards governing what information and documents are to be furnished and at whose expense) as may be established by the Managers from time to time, each Member has the right, to obtain from the Company from time to time upon reasonable demand for any purpose reasonably related to the Member’s interest as a Member of the Company a record of the Company’s Members.

Section 2. Maintenance and Inspection of Bylaws. The Company shall keep at its principal place of business the original or a copy of these Bylaws as amended to dale, which shall be open to inspection by the Members at all reasonable times during office hours.

Section 3. Maintenance and Inspection of Other Records. The accounting books and records, minutes of proceedings of the Members and the Managers and any committees or delegates of the Managers and all other information pertaining to the Company that is required to be made available to the Members under the Delaware Act shall be kept at such place or places designated by the Managers or in the absence of such designation, at the principal place of business of the Company. The minutes shall be kept in written form and the accounting books and records and other information shall be kept either in written form or in any other form capable of being converted into written form. The books of account and records of the Company shall be maintained in accordance with generally accepted accounting principles consistently applied during the term of the Company, wherein all transactions, matters and things relating to the business and properties of the Company shall be currently entered. Subject to such reasonable standards (including standards governing what information and documents are to be furnished and at whose expense) as may be established by the Managers from time to time, minutes, accounting books and records and other information shall be open to inspection upon the written demand of any Member at any reasonable time during usual business hours for a purpose reasonably related to the Member’s interests as a Member. Any such inspection may be made in person or by an agent or attorney and shall include the right to copy and make extracts. Notwithstanding the foregoing, the Managers shall have the right to keep confidential from Members for such period of time as the Managers deem reasonable, any information which the Managers reasonably believe to be in the nature of trade secrets or other information the disclosure of which the Managers in good faith believe is not in the best interests of the Company or could damage the Company or its business or which the Company is required by law or by agreement with a third party to keep confidential.

Section 4. Inspection by Managers. Every Manager shall have the right at any reasonable time to inspect all books, records, and documents of every kind and the physical properties of the Company for a purpose reasonably related to his position as Manager. This inspection by a Manager may be made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents.

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ARTICLE V

General Matters

Section 1. Certificates. Each Member shall be entitled to a Certificate signed by, or in the name of the Company by, the President or a Vice President, and by the Secretary or an assistant Secretary. Any and all of the signatures on the Certificate may be by facsimile. Transfers of Interest shall be made only upon the transfer books of the Company kept at an office of the Company or transfer agents designated to transfer Interests in the Company. Except where a Certificate is issued in accordance with Section 8(d) of the Agreement with respect to a lost, stolen or destroyed Certificate, an outstanding Certificate for the Percentage Interest to be transferred shall be surrendered for cancellation before a new Certificate is issued therefor. The issue, transfer, conversion and registration of Certificate shall be governed by such other regulations as the Managers may from time to time establish.

Section 2. Checks, Drafts, Evidence of Indebtedness. The persons from time to time holding the position of President, Vice President, Secretary, Treasurer or controller (if any) of the Company, acting by written instrument signed by any two of them, are hereby authorized (i) to open or close any bank account or investment account of the Company, (ii) to designate the use of any such account, (iii) to grant authority to any person or combination of persons to sign checks, by manual or facsimile signature or to issue oral, wire or written instructions for the withdrawal of funds from, or other action with respect to, any such account, (iv) to revoke the authority of any person or persons to sign checks or to issue instructions, (v) to establish a maximum amount as to which any person or combination of persons shall be authorized to sign checks or issue instructions, and (vi) to take all further actions, and to execute and deliver all such further instructions and documents, in the name and on behalf of the Company, as in their judgment shall be necessary, proper or advisable in connection with the foregoing matters. Any resolution supplied by a financial institution or investment company and approved and executed by any two of the officers designated in this Section 2 of this Article V shall be deemed resolutions duly adopted by the Board of Managers and shall be filed with the minutes of meetings of Managers.

Section 3. Contracts and Instruments; How Executed. The Managers, except as otherwise provided in the Agreement or these Bylaws, may authorize any Manager(s), officer(s) or agent(s) to enter into any contract or execute any instrument in the name of and on behalf of the Company and this authority may be general or confined to specific instances; and unless so authorized or ratified by the Managers or within the agency power of an officer (or otherwise specified in the Agreement or these Bylaws), no Member, officer, agent, or employee shall have any power or authority to bind the Company by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

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Section 4. Representation of Shares of Other Entities Held by Company. The President or any Vice President or any other person authorized by the Managers or by any of the foregoing designated officers, is authorized to vote or represent on behalf of the Company any and all shares of any corporation, partnership, trust, limited liability company or other entities, foreign or domestic, standing in the name of the Company. The authority granted may be exercised in person or by a proxy duly executed by such designated person.

Section 5. Seal. The Managers may approve and adopt an official Company seal, which may be altered by them at any time. Unless otherwise required by the Managers, any seal so adopted shall not be necessary to be placed on, and its absence shall not impair the validity of, any document, instrument or other paper executed and delivered by or on behalf of the Company.

Section 6. Fiscal Year. The fiscal year of the Company shall end on the Saturday closest to January 31 in each year and the succeeding fiscal year shall begin on the day next succeeding the last day of the preceding fiscal year, unless changed by the Board of Managers.

Section 7. Reliance upon Books, Reports and Records. Each Manager, each member of any committee designated by the Board of Managers, and each officer of the Company shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Company and upon such information, opinions, reports or statements presented to the Company by any of its officers or employees, or committees of the Board of Managers so designated, or by any other person as to matters which such manager or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company.

ARTICLE VI

Amendments and Incorporation by Reference into Agreement

Section 1. Amendment. These Bylaws may be restated, amended, supplemented or repealed only by unanimous vote of the Managers or unanimous vote of the Members.

Section 2. Incorporation by Reference of Bylaws into Agreement. These Bylaws and any amendments thereto shall be deemed incorporated by reference in the Agreement.

Dated: May 4, 2001

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EX-99.T3B.37

Exhibit B-37

S E G STORES, INC.

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BY-LAWS (Amended through April 10, 1987

*    *    *    *    *

ARTICLE I

OFFICES

Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Detroit, State of Michigan, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Annual meetings of stockholders, commencing with the year 1988, shall be held on the fifteenth day of February if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A. M., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting.

Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.

Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting.

Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall

be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question.

Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period.

Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than nine. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders.

Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.

Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders.

MEETINGS OF THE BOARD OF DIRECTORS

Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware.

Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present.

In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.

Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board.

Section 7. Special meetings of the board may be called by the president on two days’ notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director.

Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.

Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

COMMITTEES OF DIRECTORS

Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

In the absence or disqualification, of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors.

Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

COMPENSATION OF DIRECTORS

Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.

REMOVAL OF DIRECTORS

Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors.

ARTICLE IV

NOTICES

Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram.

Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE V

OFFICERS

Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide.

Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer.

Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board.

Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors.

Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors.

THE PRESIDENT

Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect.

Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent, of the corporation.

THE VICE-PRESIDENTS

Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.

THE SECRETARY AND ASSISTANT SECRETARY

Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give,

or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such

other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.

Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.

THE TREASURER AND ASSISTANT TREASURERS

Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors.

Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation.

Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.

Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.

ARTICLE VI

CERTIFICATES FOR SHARES

Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation.

Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

LOST CERTIFICATES

Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

TRANSFER OF STOCK

Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of

proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation.

FIXING RECORD DATE

Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting.

REGISTERED STOCKHOLDERS

Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

ARTICLE VII

GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation.

Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.

ANNUAL STATEMENT

Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation.

CHECKS

Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate.

FISCAL YEAR

Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

SEAL

Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

INDEMNIFICATION

Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.

ARTICLE VIII

AMENDMENTS

Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws.

EX-99.T3B.38

Exhibit B-38

AMENDED AND RESTATED BYLAWS

OF

SHOPWELL, INC.

ARTICLE I

OFFICES

Section 1. The registered office in the State of Delaware shall be as stated in the Certificate of Incorporation or at such other location in the State of Delaware to which the registered office shall be changed by action of the Board of Directors.

Section 2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the stockholders for the election of directors shall be held at such place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.

Section 2. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any meeting of stockholders of the Corporation, or any action which may be taken at any meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

ARTICLE III

DIRECTORS

Section 1. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.

Section 2. The number of directors which shall constitute the Board of Directors shall be not less than one nor more than five and shall be set by resolution of the Board. Each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders.

Section 3. Vacancies and newly created directorships resulting from any increases in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.

MEETINGS OF THE BOARD OF DIRECTORS

Section 4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.

Section 5. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board.

Section 6. At all meetings of the Board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 7. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

Section 8. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

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COMMITTEES OF DIRECTORS

Section 9. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by law to be submitted to the stockholders for approval, or (ii) adopting, amending or repealing any bylaw. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.

COMPENSATION OF DIRECTORS

Section 10. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

REMOVAL OF DIRECTORS

Section 11. Unless otherwise restricted by the Certificate of Incorporation or by law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares then entitled to vote at an election of directors.

ARTICLE IV

NOTICES

Section 1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telephone, email, telex, telecopier or telegram.

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Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE V

OFFICERS

Section 1. The officers of the Corporation shall be a President, a Secretary and a Treasurer or persons who shall act as such, regardless of the name or title by which they may be designated, elected or appointed. The Corporation may also have one or more Senior Vice Presidents or Vice Presidents and such other officers and assistant officers as the Board of Directors may choose. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.

Section 2. The officers and assistant officers shall be chosen by the Board of Directors and shall hold office until their successors are elected and qualified or until their earlier resignation or removal.

Section 3. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board.

Section 4. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

THE PRESIDENT

Section 5. The President shall be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.

Section 6. The President shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.

THE SENIOR VICE PRESIDENTS AND VICE PRESIDENTS

Section 7. In the absence of the President or in the event of his inability or refusal to act, and if a Senior Vice President or Vice President has been appointed by the Board of Directors, the Senior Vice President or Vice President (or in the event there be more than one Senior Vice President or Vice President, the Senior Vice Presidents or Vice Presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Senior Vice Presidents and Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

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THE SECRETARY AND ASSISTANT SECRETARY

Section 8. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

Section 9. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

THE TREASURER AND ASSISTANT TREASURERS

Section 10. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.

Section 11. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

Section 12. If required by the Board of Directors, he shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of this office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

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Section 13. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

ARTICLE VI

CERTIFICATES FOR SHARES

Section 1. The shares of the Corporation shall be represented by a certificate, provided that the Board of Directors may provide, by resolution or resolutions, that some or all of any or all classes or series of its stock shall be uncertificated shares. Certificates shall be signed by, or in the name of the Corporation by, the chairman or vice-chairman of the Board of Directors, or the President or a Senior Vice President or Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation.

Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law of Delaware or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

LOST CERTIFICATES

Section 3. The Board of Directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

6

TRANSFER OF STOCK

Section 4. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation.

REGISTERED STOCKHOLDERS

Section 5. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

ARTICLE VII

GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

CHECKS

Section 2. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

SEAL

Section 3. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

INDEMNIFICATION

Section 4. The Corporation shall indemnify its officers and directors to the fullest extent permitted by the General Corporation Law of Delaware.

7

ARTICLE VIII

AMENDMENTS

Section 1. These Bylaws may be altered, amended or repealed or new bylaws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation, at any meeting of the stockholders or of the Board of Directors. If the power to adopt, amend or repeal bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws.

8

EX-99.T3B.39

Exhibit B-39

BY – LAWS

OF

SPRING LANE PRODUCE CORP.

(A New York Corporation)

ARTICLE I

SHAREHOLDERS

1. CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall set forth thereon the statements prescribed by Section 508, and, where applicable, by Section 505, 616, 620, 709, and 1002, of the Business Corporation Law and by any other applicable provision of law and shall be signed by the Chairman or a Vice-chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the corporate seal or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employee. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue.

A certificate representing shares shall not be issued until the full amount of consideration therefor has been paid except as Section 504 of the Business Corporation Law may otherwise permit.

The corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the Board of Directors may require the owner of any lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate.

2. FRACTIONAL SHARE INTERESTS. The corporation may issue certificates for fractions of a share where necessary to effect transactions authorized by the Business Corporation Law which shall entitle the holder, in proportion to his fractional holdings, to exercise voting rights, receive dividends and participate in liquidating distributions; or it may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined; or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a shareholder except as therein provided.

3. SHARE TRANSFERS. Upon compliance with provisions restricting the transferability of shares, if any, transfers of shares of the corporation shall be made only on the share record of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes due thereon.

4. RECORD DATE FOR SHAREHOLDERS. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty days nor less than ten days before the date of such meeting, nor more than fifty days prior to any other action. If no record date is fixed, the record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of the business on the day next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held; the record date for determining shareholders for any purpose other than that specified in the preceding clause shall be at the close of business on the day on which the resolution of the directors relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this paragraph, such determination shall apply to any adjournment thereof, unless directors fix a new record date under this paragraph for the adjourned meeting.

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5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “shareholder” or “shareholders” refers to an outstanding share or shares and to a holder or holders of record of outstanding shares when the corporation is authorized to issue only one class of shares, and said reference is also intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the Certificate of Incorporation confers such rights where there are two or more classes or series of shares or upon which or upon whom the Business Corporation Law confers such rights notwithstanding that the Certificate of Incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder.

6. SHAREHOLDER MEETINGS.

– TIME. The annual meeting shall be held on the date fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the formation of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date fixed by the directors except when the Business Corporation Law confers the right to fix the date upon shareholders.

– PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of New York, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, or, whenever shareholders entitled to call a special meeting shall call the same, the meeting shall be held at the office of the corporation in the State of Hew York.

– CALL. Annual meetings may be called by the directors or by any officer instructed by the directors to call the meeting. Special meetings may be called in like manner except when the directors are required by the Business Corporation Law to call a meeting, or except when the shareholders are entitled by said Law to demand the call of a meeting.

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– NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting, and, unless it is an annual meeting, indicating that it is being issued by or at the direction of the person or persons calling the meeting. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall, (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called; and, at any such meeting, only such business may be transacted which is related to the purpose or purposes set forth in the notice. If the directors shall adopt, amend, or repeal a bylaw regulating an impending election of directors, the notice of the next meeting for election of directors shall contain the statements prescribed by Section 601 (b) of the Business Corporation Law. If any action is proposed to be taken which would, if taken, entitle shareholders to receive payment for their shares, the notice shall include a statement of that purpose and to that effect. A copy of the notice of any meeting shall be given, personally or by first class mail, not less than ten days nor more than fifty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, to each shareholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States post office department. If a meeting is adjourned to another time or place, and, if any announcement of the adjourned time or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice before or after the meeting. The attendance of a shareholder at a meeting without protesting prior to the conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him.

– SHAREHOLDER LIST AND CHALLENGE. A list of shareholders as of the record date, certified by the Secretary or other officer responsible for its preparation or by the transfer agent, if any, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, the inspectors of election, if any, or the person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting.

–4–

– CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting – the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a Chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting.

– PROXY REPRESENTATION. Every shareholder may authorize another person or persons to act for him by proxy in all matters in which a shareholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the shareholder or his attorney-in-fact. No proxy shall be valid after the expiration of eleven months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except as otherwise provided by the Business Corporation Law.

– INSPECTORS – APPOINTMENT. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the person presiding at the meeting or any shareholder, the inspector or inspectors, if any, shall make a report in writing of any challenge, question or matter determined by him or them and execute a certificate of any fact found by him or them.

–5–

– QUORUM. Except for a special election of directors pursuant to Section 603 (b) of the Business Corporation Law, and except as herein otherwise provided, the holders of a majority of the outstanding shares shall constitute a quorum at a meeting of shareholders for the transaction of any business. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders. The shareholders present may adjourn the meeting despite the absence of a quorum.

– VOTING. Each share shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes cast shall elect. Any other action shall be authorized by a majority of the votes cast except where the Business Corporation Law prescribes a different proportion of votes.

7. SHAREHOLDER ACTION WITHOUT MEETINGS. Whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all shares.

ARTICLE II

GOVERNING BOARD

1. FUNCTIONS AND DEFINITIONS. The business of the corporation shall be managed by a governing board, which is herein referred to as the “Board of Directors” or “directors” notwithstanding that the members thereof may otherwise bear the titles of trustees, managers, or governors or any other designated title, and notwithstanding that only one director legally constitutes the Board. The word “director” or “directors” likewise herein refers to a member or to members of the governing board notwithstanding the designation of a different official title or titles. The use of the phrase “entire board” herein refers to the total number of directors which the corporation would have if there were no vacancies.

2. QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen years of age. A director need not be a shareholder, a citizen of the United States, or a resident of the State of New York. The initial Board of Directors shall consist of three persons. Thereafter the number of directors constituting the entire board shall be at least three,

–6–

except that, where all the shares are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of such shareholders. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the shareholders or of the directors, or, if the number is not so fixed, the number shall be three. The number of directors may be increased or decreased by action of shareholders or of the directors, provided that any action of the directors to effect such increase or decrease shall require the vote of a majority of the entire Board. No decrease shall shorten the term of any incumbent director.

3. ELECTION AND TERM. The first Board of Directors shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of shareholders and until their successors have been elected and qualified. Thereafter, directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim by the shareholders to fill vacancies and newly created directorships, shall hold office until the next annual meeting of shareholders and until their successors have been elected and qualified; and directors who are elected in the interim by the directors to fill vacancies and newly created directorships shall hold office until the next meeting of shareholders at which the election of directors is in the regular order of business and until their successors have been elected and qualified. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors, newly created directorships and any vacancies in the Board of Directors, including vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of the remaining directors then in office, although less than a quorum exists.

4. MEETINGS.

– TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble.

– PLACE. Meetings shall be held at such place within or without the State of New York as shall be fixed by the Board.

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– CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, of the President, or of a majority of the directors in office.

– NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the purpose of the meeting. Any requirement of furnishing a notice shall be waived by any director who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him.

– QUORUM AND ACTION. A majority of the entire Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided such majority shall constitute at least one-third of the entire Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, the act of the Board shall be the act, at a meeting duly assembled, by vote of a majority of the directors present at the time of the vote, a quorum being present at such time.

Any one or more members of the Board of Directors or of any committee thereof may participate in a meeting of said Board or of any such committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time, and participation by such means shall constitute presence in person at the meeting.

– CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the President, if present and acting, or any other director chosen by the Board, shall preside.

5. REMOVAL OF DIRECTORS. Any or all of the directors may be removed for cause or without cause by the shareholders. One or more of the directors may be removed for cause by the Board of Directors.

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6. COMMITTEES. Whenever the Board of Directors shall consist of more than three members, the Board of Directors, by resolution adopted by a majority of the entire Board of Directors, may designate from their number three or more directors to constitute an Executive Committee and other committees, each of which, to the extent provided in the resolution designating it, shall have the authority of the Board of Directors with the exception of any authority the delegation of which is prohibited by Section 712 of the Business Corporation Law.

7. WRITTEN ACTION. Any action required or permitted to be taken by the Board of Directors or by any committee thereof may be taken without a meeting if all of the members of the Board of Directors or of any committee, thereof consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board of Directors or any such committee shall be filed with the minutes of the proceeding of the Board of Directors or of any such committee.

ARTICLE III

OFFICERS

The directors may elect or appoint a Chairman of the Board of Directors, a President, one or more Vice-Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, and such other officers as they may determine. The President may but need not be a director. Any two or more offices may be held by the same person except the offices of President and Secretary; or, when all of the issued and outstanding shares of the corporation are owned by one person, such person may hold all or any combination of offices.

Unless otherwise provided in the resolution of election or appointment, each officer shall hold office until the meeting of the Board of Directors following the next annual meeting of shareholders and until his successor has been elected and qualified.

Officers shall have the powers and duties defined in the resolutions appointing them.

The Board of Directors may remove any officer for cause or without cause.

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ARTICLE IV

STATUTORY NOTICES TO SHAREHOLDERS

The directors may appoint the Treasurer or other fiscal officer and/or the Secretary or any other officer to cause to be prepared and furnished to shareholders entitled thereto any special financial notice and/or any financial statement, as the case may be, which may be required by any provision of law, and which, more specifically, may be required by Sections 510, 511, 515, 516, 517, 519, and 520 of the Business Corporation Law.

ARTICLE V

BOOKS AND RECORDS

The corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of the shareholders, of the Board of Directors, and/or any committee which the directors may appoint, and shall keep at the office of the corporation in the State of New York or at the office of the transfer agent or registrar, if any, in said state, a record containing the names and addresses of all shareholders, the number and class of shares held by each, and the dates when they respectively became the owners of record thereof. Any of the foregoing books, minutes, or records may be in written form or in any other form capable of being converted into written form within a reasonable time.

ARTICLE VI

CORPORATE SEAL

The corporate seal, if any, shall be in such form as the Board of Directors shall prescribe.

ARTICLE VII

FISCAL YEAR

The first fiscal year of the corporation shall be that fixed in the Certificate of Incorporation. Thereafter, the fiscal year of the corporation shall be subject to change from time to time by the Board of Directors.

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ARTICLE VIII

CONTROL OVER BY-LAWS

The shareholders entitled to vote in the election of directors or the directors upon compliance with any statutory requisite may amend or repeal the By-Laws and may adopt new By-Laws, except that the directors may not amend or repeal any By-Law or adopt any new By-Law, the statutory control over which is vested exclusively in the said shareholders or in the incorporators. By-Laws adopted by the incorporators or directors may be amended or repealed by the said shareholders.

* * * * * * *

The undersigned incorporator certifies that she has examined the foregoing By-Laws and has adopted the same as the first By-Laws of the corporation; that said By-Laws contain specific and general provisions, which, in order to be operative, must be adopted by the incorporator or incorporators or the shareholders entitled to vote in the election of directors; and that she has adopted each of said specific and general provisions in accordance with the requirements of the Business Corporation Law.

Dated: December 15, 1975

    /s/ Frances A. Wrigley, Incorporator

Frances A. Wrigley, Incorporator

Of

SPRING LANE PRODUCE CORP.

I HEREBY CERTIFY that the foregoing is a full, true and correct copy of the By-Laws of SPRING LANE PRODUCE CORP., a New York corporation, as in effect on the date hereof.

WITNESS my hand and the seal of the corporation.

Dated:

Secretary of

SPRING LANE PRODUCE CORP.

(SEAL)

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EX-99.T3B.40

Exhibit B-40

CERTIFICATE OF AMENDMENT

Of

CERTIFICATE OF INCORPORATION

of

THE QUALITY FOOD

COMPANY, INC.

Adopted in accordance with the provisions of Section 242 of the General Corporation law of the State of Delaware.

The undersigned, being the holder of record of all outstanding shares of the stock of The Quality Food Company, Inc., a corporation existing under the laws of the State of Delaware, does hereby certify as follows:

1) That the certificate of said corporation has been amended as follows:

By striking out the whole of article “FIRST” thereof as it now exists and inserting in lieu and instead thereof a new article “FIRST” reading as follows:

“FIRST: The name of the corporation is SUPER FRESH FOOD MARKETS, INC.”

2) That such amendment has been duly adopted in accordance with the provisions of the General Corporation Law of the State of Delaware by unanimous written consent of all of the stockholders entitled to vote in accordance with the provisions of Section 228 of the General Corporate Law of the State of Delaware.

IN WITNESS WHEREOF we have signed this certificate this 24th day of May, 1982.

ATTEST:	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., sole stockholder
	By
Secretary		Senior Vice President

BY-LAWS

OF

THE QUALITY FOOD COMPANY, INC.

ARTICLE I

OFFICES

SECTION 1. REGISTERED OFFICE. —The registered office shall be established and maintained at the office of the United States Corporation Company, in the City of Dover, in the County of Kent, in the State of Delaware, and said corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES.—The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS.—Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the corporation in Delaware on

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS.—Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

SECTION 3. VOTING.—Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM.—Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS.—Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS.—Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING. — Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any, annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM. — The number of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

SECTION 2. RESIGNATIONS. — Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES. — If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL. — Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election .of the class of directors of which he is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER. — The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS. — The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES. — The Board of Directors may, by resolution or resolutions passed by a majority of the whole board; designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS. — The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM. — A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION. — Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING. — Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS.—The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualfied. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS.—The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHAIRMAN.—The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT.—The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE-PRESIDENT.—Each Vice-president shall have such powers and shall perform such duties as shall be assigned to him by the directors.

SECTION 6. TREASURER.—The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositaries as may be designated by the Board of Directors.

The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, or the President, taking proper vouchers for such disbursements. He shall render to the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he shall give the corporation a bond for the faithful discharge of his duties in such amount and with such surety as the board shall prescribe.

SECTION 7. SECRETARY.—The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.— Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

SECTION 1. CERTIFICATES OF STOCK.—Certificate of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles.

SECTION 2. LOST CERTIFICATES.—A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

SECTION 3. TRANSFER OF SHARES. —The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4. STOCKHOLDERS RECORD DATE.—In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5. DIVIDENDS.—Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6. SEAL.—The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL DELAWARE”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 7. FISCAL YEAR.—The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

SECTION 8. CHECKS.—All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolution of the Board of Directors.

SECTION 9. NOTICE AND WAIVER OF NOTICE.—Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting.

EX-99.T3B.41

Exhibit B-41

BY - LAWS

of

SUPER FRESH/SAV-A-CENTER, INC.

ARTICLE I - OFFICES

SECTION 1. REGISTERED OFFICE. The registered office shall be established and maintained at the office of United States Corporation Company, 306 South State Street, in the City of Dover, in the County of Kent, in the State of Delaware, and such corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES. The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II - MEETING OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the corporation in Delaware on the last Thursday in June.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

SECTION 3. VOTING. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

SECTION 4. STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall, at least ten days before each meeting of stockholders, prepare a complete alphabetical addressed list of the stockholders entitled to vote at the ensuing election, with the number of shares held by each. Said list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall be available for inspection at the meeting.

SECTION 5. QUORUM. Except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the directors or stockholders entitled to vote. Such request shall state the purpose of the proposed meeting.

SECTION 7, NOTICE OF MEETINGS. Written notice, stating the place, date and time of the meeting and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than fifty days before the date of the meeting.

SECTION 8. BUSINESS TRANSACTED No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 9. ACTION WITHOUT MEETING. Except as otherwise provided by the Certificate of Incorporation, whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action by any provisions of the statutes or the Certificate of Incorporation or of these By-Laws, the meeting and vote of stockholders may be dispensed with, if all the stockholders who would have been entitled by vote upon the action if such meeting were held shall consent in writing to such corporate action being taken.

ARTICLE III - DIRECTORS

SECTION 1. NUMBER AND TERM. - The number of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify. The number of directors may not be less than three except that, where all the shares of the corporation are owned beneficially and of record by either one or two stockholders, the number of directors may be less than three but not less than the number of stockholders.

SECTION 2. RESIGNATIONS. Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES. If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL. Any director or directors may be removed either for or without cause at any time by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. COMPENSATION. Directors shall not receive any stated salary for their services as directors or as members of committees; but by resolution of the Board, a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 7. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if, prior to such action, a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of the proceedings of the Board or committee.

ARTICLE IV - OFFICERS

SECTION 1. OFFICERS. The officers of the corporation shall consist of a President, a Treasurer and a Secretary and shall be elected by the Board of Directors and shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect a Chairman, one or more Vice Presidents and such Assistant Secretaries and Assistant Treasurers as it may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint such officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such power and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHARIMAN. The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT. The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts on behalf of the corporation and shall cause the seal to be affixed to any instrument requiring it, and when so affixed, the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE PRESIDENT. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him by the directors.

SECTION 6. TREASURER. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

SECTION 7. SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the Presidents, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8. ASSISTANT TREASURERS AMD ASSISTANT SECRETARIES. Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V - MISCELLANEOUS

SECTION 1. CERTIFICATES OF STOCK. Certificate of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles.

SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6. SEAL. The corporate seal shall be circular In form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL DELAWARE.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

SECTION 8. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents, as may be authorized so to do from time to time by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer or the Treasurer.

SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI - AMENDMENTS

These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special, meeting.

EX-99.T3B.42

Exhibit B-42

OF

SUPER MARKET SERVICE CORP.

FROM

JANUARY 4, 1958,

TO

BY-LAWS

OFFICES

1. The registered office shall be at 321 Penn Avenue, in the City of Scranton, Pa. Commonwealth of Pennsylvania.

2. The corporation may also have offices at such other places as the Board of Directors may from time to time appoint or the business of the corporation may require

SEAL

3. The corporate seal shall have inscribed thereon the name of the corporations, the year of its organization and the words “Corporate Seal, Pennsylvania.”

SHAREHOLDERS’ MEETING

2. The amendment of Section 4 of the By-laws to read in full as follows:

“4. Meetings of shareholders shall be held at such place within or without the commonwealth as shall be fixed by the board of directors in the notice thereof.”

the First of June in each year if not a legal holiday, and if a legal holiday, then on the next secular day following at 2:00 o’clock P. M. when they shall elect a Board of Directors, and transact such other business as may properly be brought before the meeting. If the annual meeting shall not be called and held within six months after the designated time, any shareholder may call such meeting.

5-Pa

6. The presence, in person or by proxy, of the holders of a majority of the outstanding shares entitled to vote, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by law, by articles of incorporation or by these by-laws. If however, such quorum shall not be present or represented at any meeting of the shareholders, those entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meetings, until the requisite number of shares shall be present. In the case of any meeting called for the election of directors, adjournment or adjournments may be taken only from day to day until such directors have been elected, and those who attend the second of such adjourned meetings, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing directors.

7. At each meeting of the shareholders every shareholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing subscribed by such shareholder and delivered to the secretary at the meeting. No unrevoked proxy shall be valid after eleven months from the date of its execution, unless a longer time is expressly provided therein, but in no event shall a proxy, unless coupled with an interest, be voted on after three years from the the date of its executions. In all elections for directors cumulative voting shall be allowed. Upon demand made by a shareholder at any election for directors before the voting begins, the election shall be by ballot. No share shall be voted at any meeting upon which any installment is due and unpaid. The original share ledger or transfer book, or a duplicate thereof kept in this Commonwealth shall be prima facie evidence of the right of the person named therein to vote thereon.

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8. Written notice of the annual meeting shall be mailed to each shareholder entitled to vote thereat, at such address as appears on the books of the corporation, at least 5 days prior to the meeting.

9. In advance of any meeting of shareholders, the board of directors may appoint judges of election who need not be shareholders, to act at such meeting or any adjournment thereof. If judges of election be not so appointed, the chairman of any such meeting may, and on the request of any shareholder or his proxy, shall make such appointment at the meeting. The number of judges shall be one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares present and entitled to vote shall determine whether one or three judges are to be appointed. On request of the chairman of the meeting, or of any shareholder or his proxy, the judges shall make a report in writing of any challenge or question or matter determined by them, and execute a certificate of any fact found by them. No person who is a candidate for office shall act as a judge.

10. Special meetings of the shareholders may be called at any time by the presidents or the board of directors, or the holders of not less than one-fifth of all the shares outstanding and entitled to vote. At any time, upon written request of any person entitled to call a special meeting, it shall be the duty of the secretary to call a special meeting of the shareholders, to be held at such time as the secretary may fix, not less than ten nor more than sixty days after receipt of the request.

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11. Business transacted at all special meetings shall be confined to the objects stated in the call and matters germane thereto.

12. Written notice of a special meeting of shareholders, stating the time and place and object thereof, shall be mailed, postage prepaid, to each shareholder entitled to vote thereat at such address as appears on the books of the corporation, at least five days before such meeting, unless a greater period of

“12A. Anything set forth to the contrary herein notwithstanding, any action which may be taken at a meeting of the shareholders, or of a class of shareholders, may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by all the shareholders who would be entitled to vote at a meeting for such purpose and shall be filed with the Secretary of the corporation.” 11/14/75

meetings, arranged in alphabetical order, with, the address of and the number of shares held by each, which list shall be kept on file at the registered office of the corporation, and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting, and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in this Commonwealth, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book, or to vote in person or by proxy, at any meeting of shareholders.

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DIRECTORS

14. The business of this corporation shall be managed by its board of directors, three in number, who need not be resident of this Commonwealth or shareholders in the corporation. They shall be elected by the shareholders, at the annual meeting of shareholders of the corporation. and each director shall be elected for the term of one year, and until his successor shall be elected and shall qualify. Amended 12-4-80 Amended 6/23/58

15. In addition to the powers and authorities by these by-laws expressly conferred upon them, the board may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles or by these by-laws directed or required to be exercised or done by the shareholders.

MEETINGS OF THE BOARD

16. The meetings of the board of directors may be held at such place within this Commonwealth, or elsewhere, as a majority of the directors may from time to time appoint, or as may be designated in the notice calling the meeting.

17. Each newly elected board may meet at such place and time as shall be fixed by the shareholders at the meeting at which such directors are elected and no notice shall be necessary to the newly elected directors in, order legally to constitute the meeting, or they may meet at such place and time as may be fixed by the consent in writing of all the directors.

18. Regular meetings of the board shall be held without notice on the 15 Monday of each month at the registered office of the company, or at such other time and place as shall be determined by the board.

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19. Special meetings of the board may be called by the president on two days notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in a like manner and on like notice on the written request of two directors.

20. A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business, and the acts of a majority of the directors present at a meeting at which a quorum is present shall be the acts of the board of directors. If all the directors shall severally or collectively consent in writing to any action to be taken by the corporation, such action shall be as valid corporate action as though it had been authorized at a meeting of the board of directors.

COMPENSATION OF DIRECTORS

21. Directors as such, shall not receive any stated salary for their services, but by resolution of the board, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the board PROVIDED, that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving

3. The amendment of Section 22 of the By-laws to read in full as follows:

“22. The executive officers of the corporation shall be chosen by the directors and shall be a chairman, president, one or more vice presidents, secretary, and a treasurer. The directors may also elect such other officers as they shall deem necessary. Any two offices may be held by the same person, except the office of president and secretary. Officers shall have such authority and perform such duties as shall from time to time

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other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall have such authority and shall perform such duties as from time to time shall be prescribed by the board. Any two or more offices may be held by the same person, except the offices of president and secretary. It shall not be necessary for the officers to be directors.

23. The salaries of all officers and agents of the corporation shall be fixed by the board of directors.

24. The officers of the corporation shall hold office for one year and until their successors are chosen and have qualified. Any officer elected or appointed by the board of directors may be removed by the board of directors whenever in their judgment the best interests of the corporation will be served thereby.

PRESIDENT

25. The president shall be the chief executive officer of the

4. The amendment of Section 25 to read in full as follows:

“CHAIRMAN 25. The chairman shall act as chairman and preside at all meetings of the shareholders and the board of directors, and in general shall have such authority and perform such duties as shall from time to time, be prescribed by the board. He shall be an ex-officio member of all committees.”

5. The amendment of Section 26 to read in full as follows:

“PRESIDENT 26. The president shall in general have such authority and perform such duties as shall from time to time be prescribed by the board.”

26. He shall be EX-OFFICIO a member of all committees, and shall have the general powers and duties of supervision and management usually vested in the office of president of a corporation Amended 7/16/70

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SECRETARY

27. The secretary shall attend all sessions of the board and all meetings of the shareholders and act as clerk thereof, and record all the votes of the corporation and the minutes of all its transactions in a book to be kept for that purpose; and shall perform like duties for all committees of the board of directors when required. He shall give, or cause to be given, notice of all meetings of the shareholders and of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, and under whose supervision he shall be. He shall keep in safe custody the corporate seal of the corporation, and when authorized by the board, affix the same to any instrument requiring it.

TREASURER

28. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chairman of the Board, or the President. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements. Amended 11/9/79

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VACANCIES

30. If the office of any officer or agent, one or more, becomes vacant for any reason, the board of directors may choose a successor or successors, who shall hold office for the unexpired term in respect of which such vacancy occurred.

Vacancies in the board of directors shall be filled by a majority of the remaining members of the board though less than a quorum, and each person so elected shall be a director until his successor is elected by the shareholders, who may make such election at the next annual meeting of the shareholders or at any special meeting duly called for that purpose and held prior thereto.

CORPORATE RECORDS

31. There shall be kept at the registered office of the corporation an original or duplicate record of the proceedings of the shareholders and of the directors, and the original or a copy of its by-laws, including all amendments or alterations thereto to date, certified by the secretary of the corporation. An original or duplicate share register shall also be kept at the registered office, or at the office of a transfer agent or registrar within this Commonwealth, giving the names of the shareholders in alphabetical order, and showing their respective addresses, the number and classes of shares held by each, the number and date of certificates issued for the shares, and the number and date of cancellation of every certificate surrendered for cancellation.

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Every shareholder shall have a right to examine, in person or by agent or attorney, at any reasonable time or times, for any reasonable purpose, the share register, books or records of account, and records of the proceedings of the shareholders and directors, and make extracts therefrom.

SHARE CERTIFICATES

32. The share certificates of the corporation shall be numbered and registered in the share ledger and transfer books of the corporation, as they are issued. They shall be signed by the President or a Vice President and Secretary and shall bear the corporate seal. Amended 7/16/70

TRANSFERS OF SHARES

33. Transfers of shares shall be made on the books of the corporation upon surrender of the certificates therefor, endorsed by the person named in the certificate or by attorney, lawfully constituted in writing. No transfer shall be made inconsistent with the provisions of the Uniform Stock Transfer Act, approved the fifth day of May, one thousand nine hundred eleven (Pamphlet Laws, one hundred twenty-six), and its amendments and supplements.

CLOSING TRANSFER BOOKS OR FIXING RECORD DATE

34. The board of directors may fix a time, not less than ten or more than forty days, prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made

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or go into effect, as a record date for the determination of the shareholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend or distribution or to receive any such allotment of rights, or to exercise the rights in respect to any change, conversion, or exchange of shares. In such cases, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after any record date fixed, as aforesaid. The board of directors may close the books of the corporation against transfers of shares during the whole or any part of such period, and in such case written or printed notice thereof shall be mailed at least ten days before the closing thereof to each shareholder of record at the address appearing on the records of the corporation or supplied by him to the corporation for the purpose of notice. While the stock transfer books of the corporation are closed, no transfer of shares shall be made thereon. If no record date is fixed for the determination of shareholders entitled to receive notice of, or vote at, a shareholders’ meetings, transferees of shares which are transferred on the books of the corporation within ten days next preceding the date of such meeting shall not be entitled to notice of or vote at such meetings.

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LOST CERTIFICATE

35. Any person claiming a share certificate to be lost or destroyed shall make an affidavit or affirmation of that fact and advertise the same in such manner as the board of directors may require, and shall give the corporation a bond of indemnity with sufficient surety to protect the corporation or any person injured by the issue of a new certificate from any liability or expense which it or they may incur by reason of the original certificate remaining outstanding, whereupon a new certificate may be issued of the same tenor and for the same number of shares as the one alleged to be lost or destroyed, but always subject to the approval of the board of directors.

CHECKS

36. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors, the Chairman of the Board, the President, or the Treasurer. Amended 11/9/79

FISCAL YEAR

37. The fiscal year shall end on the last Saturday in February of each year. Amended 7/16/70

DIVIDENDS

38. Subject to the provisions of the statutes, the board of directors may declare and pay dividends upon the outstanding shares of the corporation out of its surplus from time to time and to such extent as they deem advisable, in cash, property or in shares of the corporation.

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Before payment of any dividend there may be set aside out of the net profits of the corporation such sum or sums as the directors, from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interests of the corporation, and the directors may abolish any such reserve in the manner in which it was created.

DIRECTORS’ ANNUAL STATEMENT

39. The president and board of directors shall present at each annual meeting a full and complete statement of the business and affairs of the corporation for the preceding year. Such statement shall be prepared and presented in whatever manner the board of directors shall deem advisable and need not be verified by a certified public accountant.

NOTICES

40. Whenever written notice is required to be given to any person, it may be given to such person, either personally or by sending a copy thereof through the mail, or by telegram, charges prepaid, to his address appearing on the books of the corporation, or supplied by him to the corporation for the purpose of notice. If the notice is sent by mail or by telegraph, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office for transmission to such person. Such notice shall specify the place, day and hour of the meeting and, in the case of a special meeting, the general nature of the business to be transacted.

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Any shareholder or director may waive any notice required to be given under these by-laws. Or by statute to the extent permitted by law. Amended 7/16/70

AMENDMENTS

9. The amendment of Section 41 of the By-laws to read in full as follows:

“41. These By-laws may be altered, amended, or repealed by the majority vote of the members of the board of directors at any regular or special meeting duly convened on notice for that purpose, subject to the powers reserved in the premises to the shareholders by statute.”

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EX-99.T3B.43

Exhibit B-43

BY - LAWS

OF

SUPER PLUS FOOD WAREHOUSE, INC.

ARTICLE I

OFFICES

SECTION 1. REGISTERED OFFICE.—The registered office shall be established and maintained at the office of the United States Corporation Company, in the City of Dover, in the County of Kent, in the State of Delaware, and said corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES.—The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS.—Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the corporation in Delaware on the last Friday in March.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS.—Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

SECTION 3. VOTING.—Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM.—Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS.—Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS.—Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING.—Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM.—The number of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

SECTION 2. RESIGNATIONS.—Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES.—If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL.—Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER.—The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS.—The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES.—The Board of Directors may, by resolution or resolutions passed by a majority of the whole board; designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS.—The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM.—A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION.—Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING.—Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS.—The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualfied. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS.—The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHAIRMAN.—The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT.—The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE-PRESIDENT.—Each Vice-President shall have such powers and shall perform such duties as shall be assigned to him by the directors.

Article IV, Section 6. The Treasurer. The Treasurer shall, have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM.—Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS.—Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS.—Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING.—Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without, a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM.—The number of directors shall be three (3). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

SECTION 2. RESIGNATIONS.—Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take, effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES.—If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL.—Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER.—The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS.—The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES.—The Board of Directors may, by resolution or resolutions passed by a majority of the whole boards designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS.—The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM.—A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION.—Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING.—Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS.—The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualfied. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS.—The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHAIRMAN.—The Chairman of the Board of Directors, if one be elected shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT.—The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE-PRESIDENT.—Each Vice-President shall have such powers and shall perform such duties as shall be assigned to him by the directors.

Article IV, Section 6. The Treasurer. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

SECTION 7. SECRETARY.—The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.—Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

SECTION 1. CERTIFICATES OF STOCK.—Certificate of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles.

SECTION 2. LOST CERTIFICATES.—A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

SECTION 3. TRANSFER OF SHARES.—The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4. STOCKHOLDERS RECORD DATE.—In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action, A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5. DIVIDENDS.—Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6. SEAL.—The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL DELAWARE”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 7. FISCAL YEAR.—The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Article V, Section 8. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer.

SECTION 9. NOTICE AND WAIVER OF NOTICE.—Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if

given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained-in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting.

EX-99.T3B.44

Exhibit B-44

BY - LAWS

OF

SUPERMARKETS OIL COMPANY, INC.

(a New Jersey corporation)

ARTICLE I

SHAREHOLDERS

1. CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall set forth thereon the statements prescribed by Section 14A:7-11, and, where applicable, by Sections 14A:5-21 and 14A:12-5, of the New Jersey Business Corporation Act and by any other applicable provision of law and shall be signed by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and may be counter-signed by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the corporate seal or a facsimile thereof. Any or all other signatures upon a certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of its issue.

A card which is punched, magnetically coded, or otherwise treated so as to facilitate machine or automatic processing, may be used as a share certificate if it otherwise complies with the provisions of Section 14A:7-11 of the New Jersey Business Corporation Act.

The corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the Board of Directors may require the owner of any lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate.

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2. FRACTIONAL SHARE INTERESTS. Unless otherwise provided in its certificate of incorporation, the corporation may, but shall not be obliged to, issue fractions of a share and certificates therefor. By action of the Board, the corporation may, in lieu of issuing fractional shares, pay cash equal to the value of such fractional share or issue scrip in registered or bearer form which shall entitle the holder to receive a certificate for a full share upon the surrender of such scrip aggregating a full share. A certificate for a fractional share shall entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any distribution of assets of the corporation in the event of liquidation, but scrip shall not entitle the holder to exercise such voting rights, receive dividends or participate in any such distribution of assets unless such scrip shall so provide. All scrip shall be issued subject to the condition that it shall become void if not exchanged for certificates representing full shares before a specified date.

3. SHARE TRANSFERS. Upon compliance with provisions restricting the transferability of shares, if any, transfers of shares of the corporation shall be made only on the share record of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes due thereon, if any.

4. RECORD DATE FOR SHAREHOLDERS. The Board of Directors may fix, in advance, a date as the record date for determining the shareholders with regard to any corporate action or event and, in particular, for determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof; to give a written consent to any action without a meeting; or to receive payment of any dividend or allotment of any right. Any such record date shall in no case be more than sixty days prior to the shareholders’ meeting or other corporate action or event to which it relates. Any such record date for a shareholders’ meeting shall not be less than ten days before the date of the meeting. Any such record date to determine shareholders entitled to give a written consent shall not be more than sixty days before the date fixed for tabulation of the consents or, if no date has been fixed for tabulation, more than sixty days before the last day on which consents received may be counted. If no such record date is fixed, the record date for a shareholders’ meeting shall be the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day next preceding the day on which the meeting is held; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the Board of Directors relating thereto is adopted. When a determination of shareholders of record for a shareholders’ meeting has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date under this section for the adjourned meeting.

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5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “shareholder” or “shareholders” refers to an outstanding share or shares and to a holder or holders of record of outstanding shares when the corporation is authorized to issue only one class of shares, and said reference is also intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the Certificate of Incorporation confers such rights where there are two or more classes or series of shares or upon which or upon whom the New Jersey Business Corporation Act confers such rights notwithstanding that the Certificate of Incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder.

6. SHAREHOLDER MEETINGS.

- TIME. The annual meeting shall be held at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. If, for any reason, the directors shall fail to fix the time for an annual meeting, such meeting shall be held at noon on the first Tuesday in April. A special meeting shall be held on the date fixed by the directors.

- PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of New Jersey, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of New Jersey.

- CALL. Annual meetings may be called by the directors or by the President or by any officer instructed by the directors to call the meeting. Special meetings may be called in like manner.

- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of every meeting shall be given, stating the time, place, and purpose or purposes of the meeting. If any action is proposed to be taken which would, if taken, entitle shareholders to dissent and to receive payment for their shares, the notice shall include a statement of that purpose and to that effect. The notice of every meeting shall be given, personally or by mail, and, except as otherwise provided by the New Jersey Business Corporation Act, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived before or after the taking of any action, to each shareholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States post office department. When a meeting is adjourned to another time

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or place, it shall not be necessary to give notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken and at the adjourned meeting only such business is transacted as might have been transacted at the original meeting. However, if after the adjournment the directors fix a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder on the new record date. Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice before or after the meeting. The attendance of a shareholder at a meeting without protesting prior to the conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him.

- VOTING LIST. The officer or agent having charge of the stock transfer books for shares of the corporation shall make and certify a complete list of the shareholders entitled to vote at the shareholders’ meeting or any adjournment thereof. Any such list may consist of cards arranged alphabetically or any equipment which permits the visual display of the information required by the provisions of Section 14A:5-8 of the New Jersey Business Corporation Act. Such list shall be arranged alphabetically within each class, series, if any, or group of shareholders maintained by the corporation for convenience of reference, with the address of, and the number of shares held by, each shareholder; be produced (or available by means of a visual display) at the time and place of the meeting; be subject to the inspection of any shareholder for reasonable periods during the meeting; and be prima facie evidence as to who are the shareholders entitled to examine such list or to vote at such meeting.

CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting.

- PROXY REPRESENTATION. Every shareholder may authorize another person or persons to act for him by proxy in all matters in which a shareholder is entitled to participate, whether by waiving notice of or the lapse of the prescribed period of time before any meeting, voting or participating at a meeting, or expressing consent without a meeting. Every proxy must be signed by the shareholder or his agent, except that a proxy may be given by a shareholder or his agent by telegram or cable or by any means of electronic communication which results in a writing. No proxy shall be valid for more than eleven months unless a longer time is expressly provided therein. Unless it is irrevocable as provided in subsection 14A:5-19(3) of the New Jersey Business Corporation Act a proxy

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shall be revocable at will. The grant of a later proxy revokes any earlier proxy unless the earlier proxy is irrevocable. A proxy shall not be revoked by the death or incapacity of the shareholder, but the proxy shall continue to be in force until revoked by the personal representative or guardian of the shareholder. The presence at any meeting of any shareholder who has given a proxy does not revoke the proxy unless the shareholder files written notice of the revocation with the Secretary of the meeting prior to the voting of the proxy or votes the shares subject to the proxy by written ballot. A person named in a proxy as the attorney or agent of a shareholder may, if the proxy so provides, substitute another person to act in his place, including any other person named as an attorney or agent in the same proxy. The substitution shall not be effective until an instrument effecting it is filed with the Secretary of the corporation.

INSPECTORS - APPOINTMENT. The directors, in advance of any meeting, or of the tabulation of written consents of shareholders without a meeting may, but need not, appoint one or more inspectors to act at the meeting or any adjournment thereof or to tabulate such consents and make a written report thereof. If an inspector or inspectors to act at any meeting of shareholders are not so appointed by the directors or shall fail to qualify, if appointed, the person presiding at the shareholders’ meeting may, and on the request of any shareholder entitled to vote thereat, shall, make such appointment. In case any person appointed as inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding at the meeting. Each inspector appointed, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability. No person shall be elected a director in an election for which he has served as an inspector. The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. If there are three or more inspectors, the act of a majority shall govern. On request of the person presiding at the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question, or matter determined by them. Any report made by them shall be prima facie evidence of the facts therein stated, and such report shall be filed with the minutes of the meeting.

- QUORUM. Except for meetings ordered by the Superior Court to be called and held pursuant to Sections 14A:5-2 and 14A:5-3 of the New Jersey Business Corporation Act, the holders of the shares entitled to cast at least a majority of the votes at a meeting shall constitute a quorum at the meeting of shareholders for the transaction of business.

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The shareholders present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Less than a quorum may adjourn.

- VOTING. Each share shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes cast shall elect, and no election need be by ballot unless a shareholder demands the same before the voting begins. Any other action shall be authorized by a majority of the votes cast except where the New Jersey Business Corporation Act prescribes a different proportion of votes.

7. SHAREHOLDER ACTION WITHOUT MEETINGS. Subject to any limitations prescribed by the provisions of Section 14A:5-6 of the New Jersey Business Corporation Act and upon compliance with said provisions, any action required or permitted to be taken at a meeting of shareholders by the provisions of said Act or by the Certificate of Incorporation or these By-Laws may be taken without a meeting if all of the shareholders entitled to vote thereon consent thereto in writing and (except for the annual election of directors) may also be taken by less than all of the shareholders who would have been entitled to cast the minimum number of votes which would be necessary to authorize any such action at a meeting at which all shareholders entitled to vote thereon were present and voting. Whenever any action is taken pursuant to the foregoing provisions, the written consents of the shareholders consenting thereto or the written report of inspectors appointed to tabulate such consents shall be filed with the minutes of proceedings of shareholders.

ARTICLE II

GOVERNING BOARD

1. FUNCTIONS, DEFINITIONS AND COMPENSATION. The business and affairs of the corporation shall be managed and conducted by or under the direction of a governing board, which is herein referred to as the “Board of Directors” or “directors” notwithstanding that the members thereof may otherwise bear the titles of trustees, managers, or governors or any other designated title, and notwithstanding that only one director legally constitutes the Board. The word “director” or “directors” likewise herein refers to a member or to members of the governing board notwithstanding the designation of a different official title or titles. The use of the phrase “entire board” herein refers to the total number of directors which the corporation would have if there were no vacancies. The Board of Directors, by the affirmative vote of a majority of directors in office and irrespective of any personal interest of any of them, shall have authority to establish reasonable compensation of directors for services to the corporation as directors, officers, or otherwise.

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2. QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen years of age. A director need not be a shareholder, a citizen of the United States, or a resident of the State of New Jersey. The number of directors of the corporation shall be not less than one nor more than five. The first Board and subsequent Boards shall consist of one director until changed as hereinafter provided. The directors shall have power from time to time, in the interim between annual and special meetings of the shareholders, to increase or decrease their number within the minimum and maximum number hereinbefore prescribed.

3. ELECTION AND TERM. The first Board of Directors shall hold office until the first annual meeting of shareholders and until their successors have been elected and qualified. Thereafter, directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next succeeding annual meeting of shareholders and until their successors have been elected and qualified. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors, newly created directorships and any existing vacancies in the Board of Directors, including vacancies resulting from the removal of directors for cause or without cause, may be filled by the affirmative vote of the remaining directors, although less than a quorum exists or by the sole remaining director. A director may resign by written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation. When one or more directors shall resign from the Board of Directors effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.

4. REMOVAL OF DIRECTORS. One or more or all the directors of the corporation may be removed for cause or without cause by the shareholders. The Board of Directors shall have the power to remove directors for cause and to suspend directors pending a final determination that cause exists for removal.

5. MEETINGS.

- TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble.

- PLACE. Meetings shall be held at such place within or without the State of New Jersey as shall be fixed by the Board.

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- CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, of the President, or of a majority of the directors in office.

- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the business to be transacted at, or the purpose of, the meeting. Any requirement of furnishing a notice shall be waived by any director who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior to the conclusion of the meeting, the lack of notice to him. Notice of an adjourned meeting need not be given if the time and place are fixed at the meeting adjourning, and if the period of adjournment does not exceed ten days in any one adjournment.

- QUORUM AND ACTION. Each director shall have one vote at meetings of the Board of Directors. The participation of directors with a majority of the votes of the entire Board shall constitute a quorum for the transaction of business. Any action approved by a majority of the votes of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the New Jersey Business Corporation Act requires a greater proportion. Where appropriate communication facilities are reasonably available, any or all directors shall have the right to participate in all or any part of a meeting of the Board of Directors or a committee of the Board of Directors by means of conference telephone or any means of communication by which all persons participating in the meeting are able to hear each other.

- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present, shall preside at all meetings. Otherwise, the President, if present, or any other director chosen by the Board, shall preside.

6. COMMITTEES. The Board of Directors, by resolution adopted by a majority of the entire Board of Directors, may appoint from among its members one or more directors to constitute an Executive Committee and one or more other committees, each of which, to the extent provided in the resolution appointing it, shall have and may exercise all of the authority of the Board of Directors with the exception of any authority the delegation of which is prohibited by Section 14A:6-9 of the New Jersey Business Corporation Act. Actions taken at a meeting of any such committee shall be reported to the Board of Directors at its next meeting following such committee meeting; except that, when the meeting of the Board is held within two days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board at its second meeting following such committee meeting. Each director of a committee shall have one vote at meetings of that committee. The participation of directors with the majority of the votes

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of a committee shall constitute a quorum of that committee for the transaction of business. Any action approved by a majority of the votes of directors of a committee present at a meeting of that committee at which a quorum is present shall be the act of the committee unless the New Jersey Business Corporation Act requires a greater proportion.

7. WRITTEN CONSENT. Any action required or permitted to be taken pursuant to authorization voted at a meeting of the Board of Directors or any committee thereof may be taken without a meeting, if, prior or subsequent to the action, all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the Board of Directors or committee. Such consent shall have the same effect as a unanimous vote of the Board of Directors or committee for all purposes and may be stated as such in any certificate or other document filed with the Secretary of State of the State of New Jersey.

ARTICLE III

OFFICERS

The directors shall elect a President, a Secretary, and a Treasurer, and may elect a Chairman of the Board, a Vice-Chairman of the Board, one or more Vice-Presidents, Assistant Vice-Presidents, Assistant Secretaries, and Assistant Treasurers, and such other officers and agents as they shall determine. The President may but need not be a director. Any two or more offices may be held by the same person but no officer shall execute, acknowledge, or verify any instrument in more than one capacity if such instrument is required by law to be executed, acknowledged, or verified by two or more officers.

Unless otherwise provided in the resolution of election, each officer shall hold office until the meeting of the Board of Directors following the next annual meeting of shareholders and until his successor has been elected and qualified.

Officers shall have the powers and duties defined in the resolutions appointing them.

The Board of Directors may remove any officer for cause or without cause. An officer may resign by written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation.

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ARTICLE IV

REGISTERED OFFICE, BOOKS AND RECORDS

The address of the initial registered office of the corporation in the State of New Jersey, and the name of the initial registered agent at said address, are set forth in the original Certificate of Incorporation of the corporation.

The corporation shall keep books and records of account and minutes of the proceedings of its shareholders, Board of Directors, and the Executive Committee and other committee or committees, if any. Such books, records and minutes may be kept within or outside the State of New Jersey. The corporation shall keep at its principal office, or at the office of its transfer agent, its registered office, a record or records containing the names and addresses of all shareholders, the number, class, and series of shares held by each and the dates when they respectively became the owners of record thereof. Any of the foregoing books, minutes, or records may be in written form or in any other form capable of being converted into readable form within a reasonable time.

ARTICLE V

CORPORATE SEAL

The corporate seal shall be in such form as the Board of Directors shall prescribe.

ARTICLE VI

FISCAL YEAR

The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors.

ARTICLE VII

CONTROL OVER BY-LAWS

On and after the date upon which the first Board of Directors shall have adopted the initial corporate By-Laws, which shall be deemed to have been adopted by the shareholders for the purposes of the New Jersey Business Corporation Act, the power to make, alter, and repeal the By-Laws of the corporation may be exercised by the directors or the shareholders; provided, that any By-Laws made by the Board of Directors may be altered or repealed, and new By-Laws made, by the shareholders.

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EX-99.T3B.45

Exhibit B-45

BY - LAWS

OF

SHOPWELL LIQUORS, INC.

ARTICLE I

OFFICES AND STATUTORY AGENT

SECTION 1. Principal Office. The principal office of the corporation in the State of Connecticut shall be at c/o Prentice Hall Corporation Systems, Inc., 1 Constitution Plaza, Hartford, Connecticut, except as the same may be deemed to have been changed pursuant to the provisions of sub-section (q) of Section 33-284 of the Connecticut Stock Corporation Act.

SECTION 2. Other Offices. The corporation may also have an office or offices at such other place or places, within or without the State of Connecticut, as the Board of Directors may from time to time designate or the business of the corporation require.

SECTION 3. Statutory Agent. The name and the address of the statutory agent of the corporation in Connecticut for service of process are Prentice Hall Corporation Systems, Inc., 1 Constitution Plaza, Hartford, Connecticut.

ARTICLE II

SHAREHOLDERS’ MEETING

SECTION 1. Annual Meetings. The annual meeting of the shareholders of the corporation, commencing with the year 1969, shall be held at such place designated by the Board of Directors on the last Thursday in October of each year (or if said day be a legal holiday), for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.

If the annual meeting shall not be held on the date designated herein, a substitute annual meeting shall be called in the same manner as in the case of a special meeting of shareholders. At any substitute annual meeting the shares entitled to vote for directors and there represented, either in person or by proxy, shall constitute a quorum for the purpose of such meeting, notwithstanding the provisions of any other section of the Connecticut Stock Corporation Act, or any provision of these By-Laws or Certificate of Incorporation.

SECTION 2. Special Meetings. Special meetings of the shareholders shall be held at the same location as that for annual meetings upon call of the President or a Vice-President or the Board of Directors, and shall be called by the President at the request in writing of the holders of record of not less than one-tenth of the voting power of all shares entitled to vote at the meeting.

SECTION 3. Notice of Meetings. A notice in writing of each meeting of shareholders shall be given by or at the direction of the President or Secretary or the officer of person calling the meeting to each shareholder of record entitled to vote at such meeting, by leaving such notice with him or at his residence or usual place of business, or by mailing a copy thereof addressed to him at his last-known post-office address as last shown on the stock records of the corporation, postage prepaid, not less than seven days nor more than fifty days before the date of the meeting. Each notice of a meeting of shareholders shall state the place, day and hour of the meeting. The general purpose or purposes for which a special meeting is called shall be stated in the notice thereof, and no other business shall be transacted at the meeting. Any matter relating to the affairs of the corporation may be brought up for action at an annual meeting of shareholders, whether or not stated in the notice of the meeting, provided, unless stated in the notice of the meeting, no By-Law may be brought up for adoption, amendment or repeal, and no matter, other than election of directors, may be brought up which expressly requires the vote of shareholders pursuant to the Connecticut Stock Corporation Act. Whenever any notice of time, place, purpose or any other matter, including any special notice or form of notice, is required or permitted to be given to any shareholder by law or under the provisions of the Certificate of Incorporation or these By-Laws, or of a resolution of shareholders or directors, a written waiver of notice signed by the shareholder or shareholders entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. The Secretary of the corporation shall cause any such waiver to be filed with or entered upon the records of the corporation or, in the case of a waiver of notice of a meeting, the records of the meeting, The attendance of any shareholder at a meeting without protesting, prior to or at the commencement of the meeting, the lack of proper notice shall be deemed to be a waiver by him of notice of such meeting.

2.

Actions taken at any meeting of shareholders, however called and with whatever notice, if any, shall be as valid as though taken at a meeting duly called and held on notice, if all shareholders entitled to vote were present in person or by proxy and no objection to holding the meeting was made by any shareholder, or if a quorum was present, either in person or by proxy, and no objection to holding the meeting was made by any shareholder entitled to vote so present, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of the meeting, or an approval of the action taken as shown by the minutes thereof.

SECTION 4. Quorum. A quorum at all meetings of shareholders shall consist of the holders of record of a majority of the shares of the corporation entitled to vote at the meeting, present in person or by proxy, except as otherwise provided by law or the Certificate of Incorporation. In the absence of a quorum at any meeting or any adjournment thereof, the holders of a majority of the voting power of the shares represented at the meeting in person or by proxy may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.

SECTION 5. Organization. Meetings of the shareholders shall be presided over by the President, or if he is not present, by a Vice-Presidents, or if neither the President nor a Vice-President is present, by a chairman to be chosen by the holders of a majority of the voting power who are present in person or by proxy at the meeting. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as Secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the meeting shall choose any person present to act as Secretary of the meeting.

At the annual meeting of shareholders the order of business shall be as follows:

1. Calling Meeting to order.

2. Proof of notice of meeting, or waiver thereof.

3. Reading of minutes of last previous annual meeting, unless dispensed with.

4. Reports of officers.

5. Reports of committees, if any.

3.

6. Election of directors.

7. Miscellaneous business.

SECTION 6. Voting. Except as otherwise provided in the By-Laws, the Certificate of Incorporation, or in the laws of the State of Connecticut, at every meeting of the shareholders, each shareholder of the corporation entitled to vote at such meeting shall have one vote in person or by proxy for each share having voting rights held by him and registered in his name on the books of the corporation at the time of such meeting. Any vote on shares of the corporation may be given by the shareholder entitled thereto in person or by an agent duly authorized by a written proxy, executed by such shareholder; provided, however, that no proxy shall be valid after the expriation of eleven months from the date of its execution unless said proxy specifies the length of time for which it is to continue in force or limits its use to a particular meeting not yet held. A photographic or similar reproduction of a proxy or a telegram, cablegram, wireless or similar transmission of a proxy sent by such shareholder is a sufficient writing. Except as otherwise required by statute, by the Certificate of Incorporation or these By-Laws, or in electing directors, all matters coming before any meeting of the shareholders shall be decided by the affirmative vote of a majority of the voting power of the shares of the corporation present in person or by proxy at such meeting and entitled to vote thereat, a quorum being present. At all elections of directors, the voting may, but need not, be by ballot, and a plurality of the votes cast thereat shall elect.

Unless the Certificates of Incorporation or the subscription for shares otherwise provides, a subscriber for voting shares shall be entitled to vote as though the shares subscribed for had been fully paid, but shares upon which an instalment of the consideration therefor is overdue and unpaid shall not be voted.

SECTION 7. Voting List. The corporate officer having responsibility for the share transfer books for shares of the corporation shall make, or cause to be made, at least five days before each meeting of shareholders a complete list or other equivalent record of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of, and the number and calss of shares held by, each. Such list or other equivalent record shall, for a period of five days prior to such meetings be kept on file at the principal office of the corporation or at the office or place of business of a transfer agent in the State of Connecticut and shall be subject to inspection by any shareholder during usual business hours for any proper purpose.

4.

SECTION 8. Informal Action. Any action which, under any provision of the Connecticut Stock Corporation Act, may be taken at a meeting of shareholders, may be taken without a meeting if consent in writing, setting forth the action so taken or to be taken, is signed by all the persons who would be entitled to vote upon such action at a meeting, or by their duly authorized attorneys, and filed with the Secretary of the corporation as part of the corporate records. Such consent shall have the same force and effect as a unanimous vote of shareholders.

Where any provisions of the Connecticut Stock Corporation Act requires for any purpose the vote, consent, waiver or release of the holders of a designated proportion of the voting powers of shares, or of the shares of any particular class, the consent waiver or release of shareholders holding such designated proportion of the voting power, or the affirmative vote at a meeting duly held and at which a quorum is present of shareholders holding such designated proportion of the voting power, shall be the act of the shareholders for such purpose.

ARTICLE III

DIRECTORS

SECTION 1. Powers, Number, Qualification, Term, Quorum, and Vacancies. Subject to any provisions pertaining thereto contained in the Certificate of Incorporation, the business, property, and affairs of the corporation shall be managed by its Board of Directors, consisting of not less than three nor more than seven directorships. The number of directorships constituting the first Board of Directors shall be four. Thereafter, the number of directorships at any time within the foregoing minimum and maximum number of directorships shall be the number fixed by resolution of the shareholders or directors or, in the absence thereof, shall be the number of directors elected at the preceding annual meeting of shareholders. Except as hereinafter provided, directors shall be elected at the annual meeting of the shareholders, and each director shall be elected to serve for one year and until his successor shall be elected and shall qualify. The number of directors shall never be less than three, except that, where all of the issued and outstanding shares of the

5.

corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of said shareholders. A reduction of the number of directorships shall not remove any director in office or shorten his term.

Directors need not be shareholders of the corporation or residents of the State of Connecticut.

A majority of the number of directorships at the time, at a meeting duly assembled, shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at a meeting at which a quorum is present at the time of the act shall be the act of the Board, except as otherwise provided by law. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained.

In case a vacancy shall occur in the Board of Directors by reason of death, resignation or otherwise, except insofar as otherwise provided in the case of a vacancy occurring by reason of an increase in the number of directorships within the minimum or maximum number aforesaid or by reason of removal by the shareholders, the vacancy may be filled for the unexpired term by action of the sole remaining director in office or by the concurring vote of a Majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting are less than a quorum, and though such majority is less than a quorum. Vacancies resulting from an increase in the number of directorships or from removal of directors shall be filled by the shareholders entitled to vote.

SECTION 2. Meetings. Meetings of the Board of Directors shall be held at such place within or outside the State of Connecticut as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of the meeting. Regular meetings of the Board of Directors shall be held at such times as may from time to time be fixed by resolution of the Board of Directors, and special meetings may be held at any time upon the call of the President or any Vice-President or the Secretary or any two directors by oral or written notice given to each director not less than two days before such meeting, A meeting of the Board of Directors may be held without notice immediately after the annual meeting of the shareholders or held at times fixed by resolution of the Board of Directors. Meetings may be held at any time without notice

6.

if at any time before or after the meeting those not present waive notice of the meeting in writing. The attendance of any director at a meeting without protesting, prior to or at the commencement of the meeting, the lack of proper notice shall be deemed a waiver by him of notice of such meeting.

SECTION 3. Committees. The Board of Directors, by resolution adopted by the affirmative vote of directors holding a majority of the directorships, at a meeting at which a quorum is present, may designate two or more directors to constitute an Executive Committee or other committees, which committees, to the extent provided by the By-Laws, shall have and may exercise all such authority of the Board of Directors as shall be provided in such resolution. A majority of any such committee, if the committee be composed of more than two members, may determine its action and fix the time and place of its meetings, unless the Board of Directors shall otherwise provide. The Board of Directors shall have power at any time to fill vacancies in, to change the membership of, or to discharge any such committee.

SECTION 4. Removal of Directors. At any special meeting of the shareholders, duly called as provided in these By-Laws, any director or directors may by the affirmative vote of the holders of a majority of the voting power for the election of directors be removed from office, either with or without cause, and his successor or their successors may be elected at such meeting.

SECTION 5. Indemnification of Directors and Officers. The Board of Directors is authorized pursuant to the provisions of the Connecticut Stock Corporation Act, regardless of the adverse interest of any or all the directors, to indemnify and reimburse any person made a party to any action, suit or proceeding by reason of the fact that he, or a person whose legal representative or successor he is, is or was a director, officer or employee of the corporation for expenses, including attorneys’ fees, and such amount of any judgment, money decree, fine, penalty or settlement for which he may have become liable as the Board of Directors deems reasonable, actually incurred by him in connection with the defense or reasonable settlement of any such action, suit as to which he, or such person whose legal representative or successor he is finally adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of his duties.

SECTION 6. Informal Action. If all the directors severally or collectively consent in writing to any action to be taken by the corporation, and the number of such directors constitutes a quorum for such action, such action shall be as valid corporate action as though it had been authorized at a meeting of the Board of Directors. The Secretary shall file such consents with the minutes of the meetings of the Board of Directors.

7.

ARTICLE IV

SECTION 1. Number. The Board of Directors, initially and as soon as may be after the election thereof held in each year, shall appoint a President and a Secretary, and from time to time, may appoint a Treasurer and one or more Vice-Presidents and such Assistant Secretaries, Assistant Treasurers and such other officers, agents and employees as it may deem proper. Any two or more offices may be held by the same person, except the offices of President and Secretary.

SECTION 2. Term and Removal. The term of office of all officers shall be one year and until their respective successors are appointed and qualify, but any officer may be removed from office, either with or without cause, at any time by the affirmative vote of a majority of the members of the Board of Directors then in office. A vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors.

SECTION 3. Powers and Duties. The officers of the corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors. The Vice-President or Vice-Presidents, the Assistant Secretary or Assistant Secretaries and the Assistant Treasurer or Assistant Treasurers shall, in the order of their respective seniorities, in the absence or disability of the President, Secretary or Treasurer, respectively, perform the duties of such officer and shall generally assist the President, Secretary or Treasurer respectively.

ARTICLE V

CERTIFICATES REPRESENTING SHARES

SECTION 1. Form and Transfers. The interest of each shareholder shall be evidenced by certificates for shares stating, the name of the corporation; a statement that the corporation is organized under the laws of the State of Connecticut; the name of the person to whom issued or that the same is issued to bearer; the number, class and designation of series, if any, of shares which such certificates represents; the par value of each share represented by such certificates or a statement that the shares are without par value; and, when more than one class of shares is authorized, the further statements required by law.

8.

The corporation shall not issue any certificate for shares until the shares represented thereby are fully paid.

No certificate for a fractional share may be issued, but the Board of Directors may provide for an alternative to such issuance as authorized by Section 33-346 of the Connecticut Stock Corporation Act.

Share certificates may be under seal, or facsimile seal, of the corporation and shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer except that such signature may be facsimile if such certificate is signed by a transfer agent, transfer clerk acting on behalf of the corporation or registrar. If any officer who has signed or whose facsimile signature was so used before such capacity as to which his signature was so used before such certificate has been delivered by the corporation, the certificate may, nevertheless, be adopted by the corporation and be issued and delivered as though such officer had not ceased to hold such office.

Upon compliance with any provisions restricting the transferability of shares, as set forth in the Certificate of Incorporation, these By-Laws, or any written agreement in respect thereof, transfers of shares of the corporation shall be made only on the books of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation, or with a transfer agent, or transfer clerk or a registrar and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares stand on the books of the corporation shall be deemed the owner thereof for all purposes as regards the corporation; provided that whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact, if known to the Secretary of the corporation shall be so expressed in the entry of transfer. The Board may, from time to time, make such additional rules and regulations as it may deem expedient, not inconsistent with these By-Laws, concerning the issue, transfer, and registration of certificates for shares of the corporation.

9.

SECTION 2. Closing of Transfer Books. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any distribution, or for any other proper purpose, the Board of Directors may provide that the stock transfer books shall be closed for a stated period but such period shall not exceed, in any case, seventy days. If the stock transfer books are closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten full days immediately preceding the date of such meeting. In lieu of closing the stock transfer books, the Board of Directors by resolution may fix a date as the record date for any such determination of shareholders, such date in any case to be not earlier than the date such action is taken by the Board of Directors and not more than seventy days, and, in case of a meeting of shareholders, not less than ten full days, immediately preceding the date on which the particular event, requiring such determination of shareholders, is to occur. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting or of shareholders entitled to receive payment of a distribution, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such distribution is adopted, as the case say be, shall be the record date for such determination of shareholders.

SECTION 3. Lost, Stolen, Destroyed or Mutilated Certificates. No certificate for shares in the corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft and on delivery to the corporation, if the Board of Directors shall so require, of a bond of indemnity in such amount (not exceeding twice the value of the shares represented by such certificate), upon such terms and secured by such surety as the Board of Directors may in its discretion require.

ARTICLE VI

FISCAL YEAR

The fiscal year of the corporation shall be the fifty-two or fifty-three week period ending on the Saturday closest to December 31, on the calendar year.

10.

ARTICLE VII

CORPORATE SEAL

The corporate seal shall have inscribed thereon the name of the corporation and shall be in such form and contain such other words and/or figures as the Board of Directors shall determine or the law require.

ARTICLE VIII

BOOK AND RECORDS

The corporation shall maintain in Connecticut at its principal office or at the office of its transfer agent or registrar a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each.

At intervals of not more than twelve months, the corporation shall prepare a balance sheet showing the financial condition of the corporation as of a date not more than four months prior thereto and a profit and loss statement shall be deposited at the principal office of the corporation and kept for at least ten years from such date.

ARTICLE IX

AMENDMENTS

The By-Laws of the corporation shall be subject to amendment or repeal, and new By-Laws not inconsistent with any provision of the Certificate of Incorporation or statute, may be adopted, either by the affirmative vote of the holders of a majority of the voting power of shares entitled to vote thereon or by the affirmative vote of directors holding a majority of the directorships, given at any regular or special meeting, provided that notice of the proposal so to make, alter, amend, or repeal such By-Laws be included in the notice of such meeting of the Board or the stockholders, as the case may be.

I HEREBY CERTIFY that the foregoing is a full, true and correct copy of the By-Laws of SHOPWELL LIQUORS, INC., a Connecticut Corporation, as in effect on the date hereof.

WITNESS my hand and the seal of the corporation.

Dated: October 17, 1969

Secretary of

SHOPWELL LIQUORS, INC.

11.

EX-99.T3B.46

Exhibit B-46

BY - LAWS

OF

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA

COMPANY INC.

ARTICLE I

OFFICES

SECTION 1. REGISTERED OFFICE.—The registered office shall be established and maintained at the office of the United States Corporation Company, in the City of Pierre, in the County of Hughes in the State of So. Dakota and said corporation shall be the registered agent of this corporation in charge thereof.

SECTION 2. OTHER OFFICES.—The corporation may have other offices, either within or without the State of South Dakota at such place or places as the Board of Directors may from time to time appoint or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

SECTION 1. ANNUAL MEETINGS.—Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of South Dakota and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. In the event the Board of Directors fails to so determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the corporation in South Dakotan the last Friday in March.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2. OTHER MEETINGS.—Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

SECTION 3. VOTING.—Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of South Dakota:

A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

SECTION 4. QUORUM.—Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.

SECTION 5. SPECIAL MEETINGS.—Special meetings of the stockholders for any purpose or purposes may be called by the President or Secretary, or by resolution of the directors.

SECTION 6. NOTICE OF MEETINGS.—Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 7. ACTION WITHOUT MEETING.—Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

ARTICLE III

DIRECTORS

SECTION 1. NUMBER AND TERM.—The number of directors shall be four (4). The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

SECTION 2. RESIGNATIONS.—Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3. VACANCIES.—If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4. REMOVAL.—Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

Unless the Certificate of Incorporation otherwise provides, stockholders may effect removal of a director who is a member of a classified Board of Directors only for cause. If the Certificate of Incorporation provides for cumulative voting and if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which he is a part.

If the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, these provisions shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

SECTION 5. INCREASE OF NUMBER.—The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6. POWERS.—The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders.

SECTION 7. COMMITTEES.—The Board of Directors may, by resolution or resolutions passed by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.

SECTION 8. MEETINGS.—The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent in writing of all the directors.

Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors.

Special meetings of the board may be called by the President or by the Secretary on the written request of any two directors on at least two day’s notice to each director and shall be held at such place or places as may be determined by the directors, or as shall be stated in the call of the meeting.

Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.

SECTION 9. QUORUM.—A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.

SECTION 10. COMPENSATION.—Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 11. ACTION WITHOUT MEETING.—Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

SECTION 1. OFFICERS.—The officers of the corporation shall be a President, a Treasurer, and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualfied. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. More than two offices may be held by the same person.

SECTION 2. OTHER OFFICERS AND AGENTS.—The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3. CHAIRMAN.—The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4. PRESIDENT.—The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he shall execute bonds, mortgages and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5. VICE-PRESIDENT.—Each Vice-President shall have such powers and shall perform such duties as shall be assigned to him by the directors.

Article IV, Section 6. The Treasurer. The Treasurer shall have such duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, or the Chief Financial Officer. He shall have the authority to enter into and execute on the Company’s behalf all banking arrangements.

SECTION 7. SECRETARY.—The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.— Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

ARTICLE V

MISCELLANEOUS

SECTION 1. CERTIFICATES OF STOCK.^:—Certificate of stock, signed by the Chairman or Vice Chairman of the Board of Directors, if they be elected, President or Vice-President, and the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles.

SECTION 2. LOST CERTIFICATES.—A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.

SECTION 3. TRANSFER OF SHARES.—The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued, A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4. STOCKHOLDERS RECORD DATE.—In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5. DIVIDENDS.—Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6. SEAL.—The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words “CORPORATE SEAL SOUTH DAKOTA”. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

SECTION 7. FISCAL YEAR.—The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

Article V, Section 8. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money issued in the name of the Corporation shall be signed by such officer or officers, or by such agent or agents as may be authorized so to do from time to time by the Board of Directors the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer.

SECTION 9. NOTICE AND WAIVER OF NOTICE.—Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

ARTICLE VI

AMENDMENTS

These By-Laws may be altered or repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By-Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting.

EX-99.T3B.47

Exhibit B-47

BY-LAWS

of

TRADEWELL FOODS INC. OF CONN.

ARTICLE I. NAME AND LOCATION

Section 1. The name of this corporation shall be “Tradewell Foods of Conn. Inc.”

Section 2. The corporation shall have its principal place of business and office in the Town of Greenwich, Connecticut, until and unless changed by the board of directors.

Section 3. The corporation may have other offices and places of business in such places either within or without the State of Connecticut, as the board of directors shall determine from time to time.

ARTICLE II. SEAL

Section 1. The corporation shall have a circular seal containing the name of the corporation, and the year of its creation.

ARTICLE III. STOCKHOLDERS AND STOCKHOLDERS MEETINGS.

Section 1. All meetings of the stockholders shall be held at the principal place of business of the corporation unless otherwise specified by the authority calling such meeting.

Section 2. An annual meeting of the stockholders shall be held on the fourth Tuesday of June, in each year, beginning with June, 1941, at the principal office or place of business of the corporation within the State of Connecticut, for the purpose of electing directors who shall serve until their successors are duly elected and qualified. If said fourth Tuesday falls on a legal holiday, said meeting shall be held on the next succeeding business day.

Section 3. Special meetings of the stockholders to be held at any place where the authority or authorities calling such meeting shall unanimously agree, may be called by the President, or by a majority of the board of directors at any time, whenever in their opinion the interests of the corporation require the same. It shall be the duty of any officer or director to call a special meeting of the stockholders upon written request of stockholders holding 51% or more of the capital stock of the corporation.

Section 4. It shall be the duty of the Secretary to cause notice of all annual or special meetings, by registered mail, return receipt, indicating briefly the purpose of such meetings, to each stockholder of record on the books of the corporation, at least five (5) days prior to said meeting. And mailing said notice as above set forth by the secretary to the address of the stockholder as appears upon the stock books of the corporation, shall be deemed a discharge by the secretary of his duty, unless otherwise required by law. Nevertheless, if all the stockholders of record shall in writing waive notice of such annual meeting or special meetings, no notice shall be required; and whenever all the stockholders shell be in meeting either in person or by proxy, such meeting shall be valid for all purposes, without call or notice, at which meeting any corporate action may be taken not prevented by law.

Section 5. At any meeting of the stockholders, 75% of the issued and outstanding shares of the capital stock of the corporation represented either in person or by prosy, shall constitute a quorum for all purposes, unless otherwise required by law, in which case, the minimum legally required number shall constitute a quorum. But if at any meeting of the stockholders, a quorum is not present or represented, the holder of less than a majority present may adjourn said meeting to a future date certain and notice of the same shall be required as for other stockholders’ meetings.

Section 6. The president of the corporation, and in his absence, the vice-president, shall preside at all such meetings. The secretary of the corporation shall act as secretary of all stockholders meetings, and in his absence the duties shall be performed by the assistant secretary.

Section 7. At any such meeting, every holder of common stock shall be entitled to one vote, either in person, or by proxy properly appointed in writing, for each such share of stock standing in his name on the fifteenth day next preceeding said meeting, or on the closing of the transfer books by proper action of the board of directors. The vote upon any matter at such meeting shall, upon demand by any two stockholders or more, be by ballot. All questions, the manner of deciding which is not specifically regulated by statute, shall be determined by a majority vote of the issued and outstanding common capital stock.

ARTICLE IV. OFFICERS AND ORGANIZATION

Section 1. The officers of this corporation shall be a President, Vice-President, Secretary, Treasurer, Assistant Secretary, Assistant Treasurer, and Board of Directors. They shall hold office for the term of one year, or until their successors shall be elected and qualified. The officers and directors of this corporation are not required to be stockholders thereof.

Section 2. The President shall be elected annually by the Board of Directors immediately following the annual meeting of the stockholders. The president shell be chief executive of the corporation. He shell have the right and power to preside at, all meetings of the stockholders and directors. He shall have general management and supervision of all other directors of the corporation, end shall have the right and power to see that all resolutions of the board are carried into effect. He shall have the right and power to sign and execute all written instruments of the corporation and all checks of the corporation. He or the Vice-President shall sign and execute all stock certificates of the corporation together with the Treasurer or Secretary or Assistant Treasurer or Assistant Secretary of the corporation. He shall have custody of the seal of the corporation and shall have the right and power to affix the same to any instrument requiring it; and the seal when so affixed shall be attested to by the secretary or treasurer or assistant secretary or assistant treasurer of the corporation. He shall have the right and power to perform all the duties and have all other powers usually incidental and proper to the President of the corporation.

Section 3. The Vice-President shall be elected annually by the directors of the corporation, immediately following the annual meeting of the stockholders, and shall be vested with all the powers, and he shall have the right and power to perform all the duties of the president in the absence, disability, disqualification or resignation of the President.

Section 4. The Secretary shall be elected annually by the board of directors, immediately following the annual meeting of the stockholders. He shall have the right and power to attend and keep true minutes and records of all directors and stockholders meetings in books belonging to the corporation for that purpose. He shall have the right and power to attend to the giving of any and all notices required by law or by these by laws; he shall have the right and power to sign checks of the corporation and to countersign the stock certificates of the corporation with the President or Vice-President; he shall have the right and power to have charge and custody of all the record and stock books of the corporation, and shall have the right and power to perform all such other duties as are incident to his office.

Section 5. The Treasurer shall be elected annually by the board of directors immediately following the annual meeting of the stockholders. He shall have the right and power to receive and have charge of and safely and securely keep all moneys, valuables, valuable papers, bonds, securities, and all other instruments of value belonging to the corporation. He shall have the right and power to keep a true and accurate account of

all moneys received or disbursed on account of said corporation in books belonging to the corporation and kept for that purpose, which said books shall at all times be open to inspection of the directors of said corporation, or any stockholders. He shall have the right and power to deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depository or depositories ss the board of directors may from time to time designate. He shall have the right and power to make deposits, and endorse, execute, sign checks or other instruments and documents of the corporation and affix the seal of the corporation thereto. He shell have the right and power to disburse the funds of the corporation whenever directed so by proper authority. He shell have the right and power to sign checks of the corporation and to countersign the stock certificates of the corporation with the president or vice-president. He shall have the right and power to do all other things required of him by law and by these by-laws and by the Board of Directors.

Section 6. Assistant Secretary. During the absence and inability of the secretary to render his duties or exercise his powers as set forth in these by–laws or in the acts under which this corporation is organized, the same shall be performed and exercised by the assistant secretary; when so acting he shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon such secretary including the right to sign all certificates of stock provided same are countersigned by the President or Vice-President, and the right to sign all checks, drafts, notes, warrants and orders for the payment of money without any countersignature.

Section 7. Assistant Treasurer. During the absence and inability of the Treasurer to render his duties or exercise his powers as set forth in these by-laws or in the acts under which this corporation is organized, the same shall be performed and exercised by the Assistant Treasurer; when so acting he shall have all the powers and be subject to all the responsibilities hereby given to or imposed upon such treasurer; including the right to sign all certificates of stock provided same are countersigned by the President or Vice-president, and the right to sign all checks, drafts, notes, warrants and orders for the payment of money without any countersignature.

Section 8. The Board of Directors shall be elected annually by the stockholders at their annual meeting for the term of one year, or until a successor shall have been elected and qualified. Said Board shall consist of four directors who need not be stockholders of the corporation. The immediate government control and direction and management of said corporation shall be vested in the board of directors. In addition to the powers and authorities expressly conferred upon them by these laws, the board may and shall exercise all such powers, and do all such things as may be done or exercised by the corporation, but subject nevertheless to the provisions of these by-laws, the charter of this corporation, and the laws of the State of Connecticut. Said Board may also fill any vacancies arising among them or among the officers of said corporation

said appointees to hold office until the election and qualification of successors. The Board shall meet at lease once a month, all meetings to he held at the principal place of business of said corporation unless some other place be designated by the authority calling said meeting. Notice of all regular and special meetings shall be sent to each director by the secretary at least seven days previous to the time fixed for such meeting, but such notice may be waived in writing. The President may at his pleasure or at the request of any two directors call a special meeting and special meetings of the board may be held at any time and place without notice, by unanimous consent. A majority of the directors of the corporation shall constitute a quorum for the transaction of business, unless a larger number be required hereafter by law, in which case the minimum legal requirement shall constitute a quorum. If a quorum is not present at any meeting properly called and notified, then a majority of those present may adjourn to a later date without further notice, except the announcement of the date of adjournment at the meeting, and at such adjourned meeting any business may be transacted which might have been transacted at the first meeting. Any action or proceeding which is undertaken or authorized at a meeting of the Board of consenting Directors shall be so authorized and undertaken by the/vote of not less than 3 of the directors of the corporation.

ARTICLE V. CAPITAL STOCK

Section 1. The amount of capital stock of this corporation shall be $20,000.00 which shall be divided into 400 shares of Common Stock of the par value of $50.00.

Section 2. Certificates of shares of the capital stock of the corporation shall be in such form as shall be prepared and approved by the board of directors. The certificates shall bear the signature of the president, or in his absence, the vice-president, and also that of the secretary or in his absence the assistant secretary, or the treasurer, or in his absence the assistant treasurer, and shall also bear the seal of the corporation together with the date of its issue. Without such signature, seal and date, no certificate shall be valid for any purpose whatever. All certificates shall be consecutively numbered, shall describe the number of shares represented thereon, and shall bear the name of the person to whom issued. All stock issued by the corporation shall be non-negotiable and non-transferrable except by the unanimous consent of the directors, and a notation to this effect shall be put upon all certificates.

Section 3. The secretary of the corporation, shall keep accurate and up to date records of the owners of the stock, the amount of shares owned by each, number of certificates issued, to whom, the date issued, and such other information as may be necessary, concerning the same, in books belonging to the corporation, and provided especially for that purpose.

Section 4. The corporation shall have a first lien on all shares of its capital stock, and upon all dividends declared or to be declared upon the same, for any indebtedness of the respective holders thereof to the corporation.

Section 5. Transfer of shares. Shares of capital stock of the corporation shall be transferred only upon the books of the corporation by the holder thereof in person or by his attorney upon surrender and cancellation of certificate or certificates held for new certificate or certificates representing a like number of shares. All certificates surrendered to the corporation shall be cancelled, and no new certificates shall be issued unless and until the former certificate shall have been surrendered and cancelled.

Section 6. In the event of loss or destruction of a certificate of stock, no new certificate shall be issued in lieu thereof except upon satisfactory proof to the board of directors of such loss and destruction and upon giving of satisfactory bond or security to the corporation to save it harmless from loss with reference thereto. Any new certificate so issued shell be plainly marked “DUPLICATE” upon its face.

Section 7. New shares of the capital stock of the corporation may be created from time to time by a majority vote of the stockholders.

Section 8. The stock transfer books of the corporation shall be closed for the meetings of the stockholders, and for the payment of dividends during such period as from time to time may be fixed by the board of directors; and during such period no stock shall be transferrable.

Section 9. Dividends upon the capital stock of the corporation when earned, shall be paid from time to time as the board shall declare, said dividends to be paid from the surplus or net profits of the corporation. Said dividends shall be paid to those holders of certificates appearing upon the books of the corporation at the time of the closing of the stock transfer books.

ARTICLE VI. AMENDMENT OF BY-LAWS

Section 1. These By-Laws may be altered, amended, repealed a majority of the whole outstanding common capital stock, at an annual meeting or at a special meeting called for that purpose, provided that a written notice shall have been sent to each common stockholder of record at his last known post office address, at least five days before the date of such annual or special meeting, which notice shall state the alterations, amendments or changes which are proposed to be made in such By-Laws. Only such changes as have been specified in the notice shall be made. If, however, all the stockholders shell be present at any regular or special meeting, these By-Laws may be amended by a unanimous vote, without any previous notice. Such meeting may be held pursuant to waiver of notice, provided such waiver of notice contains statement of purposes of meeting.

ARTICLE VII MISCELLANEOUS PROVISIONS

Section 1. Recognition of Private Agreements. The corporation shall recognize and carry out any private agreements among its stockholders, of which it shall be given notice in writing.

Section 2. Compensation. The officers of the corporation shall serve without compensation other than that derived from and by nature of their holdings in said corporation, unless actively engaged in the management and conduct of the affairs of the corporation, in which event compensation shall be fixed and determined by the board of directors.

Section 3. The corporation may from time to time as the board of directors shall see fit open and conduct other offices and places of business in said State of Connecticut, or in any other place or places in this country.

The following were, upon motion duly made seconded and carried, elected directors of said corporation:

Benjamin Rabinovotz, Michael Goldberg and Isadore M. Goldfarb.

There being no further business, upon motion duly made, seconded and carried, the meeting adjourned.

Clerk

Attest:

EX-99.T3B.48

Exhibit B-48

AMENDED AND RESTATED

OPERATING AGREEMENT

UPPER DARBY STUART, LLC

July 30, 2009

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
ARTICLE II FORMATION OF COMPANY			2
2.1	Formation		2
2.2	Name		2
2.3	Principal Place of Business		2
2.4	Registered Office and Registered Agent		2
ARTICLE III BUSINESS OF COMPANY			2
3.1	Permitted Businesses		2
ARTICLE IV NAME AND ADDRESS OF MEMBER			3
4.1	Name and Address		3
4.2	Member Has No Exclusive Duty to Company		3
ARTICLE V MANAGEMENT			3
5.1	Management		3
5.2	Bank Accounts		5
ARTICLE VI STANDARD OF CARE AND INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS			5
6.1	Standard of Care		5
6.2	Indemnification of Member, Board of Managers and Officers		5
ARTICLE VII RIGHTS AND OBLIGATIONS OF MEMBER			6
7.1	Limitation of Liability		6
7.2	Resignation		6
ARTICLE VIII CAPITAL STRUCTURE			6
8.1	Authorized Units		6
8.2	Certificates Evidencing Units		6
ARTICLE IX CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS			6
9.1	Initial Capital Contribution		6
9.2	Additional Capital Contributions		6
9.3	Capital Account		6
ARTICLE X FINANCIAL MATTERS			7
10.1	Financial Reports		7
10.2	Fiscal Year		7
ARTICLE XI ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS			7
11.1	Allocations of Net Profits and Net Losses and Distribution		7
11.2	Loans to Company		7
11.3	Records and Reports		7
11.4	Returns and Other Elections		7
ARTICLE XII TRANSFER OF UNITS			8
12.1	Permitted Transfers		8
ARTICLE XIII DISSOLUTION AND TERMINATION			8
13.1	Dissolution		8
13.2	Certificate of Cancellation		8
ARTICLE XIV MISCELLANEOUS PROVISIONS			9
14.1	Notices		9

i

14.2	Applicable Law	9
14.3	Construction	9
14.4	Headings	9
14.5	Waivers	9
14.6	Rights and Remedies Cumulative	9
14.7	Severability	9
14.8	Successors and Assigns	9
14.9	Creditors	9

ii

AMENDED AND RESTATED

OPERATING AGREEMENT

OF

UPPER DARBY STUART, LLC

This Amended and Restated Operating Agreement, dated July 30, 2009, is entered into by Pathmark Stores, Inc., a Delaware corporation, as the sole member (the “Member”) of Upper Darby Stuart, LLC, a Delaware limited liability company (the “Company”).

ARTICLE I

DEFINITIONS

The following terms used in this Agreement shall have the following meanings:

(a) “Act” means the Delaware Limited Liability Company Act, as the same may be amended from time to time.

(b) “Affiliate” means, with respect to any Person, any other Person, other than an individual, that is directly or indirectly controlling, controlled by or under common control with such Person. For these purposes, “control” (and its correlative meanings) as used with respect to any Person means (i) the power of another Person to exercise, directly or indirectly, more than fifty percent (50%) of the voting power of such Person or (ii) the power to direct or cause the direction, directly or indirectly, of the management and policies of such Person.

(c) “Agreement” means this Amended and Restated Operating Agreement as originally executed and as amended from time to time.

(d) “Board of Managers” means the Person or Persons appointed as managers in accordance with Article V.

(e) “Capital Contribution” means any contribution to the capital of the Company in cash or property by the Member whenever made.

(f) “Certificate” means the Certificate of Formation of the Company as filed by the organizer of the Company with the Secretary of State of Delaware, as the same may be amended from time to time.

(g) “Code” means the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws.

(h) “Distributable Cash” means all cash, revenues and funds received by the Company from Company operations, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii) all cash expenditures incurred in the normal operation of the Company’s business; and (iii) such reserves as the Board of Managers deems necessary for the proper operation of the Company’s business.

(i) “Entity” means any general partnership, limited partnership, corporation, limited liability company, joint venture or association.

(j) “Fiscal Year” means the Company’s fiscal year as described in Article X.

(k) “Net Losses” means, for each Fiscal Year, the losses and deductions of the Company determined in accordance with accounting principles consistently applied from year to year, plus any expenditures described in Section 705(a)(2)(B) of the Code.

(l) “Net Profits” means, for each Fiscal Year, the income and gains of the Company determined in accordance with accounting principles consistently applied from year to year, plus any income described in Section 705(a)(1)(B) of the Code.

(m) “Person” means any individual or Entity, and their heirs, executors, administrators, legal representatives, successors and assigns where the context so permits.

(n) “Units” means the personal property ownership interests in the Company, as designated in accordance with Article VIII of this Agreement, including any and all benefits to which the holder of such personal property ownership interests may be entitled as provided in this Agreement, together with all obligations of such holder to comply with the terms and provisions of this Agreement, including, but not limited to, the rights of the Member in the Distributable Cash, Net Profits, Net Losses and Capital Accounts of the Company with respect to the personal property ownership interests held by the Member.

ARTICLE II

FORMATION OF COMPANY

2.1 Formation. The Company has been organized as a Delaware limited liability company by executing and delivering the Certificate to the Delaware Secretary of State in accordance with and pursuant to the Act.

2.2 Name. The name of the Company is Upper Darby Stuart, LLC.

2.3 Principal Place of Business. The Company may locate its place of business at any place or places as the Board of Managers may deem advisable.

2.4 Registered Office and Registered Agent. The Company’s initial registered office shall be 1013 Centre Road, Wilmington, Delaware 19808 and the registered agent at such address shall be Corporation Service Company.

ARTICLE III

BUSINESS OF COMPANY

3.1 Permitted Businesses. The business of the Company shall be to carry on any other lawful business or activity in connection with the foregoing or otherwise, and to have and exercise all of the powers, rights and privileges which a limited liability company organized pursuant to the Act may have and exercise, subject to any contracts it has entered into.

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ARTICLE IV

NAME AND ADDRESS OF MEMBER

4.1 Name and Address. The name and address of the sole Member is:

Name	Address
Pathmark Stores, Inc.	2 Paragon Drive, Montvale, NJ 07645

4.2 Member Has No Exclusive Duty to Company. The Member shall not be required to own the Company as its sole and exclusive function and it may have other business interests and may engage in other activities in addition to those relating to the Company. The Company shall not have any right, by virtue of this Agreement, to share or participate in other investments or activities of the Member or in the income or proceeds derived therefrom.

ARTICLE V

MANAGEMENT

5.1 Management.

(a) The business and affairs of the Company shall be managed by the Board of Managers. The Board of Managers shall consist of at least one individual. Each person serving on the Board of Managers is referred to herein as a “Manager” and shall, except to the extent otherwise provided herein, have all the powers of a “manager” under the Act. The Board of Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business and objectives. The Board of Managers may contract with or engage any employee of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation, or any of its subsidiaries or Affiliates to do any of the foregoing. Unless authorized to do so by this Agreement, by the Act or by the Board of Managers, no employee, attorney-in fact or other agent shall have any power or authority to bind the Company. The current Board of Managers is comprised of the following three individuals who have been appointed by the Member: Brenda Galgano, William Moss and Allan Richards.

(b) One or more members of the Board of Managers may be removed by the Member at any time, with or without cause. Any Manager may resign at any time by providing written notice to the Member. Such resignation shall be effective upon receipt by the Member or, if later, at the time specified in such written notice of resignation. If one or more seats on the Board of Managers is vacant, or if at any time a vacancy is created for an additional Manager by the Member or if a vacancy arises due to the incapacity, death, removal or resignation of a Manager, then the Member shall fill the new position or designate a replacement for such Manager by a written action of such new election or replacement. The new or replacement Manager shall be deemed to be a Manager and shall have all authority, power and capacity accorded to a Manager of the Company. In addition, subject to the foregoing, in the absence of

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action by the Member in the event of a vacancy on the Board of Managers, the remaining Managers, although less than a quorum, may fill such vacancy by vote of a majority of such remaining Managers. Any temporary vacancy on the Board of Managers shall be filled only for the period of the incapacity, illness or absence of the Manager whose place on the Board of Managers is temporarily vacated.

(c) Meetings of the Board of Managers and any committee thereof shall be held at the principal offices of the Company or at such other place as may be determined by the Board of Managers or such committee. The actions taken by the Board of Managers or any committee at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. A vote of the Board of Managers or any committee may be taken either in a meeting of the Managers thereof or by written consent so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such action at a meeting of the Board of Managers or such committee. A meeting of the Board of Managers or any committee may be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be heard. At least a simple majority of the Managers, present in person or represented by proxy, shall constitute a quorum at all meetings of the Board of Managers.

(d) The Board of Managers hereby appoints the officers of the Company as set forth below. The Board of Managers may delegate such duties to any such officers, employees, agents and consultants as the Board of Managers deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties; provided, however, that the Board of Managers may not delegate any of its duties and obligations under this Agreement and may not delegate any duties that are required to be exercised by the Member under the Act or any duties that a board of directors of a Delaware corporation is required to retain and exercise under the Delaware General Corporation Law. Each officer shall serve as such until the earlier of his or her death, resignation or removal by the Board of Managers, with or without cause.

Name	Officer Position(s)
Christopher McGarry	President
William Moss	Vice President & Treasurer
Michael Gualtieri	Vice President
Allan Richards	Vice President & Secretary
Joan Roensch	Assistant Secretary

(e) President. The President of the Company shall have the responsibility for managing the day-to-day business operations and affairs of the Company and supervising its other officers, subject to the direction, supervision and control of the Board of Managers. In general, the President shall have such other powers and perform such other duties as usually pertain to the office of the President of a corporation under Delaware law, including, without limitation, the authority to appoint and terminate officers of the Company and retain and

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terminate employees of the Company to whom the President may delegate his or her duties; provided, however, the President shall be subject to the power of the Board of Managers at any time or from time to time to withhold authority with respect to any matter or assign specific duties and responsibilities to him or her.

(f) Vice Presidents. The Board of Managers may from time to time appoint one or more Vice Presidents who shall have such powers and duties as may be assigned to him or her by the Managers or the President.

(g) Treasurer. The Treasurer shall have such powers and perform such duties as usually pertain to the office of Treasurer of a corporation under Delaware law. The Treasurer shall have custody of the Company’s funds and securities, shall keep full and accurate account of receipts and disbursements, shall have the authority to open bank accounts for the Company, deposit all monies and valuable effects in the name and to the credit of the Company in such depository or depositories as may be designated by the Board of Managers, and shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(h) Secretary. The Secretary shall keep the minutes of all actions of the Member and the Board of Managers, and shall attend to the giving and service of all notices. The Secretary may sign with the Board of Managers, President or Treasurer all certificates representing Units of the Company, if any, and shall have charge of the transfer books, and other papers as the Board of Managers may direct. The Secretary shall perform such other duties as may be assigned to him or her by the Board of Managers or the President.

(i) Other Officers. The Board of Managers may from time to time appoint one or more Assistant Treasurer, Assistant Secretary or other officers who shall have such powers and duties as may be assigned to him or her by the Board of Managers or the President.

5.2 Bank Accounts. The Treasurer may, from time to time, authorize the opening of bank accounts in the name and on behalf of the Company. The Board of Managers shall determine who shall have the signatory power over such accounts; provided, the Treasurer shall have such signatory authority.

ARTICLE VI

STANDARD OF CARE AND

INDEMNIFICATION OF MEMBER, MANAGER AND OFFICERS

6.1 Standard of Care. Neither the Member nor the Board of Managers nor any officer shall be liable to the Company by reason of its or his actions in the conduct of the business of the Company except for fraud, gross negligence or willful misconduct.

6.2 Indemnification of Member, Board of Managers and Officers. The Company shall, to the fullest extent to which it is empowered to do so by the Act or any other applicable law, indemnify and make advances for expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that it, he or she is or was a Member, Manager, agent, officer, employee or other Person authorized by the Member or the Board of Managers to act on behalf of the Company against losses, damages, expenses (including attorneys fees), judgments, fines and amounts reasonably incurred by it, him or her in connection with such action, suit or proceeding.

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ARTICLE VII

RIGHTS AND OBLIGATIONS OF MEMBER

7.1 Limitation of Liability. The Member will not be personally liable to creditors of the Company for any debts, obligations, liabilities or losses of the Company, whether arising in contract, tort or otherwise, beyond the Member’s Capital Contributions.

7.2 Resignation. The Member may not voluntarily resign as a member of the Company without the appointment of a successor member or members.

ARTICLE VIII

CAPITAL STRUCTURE

8.1 Authorized Units. The Member’s membership interest in the Company shall be designated in Units. The Company is authorized to issue one class of Units designated as Common Units. The total number of Common Units which the Company is authorized to issue is 100 Units. The Member may increase the number of authorized Units and create additional classes and/or series of Units. In the event that the authorized number of Units available for issuance is increased pursuant to this Section 8.1, the Member shall indicate the total number of Units available for issuance with respect to any then existing class and/or series and any new class and/or series after giving effect to such approved increase.

8.2 Certificates Evidencing Units. The Company may, but is not obligated to, issue to the Member certificates specifying the Units of the Member. If a certificate for registered Units is issued and is lost or damaged, it may be replaced on production of the damaged certificate or on satisfactory proof of its loss together with such indemnity, if any, as may be required by the Company.

ARTICLE IX

CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

9.1 Initial Capital Contribution. The Member shall contribute such amount as it determines, in its sole discretion, to contribute.

9.2 Additional Capital Contributions. The Member shall not be required to make any additional Capital Contributions.

9.3 Capital Account. Except as otherwise required in the Act (and subject to Sections 9.1 and 9.2), the Member shall not have any liability to restore all or any portion of a deficit balance in the Member’s Capital Account.

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ARTICLE X

FINANCIAL MATTERS

10.1 Financial Reports. The Board of Managers may cause independent certified public accountants from time to time to be retained by the Company and to prepare (a) as of the end of each Fiscal Year of the Company, (b) as of the date of dissolution of the Company and (c) as of such additional dates as the Board of Managers or Treasurer may direct, in accordance with standard federal tax accounting principles consistently applied, appropriate unaudited financial statements showing the assets, liabilities, capital, profits, expenses, losses and recovered and unrecovered capital expenditures of the Company and a statement showing all amounts credited or debited to the Member’s Capital Account.

10.2 Fiscal Year. The Fiscal Year of the Company shall be fixed by the Board of Managers by resolution duly adopted, and, from time to time, by resolution duly adopted the Board of Managers may alter such fiscal year.

ARTICLE XI

ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS

11.1 Allocations of Net Profits and Net Losses and Distribution. The Net Profits and Net Losses of the Company shall be allocated and Distributable Cash shall be distributed as follows:

Member	Percentage
Pathmark Stores, Inc.		100	%

Distributions of Distributable Cash shall be made by the Company to the Member at such times and in such amounts as the Board of Managers shall determine; provided, however, that cash distributions shall be made to the Member in order for the Member to pay any required federal, state or local taxes incurred as a result of the Net Profits allocated to the Member.

11.2 Loans to Company. Nothing in this Agreement shall prevent the Member from making secured or unsecured loans to the Company by agreement with the Company.

11.3 Records and Reports. At the expense of the Company, the Member, the Board of Managers and the officers shall maintain records and accounts of all operations and expenditures of the Company.

11.4 Returns and Other Elections. The Board of Managers shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and if other tax returns deemed necessary and required in each jurisdiction in which the Company does business. All elections permitted to be made by the Company under federal or state laws shall be made by the Board of Managers in its sole discretion.

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ARTICLE XII

TRANSFER OF UNITS

12.1 Permitted Transfers. The Member shall be entitled to make a permitted transfer of all or any portion of its interests in the Company only upon satisfaction of each of the following conditions:

(a) such transfer does not require the registration or qualification of such interests pursuant to any applicable federal or state securities laws, rules and regulations; and

(b) such transfer does not result in a violation of applicable laws, rules and regulations.

ARTICLE XIII

DISSOLUTION AND TERMINATION

13.1 Dissolution.

(a) The Company shall be dissolved upon the occurrence of any of the following events:

(i) by written notice of the Member;

(ii) upon the bankruptcy or insolvency of the Member or occurrence of any other event which terminates the continued membership of the Member in the Company other than by transfer of all of the Member’s Units to another Person; or

(iii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.

(b) Dissolution of the Company shall be effective on the day on which an event occurs under Section 13.1 (a), but the Company shall not terminate until a certificate of cancellation shall be filed with the Secretary of State of Delaware and the assets of the Company are distributed as provided in Section 13.2 below. Notwithstanding the dissolution of the Company, prior to the termination of the Company, the business of the Company shall continue to be governed by this Agreement.

13.2 Certificate of Cancellation. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Member, a certificate of cancellation shall be executed by one or more authorized persons, which certificate shall set forth the information required by the Act. A certificate of cancellation shall be filed with the Delaware Secretary of State to accomplish the cancellation of the Certificate of the Company upon the dissolution and completion of the winding up of the Company.

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ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Notices. Any notice, demand or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been given when actually received. Any such notice, demand or communication may be given by mail, overnight courier, facsimile or electronic mail and shall be addressed to the Member at the address shown in Article IV, and/or to the Company and the Board of Managers at the principal office of the Company or to such other address as a party may from time to time designate by notice to the other parties.

14.2 Applicable Law. This Agreement, and the application of interpretation hereof, shall be subject to and is governed exclusively by its terms and by the laws of Delaware, and specifically the Act and the Certificate. In the event of a direct conflict between the provisions of the Act or the provisions of the Certificate, such provisions of the Act or the Certificate, as the case may be, will be controlling.

14.3 Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.

14.4 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof.

14.5 Waivers. The failure of any party to redress any violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

14.6 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

14.7 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

14.8 Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns.

14.9 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company.

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IN WITNESS WHEREOF, this Amended and Restated Operating Agreement of Upper Darby Stuart, LLC is hereby executed as of the date first written above.

UPPER DARBY STUART, LLC
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	President

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EX-99.T3B.49

Exhibit B-49

BY-LAWS

OF

WALDBAUM, INC.

(a New York Corporation)

ARTICLE I

OFFICES

Section 1. Principal Office. The principal office of the Corporation shall be in the Town of Islip, the County of Suffolk and the State of New York.

Section 2. Other Offices. The Corporation may also have offices at such other place or places within or without the State of New York as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

SHAREHOLDERS’ MEETINGS

Section 1. Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors and the transaction of such other business as may properly be brought before the meeting shall be held at the principal office of the Corporation or at such other place within or without the State of New York as may be determined by the Board of Directors on such date and at such time as the Board of Directors may fix, provided that such date shall not be less than eleven nor more than thirteen months after the date of the last annual meeting.

Section 2. Special Meetings. Special meetings of the shareholders shall be held at the principal office of the Corporation in the State of New York, or at such other place within or without the State of New York as may be designated in the notice of said meeting, upon call of the President or by resolution of the Board of Directors, and shall be called by the President or the Secretary at the request in writing of the holders of record of the shares of capital stock of the Corporation entitled to cast at least one-third of the votes for directors at the time of such request.

Section 3. Notice of Meetings. Written notice of the date, place and hour of every meeting of shareholders shall be given by the President or the Secretary either personally or by mail or by any other lawful means of communication not less than ten nor more than fifty days before the meeting to each shareholder entitled to vote at such meeting. Notice of a special meeting shall state the purpose or purposes for which it is called and indicate that it is being issued by or at the direction

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of the person or persons calling the meeting. If mailed, such notice shall be directed to each shareholder at his address as it appears on the record of shareholders unless he shall have filed with the Secretary of the Corporation a written request that notices to him be mailed to some other address, in which case it shall be directed to him at such other address. Except where otherwise required by law, notice of any adjourned meeting of the shareholders of the Corporation shall not be required to be given.

Section 4. Waivers of Notice. Notice of meeting need not be given to any shareholder who submits a signed waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any shareholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him.

Section 5. Quorum. A quorum of all meetings of shareholders shall consist of the holders of the shares of capital stock of the Corporation entitled to cast a majority of votes for directors at the time of the meeting, present in person or by proxy, except as otherwise provided by law or by the Certificate of Incorporation.

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In the absence of a quorum at any meeting or any adjournment thereof, a majority of those present in person or by proxy and entitled to vote may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.

Section 6. Organization. Meetings of the shareholders shall be presided over by the Chairman, or if he is not present, by the President, or if neither the Chairman nor the President is present, by a Vice President. The Secretary of the Corporation shall act as secretary of every meeting, but if the Secretary is not present, the meeting shall choose a person present to act as secretary of the meeting, such choice to be made by the shareholders who are entitled to cast a majority of votes for directors which may be cast by the shareholders who are present in person or by proxy at the meeting.

Section 7. Voting. Except as otherwise provided in the Certificate of Incorporation or by law, at every meeting of the shareholders each shareholder of record entitled to vote at such meeting shall have one vote in person or by proxy for each share of capital stock having voting rights held by him and registered in

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his name on the books of the Corporation as of the record date for such meeting. Any vote of shares of capital stock of the Corporation may be given by the shareholder entitled thereto in person or by his proxy appointed by an instrument in writing which is subscribed by such shareholder or by his duly authorized attorney-in-fact, meets all other legal requirements, and is delivered to the secretary of the meeting. Except as otherwise required by law, by the Certificate of Incorporation or these By-Laws, directors shall be elected by a plurality of votes cast at a meeting of shareholders at which a quorum is present and all other matters coming before any meeting of the shareholders shall be decided by a majority of the votes cast at such meeting. Voting on any matter may but need not be by ballot.

Section 8. Inspectors of Election. In elections of directors, or in any other case in which inspectors of election may act, one or more inspectors may be appointed by the chairman of the meeting. Each inspector of election shall take and subscribe an oath faithfully to execute the duties of Inspector at such meeting with strict impartiality, and according to the best of his ability. The inspectors shall determine the number of shares outstanding and the voting power of each, the

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shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election in fairness to all shareholders.

ARTICLE III

DIRECTORS

Section 1. Powers, Number, Qualification, Term. The business of the Corporation shall be managed by its Board of Directors, consisting of not less than three and not more than fifteen persons. The exact number of directors shall be fixed from time to time by action of a majority of the entire Board. All directors shall be at least eighteen years of age. Directors shall be elected at the annual meeting of shareholders by plurality vote and shall be elected to serve until the next annual meeting and until their successors have been elected and qualified.

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Section 2. Quorum, Action. A majority of the entire Board of Directors shall constitute a quorum for the transaction of business or any specified item of business. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. The vote of a majority of the directors present at the time of a vote, if a quorum is present at such time, shall be the act of the Board of Directors, except as otherwise specifically provided in these By-Laws. Any one or more members of the Board of Directors or any committee thereof may participate in a meeting of the Board of such committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting.

Section 3. Vacancies. Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board of Directors for any other reason except the removal of directors by the shareholders may be filled by vote of the Board of Directors. If the number then in office is less than a quorum, such newly created directorships or vacancies may be filled by vote of a majority of the directors then in office. Vacancies occurring in the Board of Directors by reason of the removal of directors by the shareholders may be filled only by vote of the shareholders. A director elected to fill a vacancy, unless elected by the shareholders, shall hold office until the next meeting of shareholders at which the election of directors is in the regular order of business, and until his successor has been elected and qualified.

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Section 4. Meetings. Meetings of the Board of Directors, regular or special, may be held at any place within or outside the State of New York as may be specified in the notice of meeting. Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors, and special meetings may be held at any time upon the call of the President or any two directors by oral, telegraphic or written notice of the time and place of the meeting duly served on or sent or mailed to each director not less than two days before such meeting. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of shareholders. Notice need not be given of regular meetings of the Board of Directors when fixed by the Board as above set forth. Notice of a meeting need not be given to any director who submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at the commencement thereof, the lack of notice to him.

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Section 5. Removal of Directors. Any or all of the directors may be removed for cause or without cause by vote of the shareholders.

Section 6. Committees of the Board. The Board of Directors, by resolution adopted by a majority of the entire Board of Directors, may designate from among its members an Executive Committee and other committees, each consisting of three or more directors, and each of which, to the extent provided in the resolution designating it, shall have all the authority of the Board of Directors except to the extent prohibited by statute. The presence of a majority of the members of a committee shall constitute a quorum for that committee to act, and the act of a majority of the members of such a committee shall be the act of that committee. Any such committee may meet at stated times or on notice of the time and place of such meeting. Notice of a committee meeting need not be given to any member of that committee who submits a signed waiver of notice, whether before or after the committee meeting, or who attends the meeting without protesting, prior thereto or at the commencement thereof, the lack of notice to him. Members of each committee shall serve at the pleasure of the Board of Directors and may be removed, with or without cause, by action of the Board of Directors. Committees shall have such names as may be determined from time to time by the Board of Directors.

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Section 7. Compensation of Directors. The Board of Directors shall have authority to fix compensation of directors for services in any capacity.

Section 8. Action Without Meeting. Any action required or permitted to be taken by the Board of Directors or by any committee thereof may be taken without a meeting if all of the members of the Board of Directors or of any such committee thereof consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board of Directors or any such committee shall be filed with the minutes of the proceedings of the Board of Directors or of any such committee.

ARTICLE IV

OFFICERS

Section 1. Number. The officers of the Corporation shall include a Chairman, a President, one or more Vice Presidents (one or more of whom may be designated Executive Vice President or Senior Vice President), a Secretary and a Treasurer. Any two or more offices may

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be held by the same person except the offices of President and Secretary. From time to time the Board of Directors may elect such Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers, agents and employees as it may deem proper. Such other officers shall have such duties and hold their offices for such terms as may be prescribed by the Board of Directors.

Section 2. Term and Removal. Except as herein otherwise provided, all officers shall be elected to hold office until the meeting of the Board of Directors following the next annual meeting of shareholders. Each officer shall hold office for the term for which he is elected and until his successor has been elected and qualified. Any officer may be removed by the Board of Directors with or without cause. A vacancy in any office arising from any cause may be filled by the Board of Directors.

Section 3. Chairman. The Chairman shall act as Chairman of the Board of Directors and shall preside at all meetings of the Board of Directors and of the shareholders and shall perform such other duties as may be assigned to him from time to time by the Board of Directors.

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Section 4. President. The President shall be the chief executive officer of the Corporation and shall perform such other duties as may be assigned to him from time to time by the Board of Directors.

Section 5. Vice President. Each Executive Vice President, Senior Vice President and Vice President shall have such powers and perform such duties as may be assigned to him from time to time by the Board of Directors or the President,

Section 6. Treasurer. The Treasurer shall exercise general supervision over the receipt, custody and disbursement of the funds of the Corporation. Whenever required by the Board of Directors, he shall render an account of all his transactions as Treasurer and of the financial condition of the Corporation. He shall perform such other duties as may be assigned to him from time to time by the Board of Directors or the President.

Section 7. Secretary. The Secretary shall keep in appropriate books the minutes of all meetings of the Board of Directors, of each committee thereof, and of the shareholders. He shall give all notices required for meetings of shareholders, the Board of Directors, and committees of the Board. He shall be custodian of the records and the seal of the Corporation. He shall perform such other duties as may be assigned to him from time to time by the Board of Directors or the President.

12

Section 8. Voting Corporation’s Securities. Unless otherwise ordered by the Board of Directors, the President or a Vice President or the Secretary shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meetings of security holders of corporations in which the Corporation may hold securities, and at such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which as the owners thereof the Corporation might have possessed and exercised, if present. The Board of Directors by resolution from time to time may confer like powers upon any other person or persons.

Section 9. Divisional Officers. In the event the President designates divisions of the Corporation, the President may appoint such divisional officers as he may deem necessary or desirable. Divisional officers shall serve at the pleasure of the President and may be removed from office at any time, either with or without cause, by the President. A divisional officer shall not be an officer of the Corporation by virtue of his position as such divisional officer, provided, however, that

13

nothing contained herein shall preclude an officer of the Corporation from serving as a divisional officer if so appointed. Divisional officers shall perform such duties as shall be assigned to them from time to time by the President but may not execute any deed, lease or other conveyance or transfer of real property, note or other evidence of indebtedness or mortgage or other security for indebtedness unless specifically authorized by the President or the Board of Directors.

ARTICLE V

INDEMNIFICATION

Section 1. Right to Indemnification. To the full extent authorized by law, now or hereafter enacted, the Corporation shall indemnify any person made or threatened to be made a party in any civil or criminal action or proceeding by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other entity in any capacity at the request of the Corporation.

Section 2. Indemnification Insurance. To the full extent authorized by law, now or hereafter enacted, the Corporation may purchase and maintain insurance for the indemnification of (a) directors, officers and employees of the Corporation, whether or not the Corporation might otherwise indemnify them, and (b) the Corporation for any obligation which it may incur as a result of the indemnification of directors, officers and employees of the Corporation.

14

ARTICLE VI

SHARES OF STOCK

Section 1. Form of Certificates. The shares of capital stock of the Corporation shall be represented by certificates in such form as the Board of Directors may from time to time prescribe and shall be signed by the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and may be sealed with the seal of the Corporation or a facsimile thereof. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation itself or its employee. The signature of such transfer agent may be a facsimile if the certificate is manually registered by such a registrar. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue.

15

Section 2. Transfers. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, or with a transfer clerk or a transfer agent appointed as in Section 5 of this Article provided, and on surrender of the certificate or certificates for such shares properly endorsed and on the payment of all taxes due thereon together with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. The Board of Directors may, from time to time, make such additional rules and regulations as it may deem expedient, not inconsistent with these By-Laws, concerning the issue, transfer and registration of certificates for shares of capital stock of the Corporation.

16

Section 3. Fixing Record Date. For the purpose of determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the Board of Directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less than ten days before the date of such meeting, nor more than fifty days prior to any other action.

Section 4. Lost, Destroyed, Stolen or Mutilated Certificates. The Corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost, destroyed, stolen or mutilated and the Board of Directors may require the owner of the lost, destroyed, stolen or mutilated certificate, or his legal representative, to give the Corporation a bond or indemnity sufficient to indemnify the Corporation against any claim that may be made against it on account of such alleged lost, destroyed, stolen or mutilated certificate or any such new certificate issued in place thereof. The Board of Directors shall have the right from time to time to prescribe such rules and procedures as it shall deem advisable with regard to lost, destroyed, stolen or mutilated certificates and the issuance of new shares of capital stock of the Corporation in place thereof.

17

Section 5. Transfer Agent and Registrar. The Board of Directors may appoint one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for shares of capital stock to bear the manual or facsimile signature or signatures of any of them.

ARTICLE VII

CONTRACTS WITH OFFICERS AND DIRECTORS

No contract or other transaction between the Corporation and any other firm or corporation shall be affected, impaired or invalidated by reason of the fact that any one or more of the directors or officers of the Corporation is or are interested in, or is a member, shareholder, director, or officer or are members, shareholders, directors or officers of such other firm or corporation, and any director or directors or officer or officers, severally or jointly, may be a party or parties to, or may be interested in, any contract or transaction of the Corporation or in which the Corporation is interested, and no contract, act or transaction of this Corporation with any person, firm, association or corporation

18

shall be affected, impaired or invalidated by reason of the fact that any director or directors or officer or officers of this Corporation is a party or are parties to, or interested in, such contract, act or transaction, or in any way connected with or interested in such person, firm, association or corporation. Each and every person who may become a director or officer of the Corporation is hereby relieved from any liability that might otherwise result from thus contracting with the Corporation for the benefit of himself or any firm, association or corporation in which he may be interested.

ARTICLE VIII

FISCAL YEAR

The fiscal year of the Corporation shall be determined by the Board of Directors.

ARTICLE IX

CORPORATE SEAL

The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center shall be inscribed the year of its incorporation and the words, “Corporate Seal, New York”.

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ARTICLE X

AMENDMENTS

These By-Laws may be amended or repealed or additional By–Laws adopted by the Board of Directors by the vote of a majority of the directors present at a meeting at which a quorum is present. These By–Laws, and any amendments thereto and new By-Laws adopted by the Board of Directors may be amended or repealed or additional By–Laws adopted by the shareholders entitled to vote thereon.

20

EX-99.T3E.1

Exhibit E-1

James H.M. Sprayregen, P.C.

Paul M. Basta

Ray C. Schrock

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

Telephone: (212) 446-4800

Facsimile:  (212) 446-4900

- and -

James J. Mazza, Jr.

KIRKLAND & ELLIS LLP

300 North LaSalle

Chicago, Illinois 60654

Telephone (312) 862-2000

Facsimile: (312) 862-2200

Counsel to the Debtors and Debtors in Possession

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

	)
In re:	)	Chapter 11
	)
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al.1	) )	Case No. 10-24549 (RDD)
	)
Debtors.	)	Jointly Administered
	)

DEBTORS’ JOINT PLAN OF REORGANIZATION

PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE

Dated: December 19, 2011

¹  The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number, are: The Great Atlantic & Pacific Tea Company, Inc. (0974); 2008 Broadway, Inc. (0986); AAL Realty Corporation (3152); Adbrett Corporation (5661); Amsterdam Trucking Corporation (1165); APW Supermarket Corporation (7132); APW Supermarkets, Inc. (9509); Bergen Street Pathmark, Inc. (1604); Best Cellars DC Inc. (2895); Best Cellars Inc. (9550); Best Cellars Licensing Corp. (2896); Best Cellars Massachusetts, Inc. (8624); Best Cellars VA Inc. (1720); Bev, Ltd. (9046); Borman’s Inc. (9761); Bridge Stuart, Inc. (8652); Clay-Park Realty Co., Inc. (0902); Compass Foods, Inc. (0653); East Brunswick Stuart, LLC (9149); Farmer Jack’s of Ohio, Inc. (5542); Food Basics, Inc.(1210); Gramatan Foodtown Corp. (5549); Grape Finds At DuPont, Inc. (9455); Grape Finds Licensing Corp. (7091); Grapefinds, Inc. (4053); Greenlawn Land Development Corp. (7062); Hopelawn Property I, Inc. (6590); Kohl’s Food Stores, Inc. (2508); Kwik Save Inc. (8636); Lancaster Pike Stuart, LLC (9158); LBRO Realty, Inc. (1125); Lo-Lo Discount Stores, Inc. (8662); Mac Dade Boulevard Stuart, LLC (9155); McLean Avenue Plaza Corp. (5227); Milik Service Company, LLC (0668); Montvale Holdings, Inc. (6664); North Jersey Properties, Inc. VI (6586); Onpoint, Inc. (6589); Pathmark Stores, Inc. (9612); Plainbridge, LLC (5965); SEG Stores, Inc. (4940); Shopwell, Inc. (3304); Shopwell, Inc. (1281); Spring Lane Produce Corp. (5080); Super Fresh/Sav-A-Center, Inc. (0228); Super Fresh Food Markets, Inc. (2491); Super Market Service Corp. (5014); Super Plus Food Warehouse, Inc. (9532); Supermarkets Oil Company, Inc. (4367); The Food Emporium, Inc. (3242); The Old Wine Emporium of Westport, Inc. (0724); The South Dakota Great Atlantic & Pacific Tea Company, Inc (4647); Tradewell Foods of Conn., Inc. (5748); Upper Darby Stuart, LLC (9153); and Waldbaum, Inc. (8599). The location of the Debtors’ corporate headquarters is Two Paragon Drive, Montvale, New Jersey 07645.

TABLE OF CONTENTS

		Page
INTRODUCTION			1
Article I. DEFINED TERMS AND RULES OF INTERPRETATION			1
A.	Defined Terms		1
B.	Rules of Interpretation		18
Article II. ADMINISTRATIVE CLAIMS, PROFESSIONAL CLAIMS, DIP FACILITY CLAIMS, PRIORITY TAX CLAIMS AND UNITED STATES TRUSTEE STATUTORY FEES			19
A.	Administrative Claims		19
B.	Professional Claims		21
C.	DIP Facility Claims		22
D.	Priority Tax Claims		22
Article III. CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS			22
A.	Substantive Consolidation Settlement		22
B.	Classification of Claims and Interests		24
C.	Treatment of Classes of Claims and Interests		25
D.	Special Provision Governing Vote Tabulation		32
E.	Special Provision Governing Unimpaired Claims		32
Article IV. PROVISIONS FOR IMPLEMENTATION OF THE PLAN			32
A.	Use of Proceeds from New Money Commitment and Exit Facility		32
B.	General Settlement of Claims and Interests		32
C.	NewCo Equity		33
D.	Registration Exemptions		33
E.	Vesting of Assets in the Reorganized Debtors		33
F.	Cancellation of Notes, Instruments, Certificates and Other Documents		34
G.	Reinstatement of Intercompany Claims and Interests		34
H.	Issuance of New Securities; Execution of Plan Documents		34
I.	Post-Confirmation Property Sales		35
J.	Corporate Action		35
K.	Certificate of Incorporation and Bylaws		35
L.	Effectuating Documents, Further Transactions		36
M.	Section 1146(a) Exemption		36
N.	Directors and Officers of Reorganized A&P		36
O.	Officers and Directors of Reorganized Debtors Other Than Reorganized A&P		37
P.	Compensation, Pensions and Benefits Programs		37
Q.	Intercompany Account Settlement		38
R.	Preservation of Rights of Action		38
S.	Avoidance Actions		39

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TABLE OF CONTENTS (cont’d)

T.	Restructuring Transactions	39
U.	Corporate Existence	40
V.	Tax Reporting Matters	40
W.	Management Services Agreement	40
X.	Adequate Assurance Deposits	40
Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES		41
A.	Rejection of Executory Contracts and Unexpired Leases	41
B.	Assumption of Executory Contracts and Unexpired Leases	41
C.	Indemnification Obligations	43
D.	Insurance Policies	43
E.	Objections to Assumption of Executory Contracts and Unexpired Leases Including Cure of Defaults	44
F.	Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases	45
G.	Claims Based on Rejection of Executory Contracts or Unexpired Leases	46
H.	Contracts, Intercompany Contracts, and Leases Entered Into After the Commencement Date	46
I.	Reservation of Rights	46
Article VI. PROCEDURES FOR RESOLVING DISPUTED CLAIMS AND INTERESTS		46
A.	Allowance of Claims and Interests	46
B.	Claims and Interests Administration Responsibilities	47
C.	Estimation of Claims and Interests	47
D.	Expungement or Adjustment to Paid, Satisfied, or Superseded Claims and Interests	47
E.	No Interest	48
F.	DISALLOWANCE OF CLAIMS OR INTERESTS	48
G.	Amendments to Claims	48
H.	No Distributions Pending Allowance	48
I.	Distributions After Allowance	49
J.	Disputed Claims Reserve	49
K.	Distributions Following Resolution of All Claims	49
Article VII. PROVISIONS GOVERNING DISTRIBUTIONS		50
A.	Distributions on Account of Claims Allowed as of the Effective Date	50
B.	Distributions on Account of Claims Allowed After the Effective Date	51
C.	Delivery of Distributions	52
D.	Claims Paid or Payable by Third Parties	54
E.	Setoffs	55
F.	Allocation Between Principal and Accrued Interest	56
Article VIII. EFFECT OF CONFIRMATION OF THE PLAN		56
A.	DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS	56
B.	Subordinated Claims	56

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TABLE OF CONTENTS (cont’d)

C.	Compromise and Settlement of Claims and Controversies	57
D.	RELEASES BY THE DEBTORS	57
E.	RELEASES BY HOLDERS OF CLAIMS	59
F.	WAIVER OF STATUTORY LIMITATIONS ON RELEASES	61
G.	EXCULPATION	61
H.	INJUNCTION	62
I.	Protection Against Discriminatory Treatment	63
J.	Indemnification	63
K.	Recoupment	64
L.	Release of Liens	64
M.	Reimbursement or Contribution	64
Article IX. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN		64
A.	Conditions Precedent to the Effective Date	64
B.	Waiver of Conditions Precedent	65
C.	Effect of Non-Occurrence of Conditions to Consummation	66
Article X. RETENTION OF JURISDICTION		66
Article XI. MISCELLANEOUS PROVISIONS		68
A.	No Stay of Confirmation Order	68
B.	Modification of Plan	68
C.	Revocation or Withdrawal of Plan	69
D.	Confirmation of the Plan	69
E.	Additional Documents	69
F.	Payment of Statutory Fees	70
G.	Dissolution of Creditors’ Committee	70
H.	Reservation of Rights	70
I.	Successors and Assigns	70
J.	Service of Documents	70
K.	TERM OF INJUNCTIONS OR STAYS	72
L.	Entire Agreement	72
M.	Plan Supplement Exhibits	72
N.	Severability	72

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INTRODUCTION²

The Great Atlantic & Pacific Tea Company, Inc. and the other Debtors in the above-captioned Chapter 11 Cases jointly propose the following Plan. Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, the Plan incorporates a proposed compromise and settlement of potential litigation regarding certain issues, including, without limitation, the substantive consolidation of the Debtors’ estates and the resolution of outstanding Claims against, and Interests in, the Debtors. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code. The classifications of Claims and Interests set forth in Article III hereof shall be deemed to apply to all Debtors, unless otherwise specified. Reference is made to the Disclosure Statement (as defined herein), distributed contemporaneously herewith, and all exhibits to the Disclosure Statement. In the event of any inconsistency between the Disclosure Statement and the Plan, the relevant provision of the Plan, as it relates to such inconsistency, will govern, provided, that in the event of any inconsistency between this Plan and the Securities Purchase Agreements, the relevant provision of the Securities Purchase Agreements, as it relates to such inconsistency, will govern.

Nothing in the Disclosure Statement, this Plan, the Plan Supplement or the exhibits attached thereto shall be modified, amended or supplemented without the express consent of the Investors. Notwithstanding anything in the Plan to the contrary, any decision, option, consent right or election (including with respect to Claims and distributions on Claims) shall be subject to the consent of the Investors, including but not limited to any decision to Reinstate a Claim or Interest.

ARTICLE I.

DEFINED TERMS AND RULES OF INTERPRETATION

A. Defined Terms

1. 5.125% Convertible Notes: The 5.125% convertible senior notes, with an aggregate face amount of $165,000,000, due in 2011 and issued pursuant to the 2007 Indenture.

2. 5.125% Convertible Note Claims: Any and all Claims arising under the 5.125% Convertible Notes or the 2007 Indenture with respect to the 5.125% Convertible Notes.

3. 6.75% Convertible Notes: The 6.75% convertible senior notes, with an aggregate face amount of $255,000,000, due in 2012 and issued pursuant to the 2007 Indenture.

4. 6.75% Convertible Note Claims: Any and all Claims arising under the 6.75% Convertible Notes or the 2007 Indenture with respect to the 6.75% Convertible Notes.

5. 9.125% Senior Notes: The 9.125% senior notes, with an aggregate face amount of $12,840,000, due in 2011 and issued pursuant to the 1991 Indenture.

²  Capitalized terms used in this Introduction are defined in ARTICLE I herein.

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6. 9.125% Senior Note Claims: Any and all Claims arising under the 9.125% Senior Notes or the 1991 Indenture with respect to the 9.125% Senior Notes.

7. 1991 Indenture: That certain indenture dated as of January 1, 1991, as amended, supplemented, or modified from time to time, by and between A&P, as issuer, and Wilmington Trust.

8. 2007 Indenture: That certain indenture dated as of December 18, 2007, as amended, supplemented, or modified from time to time, by and between A&P, as issuer, and Wilmington Trust.

9. A&P: The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation.

10. A&P Pension Claims: Any and all Claims against the Debtors asserted by or on behalf of the PBGC or any other Person in respect of the A&P Pension Plans.

11. A&P Pension Plans: (a) The Great Atlantic & Pacific Tea Company, Inc. Pension Plan; (b) the Pathmark Stores, Inc. Pension Plan; (c) the New York-New Jersey Amalgamated Pension Plan for A&P Employees; and (d) the Delaware County Dairies, Inc. Hourly Employees’ Pension Plan.

12. Administrative Claim: A Claim for costs and expenses of administration pursuant to sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and necessary costs and expenses incurred after the Commencement Date of preserving the Estates and operating the businesses of the Debtors; (b) Allowed Professional Claims; (c) the reasonable fees and expenses of the Notes Trustee and Second Lien Trustee incurred in connection with the Chapter 11 Cases; (d) all fees and charges assessed against the Estates pursuant to section 1930 of chapter 123 of title 28 of the United States Code; (e) the Transaction Expenses of the Investors (as set forth in the Securities Purchase Agreements); (f) the Break-Up Fee, to the extent triggered and due pursuant to the Securities Purchase Agreements and as approved by the Securities Purchase Agreements Order; and (g) all claims approved as administrative claims pursuant to an order of the Bankruptcy Court.

13. Administrative Claims Bar Date: The deadline for filing requests for payment of Administrative Claims, which shall be 30 days after the Effective Date, unless otherwise ordered by the Bankruptcy Court, except with respect to (i) Professional Claims, which shall be subject to the provisions of Article II.B herein; or (ii) Transaction Expenses and the Break-Up Fee, which shall be allowed as provided by the Securities Purchase Agreements and approved by the Securities Purchase Agreements Order.

14. Affiliate: As defined in section 101(2) of the Bankruptcy Code and as it pertains to the Debtors or Reorganized Debtors, as applicable.

15. Allowed: Except as otherwise provided herein and subject to Article VI.A: (a) a Claim or Interest that is (i) listed in the Schedules as of the Effective Date as not disputed, not contingent, and not unliquidated, or (ii) evidenced by a valid Proof of Claim, filed by the applicable Bar Date and not subject to the Debtors or Reorganized Debtors right to file an objection to such Proof of Claim, or (b) a Claim that is Allowed pursuant to the Plan or any stipulation approved by, or Final Order of, the Bankruptcy Court.

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16. Avoidance Actions: Any and all avoidance, recovery or subordination actions or remedies that may be brought on behalf of the Debtors or their Estates under the Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under sections 544, 547, 548, 550, 551, 552, or 553 of the Bankruptcy Code.

17. Bankruptcy Code: Title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as may be amended from time to time.

18. Bankruptcy Court: The United States Bankruptcy Court for the Southern District of New York having jurisdiction over the Chapter 11 Cases and, to the extent of the withdrawal of any reference under section 157 of title 28 of the United States Code and/or order of a district court pursuant to section 157(a) of title 28 of the United States Code, the United States District Court for the Southern District of New York.

19. Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure as applicable to the Chapter 11 Cases, and the general, local, and chambers rules of the Bankruptcy Court.

20. Bar Date: (a) June 17, 2011; or (b) such other period of limitation as may be specifically fixed by an order of the Bankruptcy Court for filing Claims.

21. Break-Up Fee: As defined in the Securities Purchase Agreements and as approved by the Securities Purchase Agreements Order.

22. Business Day: Any day, other than a Saturday, Sunday, or a legal holiday, as defined in Bankruptcy Rule 9006(a).

23. Cash: Legal tender of the United States of America or the equivalent thereof.

24. Causes of Action: Any and all Claims, actions, causes of action, choses in action, suits, debts, damages, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, remedies, rights of set-off, third-party claims, subrogation claims, contribution claims, reimbursement claims, indemnity claims, counterclaims, and crossclaims (including those of the Debtors, the debtors in possession, and/or the Estates), whether known or unknown, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, that are or may be pending on the Effective Date or instituted after the Effective Date against any Entity, based in law or equity, including under the Bankruptcy Code, whether direct, indirect, derivative, or otherwise and whether asserted or unasserted as of the date of entry of the Confirmation Order.

25. Certificate: Any instrument evidencing a Claim or an Interest.

26. Chapter 11 Cases: The jointly administered chapter 11 cases commenced by the Debtors, with case numbers 10-24548 through 10-24601, and styled In re The Great Atlantic & Pacific Tea Company, Inc., et al., Case No. 10-24549 (RDD), which are currently pending before the Bankruptcy Court.

7

27. Claim: As defined in section 101(5) of the Bankruptcy Code.

28. Claims Agent: Kurtzman Carson Consultants LLC, located at 2335 Alaska Avenue, El Segundo, California 90245, (877) 660-6625, retained as the Debtors’ claims agent by order dated December 28, 2010, entitled Order Authorizing the Employment and Retention of Kurtzman Carson Consultants LLC as Notice and Claims Agent for Debtors [Docket No. 207]; the Debtors anticipate requesting authority to retain Kurtzman Carson Consultants LLC as their solicitation agent at or prior to the Disclosure Statement Hearing.

29. Claims Register: The official register of Claims maintained by the Claims Agent.

30. Class: A category of holders of Claims or Interests pursuant to section 1122(a) of the Bankruptcy Code.

31. Commencement Date: December 12, 2010.

32. Confirmation: The entry of the Confirmation Order on the docket of the Chapter 11 Cases.

33. Confirmation Date: The date upon which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases, within the meaning of Bankruptcy Rules 5003 and 9021.

34. Confirmation Hearing: The hearing before the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code on the motion for entry of the Confirmation Order.

35. Confirmation Order: The order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, which order shall include the provisions described on Exhibit D to the Securities Purchase Agreements and otherwise be in form and substance acceptable to the Investors.

36. Consenting Noteholders: So long as the Plan Support Agreement has not been terminated, those certain holders of the Second Lien Note Claims that have executed the Plan Support Agreement or have agreed to be bound thereby by executing a Joinder Agreement (as defined therein).

37. Consummation: The occurrence of the Effective Date.

38. Convertible Notes: The 5.125% Convertible Notes and 6.75% Convertible Notes.

39. Convertible Notes Claims: The 5.125% Convertible Note Claims and the 6.75% Convertible Note Claims.

40. Creditors’ Committee: The official committee of unsecured creditors appointed pursuant to section 1102 of the Bankruptcy Code by the United States Trustee for the Southern District of New York on December 21, 2010, as amended on June 3, 2011 and as it may be reconstituted from time to time.

8

41. Cure: A Claim against the Debtors for the payment of Cash, or the distribution of other property (all as the Debtors and the counterparty to the Executory Contract or Unexpired Lease may agree or the Bankruptcy Court may order), as necessary to (a) cure a default by the Debtors pursuant to section 365 of the Bankruptcy Code and in accordance with the terms of an Executory Contract or Unexpired Lease of the Debtors and (b) permit the Debtors to assume such Executory Contract or Unexpired Lease under sections 365 and 1123 of the Bankruptcy Code.

42. Cure Objection Deadline: The deadline for filing objections to a proposed Cure, which shall be the earlier of: (a) 30 days after the Effective Date or (b) 30 days after the assumption of the applicable Executory Contract or Unexpired Lease upon approval of the Confirmation Order, unless otherwise ordered by the Bankruptcy Court or agreed to by the Debtors and the counterparty to the applicable Executory Contract or Unexpired Lease.

43. Debtor Release: As defined in Article VIII.D.

44. Debtors: Each of the following Entities, collectively: The Great Atlantic & Pacific Tea Company, Inc.; 2008 Broadway, Inc.; AAL Realty Corporation; Adbrett Corporation; Amsterdam Trucking Corporation; APW Supermarket Corporation; APW Supermarkets, Inc.; Bergen Street Pathmark, Inc.; Best Cellars DC Inc.; Best Cellars Inc.; Best Cellars Licensing Corp; Best Cellars Massachusetts, Inc.; Best Cellars VA Inc.; Bev, Ltd.; Borman’s Inc.; Bridge Stuart, Inc.; Clay-Park Realty Co., Inc.; Compass Foods, Inc.; East Brunswick Stuart, LLC; Farmer Jack’s of Ohio, Inc.; Food Basics, Inc.; Gramatan Foodtown Corp.; Grape Finds At DuPont, Inc.; Grape Finds Licensing Corp.; Grapefinds, Inc.; Greenlawn Land Development Corp.; Hopelawn Property I, Inc.; Kohl’s Food Stores, Inc.; Kwik Save Inc.; Lancaster Pike Stuart, LLC; LBRO Realty, Inc.; Lo-Lo Discount Stores, Inc.; Mac Dade Boulevard Stuart, LLC; McLean Avenue Plaza Corp.; Milik Service Company, LLC; Montvale Holdings, Inc.; North Jersey Properties, Inc. VI; Onpoint, Inc.; Pathmark Stores, Inc.; Plainbridge, LLC; SEG Stores, Inc.; Shopwell, Inc.; Shopwell, Inc.; Spring Lane Produce Corp.; Super Fresh/Sav-A-Center, Inc.; Super Fresh Food Markets, Inc.; Super Market Service Corp.; Super Plus Food Warehouse, Inc.; Supermarkets Oil Company, Inc.; The Food Emporium, Inc.; The Old Wine Emporium of Westport, Inc.; The South Dakota Great Atlantic & Pacific Tea Company, Inc.; Tradewell Foods of Conn., Inc.; Upper Darby Stuart, LLC; and Waldbaum, Inc.

45. DIP Facility: The debtor in possession financing facility approved by the Final DIP Order and established pursuant to the DIP Facility Credit Agreement.

46. DIP Facility Administrative Agent: JPMorgan Chase Bank, N.A., or its successor, in its capacity as administrative agent and collateral agent under the DIP Facility.

47. DIP Facility Claims: Any Claim derived from, or based upon, the DIP Facility.

48. DIP Facility Credit Agreement: That certain Third Amended and Restated Superpriority Debtor-in-Possession Credit Agreement, dated January 13, 2011, as amended, supplemented, or modified from time to time, between A&P and each subsidiary of A&P party thereto, as borrowers, the lenders party thereto, and the DIP Facility Administrative Agent.

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49. DIP Facility Lenders: The lenders under the DIP Facility.

50. Disclosure Statement: The disclosure statement for the Plan, as amended, supplemented or modified from time to time (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), in form and substance reasonably acceptable to the Investors, including all exhibits and schedules thereto, and as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code.

51. Disclosure Statement Hearing: The hearing before the Bankruptcy Court on the motion for approval of the Disclosure Statement and related solicitation procedures and exhibits.

52. Disputed Claim: Any Claim or Interest that is not yet Allowed.

53. Disputed Claims Reserve: An appropriate cash reserve, to be determined by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent and with the reasonable consent of the Investors) or Reorganized Debtors, unless otherwise ordered by the Bankruptcy Court, of the Unsecured Creditor Cash Pool and Trade Claims Cash Pool, for distributions on account of Disputed Claims that are subsequently Allowed after the Effective Date.

54. Distribution Agent: The Reorganized Debtors or the Entity or Entities selected by the Reorganized Debtors, as applicable, to make or to facilitate distributions pursuant to the Plan.

55. Distribution Date: Any of the Initial Distribution Date or the Periodic Distribution Dates.

56. Distribution Record Date: The date for determining which holders of Allowed Claims are eligible to receive distributions hereunder, which shall be (a) ten Business Days after entry of the Confirmation Order or (b) such other date as designated in a Bankruptcy Court order.

57. Effective Date: The date that is the first Business Day after the Confirmation Date on which: (a) no stay of the Confirmation Order is in effect; and (b) all conditions precedent to the Effective Date set forth in the Plan or in the Securities Purchase Agreements have been satisfied or waived.

58. Entity: As defined in section 101(15) of the Bankruptcy Code.

59. Equity Security: As defined in section 101(16) of the Bankruptcy Code.

60. Estate: The bankruptcy estate of any Debtor created pursuant to sections 301 and 541 of the Bankruptcy Code upon the commencement of the Chapter 11 Cases.

61. Exculpated Claim: As defined in Article VIII.G.

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62. Exculpated Party: Each of the following in its capacity as such: (a) the Debtors and their Affiliates; (b) the Reorganized Debtors and their Affiliates; (c) the DIP Facility Lenders and the DIP Facility Administrative Agent; (d) the Investors; (e) the Second Lien Trustee; (f) the Notes Trustee; (g) the Prepetition Credit Facility Lenders and Prepetition Credit Facility Administrative Agent; (h) UFCW; (i) UFCW Local Unions; (j) Liberty Harbor; (k) Mount Kellett; (l) Yucaipa; (m) the Consenting Noteholders; (n) to the extent the Second Lien Trustee does not take any action, including initiating any legal proceedings, materially inconsistent with the substance of the Plan Support Agreement or that materially interferes with the consummation of the matters contemplated by the Plan Support Agreement, the Second Lien Trustee; (o) with respect to each of the foregoing Entities in clauses (a) through (n), such Entities’ successors and assigns; (p) the Creditors’ Committee and the members thereof, and (q) with respect to each of the foregoing Entities in clauses (a) through (p), such Entities’ parents, subsidiaries, affiliates, officers, directors, principals, partners, members, managers, employees, agents, professionals, financial and other advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals (whether current or former).

63. Executory Contract: A contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.

64. Exit Facility: A financing facility to be entered into by the Reorganized Debtors on the Effective Date on terms and conditions reasonably acceptable to the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors, which shall be secured by a first priority lien on substantially all of the Reorganized Debtors’ assets (other than any leasehold interests that may prohibit encumbrance) as provided in the Securities Purchase Agreements.

65. Final Decree: The decree contemplated under Bankruptcy Rule 3022.

66. Final DIP Order: The Final Order (I) Authorizing Debtors (A) to Obtain Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e) and (B) to Utilize Cash Collateral Pursuant to 11 U.S.C. § 363 and (II) Granting Adequate Protection to Pre-Petition Secured Parties Pursuant to 11 U.S.C. §§ 361, 362, 363 and 364, entered by the Bankruptcy Court on January 11, 2011 [Docket No. 479].

67. Final Order: An order or judgment of the Bankruptcy Court (or any other court of competent jurisdiction) entered by the Clerk of the Bankruptcy Court (or such other court) on the docket in the Chapter 11 Cases (or the docket of such other court), which has not been modified, amended, reversed, vacated or stayed and as to which (a) the time to appeal, petition for certiorari, or move for a new trial, stay, reargument or rehearing has expired and as to which no appeal, petition for certiorari or motion for new trial, stay, reargument or rehearing shall then be pending or (b) if an appeal, writ of certiorari, new trial, stay, reargument or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court (or other court of competent jurisdiction) shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, stay, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, stay, reargument or rehearing shall have expired, as

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a result of which such order shall have become final in accordance with Rule 8002 of the Federal Rules of Bankruptcy Procedure; provided, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order, shall not cause an order not to be a Final Order.

68. General Unsecured Claim: Any Claim, other than Administrative Claims, Professional Claims, DIP Facility Claims, Priority Tax Claims, Prepetition Credit Facility Claims, Second Lien Note Claims, Secured Tax Claims, Other Secured Claims, Other Priority Claims, Convertible Notes Claims, 9.125% Senior Note Claims, Quarterly Interest Bond Claims, Trade Claims, Guaranteed Landlord Claims, Union Claims, Intercompany Claims and Subordinated Claims.

69. Governmental Unit: As defined in section 101(27) of the Bankruptcy Code.

70. Guaranteed Landlord Claims: Any and all Claims arising from or related to the rejection of nonresidential real property leases pursuant to section 365 of the Bankruptcy Code against any of the following operating-entity Debtors as a primary obligor: (a) APW Supermarkets, Inc.; (b) Best Cellars, Inc.; (c) Bev Ltd.; (d) Food Basics, Inc.; (e) Pathmark Stores, Inc.; (f) Shopwell, Inc.; (g) Super Fresh Food Markets, Inc.; (h) The Old Wine Emporium of Westport, Inc.; (i) Tradewell Foods Of Conn., Inc.; and (j) Waldbaum, Inc., and A&P as a guarantor (or secondary obligor) provided, further, that, pursuant to the Substantive Consolidation Settlement described in Article III.A herein, such primary obligor and guarantor (or secondary obligor) Claims related to the same lease rejection shall be combined into a single Guaranteed Landlord Claim for the purposes of voting and distributions under the Plan.

71. Impaired: With respect to any Class of Claims or Interests, a Claim or Interest that is not Unimpaired.

72. Indemnification Obligation: A Debtor’s obligation under an Executory Contract, a corporate or other document, a postpetition agreement, through the Plan, or otherwise, including as set forth in the Securities Purchase Agreements, to indemnify any Person, including directors, officers, attorneys, other professionals and agents, or employees of the Debtors who served in such capacity at any time, with respect to or based upon any act or omission taken or omitted in any of such capacities, or for or on behalf of any Debtor, pursuant to and to the maximum extent provided by the Debtors’ respective articles of incorporation, certificates of formation, bylaws, similar corporate documents, and applicable law, as in effect as of the Effective Date.

73. Indenture Claims: Any and all Claims arising pursuant to the Convertible Notes Claims, 9.125% Senior Note Claims and Quarterly Interest Bond Claims, in accordance with the respective Notes Indentures.

74. Initial Distribution Date: The date occurring, as soon as reasonably practicable, after the Effective Date when distributions under the Plan shall commence.

75. Intercompany Claim: A Claim by a Debtor against another Debtor or a Claim by an Affiliate of the Debtors against a Debtor.

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76. Intercompany Contract: A contract between two or more Debtors or a contract between one or more Affiliates and one or more Debtors.

77. Intercompany Interest: An Interest held by a Debtor in another Debtor or an Affiliate other than A&P.

78. Interest: Any Equity Security of a Debtor existing immediately prior to the Effective Date.

79. Interim Compensation Order: The Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals, entered by the Bankruptcy Court on January 12, 2011 [Docket No. 505].

80. Investment Warrants: Those certain warrants to be acquired by Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP and their permitted transferees in connection with its purchase of NewCo Equity and New Convertible Third Lien Notes, pursuant to the terms of the Securities Purchase Agreements.

81. Investors: Each of (a) Liberty Harbor, (ii) Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP, and (iii) Mount Kellett, and in each case any affiliates of each of the foregoing that are signatories to the Securities Purchase Agreements, and their respective permitted transferees.

82. IRS: Internal Revenue Service.

83. Liberty Harbor: The Liberty Harbor business unit of Goldman Sachs Asset Management, L.P. and its affiliated funds.

84. Lien: As defined in section 101(37) of the Bankruptcy Code.

85. Management Equity Incentive Program: A post-Effective Date compensation program in accordance with the terms and conditions set forth in the “Management Equity Incentive Program,” to be attached as an Exhibit to the Plan Supplement.

86. Management Services Agreement: A management services agreement to be entered into by Reorganized A&P or one of its Affiliates (as agreed among Yucaipa, Liberty Harbor, Mount Kellett and the Debtors or Reorganized Debtors, as applicable) and The Yucaipa Companies, LLC on the Effective Date in the form to be attached as an Exhibit to the Plan Supplement which shall be on terms and conditions acceptable to Yucaipa, Liberty Harbor and Mount Kellett.

87. Modified Collective Bargaining Agreements: Those collective bargaining agreements as modified pursuant to the Union Settlement Agreements.

88. Mount Kellett: Mount Kellett Capital Management LP and its affiliated funds.

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89. Multiemployer Pension Plan: Any multiemployer plan as defined in section 3(37) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §1002(3)(37), in which the Debtors are or were a contributing employer.

90. New Board: The initial board of directors of Reorganized A&P, which shall as of the Effective Date consist of members selected in accordance with the Securities Purchase Agreements and, to the extent known, shall be identified in the Plan Supplement in accordance with section 1129(a)(5) of the Bankruptcy Code.

91. New Convertible Third Lien Notes: Notes issued by Reorganized A&P and guaranteed by every other Reorganized Debtor, of which an aggregate principal amount of $210.0 million shall be purchased by the Investors on the Effective Date on the terms and conditions set forth in the Securities Purchase Agreements, which notes shall include the terms set forth in Exhibit C to the Securities Purchase Agreements (and such other terms that are satisfactory to the Investors).

92. NewCo Equity: The authorized shares of common stock of Reorganized A&P, par value $0.01 per share.

93. New Equity Investment: The NewCo Equity issued by Reorganized A&P to the Investors on the Effective Date for an aggregate purchase price of $80.0 million, which shall be purchased by the Investors pursuant to the terms of the Securities Purchase Agreements and shall include the terms set forth in the Securities Purchase Agreements (and such other terms that are satisfactory to the Investors).

94. New Money Commitment: The obligation of the Investors severally and not jointly, to purchase, or cause one or more of their affiliates to purchase, on the Effective Date, certain of the New Second Lien Notes, certain of the New Convertible Third Lien Notes, and the New Equity Investment on the terms and conditions set forth in the Securities Purchase Agreements and Securities Purchase Agreements Order.

95. New Second Lien Notes: Notes issued by Reorganized A&P and guaranteed by every other Reorganized Debtor of which an aggregate principal amount of up to $210.0 million (inclusive of a 5% original issue discount) shall be purchased by the Investors on the Effective Date on the terms and conditions set forth in the Securities Purchase Agreements, which notes shall include the terms set forth in Exhibit B to the Securities Purchase Agreements (and such other terms that are satisfactory to the Investors).

96. Notes Indentures: Collectively, the 1991 Indenture and the 2007 Indenture.

97. Notes Trustee: Wilmington Trust, or its successor, in its capacity as successor trustee under the Notes Indentures.

98. Other Collective Bargaining Agreements: The following collective bargaining agreements: (a) Collective Bargaining Agreement, dated October 16, 2005, between Food Basics, Inc. and Union Local 464 UFCW, as amended by the Memorandum of Agreement between the parties dated October 15, 2010; (b) Collective Bargaining Agreement, dated April 30, 2006, between Food Basics, Inc. and Union Local 338 RWDSU/UFCW; and (c) Collective Bargaining Agreement, dated September 24, 2006, between Food Basics, Inc. and Union Local 1776 UFCW;.

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99. Other Priority Claim: Any Claim other than an Administrative Claim or a Priority Tax Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.

100. Other Secured Claim: Any Secured Claim, including PACA Claims, other than (a) DIP Facility Claim, (b) Prepetition Credit Facility Claim, (c) Second Lien Note Claim, or (d) Secured Tax Claim.

101. PACA Claims: Any and all Claims against the Debtors entitled to priority or secured status pursuant to the Perishable Agricultural Commodities Act, provided that, to have an Allowed PACA Claim, holders of such Claims shall have properly preserved their rights pursuant to the Perishable Agricultural Commodities Act.

102. PBGC: The Pension Benefit Guaranty Corporation, a wholly-owned United States government corporation, created by ERISA, to administer the mandatory pension plan termination insurance program established under Title IV of ERISA.

103. Pension Withdrawal Claims: Any and all Claims against the Debtors arising from the Debtors’ complete or partial withdrawal from any Multiemployer Pension Plans related to actions or events occurring prior to the Effective Date, including: (a) Amalgamated Meat Cutters and Retail Food Store Employees Union Local 342 Pension Fund; (b) Central States, Southeast and Southwest Areas Pension Fund; (c) Retail, Wholesale and Department Store International Union and Industry Benefit and Pension Funds; (d) UFCW Local 1262 and Employees Pension Fund; (e) UFCW and Participating Food Industry Employers Tri-State Pension Fund; and (f) Food Employers Labor Relations Association and United Food and Commercial Workers Pension Fund.

104. Periodic Distribution Date: Unless otherwise ordered by the Bankruptcy Court, the first business day that is 90 days after the Initial Distribution Date, and for the first year thereafter, the first business day that is 90 days after the immediately preceding Periodic Distribution Date.

105. Person: As defined in section 101(41) of the Bankruptcy Code.

106. Plan: This chapter 11 plan of reorganization, as it may be altered, amended, modified, or supplemented from time to time (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), in accordance with the terms set forth herein and in the Securities Purchase Agreements, including the Plan Supplement and all exhibits, supplements, appendices, and schedules, and which shall be in form and substance reasonably acceptable to the Investors.

107. Plan Supplement: The supplement or supplements to the Plan containing certain documents relevant to the implementation of the Plan, to be filed with the Bankruptcy Court no later than five days prior to the objection deadline to the Confirmation Hearing or as otherwise provided herein, or as such filing deadlines may be extended by the Debtors, provided, that, the Debtors shall file a notice with the Bankruptcy Court of any such extension(s), and such

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supplement(s) shall be in form and substance reasonably acceptable to the Investors (as to the form and substance each of which the Debtors shall have consulted with the Creditors’ Committee and the DIP Facility Administrative Agent), and which shall include, but not be limited to: (i) a listing of the members of the New Board, to the extent known; (ii) the term sheet and/or the indenture and form of New Second Lien Notes (and related ancillary documents), provided, that, the form of indenture and form of the New Second Lien Notes (but not the related ancillary documents) shall be filed prior to the objection deadline for the Confirmation Hearing and such forms may be amended (1) prior to the Effective Date (x) with the mutual consent of the Debtors and the Investors or (y) as Investors deem reasonably necessary in connection with or to facilitate the Exit Financing and (2) after the Effective Date in accordance with the terms of such documents; (iii) the term sheet and/or the indenture and form of New Convertible Third Lien Notes (and related ancillary documents), provided, that, the form of indenture and form of the New Convertible Third Lien Notes (but not the related ancillary documents) shall be filed prior to the objection deadline for the Confirmation Hearing and such forms may be amended (1) prior to the Effective Date (x) with the mutual consent of the Debtors and the Investors or (y) as Investors deem reasonably necessary in connection with or to facilitate the Exit Financing and (2) after the Effective Date in accordance with the terms of such documents; (iv) if Replacement Second Lien Notes are to be issued pursuant to the Plan, the term sheet and/or the indenture and form of Replacement Second Lien Notes (and related ancillary documents), as applicable, provided, that, the form of indenture and form of the Replacement Second Lien Notes (but not the related ancillary documents) shall be filed no later than ten days before the objection deadline for the Confirmation Hearing and such forms may be amended (1) prior to the Effective Date (x) with the mutual consent of the Debtors and the Investors or (y) as Investors deem reasonably necessary in connection with or to facilitate the Exit Financing and (2) after the Effective Date in accordance with the terms of such documents; (v) a form warrant agreement for the Investment Warrants, provided, that, the form of the Investment Warrants (but not the related ancillary documents) shall be filed prior to the objection deadline for the Confirmation Hearing and such forms may be amended (1) prior to the Effective Date (x) with the mutual consent of the Debtors and the Investors or (y) as Investors deem reasonably necessary in connection with or to facilitate the Exit Financing and (2) after the Effective Date in accordance with the terms of such documents; (vi) the Reorganized A&P Charter; (vii) the Reorganized A&P Bylaws; (viii) a term sheet for the Exit Facility; (ix) a term sheet for the Management Equity Incentive Program; (x) drafts or term sheets of any new employment agreements; (xi) a list of Executory Contracts and Unexpired Leases to be assumed or rejected (with related notices), and as may be amended by the Debtors prior to the Effective Date; (xii) a list of retained Causes of Action; (xiii) the Management Services Agreement.

108. Plan Support Agreement: That certain Plan Support Agreement dated as of December 12, 2011 and filed as Exhibit B to the Debtors’ Motion for Entry of an Order Authorizing the Debtors to Enter into a Plan Support Agreement with Certain Holders of the Debtors’ Second Lien Notes [Docket No. 3028].

109. Plan Support Agreement Order: The Order Authorizing the Debtors to Enter into a Plan Support Agreement with Certain Holders of the Debtors’ Second Lien Notes [Docket No.     ] entered by the Bankruptcy Court on [            ].

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110. Prepetition Credit Agreement: That certain Amended and Restated Credit Agreement dated as of December 27, 2007 as amended, supplemented, or amended and restated from time to time by and between the Debtors, the Prepetition Credit Facility Agent, and the Prepetition Credit Facility Lenders.

111. Prepetition Credit Facility Agent: Bank of America, N.A., in its capacity as administrative agent under the Prepetition Credit Agreement.

112. Prepetition Credit Facility Claims: Any and all claims arising under the Prepetition Credit Agreement.

113. Prepetition Credit Facility Lenders: Those lenders and issuing banks party to the Prepetition Credit Agreement from time to time, each in their capacities as such.

114. Priority Claim: Collectively, Priority Tax Claims and Other Priority Claims.

115. Priority Tax Claim: Any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.

116. Professional: An Entity: (a) employed in the Chapter 11 Cases pursuant to a Final Order in accordance with sections 327 and 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Effective Date, pursuant to sections 327, 328, 329, 330, and 331 of the Bankruptcy Code; or (b) for which compensation and reimbursement has been Allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.

117. Professional Claims: A Claim by a Professional seeking an award by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred through and including the Effective Date under sections 328, 330, 331, 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code.

118. Professional Compensation: All accrued fees and expenses (including success fees) for services rendered by all Professionals through and including the Effective Date to the extent any such fees and expenses have not been paid and regardless of whether a fee application has been filed for such fees and expenses. To the extent there is a Final Order denying some or all of a Professional’s fees or expenses, such denied amounts shall no longer be considered Professional Compensation.

119. Professional Fee Escrow Account: An interest-bearing account to be funded upon the Effective Date in an amount equal to professional fees that are estimated to be accrued but unpaid by the Debtors or Reorganized Debtors as of the Effective Date; the terms and conditions (not including the Professional Fee Reserve Amount) of the Professional Fee Escrow Account shall be otherwise acceptable to the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), Reorganized Debtors and the Investors.

120. Professional Fee Reserve Amount: Professional Compensation through the Confirmation Date as estimated, subject to the Debtors’ reasonable discretion, in accordance with Article II.B.3 herein.

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121. Proof of Claim: A proof of Claim filed against any of the Debtors in the Chapter 11 Cases.

122. Pro Rata: The proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that Class, or the proportion that Allowed Claims in that particular Class bear to the aggregate amount of Allowed Claims in that Class and other Classes entitled to share in the same recovery as such Allowed Claim under the Plan, provided, that, with regard to Unsecured Claims and their recoveries from the Unsecured Creditor Cash Pool, Pro Rata shall take into account any incremental recoveries for parties that receive the benefit of the Substantive Consolidation Settlement.

123. Quarterly Interest Bond Claims: Any and all Claims arising under the Quarterly Interest Bonds or the 1991 Indenture with respect to the Quarterly Interest Bonds.

124. Quarterly Interest Bonds: The 9.375% quarterly interest bonds, with an aggregate face amount of $200,000,000, due in 2039 and issued pursuant to the 1991 Indenture.

125. Reinstate or Reinstated: Has the meaning pursuant to all applicable sections of the Bankruptcy Code.

126. Released Party: Each of the following in its capacity as such, and only in its capacity as such: (a) the Debtors’ and the Reorganized Debtors’ current and former affiliates, subsidiaries, officers, directors, principals, partners, members, managers, employees, agents, financial and other advisors, attorneys, accountants, investment bankers, consultants, representatives, and other Professionals; (b) the DIP Facility Lenders and the DIP Facility Administrative Agent; (c) the Investors; (d) the Creditors’ Committee and the members thereof; (e) Tengelmann; (f) Yucaipa; (g) Liberty Harbor; (h) Mount Kellett; (i) UFCW; (j) UFCW Local Unions; (k) the Consenting Noteholders; (l) to the extent the Second Lien Trustee does not take any action, including initiating any legal proceedings, materially inconsistent with the substance of the Plan Support Agreement or that materially interferes with the consummation of the matters contemplated by the Plan Support Agreement, the Second Lien Trustee; and (m) with respect to each of the foregoing Entities in clauses (b) through (l), their respective current and former parents, affiliates, subsidiaries, officers, directors, principals, employees, members, managers, agents, partners, professionals, financial and other advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, in their capacities as such.

127. Releasing Party: Each of the following in its capacity as such: (a) the Debtors and the Reorganized Debtors (and all parties claiming derivatively or through the Debtors); (b) the DIP Facility Lenders and the DIP Facility Administrative Agent; (c) the Investors; (d) the Creditors’ Committee and the members thereof; and (e) each holder of a Claim voting to accept the Plan.

128. Reorganized A&P: The Great Atlantic & Pacific Tea Company, Inc., or any successor thereto by merger, consolidation, or otherwise, including any holding company created as part of the Restructuring Transactions that holds, directly or indirectly, substantially all of the assets of the Reorganized Debtors, on or after the Effective Date.

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129. Reorganized A&P Bylaws: The bylaws of Reorganized A&P, substantially in the form contained in the Plan Supplement.

130. Reorganized A&P Charter: The amended and restated certificate of incorporation of Reorganized A&P, substantially in the form contained in the Plan Supplement.

131. Reorganized Debtors: The Debtors, in each case, or any successor thereto by merger, consolidation, or otherwise, on or after the Effective Date.

132. Replacement Second Lien Notes: Notes that may be issued by the Debtors or Reorganized Debtors on terms, to be disclosed no later than ten days before the objection deadline for the Confirmation Hearing, to be attached as an Exhibit to the Plan Supplement and as otherwise acceptable to the Investors.

133. Restructuring Transactions: Those certain transactions described in Article IV.T, including the sale and issuance of the NewCo Equity, the New Second Lien Notes and the New Convertible Third Lien Notes pursuant to the Securities Purchase Agreements.

134. Schedules: The schedules of assets and liabilities, schedules of Executory Contracts and Unexpired Leases, and statements of financial affairs filed by the Debtors pursuant to section 521 of the Bankruptcy Code and the Bankruptcy Rules.

135. Second Lien Cash Pool: Cash in an amount equal to the Second Lien Note Claims Allowed pursuant to Article III.C.1.b hereof.

136. Second Lien Indenture: That certain indenture dated as of August 4, 2009, as amended, supplemented, or modified from time to time, by and between by and between the Debtors and the Second Lien Trustee.

137. Second Lien Note Claims: Any and all claims arising under the Second Lien Notes or the Second Lien Indenture.

138. Second Lien Notes: The 11.375% senior second lien notes due 2015 issued pursuant to the Second Lien Indenture.

139. Second Lien Professional Fee Cap: As defined in Article II.A.

140. Second Lien Trustee: Wells Fargo Bank, National Association, in its capacity as successor trustee and collateral agent under the Second Lien Indenture.

141. Secured Claim: A Claim: (a) secured by a Lien on collateral to the extent of the value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code or (b) subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code.

142. Secured Tax Claim: Any Secured Claim that, absent its secured status, would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code (determined irrespective of time limitations), including any related Secured Claim for penalties.

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143. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

144. Securities Purchase Agreements: Those certain amended and restated agreements dated as of November 3, 2011, as may be amended by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors in accordance with their terms, between the Debtors and the Investors documenting the New Money Commitment and attached (a) to the Securities Purchase Agreements Order and (b) as an Exhibit to the Plan Supplement.

145. Securities Purchase Agreements Order: The Order Authorizing The Debtors To (A) Enter Into Certain Securities Purchase Agreements For A $490 Million New Capital Investment And (B) Pay Certain Fees In Connection Therewith, Each To Support Debtors’ Plan Of Reorganization [Docket No. 2962] entered by the Bankruptcy Court on December 6, 2011.

146. Security: As defined in section 2(a)(1) of the Securities Act, which as provided herein, shall include (i) the NewCo Equity, the New Second Lien Notes, the New Convertible Third Lien Notes and the Investment Warrants issued on the terms and conditions set forth therein and as provided in the Securities Purchase Agreements (and as approved by the Securities Purchase Agreements Order) and (ii) the Replacement Second Lien Notes, if issued pursuant to the Plan.

147. SEIU: The Service Employees International Union.

148. SEIU Local Union: SEIU local union 1199.

149. Servicer: An indenture trustee, agent, servicer, or other authorized representative of holders of Claims or Interests recognized by the Debtors.

150. Settlement Procedures Order: The Order Authorizing and Approving Procedures for Settling Certain Claims and Causes of Action Brought by or Against the Debtors entered by the Bankruptcy Court on March 10, 2011 [Docket No. 1002].

151. Solicitation Procedures Order: The Order Approving: (A) The Adequacy Of The Debtors’ Disclosure Statement; (B) The Solicitation And Notice Procedures With Respect To Confirmation Of The Debtors’ Proposed Chapter 11 Plan; (C) The Form Of Various Ballots And Notices In Connection Therewith; And (D) The Scheduling Of Certain Dates With Respect Thereto entered by the Bankruptcy Court on [            ]. [Docket No.             ].

152. Subordinated Claim: (a) any Claim against the Debtors arising from rescission of a purchase or sale of a security of the Debtors or an Affiliate of the Debtors, for damages arising from the purchase or sale of such a security, or for reimbursement or contribution allowed under section 502 of the Bankruptcy Code on account of such a Claim; or (b) any Claim that is subordinated, pursuant to Section 510 of the Bankruptcy Code or otherwise, by a Final Order.

153. Substantive Consolidation Settlement: The compromise and settlement of substantive consolidation issues, as described in Article III.A herein.

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154. Tengelmann: Tengelmann Warenhandelsgesellschaft KG, a partnership organized under the laws of the Federal Republic of Germany, and its affiliates.

155. Third Party Release: As defined in Article VIII.E.

156. Trade Claims: All Claims held by Trade Creditors against the Debtors; provided that, Trade Claims shall not include Administrative Claims.

157. Trade Claims Cash Pool: A Cash pool up to $10 million, separate and apart from the Unsecured Creditor Cash Pool, to the extent approved by the Bankruptcy Court, from which discretionary Cash distributions may be made to holders of Allowed Trade Claims who enter into trade agreements acceptable to the Debtors and the Investors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) prior to the Effective Date (to take effect upon and following the Effective Date), all as described in Exhibit A attached hereto.

158. Trade Creditors: All trade creditors who will have ongoing go-forward business relationships with the Reorganized Debtors as of and after the Effective Date.

159. Transaction Expenses: As defined in the Securities Purchase Agreements and as approved by the Securities Purchase Agreements Order.

160. UFCW: The United Food and Commercial Workers.

161. UFCW Local Unions: The following local unions affiliated with the UFCW: 27; 100R; 152; 338; 342; 371; 464A; 1034; 1245; 1262; 1360; 1500; and 1776.

162. Unclaimed Distribution: Any distribution under the Plan on account of an Allowed Claim to a holder that has not: (a) accepted a particular distribution or, in the case of distributions made by check, negotiated such check; (b) given notice to the Reorganized Debtors of an intent to accept a particular distribution; (c) responded to the Debtors’ or Reorganized Debtors’ requests for information necessary to facilitate a particular distribution; or (d) taken any other action necessary to facilitate such distribution.

163. Unexpired Lease: A lease of nonresidential real property to which one or more of the Debtors is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.

164. Unimpaired: With respect to a Class of Claims or Interests, a Class of Claims or Interests that is unimpaired within the meaning of section 1124 of the Bankruptcy Code.

165. Union Claims: Any and all Claims against the Debtors held by parties subject to the Union Settlement Agreements and the Modified Collective Bargaining Agreements and related term sheets.

166. Union Settlement Agreements: The Union Protections in Term Sheets attached as Exhibit B hereto.

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167. United States Trustee: The United States Trustee for the Southern District of New York.

168. Unsecured Claims: Collectively, Convertible Notes Claims, 9.125% Senior Note Claims, Quarterly Interest Bond Claims, Trade Claims, Guaranteed Landlord Claims, Pension Withdrawal Claims and General Unsecured Claims.

169. Unsecured Creditor Cash Pool: A total of $40 million of Cash to be distributed to holders of Allowed Unsecured Claims and pursuant to the Substantive Consolidation Settlement.

170. Voting Deadline: That date which shall be the final date by which a holder of a Claim may vote to accept or reject the Plan, which date is set forth in the Solicitation Procedures Order.

171. Voting Record Date: That date for determining which holders of Claims and Interests are entitled to vote to accept or reject the Plan, which date is set forth in the Solicitation Procedures Order.

172. Wilmington Trust: Wilmington Trust Company, N.A., in its capacity as indenture trustee under the 1991 Indenture and the 2007 Indenture, as applicable.

173. Yucaipa: The Yucaipa Companies, LLC and their affiliated funds, including Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP.

B. Rules of Interpretation

1. For purposes of the Plan: (a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (b) unless otherwise specified, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (c) unless otherwise specified, any reference herein to an existing document, schedule, or exhibit, shall mean such document, schedule, or exhibit, as it may have been or may be amended, modified, or supplemented; (d) unless otherwise specified, all references herein to “Articles” are references to Articles hereof or hereto; (e) the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to any particular portion of the Plan; (f) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (g) unless otherwise specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; (h) unless otherwise specified herein, any reference to the term “including” herein shall mean “including without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; and (i) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.

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2. The provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein.

3. Except to the extent the Bankruptcy Code or Bankruptcy Rules apply, and subject to the provisions of any contract, lease, instrument, release, indenture, or other agreement or document entered into expressly in connection herewith, the rights and obligations arising hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof.

ARTICLE II.

ADMINISTRATIVE CLAIMS, PROFESSIONAL CLAIMS, DIP FACILITY CLAIMS,

PRIORITY TAX CLAIMS AND UNITED STATES TRUSTEE STATUTORY FEES

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Professional Claims, DIP Facility Claims, and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims set forth in Article III herein.

A. Administrative Claims

Unless otherwise agreed to by the holder of an Allowed Administrative Claim and the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, each holder of an Allowed Administrative Claim (other than of a Professional Claim), including any Allowed Administrative Claim of the Notes Trustee or Second Lien Trustee, will receive in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim either: (1) on the Effective Date, or as soon as practicable thereafter, (2) if the Administrative Claim is not Allowed as of the Effective Date, no later than 30 days after the date on which an order Allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter, (3) if the Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after the Commencement Date, pursuant to the terms and conditions of the particular transaction giving rise to such Allowed Administrative Claims, without any further action by the holders of such Allowed Administrative Claims, (4) for any amounts owed pursuant to the Securities Purchase Agreements, in accordance with the Securities Purchase Agreements or as allowed pursuant to the Securities Purchase Agreements Order or (5) for any professional fee and expense amounts owed pursuant to the Union Settlement Agreements, in accordance with the Union Settlement Agreements, not to exceed $2.75 million pursuant to the terms thereof. For the avoidance of doubt, all reasonable fees and expenses that are submitted to the Debtors and the Creditors’ Committee of the Notes Trustee (and its counsel, agents, and advisors) that are provided for under the Notes Indentures, as applicable, shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, without a reduction to the recoveries of applicable holders of Allowed Claims only if Classes E, F and G (defined below) each vote in favor of the Plan.

Additionally, the reasonable and documented fees and expenses of (a) the Second Lien Trustee and Seward & Kissell LLP in its capacity as counsel to the Second Lien Trustee, and (b) Brown Rudnick LLP and Miller Buckfire & Co. LLC in their capacities as advisors to the Second Lien Trustee and/or the Ad Hoc Consortium (as defined in the Plan Support Agreement,

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and as applicable) submitted to the Debtors (subject to redaction to preserve attorney-client privilege) shall be Administrative Claims Allowed against the Debtors’ estates payable on the Effective Date in an aggregate amount not to exceed $1,800,000.00 plus any fees and expenses payable by the Debtors pursuant to Paragraph 15(e)(ii) of the Final DIP Order that remain unpaid as of the Effective Date (the “Second Lien Professional Fee Cap”); provided that the foregoing shall not in any way limit, waive, or modify (x) the rights of the Second Lien Trustee and its attorneys, professionals, and advisors to seek payment and/or reimbursement of fees, costs, and expenses pursuant to the Second Lien Indenture, including any such fees, costs, and expenses exceeding the Second Lien Professional Fee Cap or (y) any party’s ability to contest any such additional fees or expenses sought under clause (x) hereof; provided further that the foregoing shall not limit nor be deemed to limit fees and expenses payable by the Debtors pursuant to Paragraph 15(e)(ii) of the Final DIP Order). For the avoidance of doubt, the fees and expenses payable pursuant to this paragraph: (i) shall not be subject to a request for payment of Administrative Claims (other than with respect to fees and expenses requested pursuant to clause (x) of this paragraph) and (ii) shall not reduce the recoveries of the holders of Allowed Second Lien Note Claims (other than through the Second Lien Trustee’s exercise of its charging lien under Section 7.07 of the Second Lien Indenture in accordance with Article VII.A.3 hereof).

Except as otherwise provided in this Article II.A, unless previously filed, requests for payment of Administrative Claims (other than requests for the payment of Transaction Expenses, which shall be governed pursuant to the terms of the Securities Purchase Agreements and the Securities Purchase Agreements Order) must be filed and served on the Reorganized Debtors no later than the Administrative Claims Bar Date pursuant to the procedures specified in the Confirmation Order and the notice of entry of the Confirmation Order. Holders of Administrative Claims that are required to file and serve a request for payment of such Administrative Claims that do not file and serve such a request by the Administrative Claims Bar Date shall be forever barred, stopped and enjoined from asserting such Administrative Claims against the Debtors, the Reorganized Debtors or their property and Estates and such Administrative Claims shall be deemed discharged as of the Effective Date. For the avoidance of doubt, the payment of the Break-Up Fee and any Transaction Expenses shall be governed by the Securities Purchase Agreements and the Securities Purchase Agreements Order.

The UFCW Local Unions, on behalf of the employees represented by the UFCW Local Unions, shall accrue and shall be entitled to an Allowed Administrative Claim in the amount of the actual cash savings provided to the Debtors under the Modified Collective Bargaining Agreements from the effective date of the Union Settlement Agreements through Confirmation, as provided in the Union Settlement Agreements. Any such Administrative Claim will be capped at a maximum of $18 million based on cash savings provided in the fourth calendar quarter of 2011 and $7 million based on cash savings provided in the first calendar quarter of 2012, it being understood that if the cash savings during the fourth calendar quarter of 2011 are less than $18 million, any excess will be added to the $7 million cap for the first calendar quarter of 2012. If the actual cash savings provided to the Company under the Modified Collective Bargaining Agreements between the effective date of the Union Settlement Agreements and Confirmation exceeds the amounts of the caps described above, any excess savings shall be treated as an Allowed Administrative Claim that is subordinated in priority and (to the extent relevant) payment timing to any other Allowed Administrative Claims in the Chapter 11 Cases. In any event, any such Allowed Administrative Claim shall be waived, extinguished, and forever discharged upon Confirmation of a Plan which contemplates the continued operation of a chain of grocery stores, by either the Company or a buyer through a plan-related sale that is otherwise consistent with the Union Settlement Agreements.

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B. Professional Claims

1. Final Fee Applications. All final requests for payment of Professional Claims shall be filed and served no later than 60 days after the Confirmation Date. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts of such Professional Claims shall be determined by the Bankruptcy Court.

2. Professional Fee Escrow Account. In accordance with Article II.B.3 hereof, on the Confirmation Date, the Debtors shall establish and fund the Professional Fee Escrow Account with Cash equal to the aggregate Professional Fee Reserve Amount for all Professionals. The Professional Fee Escrow Account shall be maintained in trust for the Professionals. Except as provided in the last sentence of this paragraph, such funds shall not be considered property of the estates of the Debtors or Reorganized Debtors, as applicable. The amount of Professional Claims owing to the Professionals shall be paid in Cash to such Professionals by the Reorganized Debtors from the Professional Fee Escrow Account within 10 days after such Claims are Allowed by a Final Order. When all Allowed Professional Claims have been paid in full, amounts remaining in the Professional Fee Escrow Account, if any, shall revert to the Reorganized Debtors.

3. Professional Fee Reserve Amount. To receive payment for unbilled fees and expenses incurred through the Effective Date, the Professionals shall provide good faith estimates of their Professional Compensation prior to and as of the Effective Date and shall deliver such estimate to the Debtors no later than 10 days prior to the Confirmation Hearing, provided, however, that such estimate shall not be considered an admission with respect to the fees and expenses of such Professional. If a Professional does not provide an estimate, the Reorganized Debtors may estimate the unbilled fees and expenses of such Professional. The total amount so estimated as of the Effective Date shall comprise the Professional Fee Reserve Amount.

4. Post-Effective Date Fees and Expenses. Except as otherwise specifically provided in the Plan, from and after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, shall, without any further notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable legal, professional, or other fees and expenses related to implementation and Consummation incurred by the Debtors or Reorganized Debtors, as applicable. Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331 and 1103 of the Bankruptcy Code or the Interim Compensation Order in seeking retention or compensation for services rendered after such date shall terminate, and the Reorganized Debtors may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court.

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C. DIP Facility Claims

Except to the extent that a holder of an Allowed DIP Facility Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed DIP Facility Claim, each such Allowed Claim shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, provided such payments shall be distributed to the DIP Facility Administrative Agent on behalf of holders of such Allowed Claims.

D. Priority Tax Claims

With the reasonable consent of the Investors, each holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date shall receive one of the following treatments on account of such Claim (1) Cash, payable by the Debtors on the Effective Date, in an amount equal to the amount of such Allowed Priority Tax Claim, (2) Cash in an amount agreed to by the Debtor or Reorganized Debtor (on the Effective Date), as applicable, and such holder, provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim to occur at a later date, or (3) at the option of the Debtors (on the Effective Date) or the Reorganized Debtors (after the Effective Date), Cash in the aggregate amount of such Allowed Priority Tax Claim payable in installment payments over a period not more than five years after the Commencement Date pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors (on the Effective Date) or the Reorganized Debtors (after the Effective Date) and the holder of such Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.

ARTICLE III.

CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS

A. Substantive Consolidation Settlement

1. Issues Subject to Compromise: The Plan proposes, and its terms embody, a compromise and settlement of intercreditor issues relating to whether the liabilities and properties of the Debtors should be substantively consolidated for purposes of voting and distributions under the Plan. These issues include: (a) whether the elements necessary to obtain an order of substantive consolidation are satisfied in the Chapter 11 Case; (b) the value of the Debtors’ Estates on an individual and a consolidated basis, and the proper method of determining such value; (c) whether the Estate of each Debtor should be treated separately for purposes of making payments to holders of Claims; (d) whether it is possible to attribute particular Claims asserted in the Chapter 11 Case to a specific Debtor; (e) the value to be accorded to guarantees issued by one Debtor in favor of another Debtor; (f) the strength of the relative rights and positions of the different Classes of unsecured Claims with respect to disputes over substantive consolidation; (g) other issues having to do with the rights of certain Estates, Claims, or Classes of Claims vis-à-vis other Estates, Claims, or Classes of Claims; and (h) the amount and priority of Intercompany Claims and the potential voidability of certain intercompany transfers.

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2. Effect of Substantive Consolidation Settlement: Pursuant to the Substantive Consolidation Settlement embodied in the Plan, holders of Allowed Unsecured Claims will receive their Pro Rata share of the Unsecured Creditor Cash Pool. The Debtors believe that the substantive consolidation of the Debtors may adversely impact holders of Allowed (Class I) Guaranteed Landlord Claims and Allowed (Class J) Pension Withdrawal Claims because such holders may be entitled to a recovery from multiple operating Debtors on account of their Allowed (Class I) Guaranteed Landlord Claims and Allowed (Class J) Pension Withdrawal Claims. Therefore, in order to provide an equitable distribution to holders of Allowed Pension Withdrawal Claims and holders of Allowed Guaranteed Landlord Claims who vote to approve the Plan, in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent, the Plan and Substantive Consolidation Settlement provide for an enhanced recovery to these holders as provided in Article III.C.9.b and Article III.C.10.b. The terms of the Substantive Consolidation Settlement shall not be changed without the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a change that is not adverse to the Investors), and any change shall be made in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent.

As a result of the Substantive Consolidation Settlement, except as otherwise provided herein (including any exhibits or supplements hereto), and only for purposes of voting and distributions under the Plan: (a) the separate Chapter 11 Cases of the Debtors will be consolidated into the case of A&P as a single consolidated case; (b) all property of the Estate of each Debtor will be deemed to be property of the consolidated Estates; (c) all Claims against each Estate will be deemed to be Claims against the consolidated Estates, any Proof of Claim filed against one or more of the Debtors will be deemed to be a single Proof of Claim filed against the consolidated Estates, and all duplicate Proofs of Claim filed on account of a Claim representing a single liability (other than Claims filed against multiple Debtors on the basis of joint and several liability) will be deemed expunged; (d) no distributions under the Plan will be made on account of Intercompany Claims or Intercompany Interests; (e) Allowed Claims based on joint and several liability shall be deemed satisfied by a single distribution as if the Claim were held solely against one Debtor Entity; (f) except as provided in the Plan with respect to the treatment of Guaranteed Landlord Claims and Pension Withdrawal Claims, all Claims based upon pre-petition unsecured guarantees by one Debtor in favor of any other of the Debtors or other basis of co-Debtor liability will be eliminated (other than guarantees existing under assumed Executory Contracts or Unexpired Leases), and no distributions under the Plan will be made on account of Claims based upon such guarantees or other basis of co-Debtor liability; and (g) for purposes of determining the availability of the right of setoff under section 553 of the Bankruptcy Code, the Debtors will be treated as one consolidated entity so that, subject to the other provisions of section 553 of the Bankruptcy Code, pre-petition debts due to any of the Debtors may be set off against the pre-petition debts of any other of the Debtors.

The Plan will not result in the merger or otherwise affect the separate legal existence of each Debtor, other than with respect to voting and distribution rights under the Plan. The compromise plan structure will not (a) impair the validity or enforceability of guarantees that exist under or with respect to assumed Executory Contracts or Unexpired Leases; (b) affect valid, enforceable, and unavoidable Liens that would not otherwise be terminated under the Plan, except for Liens that secure a Claim that is eliminated by virtue of the plan structure and Liens against collateral that are extinguished by virtue of such plan structure; (c) have the effect of

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creating a Claim in a Class different from the Class in which a Claim would have been placed in the absence of such structure; or (d) affect the obligation of each of the Reorganized Debtors, pursuant to section 1930 of Title 28 of the United States Code, to pay quarterly fees to the Office of the United States Trustee until such time as each particular Debtor’s case is closed.

3. Approval of Substantive Consolidation Settlement: The Plan is deemed to be a motion under sections 105, 363 and 1123 of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules for approval of the compromise and settlement of the issues described above. The confirmation of the Plan shall constitute approval of this motion by the Bankruptcy Court, and the Confirmation Order shall contain findings supporting and conclusions approving the compromise and settlement as fair and equitable and within the bounds of reasonableness. The Debtors reserve their rights, with the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a decision by the Debtors or Reorganized Debtors that is not adverse to the Investors), to substantively consolidate the estates, in full, outside of the terms of Substantive Consolidation Settlement.

B. Classification of Claims and Interests

The Plan constitutes a separate plan of reorganization for each Debtor; provided, however, that the classifications, recoveries and voting rights set forth below reflect the Substantive Consolidation Settlement described above. Except for the Claims addressed in Article II above, all Claims and Interests are classified in the Classes set forth below pursuant to section 1122 of the Bankruptcy Code. As set forth above, in accordance with section 1123(a)(1) of the Bankruptcy Code, the Debtors have not classified Administrative Claims, Professional Claims, DIP Facility Claims or Priority Tax Claims. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or Interest is also classified in a particular Class for the purpose of voting and receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.

1. Class Identification: Below is a chart assigning each Class a letter for purposes of identifying each separate Class.

Class	Claim or Interest	Status	Voting Rights
A	Second Lien Note Claims	Impaired/Unimpaired	Entitled to Vote/Conclusively Presumed to Accept
B	Secured Tax Claims	Unimpaired	Conclusively Presumed to Accept
C	Other Secured Claims	Unimpaired	Conclusively Presumed to Accept
D	Other Priority Claims	Unimpaired	Conclusively Presumed to Accept
E	Convertible Notes Claims	Impaired	Entitled to Vote

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Class	Claim or Interest	Status	Voting Rights
F	9.125% Senior Note Claims	Impaired	Entitled to Vote
G	Quarterly Interest Bond Claims	Impaired	Entitled to Vote
H	Trade Claims	Impaired	Entitled to Vote
I	Guaranteed Landlord Claims	Impaired	Entitled to Vote
J	Pension Withdrawal Claims	Impaired	Entitled to Vote
K	Union Claims	Impaired	Entitled to Vote
L	General Unsecured Claims	Impaired	Entitled to Vote
M	Intercompany Claims	Impaired/Unimpaired	Deemed to Reject/ Conclusively Presumed to Accept
N	Interests in A&P	Impaired	Deemed to Reject
O	Intercompany Interests	Impaired/Unimpaired	Deemed to Reject/ Conclusively Presumed to Accept
P	Subordinated Claims	Impaired	Deemed to Reject

C. Treatment of Classes of Claims and Interests

1. Class A — Second Lien Note Claims

a. Classification: Class A consists of all Second Lien Note Claims.

b. Allowance: Second Lien Note Claims shall be Allowed in the aggregate amount of $309,660,000.00; provided the Allowed aggregate Second Lien Note Claims shall (x) increase by $108,785.00 for each day that the Effective Date occurs after March 1, 2012 and (y) decrease by $108,785.00 for each day that the Effective Date occurs before March 1, 2012. For the avoidance of doubt, Second Lien Note Claims Allowed pursuant to this Article III.C.1.b excludes and shall not include any Applicable Premium (as defined in the Second Lien Indenture), makewhole premium, prepayment penalty, or similar Claim arising under or related to the Second Lien Indenture or the Second Lien Notes.

c. Treatment: Except to the extent that a holder of an Allowed Class A Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class A Claim, each such holder of an Allowed Class A Claim shall receive:

(i) If Class A votes to accept the Plan or is presumed to have accepted the Plan: Cash distributed on the Effective Date in an amount equal to such Holder’s Pro Rata portion of the Second Lien Cash Pool.

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(ii) If Class A votes to reject the Plan: At the holder’s election, (A) Cash distributed on the Effective Date in an amount equal to such holder’s Pro Rata portion of the Second Lien Cash Pool (without any reduction on account of the Allowed amount of any Second Lien Note Claims that are satisfied with Replacement Second Lien Notes), or (B) Replacement Second Lien Notes with a present value equal to the Allowed amount of such holder’s Second Lien Note Claim (which may include any makewhole claim, prepayment penalty, or Applicable Premium Allowed by the Bankruptcy Court, if any, in addition to Second Lien Note Claims Allowed pursuant to Article III.C.1.b hereof).³

d. Voting: Class A is Impaired and holders of Allowed Class A Claims may vote to accept or reject the Plan; provided that the Debtors reserve the right to assert the treatment provided to holders of Second Lien Note Claims under this Article III.C.1 renders holders of Second Lien Note Claims Unimpaired.

2. Class B — Secured Tax Claims

a. Classification: Class B consists of all Secured Tax Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class B Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class B Claim, each such holder of an Allowed Class B Claim shall receive, at the option of the Debtors or the Reorganized Debtors (with the reasonable consent of the Investors), as applicable:

(i) Cash on the Initial Distribution Date, or as soon as practicable thereafter, in an amount equal to such Allowed Class B Claim; or

(ii) commencing on the Initial Distribution Date, or as soon as practicable thereafter, and continuing over a period not exceeding five years from the Commencement Date, equal semi-annual Cash payments in an aggregate amount equal to such Allowed Class B Claim, together with interest at the applicable non-default contract rate under non-bankruptcy law, subject to the option of the Debtors or the Reorganized Debtors to prepay the entire amount of such Allowed Claim during such time period.

c. Voting: Class B is Unimpaired, and the holders of Allowed Class B Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class B Claims are not entitled to vote to accept or reject the Plan.

³  Any holder of Second Lien Note Claims failing to timely submit a duly completed ballot and election form making an election with respect to Article III.C.1.c(ii) shall be deemed to have elected to receive the treatment provided by Article III.C.1.c(ii)(A) hereof.

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3. Class C — Other Secured Claims

a. Classification: Class C consists of all Other Secured Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class C Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class C Claim, each such holder of an Allowed Class C Claim shall, at the option of the Debtors or the Reorganized Debtors, as applicable, and the Investors:

(i) have its Allowed Class C Claim Reinstated and rendered Unimpaired in accordance with section 1124(2) of the Bankruptcy Code, notwithstanding any contractual provision or applicable non-bankruptcy law that entitles the holder of an Allowed Class C Claim to demand or receive payment of such Allowed Class C Claim prior to the stated maturity of such Allowed Class C Claim from and after the occurrence of a default; or

(ii) receive Cash in an amount equal to such Allowed Class C Claim, including any interest on such Allowed Class C Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code, on the later of the Initial Distribution Date and the date such Allowed Class C Claim becomes an Allowed Class C Claim, or as soon as practicable thereafter; or

(iii) receive the collateral securing its Allowed Class C Claim.

c. Voting: Class C is Unimpaired, and holders of Allowed Class C Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class C Claims are not entitled to vote to accept or reject the Plan.

4. Class D — Other Priority Claims

a. Classification: Class D consists of all Other Priority Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class D Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class D Claim, each such holder of an Allowed Class D Claim shall have its Allowed Class D Claim paid in full in Cash on the later of (i) the Initial Distribution Date, or as soon as practicable thereafter and (ii) the date such Class D Claim becomes Allowed, or as soon as practicable thereafter.

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c. Voting: Class D is Unimpaired, and holders of Allowed Class D Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class D Claims are not entitled to vote to accept or reject the Plan.

5. Class E — Convertible Notes Claims

a. Classification: Class E consists of all Convertible Note Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class E Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class E Claim, each holder of an Allowed Class E Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class E is Impaired and holders of Allowed Class E Claims are entitled to vote to accept or reject the Plan.

6. Class F — 9.125% Senior Note Claims

a. Classification: Class F consists of all 9.125% Senior Note Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class F Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class F Claim, each holder of an Allowed Class F Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class F is Impaired and holders of Allowed Class F Claims are entitled to vote to accept or reject the Plan.

7. Class G — Quarterly Interest Bond Claims

a. Classification: Class G consists of all Quarterly Interest Bond Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class G Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class G Claim, each holder of an Allowed Class G Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class G is Impaired and holders of Allowed Class G Claims are entitled to vote to accept or reject the Plan.

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8. Class H — Trade Claims

a. Classification: Class H consists of all Trade Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class H Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class H Claim, each holder of an Allowed Class H Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool; and (b) if such holder enters into a trade agreement acceptable to the Debtors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors before the Effective Date, that provides for a distribution from the Trade Claims Cash Pool, a distribution from the Trade Claims Cash Pool.

c. Voting: Class H is Impaired and holders of Allowed Class H Claims are entitled to vote to accept or reject the Plan.

9. Class I — Guaranteed Landlord Claims

a. Classification: Class I consists of all Guaranteed Landlord Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class I Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class I Claim, each holder of an Allowed Class I Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool or (b) if such holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s aggregate recovery for its Allowed Class I Claim is equal to the product of (x) what such holder would receive under clause (a) above for such Allowed Class I Claim (as adjusted for Pro Rata calculations) and (y) 1.46.

c. Voting: Class I is Impaired and holders of Allowed Class I Claims are entitled to vote to accept or reject the Plan.

10. Class J — Pension Withdrawal Claims

a. Classification: Class J consists of all Pension Withdrawal Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class J Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class J Claim, each holder of an Allowed Class J Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool

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or (b) if such holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s aggregate recovery for its Allowed Class J Claim is equal to the product of (x) what such holder would receive under clause (a) above for its Allowed Class J Claim (as adjusted for Pro Rata calculations) and (y) 2.35.

c. Voting: Class J is Impaired and holders of Allowed Class J Claims are entitled to vote to accept or reject the Plan.

11. Class K — Union Claims

a. Classification: Class K consists of all Union Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class K Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class K Claim, each holder of an Allowed Class K Claim shall receive the consideration set forth in the Union Settlement Agreements.

c. Voting: Class K is Impaired and holders of Allowed Class K Claims are entitled to vote to accept or reject the Plan.

12. Class L — General Unsecured Claims

a. Classification: Class L consists of all General Unsecured Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class L Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class L Claim, each holder of an Allowed Class L Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class L is Impaired and holders of Allowed Class L Claims are entitled to vote to accept or reject the Plan.

13. Class M — Intercompany Claims

a. Classification: Class M consists of all Intercompany Claims.

b. Treatment: Subject to the provisions of Article IV.T (“Restructuring Transactions”), holders of Allowed Class M Intercompany Claims shall not receive any distributions on account of such Allowed Class M Intercompany Claims; provided, however, the Debtors and Reorganized Debtors reserve the right to Reinstate any or all Allowed Class M Intercompany Claims on or after the Effective Date in accordance with section 1124 of the Bankruptcy Code and such Reinstated Intercompany Claims, including Intercompany Claims against non-Debtor affiliates, shall vest in the applicable Reorganized Debtor or its successor on the Effective Date free and clear of all Claims, Liens, charges, other encumbrances and interests.

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c. Voting: Class M is Impaired, and holders of Allowed Class M Intercompany Claims are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class M Intercompany Claims are Reinstated, in which case the holders of Allowed Class M Intercompany Claims are Unimpaired and are conclusively presumed to accept the Plan.

14. Class N — Interests in A&P

a. Classification: Class N consists of all Interests in A&P.

b. Treatment: Holders of Allowed Class N Interests shall not receive any distributions on account of such Allowed Class N Interests. On the Effective Date, all Class N Interests shall be canceled and extinguished.

c. Voting: Class N is Impaired, and holders of Allowed Class N Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class N Interests are not entitled to vote to accept or reject the Plan.

15. Class O — Intercompany Interests

a. Classification: Class O consists of all Intercompany Interests.

b. Treatment: Subject to the provisions of Article IV.T (“Restructuring Transactions”), holders of Allowed Class O Intercompany Interests shall not receive any distributions on account of such Allowed Class O Intercompany Interests; provided, however, the Debtors and the Reorganized Debtors reserve the right to Reinstate any or all Allowed Class O Intercompany Interests on or after the Effective Date in accordance with section 1124 of the Bankruptcy Code and such Reinstated Intercompany Interests, including Intercompany Interests in non-Debtor affiliates, shall vest in the applicable Reorganized Debtor or its successor on the Effective Date free and clear of all Claims, Liens, charges, other encumbrances and interests.

c. Voting: Class O is Impaired, and holders of Allowed Class O Intercompany Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Class O Intercompany Interests are Reinstated, in which case the holders of Allowed Class O Intercompany Interests are Unimpaired and are conclusively presumed to accept the Plan.

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16. Class P — Subordinated Claims

a. Classification: Class P consists of all Subordinated Claims.

b. Treatment: Holders of Allowed Class P Claims shall not receive any distributions on account of such Allowed Class P Claims. On the Effective Date, all Class P Claims shall be discharged.

c. Voting: Class P is Impaired and holders of Allowed Class P Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, holders of Allowed Class P Claims are not entitled to vote to accept or reject the Plan.

D. Special Provision Governing Vote Tabulation

Except as otherwise provided in the Disclosure Statement and the motion to approve the Disclosure Statement and its related exhibits: (i) if no holders of Claims eligible to vote in a particular Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the holders of such Claims in such Class; and (ii) any Class of Claims that does not have a holder of an Allowed Claim or Interest or a Claim temporarily allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.

E. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized Debtors’ rights in respect of any Unimpaired Claim, including all rights in respect of legal and equitable defenses to or setoffs or recoupments against the holder of any such Unimpaired Claim.

ARTICLE IV.

PROVISIONS FOR IMPLEMENTATION OF THE PLAN

A. Use of Proceeds from New Money Commitment and Exit Facility

Unless otherwise provided in the Plan or the Securities Purchase Agreements, the Debtors and Reorganized Debtors, as applicable, shall use the proceeds received from the New Money Commitment, together with proceeds from the Exit Facility and other funds held by the Debtors on the Effective Date, (i) to make cash distributions required by the Plan, (ii) to pay Transaction Expenses not previously paid, (iii) to pay other expenses of the Chapter 11 Cases, to the extent so ordered by the Bankruptcy Court, and (iv) for general corporate purposes.

B. General Settlement of Claims and Interests

Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, on the Effective Date, the provisions of the Plan shall constitute a good-faith compromise and settlement of all Claims and Interests and controversies resolved pursuant to the Plan.

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C. NewCo Equity

The issuance of the NewCo Equity by Reorganized A&P to the Investors on the Effective Date in consideration for the New Equity Investment is authorized without the need for any further corporate action or without any further action by the Debtors or Reorganized A&P, as applicable. Pursuant to the Plan, the issuance and distribution by Reorganized A&P on or after the Effective Date of shares of NewCo Equity to the Investors in consideration for the New Equity Investment (to the extent practicable, directly, or else through a Distribution Agent) to satisfy the Debtors’ obligations under the Securities Purchase Agreements, subject to dilution by the Management Equity Incentive Program and/or other agreement or as otherwise provided by the Securities Purchase Agreements, is hereby authorized. All of the shares of NewCo Equity issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. On the Effective Date, each of Reorganized A&P and the other Reorganized Debtors shall be a private company. As such, the Reorganized Debtors will not list the NewCo Equity on a national securities exchange as of the Effective Date.

D. Registration Exemptions

The offering, issuance, and distribution of any Securities pursuant to the Plan and any and all settlement agreements incorporated therein are expected to be exempt from applicable federal and state securities laws (including blue sky laws), registration and other requirements, including but not limited to, the registration and prospectus delivery requirements of section 5 of the Securities Act, pursuant to section 4(2) of the Securities Act, or another available exemption from registration under the Securities Act, as applicable. In addition, under section 1145 of the Bankruptcy Code, if applicable, any Securities issued pursuant to the Plan or any and all settlement agreements incorporated therein will be transferable under the Securities Act by the recipients thereof, subject to (1) the restrictions, if any, on the transferability of such Securities and instruments, including restrictions contained in the Reorganized A&P Charter and the Securities Purchase Agreements and (2) any other applicable regulatory and legal requirements.

E. Vesting of Assets in the Reorganized Debtors

Except as specifically or expressly provided in the Plan or any agreement, instrument, or other document incorporated in the Plan, on the Effective Date, all property of the Debtors’ Estates, all of the Debtors’ Causes of Action, and any property acquired by any of the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances (except for Liens, if any, that may be specifically granted to secure the Exit Facility, the New Second Lien Notes and the New Convertible Third Lien Notes, and if applicable, the Replacement Second Lien Notes and the Other Secured Claims). On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

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F. Cancellation of Notes, Instruments, Certificates and Other Documents

On the Effective Date, except as otherwise specifically provided for in the Plan or the Securities Purchase Agreements (and except for such Certificates, notes, or other instruments or documents evidencing indebtedness or obligations of the Debtors that are specifically Reinstated pursuant to the Plan): (1) the obligations of the Debtors under the DIP Facility, the 1991 Indenture, the 2007 Indenture, the Second Lien Indenture, the Convertible Notes, the 9.125% Senior Notes, the Quarterly Interest Bonds and the Second Lien Notes and any other Certificate, share, note, bond, indenture, purchase right, or other instrument or document directly or indirectly evidencing or creating any indebtedness or obligation of or ownership interest, equity or profits interest in the Debtors or any warrants, options or other securities exercisable or exchangeable for, or convertible into, debt, equity, ownership or profits interests in the Debtors giving rise to any Claim or Interest, and any options, or other securities exercisable or exchangeable for, or convertible into Interests or equity of the Debtors, shall be cancelled as to the Debtors; (2) the obligations of the Debtors under the DIP Facility, the 1991 Indenture, the 2007 Indenture, the Second Lien Indenture, the Convertible Notes, the 9.125% Senior Notes, the Quarterly Interest Bonds and the Second Lien Notes shall be fully released, settled, and compromised as to the Debtors and the non-Debtor Affiliates, and the Reorganized Debtors shall not have any continuing obligations thereunder except as otherwise provided in the Plan; and (3) the obligations of the Debtors, the Reorganized Debtors and the non-Debtor Affiliates, pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation or similar documents governing any shares, Certificates, notes, bonds, indentures, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of the Debtors shall be fully released, settled, and compromised; provided, however, that notwithstanding Consummation or the occurrence of the Effective Date, any indenture or agreement that governs the rights of the holder of a Claim or Interest shall continue in effect solely for purposes of (1) allowing holders to receive distributions under the Plan, (2) allowing and preserving the rights of the DIP Facility Administrative Agent, Second Lien Trustee, and Wilmington Trust, as provided in Article VII herein.

G. Reinstatement of Intercompany Claims and Interests

In the event that the Debtors elect to Reinstate Intercompany Claims or Intercompany Interests pursuant to Article III.C.13 or Article III.C.15, respectively, each Reorganized Debtor shall, without the need for any further corporate act or other action under any applicable law, regulation, order or rule, issue authorized new Equity Securities to the Reorganized Debtor that was that Debtor’s or non-Debtor Affiliate’s corporate parent prior to the Effective Date so that each Reorganized Debtor will retain its 100% ownership of its pre-Commencement Date subsidiaries. The foregoing may be modified by the Debtors and the Investors at any time.

H. Issuance of New Securities; Execution of Plan Documents

Except as otherwise provided in the Plan or the Securities Purchase Agreements, the Reorganized Debtors shall issue on the Effective Date all Securities, notes, instruments, Certificates, and other documents required to be issued pursuant to the Plan and the Securities Purchase Agreements (as approved by the Securities Purchase Agreements Order).

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I. Post-Confirmation Property Sales

To the extent the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, purchase or sell any property after the Confirmation Date and prior to the Effective Date, the Debtors or Reorganized Debtors, as applicable, may elect to purchase or sell such property pursuant to sections 363, 1123(a)(5)(D), 1141(c), and 1146(a) of the Bankruptcy Code.

J. Corporate Action

Each of the matters provided for by the Plan involving the corporate structure of the Debtors or corporate or related actions to be taken by or required of the Debtors or the Reorganized Debtors, whether taken prior to or as of the Effective Date, shall be deemed authorized, approved and ratified without the need for any further corporate action or without any further action by the Debtors or the Reorganized Debtors, holders of Claims or Interests, directors, managers or officers of the Debtors, the Reorganized Debtors, or the Investors, or any other Entity or Person, as applicable. Such actions include (1) the adoption and filing of the Reorganized A&P Charter and the adoption of the Reorganized A&P Bylaws, (2) the appointment of the New Board, (3) the adoption and implementation of the Management Equity Incentive Program, (4) the adoption of severance agreements (as applicable) without action by the New Board as, and to the extent, provided in section 1.11 of the Securities Purchase Agreements, (5) entering into the Management Services Agreement, (6) the authorization, issuance and distribution pursuant to the Plan and the Securities Purchase Agreements of the New Second Lien Notes, the New Convertible Third Lien Notes, the NewCo Equity, the Investment Warrants and any other Securities to be authorized, issued and distributed pursuant to the Plan and Securities Purchase Agreements, and (7) the consummation and implementation of the Exit Financing.

K. Certificate of Incorporation and Bylaws

The certificates of incorporation and bylaws (or other formation documents relating to limited liability companies, limited partnerships, or other forms of Entity) of the Debtors (other than A&P) shall be amended in a form as may be required to be consistent with the provisions of the Plan, the Securities Purchase Agreements and the Bankruptcy Code, and shall be in form and substance acceptable to the Investors. The certificate of incorporation and bylaws of A&P shall be as contained in the Plan Supplement and as acceptable to the Investors. The Reorganized A&P Charter will, among other things, (1) authorize the issuance of the shares of NewCo Equity; and (2) pursuant to and only to the extent required by section 1123(a)(6) of the Bankruptcy Code, include a provision prohibiting the issuance of non-voting Equity Securities.

After the Effective Date, each Reorganized Debtor may amend and restate its certificate of incorporation and other constituent documents as permitted by the laws of its respective state, province, or country of formation and its respective charter and bylaws.

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L. Effectuating Documents, Further Transactions

On and after the Effective Date, the Reorganized Debtors, and the officers and members of the boards of directors thereof, are authorized to and may issue, execute, deliver, file, or record such contracts, Securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan and the Securities Purchase Agreements and the Securities issued pursuant thereto in the name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorizations, or consents except for those expressly required pursuant to the Plan or the Securities Purchase Agreements.

M. Section 1146(a) Exemption

Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property pursuant to the Plan shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer tax, mortgage recording tax, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment. Such exemption specifically applies, without limitation, to (1) the Restructuring Transactions; (2) the creation of any mortgage, deed of trust, Lien or other security interest; (3) the making or assignment of any lease or sublease; (4) the issuance and/or distribution of NewCo Equity, any Replacement Second Lien Notes, the New Second Lien Notes, the New Convertible Third Lien Notes, the Investment Warrants and any other securities of the Debtors or the Reorganized Debtors; or (5) the making or delivery of any deed or other instrument of transfer under, in furtherance of or in connection with the Plan or the Securities Purchase Agreements, including: (a) any merger agreements; (b) agreements of consolidation, restructuring, disposition, liquidation, or dissolution; (c) deeds; (d) bills of sale; or (e) assignment executed in connection with any Restructuring Transaction occurring pursuant to the Plan or the Securities Purchase Agreements.

N. Directors and Officers of Reorganized A&P

On the Effective Date, the term of the current members of the board of directors of A&P shall expire, and the New Board shall be appointed pursuant to the Securities Purchase Agreements. On and after the Effective Date, each director or officer of Reorganized A&P shall serve pursuant to the terms of the Reorganized A&P Charter, the Reorganized A&P Bylaws, or other constituent documents, the Management Services Agreement, as applicable, and applicable state corporation law. Pursuant to the terms of the Securities Purchase Agreements and the Union Settlement Agreements, the New Board shall be reconstituted to consist of seven directors (or such larger number of directors as may be determined by the Investors in their discretion), of whom at least five directors shall be persons designated by the Investors, one person shall be a person designated by the UFCW (who (x) shall be an independent director and a grocery industry expert, and (y) shall not serve on behalf of, or take directions from, the UFCW), and one person shall be the Chief Executive Officer of the Reorganized Debtors. The Reorganized A&P Bylaws and the Reorganized A&P Charter shall provide that the New Board will be divided into three classes serving staggered three-year terms. Pursuant to the Securities Purchase Agreements, on or before the Confirmation Hearing, the Investors may provide for employment offers for the Executive Management Team (as defined in the Securities Purchase Agreements).

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O. Officers and Directors of Reorganized Debtors Other Than Reorganized A&P

Unless otherwise provided in the Debtors’ disclosure pursuant to section 1129(a)(5) of the Bankruptcy Code, the officers of each of the Reorganized Debtors, other than Reorganized A&P, shall continue to serve in their current capacities after the Effective Date. The classification and composition of the boards of directors of the Reorganized Debtors other than Reorganized A&P shall be consistent with their respective new certificates of incorporation and bylaws, if any. Each such director or officer shall serve from and after the Effective Date pursuant to the terms of the applicable certificate of incorporation, bylaws, other constituent documents, and applicable state corporation law.

P. Compensation, Pensions and Benefits Programs

1. Management Equity Incentive Program. The Management Equity Incentive Program for Reorganized A&P shall become effective on the Effective Date without need for further corporate action as contemplated by the Securities Purchase Agreements.

2. Employee and Retiree Benefits. Except with respect to any equity based awards, rejected employment agreements and any other rejected benefit or compensation plans, and subject to the terms and conditions of the Securities Purchase Agreements and the Union Settlement Agreements, on and after the Effective Date, the Reorganized Debtors may (1) honor, in the ordinary course of business, any contracts, agreements, policies, programs, and plans for compensation, including bonus compensation, health care benefits, disability benefits, travel benefits, savings, severance benefits, retirement benefits, welfare benefits, workers’ compensation insurance, and accidental death and dismemberment insurance for the directors, officers, and employees of any of the Debtors who served in such capacity at any time; and (2) honor, in the ordinary course of business, Claims of employees employed as of the Effective Date for accrued vacation time arising prior to the Commencement Date; provided, however, that the Debtors’ or Reorganized Debtors’ performance pursuant to any employment agreement that is not a rejected employment agreement will not entitle any Person to any benefit or alleged entitlement under any policy, program or plan that has expired or been terminated before the Effective Date, or restore, Reinstate, or revive any such benefit or alleged entitlement under any such policy, program, or plan; provided, further that any such assumed plans and obligation shall be subject to modification in accordance with their terms. Nothing in the Plan shall limit, diminish, or otherwise alter the Reorganized Debtors’ defenses, claims, Causes of Action, or other rights with respect to any such contracts, agreements, policies, programs, and plans, nor shall Confirmation of the Plan and/or Consummation of the Restructuring Transactions constitute a change of control under any such contracts, agreements, policies, programs, and plans.

3. Pensions. As of the Effective Date, the Reorganized Debtors shall continue the A&P Pension Plans in accordance with, and subject to, their terms, ERISA, and the Internal Revenue Code, and shall preserve all of their rights thereunder. The A&P Pension Claims and all Proofs of Claims filed on account thereof shall be deemed withdrawn as of the Effective Date without any further action of the Debtors, the Reorganized Debtors or the PBGC, and without any further action, order, or approval of the Bankruptcy Court.

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4. Workers’ Compensation Programs. As of the Effective Date, except as set forth in the Securities Purchase Agreements and Plan Supplement, the Debtors and the Reorganized Debtors shall continue to honor their obligations under: (i) all applicable workers’ compensation laws in states in which the Reorganized Debtors operate; and (ii) the Debtors’ (a) written contracts, agreements, and agreements of indemnity, in each case relating to workers’ compensation, (b) self-insurer workers’ compensation bonds, policies, programs, and plans for workers’ compensation and (c) workers’ compensation insurance. All Proofs of Claims on account of workers’ compensation shall be deemed withdrawn automatically and without any further notice to or action, order, or approval of the Bankruptcy Court; provided, however, that nothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or Reorganized Debtors’ defenses, Causes of Action, or other rights under applicable non-bankruptcy law with respect to any such contracts, agreements, policies, programs and plans; provided, further, that nothing herein shall be deemed to impose any obligations on the Debtors in addition to what is provided for under applicable state law.

Q. Intercompany Account Settlement

The Debtors and the Reorganized Debtors, and their respective Affiliates, will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable the Reorganized Debtors to satisfy their obligations under the Plan. Except as set forth herein, any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’ historical intercompany account settlement practices and will not violate the terms of the Plan.

R. Preservation of Rights of Action

Subject to the releases set forth in Article VIII.D and Article VIII.E below and waiver in Article IV.S, unless any of the Debtors’ Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Final Order, in accordance with section 1123(b) of the Bankruptcy Code, the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all of the Debtors’ Causes of Action, whether arising before or after the Commencement Date, including any actions specifically enumerated in the Plan Supplement, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date. The Reorganized Debtors may pursue such Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtors. No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any of the Causes of Action against it as any indication that the Debtors or the Reorganized Debtors will not pursue any and all of their available Causes of Action against it. The Debtors and the Reorganized Debtors expressly reserve all rights to prosecute any and all of their Causes of Action against any Entity, except as otherwise expressly provided in the Plan or a Final Order. Unless any of the Debtors’ Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Bankruptcy Court order, the Reorganized Debtors expressly reserve all such Causes of Action, for later adjudication, and, therefore no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.

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Further, subject to the releases set forth in Article VIII.D and Article VIII.E below, the Reorganized Debtors reserve and shall retain the foregoing Debtors’ Causes of Action notwithstanding the rejection or repudiation of any Executory Contract during the Chapter 11 Cases or pursuant to the Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that a Debtor may hold against any Entity shall vest in the Reorganized Debtors, as the case may be. The applicable Reorganized Debtor, through its authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order or approval of the Bankruptcy Court.

S. Avoidance Actions

The Debtors and Reorganized Debtors waive all Avoidance Actions, provided, however, that any Avoidance Action against an Entity that has filed a Claim against the Debtors is expressly preserved solely for the purposes of resolving Disputed Claims pursuant to Article VI.

T. Restructuring Transactions

On or prior to the Effective Date, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors may enter into such transactions, execute and deliver such agreements, instruments and other documents, and take any actions as may be necessary or appropriate to effect a corporate restructuring of their respective businesses or a corporate restructuring of the overall corporate structure of the Reorganized Debtors, as and to the extent provided therein, with the consent of the Investors. The Restructuring Transactions may include one or more inter-company mergers, consolidations, amalgamations, arrangements, continuances, restructurings, conversions, dissolutions, transfers, asset sales, liquidations, or other corporate transactions as may be determined by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors, as applicable, and the Investors, to be necessary or appropriate to implement the transactions provided for in the Securities Purchase Agreements. None of the Restructuring Transactions contemplated herein or in the Securities Purchase Agreements shall constitute a change of control under any agreement, contract or document of the Debtors or Reorganized Debtors, as applicable. Subject to the Securities Purchase Agreements, the actions to effect the Restructuring Transactions may include: (1) the execution and delivery of appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement, continuance, dissolution, sale, purchase, or liquidation containing terms that are consistent with the terms of the Plan and the Securities Purchase Agreements and that satisfy the requirements of applicable law and any other terms to which the relevant entities may agree; (2) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan and the Securities

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Purchase Agreements and having other terms for which the applicable parties agree; (3) the filing of appropriate certificates or articles of incorporation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or provincial law; (4) pledging, granting of liens or security interests over, assuming or guarantying obligations or taking such similar actions as may be necessary to preserve the rights and collateral interests of the secured creditors of the Debtors and their subsidiaries at all times prior to the effectiveness and consummation of the Plan; (5) the creation of a new holding company, as provided in the Securities Purchase Agreements, or other changes to the organizational structure of the Debtors or the Reorganized Debtors, as applicable, as determined by the Debtors or the Reorganized Debtors, as applicable, and the Investors; and (6) all other actions that the applicable entities determine to be necessary or appropriate, including making filings or recordings that may be required by applicable law in connection with the Restructuring Transactions or that are otherwise provided for in the Securities Purchase Agreements.

U. Corporate Existence

Except as otherwise provided in the Plan, each Debtor shall continue to exist after the Effective Date as a separate corporate Entity, limited liability company, partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation documents) are amended pursuant to the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be amended pursuant to the Plan and without any further notice to or action, order, or approval of the Bankruptcy Court or any other court of competent jurisdiction (other than any requisite filings required under applicable state, provincial, or federal law), provided, however, that the Investors may elect to have a new holding company formed pursuant to the Securities Purchase Agreements.

V. Tax Reporting Matters

All parties (including the Reorganized Debtors and holders of Claims and Interests) shall report for all federal income tax purposes in a manner consistent with the Plan.

W. Management Services Agreement

On the Effective Date, and pursuant to the terms of the Securities Purchase Agreements, Reorganized A&P or one of its Affiliates (as agreed among Yucaipa, Liberty Harbor, Mount Kellett and the Debtors or Reorganized Debtors, as applicable) shall enter into the Management Services Agreement with The Yucaipa Companies, LLC.

X. Adequate Assurance Deposits

Notwithstanding anything to the contrary in the Plan or in an order previously entered by the Bankruptcy Court, unless the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, with the reasonable consent of the Investors, otherwise agree, all adequate assurance deposits provided by the Debtors to utility providers pursuant to the Order Determining Adequate Assurance of Payment for Future Utility Services [Docket No. 503] shall be returned to the Reorganized Debtors within 10 business days of the Effective Date.

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ARTICLE V.

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

A. Rejection of Executory Contracts and Unexpired Leases

Except as otherwise provided herein and pursuant to the terms and conditions of the Securities Purchase Agreements, each Executory Contract and Unexpired Lease not previously assumed shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless any such Executory Contract or Unexpired Lease: (1) is listed on the schedule of “Assumed Executory Contracts and Unexpired Leases” in the Plan Supplement; (2) has been previously assumed by the Debtors by Final Order or has been assumed by the Debtors by order of the Bankruptcy Court as of the Effective Date (including retroactively), which order becomes a Final Order after the Effective Date; (3) is the subject of a motion to assume or reject pending as of the Effective Date; (4) is an Intercompany Contract, unless such Intercompany Contract previously was rejected by the Debtors pursuant to a Final Order, is the subject of a motion to reject pending on the Effective Date, or is listed on the schedule of “Rejected Executory Contracts and Unexpired Leases” in the Plan Supplement; or (5) is otherwise assumed pursuant to the terms herein.

The Confirmation Order will constitute an order of the Bankruptcy Court approving such rejections pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date. Counterparties to Executory Contracts or Unexpired Leases that are deemed rejected as of the Effective Date shall have the right to assert any Claim on account of the rejection of such Executory Contracts or Unexpired Leases, including under section 502(g) of the Bankruptcy Code, subject to compliance with the requirements herein. All Executory Contracts and Unexpired Leases rejected by the Debtors on or prior to the Confirmation Date will not be continuing obligations of the Debtors or Reorganized Debtors.

Further, the Plan Supplement will contain a schedule of “Rejected Executory Contracts and Unexpired Leases,” as may be amended from time to time with the consent, as provided in the Securities Purchase Agreements, of the Investors; provided, however, that any Executory Contract and Unexpired Lease not previously assumed, assumed and assigned, or rejected by an order of the Bankruptcy Court, and not listed in the schedule of “Rejected Executory Contracts and Unexpired Leases” will be rejected on the Effective Date, notwithstanding its exclusion from such schedule.

B. Assumption of Executory Contracts and Unexpired Leases

On the Effective Date, except as otherwise provided herein and pursuant to the terms and conditions of the Securities Purchase Agreements, in addition to those Executory Contracts and Unexpired Leases previously assumed by the Debtors pursuant to a Final Order (and not otherwise subsequently rejected prior to the Effective Date), the Debtors (in consultation with the

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Creditors’ Committee and the DIP Facility Administrative Agent) shall assume all of the Executory Contracts and Unexpired Leases listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” as may be amended from time to time, in the Plan Supplement and otherwise identified for assumption pursuant to Article V.A above. With respect to each such Executory Contract and Unexpired Lease listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors shall have designated a proposed Cure. The Confirmation Order shall constitute an order of the Bankruptcy Court approving any such assumptions pursuant to sections 365(a) and 1123 of the Bankruptcy Code; however, parties shall not be precluded from filing objections to the Debtors’ proposed Cure by the Cure Objection Deadline.

1. Modifications, Amendments, Supplements, Restatements, or Other Agreements. Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed by the Debtors or the Reorganized Debtors shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated hereunder; provided, however, that any anti-assignment provision in any assumed Executory Contract and/or Unexpired Lease shall be deemed invalid for the purposes of assumption and/or assignment pursuant to section 365 of the Bankruptcy Code in these Chapter 11 Cases, including assignment of any assumed Executory Contract and/or Unexpired Lease to any affiliate of the Debtors on or prior to the Effective Date. Confirmation of the Plan and Consummation of the Restructuring Transactions shall not constitute a change of control under any Unexpired Lease or Executory Contract assumed by the Debtors on or prior to the Effective Date. Any assignment by the Reorganized Debtors of an Executory Contract or Unexpired Lease after the Effective Date shall be governed by the terms of the Executory Contract or Unexpired Lease and applicable non-bankruptcy law.

Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

2. Proofs of Claim Based on Executory Contracts or Unexpired Leases that Have Been Assumed. Any and all Proofs of Claim based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including hereunder, except Proofs of Claim asserting Cures, pursuant to the order approving such assumption, including the Confirmation Order, shall be deemed disallowed as of the Effective Date without the need for any objection thereto or any further notice to or action, order, or approval of the Bankruptcy Court.

3. Assumption of Modified Collective Bargaining Agreements. Unless previously assumed by the Debtors, on the Effective Date, the Debtors, pursuant to section 365 of the Bankruptcy Code, shall assume (a) the Modified Collective Bargaining Agreements as provided in the Union Settlement Agreements and as approved by the Bankruptcy Court and (b) the Other Collective Bargaining Agreements. Notwithstanding any other provision of this Plan, the cure

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obligations, if any, related to the assumption of each of the Modified Collective Bargaining Agreements and the Other Collective Bargaining Agreements, shall be satisfied by the Reorganized Debtors by payment, in the ordinary course, of all obligations arising under the Modified Collective Bargaining Agreements and any of the Other Collective Bargaining Agreements, including grievance settlements and arbitration awards subject to the Union Settlement Agreements and related documents and side letters. All Proofs of Claim filed by the UFCW, the UFCW Local Unions, the SEIU and the SEIU Local Union for amounts due under any collective bargaining agreement shall be considered satisfied by the agreement and obligation to assume and cure in the ordinary course as provided herein.

C. Indemnification Obligations

Notwithstanding anything herein to the contrary, the Reorganized Debtors shall assume and be deemed to have assumed the Indemnification Obligations as of and on the Effective Date other than any Indemnification Obligation that was previously rejected by the Debtors pursuant to an order of the Bankruptcy Court or is the subject of a motion to reject filed by the Debtors that was pending as of the Effective Date; provided that the Reorganized Debtors shall assume and be deemed to have assumed Indemnification Obligations for a former director or officer that was not employed by, engaged by, or serving in such capacity for the Debtors at any time following November 1, 2010 only if the Debtor Release provided under Article VIII.D hereof is approved by the Bankruptcy Court with respect to such former director or officer; provided further that Indemnification Obligations assumed or deemed assumed by the Reorganized Debtors pursuant to this Article V.C shall not be limited to obligations arising from or related to claims settled or released pursuant to the Debtor Release. Each Indemnification Obligation that is assumed or deemed assumed pursuant to this Article V.C shall remain in full force and effect, shall not be modified, reduced, discharged, impaired, or otherwise affected in any way (whether by the Plan, a Restructuring Transaction, or otherwise), and shall be Unimpaired and unaffected, irrespective of when such obligation arose.

D. Insurance Policies

Each insurance policy shall be assumed by the applicable Debtor effective as of the Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code, to the extent such insurance policy is executory, unless such insurance policy previously was rejected by the Debtors pursuant to a Bankruptcy Court order, is the subject of a motion to reject pending on the Effective Date, or is included in the schedule of “Rejected Executory Contracts and Unexpired Leases” contained in the Plan Supplement. Notwithstanding anything to the contrary in the Plan or the Plan Supplement (including any other provision that purports to be preemptory or supervening), nothing in the Plan or the Plan Supplement shall in any way operate to, or have the effect of, impairing the legal, equitable or contractual rights of the Debtors’ insurers, if any, in any respect or the rights of the Debtors or any other party against the Debtors’ insurers or in respect of any insurance of the Debtors. The rights of the Debtors and the Debtors’ insurers vis-à-vis one another shall be determined under their respective insurance policies and any related agreements with the Debtors, if any, subject to the rights of the Debtors to assume any such policy or agreement in accordance with this provision.

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E. Objections to Assumption of Executory Contracts and Unexpired Leases Including Cure of Defaults

With respect to each of the Executory Contracts or Unexpired Leases listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) shall designate a proposed Cure, however, the assumption of such Executory Contracts or Unexpired Leases shall not be conditioned upon the disposition of all issues with respect to Cure.⁴ Such Cure shall be satisfied by the Debtors or their assignee, if any, by payment of the Cure in Cash on the Effective Date or as soon as reasonably practicable thereafter, or on such other terms as may be ordered by the Bankruptcy Court or agreed upon by the parties to the applicable Executory Contract or Unexpired Lease without any further notice to or action, order, or approval of the Bankruptcy Court. Any provisions or terms of the Executory Contracts or Unexpired Leases to be assumed pursuant to the Plan that are, or may be, alleged to be in default, shall be satisfied solely by Cure, or by an agreed-upon waiver of Cure. Nothing herein or in the Confirmation Order shall impact any unresolved Cure disputes or pending Cure objections filed by parties to Executory Contracts and Unexpired Leases that have been previously assumed by the Debtors pursuant to section 365 of the Bankruptcy Code.

Ten days prior to the objection deadline for the Confirmation Hearing, and subsequently as needed pursuant to the amendment of the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors shall file with the Bankruptcy Court and serve upon counterparties to such Executory Contracts and Unexpired Leases a notice of the proposed assumption that will (1) list the applicable Cure, if any, (2) describe the procedures for filing objections to the proposed assumption or Cure, and (3) explain the process by which related disputes will be resolved by the Bankruptcy Court.

Except with respect to Executory Contracts and Unexpired Leases in which the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the applicable counterparties have stipulated in writing to payment of Cure, all requests for payment of Cure that differ from the amounts proposed by the Debtors (i.e., Cure objections) must be filed with the Claims and Solicitation Agent on or before the Cure Objection Deadline. In addition, any non-Cure objection to the assumption of an Executory Contract or Unexpired Lease, to be deemed timely, must be filed with the Bankruptcy Court within fourteen days of receipt of the applicable notice of proposed assumption. To the extent counterparties file timely non-Cure objections to the assumption of any Executory Contracts or Unexpired Leases to be assumed pursuant to the Plan, and such disputes are not consensually resolved by the parties, such assumption shall be subject to entry of a Final Order approving such assumption, provided, that, such assumption will occur retroactively, at the discretion of the Debtors or Reorganized Debtors, to the Effective Date if approved by the Bankruptcy Court. Timely raised Cure and non-Cure objections to assumption may be litigated after the Effective Date.

⁴  For the avoidance of doubt, the Debtors’ assumption of the Executory Contracts and Unexpired Leases, pursuant to the Confirmation Order, shall occur as of the Effective Date despite any pending or unresolved objections to such assumptions based on Cure grounds.

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Any request for payment of Cure that is not timely filed shall be disallowed automatically and forever barred, estopped, and enjoined from assertion and shall not be enforceable against any Reorganized Debtor, without the need for any objection by the Reorganized Debtors or any further notice to or action, order, or approval of the Bankruptcy Court, and any Cure shall be deemed fully satisfied, released, and discharged upon payment by the Debtors of the amounts listed on the Debtors’ proposed Cure schedule, notwithstanding anything included in the Schedules or in any Proof of Claim to the contrary; provided, however, that nothing shall prevent the Reorganized Debtors from paying any Cure despite the failure of the relevant counterparty to file such request for payment of such Cure. The Reorganized Debtors also may settle any Cure without any further notice to or action, order, or approval of the Bankruptcy Court.

If the Debtors or Reorganized Debtors, as applicable, object to any Cure or any other matter related to assumption, the Bankruptcy Court shall determine the Allowed amount of such Cure and any related issues. If there is a dispute regarding such Cure, the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” within the meaning of section 365 of the Bankruptcy Code, or any other matter pertaining to assumption, then payment of Cure shall occur as soon as reasonably practicable after entry of a Final Order resolving such dispute, approving such assumption (and, if applicable, assignment), or as may be agreed upon by the Debtors or Reorganized Debtors, as applicable, and the counterparty to the Executory Contract or Unexpired Lease. Any counterparty to an Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption of any Executory Contract or Unexpired Lease and associated Cure will be deemed to have consented to such assumption and Cure. The Debtors or Reorganized Debtors, as applicable, reserve the right either to reject or nullify the assumption of any Executory Contract or Unexpired Lease within 45 days after a Final Order resolving an objection to assumption, or determining the Cure or any request for adequate assurance of future performance required to assume such Executory Contract or Unexpired Lease, is entered.

Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Cures, Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption.

F. Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases

Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall not constitute a termination of pre-existing obligations owed to the Debtors under such contracts or leases. In particular, notwithstanding any non-bankruptcy law to the contrary, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations on goods previously purchased by the contracting Debtors or Reorganized Debtors, as applicable, from counterparties to rejected or repudiated Executory Contracts.

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G. Claims Based on Rejection of Executory Contracts or Unexpired Leases

Unless otherwise provided by a Bankruptcy Court order, any Proofs of Claim asserting Claims arising from the rejection of the Executory Contracts and Unexpired Leases pursuant to the Plan or otherwise must be filed with the Claims and Solicitation Agent no later than 30 days after the later of the Effective Date or the effective date of rejection. In addition, any objection to the rejection of an Executory Contract or Unexpired Lease must be filed with the Bankruptcy Court no later than 30 days after the later of the Effective Date or the effective date of rejection. Any such objection will be scheduled to be heard by the Bankruptcy Court at the Debtors’ or Reorganized Debtors’, as applicable, first scheduled omnibus hearing for which such objection is timely filed.

H. Contracts, Intercompany Contracts, and Leases Entered Into After the Commencement Date

Contracts, Intercompany Contracts, and leases entered into after the Commencement Date by any Debtor, and any Executory Contracts and Unexpired Leases assumed by any Debtor, may be performed by the applicable Reorganized Debtor in the ordinary course of business.

I. Reservation of Rights

Neither the exclusion nor inclusion of any contract or lease in the Plan Supplement, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is any objection filed to the rejection of an Executory Contract or Unexpired Lease, the Debtors or Reorganized Debtors, as applicable, shall have 45 days after entry of a Final Order resolving such objection to alter their treatment of such contract or lease.

ARTICLE VI.

PROCEDURES FOR RESOLVING DISPUTED CLAIMS AND INTERESTS

A. Allowance of Claims and Interests

After the Effective Date, each Reorganized Debtor shall have and retain any and all rights and defenses such Debtor had with respect to any Claim or Interest immediately prior to the Effective Date, including the Causes of Action retained pursuant to Article IV.R above. Except as expressly provided in the Plan or in any order entered in the Chapter 11 Cases prior to the Effective Date (including the Confirmation Order), no Claim shall become an Allowed Claim unless and until (i) the Debtors or Reorganized Debtors, as applicable, agree that such Claim is Allowed, provided, however, the Debtors shall not (I) Allow or settle, or (II) seek to Allow or settle, in either case any Administrative Claim or Priority Claim in excess of $250,000 arising outside the ordinary course of business without the Investors’ consent, which consent shall not be unreasonably withheld or delayed; provided, that (w) each of the Investors shall be deemed a Negative Notice Party (as defined in the Settlement Procedures Order); (x) each of the Investors shall have standing to object to a settlement of a Claim proposed pursuant to the Settlement Procedures Order; (y) each of the Investors shall have the same consultation and information

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rights provided to the Creditors’ Committee and counsel for the DIP Facility Administrative Agent pursuant to paragraph 2(g) of the Settlement Procedures Order with respect to proposed settlements of Third-Party Claims and Debtors’ Claims (each as defined in the Settlement Procedures Order) and (z) the Debtors shall not propose a settlement of an Administrative Claim or a Priority Claim outside the ordinary course of business in excess of $250,000 pursuant to Paragraph 2(d) of the Settlement Procedures Order without the Investors’ prior written consent (which consent shall not be unreasonably withheld or delayed), or (ii) such Claim is deemed Allowed or the Bankruptcy Court has entered a Final Order, including the Confirmation Order, in the Chapter 11 Cases allowing such Claim or Interest. All settled claims approved prior to the Effective Date pursuant to a Final Order of the Bankruptcy Court, pursuant to Bankruptcy Rule 9019 or otherwise shall be binding on all parties.

B. Claims and Interests Administration Responsibilities

Except as otherwise specifically provided in the Plan or the Securities Purchase Agreements, after the Effective Date, the Reorganized Debtors shall have the sole authority (1) to file, withdraw, or litigate to judgment, objections to Claims or Interests, (2) to settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court, and (3) to administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court.

C. Estimation of Claims and Interests

Before or after the Effective Date, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, may (but are not required to) at any time request that the Bankruptcy Court estimate any Disputed Claim that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest or during the appeal relating to such objection. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Plan (including for purposes of distributions), and the relevant Reorganized Debtor may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.

D. Expungement or Adjustment to Paid, Satisfied, or Superseded Claims and Interests

Any Claim or Interest that has been paid, satisfied, or superseded, or any Claim or Interest that has been amended or superseded, may be adjusted or expunged on the Claims Register by the Reorganized Debtors without a claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

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E. No Interest

Unless otherwise specifically provided for in the Plan (including with respect to the Allowed amount of any Claims hereunder), required under applicable bankruptcy law, or agreed to by the Debtors, the Confirmation Order, or a postpetition agreement in writing between the Debtors and a holder of a Claim, postpetition interest shall not accrue or be paid on Claims, and no holder of a Claim shall be entitled to interest accruing on or after the Commencement Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim, if and when such Disputed Claim becomes an Allowed Claim.

F. DISALLOWANCE OF CLAIMS OR INTERESTS

EXCEPT AS OTHERWISE AGREED, ANY AND ALL PROOFS OF CLAIM FILED AFTER THE APPLICABLE DEADLINE FOR FILING SUCH PROOFS OF CLAIM SHALL BE DEEMED DISALLOWED AND EXPUNGED AS OF THE EFFECTIVE DATE WITHOUT ANY FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT, AND HOLDERS OF SUCH CLAIMS SHALL NOT RECEIVE ANY DISTRIBUTIONS ON ACCOUNT OF SUCH CLAIMS, UNLESS SUCH LATE PROOF OF CLAIM IS DEEMED TIMELY FILED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

All Claims of any Entity from which property is sought by the Debtors under section 542, 543, 550, or 553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors allege is a transferee of a transfer that is avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be disallowed if (1) the Entity, on the one hand, and the Debtors or the Reorganized Debtors, on the other hand, agree or the Bankruptcy Court has determined by Final Order that such Entity or transferee is liable to turn over any property or monies under any of the aforementioned sections of the Bankruptcy Code and (2) such Entity or transferee has failed to turn over such property by the date set forth in such agreement or Final Order.

G. Amendments to Claims

On or after the Effective Date, except as otherwise provided herein, a Claim may not be filed or amended without the authorization of the Bankruptcy Court or the Reorganized Debtors, and, to the extent such authorization is not received, any such new or amended Claim filed shall be deemed disallowed in full and expunged without any further notice to or action, order, or approval of the Bankruptcy Court.

H. No Distributions Pending Allowance

If an objection to a Claim or portion thereof is filed prior to the Effective Date, no payment or distribution provided under the Plan shall be made on account of such Claim or portion thereof, as applicable, unless and until such Disputed Claim becomes an Allowed Claim.

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I. Distributions After Allowance

To the extent that a Disputed Claim ultimately becomes an Allowed Claim, distributions, if any, shall be made to the holder of such Allowed Claim; however, the timing of such distributions(s) shall be at the sole reasonable discretion of the Debtors or Reorganized Debtors, and otherwise in accordance with the provisions of the Plan. As soon as practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim becomes a Final Order, the Distribution Agent shall provide to the holder of such Claim the distribution, if any, to which such holder is entitled under the Plan as of the Effective Date, without any interest to be paid on account of such Claim unless required under applicable bankruptcy law.

J. Disputed Claims Reserve

On the Effective Date (or as soon thereafter as is reasonably practicable), the Reorganized Debtors shall deposit in the Disputed Claims Reserve an amount of cash, as determined by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, from the Unsecured Creditor Cash Pool and Trade Claims Cash Pool that would likely have been distributed to the holders of all applicable Disputed Claims (that, if Allowed, would be entitled to participate in such Claims pools) as if such Disputed Claims had been Allowed Claims on the Effective Date, with the amount of such Allowed Claims to be determined, solely for the purposes of establishing reserves and for maximum distribution purposes, to be (a) the lesser of (i) the asserted amount of each Disputed Claim filed with the Bankruptcy Court as set forth in the non-duplicative Proof of Claim or as provided by the parties to the Debtors as further information with respect to the Proof of Claim, or (if no Proof of Claim was filed) scheduled by the Debtors, and (ii) the amount, if any, estimated by the Bankruptcy Court pursuant to section 502(c) of the Bankruptcy Code or ordered by other order of the Bankruptcy Court, or (b) the amount otherwise agreed to by the Debtors, the Creditors’ Committee, the Investors and the holder of such Disputed Claim for reserve purposes.

K. Distributions Following Resolution of All Claims

When all Disputed Claims are resolved and either become Allowed or are disallowed by Final Order, to the extent cash remains in the Disputed Claims Reserve after all holders of Disputed Claims that have become Allowed and have been paid the full amount they are entitled to pursuant to the treatment set forth for the appropriate Class under the Plan, then that excess cash shall be distributed to the Unsecured Creditor Cash Pool and holders of Allowed Unsecured Claims (to the extent they have not been paid in full) shall receive their Pro Rata share of the Unsecured Creditor Cash Pool.

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ARTICLE VII.

PROVISIONS GOVERNING DISTRIBUTIONS

A. Distributions on Account of Claims Allowed as of the Effective Date

1. Delivery of Distributions in General. Except as otherwise provided in the Plan or the Securities Purchase Agreements, a Final Order, or as otherwise agreed to by the relevant parties on the Distribution Date, the Distribution Agent shall make initial distributions under the Plan on account of Claims and Interests Allowed on or before the Effective Date, subject to the Reorganized Debtors’ right to object to Claims; provided, however, that (a) Allowed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice, and (b) Allowed Priority Tax Claims and Allowed Secured Tax Claims shall be paid in full in Cash on the Distribution Date or in installment payments over a period not more than five years after the Commencement Date pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim or Allowed Secured Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the holder of such Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.

2. Delivery of Distributions on account of DIP Facility Claims. The DIP Facility Administrative Agent: (a) shall be deemed to be the holder of all DIP Facility Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of Allowed DIP Facility Claims to or on behalf of the DIP Facility Administrative Agent; (b) shall hold or direct such distributions for the benefit of the holders of Allowed DIP Facility Claims, as applicable; and (c) shall arrange to deliver such distributions to or on behalf of such holders of Allowed DIP Facility Claims; provided, however, the DIP Facility Administrative Agent shall retain all rights as administrative agent under the DIP Facility Credit Agreement in connection with delivery of distributions to DIP Facility Lenders; and provided further, however, that the Debtors’ obligations to make distributions in accordance with Article II.C shall be deemed satisfied upon delivery of distributions to the DIP Facility Administrative Agent.

3. Delivery of Distributions on account of the Second Lien Note Claims. The Second Lien Trustee: (a) shall be deemed to be the holder of the Second Lien Note Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of such Allowed Second Lien Note Claims to the Second Lien Trustee or on behalf of the Second Lien Trustee, provided that the Second Lien Trustee has given its prior written consent to the Distribution Agent to make such distributions; (b) shall hold or direct such distributions for the benefit of the holders of the Allowed Second Lien Note Claims, as applicable; and (c) shall arrange to deliver such distributions to or on behalf of the holders of the Allowed Second Lien Note Claims; provided, however, the Second Lien Trustee shall retain all rights as trustee under the Second Lien Indenture in connection with (i) delivering distributions to the holders of Allowed Second Lien Note Claims in accordance with the Plan and the Second Lien Indenture, (ii) permitting the Second Lien Trustee to exercise its charging lien under Section 7.07 of the Second Lien Indenture and (iii) allowing the Second Lien Trustee to appear in the Chapter 11 Cases after the Effective Date with respect to issues related to distributions. For the avoidance of doubt, the Second Lien Trustee shall only be required to act to make distributions in accordance with the terms of the Plan. The Debtors’ obligations to make distributions in accordance with Article III.C.1 above, including with respect to distributions due on the Effective Date pursuant to the Plan Support Agreement, shall be deemed satisfied upon delivery of distributions to the Second Lien Trustee or, if consent of the Second Lien Trustee is given as provided above, to the Distribution Agent on behalf of the Second Lien Trustee, as provided for herein.

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4. Delivery of Distributions on account of Indenture Claims. Wilmington Trust as indenture trustee for the Notes Indentures: (a) shall be deemed to be the holder of all Indenture Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of Allowed Indenture Claims to or on behalf of Wilmington Trust; (b) shall hold or direct such distributions for the benefit of the holders of the Allowed Indenture Claims, as applicable; (c) shall arrange to deliver such distributions to or on behalf of the holders of the Allowed Indenture Claims; provided, however, Wilmington Trust shall retain all rights as the indenture trustee for the Convertible Notes, 9.125% Senior Notes and Quarterly Interest Bonds under the Notes Indentures in connection with delivery of distributions; and provided further, however, that the Debtors’ obligations to make distributions in accordance with Article III.C.5, Article III.C.6 and Article III.C.7 shall be deemed satisfied upon delivery of distributions to Wilmington Trust.

B. Distributions on Account of Claims Allowed After the Effective Date

1. Payments and Distributions on Disputed Claims. Except as otherwise provided in the Plan, a Final Order, or as agreed to by the relevant parties (including the Debtors, the Reorganized Debtors and/or the Investors, as applicable), distributions under the Plan on account of Disputed Claims that become Allowed after the Effective Date shall be made on the Periodic Distribution Date; provided, however, that (a) Disputed Claims that are Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors on or before the Effective Date that become Allowed after the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice and (b) Disputed Claims that are Priority Tax Claims or Secured Tax Claims that become Allowed Priority Tax Claims or Allowed Secured Tax Claims after the Effective Date shall be paid in full in Cash on the Periodic Distribution Date that is at least 30 days after the Disputed Claim becomes an Allowed Claim or over a five-year period as provided in section 1129(a)(9)(C) of the Bankruptcy Code with annual interest provided by applicable non-bankruptcy law.

2. Special Rules for Distributions to Holders of Disputed Claims. Notwithstanding any provision otherwise in the Plan and except as otherwise agreed by the relevant parties (including the Debtors, the Reorganized Debtors and/or the Investors, as applicable), (a) no partial payments and no partial distributions shall be made with respect to a Disputed Claim until all such disputes in connection with such Disputed Claim have been resolved by settlement or Final Order and (b) any Entity that holds both an Allowed Claim and a Disputed Claim shall not receive any distribution on the Allowed Claim unless and until all objections to the Disputed Claim have been resolved by settlement or Final Order or the Claims have been Allowed or expunged. All distributions made pursuant to the Plan on account of a Disputed Claim that is deemed an Allowed Claim by the Bankruptcy Court shall be made together with any dividends, payments, or other distributions made on account of, as well as any obligations arising from, the distributed property as if such Allowed Claim had been an Allowed Claim on the dates distributions were previously made to holders of Allowed Claims included in the applicable Class; provided, however, that no interest shall be paid on account of such Allowed Claims unless required under applicable bankruptcy law or specifically provided for in the Plan (including with respect to the Allowed amount of any Claims hereunder).

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C. Delivery of Distributions

1. Record Date for Distributions. On the Distribution Record Date, the Claims Register shall be closed and the Distribution Agent shall be authorized and entitled to recognize only those record holders listed on the Claims Register as of the close of business on the Distribution Record Date. Notwithstanding the foregoing, if a Claim or Interest, other than one based on a publicly traded Certificate is transferred less than 20 days before the Distribution Record Date, the Distribution Agent shall make distributions to the transferee only to the extent practical and in any event only if the relevant transfer form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor.

2. Distribution Process. Except as otherwise provided herein, the Distribution Agent shall make all distributions to holders of Allowed Claims required under the Plan, except that distributions to holders of Allowed Claims governed by a separate agreement and administered by a Servicer shall be deposited with the appropriate Servicer, at which time such distributions shall be deemed complete, and the Servicer shall deliver such distributions in accordance with the Plan and the terms of the governing agreement. Except as otherwise provided in the Plan, and notwithstanding any authority to the contrary, distributions to holders of Allowed Claims shall be made to holders of record as of the Distribution Record Date by the Distribution Agent or a Servicer, as appropriate: (a) to the signatory set forth on any of the Proofs of Claim filed by such holder or other representative identified therein (or at the last known addresses of such holder if no Proof of Claim is filed or if the Debtors have been notified in writing of a change of address); (b) at the addresses set forth in any written notices of address changes delivered to the Distribution Agent after the date of any related Proof of Claim; (c) in accordance with Federal Rule of Civil Procedure 4, as modified and made applicable by Bankruptcy Rule 7004 if no Proof of Claim has been filed and the Distribution Agent has not received a written notice of a change of address; (d) at the addresses reflected in the Schedules if no Proof of Claim has been filed and the Distribution Agent has not received a written notice of a change of address; or (e) on any counsel that has appeared in the Chapter 11 Cases on the holder’s behalf. The Debtors, the Reorganized Debtors, and the Distribution Agent, as applicable, shall not incur any liability whatsoever on account of any distributions under the Plan.

3. Accrual of Dividends and Other Rights. For purposes of determining the accrual of dividends or other rights after the Effective Date, the NewCo Equity shall be deemed issued as of the Effective Date regardless of the date on which it is actually issued, dated, authenticated, or distributed; provided however, the Reorganized Debtors shall not pay any such dividends or distribute such other rights, if any, until after the issuance of NewCo Equity actually take place.

4. Compliance Matters. In connection with the Plan, to the extent applicable, the Reorganized Debtors and the Distribution Agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the

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Distribution Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances.

5. Foreign Currency Exchange Rate. Except as otherwise provided in the Plan or a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate as of Monday, December 13, 2010 as quoted at 4:00 p.m. (EDT), mid-range spot rate of exchange for the applicable currency as published in The Wall Street Journal, National Edition, on Monday, December 13, 2010.

6. Fractional, De Minimis, Undeliverable, and Unclaimed Distributions.

a. Fractional Distributions. Notwithstanding any other provision of the Plan to the contrary, the Distribution Agent shall not be required to make distributions or payments of fractions of dollars. Whenever any payment of Cash of a fraction of a dollar pursuant to the Plan would otherwise be required, the actual payment shall reflect a rounding of such fraction to the nearest whole dollar (up or down), with half dollars or less being rounded down.

b. De Minimis Distributions. Neither the Distribution Agent nor any Servicer shall have any obligation to make a distribution on account of an Allowed Claim if (i) the aggregate amount of all distributions authorized to be made on the Periodic Distribution Date in question is or has an economic value less than $250,000, or (ii) the amount to be distributed to the specific holder of an Allowed Claim on the particular Periodic Distribution Date does not constitute a final distribution to such holder. The Distribution Agent need not make any distribution on account of an Allowed Claim to a specific holder if such distribution on such Allowed Claim is less than $25.00.

c. Undeliverable Distributions. If any distribution to a holder of an Allowed Claim is returned to a Distribution Agent as undeliverable, no further distributions shall be made to such holder unless and until such Distribution Agent is notified in writing of such holder’s then-current address, at which time all currently due missed distributions shall be made to such holder on the next Periodic Distribution Date. Undeliverable distributions shall remain in the possession of the Reorganized Debtors until such time as a distribution becomes deliverable, or such distribution reverts to the Reorganized Debtors or is cancelled pursuant to Article VII.C.6.d below, and shall not be supplemented with any interest, dividends, or other accruals of any kind.

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d. Reversion. Any distribution under the Plan that is an Unclaimed Distribution for a period of six months after distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and such Unclaimed Distribution shall revest in the Reorganized Debtors and, to the extent such Unclaimed Distribution is NewCo Equity, shall be deemed cancelled. Upon such revesting, the Claim of any holder or its successors with respect to such property shall be cancelled, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary. The provisions of the Plan regarding undeliverable distributions and Unclaimed Distributions shall apply with equal force to distributions that are issued by the Debtors, the Reorganized Debtors, or the Distribution Agent made pursuant to any indenture or Certificate (but only with respect to the initial distribution by the Servicer to holders that are entitled to be recognized under the relevant indenture or Certificate and not with respect to Entities to whom those recognized holders distribute), notwithstanding any provision in such indenture or Certificate to the contrary and notwithstanding any otherwise applicable federal or state escheat, abandoned, or unclaimed property law.

7. Surrender of Cancelled Instruments or Securities. Except as otherwise provided in the Plan, on the Effective Date, or as soon as reasonably practicable thereafter, each holder of a Certificate shall be deemed to have surrendered such Certificate to the Distribution Agent or a Servicer (to the extent the relevant Claim is governed by an agreement and administered by a Servicer). Such Certificate shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such Certificate. Notwithstanding that a holder of a Certificate will be deemed to have surrendered such Certificate, regardless of any actual surrender, the deemed surrender of a Certificate shall have the same effect as if such holder had actually surrendered such Certificate (including but not limited to the discharge of such holder’s Claim pursuant to the Plan), and such holder shall be deemed to have relinquished all rights, Claims and interests with respect to such Certificate. Notwithstanding the foregoing paragraph, this Article VII.C.7 shall not apply to any Claims Reinstated pursuant to the terms of the Plan.

8. Lost, Stolen, Mutilated, or Destroyed Debt Securities. Any holder of Allowed Claims evidenced by a Certificate that has been lost, stolen, mutilated, or destroyed shall, in lieu of surrendering such Certificate, deliver to the Distribution Agent or Servicer, if applicable, an affidavit of loss acceptable to the Distribution Agent or Servicer setting forth the unavailability of the Certificate, and such additional indemnity as may be required reasonably by the Distribution Agent or Servicer to hold the Distribution Agent or Servicer harmless from any damages, liabilities, or costs incurred in treating such holder as a holder of an Allowed Claim. Upon compliance with this procedure by a holder of an Allowed Claim evidenced by such a lost, stolen, mutilated, or destroyed Certificate, such holder shall, for all purposes pursuant to the Plan, be deemed to have surrendered such Certificate.

D. Claims Paid or Payable by Third Parties

1. Claims Paid by Third Parties. The Claims and Solicitation Agent shall reduce in full a Claim, and such Claim shall be disallowed without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent that the holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor or Reorganized Debtor. To the extent a holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not a Debtor or a

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Reorganized Debtor on account of such Claim, such holder shall, within two weeks of receipt thereof, repay or return the distribution to the applicable Reorganized Debtor, to the extent the holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan.

2. Claims Payable by Insurance Carriers. No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’ insurers agrees to satisfy in full a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement, such Claim may be expunged to the extent of any agreed upon satisfaction on the Claims Register by the Claims and Solicitation Agent without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

3. Applicability of Insurance Policies. Except as otherwise provided in the Plan, distributions to holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity may hold against any other Entity, including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such insurers.

E. Setoffs

Except as otherwise expressly provided for in the Plan or a Final Order of the Bankruptcy Code, each Reorganized Debtor pursuant to the Bankruptcy Code (including section 553 of the Bankruptcy Code), applicable non-bankruptcy law, or as may be agreed to by the holder of a Claim, may set off against any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Allowed Claim (before any distribution is made on account of such Allowed Claim), any Claims, rights, and Causes of Action of any nature that such Debtor or Reorganized Debtor, as applicable, may hold against the holder of such Allowed Claim, to the extent such Claims, rights, or Causes of Action against such holder have not been otherwise compromised or settled on or prior to the Effective Date (whether pursuant to the Plan or otherwise); provided, however, that neither the failure to effect such a setoff nor the allowance of any Claim pursuant to the Plan shall constitute a waiver or release by such Reorganized Debtor of any such Claims, rights, and Causes of Action that such Reorganized Debtor may possess against such holder. In no event shall any Holder of a Claim be entitled to set off any Claim against any Claim, right, or Cause of Action of a Debtor or a Reorganized Debtor, as applicable, unless such Holder has timely filed a Proof of Claim with the Bankruptcy Court preserving such setoff.

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F. Allocation Between Principal and Accrued Interest

Except as otherwise provided in the Plan, the aggregate consideration paid to holders with respect to their Allowed Claims shall be treated pursuant to the Plan as allocated first to the principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest, if any permitted pursuant to the Plan, accrued through the Effective Date.

ARTICLE VIII.

EFFECT OF CONFIRMATION OF THE PLAN

A. DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS

EXCEPT AS OTHERWISE PROVIDED IN THE PLAN AND EFFECTIVE AS OF THE EFFECTIVE DATE: (1) THE RIGHTS AFFORDED IN THE PLAN AND THE TREATMENT OF ALL CLAIMS AND INTERESTS SHALL BE IN EXCHANGE FOR AND IN COMPLETE SATISFACTION, DISCHARGE, AND RELEASE OF ALL CLAIMS AND INTERESTS OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON SUCH CLAIMS FROM AND AFTER THE COMMENCEMENT DATE, AGAINST THE DEBTORS OR ANY OF THEIR ASSETS, PROPERTY, OR ESTATES; (2) THE PLAN SHALL BIND ALL HOLDERS OF CLAIMS AND INTERESTS, NOTWITHSTANDING WHETHER ANY SUCH HOLDERS FAILED TO VOTE TO ACCEPT OR REJECT THE PLAN, VOTED TO ACCEPT THE PLAN OR VOTED TO REJECT THE PLAN; (3) ALL CLAIMS AND INTERESTS SHALL BE SATISFIED, DISCHARGED, AND RELEASED IN FULL, AND THE DEBTORS’ LIABILITY WITH RESPECT THERETO SHALL BE EXTINGUISHED COMPLETELY, INCLUDING ANY LIABILITY OF THE KIND SPECIFIED UNDER SECTION 502(G) OF THE BANKRUPTCY CODE; AND (4) ALL ENTITIES SHALL BE PRECLUDED FROM ASSERTING AGAINST THE DEBTORS, THE DEBTORS’ ESTATES, THE REORGANIZED DEBTORS, THEIR SUCCESSORS AND ASSIGNS, AND THEIR ASSETS AND PROPERTIES ANY OTHER CLAIMS OR INTERESTS BASED UPON ANY DOCUMENTS, INSTRUMENTS, OR ANY ACT OR OMISSION, TRANSACTION, OR OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED PRIOR TO THE EFFECTIVE DATE.

B. Subordinated Claims

The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code, or otherwise, and any such rights shall be settled, compromised, and released pursuant to the Plan. Specifically, pursuant to section 510 of the Bankruptcy Code, the Reorganized Debtors reserve the right to re-classify any Allowed Claim in accordance with any contractual, legal, or equitable subordination relating thereto.

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C. Compromise and Settlement of Claims and Controversies

Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019 and in consideration for the distributions and other benefits provided pursuant to the Plan or any distribution to be made on account of an Allowed Claim, the provisions of the Plan shall constitute a good faith compromise of all Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that a holder of a Claim or Interest may have with respect to any Allowed Claim. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Interests, and controversies, as well as a finding by the Bankruptcy Court that any such compromise or settlement, including the Substantive Consolidation Settlement, is in the best interests of the Debtors, their Estates, and holders of Claims and Interests and is fair, equitable, and reasonable. In accordance with the provisions of the Plan, pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019(a), without any further notice to or action, order, or approval of the Bankruptcy Court, after the Effective Date, the Reorganized Debtors may compromise and settle Claims against them and Causes of Action against other Entities.

D. RELEASES BY THE DEBTORS

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, AND PURSUANT TO SECTION 1123(B) OF THE BANKRUPTCY CODE, ON THE EFFECTIVE DATE AND EFFECTIVE AS OF THE EFFECTIVE DATE, FOR GOOD AND VALUABLE CONSIDERATION, THE ADEQUACY OF WHICH IS HEREBY CONFIRMED, INCLUDING: (1) THE SETTLEMENT, RELEASE, AND COMPROMISE OF DEBT AND ALL OTHER GOOD AND VALUABLE CONSIDERATION PAID PURSUANT HERETO; AND (2) THE SERVICES OF THE DEBTORS’ PRESENT AND FORMER OFFICERS, DIRECTORS, MANAGERS, AND ADVISORS IN FACILITATING THE EXPEDIENT IMPLEMENTATION OF THE RESTRUCTURING TRANSACTIONS CONTEMPLATED HEREBY, EACH OF THE DEBTORS, THE REORGANIZED DEBTORS AND THE DEBTORS’ ESTATES (INCLUDING ALL PARTIES CLAIMING DERIVATIVELY OR THROUGH THE DEBTOR OR THE REORGANIZED DEBTORS OR THEIR ESTATES) OR THEIR AFFILIATES DISCHARGE AND RELEASE AND SHALL BE DEEMED TO HAVE PROVIDED A FULL DISCHARGE AND RELEASE TO EACH RELEASED PARTY AND THEIR RESPECTIVE PROPERTY (THE “DEBTOR RELEASE”) FROM ANY AND ALL CLAIMS, OBLIGATIONS, DEBTS, RIGHTS, SUITS, DAMAGES, REMEDIES, RIGHTS OF SETOFF, CAUSES OF ACTION, AND LIABILITIES WHATSOEVER (INCLUDING ANY DERIVATIVE CLAIMS ASSERTED ON BEHALF OF THE DEBTORS) WHETHER KNOWN OR UNKNOWN, MATURED OR UNMATURED, FORESEEN OR UNFORESEEN, LIQUIDATED OR UNLIQUIDATED, CONTINGENT OR NON-CONTINGENT, EXISTING AS OF THE EFFECTIVE DATE IN LAW, EQUITY OR OTHERWISE, WHETHER FOR TORT, CONTRACT VIOLATIONS OF FEDERAL OR STATE SECURITIES LAWS OR OTHERWISE, ARISING FROM OR RELATED IN ANY WAY TO THE DEBTORS, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE CHAPTER 11 CASES, THE ISSUANCE OF ANY SECURITY OF THE DEBTORS, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN ANY DEBTOR, ANY RELEASED PARTIES, THE RESTRUCTURING OF CLAIMS AND INTERESTS PRIOR TO OR IN THE CHAPTER

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11 CASES, THE NEGOTIATION, FORMULATION OR PREPARATION OF THE PLAN, THE DISCLOSURE STATEMENT, THE PLAN SUPPLEMENT, THE PLAN SUPPORT AGREEMENT, THE SECURITIES PURCHASE AGREEMENTS, OR RELATED AGREEMENTS, INSTRUMENTS, OR OTHER DOCUMENTS, UPON ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, INCLUDING THOSE THAT ANY OF THE DEBTORS WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR THAT ANY HOLDER OF A CLAIM OR AN INTEREST OR OTHER ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT ON BEHALF OF THE DEBTORS OR ANY OF THEIR ESTATES; PROVIDED, HOWEVER, THAT THE FOREGOING DEBTOR RELEASE SHALL NOT OPERATE TO WAIVE OR RELEASE ANY CLAIMS OR LIABILITIES OF ANY DEBTOR: (1) ARISING UNDER ANY CONTRACTUAL OBLIGATION OWED TO THE DEBTORS, INCLUDING UNDER THE SECURITIES PURCHASE AGREEMENTS OR THE PLAN SUPPORT AGREEMENT; (2) EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT, OR RELATED DOCUMENTS; OR (3) CONSTITUTING INTERCOMPANY CLAIMS THAT ARE REINSTATED PURSUANT TO THE PLAN. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PLAN DOES NOT RELEASE ANY CAUSES OF ACTION THAT THE DEBTORS OR THE REORGANIZED DEBTORS HAVE OR MAY HAVE NOW OR IN THE FUTURE AGAINST ANY PARTY (INCLUDING, BUT NOT LIMITED TO, A RELEASED PARTY) ARISING OUT OF OR RELATING TO ANY ACT OR OMISSION OF A RELEASED PARTY THAT CONSTITUTES WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH AS DETERMINED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, OF THE DEBTOR RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED HEREIN, AND FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE DEBTOR RELEASE IS: (1) IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASING PARTIES; (2) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE DEBTOR RELEASE; (3) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (4) FAIR, EQUITABLE AND REASONABLE; (5) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (6) A BAR TO ANY OF THE DEBTORS OR THE REORGANIZED DEBTORS ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE DEBTOR RELEASE.

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E. RELEASES BY HOLDERS OF CLAIMS

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ON THE EFFECTIVE DATE AND AS OF THE EFFECTIVE DATE, THE RELEASING PARTIES DISCHARGE AND RELEASE (AND EACH ENTITY SO DISCHARGED AND RELEASED SHALL BE DEEMED DISCHARGED AND RELEASED BY THE RELEASING PARTIES) (THE “THIRD PARTY RELEASE”) THE REORGANIZED DEBTORS, THEIR ESTATES, THEIR RESPECTIVE PROPERTY, AND THE RELEASED PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE PROPERTY FROM ANY AND ALL CLAIMS, INTERESTS, OBLIGATIONS, DEBTS, RIGHTS, SUITS, DAMAGES, REMEDIES, CAUSES OF ACTION, AND LIABILITIES WHATSOEVER, INCLUDING ANY DERIVATIVE CLAIMS ASSERTED ON BEHALF OF THE RELEASING PARTY, WHETHER KNOWN OR UNKNOWN, MATURED OR UNMATURED, FORESEEN OR UNFORESEEN, EXISTING OR HEREINAFTER ARISING, IN LAW, EQUITY, OR OTHERWISE, WHETHER FOR TORT, CONTRACT, VIOLATION OF FEDERAL OR STATE SECURITIES LAW OR OTHERWISE, ARISING FROM OR RELATED IN ANY WAY TO THE DEBTORS, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE CHAPTER 11 CASES, THE ISSUANCE OF ANY SECURITY OF THE DEBTORS, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN ANY DEBTOR, ANY RELEASED PARTIES, THE RESTRUCTURING OF CLAIMS AND INTERESTS PRIOR TO OR IN THE CHAPTER 11 CASES, THE NEGOTIATION, FORMULATION OR PREPARATION OF THE PLAN, THE DISCLOSURE STATEMENT, THE PLAN SUPPLEMENT, THE PLAN SUPPORT AGREEMENT, THE SECURITIES PURCHASE AGREEMENTS, OR RELATED AGREEMENTS, INSTRUMENTS, OR OTHER DOCUMENTS, UPON ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, INCLUDING THOSE THAT ANY OF THE DEBTORS WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN ITS OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR THAT ANY HOLDER OF A CLAIM OR AN INTEREST OR OTHER ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT ON BEHALF OF ITSELF, THE DEBTORS OR ANY OF THEIR ESTATES; PROVIDED, HOWEVER, THAT THE FOREGOING THIRD PARTY RELEASE SHALL NOT OPERATE TO RELEASE CLAIMS, OBLIGATIONS, DEBTS, RIGHTS, SUITS, DAMAGES, REMEDIES, CAUSES OF ACTION, AND LIABILITIES OF ANY RELEASING PARTY: (1) AGAINST A RELEASING PARTY OR A PARTY RELEASING UNDER THIS THIRD PARTY RELEASE ARISING FROM ANY CONTRACTUAL OBLIGATIONS OWED TO THE RELEASING PARTY OR LIABILITIES OF ANY RELEASING PARTY; (2) ARISING UNDER THE SECURITIES PURCHASE AGREEMENTS OR THE PLAN SUPPORT AGREEMENT; (3) EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT, OR RELATED DOCUMENTS; OR (4) AGAINST A PROFESSIONAL WITH RESPECT TO SUCH PROFESSIONAL’S FINAL FEE APPLICATION OR ACCRUED PROFESSIONAL COMPENSATION CLAIMS IN THESE CHAPTER 11 CASES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE RELEASES SET FORTH ABOVE DO NOT RELEASE ANY (1) POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY

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UNDER THE PLAN OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN, OR (2) CLAIMS ARISING UNDER THE SECURITIES PURCHASE AGREEMENTS. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS PARAGRAPH SHALL IN ANY WAY AFFECT THE OPERATION OF ARTICLE VIII.A OF THE PLAN, PURSUANT TO SECTION 1141(D) OF THE BANKRUPTCY CODE.

NOTWITHSTANDING ANYTHING IN THE PLAN, NO PERSON SHALL BE DISCHARGED, RELEASED, OR RELIEVED FROM ANY LIABILITY ARISING UNDER ERISA OR THE INTERNAL REVENUE CODE SOLELY WITH RESPECT TO THE A&P PENSION PLANS AS A RESULT OF THE DEBTORS’ REORGANIZATION PROCEEDINGS OR CONFIRMATION OF THE PLAN. NOR SHALL THE PENSION BENEFIT GUARANTY CORPORATION, THE A&P PENSION PLANS, OR ANY OTHER PERSON BE ENJOINED OR PRECLUDED FROM ENFORCING ANY LIABILITY ARISING UNDER ERISA OR THE INTERNAL REVENUE CODE SOLELY WITH RESPECT TO THE A&P PENSION PLANS AS A RESULT OF THE DEBTORS’ REORGANIZATION PROCEEDINGS, THE PLAN’S PROVISIONS OR THE PLAN’S CONFIRMATION.

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PLAN DOES NOT RELEASE ANY CAUSES OF ACTION THAT THE DEBTORS OR THE REORGANIZED DEBTORS HAVE OR MAY HAVE NOW OR IN THE FUTURE AGAINST ANY PARTY (INCLUDING, BUT NOT LIMITED TO, A RELEASED PARTY) ARISING OUT OF OR RELATING TO ANY ACT OR OMISSION OF A RELEASED PARTY THAT CONSTITUTES WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH AS DETERMINED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, OF THE THIRD PARTY RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED HEREIN, AND FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE THIRD PARTY RELEASE IS: (1) IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASING PARTIES; (2) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE THIRD PARTY RELEASE; (3) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (4) FAIR, EQUITABLE AND REASONABLE; (5) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (6) A BAR TO ANY RELEASING PARTIES ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE THIRD PARTY RELEASE.

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F. WAIVER OF STATUTORY LIMITATIONS ON RELEASES

EACH OF THE RELEASING PARTIES IN EACH OF THE RELEASES CONTAINED IN ARTICLE VIII.D AND ARTICLE VIII.E ABOVE EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, THEY HAVE CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN ARTICLE VIII.D AND ARTICLE VIII.E ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.

G. EXCULPATION

THE EXCULPATED PARTIES SHALL NEITHER HAVE, NOR INCUR ANY LIABILITY TO ANY ENTITY FOR ANY ACT TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH, OR RELATED TO FORMULATING, NEGOTIATING, PREPARING, DISSEMINATING, IMPLEMENTING, ADMINISTERING, CONFIRMING OR EFFECTING THE EFFECTIVE DATE OF THE PLAN, THE DISCLOSURE STATEMENT, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE ISSUANCE AND/OR DISTRIBUTION OF NEWCO EQUITY, THE NEW SECOND LIEN NOTES, THE REPLACEMENT SECOND LIEN NOTES, IF APPLICABLE, THE NEW CONVERTIBLE THIRD LIEN NOTES, THE INVESTMENT WARRANTS OR ANY CONTRACT, INSTRUMENT, RELEASE OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE PLAN OR ANY OTHER PRE-PETITION OR POST-PETITION ACT TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH OR IN CONTEMPLATION OF THE PLAN OR THE RESTRUCTURING OF THE DEBTORS (COLLECTIVELY, “EXCULPATED CLAIMS”); PROVIDED, THAT THE FOREGOING PROVISIONS OF THIS EXCULPATION SHALL HAVE NO EFFECT ON (A) ANY POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY UNDER THE PLAN OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN OR (B) THE LIABILITY OF ANY ENTITY THAT RESULTS FROM ANY SUCH ACT OR OMISSION THAT IS DETERMINED IN A FINAL ORDER TO HAVE CONSTITUTED GROSS

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NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, FURTHER, THAT EACH EXCULPATED PARTY SHALL BE ENTITLED TO RELY UPON THE ADVICE OF COUNSEL CONCERNING HIS, HER OR ITS DUTIES PURSUANT TO, OR IN CONNECTION WITH, THE PLAN; PROVIDED FURTHER, THAT THE FOREGOING “EXCULPATION” SHALL NOT APPLY TO ANY ACTS OR OMISSIONS EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT OR RELATED DOCUMENTS, EXCEPT FOR ACTS OR OMISSIONS OF RELEASING PARTIES.

H. INJUNCTION

EXCEPT AS OTHERWISE PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD OR MAY HOLD CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES THAT: (1) ARE SUBJECT TO COMPROMISE AND SETTLEMENT PURSUANT TO THE TERMS OF THE PLAN; (2) HAVE BEEN RELEASED PURSUANT TO ARTICLE VIII.D HEREOF; (3) HAVE BEEN RELEASED PURSUANT TO ARTICLE VIII.E; (4) ARE SUBJECT TO EXCULPATION PURSUANT TO ARTICLE VIII.G HEREOF, INCLUDING EXCULPATED CLAIMS (BUT ONLY TO THE EXTENT OF THE EXCULPATION PROVIDED IN ARTICLE VIII.E); OR (5) ARE OTHERWISE STAYED OR TERMINATED PURSUANT TO THE TERMS OF THE PLAN, ARE PERMANENTLY ENJOINED AND PRECLUDED, FROM AND AFTER THE EFFECTIVE DATE, FROM: (A) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND, INCLUDING ON ACCOUNT OF ANY CLAIMS, INTERESTS, CAUSES OF ACTIONS OR LIABILITIES THAT HAVE BEEN COMPROMISED OR SETTLED AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATE OF ANY ENTITY, DIRECTLY OR INDIRECTLY, SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES; (B) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST THE DEBTORS, THE REORGANIZED DEBTOR, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (C) CREATING, PERFECTING OR ENFORCING ANY LIEN, CLAIM, OR ENCUMBRANCE OF ANY KIND AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (D) ASSERTING ANY RIGHT OF

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SETOFF, SUBROGATION, OR RECOUPMENT OF ANY KIND AGAINST ANY OBLIGATION DUE FROM THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES UNLESS SUCH HOLDER HAS FILED A TIMELY PROOF OF CLAIM WITH THE BANKRUPTCY COURT PRESERVING SUCH RIGHT OF SETOFF PURSUANT TO SECTION 553 OF THE BANKRUPTCY CODE OR OTHERWISE; AND (E) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE INVESTORS OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES RELEASED, SETTLED OR COMPROMISED PURSUANT TO THE PLAN; PROVIDED THAT NOTHING CONTAINED HEREIN SHALL PRECLUDE AN ENTITY FROM OBTAINING BENEFITS DIRECTLY AND EXPRESSLY PROVIDED TO SUCH ENTITY PURSUANT TO THE TERMS OF THE PLAN; PROVIDED, FURTHER, THAT NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT ANY ENTITY FROM DEFENDING AGAINST CLAIMS OBJECTIONS OR COLLECTION ACTIONS WHETHER BY ASSERTING A RIGHT OF SETOFF OR OTHERWISE TO THE EXTENT PERMITTED BY LAW.

I. Protection Against Discriminatory Treatment

Consistent with section 525 of the Bankruptcy Code and paragraph 2 of Article VI of the United States Constitution, no Governmental Unit shall discriminate against the Reorganized Debtors or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Reorganized Debtors, or another Entity with whom such Reorganized Debtors have been associated, solely because one of the Debtors has been a debtor under chapter 11, has been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtor is granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Cases.

J. Indemnification

Notwithstanding anything in the Plan to the contrary, all indemnification provisions currently in place (whether in the Securities Purchase Agreements, by-laws, certificates of incorporation, articles of limited partnership, board resolutions, contracts, or otherwise) for the directors, officers, employees, attorneys, other professionals, and agents of the Debtors that served in such capacity from and after the Commencement Date and such directors’ and officers’ respective affiliates, shall be reinstated (or assumed, as the case may be), and shall survive effectiveness of the Plan.

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K. Recoupment

In no event shall any holder of Claims or Interests be entitled to recoup any Claim or Interest against any Claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as applicable, unless such holder actually has performed such recoupment and provided notice thereof in writing to the Debtors on or before the Confirmation Date, notwithstanding any indication in any Proof of Claim or Interest or otherwise that such holder asserts, has, or intends to preserve any right of recoupment.

L. Release of Liens

Except as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released, and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtor and its successors and assigns.

M. Reimbursement or Contribution

If a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code is (i) disallowed by the Bankruptcy Court or (ii) contingent as of the Effective Date, then such Claim shall be forever disallowed notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Effective Date (1) such Claim has been adjudicated as noncontingent or (2) the relevant holder of a Claim has filed a noncontingent Proof of Claim on account of such Claim and a Final Order has been entered determining such Claim as no longer contingent.

ARTICLE IX.

CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN

A. Conditions Precedent to the Effective Date

It shall be a condition to the Effective Date that the following conditions shall have been satisfied or waived pursuant to Article IX.B hereof:

1. the Bankruptcy Court shall have approved the Disclosure Statement, in a manner acceptable to the Debtors and the Investors, as containing adequate information with respect to the Plan within the meaning of section 1125 of the Bankruptcy Code and such order shall be in full force and effect and shall have become a Final Order;

2. the Confirmation Order: (i) shall be entered by the Bankruptcy Court on or before February 14, 2012 (as such date may be extended with the consent of the Debtors and the Investors, which consent shall not be unreasonably withheld or delayed); (ii) shall include the provisions in Exhibit D to the Securities Purchase Agreements and otherwise be in form and substance acceptable to the Investors; and (iii) shall be in full force and effect and, unless waived by the Investors, shall have become a Final Order;

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3. the Plan and Plan Supplement, including any amendments, modifications, or supplements thereto, shall be in form and substance reasonably acceptable to the Investors and shall not have been modified without the consent of the Investors (such consent not to have been unreasonably withheld in the case of a modification that is not adverse to the Investors);

4. the Transaction Expenses (as defined and provided in the Securities Purchase Agreements), to the extent not previously paid, shall be paid concurrently with the Effective Date in Cash in accordance with the terms of the Securities Purchase Agreements as approved by the Securities Purchase Agreements Order;

5. the Commitment Fee shall be paid concurrently with the Effective Date to Liberty Harbor and Mount Kellett, as provided in the Securities Purchase Agreements;

6. the Debtors shall have obtained an Exit Facility on terms as provided in the Securities Purchase Agreements and the Plan, and on terms and conditions reasonably acceptable to the Investors, and all conditions precedent to the consummation of the Exit Facility shall have been waived or satisfied in accordance with the terms thereof and the closing of the Exit Facility shall occur concurrently with the Effective Date;

7. with respect to all actions, documents, Certificates, and agreements necessary to implement the Plan (a) all conditions precedent to such documents and agreements shall have been satisfied or waived pursuant to the terms of such documents or agreements, (b) such documents, Certificates and agreements shall have been tendered for delivery, (c) to the extent required, such documents, Certificates and agreements shall have been filed with and approved by any applicable Governmental Units in accordance with applicable laws, and (d) such actions, documents, Certificates and agreements shall have been effected or executed;

8. the Cash payable pursuant to Article III.C.1.c shall be distributed on the Effective Date as provided herein;

9. all conditions to the effectiveness of the Securities Purchase Agreements shall have been satisfied or waived in accordance with the terms thereof; and

10. all other “Conditions to Investors’ Obligations at Closing” identified in section 5.1 of the Securities Purchase Agreements shall have been satisfied or waived by the Investors in accordance with the terms thereof.

B. Waiver of Conditions Precedent

Subject to the terms of the Securities Purchase Agreements, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors may jointly waive any of the conditions to the Effective Date set forth in Article IX.A, other than the condition set forth in Article IX.A.8 (unless consented to by the Consenting Noteholders in accordance with the Plan Support Agreement) at any time without any notice to other parties in interest and without any further notice to or action, order, or approval of the Bankruptcy Court, and without any formal action other than proceeding to confirm or consummate the Plan.

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C. Effect of Non-Occurrence of Conditions to Consummation

If prior to Consummation, the Confirmation Order is vacated pursuant to a Final Order, then except as provided in any order of the Bankruptcy Court vacating the Confirmation Order, the Plan will be null and void in all respects, and nothing contained in the Plan or Disclosure Statement shall (1) constitute a waiver or release of any Claims, Interests, or Causes of Action, (2) prejudice in any manner the rights of any Debtor or any other Entity, or (3) constitute an admission, acknowledgment, offer, or undertaking of any sort by any Debtor or any other Entity.

ARTICLE X.

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:

1. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;

2. decide and resolve all matters related to the granting and denying, in whole or in part, of any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Plan; provided, however, that from and after the Effective Date, the payment of the fees and expenses of any professionals of the Reorganized Debtors shall be made in the ordinary course of business and shall not be subject to Bankruptcy Court review or approval;

3. resolve any matters related to Executory Contracts or Unexpired Leases, including: (a) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable, and to hear, determine, and, if necessary, liquidate, any Cure or Claims arising therefrom, including pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (c) the Reorganized Debtors’ amendment, modification, or supplement, after the Effective Date, pursuant to Article V, of the list of Executory Contracts and Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute regarding whether a contract or lease is or was executory or expired;

4. ensure that distributions to holders of Allowed Claims are accomplished pursuant to the provisions of the Plan and adjudicate any and all disputes arising from or relating to distributions under the Plan;

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5. adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated matters, and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective Date;

6. adjudicate, decide, or resolve any and all matters related to Causes of Action of the Debtors or brought by or against the Reorganized Debtors;

7. adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;

8. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan, the Plan Supplement or the Disclosure Statement;

9. enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code;

10. grant any consensual request to extend the deadline for assuming or rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code;

11. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;

12. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of all contracts, instruments, releases, indentures, and other agreements or documents approved by Final Order in the Chapter 11 Cases;

13. issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of the Plan;

14. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, exculpation, injunctions, and other provisions contained in Article VIII above and enter such orders as may be necessary or appropriate to implement such releases, exculpation, injunctions, and other provisions;

15. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the holder of a Claim for amounts not timely repaid pursuant to Article VII.D.1 above;

16. enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;

17. determine any other matters that may arise in connection with or relate to the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Plan or the Disclosure Statement;

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18. enter an order or Final Decree concluding or closing the Chapter 11 Cases;

19. consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;

20. determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;

21. hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Plan;

22. hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;

23. hear and determine all disputes involving the existence, nature, or scope of the Debtors’ discharge, including any dispute relating to any liability arising out of the termination of employment or the termination of any employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective Date;

24. hear and determine matters related to the Securities Purchase Agreements and related agreements;

25. except as otherwise limited herein, recover all assets of the Debtors and property of the Estates, wherever located;

26. enforce all orders previously entered by the Bankruptcy Court; and

27. hear any other matter not inconsistent with the Bankruptcy Code.

ARTICLE XI.

MISCELLANEOUS PROVISIONS

A. No Stay of Confirmation Order

The Confirmation Order shall contain a waiver of any stay of enforcement otherwise applicable, including pursuant to Bankruptcy Rules 3020(e), 6004(h), 6006(d) and 7062.

B. Modification of Plan

Subject to the limitations contained in the Plan and the terms and conditions of the Securities Purchase Agreements: (1) the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan prior to the entry of the

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Confirmation Order, including amendments or modifications to satisfy section 1129(b) of the Bankruptcy Code; and (2) after the entry of the Confirmation Order, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors, as the case may be, may, upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan.

C. Revocation or Withdrawal of Plan

The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right, subject to, and in accordance with, the terms and conditions of each of the Securities Purchase Agreements and the Securities Purchase Agreements Order, to revoke or withdraw the Plan before the Confirmation Date and to file subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if Confirmation, Consummation or the Effective Date does not occur, then (1) the Plan shall be null and void in all respects, (2) any settlement or compromise embodied in the Plan, assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant hereto will be null and void in all respects, and (3) nothing contained in the Plan shall (a) constitute a waiver or release of any Claims, Interests, or Causes of Action, (b) prejudice in any manner the rights of any Debtor or any other Entity, or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by any Debtor or any other Entity.

D. Confirmation of the Plan

The Debtors request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with respect to any Impaired Class that does not accept the Plan pursuant to section 1126 of the Bankruptcy Code. The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right to amend the Plan to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification.

E. Additional Documents

On or before the Effective Date and subject to the terms and conditions of the Securities Purchase Agreements, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) with the consent of the Investors (such consent shall not be unreasonably withheld or delayed) may file with the Bankruptcy Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and the Securities Purchase Agreements. The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), with the consent of the Investors (such consent shall not be unreasonably withheld or delayed), or the Reorganized Debtors, as applicable, and all holders of Claims receiving distributions pursuant to the Plan and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan and the Securities Purchase Agreements.

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F. Payment of Statutory Fees

All fees payable pursuant to 28 U.S.C. §1930(a), as determined by the Bankruptcy Court at a hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid for each quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first.

G. Dissolution of Creditors’ Committee

On the Effective Date, the Creditors’ Committee shall dissolve automatically, and its members shall be released and discharged from all rights, duties, responsibilities, and liabilities arising from, or related to, the Chapter 11 Cases; provided, however, that the Creditors’ Committee shall be deemed to remain in existence solely with respect to the final fee applications filed in connection with Article II.B and the Creditors’ Committee shall have the right to be heard on all issues relating to such final fee applications.

H. Reservation of Rights

Except as expressly set forth in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order. None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by any Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to the holders of Claims or Interests prior to the Effective Date.

I. Successors and Assigns

The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.

J. Service of Documents

1. After the Effective Date, any pleading, notice, or other document required by the Plan to be served on or delivered to the Reorganized Debtors shall be served on:

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Debtors	Counsel to the Debtors
The Great Atlantic & Pacific Tea Company, Inc. 2 Paragon Drive Montvale, NJ 07645 Attn.: Christopher W. McGarry, General Counsel	Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 Attn.: James H.M. Sprayregen, P.C.  Paul M. Basta, Esq.  Ray C. Schrock, Esq. Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attn.: James J. Mazza, Jr., Esq.
Counsel to the Creditors’ Committee	Counsel to the Convertible Noteholders
Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn.: Dennis F. Dunne, Esq.  Matthew S. Barr, Esq.  Abhilash M. Raval, Esq  Michael E. Comerford, Esq.	Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Attn.: Kristopher M. Hansen, Esq.  Jayme T. Goldstein, Esq.
Counsel to the Second Lien Trustee	Counsel to DIP Facility Lenders
Brown Rudnick LLP 7 Times Square New York, NY 10036 Attn:  Edward S. Weisfelner, Esq.  Daniel J. Saval, Esq.	Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 Attn.: Donald S. Bernstein, Esq.  Marshall S. Huebner
United States Trustee	Counsel to Yucaipa
Office of the United States Trustee U.S. Department of Justice 33 Whitehall Street, 21st Floor Attn.: Susan Golden, Esq.  Richard Morrissey, Esq.	Latham & Watkins LLP 355 S. Grand Ave Los Angeles, CA 90071 Attn: Robert Klyman, Esq.

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K. TERM OF INJUNCTIONS OR STAYS

UNLESS OTHERWISE PROVIDED IN THE PLAN OR IN THE CONFIRMATION ORDER, ALL INJUNCTIONS OR STAYS IN EFFECT IN THE CHAPTER 11 CASES PURSUANT TO SECTIONS 105 OR 362 OF THE BANKRUPTCY CODE OR ANY ORDER OF THE BANKRUPTCY COURT, AND EXISTING ON THE CONFIRMATION DATE (EXCLUDING ANY INJUNCTIONS OR STAYS CONTAINED IN THE PLAN OR THE CONFIRMATION ORDER) SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL THE EFFECTIVE DATE. ALL INJUNCTIONS OR STAYS CONTAINED IN THE PLAN OR THE CONFIRMATION ORDER SHALL REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR TERMS.

L. Entire Agreement

Except as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects (other than the Securities Purchase Agreements), all of which have become merged and integrated into the Plan.

Notwithstanding anything to the contrary in the Plan (including any amendments, supplements, or modifications to the Plan) or the Confirmation Order (and any amendments, supplements, or modifications thereto) or an affirmative vote to accept the Plan submitted by any Investor, nothing contained in the Plan (including any amendments, supplements, or modifications thereto) shall diminish, reduce or negatively impact the rights of the Investors under the Securities Purchase Agreements.

M. Plan Supplement Exhibits

All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. After the exhibits and documents are filed, copies of such exhibits and documents shall be made available upon written request to the Debtors’ counsel at the address above or by downloading such exhibits and documents from http://www.kccllc.net/APTEA or the Bankruptcy Court’s website at www.nysb.uscourts.gov. Unless otherwise ordered by the Bankruptcy Court, to the extent any exhibit or document in the Plan Supplement is inconsistent with the terms of any part of the Plan that does not constitute the Plan Supplement, such part of the Plan that does not constitute the Plan Supplement shall control.

N. Severability

If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted (subject to the reasonable consent of the Investors). Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation (subject to the reasonable consent of the Investors). The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is (1) valid and enforceable pursuant to its terms, (2) integral to the Plan and may not

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be deleted or modified without the Debtors’ consent (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the consent of the Investors, and (3) nonseverable and mutually dependent.

The remainder of this page is intentionally left blank.

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Montvale, New Jersey

Dated: December 19, 2011

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
(For itself and all other Debtors)
By:	/s/ Frederic F. Brace
Name:	Frederic F. Brace
Title:	Chief Financial Officer, Chief Administrative Officer, and Chief Restructuring Officer

Exhibit A

Trade Claims Cash Pool

Exhibit B

Union Protections in Term Sheets

EX-99.T3E.2

Exhibit E-2

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

	)
In re:	)	Chapter 11
	)
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al.1	) )	Case No. 10-24549 (RDD)
	)
Debtors.	)	Jointly Administered
	)

DEBTORS’ DISCLOSURE STATEMENT FOR THE

DEBTORS’ JOINT PLAN OF REORGANIZATION PURSUANT

TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE

KIRKLAND & ELLIS LLP		KIRKLAND & ELLIS LLP
James H.M. Sprayregen, P.C.		James J. Mazza, Jr.
Paul M. Basta		300 North LaSalle
Ray C. Schrock	- and -	Chicago, Illinois 60654
601 Lexington Avenue		Telephone:  (312) 862-2000
New York, New York 10022		Facsimile:   (312) 862-2200
Telephone:   (212) 446-4800
Facsimile:     (212) 446-4900
Counsel to the Debtors and Debtors in Possession
Dated: December 19, 2011

¹  The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number, are: The Great Atlantic & Pacific Tea Company, Inc. (0974); 2008 Broadway, Inc. (0986); AAL Realty Corporation (3152); Adbrett Corporation (5661); Amsterdam Trucking Corporation (1165); APW Supermarket Corporation (7132); APW Supermarkets, Inc. (9509); Bergen Street Pathmark, Inc. (1604); Best Cellars DC Inc. (2895); Best Cellars Inc. (9550); Best Cellars Licensing Corp. (2896); Best Cellars Massachusetts, Inc. (8624); Best Cellars VA Inc. (1720); Bev, Ltd. (9046); Borman’s Inc. (9761); Bridge Stuart, Inc. (8652); Clay-Park Realty Co., Inc. (0902); Compass Foods, Inc. (0653); East Brunswick Stuart, LLC (9149); Farmer Jack’s of Ohio, Inc. (5542); Food Basics, Inc.(1210); Gramatan Foodtown Corp. (5549); Grape Finds At DuPont, Inc. (9455); Grape Finds Licensing Corp. (7091); Grapefinds, Inc. (4053); Greenlawn Land Development Corp. (7062); Hopelawn Property I, Inc. (6590); Kohl’s Food Stores, Inc. (2508); Kwik Save Inc. (8636); Lancaster Pike Stuart, LLC (9158); LBRO Realty, Inc. (1125); Lo-Lo Discount Stores, Inc. (8662); Mac Dade Boulevard Stuart, LLC (9155); McLean Avenue Plaza Corp. (5227); Milik Service Company, LLC (0668); Montvale Holdings, Inc. (6664); North Jersey Properties, Inc. VI (6586); Onpoint, Inc. (6589); Pathmark Stores, Inc. (9612); Plainbridge, LLC (5965); SEG Stores, Inc. (4940); Shopwell, Inc. (3304); Shopwell, Inc. (1281); Spring Lane Produce Corp. (5080); Super Fresh/Sav-A-Center, Inc. (0228); Super Fresh Food Markets, Inc. (2491); Super Market Service Corp. (5014); Super Plus Food Warehouse, Inc. (9532); Supermarkets Oil Company, Inc. (4367); The Food Emporium, Inc. (3242); The Old Wine Emporium of Westport, Inc. (0724); The South Dakota Great Atlantic & Pacific Tea Company, Inc (4647); Tradewell Foods of Conn., Inc. (5748); Upper Darby Stuart, LLC (9153); and Waldbaum, Inc. (8599). The location of the Debtors’ corporate headquarters is Two Paragon Drive, Montvale, New Jersey 07645.

TABLE OF CONTENTS

			Page
ARTICLE I. INTRODUCTION				8
	A.	Rules of Interpretation		8
ARTICLE II. OVERVIEW OF THE PLAN				9
	A.	General Structure of the Plan		9
	B.	Classification of Claims and Interests Under the Plan		9
	C.	Treatment of Claims and Interests Under the Plan		10
	D.	Investment Analysis, Liquidation Analysis, and Financial Projections		14
	E.	Certain Factors to Be Considered Prior to Voting		17
ARTICLE III. VOTING PROCEDURES				18
	A.	Vote Required for Acceptance by a Class		18
	B.	Classes Not Entitled to Vote		18
	C.	Solicitation Procedures		19
	D.	Voting Procedures		20
	E.	Confirmation Hearing		21
	F.	Confirmation and Consummation of the Plan		22
ARTICLE IV. GENERAL INFORMATION				22
	A.	Overview of the Debtors’ History and Industry		22
	B.	A&P’s Corporate Structure		23
	C.	Competition		23
	D.	Legacy Obligations		23
	E.	Executive Officers of the Debtors		24
	F.	The Debtors’ Prepetition Capital Structure		25
	G.	Employees		28
	H.	Benefit Plans		28
	I.	Securities Class Action Lawsuit		33
ARTICLE V. THE CHAPTER 11 CASES				34
	A.	Events Leading to the Commencement of the Chapter 11 Cases		34
	B.	Stabilization of Operations		35
	C.	Postpetition Financing		38
	D.	Appointment of Committees		39
	E.	Operational Restructuring Initiatives		39
	F.	Executory Contracts and Unexpired Leases		43
	G.	Analysis and Resolution of Claims		44
	H.	Maintaining Exclusive Right to File a Plan of Reorganization		45
	I.	Negotiations Relating to the Development of the Plan		45
	J.	Plan Support Agreement With Certain Holders of Debtors’ Second Lien Notes		46
ARTICLE VI. PLAN SUMMARY				47
	A.	Overview of Chapter 11		47
	B.	Overall Structure of the Plan		49
	C.	Substantive Consolidation Settlement		50
	D.	Trade Creditors		57
	E.	Administrative and Priority Claims		58

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	F.	Classification of Claims and Interests	61
	G.	Treatment of Classes of Claims and Interests	62
	H.	Special Provisions Governing Vote Tabulation	69
	I.	Special Provision Governing Unimpaired Claims	69
	J.	Provisions for Implementation of the Plan	69
	K.	Treatment of Executory Contracts and Unexpired Leases	77
	L.	Procedures for Resolving Disputed Claims and Interests	82
	M.	Provisions Governing Distributions	85
	N.	Effect of Confirmation of the Plan	90
	O.	Conditions Precedent to Consummation of the Plan	98
	P.	Retention of Jurisdiction	100
	Q.	Miscellaneous Provisions	102
ARTICLE VII. SECURITIES LAW MATTERS			106
	A.	Securities Issued in Reliance on Section 1145 of the Bankruptcy Code	106
	B.	Securities Issued Pursuant to Exemptions Under the Securities Act of 1933, as Amended	107
	C.	Resales of 1145 Securities and 4(2) Securities / Rule 144 and Rule 144A	107
ARTICLE VIII. STATUTORY REQUIREMENTS FOR CONFIRMATION OF THE PLAN			109
	A.	The Confirmation Hearing	109
	B.	Confirmation Standards	109
	C.	Liquidation Analysis	110
	D.	Investment Analysis	111
	E.	Financial Feasibility	111
	F.	Acceptance by Impaired Classes	112
	G.	Confirmation Without Acceptance by All Impaired Classes	112
ARTICLE IX. PLAN-RELATED RISK FACTORS AND ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN			113
	A.	General	113
	B.	Certain Bankruptcy Law Considerations	113
	C.	Risk Factors That May Affect the Value of the Securities to Be Issued Under the Plan	115
	D.	Risk Factors That Could Negatively Impact the Debtors’ Business	117
	E.	Risks Associated with Forward Looking Statements	124
	F.	Disclosure Statement Disclaimer	125
	G.	Liquidation Under Chapter 7	127
ARTICLE X. CERTAIN FEDERAL INCOME TAX CONSEQUENCES			127
	A.	Certain United States Federal Income
		Tax Consequences to the Reorganized Debtors	128
	B.	Certain United States Federal Income Tax Consequences to Holders of Claims	130
ARTICLE XI. RECOMMENDATION			132

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EXHIBITS

Exhibit A	Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code
Exhibit B	Approved Disclosure Statement Order
Exhibit C	The Reorganized Debtors’ Financial Projections
Exhibit D	Liquidation Analysis
Exhibit E	Debtors’ Prepetition Corporate Structure Chart

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DISCLAIMER

THE DISCLOSURE STATEMENT CONTAINS SUMMARIES OF CERTAIN PROVISIONS OF THE DEBTORS’ PLAN (AS DEFINED HEREIN) AND CERTAIN OTHER DOCUMENTS AND FINANCIAL INFORMATION. THE INFORMATION INCLUDED IN THE DISCLOSURE STATEMENT IS PROVIDED FOR THE PURPOSE OF SOLICITING ACCEPTANCES OF THE PLAN AND SHOULD NOT BE RELIED UPON FOR ANY PURPOSE OTHER THAN TO DETERMINE WHETHER AND HOW TO VOTE ON THE PLAN. THE DEBTORS BELIEVE THAT THESE SUMMARIES ARE FAIR AND ACCURATE. THE SUMMARIES OF THE FINANCIAL INFORMATION AND THE DOCUMENTS WHICH ARE ATTACHED TO, OR INCORPORATED BY REFERENCE IN, THE DISCLOSURE STATEMENT ARE QUALIFIED IN THEIR ENTIRETY BY REFERENCE TO SUCH INFORMATION AND DOCUMENTS. IN THE EVENT OF ANY INCONSISTENCY OR DISCREPANCY BETWEEN A DESCRIPTION IN THE DISCLOSURE STATEMENT OR THE OTHER DOCUMENTS AND FINANCIAL INFORMATION AND THE TERMS AND PROVISIONS OF THE PLAN REFERENCED IN THE DISCLOSURE STATEMENT, THE PLAN OR THE OTHER DOCUMENTS AND FINANCIAL INFORMATION, AS THE CASE MAY BE, SHALL GOVERN FOR ALL PURPOSES.

THE STATEMENTS AND FINANCIAL INFORMATION CONTAINED IN THE DISCLOSURE STATEMENT HAVE BEEN MADE AS OF THE DATE OF THE DISCLOSURE STATEMENT UNLESS OTHERWISE SPECIFIED. HOLDERS OF CLAIMS AND INTERESTS REVIEWING THE DISCLOSURE STATEMENT SHOULD NOT ASSUME AT THE TIME OF SUCH REVIEW THAT THERE HAVE BEEN NO CHANGES IN THE FACTS SET FORTH IN THE DISCLOSURE STATEMENT SINCE THE DATE OF THE DISCLOSURE STATEMENT. EACH HOLDER OF A CLAIM ENTITLED TO VOTE ON THE PLAN SHOULD CAREFULLY REVIEW THE PLAN, THE DISCLOSURE STATEMENT, AND THE PLAN SUPPLEMENT IN THEIR ENTIRETY BEFORE CASTING A BALLOT. THE DISCLOSURE STATEMENT DOES NOT CONSTITUTE LEGAL, BUSINESS, FINANCIAL, OR TAX ADVICE. ANY ENTITIES DESIRING ANY SUCH ADVICE SHOULD CONSULT WITH THEIR OWN ADVISORS.

NO ONE IS AUTHORIZED TO PROVIDE ANY INFORMATION WITH RESPECT TO THE PLAN OTHER THAN THAT WHICH IS CONTAINED IN THE DISCLOSURE STATEMENT. NO REPRESENTATIONS CONCERNING THE DEBTORS OR THE VALUE OF THEIR PROPERTY HAVE BEEN AUTHORIZED BY THE DEBTORS OTHER THAN AS SET FORTH IN THE DISCLOSURE STATEMENT AND THE DOCUMENTS ATTACHED TO THE DISCLOSURE STATEMENT. ANY INFORMATION, REPRESENTATIONS, OR INDUCEMENTS MADE TO OBTAIN AN ACCEPTANCE OF THE PLAN WHICH ARE OTHER THAN AS SET FORTH IN, OR INCONSISTENT WITH, THE INFORMATION CONTAINED IN THE DISCLOSURE STATEMENT, THE DOCUMENTS ATTACHED TO THE DISCLOSURE STATEMENT, AND THE PLAN SHOULD NOT BE RELIED UPON BY ANY HOLDER OF A CLAIM OR INTEREST.

WITH RESPECT TO CONTESTED MATTERS, ADVERSARY PROCEEDINGS, AND OTHER PENDING, THREATENED, OR POTENTIAL LITIGATION OR OTHER ACTIONS, THE DISCLOSURE STATEMENT DOES NOT CONSTITUTE, AND MAY NOT BE CONSTRUED AS, AN ADMISSION OF FACT, LIABILITY, STIPULATION, OR WAIVER, BUT RATHER AS A STATEMENT MADE IN THE CONTEXT OF SETTLEMENT NEGOTIATIONS PURSUANT TO RULE 408 OF THE FEDERAL RULES OF EVIDENCE.

THE SECURITIES DESCRIBED IN THE DISCLOSURE STATEMENT TO BE ISSUED PURSUANT TO THE PLAN WILL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT, AS AMENDED, OR ANY SIMILAR FEDERAL, STATE, OR LOCAL LAW, GENERALLY IN RELIANCE ON THE EXEMPTIONS SET FORTH IN SECTION 4(2) OF THE SECURITIES ACT AND/OR SECTION 1145 OF THE BANKRUPTCY CODE.

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THE DISCLOSURE STATEMENT HAS NOT BEEN REVIEWED, APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION COMMENTED UPON THE ACCURACY OR ADEQUACY OF THE STATEMENTS CONTAINED IN THE DISCLOSURE STATEMENT.

THE FINANCIAL INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE INTO THE DISCLOSURE STATEMENT HAS NOT BEEN AUDITED, EXCEPT AS SPECIFICALLY INDICATED OTHERWISE.

THE FINANCIAL PROJECTIONS, ATTACHED HERETO AS EXHIBIT C AND DESCRIBED IN THE DISCLOSURE STATEMENT, HAVE BEEN PREPARED BY THE DEBTORS’ MANAGEMENT TOGETHER WITH THEIR ADVISORS. THE FINANCIAL PROJECTIONS, WHILE PRESENTED WITH NUMERICAL SPECIFICITY, ARE NECESSARILY BASED ON A VARIETY OF ESTIMATES AND ASSUMPTIONS WHICH, THOUGH CONSIDERED REASONABLE BY THE DEBTORS’ MANAGEMENT AND THEIR ADVISORS, MAY NOT ULTIMATELY BE REALIZED, AND ARE INHERENTLY SUBJECT TO SIGNIFICANT BUSINESS, ECONOMIC, COMPETITIVE, INDUSTRY, REGULATORY, MARKET, AND FINANCIAL UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE DEBTORS’ CONTROL. THE DEBTORS CAUTION THAT NO REPRESENTATIONS CAN BE MADE AS TO THE ACCURACY OF THESE PROJECTIONS OR TO THE ABILITY TO ACHIEVE THE PROJECTED RESULTS. SOME ASSUMPTIONS INEVITABLY WILL NOT MATERIALIZE. FURTHER, EVENTS AND CIRCUMSTANCES OCCURRING SUBSEQUENT TO THE DATE ON WHICH THE FINANCIAL PROJECTIONS WERE PREPARED MAY BE DIFFERENT FROM THOSE ASSUMED OR, ALTERNATIVELY, MAY HAVE BEEN UNANTICIPATED, AND, THUS, THE OCCURRENCE OF THESE EVENTS MAY AFFECT FINANCIAL RESULTS IN A MATERIALLY ADVERSE OR MATERIALLY BENEFICIAL MANNER. THEREFORE, THE FINANCIAL PROJECTIONS MAY NOT BE RELIED UPON AS A GUARANTEE OR OTHER ASSURANCE OF THE ACTUAL RESULTS THAT WILL OCCUR.

PLEASE REFER TO ARTICLE IX OF THE DISCLOSURE STATEMENT, ENTITLED “PLAN-RELATED RISK FACTORS AND ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN” FOR A DISCUSSION OF CERTAIN FACTORS THAT A CREDITOR VOTING ON THE PLAN SHOULD CONSIDER.

FOR A VOTE ON THE PLAN TO BE COUNTED, THE BALLOT INDICATING ACCEPTANCE OR REJECTION OF THE PLAN MUST BE RECEIVED BY KURTZMAN CARSON CONSULTANTS, LLC, THE DEBTORS’ CLAIMS AGENT (“KCC”) NO LATER THAN 5:00 P.M. PREVAILING PACIFIC TIME, ON JANUARY 24, 2012. SUCH BALLOTS SHOULD BE CAST IN ACCORDANCE WITH THE SOLICITATION PROCEDURES DESCRIBED IN FURTHER DETAIL IN Article III OF THE DISCLOSURE STATEMENT. ANY BALLOT RECEIVED AFTER THE VOTING DEADLINE SHALL NOT BE COUNTED UNLESS OTHERWISE DETERMINED BY THE DEBTORS IN THEIR SOLE AND ABSOLUTE DISCRETION.

THE CONFIRMATION HEARING WILL COMMENCE ON FEBRUARY 6, 2012 AT 10:00 A.M. PREVAILING EASTERN TIME, BEFORE THE HONORABLE ROBERT D. DRAIN, UNITED STATES BANKRUPTCY JUDGE, IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 300 QUARROPAS STREET, WHITE PLAINS, NEW YORK 10601 (THE “BANKRUPTCY COURT”). THE DEBTORS MAY CONTINUE THE

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CONFIRMATION HEARING FROM TIME TO TIME WITHOUT FURTHER NOTICE OTHER THAN AN ADJOURNMENT ANNOUNCED IN OPEN COURT OR A NOTICE OF ADJOURNMENT FILED WITH THE BANKRUPTCY COURT AND SERVED ON THE MASTER SERVICE LIST AND THE ENTITIES WHO HAVE FILED AN OBJECTION TO THE PLAN, WITHOUT FURTHER NOTICE TO PARTIES IN INTEREST. THE BANKRUPTCY COURT, IN ITS DISCRETION AND BEFORE THE CONFIRMATION HEARING, MAY PUT IN PLACE ADDITIONAL PROCEDURES GOVERNING THE CONFIRMATION HEARING. THE PLAN MAY BE MODIFIED, IF NECESSARY, PRIOR TO, DURING, OR AS A RESULT OF THE CONFIRMATION HEARING, WITHOUT FURTHER NOTICE TO PARTIES IN INTEREST.

THE PLAN OBJECTION DEADLINE IS JANUARY 24, 2012, AT 4:00 P.M. PREVAILING EASTERN TIME. ALL PLAN OBJECTIONS MUST BE FILED WITH THE BANKRUPTCY COURT (WITH A CHAMBERS COPY SENT TO THE BANKRUPTCY COURT) AND SERVED ON THE DEBTORS AND CERTAIN OTHER PARTIES IN INTEREST IN ACCORDANCE WITH THE DISCLOSURE STATEMENT ORDER SO THAT THEY ARE RECEIVED ON OR BEFORE THE PLAN OBJECTION DEADLINE.

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Important Information About This Disclosure Statement

This Disclosure Statement provides information regarding the Plan of Reorganization that the Debtors are seeking to have confirmed by the Bankruptcy Court. The Debtors believe that the Plan is in the best interests of all creditors. The Debtors urge all holders of Claims entitled to vote on the Plan to vote in favor of the Plan.

Unless the context requires otherwise, reference to “we,” “our,” and “us” are to the Debtors.

The confirmation of the Plan and effectiveness of the Plan are subject to certain material conditions precedent described herein. There is no assurance that the Plan will be confirmed, or if confirmed, that the conditions required to be satisfied will be satisfied or waived.

You are encouraged to read this Disclosure Statement in its entirety, including without limitation, the Plan, which is annexed as Exhibit A hereto, and the section entitled “Risk Factors,” prior to submitting your ballot to vote on the Plan.

The Bankruptcy Court’s approval of this Disclosure Statement does not constitute a guarantee of the accuracy or completeness of the information contained herein or an endorsement of the merits of the Plan by the Bankruptcy Court.

Summaries of the Plan and statements made in this Disclosure Statement are qualified in their entirety by reference to the Plan, the exhibits and schedules attached to the Plan and this Disclosure Statement and the Plan Supplement. The statements contained in this Disclosure Statement are made only as of the date of this Disclosure Statement, and there is no assurance that the statements contained herein will be correct at any time after such date. Except as otherwise provided in the Plan or in accordance with applicable law, the Debtors are under no duty to update or supplement this Disclosure Statement.

The information contained in this Disclosure Statement is included for purposes of soliciting acceptances to, and confirmation of, the Plan and may not be relied on for any other purpose. The Debtors believe that the summary of certain provisions of the Plan and certain other documents and financial information contained or referenced in this Disclosure Statement is fair and accurate. The summaries of the financial information and the documents annexed to this Disclosure Statement, including, but not limited to, the Plan and the exhibits attached thereto, or otherwise incorporated herein by reference, are qualified in their entirety by reference to those documents.

IN THE EVENT OF ANY INCONSISTENCY BETWEEN THIS DISCLOSURE STATEMENT AND THE PLAN, THE RELEVANT PROVISION OF THE PLAN, AS IT RELATES TO SUCH INCONSISTENCY, WILL GOVERN.

No representations concerning the Debtors or the value of the Debtors’ property have been authorized by the Debtors other than as set forth in this Disclosure Statement. Any information, representations or inducements made to obtain acceptance of the Plan, which are other than or inconsistent with the information contained in this Disclosure Statement and in the Plan, should not be relied on by any claim holder entitled to vote on the Plan.

This Disclosure Statement has not been reviewed, approved or disapproved by the United States Securities and Exchange Commission (the “SEC”) or any similar federal, state, local or foreign regulatory agency, nor has the SEC or any other such agency passed upon the accuracy or adequacy of the statements contained in this Disclosure Statement.

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The Debtors have sought to ensure the accuracy of the financial information provided in this Disclosure Statement, but the financial information contained in, or incorporated by reference into, this Disclosure Statement has not been and will not be audited or reviewed by the Debtors’ independent auditors unless explicitly provided otherwise.

Some of the securities described in this Disclosure Statement will be issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), or similar federal, state, local or foreign laws, in reliance on the exemption set forth in section 1145 of the Bankruptcy Code or other applicable exemptions. Other securities may be issued pursuant to other applicable exemptions under the federal securities laws. To the extent exemptions from registration, other than section 1145, apply, such securities may not be offered or sold except pursuant to a valid exemption or upon registration under the Securities Act.

The Debtors make statements in this Disclosure Statement that are considered forward-looking statements under the federal securities laws. The Debtors consider all statements regarding anticipated or future matters, including the following, to be forward-looking statements:

• any future effects as a result of the pendency of the Chapter 11 Cases;

• the Debtors’ expected future financial position, liquidity, results of operations, profitability and cash flows;

• projected dividends;

• competitive position;

• business strategy;

• budgets;

• projected cost reductions;

• projected and estimated liability costs, including pension, retiree, tort and environmental costs and costs of environmental remediation;

• results of litigation;

• disruption of operations;

• plans and objectives of management for future operations;

• contractual obligations;

• off-balance sheet arrangements;

• growth opportunities for existing products and services;

• projected price increases;

• projected general market conditions;

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• benefits from new technology; and

• effects of changes in accounting due to recently issued accounting standards.

Statements concerning these and other matters are not guarantees of the Debtors’ future performance. Such statements represent the Debtors’ estimates and assumptions only as of the date such statements were made. There are risks, uncertainties and other important factors that could cause the Debtors’ actual performance or achievements to be materially different from those they may project and the Debtors undertake no obligation to update any such statement. These risks, uncertainties and factors include:

• the ability of the Debtors to continue as going concerns;

• the ability of the Debtors to obtain Bankruptcy Court approval with respect to motions in the Chapter 11 Cases;

• the ability of the Debtors to prosecute, develop and consummate the proposed Plan with respect to the Chapter 11 Cases;

• the effects of the bankruptcy filing on the Debtors and the interests of various creditors, equity holders and other constituents;

• Bankruptcy Court rulings in the Chapter 11 Cases and the outcome of the cases in general;

• the length of time the Debtors will operate under the Chapter 11 Cases;

• risks associated with third-party motions in the Chapter 11 Cases, which may interfere with the ability of the Debtors to develop and consummate the proposed Plan;

• the potential adverse effects of the Chapter 11 Cases on the Debtors’ liquidity or results of operations;

• the ability to execute the Debtors’ business and restructuring plan and to timely and effectively implement the turnaround strategy;

• increased legal costs related to the bankruptcy filing and other litigation;

• the Debtors’ ability to maintain contracts that are critical to its operation;

• the Debtors’ ability to obtain and maintain normal terms with customers, suppliers and service providers;

• the Debtors’ ability to retain key executives, managers and employees;

• various operating factors and general economic conditions, competitive practices and pricing in the food industry generally and particularly in our principal geographic markets;

• our relationships with our employees;

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• the terms of future CBAs;

• the costs and other effects of lawsuits and administrative proceedings;

• the nature and extent of continued consolidation in the food industry;

• changes in the capital markets which may affect our cost of capital or the ability to access capital;

• supply or quality control problems with our vendors;

• regulatory compliance; and

• changes in economic conditions, which may affect the buying patterns of our customers.

Additional factors that could cause actual results to differ materially from the forward-looking statements we make in this Disclosure Statement are set forth in the reports or documents that we file from time to time with the SEC, including our most recent Annual Report on Form 10-K filed with the SEC on May 10, 2011 (File No. 001-04141), as amended by our Form 10-K/A filed with the SEC on June 24, 2011 (File No. 001-04141), and our Quarterly Report on Form 10-Q filed with the SEC on October 28, 2011 (File No. 001-04141), including any amendments thereto, each of which is hereby incorporated by reference herein.

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ARTICLE I.

INTRODUCTION

On December 12, 2010, (the “Commencement Date”), the above-captioned debtors and debtors in possession (collectively, the “Debtors,” and with their non-Debtor affiliates, “A&P”) filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code (as defined herein) in the Bankruptcy Court (the “Chapter 11 Cases”). On December 13, 2010, the Bankruptcy Court entered an order jointly administering the Chapter 11 Cases pursuant to Bankruptcy Rule 1015(b) under the lead case: The Great Atlantic & Pacific Tea Company, Inc.; Case No. 10-24549. The Debtors are operating their business and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee has been appointed in the Chapter 11 Cases. On December 21, 2010, the United States Trustee for the Southern District of New York (the “United States Trustee”) appointed an official committee of unsecured creditors (the “Creditors’ Committee”) pursuant to section 1102 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”).

The Debtors submit this disclosure statement (the “Disclosure Statement”) pursuant to section 1125 of the Bankruptcy Code for purposes of soliciting votes to accept or reject the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (the “Plan”), filed contemporaneously herewith, a copy of which is attached to the Disclosure Statement as Exhibit A.²

This Disclosure Statement sets forth certain information regarding the Debtors’ prepetition operations and financial history, their reasons for seeking protection under chapter 11, and significant events that have occurred during the Chapter 11 Cases. This Disclosure Statement also describes certain terms and provisions of the Plan, certain effects of Confirmation of the Plan, certain risk factors associated with the Plan and the securities to be issued under the Plan, and the manner in which distributions will be made under the Plan. In addition, this Disclosure Statement discusses the requirements for Confirmation of the Plan and the voting procedures that holders of Claims and Interests entitled to vote on the Plan must follow for their votes to be counted.

A. Rules of Interpretation

The following rules for interpretation and construction shall apply to the Disclosure Statement: (1) whenever from the context it is appropriate, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (2) unless otherwise specified, any reference in the Disclosure Statement to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (3) unless otherwise specified, any reference in the Disclosure Statement to an existing document, schedule, or exhibit, whether or not filed, shall mean such document, schedule, or exhibit, as it may have been or may be amended, modified, or supplemented; (4) any reference to an Entity as a holder of a Claim or Interest includes that Entity’s successors and assigns; (5) unless otherwise specified, all references in the Disclosure Statement to Articles are references to Articles of the Disclosure Statement; (6) unless otherwise specified, all references in the Disclosure Statement to exhibits are references to exhibits to the Disclosure Statement; (7) the words “herein,” “hereof,” and “hereto” refer to the Disclosure Statement in its entirety rather than to a particular portion of the Disclosure Statement; (8) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Disclosure Statement; (9) unless otherwise set forth in the Disclosure Statement, the

²  Capitalized terms used in the Disclosure Statement and not otherwise defined shall have the meanings ascribed to such terms in Article I.A of the Plan.

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rules of construction set forth in section 102 of the Bankruptcy Code shall apply; (10) unless otherwise specified herein, any reference to the term “including” herein shall mean “including without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (11) any term used in capitalized form in the Disclosure Statement that is not otherwise defined in the Disclosure Statement, Plan, or exhibits to the Disclosure Statement Order, but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as applicable; (12) all references to docket numbers of documents filed in the Chapter 11 Cases are references to the docket numbers under the Bankruptcy Court’s CM/ECF system; (13) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, unless otherwise stated; (14) in computing any period of time prescribed or allowed, the provisions of Bankruptcy Rule 9006(a) shall apply, and if the date on which a transaction may occur pursuant to the Disclosure Statement shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day; and (15) unless otherwise specified, all references in the Disclosure Statement to monetary figures shall refer to currency of the United States of America.

ARTICLE II.

OVERVIEW OF THE PLAN

A. General Structure of the Plan

Pursuant to the Plan, the Investors are providing a total New Money Commitment of $490 million in the form of (i) $210 million³ face amount of privately placed New Second Lien Notes, (ii) $210 million face amount of privately placed New Convertible Third Lien Notes, and (iii) an $80 million New Equity Investment. The proceeds of the New Money Commitment will allow the Debtors to make distributions pursuant to the Plan, including paying certain secured creditors in full in cash, and will provide a cash pool of $40 million, less the amount distributed pursuant to the Substantive Consolidation Settlement, for distributions to General Unsecured Creditors.

The Plan provides for a settlement and compromise of the intercreditor issues relating to whether the liabilities and assets of the Debtors should be substantively consolidated for purposes of distributions under the Plan. Except as modified by this Substantive Consolidation Settlement, Claims are treated generally in accordance with the priorities established under the Bankruptcy Code.

B. Classification of Claims and Interests Under the Plan

1. Classification

The Plan divides all Claims (except Administrative Claims, Professional Claims, DIP Facility Claims, and Priority Tax Claims) and all Interests into various Classes. Listed below is a summary of the Classes of Claims and Interests under the Plan.

Class	Claim or Interest
A	Second Lien Note Claims
B	Secured Tax Claims
C	Other Secured Claims
D	Other Priority Claims

³  The $210 million face amount of the New Second Lien Notes will be issued with a 5.0% original issue discount, therefore, the aggregate amount of the securities includes $200 million–not $210 million–in funds from the issuance of the New Second Lien Notes.

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Class	Claim or Interest
E	Convertible Notes Claims
F	9.125% Senior Note Claims
G	Quarterly Interest Bond Claims
H	Trade Claims
I	Guaranteed Landlord Claims
J	Pension Withdrawal Claims
K	Union Claims
L	General Unsecured Claims
M	Intercompany Claims
N	Interests in A&P
O	Intercompany Interests
P	Subordinated Claims

2. Unclassified Claims

In accordance with section 1123(a)(1) of the Bankruptcy Code, the Plan does not classify Administrative Claims, Professional Claims, DIP Facility Claims, or Priority Tax Claims. These Claims are therefore excluded from the Classes of Claims set forth in Article III of the Plan. This information is provided in summary form for illustrative purposes only and is subject to material change.

Claim	Plan Treatment	Estimated Aggregate Amount of Allowed Claims Under Plan	Projected Recovery Under the Plan
Administrative and Professional Claims	Paid in full in Cash.	$165.0 million - $205.0 million		100	%
DIP Facility Claims	Paid in full in Cash.	$355.0 million		100	%
Priority Tax Claims	Paid in full in Cash.	$1.0 million - $5.0 million		100	%

C. Treatment of Claims and Interests Under the Plan

The table below summarizes the Classes of Claims and Interests under the Plan, the treatment of such Classes, the voting rights of such Classes, the projected recovery, if any, under the Plan for such Classes. This information (some of which is based on Proofs of Claim filed by Indenture Trustees or Agents, which Proofs of Claim remain subject to the Debtors’ further review and right to object thereto) is provided in summary form for illustrative purposes only and is subject to material change. To the extent of any inconsistency between the summaries contained in the Disclosure Statement and those set forth in the Plan, the Plan shall govern.

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Class	Type of Claim or Interest	Estimated Range of Allowed Claims or Interests	Treatment of Claim/Interest	Estimated Range of % Recovery Under the Plan
A	Second Lien Note Claims	$308.85 million - $310.85 million	•       If Class A votes to accept the Plan or is presumed to have accepted the Plan: Cash distributed on the Effective Date in an amount equal to such holder’s Pro Rata portion of the Second Lien Cash Pool; •       If Class A votes to reject the Plan: At the holder’s election, (A) Cash distributed on the Effective Date in an amount equal to such holder’s Pro Rata portion of the Second Lien Cash Pool (without any reduction on account of the Allowed amount of any Second Lien Note Claims that are satisfied with Replacement Second Lien Notes), or (B) Replacement Second Lien Notes with a present value equal to the Allowed amount of such holder’s Second Lien Note Claim (which may include any makewhole claim, prepayment penalty, or Applicable Premium Allowed by the Bankruptcy Court, if any, in addition to Second Lien Note Claims Allowed pursuant to Article III.C.1.b of the Plan).4	100%

⁴  Under Article III.C.1.c.ii of the Plan, a holder of Second Lien Note Claims that duly elects option (A) will receive its Pro Rata share of the Second Lien Cash Pool (as determined by such holder’s Pro Rata share of the aggregate principal amount of all Second Lien Note Claims) without regard to any Second Lien Note Claims satisfied by Replacement Second Lien Notes if Class A votes to reject the Plan.

By way of illustration, under Article III.C.1.c.ii, a hypothetical holder of $26,000,000.00 in aggregate principal amount of Second Lien Note Claims (i.e., 10.0% of the aggregate principal amount of all Second Lien Note Claims) that duly elects option (A) will receive $30,966,000.00 on a March 1, 2012 Effective Date if Class A votes to reject the Plan (i.e., 10.0% of the Second Lien Notes Cash Pool)—regardless of whether other holders of Second Lien Note Claims elect to share in the Second Lien Cash Pool or to receive Replacement Second Lien Notes, and regardless of whether any Replacement Second Lien Notes issued by the Debtors incorporate the value of a makewhole premium, prepayment penalty, or similar charge allowed by the Bankruptcy Court, if any.

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B	Secured Tax Claims	$0.07 million - $0.10 million	•       Paid in full in Cash on the Initial Distribution Date or as soon as practicable thereafter; •       Paid in equal semi-annual cash payments for up to five years, in aggregate amount equal to full Claim amount; or •       Paid in regular Cash payments in a manner not less favorable than the most favored non-priority Claim	100%
C	Other Secured Claims	$0.7 million - $1.2 million	•       Reinstated; •       Paid in full (including interest), in Cash; or •       Receive collateral securing full amount of Claim (including interest)	100%
D	Other Priority Claims	$1.5 million - $1.9 million	Paid in full in Cash on the later of: •       the Initial Distribution Date, or •       the date the Claim becomes Allowed	100%
E	Convertible Notes Claims	$432.62 million	Paid Pro Rata share of Unsecured Creditor Cash Pool on the Initial Distribution Date	2.1% - 2.7%
F	9.125% Senior Note Claims	$13.42 million	Paid Pro Rata share of Unsecured Creditor Cash Pool on the Initial Distribution Date	2.1% - 2.7%
G	Quarterly Interest Bond Claims	$202.14 million	Paid Pro Rata share of Unsecured Creditor Cash Pool on the Initial Distribution Date	2.1% - 2.7%

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H	Trade Claims	$40.00 million - $50.00 million	•       Paid Pro Rata share of Unsecured Creditor Cash Pool; and •       If holder enters into a trade agreement acceptable to the Debtors and the Investors before the Effective Date, paid Pro Rata share of the Trade Claims Cash Pool5	2.1% - 2.7%
I	Guaranteed Landlord Claims	$10.00 million - $30.00 million	•       Paid Pro Rata share of Unsecured Creditor Cash Pool; or •       If holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s aggregate recovery for its Allowed Class I Claim is equal to the product of (x) what such holder would receive under the above clause for such Allowed Class I Claim (as adjusted for Pro Rata calculations) multiplied by (y) 1.46	3.0% - 3.9%
J	Pension Withdrawal Claims	$150.00 million - $310.00 million	•       Paid Pro Rata share of Unsecured Creditor Cash Pool; or •       If holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s total percentage recovery for its Allowed Class J Claim is equal to the product of (x) what such holder would receive under the above clause for such Allowed Class J Claim (as adjusted for Pro Rata calculations) multiplied by (y) 2.35	4.9% - 6.3%

⁵  The “Trade Claims Cash Pool” is a Cash pool up to $10 million, separate and apart from the Unsecured Creditor Cash Pool, to the extent approved by the Bankruptcy Court, from which discretionary Cash distributions may be made to holders of Allowed Trade Claims who enter into trade agreements acceptable to the Debtors and the Investors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) prior to the Effective Date (to take effect upon and following the Effective Date), all as described in Exhibit A to the Plan.

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K	Union Claims	N/A	Paid pursuant to Union Settlement Agreement	N/A
L	General Unsecured Claims	$440.00 million - $520.00 million6	Paid Pro Rata share of Unsecured Creditor Cash Pool on the Initial Distribution Date	2.1% - 2.7%
M	Intercompany Claims	N/A	No recovery, but may be Reinstated in the discretion of the Debtors	0% - 100%
N	Interests in A&P	N/A	Cancelled	0%
O	Intercompany Interests	N/A	No recovery, but may be Reinstated in the discretion of the Debtors	0% - 100%
P	Subordinated Claims	N/A	No recovery	0%

The Debtors’ Claims Agent has received approximately 10,700 Proofs of Claim. While the Debtors have not reconciled all filed Proofs of Claim against their books and records or begun the claims objection process, they believe that many of the filed Proofs of Claim are invalid, untimely, duplicative, or overstated, and, therefore, have assumed for purposes of estimating recoveries that such Claims shall be reduced in amount or expunged from the Claims Register, such that the actual total amount of the unsecured claims pool is approximately $1 billion to $1.7 billion, approximately $650 million of which is bond debt. However, this estimated range does not reflect the asserted face value of the various Proofs of Claim, which the Debtors have not fully analyzed. Further, additional Proofs of Claim may be filed after the Bar Date, which could be Allowed by the Bankruptcy Court. Accordingly, the ultimate number and Allowed amount of Claims asserted against the Debtors are not presently known and the final resolution of such Claims could result in a material adjustment to the recoveries and Claim estimates provided above. The Debtors reserve their right to contest any and all Proofs of Claim for any reason including, validity, amount, and timeliness.

D. Investment Analysis, Liquidation Analysis, and Financial Projections

1. Analysis of the Investors’ New Money Commitment to the Debtors

Pursuant to the Plan and the Securities Purchase Agreements, the Investors are providing a total New Money Commitment of $490 million in the form of (i) $210 million⁷ face amount privately placed New Second Lien Notes, (ii) $210 million face amount privately placed New Convertible Third Lien Notes, and (iii) an $80 million New Equity Investment. The proceeds of the New Money Commitment

⁶  Grocery Haulers, Inc. (“GHI”) has filed proofs of claim against A&P and Pathmark Stores, Inc. in the aggregate amount of approximately $220.9 million, of which GHI contends $107.9 million is an administrative claim. The Debtors disagree with the amount of GHI’s asserted general unsecured claim and believe that GHI does not have any administrative claim. The Debtors reserve their rights to contest GHI’s proofs of claim.

⁷  The $210 million face amount of the New Second Lien Notes will be issued with a 5.0% original issue discount, therefore, the aggregate amount of the securities includes $200 million–not $210 million–in funds from issuance of the New Second Lien Notes.

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will allow the Debtors to make distributions pursuant to the Plan, including paying certain secured creditors in full in cash, and will provide a cash pool of $40 million, less the amount distributed pursuant to the Substantive Consolidation Settlement, for distributions to General Unsecured Creditors.

The Debtors and Lazard believe that this new capital infusion and the post-reorganization capital structure proposed pursuant to the Plan is currently the best measure of the Debtors’ value and best maximizes the value of the Debtors’ estates and provides the Debtors with the best chances of reorganizing successfully because:

• the Debtors and their advisors believe that a substantial capital infusion is necessary for the Debtors to reorganize and the Securities Purchase Agreements underlying the Plan provide for that necessary capital;

• the investment represents the culmination of several months of robust negotiations that culminated in the Securities Purchase Agreements through which the Investors will provide the capital necessary to consummate the Plan and for the Debtors to reorganize;

• the Securities Purchase Agreements and the capital commitments contained therein were approved by the Court and remain subject to in-bound higher or better offers, the plan confirmation and disclosure statement requirements in the Bankruptcy Code;

• the Debtors received no viable inbound inquiries except from the Investors, which, given the high profile of the Debtors’ Chapter 11 Cases and the fact that the Debtors filed for bankruptcy protection in late 2010, make it unlikely that additional parties with serious interest in providing the Debtors with the needed level of capital will emerge;

• the investment allows the Debtors to potentially emerge from bankruptcy instead of lingering in chapter 11 and accruing extra bankruptcy-related costs;

• the investment remains subject to offers on higher or better terms, specifically, the Debtors will be able to fully consider any proposal they receive from a third party and should the Board approve the negotiation of such proposal, and under circumstances delineated in the Securities Purchase Agreements, terminate such agreements, subject to a $15 million market break-up fee; and

• the Debtors have encouraged the Creditors’ Committee’s advisors to market a different deal to prospective investors if they deem it worthwhile.

2. Liquidation Analysis

As described in greater detail in the Liquidation Analysis attached hereto as Exhibit D, in a hypothetical case under chapter 7 of the Bankruptcy Code, Holders of Allowed Administrative Claims would not be paid in full and Holders of Allowed Unsecured Claims would not receive any recovery. By comparison, under the Plan, Holders of Allowed Administrative Claims are paid in full in Cash, Holders of Allowed General Unsecured Claims receive their Pro Rata share of the Unsecured Creditor Cash Pool, Holders of Allowed Trade Claims who enter into a trade agreement acceptable to the Debtors and the Investors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) prior to the Effective Date may receive a share of the Trade Claims Cash Pool, and Holders of Allowed Guaranteed Landlord Claims who vote in favor of the Plan and Holders of Allowed Pension Withdrawal Claims who vote in favor of the Plan, with the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a designation or distribution decision by the Debtors or

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Reorganized Debtors that is not adverse to the Investors), and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent, will receive an additional distribution pursuant to the Substantive Consolidation Settlement. Therefore, the Debtors believe that the Plan satisfies the “best interests test” under section 1129(a)(7) of the Bankruptcy Code.

The Liquidation Analysis was prepared in a manner consistent with the settlement and compromise of issues related to substantive consolidation set forth in the Plan and as discussed herein. Even if a deconsolidated chapter 7 liquidation were possible, and the Debtors do not believe it would be possible, the Debtors believe that unsecured creditor recoveries in a liquidation under chapter 7 of the Bankruptcy Code would not exceed recoveries provided to prepetition unsecured creditors pursuant to the Plan in any reasonable scenario.

3. Financial Projections

As further discussed in Article VIII of this Disclosure Statement, the Debtors believe the Plan meets the feasibility requirement set forth in section 1129(a)(11) of the Bankruptcy Code, as Confirmation is not likely to be followed by liquidation or the need for the financial reorganization of the Reorganized Debtors. In connection with developing the Plan, and for purposes of determining whether the Plan satisfies feasibility standards, the Debtors’ management has, through the development of financial projections, which reflect the proposed effect of the Union Settlement Agreement, for the years of 2012 through 2015 as attached hereto as Exhibit C (the “Financial Projections”), analyzed the Debtors’ ability to meet their obligations under the Plan and to maintain sufficient liquidity and capital resources to conduct their business. In general, as illustrated by the Financial Projections and the capital infusion contemplated under the Securities Purchase Agreements, the Debtors believe that the Reorganized Debtors’ businesses will be viable with long-term prospects, and will have sufficient liquidity to fund obligations as they arise, thereby maintaining value. Accordingly, the Debtors believe the Plan satisfies the feasibility requirement of section 1129(a)(11) of the Bankruptcy Code. The Debtors, with the assistance of Lazard, prepared the Financial Projections in good faith, based upon estimates and certain assumptions.

THE FINANCIAL PROJECTIONS ASSUME THAT THE PLAN WILL BE CONSUMMATED IN ACCORDANCE WITH ITS TERMS AND THAT ALL TRANSACTIONS CONTEMPLATED BY THE PLAN WILL BE CONSUMMATED BY THE ASSUMED EFFECTIVE DATE. ANY DELAY IN THE ASSUMED EFFECTIVE DATE OF THE PLAN MAY HAVE A NEGATIVE IMPACT ON THE OPERATIONS AND FINANCIAL PERFORMANCE OF THE DEBTORS INCLUDING, BUT NOT LIMITED TO, AN INCREASED RISK OF INABILITY TO MEET SALES FORECASTS AND HIGHER REORGANIZATION EXPENSES. ADDITIONALLY, THE ESTIMATES AND ASSUMPTIONS IN THE FINANCIAL PROJECTIONS, WHILE CONSIDERED REASONABLE BY MANAGEMENT, MAY NOT BE REALIZED, AND ARE INHERENTLY SUBJECT TO UNCERTAINTIES AND CONTINGENCIES. THESE ESTIMATES AND ASSUMPTIONS ALSO ARE BASED ON FACTORS SUCH AS INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC, COMPETITIVE, REGULATORY, MARKET, AND FINANCIAL CONDITIONS, ALL OF WHICH ARE SUBJECT TO CHANGE AND BEYOND THE DEBTORS’ CONTROL. GIVEN THAT FUTURE EVENTS AND CIRCUMSTANCES MAY AFFECT THE DEBTORS’ ESTIMATES AND ASSUMPTIONS, THE DEBTORS EXPECT THAT ACTUAL RESULTS WILL DIFFER FROM PROJECTED RESULTS IN SOME WAY AND THAT ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE FINANCIAL PROJECTIONS. ACCORDINGLY, NO REPRESENTATIONS CAN BE MADE AS TO THE ACCURACY OF THE FINANCIAL PROJECTIONS OR THE PURCHASER’S ABILITY TO ACHIEVE THE PROJECTED RESULTS. THE FINANCIAL PROJECTIONS CONTAINED HEREIN MAY NOT BE RELIED UPON AS A GUARANTY OR OTHER ASSURANCE OF THE ACTUAL RESULTS. THE

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INCLUSION OF THE FINANCIAL PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT THE DEBTORS CONSIDERED OR CONSIDER THE FINANCIAL PROJECTIONS TO RELIABLY PREDICT FUTURE PERFORMANCE. THE FINANCIAL PROJECTIONS ARE SUBJECTIVE IN MANY RESPECTS, AND THUS ARE SUSCEPTIBLE TO INTERPRETATIONS AND PERIODIC REVISIONS BASED ON ACTUAL EXPERIENCE AND RECENT DEVELOPMENTS. THE DEBTORS DO NOT INTEND TO UPDATE OR OTHERWISE REVISE THE FINANCIAL PROJECTIONS TO REFLECT THE OCCURRENCE OF FUTURE EVENTS, EVEN IN THE EVENT THAT ASSUMPTIONS UNDERLYING THE FINANCIAL PROJECTIONS ARE NOT BORNE OUT. THE FINANCIAL PROJECTIONS SHOULD BE READ IN CONJUNCTION WITH THE ASSUMPTIONS AND QUALIFICATIONS SET FORTH HEREIN.

E. Certain Factors to Be Considered Prior to Voting

There are a variety of factors that all holders of Claims entitled to vote on the Plan should consider prior to voting to accept or reject the Plan. Some of these factors, which are described in more detail in Article IX and Article X, are as follows and may impact recoveries under the Plan:

• Unless otherwise specifically indicated, the financial information contained in the Disclosure Statement has not been audited and is based on an analysis of data available at the time of the preparation of the Plan and Disclosure Statement.

• Article X describes certain significant federal tax consequences of the transactions contemplated by the Plan that may affect the Debtors, including the realization of cancellation of indebtedness income, reduction of net operating loss (“NOL”) carryforwards and unrealized built-in losses, and the limitations that may apply to the Debtors’ usage of those NOLs and unrealized built-in-losses. Article X also describes the federal tax consequences of the transactions contemplated by the Plan that may affect holders of Claims and Interests, including the recognition of taxable income by such holders. Holders of Claims and Interests are urged to consult with their own tax advisors regarding the federal, state, local, and foreign tax consequences of the Plan.

• Although the Debtors believe that the Plan complies with all applicable provisions of the Bankruptcy Code, the Debtors cannot assure such compliance nor that the Bankruptcy Court will confirm the Plan.

• The Debtors may request Confirmation without the acceptance of all Impaired Classes entitled to vote in accordance with section 1129(b) of the Bankruptcy Code.

• Any delays of either Confirmation or Consummation could result in, among other things, increased Administrative Claims and Professional Claims.

While these factors could affect distributions available to holders of Allowed Claims under the Plan, the occurrence or impact of such factors will not necessarily affect the validity of the vote of the Impaired Classes entitled to vote to accept or reject the Plan (the “Voting Classes”) or necessarily require a re-solicitation of the votes of holders of Claims in such Voting Classes.

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ARTICLE III.

VOTING PROCEDURES

The following Classes are the only Classes entitled to vote to accept or reject the Plan:

Class	Claim	Status
A	Second Lien Note Claims	Impaired/Unimpaired8
E	Convertible Notes Claims	Impaired
F	9.125% Senior Note Claims	Impaired
G	Quarterly Interest Bond Claims	Impaired
H	Trade Claims	Impaired
I	Guaranteed Landlord Claims	Impaired
J	Pension Withdrawal Claims	Impaired
K	Union Claims	Impaired
L	General Unsecured Claims	Impaired

If your Claim is not included in these Classes, you are not entitled to vote and you will not receive a Solicitation Package.⁹

A. Vote Required for Acceptance by a Class

Under the Bankruptcy Code, acceptance of a plan of reorganization by a Class of Claims or Interests is determined by calculating the number and the amount of Claims or Interests voting to accept, based on the actual total Allowed Claims or Interests voting on the Plan. Acceptance by a Class requires more than one-half of the number of total Allowed Claims or Interests in the Class to vote in favor of the Plan and at least two-thirds in dollar amount of the total Allowed Claims or Interests in the Class to vote in favor of the Plan.

B. Classes Not Entitled to Vote

Under the Bankruptcy Code, Creditors are not entitled to vote if their contractual rights are Unimpaired by the Plan or if they will receive no distribution of property under the Plan. Based on this standard, the following Classes will not be entitled to vote on the Plan:

Class	Claim	Status	Voting Rights
A	Second Lien Note Claims	Impaired/ Unimpaired	Entitled to Vote/ Conclusively Presumed to Accept10
B	Secured Tax Claims	Unimpaired	Conclusively Presumed to Accept

⁸  Pursuant to Article III.C.1.d of the Plan, Class A is Impaired and holders of Allowed Class A Claims may vote to accept or reject the Plan; provided that the Debtors reserve the right to assert the treatment provided to holders of Second Lien Note Claims under Article III.C.1 of the Plan renders holders of Second Lien Note Claims Unimpaired.

⁹  Capitalized terms used in this Article III but not defined in the Disclosure Statement or the Plan shall have the meanings ascribed to them in the Solicitation Procedures attached as Exhibit 1 to the Disclosure Statement Order, once approved.

¹⁰  Pursuant to Article III.C.1.d of the Plan, Class A is Impaired and holders of Allowed Class A Claims may vote to accept or reject the Plan; provided that the Debtors reserve the right to assert the treatment provided to holders of Second Lien Note Claims under Article III.C.1 of the Plan renders holders of Second Lien Note Claims Unimpaired.

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Class	Claim	Status	Voting Rights
C	Other Secured Claims	Unimpaired	Conclusively Presumed to Accept
D	Other Priority Claims	Unimpaired	Conclusively Presumed to Accept
M	Intercompany Claims	Impaired/ Unimpaired	Deemed to Reject/ Conclusively Presumed to Accept11
N	Interests in A&P	Impaired	Deemed to Reject
O	Intercompany Interests	Impaired/ Unimpaired	Deemed to Reject/ Conclusively Presumed to Accept12
P	Subordinated Claims	Impaired	Deemed to Reject

C. Solicitation Procedures

1. Claims Agent

The Debtors retained KCC to, among other things, act as Claims Agent and will request authority to retain KCC in connection with the solicitation of votes to accept or reject the Plan (the “Solicitation Agent”). The Debtors anticipate requesting authority to retain KCC as their Solicitation Agent at or prior to the hearing on the Disclosure Statement.

2. Solicitation Package

The following materials shall constitute the Solicitation Package:

• the appropriate Ballot(s) and Master Ballots and applicable voting instructions, together with a pre-addressed, postage pre-paid return envelope;

• the Disclosure Statement, as approved by the Bankruptcy Court (with all appendices thereto, including the Plan);

• a letter from the Debtors to the Voting Classes recommending that holders of Claims in such Classes vote to accept the Plan; and

• any supplemental solicitation materials the Debtors may file with the Bankruptcy Court.

¹¹  Pursuant to Article III.C.12. of the Plan, Holders of Allowed Class L Claims are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class L Intercompany Claims are Reinstated, in which case the holders of Allowed Class L Intercompany Claims are Unimpaired and are conclusively presumed to accept.

¹²  Pursuant to Article III.C.14. of the Plan, Holders of Allowed Class N Intercompany Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class N Intercompany Interests are Reinstated, in which case the holders of Allowed Class N Intercompany Interests are Unimpaired and are conclusively presumed to accept.

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3. Distribution of the Solicitation Package and Plan Supplement

Through the Solicitation Agent, the Debtors intend to distribute the Solicitation Packages on or before December 23, 2011, a date approximately 30 days in advance of the Voting Deadline.

The Solicitation Package will be distributed in accordance with the Solicitation Procedures, which shall be attached as Exhibit 1 to the Disclosure Statement Order. The Solicitation Package (except the Ballots and Master Ballots) may also be obtained from the Claims Agent by: (a) calling the Debtors’ restructuring hotline at (877) 660-6625 within the U.S. or Canada or, outside of the U.S. or Canada, by calling (732) 645-4133; (b) visiting the Debtors’ restructuring website at http://www.kccllc.net/APTea; and/or (c) writing to The Great Atlantic & Pacific Tea Company, c/o Kurtzman Carson Consultants LLC, 2335 Alaska Avenue, El Segundo, California 90245. You may also obtain copies of any pleadings filed in these Chapter 11 Cases for free by visiting the Debtors’ restructuring website at http://www.kccllc.net/APTea or for a fee via PACER at http://ecf.nysb.uscourts.gov.

Prior to the Confirmation Hearing, the Debtors intend to file a Plan Supplement that includes, among other things, the list of assumed Executory Contracts (with associated Cure Amounts, if any), and a description of retained Causes of Action. As the Plan Supplement is updated or otherwise modified, such modified or updated documents will be made available on the Debtors’ restructuring website. The Debtors will not serve paper or CD-ROM copies of the Plan Supplement; however, parties may obtain a copy of the Plan Supplement from the Claims Agent by: (a) calling the Debtors’ restructuring hotline at (877) 660- 6625 within the U.S. or Canada or, outside of the U.S. or Canada, calling (732) 645-4133; (b) visiting the Debtors’ restructuring website at: http://www.kccllc.net/APTea; and/or (c) writing to The Great Atlantic & Pacific Tea Company, c/o Kurtzman Carson Consultants LLC, 2335 Alaska Avenue, El Segundo, California 90245.

D. Voting Procedures

The Voting Record Date is December 15, 2011. The Voting Record Date is the date for determining (1) which holders of Claims or Interests are entitled to vote to accept or reject the Plan and receive the Solicitation Package in accordance with the Solicitation Procedures and (2) whether Claims or Interests have been properly assigned or transferred to an assignee pursuant to Bankruptcy Rule 3001(e) such that the assignee can vote as the holder of a Claim. The Voting Record Date and all of the Debtors’ solicitation and voting procedures shall apply to all of the Debtors’ Creditors and other parties in interest.

Under the Plan, holders of Claims in the Voting Classes are entitled to vote to accept or reject the Plan. In order for the holder of a Claim in the Voting Classes to have such holder’s Ballot counted as a vote to accept or reject the Plan, such holder’s Ballot must be properly completed, executed, and delivered by using the return envelope provided by: (a) first class mail; (b) courier; or (c) personal delivery to The Great Atlantic & Pacific Tea Company Balloting Center c/o Kurtzman Carson Consultants LLC 2335 Alaska Avenue, El Segundo, CA 90245, so that such holder’s Ballot or the Master Ballot incorporating the vote cast by such Ballot, as applicable, is actually received by the Claims Agent prior to 5:00 p.m. prevailing Pacific Time on January 24, 2012 (the “Voting Deadline”).

EXCEPT AS OTHERWISE PROVIDED HEREIN, IN THE MOTION TO APPROVE THE DISCLOSURE STATEMENT AND ITS RELATED EXHIBITS: (A) IF NO HOLDERS OF CLAIMS ELIGIBLE TO VOTE IN A PARTICULAR CLASS VOTE TO ACCEPT OR REJECT THE PLAN, THE PLAN SHALL BE DEEMED ACCEPTED BY THE HOLDERS OF SUCH CLAIMS IN SUCH CLASS; AND (B) ANY CLASS OF CLAIMS THAT DOES NOT HAVE A HOLDER OF AN ALLOWED CLAIM OR INTEREST OR A CLAIM TEMPORARILY ALLOWED BY THE BANKRUPTCY COURT AS OF THE DATE OF THE CONFIRMATION HEARING SHALL BE

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DEEMED ELIMINATED FROM THE PLAN FOR PURPOSES OF VOTING TO ACCEPT OR REJECT THE PLAN AND FOR PURPOSES OF DETERMINING ACCEPTANCE OR REJECTION OF THE PLAN BY SUCH CLASS PURSUANT TO SECTION 1129(A)(8) OF THE BANKRUPTCY CODE.

IF A BALLOT IS RECEIVED AFTER THE VOTING DEADLINE, IT WILL NOT BE COUNTED UNLESS THE DEBTORS DETERMINE OTHERWISE IN THEIR SOLE AND ABSOLUTE DISCRETION.

ANY BALLOT THAT IS PROPERLY EXECUTED BY THE HOLDER OF A CLAIM BUT THAT DOES NOT CLEARLY INDICATE AN ACCEPTANCE OR REJECTION OF THE PLAN OR ANY BALLOT THAT INDICATES BOTH AN ACCEPTANCE AND A REJECTION OF THE PLAN WILL NOT BE COUNTED FOR PURPOSES OF ACCEPTING OR REJECTING THE PLAN.

EACH HOLDER OF A CLAIM MUST VOTE ALL OF ITS CLAIMS WITHIN A PARTICULAR CLASS EITHER TO ACCEPT OR REJECT THE PLAN AND MAY NOT SPLIT SUCH VOTES. BY SIGNING AND RETURNING A BALLOT, EACH HOLDER OF A CLAIM WILL CERTIFY TO THE BANKRUPTCY COURT AND THE DEBTORS THAT NO OTHER BALLOTS WITH RESPECT TO SUCH CLAIM HAVE BEEN CAST OR, IF ANY OTHER BALLOTS HAVE BEEN CAST WITH RESPECT TO SUCH CLASS OF CLAIMS, SUCH OTHER BALLOTS INDICATED THE SAME VOTE TO ACCEPT OR REJECT THE PLAN.

IT IS IMPORTANT THAT THE HOLDER OF A CLAIM IN THE VOTING CLASSES FOLLOW THE SPECIFIC INSTRUCTIONS PROVIDED ON SUCH HOLDER’S BALLOT AND THE ACCOMPANYING INSTRUCTIONS.

IF YOU VOTE TO ACCEPT THE PLAN, YOU ARE AUTOMATICALLY DEEMED TO CONSENT TO THE THIRD PARTY RELEASE IN ARTICLE VIII.E OF THE PLAN. IF YOU VOTE TO REJECT THE PLAN OR DO NOT SUBMIT A VOTE, YOU ARE NOT BOUND BY THE THIRD PARTY RELEASE.

E. Confirmation Hearing

Pursuant to section 1128(a) of the Bankruptcy Code, the Bankruptcy Court, after notice, may hold a hearing on Confirmation of the Plan. Section 1128(b) of the Bankruptcy Code provides that any party in interest may object to Confirmation of the Plan.

The Confirmation Hearing will commence on February 6, 2012 at 10:00 a.m. prevailing Eastern Time, before the Honorable Robert D. Drain, United States Bankruptcy Judge, in the United States Bankruptcy Court for the Southern District of New York, 300 Quarropas Street, White Plains, New York 10601. The Confirmation Hearing may be continued from time to time without further notice other than an adjournment announced in open court or a notice of adjournment filed with the Bankruptcy Court and served on the master service list and the Entities who have filed an objection to the Plan (“Plan Objection”), without further notice to parties in interest. The Bankruptcy Court, in its discretion and prior to the Confirmation Hearing, may put in place additional procedures governing the Confirmation Hearing. The Plan may be modified, if necessary, prior to, during, or as a result of the Confirmation Hearing, without further notice to parties in interest.

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The deadline to file Plan Objections is 5:00 p.m. prevailing Eastern Time on January 24, 2012. All Plan Objections must be filed with the Bankruptcy Court and served on the Debtors and certain other parties in interest in accordance with the Disclosure Statement Order so that they are received on or before the deadline to file Plan Objections.

F. Confirmation and Consummation of the Plan

The Confirmation Order shall approve all provisions, terms, and conditions of the Plan unless such provisions, terms, or conditions are otherwise satisfied or waived pursuant to the Plan provisions described in Article VI.O.2 herein.

ARTICLE IV.

GENERAL INFORMATION

A. Overview of the Debtors’ History and Industry

Headquartered in Montvale, New Jersey, the Debtors are a leading supermarket retailer, operating under a variety of well-known trade names, or “banners” across the mid-Atlantic and Northeastern United States. As of September 10, 2011, the Debtors operated approximately 336 conventional supermarkets, combination food and drug stores, and discount food stores under a variety of banners, including A&P, Waldbaum’s, SuperFresh, Pathmark, Food Basics, The Food Emporium, Best Cellars, and A&P Liquors, averaging approximately 42,000 square feet per store. As of September 10, 2011, the Debtors reported total assets of $2.34 billion and liabilities of $3.58 billion. The Debtors employ approximately 40,700 employees of whom approximately 69 percent were employed on a part-time basis and approximately 92 percent were covered by CBAs.

The Debtors’ store locations are typically leased, although the Debtors own a limited number of properties, including undeveloped land. As of February 27, 2010, the Debtors’ open stores averaged approximately 42,200 square feet. The Debtors’ retail footprint also reflects their December 2007 acquisition of Pathmark, in which the Debtors acquired 141 Pathmark-branded stores for total consideration of approximately $1.4 billion (the “Pathmark Acquisition”). The Debtors financed the Pathmark Acquisition through a combination of cash on hand, equity, and approximately $475 million of debt financing.

The Debtors’ supermarkets typically offer a broad variety of branded and private label packaged or “shelf stable” foods, as well as fresh and frozen produce, meat, seafood, dairy, and general merchandise. Many of the Debtors’ supermarkets include in-store bakeries, delis, floral departments, and fresh meat and seafood counters, and in-store pharmacies. The Debtors experience high rates of inventory turnover as a function of both customer demand and perishability.

The Debtors’ operating cash flow critically depends on their ability to provide customers with high volumes of fresh, high quality, food, beverage, pharmaceutical, and other products without interruption. On average, each of the Debtors’ supermarkets will sell approximately 25,000 different stock-keeping units in a given week.¹³ And, while the Debtors obtain a majority of inventory from C&S Wholesale Grocers, Inc. (“C&S”), with whom the Debtors restructured their supply and logistics agreement as described below, the Debtors also rely on a broad network of approximately 2,600 other vendors, including suppliers of fresh dairy, meat, and seafood products, branded and private label food processors and other specialty suppliers, to fully satisfy their inventory and merchandising needs.¹⁴

¹³  Stock-keeping units (or “SKU”) are commonly used measurements for classifying and tracking separate inventory types in the retail industry. For example, 24 can packages of America’s Choice Diet Cola™, 12 can packages of America’s Choice Diet Cola™, and 6 can packages of America’s Choice Diet Cola™ are each assigned unique SKUs in the Debtors’ inventory management system.

¹⁴  By way of reference, 30 percent of the Debtors’ cost of goods sold was approximately $1.8 billion in fiscal 2009. See The Great Atlantic & Pac. Tea Co., Inc. (Annual Report), at 48 (May 6, 2010).

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B. A&P’s Corporate Structure

A&P is the direct or indirect parent of each of the above-captioned Debtors. Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”) controls approximately 42 percent of A&P’s issued and outstanding common shares, and is the largest holder of A&P common stock.¹⁵ Affiliates of The Yucaipa Companies LLC (collectively, “Yucaipa”) are the next largest holder of A&P common stock, controlling approximately 5% of its issued and outstanding common shares. As of December 13, 2010, A&P’s common stock and 9 3/8% senior quarterly interest bonds trade exclusively on the Pink OTCQB market and are currently traded under the symbols GAPTQ and GAJTQ, respectively. A chart presenting the Debtors’ corporate structure is illustrated below.

See Exhibit E for a chart illustrating A&P’s Prepetition Corporate Structure.

C. Competition

The grocery retailing industry is highly competitive and characterized by local, regional, and national competitors operating on slim profit margins. More recently, the Debtors have faced increasing competitive challenges from mass merchandisers, warehouse clubs, drug stores, dollar stores, convenience stores and other “out-of-channel” sellers of grocery merchandise, including Costco, Dollar Tree, Sam’s Club, and Target. The Debtors’ in-store pharmacy operations also face growing competition from mail-order and Internet-based prescription processors, as well as traditional brick and mortar pharmacies. This challenging operating environment has been compounded by falling producer and retail food prices, and competitors’ increased willingness to engage in price-based competition.

D. Legacy Obligations

Prior to the Commencement Date, the Debtors’ cost structure reflected an unsustainable level of legacy obligations that placed the Debtors at a competitive disadvantage to their traditional and non-traditional peers. The Debtors were also parties to a number of materially unfavorable supply and services contracts. Longevity in the retail food industry—the result of a consistent focus on customer satisfaction—saddled the company with three significant prepetition legacy costs:

• substantial obligations arising from “dark store” leases—i.e., locations where the Debtors have ceased ongoing operations but have been unable to sublease, assign, or terminate the relevant lease;

• unfavorable supply and logistics agreements, including (a) a supply and logistics contract with C&S through which C&S supplied approximately 70 percent of the Debtors’ total inventory; and (b) a transportation and logistics contract with Grocery Haulers Inc. (“GHI”) under which GHI provided certain transportation and logistics services to the Debtors’ 120 Pathmark-branded stores, and certain transportation services to other Debtor stores; and

¹⁵  As discussed more fully below, Tengelmann also controls certain Convertible Preferred Stock (as defined herein) that provides voting rights equivalent to 12,000,000 common shares.

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• significant employee related obligations, including underfunded single- and multi-employer pensions, expensive health and welfare programs, and high store labor costs as a percentage of sales.

E. Executive Officers of the Debtors

Name	Title
Samuel Martin	President and Chief Executive Officer
Frederic F. Brace	Chief Administrative Officer, Chief Restructuring Officer and Chief Financial Officer
Paul Hertz	Executive Vice President, Operations
Thomas O’Boyle	Executive Vice President, Merchandising, Marketing and Supply & Logistics
Christopher W. McGarry	Senior Vice President and General Counsel
Carter Knox	Senior Vice President, Human Resources & Communications

Mr. Martin was appointed President and Chief Executive Officer on July 29, 2010. Prior to joining A&P, Mr. Martin served as Executive Vice President and Chief Operating Officer of OfficeMax Incorporated, from September 2007 to July 2010. Prior to joining OfficeMax, Mr. Martin served as Senior Vice President of Operations for Wild Oats Markets, Inc. from January 2006 to September 2007. Prior to joining Wild Oats, Mr. Martin served as Senior Vice President of Supply Chain at Shopko from April 2003 to April 2006. From 1998 until 2003, he was Regional Vice President, Western Region and General Manager for Toys “R” Us, Inc., where he was responsible for operations, including stores, distribution, and logistics.

Mr. Brace was appointed Chief Financial Officer on March 28, 2011, Chief Restructuring Officer on December 9, 2010 and Chief Administrative Officer on August 20, 2010. Mr. Brace was a member of the Board of Directors of the Company from August 4, 2009 to August 20, 2010. Mr. Brace served as Executive Vice President and the Chief Financial Officer of UAL Corp., an air transportation company, from August 2002 until his retirement from UAL Corp. in October 2008. From 2004 to 2008, Mr. Brace also served as a member of the Board of Directors, chair of the audit and finance committees, and member of the executive committee of SIRVA, Inc., a relocation logistics services provider, from 2004 through 2008. During 2009, Mr. Brace also served as a member of the Board of Directors and of the audit committee of BearingPoint, Inc., a leading global management and technology consulting services firm during 2009. Currently, Mr. Brace is also a member of the Board of Directors, the audit committee and the compensation committee of Anixter International, a communications, electrical wire and cable products distribution company.

Mr. Hertz was appointed Executive Vice President of Operations on August 18, 2010. Prior to joining A&P, Mr. Hertz was Executive Vice President of Retail Stores for OfficeMax, which he joined in September 2007. Previously, Mr. Hertz served as Vice President of Stores for Wild Oats Markets, Inc. from August 2006 to September 2007. Prior to joining Wild Oats, Mr. Hertz served as Vice President of

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Store Operations for ShopKo Stores Inc. from April 2003 to August 2006. For the 16 years prior to joining Shopko, Mr. Hertz held positions of increasing responsibility with Fred Meyer Stores, a division of The Kroger Company including, Vice President, Regional Director of Stores.

Mr. O’Boyle was appointed Executive Vice President, Merchandising and Marketing on August 25, 2010. Prior to joining A&P, Mr. O’Boyle was President and Senior Vice President, Food and Drug, for Sears Holdings from 2008 to 2010. Before joining Sears, Mr. O’Boyle was Senior Vice President, Merchandising and Marketing for Albertson’s from 2005 to 2006. Before that he held merchandising and marketing management positions at Jewel Food Stores and American Stores.

Mr. McGarry was appointed Senior Vice President, General Counsel and Secretary on October 7, 2009. Mr. McGarry joined A&P in March 2006 as Vice President of Legal Services. From July 2006 to October 2009, he served as Vice President, Legal Compliance Officer and Assistant Secretary. Prior to joining A&P, Mr. McGarry was General Counsel from 2003 to 2005 for Exel, Inc., successor-in-interest to Tibbett & Britten Group Americas, a major international logistics service provider for the food and beverage, fashion and other consumer product sectors. From 1992 to 1998 and from 2001 to 2003, he was a Partner and attorney in various New Jersey based law firms. From 1998 to 2001, Mr. McGarry served as Assistant General Counsel and Corporate Secretary for The Grand Union Company.

Mr. Knox was appointed Senior Vice President of Human Resources and Communications on August 19, 2010. Prior to joining A&P, Mr. Knox was Senior Vice President of Human Resources for OfficeMax from 2005 to August 2010. Before joining OfficeMax, Mr. Knox held roles of increasing responsibility at Fred Meyer, a division of The Kroger Company, over more than 30 years. His responsibilities spanned store operations, merchandising, marketing and human resources.

F. The Debtors’ Prepetition Capital Structure

As of the Commencement Date, the Debtors were obligated on approximately $1.0 billion in funded debt, comprised of: (a) obligations under the Secured Credit Facility; (b) the Second Lien Notes; (c) four series of Unsecured Notes; and (d) a $10.0 million unsecured Promissory Note (each as defined herein). The Debtors also have 175,000 shares of convertible preferred stock issued and outstanding, with a $1,000 per share liquidation preference.

The Debtors’ prepetition indebtedness and preferred equity capital can be summarized as follows:

($ millions) Debt/Preferred Equity	Funded Debt/ Liquidation  Preference
Secured Credit Facility - ABL	$	38.0
Secured Credit Facility - Term		97.5
Second Lien Notes		260.0
Unsecured Notes		632.8
Promissory Note		10.0
Total Funded Debt	$	1,038.3
Convertible Preferred Stock		175.0

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1. Secured Credit Facility

Prior to the Commencement Date, the Debtors, Bank of America, N.A., as administrative agent (the “First Lien Agent”), and the lenders party thereto were parties to that certain Amended and Restated Credit Agreement, dated as of December 27, 2007 (as amended, supplemented, modified, or amended and restated from time to time, the “First Lien Credit Agreement”). The First Lien Credit Agreement provided the Debtors with $620 million in total availability through: (a) a “Tranche A” revolver (providing $502 million in maximum availability, with no balance drawn as of December 11, 2010); (b) a “Tranche A-1” revolver (providing $20 million in maximum availability, with no balance drawn as of December 11, 2010); (c) a $47.5 million “Term Loan”; and (d) a $50 million “Term A-2” Loan (collectively, the “Secured Credit Facility”). The Secured Credit Facility also provided for, among other things, a $400 million letter of credit subfacility under which approximately $196.2 million in letters of credit are issued and outstanding as of December 11, 2010.¹⁶

Generally, the payment waterfall incorporated into the First Lien Credit Agreement provided that obligations arising under the Term Loan have a senior interest in certain “Principal Properties” (as defined in the First Lien Credit Agreement) versus other claims arising under the Term Loan.¹⁷ The payment waterfall further provided that proceeds from non-Principal Properties collateral is used: first to satisfy claims arising under the Tranche A revolver and Term Loan (ratably); second to cash collateralize issued but undrawn letters of credit issued by lenders under the Tranche A revolver; third to satisfy the Tranche A-1 revolver; and fourth to satisfy claims arising under the Term A-2 Loan.

2. Second Lien Notes

A&P as issuer, and each of the above-captioned Debtors, as guarantors, have issued senior secured notes (collectively, the “Second Lien Notes”) pursuant to that indenture dated as of August 4, 2009 (the “Second Lien Notes Indenture”) by and between the Debtors and Wilmington Trust Company in its capacity as original trustee and collateral agent (the “Original Second Lien Indenture Trustee”). Wells Fargo Bank, National Association became the successor trustee and collateral agent under the Second Lien Notes Indenture (the “Second Lien Indenture Trustee”), pursuant to an Agreement of Removal, Appointment and Acceptance, dated as of March 11, 2011, by and among the Second Lien Indenture Trustee and The Bank of New York Mellon Trust Company, National Association, as the predecessor trustee and collateral agent. The Second Lien Notes bear interest at 11.375% per annum, and approximately $260.0 million principal amount Second Lien Notes remained outstanding as of the Commencement Date. The Second Lien Notes mature on August 4, 2015.

The Second Lien Notes are secured by second priority liens on substantially all the Debtors’ personal property, including inventory and receivables, pursuant to that certain security agreement dated as of August 4, 2009, by and between the Debtors and the Original Second Lien Indenture Trustee, in its capacity as original collateral agent (the “Second Lien Security Agreement”). The Second Lien Indenture Trustee became the successor collateral agent (“Second Lien Agent”) under the Second Lien Security Agreement in connection with its becoming the successor trustee under the Second Lien Notes Indenture. The Second Lien Notes are also secured by certain of the Debtors’ leaseholds and owned real property other than the Principal Properties.

¹⁶  Generally, letters of credit issued under the Secured Credit Facility reduce availability under the Tranche A revolver.

¹⁷  Principal Properties are three parcels of real property owned or leased by the Debtors.

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3. Intercreditor Agreement

On August 4, 2009, the First Lien Agent, in its capacity as collateral agent under the Secured Credit Facility, and the Original Second Lien Indenture Trustee, in its capacity as original collateral agent under the Second Lien Security Agreement, entered into an agreement that, among other things, assigned relative priorities to liens arising under the Secured Credit Facility, the Second Lien Indenture and Second Lien Security Agreement against certain collateral of the Debtors (the “Intercreditor Agreement”). Among other things, the Intercreditor Agreement provides that liens arising under the Second Lien Notes, the Second Lien Indenture, and the Second Lien Security Agreement are subordinate to liens arising under the Secured Credit Facility. The Intercreditor Agreement also imposes certain conditions on: (a) certain rights and remedies available to the Second Lien Agent in an event of default; (b) the ability of the Second Lien Agent or holders of Second Lien Notes (collectively, the “Second Lien Noteholders”) to challenge the validity or priority of liens arising under the Secured Credit Facility; and (c) the extent to which the Second Lien Noteholders and Second Lien Agent may contest a postpetition financing provided by or consented-to by lenders (or their successors) under the Secured Credit Facility (including a refinanced facility) or the First Lien Agent (or its successors) for failure to provide adequate protection during a bankruptcy proceeding, provided that certain conditions specified in the Intercreditor Agreement are met. The Debtors expressly are not third party beneficiaries of the Intercreditor Agreement.

4. Unsecured Notes

In addition to its secured debt, A&P has issued four series of unsecured notes: (a) $165.0 million in 5.125% unsecured convertible notes (collectively, the “5.125% Convertible Notes”); (b) $12.8 million in 9.125% unsecured notes due 2011 (collectively, the “9.125% Senior Notes”); (c) $255.0 million in 6.75% unsecured convertible notes due 2012 (collectively, the “6.75% Convertible Notes”); and (d) $200.0 million in unsecured quarterly interest notes due 2039 (collectively, the “Quarterly Interest Bonds,” and together with the 5.125% Convertible Notes, the 9.125% Senior Notes, and the 6.75% Convertible Notes, the “Unsecured Notes”). The Unsecured Notes are unsecured obligations of A&P.

5. Promissory Note

As of the Commencement Date, A&P had issued a $10.0 million unsecured promissory note payable to Erivan Karl Haub (the “Promissory Note”). Mr. Haub is the father of Christian Wilhelm Erich Haub, the Debtors’ former Executive Chairman. Interest on the Promissory Note accrued at 6.00% per year, and the Promissory Note matured in August 2011.

6. Convertible Preferred Stock

In 2009, the Debtors issued 175,000 outstanding shares of convertible preferred stock, $1,000 per share liquidation preference, in two separate series: (a) 115,000 shares of “Series A- Y” convertible preferred stock; and (b) 60,000 shares of convertible preferred stock issued through a “Series A-T” (collectively, the “Convertible Preferred Stock”). Mandatory quarterly dividends are payable on the Convertible Preferred Stock at either 8.00% (cash) or 9.50% (paid-in-kind). The Convertible Preferred Stock is convertible to common A&P stock under certain conditions, and holders of the Convertible Preferred Stock vote on matters requiring shareholder approval on an “as converted” basis.

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Affiliates of Yucaipa control the Debtors’ Series A-Y Convertible Preferred Stock. Yucaipa is also entitled to appoint 2 directors to the A&P board by virtue of its control of the Series A-Y Convertible Preferred Stock.¹⁸ Tengelmann controls the Series A-T Convertible Preferred Stock, and Tengelmann is entitled to appoint 4 directors to the A&P board by virtue of its control of the Series A-T Convertible Preferred Stock.¹⁹

G. Employees

As of February 26, 2011, the Debtors employed approximately 40,700 Employees, of whom approximately 68% are employed on a part-time basis. As of February 26, 2011 approximately 92% of the employees were members of unions, and the Debtors were party to 35 collective bargaining agreements (“CBAs”) with the various bargaining units of certain international and local unions, including (a) the Retail and Wholesale Union, (b) the Retail, Wholesale and Department Store Union, (c) the United Food and Commercial Workers International Union, (d) the 1199 National Health and Human Services Employees Union, (e) the United Pharmacists Guild and (f) the International Union of Operating Engineers. In addition to their employees, the Debtors supplement their workforce by utilizing (a) approximately three temporary employees who are provided to the Debtors and (b) approximately 13 independent contractors that provide services related to many aspects of the Debtors’ operations and are vital to the Debtors’ businesses.

H. Benefit Plans

As of the Commencement Date, the Debtors sponsored, maintained or contributed to the following employee pension benefit plans: (1) an A&P-sponsored, single employer defined benefit plan, entitled The Great Atlantic & Pacific Tea Company, Inc. Pension Plan (“A&P Plan”), that covers certain non-union and union-represented employees of A&P; (2) a single employer defined benefit pension plan sponsored and administered by a joint board of trustees for the benefit of certain eligible full-time employees of A&P who are represented by United Food and Commercial Workers (“UFCW”) Local 464A and certain retirees who were represented by UFCW Locals 342-50 and 174 , entitled the New York-New Jersey Amalgamated Pension Plan for A&P Employees ( the “Amalgamated Plan”); (3) an A&P-sponsored multiple employer defined benefit pension plan that covers certain A&P employees and certain collectively bargained employees of GHI, entitled the Pathmark Stores, Inc. Pension Plan (the “Pathmark Plan”); (4) an A&P-sponsored single employer defined benefit pension plan covering only seven retirees from a former A&P subsidiary, entitled the Delaware County Dairies, Inc. Hourly Employees’ Pension Plan (the “Delaware Dairies Plan,” together with the A&P Plan, the Amalgamated Plan, and the Pathmark Plan, the “Pension Plans”); and (5) 12 multiemployer defined benefit pension plans (the “Multiemployer Plans”). Each of the Pension Plans and Multiemployer Plans are governed by provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”). Further, the Pension Plans and Multiemployer Plans are covered by the termination insurance program described in Title IV of ERISA. The Pension Benefit Guaranty Corporation (“PBGC”) is a wholly-owned United States government corporation created by ERISA to administer the mandatory pension plan termination insurance program. The PBGC’s principal purpose is to guarantee the payment of certain pension benefits to participants upon termination of a pension plan.²⁰

¹⁸  The Series A-Y Convertible Preferred Stock also provides Yucaipa with voting rights equivalent to 23,000,000 shares of common stock.

¹⁹  The Series A-T Convertible Preferred Stock also provides Tengelmann with voting rights equivalent to 12,000,000 shares of common stock.

²⁰  See 29 U.S.C. § 1302.

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The Debtors also provide health and welfare benefits to eligible active employees (and their eligible dependents) under various benefit plans sponsored and maintained by A&P. The A&P-sponsored medical plans are primarily self-funded, although certain medical and other welfare coverage options are fully insured. A&P also provides retiree health and retiree life insurance to certain closed groups of retirees and their spouses. Pursuant to certain CBAs, the Debtors also contribute to certain multiemployer health and welfare funds that provide medical and other health and welfare benefits for union-represented employees and retirees.

1. Single Employer Pension Plans

a. The A&P Plan

As of January 1, 2010, the A&P Plan covered approximately 15,000 participants, including approximately 6,500 active employees. Both union and non-union employees and former employers participate in the A&P Plan. Benefit accruals for non-union employees under the A&P Plan were frozen in 2010, but benefit accruals for eligible union employees continue in accordance with the applicable CBAs.

The A&P Plan includes the ability of certain participants to receive benefits in a lump sum. However, due to the payment restrictions imposed by Section 436 of the Internal Revenue Code and Section 206(g) of ERISA, lump sum benefit payments are currently not available from the A&P Plan.

A&P’s projected annual minimum required contributions to the A&P Plan, which were due in fiscal year 2011 and cover the 2010 and 2011 plan years, are approximately $15.56 million. This includes a contribution of approximately $8.4 million that was due on September 15, 2011 with respect to the A&P Plan’s 2010 plan year and quarterly contributions of approximately $1.79 million with respect to the A&P Plan’s 2011 plan year that were due on each of April 15, July 15, and October 15, 2011, as well as a similar contribution which will be due on January 15, 2012. Because of the Chapter 11 Cases, these contributions remain unpaid to date. Under ERISA, these contributions are joint and several liabilities of each of the Debtors who are part of the same “controlled group.”²¹ Absent termination of the A&P Plan in accordance with ERISA, the Debtors anticipate making any missed contributions (plus applicable interest) to the A&P Plan prior to the Effective Date.

b. The Amalgamated Plan

The Amalgamated Plan is a single employer plan under ERISA, and A&P is the employer obligated to contribute to the Amalgamated Plan. However, A&P does not sponsor or administer the Amalgamated Plan. A&P contributes monthly to the Amalgamated Plan based on the requirements set forth in the applicable CBAs. The Amalgamated Plan’s actuaries estimated the minimum funding contribution for the calendar year 2011 to total $1.9 million.

c. Delaware Dairies Plan

The Delaware Dairies Plan is a single employer defined benefit pension plan. As of December 31, 2010, there were only seven participants in this plan, all of whom were retirees. The assets of the Delaware Dairies Plan totaled approximately $73,000 as of December 31, 2010, and no minimum contributions have been due during the Chapter 11 Cases.

²¹  See 29 U.S.C. § 1082(b)(2) and (d)(3).

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2. Multiple Employer Plan - The Pathmark Plan

As of January 1, 2010, the Pathmark Plan covered approximately 6,700 participants, including approximately 1,500 active employees. Both union and non-union employees and former employees of A&P participate in the Pathmark Plan. Benefit accruals for A&P employees under the Pathmark Plan were frozen as of December 31, 2007, and many such participants under the Pathmark Plan began accruing benefits under the A&P Plan on January 1, 2008.

Effective August 31, 2008 and prior to the rejection of the GHI Contract (described below) and the subsequent termination by GHI of the employment of relevant employees, benefit accruals under the Pathmark Plan were provided only to certain eligible employees of GHI who were represented by the International Brotherhood of Teamsters Local 863 (“Teamsters 863”). GHI is an unrelated company that formerly handled transportation and logistics services for the Pathmark stores. The participation of GHI employees in the Pathmark Plan is the basis for the classification of the Pathmark Plan as a multiple employer plan.

GHI employees’ participation in the Pathmark Plan was negotiated simultaneously with GHI’s withdrawal from the Local Union No. 863 I.B. of T. Pension Fund (“Local 863 Fund”), a multiemployer pension plan. Such negotiation triggered withdrawal liability of GHI. In satisfaction of such withdrawal liability, A&P, GHI and the Local 863 Fund trustees negotiated an arrangement whereby the Pathmark Plan received a transfer of pension assets and liabilities for GHI employees from the Local 863 Fund. In January 2009, approximately $12 million in assets and approximately $81 million in liabilities were transferred from the Local 863 Fund to the Pathmark Plan. Under an August 29, 2008 letter agreement between GHI and A&P, A&P assumed economic responsibility with respect to the GHI employees in the Pathmark Plan (the “Spinoff Agreement”). Since the Debtors’ rejection of the GHI Contract and the subsequent termination by GHI of the employment of relevant employees, such employees are no longer accruing benefits under the Pathmark Plan. The Debtors do not intend to assume the Spinoff Agreement, and instead, the Debtors intend to reject the Spinoff Agreement to the extent it is executory. GHI asserts that the Spinoff Agreement cannot be rejected as an executory contract. The Debtors disagree, but in any event, the Debtors believe that no claims would arise under the Spinoff Agreement, and to the extent any claims arise under the Spinoff Agreement, such claims would be general unsecured prepetition claims. 

A&P’s projected annual minimum required contributions to the Pathmark Plan, which were due in fiscal year 2011 and cover the 2010 and 2011 plan years, are approximately $5.2 million. This includes a contribution of approximately $3.1 million that was due on September 15, 2011 with respect to the Pathmark Plan’s 2010 plan year and quarterly contributions of approximately $0.7 million with respect to the Pathmark Plan’s 2011 plan year that were due on each of April 15, July 15, and October 15, 2011, as well as a similar contribution which will be due on January 15, 2012. Because of the Chapter 11 Cases, these contributions remain unpaid to date. Under ERISA, these contributions are joint and several liabilities of each of the Debtors who are part of the same “controlled group”²² Absent termination of the Pathmark Plan in accordance with ERISA, the Debtors anticipate making any missed contributions (plus applicable interest) to the Pathmark Plan prior to the Effective Date.

Pursuant to Articles IV.P.3 and I.A.11 of the Plan, as of the Effective Date, the Reorganized Debtors shall continue the A&P Pension Plans (which include the A&P Plan, the Amalgamated Plan, the Delaware Dairies Plan, and the Pathmark Plan) in accordance with, and subject to, their terms, ERISA, and the Internal Revenue Code, and the Reorganized Debtors shall preserve all of their rights thereunder. The A&P Pension Claims and all Proofs of Claims filed on account thereof shall be deemed withdrawn as of the Effective Date without any further action of the Debtors, the Reorganized Debtors or the PBGC, and without any further action, order, or approval of the Bankruptcy Court.

²²  See 29 U.S.C. § 1082(b)(2) and (d)(3).

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3. Multiemployer Plans

A&P currently contributes to 12 multiemployer defined benefit pension plans under a number of existing CBAs between various labor unions and A&P. Pursuant to the CBAs, A&P contributes monthly amounts to the Multiemployer Plans on behalf of A&P’s active employees. A&P’s projected annual contributions for fiscal year 2011 to all of the Multiemployer Plans are approximately $48.7 million. A&P’s annual contributions to the Multiemployer Plans vary widely by plan, ranging from $0.2 million with respect to one Multiemployer Plan to $8 million with respect to another Multiemployer Plan.

In addition to periodic contributions required by the CBAs, additional liability, known as “withdrawal liability,” can be imposed on an employer (and its controlled group) under ERISA in the event of a “withdrawal” by the employer from a multiemployer pension plan.²³ Until a contributing employer withdraws from a multiemployer plan, withdrawal liability is a contingent liability of the employer. Under ERISA, a withdrawal occurs when an employer stops contributing – or significantly reduces its contributions over a period of time – to a multiemployer pension plan.²⁴ In general terms, withdrawal liability is the employer’s pro rata share of the plan’s unfunded vested benefits. The multiemployer plans have filed several Proofs of Claim against the Debtors for (a) contingent withdrawal liability and (b) prepetition withdrawal liability. The Debtors have received 11 Proofs of Claim on account of contingent withdrawal liability totaling approximately $406 million.

The Debtors withdrew from the Central States, Southeast and Southwest Areas Pension Fund (“Central States Fund”) in 2008. The Central States Fund filed a Proof of Claim asserting a claim for approximately $58 million on account of a pre-petition complete withdrawal by Debtors on June 21, 2008. The Debtors have reached an agreement with the Central States Fund, whereby, among other things, the Debtors will stipulate that Central States Fund’s claim in the amount of approximately $58 million is Allowed, undisputed, and shall be deemed an Allowed Pension Withdrawal Claim.

The Debtors withdrew from the Retail, Wholesale and Department Store International Union and Industry Benefit and Pension Funds (“RWDSU Fund”) in 1999. The RWDSU Fund filed a Proof of Claim asserting a claim for approximately $3 million in unpaid pre-petition withdrawal liability relating to the Debtors’ June 25, 1999 withdrawal from the RWDSU Fund.

The Debtors withdrew from the UFCW Local 1262 and Employees Pension Fund (“Local 1262 Fund”) in 2009. The Local 1262 Fund filed a Proof of Claim asserting a claim for approximately $14 million on account of a pre-petition partial withdrawal by Debtors related to the conversion of Pathmark-bannered stores to Food Basics-bannered stores in 2009.

The Debtors withdrew from the Amalgamated Meat Cutters and Retail Food Store Employees Union Local 342 Pension Fund (“Local 342 Fund”) in 2008. In 2009, the Local 342 Fund assessed withdrawal liability against the Debtors totaling approximately $28 million on account of Debtors’ complete withdrawal from the Local 342 Fund in 2008. Effective December 1, 2010, the Local 342 Fund asserted that it terminated by reason of the withdrawal of every employer from the plan under 29 U.S.C. 1341A(a)(2), and on June 17, 2011 the Local 342 Fund filed a Proof of Claim asserting withdrawal liability against Debtors of approximately $71 million on account of such mass withdrawal termination.

²³  See 29 U.S.C. § 1381 et seq.

²⁴  See 29 U.S.C. §§ 1383, 1385.

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In June 2011, the Debtors sold the Southern Stores pursuant to a Bankruptcy Court-approved asset sale. The Debtors had obligations under certain CBAs to contribute to the Food Employers Labor Relations Association and United Food and Commercial Workers Pension Fund (“FELRA Fund”) with respect to employees in the Southern Stores. As a result of the sale of the Southern Stores, such employees were terminated and the Debtors’ obligations to contribute to FELRA with respect to such employees ceased, which the Debtors believe resulted in prepetition withdrawal liability against them. The FELRA Fund filed a contingent Proof of Claim asserting approximately $77 million of withdrawal liability.

The Debtors contribute to the United Food and Commercial Workers Union and Participating Food Industry Employers Tri-State Pension Fund (“Tri-State Fund”) on behalf of certain employees represented by CBAs. Under the modified CBAs, the Debtors will no longer have an obligation to contribute to the Tri-State Fund, triggering a complete withdrawal from the Tri-State Fund, if the contribution rates negotiated by the Debtors and the applicable local unions are not accepted by the Tri-State Fund trustees on or before December 31, 2011. In such event, the Tri-State Fund would have a claim against the Debtors. Although the Tri-State Fund filed a proof of claim for contingent withdrawal liability, no amount of estimated withdrawal liability was specified. If the Tri-State Fund trustees do accept the parties’ proposed contribution rates, the Debtors will not withdraw from the Tri-State Fund on or before December 31, 2011.

4. PBGC Claims

On or about June 17, 2011, the PBGC filed 13 separate Proofs of Claim against the Debtors with respect to the A&P Plan, the Amalgamated Plan and the Pathmark Plan. In accordance with the Order Approving Stipulation Permitting Pension Benefit Guaranty Corporation To File Consolidated Claims Under A Single Case Number [Docket No. 1949], a single Proof of Claim was deemed to constitute the filing of a Proof of Claim against each and every Debtor in the Chapter 11 Cases. Specifically, the PBGC filed Claims for:

• the estimated amount of such Pension Plans’ unfunded benefit liabilities if the Pension Plans were to terminate (“Underfunded Liability Claims”);²⁵

• the estimated amount of unpaid minimum funding contributions that may be owed to such Pension Plans (the “Funding Claims”); ²⁶

• the estimated amount of premium payments owed to the PBGC with respect to such Pension Plans (including the plan termination PBGC premium added to ERISA by the Deficit Reduction Act of 2005, ²⁷ which could apply if such Pension Plans were terminated) (the “Premium Claims”);²⁸

²⁵  Specifically, the PBGC filed Underfunded Liability Claims for: (a) the A&P Plan in the amount of the $82.1 million; and (b) the Amalgamated Plan in the amount of $39.4 million. The PBGC filed an Underfunded Liability Claim for the Pathmark Plan in an unliquidated amount. The PBGC asserted a portion of these amounts is entitled to Administrative Claim or Priority Claim status.

²⁶  Specifically, the PBGC filed Funding Claims for: (a) the A&P Plan in the amount of $13, 745,517; (b) the Amalgamated Plan in the amount of $1,489,241; and (c) the Pathmark Plan in the amount of $7,578,513. The PBGC asserted a portion of these amounts is entitled to Administrative Claim or Priority Claim status.

²⁷  See 29 U.S.C. §1306(a)(7).

²⁸  Specifically, the PBGC filed Premium Claims that included the contingent termination premium estimated by the PBGC as follows: (a) the A&P Plan in the amount of $56,220,000; (b) the Amalgamated Plan in the amount of $15,896,250; and (c) the Pathmark Plan in an unliquidated amount. The PBGC asserted a portion of these amounts is entitled to Administrative Claim or Priority Claim status.

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• the shortfall and waiver amortization charges that may be owed to the Pension Plans (the “Waiver Amortization Claims”);²⁹ and

• the estimated amount of liability that may have resulted if the Debtors withdrew from the Pathmark Plan (the “Pathmark Plan Withdrawal Claim”).³⁰

I. Securities Class Action Lawsuit

On September 9, 2011, a securities class action lawsuit was filed in the United States District Court for the District of New Jersey (Dudley v. Haub, et al., Case No. 11-cv-05196-WJM-MF) that alleges on behalf of purchasers of the Debtors’ securities during the period between July 23, 2009 and December 10, 2010, that certain of the Debtors’ former and current executives violated the securities laws by making fraudulent or misleading statements with respect to material adverse facts about the Debtors’ financial condition, business and prospects (as filed or amended, the “Securities Class Action Lawsuit”). The Debtors are not named as defendants in the Securities Class Action Lawsuit. However, the Debtors’ current CEO and two members of the Debtors’ Board of Directors are individually named defendants. The Debtors view the Securities Class Action Lawsuit as lacking merit, as, among other things, the statements and disclosures forming the basis for the allegations are forward-looking statements subject to “safe harbor” protections, or are otherwise not actionable. The Debtors and applicable non-Debtors do not concede any liability and do not agree with the allegations in the Securities Class Action Lawsuit. The Debtors reserve any and all rights to contest the claims and to enforce any stay of the actions as against the Debtors.

Notwithstanding anything in the Plan or in any Confirmation Order to the contrary, nothing in the Plan or any Confirmation Order, except for the Third-Party Release in Article VIII.E of the Plan, shall discharge, release or enjoin claims, or the prosecution of claims asserted in the Securities Class Action Lawsuit, against non-Debtors, or limit the rights of any non-Debtor parties in connection with any settlement, or enforcement of any settlement or judgment, obtained in the Securities Class Action Lawsuit against non-Debtors, including without limitation to the extent of available insurance coverage and proceeds under any directors and officers insurance for the benefit of the non-Debtor defendants in such litigation.

Nothing in the Plan shall affect any otherwise applicable law or rule requiring the Debtors, the Reorganized Debtors and any transferee, and any of their successors or assigns to provide for an adequate protocol for the preservation of the Debtors’ records or documents in connection with the Securities Class Action Lawsuit.

The Debtors and applicable non-Debtors do not concede any liability and do not agree with the allegations in the Securities Class Action Lawsuit. The Debtors and applicable non-Debtors reserve any and all rights to contest the claims and to enforce any stay of the actions as against the Debtors.

²⁹  Specifically, the PBGC filed Waiver Amortization Claims for: (a) the A&P Plan in the amount of $45,543,464; (b) the Amalgamated Plan in the amount of $23,230,041; and (c) the Pathmark Plan in the amount of $63,558,032, each asserted as a general unsecured claim.

³⁰  Specifically, the PBGC filed the Withdrawal Claim for the Pathmark Plan in an unliquidated amount. The Withdrawal Claim assumes a withdrawal on June 30, 2011, and in such claim the PBGC demands payment of the liability to the PBGC to be held in escrow pursuant to 29 U.S.C. §1363(b).

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ARTICLE V.

THE CHAPTER 11 CASES

The following is a general summary of the Chapter 11 Cases, including certain events preceding the Chapter 11 Cases, the stabilization of the Debtors’ operations, and the Debtors’ restructuring initiatives implemented since the Commencement Date.

A. Events Leading to the Commencement of the Chapter 11 Cases

1. Challenging Operating Environment

Ongoing challenges facing the U.S. economy and the corresponding slowdown in consumer purchasing negatively impacted the Debtors’ revenues and operating cash flow. Falling consumer spending rates were exacerbated by declines in producer and retail food prices, resulting in retail price deflation across the grocery industry as a whole. This deflationary cycle was compounded by the intense competitive pressure found in the supermarket industry. The Debtors’ $8.4 billion in revenues over the twelve months ended September 11, 2010 reflected an 8.9 percent decline over the period ended September 10, 2009, with the Debtors generating only $104 million in EBITDA over this time. The reduction in EBITDA left the Debtors with diminished capacity to invest in long-term capital projects, with projected capital expenditures for the current fiscal year reduced over $10 million from fiscal 2009 and over $40 million from fiscal 2008. The Debtors’ comparable store sales growth was also down approximately 6.9 percent on a year to date basis.

Margin pressure imposed by declining operating cash flow had, in turn, amplified the bottom line effects of the Debtors’ leveraged balance sheet and significant legacy costs. The Debtors estimated that “dark store” leases would impose approximately $77 million of costs in fiscal 2011 alone. Further, unfavorable contracts with parties such as C&S and GHI continued to weigh on the Debtors, and ongoing pension and post-retirement obligations had contributed to the Debtors’ declining performance.

2. Restructuring Initiatives

Prior to the Commencement Date, the Debtors took steps to both increase liquidity and reduce costs. In August 2009, the Debtors raised approximately $162.2 million in preferred equity capital through their sale of Convertible Preferred Stock. Also in August 2009, the Debtors raised an additional $253.0 million through the sale of the Second Lien Notes.

In July 2010, the Debtors publicly launched a comprehensive, five-point turnaround plan to increase profitability and stakeholder value. This plan was focused on: (a) installing a strong management team; (b) reducing structural and operating costs; (c) improving customer value; (d) enhancing the overall customer experience; and (e) increasing liquidity. Through this plan, the Debtors implemented wholesale changes to their management team in 2010, including their appointment of a new chief executive officer, the appointment of three new executive officers with significant industry expertise, and the appointment of a new Chief Administrative Officer in August 2010.

Liquidity-enhancing initiatives included the sale of non-core or underperforming assets and liquidity-enhancing transactions such as an $89.8 million sale-leaseback of six owned store locations. The Debtors also sought to increase operating cash flow by optimizing inventory mix, increasing sales training initiatives, and introducing new higher margin, “owned label” brands and products across their store fleet.

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The Debtors initiated a major liquidity enhancing initiative in July 2010, when they retained Bank of America, the First Lien Agent, to secure a leasehold mortgage financing to upsize the First Lien Credit Facility ABL by approximately $200 million. Yet, in the days after Thanksgiving when it became clear that certain of the Debtors’ business partners could not provide meaningful cost concessions—an important part of the business plan underlying this facility—the Debtors were forced to abandon this financing initiative.

The Debtors took additional prepetition steps to address their uncompetitive cost structure. The Debtors conducted multiple reductions in force, cut corporate spending, and reduced general and administrative costs. These initiatives have already generated total cost savings of approximately $40 million on an annualized basis, including over $10 million in annual salary savings.

The Debtors sought to work constructively with their business partners in this process. In particular, the Debtors made repeated efforts to engage C&S, given C&S’s undeniable importance to the Debtors’ supply chain and cost structure as a whole. Prior to filing these Chapter 11 Cases, it became clear that C&S was unwilling or unable to provide meaningful cost or trade concessions outside of the chapter 11 process.

The Debtors ultimately determined that the combination of falling revenues, a leveraged balance sheet, legacy costs, and unfavorable supply relationships could not be fixed outside of chapter 11. Of course, the Debtors were acutely aware of the operational and financial challenges facing chapter 11 debtors in general, and the unique challenges facing retail debtors in particular. As a result, the Debtors immediately took actions to make sure they had more than sufficient liquidity to fund their in-court restructuring, including obtaining a debtor-in-possession financing facility. Based on these efforts, the Debtors secured a fully-committed, $800 million credit facility (the “DIP Facility”) from JPMorgan Chase Bank (“JPM”), which is described in greater detail below.

B. Stabilization of Operations

Upon commencing the Chapter 11 Cases, the Debtors sought and obtained a number of orders from the Bankruptcy Court to ensure a smooth transition of their operations into chapter 11 and facilitate the administration of the Chapter 11 Cases. Several of these orders are briefly summarized below.

1. Administrative Motions

To facilitate a smooth and efficient administration of the Chapter 11 Cases and to reduce the administrative burden associated therewith, the Bankruptcy Court entered the following procedural orders: (a) authorizing the joint administration of the Debtors’ Chapter 11 Cases [Docket No. 68]; (b) granting the Debtors an extension of time to file their schedules of assets and liabilities and statement of financial affairs (collectively, the “Schedules and Statements”) [Docket No. 496];³¹ (c) establishing certain notice, case management and administrative procedures [Docket No. 75]; (d) preparing a list of creditors in lieu of a formatted mailing matrix and consolidating the list of creditors to the 40 largest unsecured creditors [Docket No. 79]; and (e) authorizing the employment and retention of KCC as notice and claims agent [Docket No 207].

³¹  On March 25 2011, the Debtors filed their Schedules and Statements with the Bankruptcy Court [Docket No. 1080].

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2. Motion to Continue Using Existing Cash Management System [Docket No. 17]

The Bankruptcy Court authorized the Debtors to continue using their cash management systems and their respective bank accounts, business forms, and investment practices by a Final Order dated February 7, 2011 [Docket No. 733]. The cash management order also approved the Debtors’ investment and deposit guidelines and permitted the Debtors to set off both prepetition and postpetition intercompany obligations between Debtors, or between Debtors and non-Debtor Affiliates.

3. Motion to Pay Shippers and Lienholder Prepetition Claims [Docket No. 8]

By interim order granted on December 14, 2010 [Docket No. 77], and Final Order granted on January 12, 2011 [Docket No. 500], the Bankruptcy Court authorized the Debtors to pay the prepetition Secured Claims of, among other parties, shippers, warehousemen, and lienholders up to $3.4 million.

4. Motion to Pay Employee Wages and Benefits [Docket No. 3]

By interim order granted on December 14, 2010 [Docket No. 54], and Final Order granted on January 12, 2011 [Docket No. 497], the Debtors obtained authorization from the Bankruptcy Court to: (a) pay certain prepetition wages, salaries and other compensation, taxes withholdings and reimbursable expenses of their employees; (b) to pay and honor obligations relating to employee medical and other benefit programs; and (c) to continue their employee benefits programs on a postpetition basis.

5. Motion to Pay Critical Trade Vendors [Docket No. 15]

By interim order granted on December 14, 2010 [Docket No. 55], and Final Order granted on January 12, 2011 [Docket No. 504], the Bankruptcy Court authorized the Debtors to pay prepetition Claims of certain critical vendors. Specifically, the Debtors were authorized to pay (a) $61 million in prepetition Claims to a highly select group of vendors, that are not party to Executory Contracts, who supply the Debtors’ stores with product on trade terms and (b) up to $5 million in Section 503(b)(9) Claims.

6. Motion to Authorize Maintenance of Customer Programs [Docket No. 4]

By interim order granted on December 14, 2010 [Docket No. 73], and Final Order granted on January 12, 2011 [Docket No. 498], the Bankruptcy Court authorized the Debtors to continue to maintain and administer prepetition customer programs, promotions and practices and pay and otherwise honor their obligations to customers relating thereto in the ordinary course of business consistent with past practice.

7. Motion to Establish Notification and Hearing Procedures for Trading in Equity Securities [Docket No. 10]

As of the Commencement Date, the Debtors’ NOLs and certain other tax attributes were estimated to be approximately $979 million. Under the Internal Revenue Code, NOLs that accumulate prior to emergence from bankruptcy may be used to offset post-emergence taxable income. Under the applicable federal tax laws, however, the Debtors would lose the ability to utilize a significant portion of their NOLs if an “ownership change” were to occur prior to completion of the Chapter 11 Cases. Consequently, trading in the equity securities of the Debtors could have jeopardized the Debtors’ ability to use those NOLs. To protect these valuable NOL carryforwards for future use to offset taxable income, the Debtors sought and obtained an interim order from the Bankruptcy Court on December 15, 2010 [Docket No. 82], and a Final Order on January 12, 2011 [Docket No. 502] restricting trading of their equity securities.

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8. Motion Determining Adequate Assurance of Payment for Future Utility Services [Docket No. 11]

By Final Order granted on January 12, 2011 [Docket No. 503], the Bankruptcy Court established procedures for determining adequate assurance of payment for future utility service in recognition of the severe impact even a brief disruption of utility services would have on the Debtors. Subsequently, certain of the Debtors’ utility providers appealed the Bankruptcy Court’s final order. On November 15, 2011, the United States District Court for the Southern District of New York affirmed the Bankruptcy Court’s Final Order [Docket No. 2871].

9. Motion to Pay Prepetition Sales, Use, and Franchise Taxes [Docket No. 6]

By interim order granted on December 14, 2010 [Docket No. 76], and Final Order granted on January 12, 2011 [Docket No. 499], the Bankruptcy Court authorized the Debtors to pay prepetition sales, use, franchise, income, property, and other taxes and any tax-related fees charges, and assessments accrued prepetition.

10. Motion For Entry of An Order Authorizing Debtors to Release Certain Funds Held in Trust and to Continue Performance of and Honor Obligations Under Consignment Arrangements and Deposit Arrangements [Docket No. 9]

By Final Order granted on January 12, 2011 [Docket No. 501], the Bankruptcy Court authorized the Debtors to release certain funds held in trust and to continue to perform and honor obligations under their pre-petition consignment and deposit arrangements in the ordinary course of business, in a manner consistent with past practice, in order to uphold the Debtors’ reputation for reliability and to preserve the loyalty, goodwill and support of their Customers.

11. Motions for Entry of an Order Authorizing Rejection of Certain Unexpired Nonresidential Real Property Leases [Docket Nos. 18, 164]

By Final Order granted on December 14, 2010 [Docket No. 81] and Final Orders granted on January 12, 2011 [Docket Nos. 507, 508], the Bankruptcy Court authorized the Debtors to reject certain “dark store” leases where they have ceased ongoing operations and have been unable to sublease, assign, or terminate the relevant leases and reject certain underperforming nonresidential leases and related subleases.

12. Applications for Retention of Debtors’ Professionals

Throughout the Chapter 11 Cases, the Bankruptcy Court has approved the Debtors’ retention of certain Professionals to represent and assist the Debtors in connection with the Chapter 11 Cases. These Professionals include, among others: (a) Kirkland & Ellis LLP as counsel for the Debtors (order granted January 12, 2011) [Docket No. 488]; (b) Huron Consulting Services LLC, as Financial Advisory (order granted January 12, 2011) [Docket No. 486]; and (c) Lazard Freres & Co. LLC (“Lazard”) as investment bankers for the Debtors (order granted January 12, 2011) [Docket No. 487].

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C. Postpetition Financing

1. DIP Financing

As noted above, at the outset of the Chapter 11 Cases, the Debtors focused on negotiating and obtaining a DIP financing facility that would provide liquidity and ensure continued operations throughout the Chapter 11 Cases, and upon emergence from bankruptcy. With the assistance of their investment banker, Lazard, the Debtors’ management team engaged in a competitive process to procure the best available postpetition financing facility which resulted in competing DIP financing proposals. Ultimately, the Debtors’ entered into a credit agreement with JPM (the “DIP Agreement”) to obtain the $800 million DIP Facility. The Debtors filed a motion for approval of the DIP Facility on December 12, 2010 [Docket No. 19]. Over several objections, the Bankruptcy Court, by interim order [Docket No. 43] and Final Order [Docket No. 479] (collectively, the “DIP Orders”), authorized the Debtors to: (a) enter into the DIP Facility, consisting of (i) a $350 million term loan facility to refinance the Debtors’ prepetition senior secured credit facility and provide approximately $187 million in incremental liquidity and (ii) a $450 million revolving facility, including access to a $250 million letter of credit sublimit; and (b) grant adequate protection to the Debtors’ secured lenders.

As approved on January 11, 2011 [Docket No. 479], the DIP Facility and accompanying DIP Orders provided the following relief:

a. Financing: authority to enter into the DIP Agreement for an $800 million debtor-in-possession financing facility, which:

• repaid approximately $135.5 million outstanding under the prepetition Secured Credit Facility upon entry of the interim order;

• provided approximately $187 million in incremental liquidity to fund the Debtors’ operations through a secured superpriority priming senior term loan facility upon entry of the interim order and approximately $263 million of incremental liquidity upon entry of the Final Order; and

• provided a $450 million secured superpriority priming senior revolving borrowing base facility with approximately $200 million in letters of available credit upon entry of the interim order, the remainder of which was made available upon entry of the Final Order.

b. DIP Liens: authority to grant:

• a first-priority, fully perfected lien on all unencumbered assets (primarily consisting of certain of the Debtors’ leasehold interests);

• a first-priority, fully perfected priming lien on all assets of the Debtors subject to the lien securing the notes issued by A&P under the indenture dated as of August 4, 2009, pursuant to section 364(d) of the Bankruptcy Code; and

• a fully perfected junior lien on all property subject to other pre-existing, validly perfected, non-avoidable liens existing as of the Commencement Date.

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c. Adequate Protection: approval of the form and manner of adequate protection provided to the Second Lien Lenders pursuant to sections 361(a) and 363(c) of the Bankruptcy Code.

d. DIP Claims: authority to grant a superpriority administrative claim with respect to all loans made and obligations incurred by the Debtors on or after the Commencement Date pursuant to the DIP Agreement, subject only to the Carve Out set forth in the DIP Orders, pursuant to section 364(c)(1) of the Bankruptcy Code.

e. Cash Collateral: authority to use cash collateral within the meaning of section 361 of the Bankruptcy Code.

As of the date hereof, the DIP Agreement has been twice amended. The first amendment to the DIP Agreement, among other things, provided that the Debtors’ disposition of the Southern Stores (as defined herein) would not result in a Prepayment Event, as defined under the DIP Agreement, thereby allowing the Debtors to retain the $40 million in proceeds generated from the sale of the Southern Stores without having to pay down the DIP Facility. The second amendment to the DIP Agreement modified certain financial covenants which, among other things, waived and allows for the waiver of the minimum cumulative EBITDA requirements for December 31, 2011 and January 28, 2012, provided, that, the Debtors file a plan of reorganization by January 30, 2012 that contemplates full indefeasible repayment of the obligations under the DIP Agreement, in cash, upon the effective date of such plan. The filing of the Plan satisfies the requirement entitling the Debtors to the EBITDA waiver described in the previous sentence.

D. Appointment of Committees

1. The Creditors’ Committee

On December 21, 2010, the United States Trustee appointed the Creditors’ Committee pursuant to section 1102 of the Bankruptcy Code, consisting of: (a) the Wilmington Trust Company; (b) the PBGC; (c) United Food & Commercial Workers International Union, CLC; (d) Central States, Southeast and Southwest Areas Pension Fund; (e) 1199 SEIU Healthcare Employees Pension Fund; (f) Kimco Realty Corporation; (g) McKesson Pharmaceutical; (h) C&S Wholesale Grocers, Inc.; and (i) Calip Dairies Inc. On June 3, 2011, the United States Trustee appointed Kraft Foods Global, Inc. to the Creditors’ Committee.

The Bankruptcy Court has approved the Creditors’ Committees’ retention of the following professionals: (a) Milbank, Tweed, Hadley & McCloy LLP as counsel [Docket No. 998]; (b) Klestadt & Winters, LLP as conflicts-counsel [Docket No. 1048]; and (c) FTI Consulting, Inc. as restructuring and financial advisors [Docket No. 999].

E. Operational Restructuring Initiatives

The Debtors have used the tools of chapter 11 to implement certain operational restructuring initiatives to successfully reorganize their business, including: (a) rationalizing their store footprint; (b) strategically replacing and improving their supply and logistics arrangements; and (c) executing labor cost savings initiatives.

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1. Rationalization of Store Portfolio

A fundamental component of the Debtors’ operational restructuring plan has been the rationalization of the Debtors’ footprint. The Debtors, with the assistance of their advisors and in consultation with the Creditors’ Committee, engaged in a comprehensive review of their store portfolio with the objective of identifying and closing unprofitable and non-core store locations.

a. Dark Stores Leases

In accordance with the Debtors’ operational restructuring activities, the Debtors, with the assistance of their advisors, began the process of reviewing and analyzing their contractual obligations so as to identify the contracts and leases that are burdensome to the Estates and may be rejected pursuant to section 365 of the Bankruptcy Code. By the Commencement Date, the Debtors had identified 73 “dark store” leases where the Debtors had ceased ongoing operations and were unable to sublease, assign, or terminate the relevant leases (collectively, the “Dark Store Leases”). The Debtors’ estimated that the Dark Store Leases would have imposed tens of millions of accrued actual costs in the fiscal year 2011 alone, with the full economic impact on the Estates potentially even more dramatic. The Dark Store Leases represented an unnecessary expense to the Estates and effectively contributed no value to the Debtors’ balance sheet. Thus, pursuant to the Debtors’ First Omnibus Motion for Entry of an Order Authorizing Rejection of Certain Unexpired Nonresidential Real Property Leases Nunc Pro Tunc to the Date Hereof [Docket No. 18] and the Debtors’ Second Omnibus Motion for Entry of an Order Authorizing Rejection of Certain Unexpired Nonresidential Real Property Leases and Related Subleases [Docket No. 164], the Debtors obtained authority from the Bankruptcy Court to reject 73 Dark Store Leases, another 25 underperforming leases and 26 subleases [Docket Nos. 81, 507, and 508].

b. Southern Stores

In the process of evaluating their store portfolio, the Debtors identified 25 stores in the mid-Atlantic region operating under the SuperFresh banner (collectively, the “Southern Stores”) as non-core assets. Following a robust marketing process and a two-day public auction, on June 20, 2011, and June 23, 2011, the Bankruptcy Court entered orders approving the sales of assets associated with the Southern Stores including, grocery stores, lease assignments and pharmacy assets to the highest bidders [Docket Nos. 1947, 1944, 1962, and 1965]. The Bankruptcy Court also authorized the Debtors to conduct store closing sales to dispose of all inventory and assets of the Southern Stores that were no successfully auctioned, and any assets excluded from the purchase agreements of the Southern Stores that were successfully auctioned [Docket No. 1734]. The sale of the assets of the Southern Stores generated more than $40 million in cash proceeds (excluding additional proceeds for inventory) for the Estates and freed the Debtors from the costs of operating underperforming stores that are not part of their going-forward business plan. Further, pursuant to the first amendment to the DIP Agreement, the Debtors were not obligated to use the proceeds from the Southern Store sales to pay down the DIP Facility.

c. Store Closing Sales

To facilitate the Debtors’ efforts to rationalize their store footprint, the Debtors sought authority from the Bankruptcy Court to: (i) commence store closing sales at stores the Debtors identify from time to time for closure in accordance with certain EBITDA related store rationalization procedures, notwithstanding any contractual provisions or state and local laws restricting such sales (the “Store Closing Sales”); (ii) sell certain of the Debtors assets in connection with the Store Closing Sales free and clear of all liens, claims and encumbrances; (iii) enter into a consulting agreement with a liquidation consultant; and (iv) assume, assign or reject unexpired leases subject to the Store Closing Sales [Docket No. 1004]. To date, the Debtors have executed approximately 32 Store Closing Sales, generating approximately $24 million in annual EBITDA improvement.

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The Debtors are continuing to evaluate their Unexpired Leases in consultation with the Investors.

2. Implementing Improved Supply and Logistics Arrangements

Another key aspect of the Debtors’ operational restructuring plan has been the replacement of costly, out-dated supply and logistics arrangements with new agreements tailored to the Debtors’ revised store footprint that provide significant cost savings.

a. The New C&S Agreement

C&S is the Debtors’ primary supplier, supplying approximately 70% of the merchandise sold by the Debtors, as of the Commencement Date. On March 7, 2008, A&P and C&S entered into an agreement under which C&S provided warehousing, transportation, and procurement services supporting virtually all of the Debtors’ operations (the “C&S Agreement”).

The Debtors thoroughly analyzed the C&S Agreement and concluded that it was materially unfavorable to A&P and incompatible with an emergence strategy. In December of 2010, the Debtors hired Marie Robinson, an experienced supply and logistics executive, who developed and supervised a substantial effort to re-engineer A&P’s supply and logistics arrangements and analyze all alternatives.

In early 2011, the Debtors initiated a multi-month and multi-round request for proposal process (“RFP”) from several supply and logistics providers, including C&S. The Debtors and their advisors considered C&S’s bid and also assembled composite bids based on a multi-provider solution that split the services that C&S currently provides among multiple suppliers. After analyzing all of the bids and following several weeks of negotiations with C&S, and with input from the Creditors’ Committee and the Debtors’ other key constituents, the Debtors concluded that the best option was to accept C&S’s bid offering a replacement contract and enter into a new supply and logistics contract with C&S (the “New C&S Agreement”).

On June 23, 2011, the Bankruptcy Court authorized the Debtors to reject the C&S Agreement and enter into the New C&S Agreement and to settle certain prepetition claims between the Debtors and C&S related thereto, including rejection damages [Docket No. 1964]. The projected net cost savings from the New C&S Agreement exceeds $50 million in the first year following emergence, alone, which, upon the Effective Date of the Plan, will become operative. In addition, the New C&S Agreement provides for immediate and improved operational efficiencies and controls, flexibility to remain effective upon implementation of the Plan, and more favorable payment terms. Further, the New C&S Agreement contemplates C&S waiving its damages claim arising from the Debtors’ rejection of the C&S Agreement.³² The New C&S Agreement also resolves the setoff dispute among the parties embodied in the Stipulation and Agreed Order Regarding Setoff Rights [Docket No. 1483], entered by the Court on May 2, 2011 whereby the parties reserved all rights to litigate the disputed amounts and categories of claims at a later date. The Debtors shall retain the $5.8 million already remitted by C&S, and C&S shall retain the remaining $12.2 million and apply that amount in satisfaction of C&S’s liquidated prepetition claim.

³²  C&S’s rejection damages claim waiver is voided if the New C&S Agreement is terminated prior to the Debtors’ emergence from chapter 11 and C&S may terminate the New C&S Agreement if the Debtors fail to emerge from chapter 11 by June 12, 2012 as an operating enterprise. Notably, this is the same date upon which the DIP facility matures and becomes fully payable.

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b. Rejection of GHI Trucking Agreement

On February 4, 2011, the Bankruptcy Court entered an order authorizing the Debtors’ rejection of the trucking agreement with GHI (the “GHI Contract’) upon entering into an alternative transportation logistics arrangement [Docket No. 721] (the “GHI Contract Order”).³³

The GHI Contract was inherited in the Pathmark Acquisition. The GHI Contract gave GHI the exclusive right to service the Pathmark-branded stores regardless of the origin or the volume of products to be delivered. The Debtors analyzed the costs and benefits of the GHI Contract and found that they paid substantially more for the services they receive under the GHI Contract than the prices they could negotiate with other parties in the current marketplace for comparable logistics. In response to the general need to economically restructure their third-party logistics arrangements, and, in the short-term, secure a less costly provider of interim trucking services to the Pathmark-branded stores, the Debtors circulated RFPs to numerous transportation services, including GHI and C&S. Ultimately, C&S’s bid for interim trucking services was the most favorable and the Debtors entered into an interim trucking agreement with C&S. The interim trucking agreement with C&S permitted the Company to realize material transportation cost savings immediately upon rejection of the GHI Contract. The interim trucking agreement was later incorporated into the New C&S Agreement.

3. Reducing Labor Costs

The final piece of the Debtors’ operational restructuring plan has been the development of a sustainable labor solution that sufficiently accommodates the Debtors’ needs to: (a) control labor costs; (b) attract and maintain a qualified and motivated workforce; (c) have sufficient flexibility to adapt their labor arrangements to their business needs; and (d) achieve a sustainable balance between the Debtors’ capital structure and pension obligations to ensure the availability of favorable exit financing options.

The Debtors are parties to 35 CBAs, which cover approximately 92% of their workforce. Among other things, these agreements require the Debtors to make significant pension, and health care-related contributions on their employees’ behalf. The Debtors contributed $56.6 million, $62.3 million and $48.2 million to the Multiemployer Pension Plans in the fiscal years 2010, 2009 and 2008, respectively. Moreover, the Debtors believe their collectively bargained wage, pension, and health care obligations placed them at a competitive disadvantage and were unsustainable at existing levels.

To develop a sustainable labor solution, the Debtors worked with their labor constituencies for months in extensive, arm’s-length negotiations. The Debtors and their advisors devised term sheets for each of their 35 CBAs and delivered them to the local unions on May 5, 2011. In the several months following the delivery of the term sheets, the Debtors’ senior management engaged in multiple negotiations with union representatives and exchanged counteroffers and term sheet revisions.

³³  On February 3, 2011, in anticipation of the GHI Contract Order, GHI filed an emergency motion for stay pending appeal of the GHI Contract Order [Docket No. 714]. On February 4, 2011, the Debtors filed an opposition to GHI’s motion for stay pending appeal of the GHI Contract Order [Docket No. 720]. On February 7, 2011, the Bankruptcy Court denied GHI’s motion for stay pending appeal of the GHI Contract Order [Docket No. 730].

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The pace of the parties’ negotiations accelerated when the Debtors reached agreement on the Securities Purchase Agreements, dated as of November 3, 2011 (and since amended and restated), with the Investors. A key factor in the Debtors’ acceptance of the deal with the Investors was the UFCW’s support of the Debtors’ and the Investors’ work towards a successful restructuring transaction. The Securities Purchase Agreements provided deadlines for the completion of negotiations between the Debtors and their local unions. In addition, the Securities Purchase Agreements brought Yucaipa, and its proven acumen in grocery and labor-related matters, into the negotiations as an additional voice to help both sides reach consensus.

Ultimately, the parties met the entire week of November 11, 2011 and began a series of negotiations aimed at closing the gap and reaching a final deal. The parties continued to document their agreements over the following week, and the final local union term sheet was executed on November 23, 2011. That same day, the Debtors filed a motion seeking Court authority to enter into modifications to 34 CBAs [Docket No. 2910] (the “Modified CBAs Motion”). At a hearing on December 5, 2011, the Bankruptcy Court approved the Modified CBAs Motion, and on December 8, 2011, the Bankruptcy Court entered an order approving the Modified CBAs Motion [Docket No. 3007].

The Debtors estimate that the modified CBAs will generate material savings, which savings are reflected in the Financial Projections attached hereto as Exhibit C. Although the modified CBAs require substantial sacrifices from the Debtors’ employees, they will permit the Debtors to survive in the competitive grocery business while still permitting the Debtors to retain and attract high-quality associates.

The terms of the modified CBAs are extended, which will provide the Debtors with substantial stability as reorganized entities. The modified CBAs also make myriad changes, varying by CBA, to 34 different CBAs among the Debtors and 13 independent local unions. In general, the modified CBAs alter certain provisions relating to wages, benefits, and working conditions, all of which have a direct and favorable impact on the Debtors’ bottom line. The terms of the modified CBAs are described in greater detail in the Modified CBAs Motion.

As of the filing of this Disclosure Statement, the Debtors have reached an agreement in principle with the Service Employees International Union, Local 1199 (“SEIU Local Union”), pursuant to which SEIU Local Union has agreed to certain modifications to its CBA that will provide cost savings to the Debtors. The modifications to SEIU Local Union’s CBA, subject to ratification by the members of SEIU Local Union and Bankruptcy Court approval, are intended to become effective on or before January 1, 2012.

F. Executory Contracts and Unexpired Leases

The Bankruptcy Code authorizes a debtor, subject to the approval of the Bankruptcy Court, to assume and assign, or reject Executory Contracts and Unexpired Leases. In conjunction with their overall asset rationalization efforts, the Debtors have engaged in a comprehensive evaluation of their Executory Contracts and Unexpired Leases.

The overwhelming majority of the Debtors’ store locations are leased, and as of the Commencement Date, the Debtors were parties to more than 700 unexpired leases of nonresidential real property, including subleases and leases on account of vacant properties, or locations previously assigned by the Debtors. The Leases are also a key component of the collateral package supporting the Debtors’ postpetition lending facility and borrowing base. In order to right-size their store footprint, the Debtors, with the assistance of their advisors, have engaged in a comprehensive review of their store portfolio with the objective of identifying and selling non-core store locations.

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On March 8, 2011 the Debtors sought and received approval of streamlined procedures to assume, assign or reject Unexpired Leases [Docket No. 1004]. During the course of the Chapter 11 Cases, the Debtors and their Professionals have evaluated Executory Contracts and Unexpired Leases in the context of the Debtors’ business plan. For each of these Executory Contracts and Unexpired Leases, the Debtors determined, based on the economics of the specific contract and their overall restructuring efforts, whether the contract was a candidate for assumption, rejection, or amendment and assumption.

To date, the Debtors have filed six omnibus motions to assume certain unexpired nonresidential leases [Docket Nos. 1959, 2271, 2486, 2656, 2780, 2936]. The Bankruptcy Court, pursuant to sections 363(b) and 365(a) of the Bankruptcy Code, has granted the Debtors authority to assume approximately 385 unexpired nonresidential leases and related subleases pertaining to approximately 235 operating stores, which compromise is the cornerstone for the Debtors’ ongoing business operations [Docket Nos. 2181, 2372, 2636, and 2879].

G. Analysis and Resolution of Claims

The Debtors’ Schedules and Statements provide information pertaining to the Claims against the Estates. On March 25, 2011, the Debtors filed their Schedules and Statements with the Bankruptcy Court. Interested parties may review the Schedules and Statements at the office of the Clerk of the United States Bankruptcy Court for the Southern District of New York, White Plains Division, 300 Quarropas Street, White Plains, New York 10601 or online at http://www.kccllc.net/APTea.

1. Claims Bar Date

On May 2, 2011 the Bankruptcy Court entered an order (the “Bar Date Order”) [Docket No. 1476] requiring all persons or entities, except as otherwise provided in the Bar Date Order, that can assert a Claim against the Debtors that arose or is deemed to have arisen prior to the Commencement Date, including all claims, as defined in section 101(5) of the Bankruptcy Code, all claims pursuant to section 503(b)(9) of the Bankruptcy Code and all claims held by governmental units, to submit a written Proof of Claim so as to be actually received on or before June 17, 2011 at 5:00 p.m. (prevailing Eastern Time) by KCC, the Debtors’ Claims Agent, in accordance with the Bar Date Order.

To date, KCC has received approximately 10,700 Proofs of Claim. Based upon a general reconciliation of the Debtors’ books and records, the Debtors believe that many of the filed Proofs of Claim are invalid, untimely, duplicative, or overstated, and, have therefore calculated the recoveries under the Plan with the assumption that such Claims will be expunged from the Claims Register. Based on this general reconciliation effort, the Debtors believe the actual total amount of the unsecured Claims Pool is approximately $1.0 billion to $1.7 billion, approximately $650 million of which is bond debt.

2. De Minimis Settlement Procedures

On March 10, 2011, the Bankruptcy Court approved the Debtors’ motion seeking approval of certain procedures (the “De Minimis Settlement Procedures”) for settling de minimis Claims [Docket No. 1002] (the “De Minimis Claims Order”). Under the De Minimis Settlement Procedures, where the proposed settlement amount is of a Claim or Cause of Action by a third party against one or more of the Debtors (the “Third Party Claims”) and is equal to or less than $75,000, the Debtors, in their reasonable business judgment, may settle such Claim without prior notice to any third parties or further notice or action by the Bankruptcy Court. Where the proposed settlement amount is of a Third Party Claim and is greater than $75,000 but less than $2,250,000, the Debtors, in their reasonable business judgment, may settle such Claim without further action of the Bankruptcy Court, provided, that the Debtors provide ten days written notice to certain parties in interest pursuant to the De Minimis Claims Order and no objection is received from such parties within those ten days.

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H. Maintaining Exclusive Right to File a Plan of Reorganization

Section 1121(b) of the Bankruptcy Code establishes an initial period of 120 days after the Bankruptcy Court enters an order for relief under chapter 11 of the Bankruptcy Code during which only the debtor may file a plan. Without further order of the Bankruptcy Court, the Debtors’ initial exclusivity period to file a plan would have expired on April 9, 2011. By order dated March 10, 2011, the Bankruptcy Court extended the Debtors’ exclusivity periods through and including December 31, 2011 (to file a plan) and through and including February 29, 2011 (to solicit acceptances) [Docket No. 1003]. The order authorizing these extensions reserved the Debtors’ right to seek additional extensions of these exclusivity periods.

On August 1, 2011 the Debtors filed their second motion to extend their exclusive periods [Docket No. 2268]. On August 18, 2011, the Bankruptcy Court approved the motion and extended the Debtors exclusive periods to both file and solicit votes for their plan of reorganization to January 16, 2012 and March 16, 2012, respectively [Docket No. 2370].

I. Negotiations Relating to the Development of the Plan

Beginning several months ago, at the same time that the Debtors were executing their substantial reorganization initiatives, the Debtors engaged in plan discussions with the Convertible Noteholders, which resulted in substantial dialogue during the months of August, September and October regarding capital investments to support a plan of reorganization, and which contributed to the terms memorialized in the Securities Purchase Agreements (the “Noteholders’ Proposal”). The Convertible Noteholders represent the Debtors’ largest unsecured creditor group and had demonstrated the financial wherewithal to deliver the capital infusion the Debtors needed to emerge from chapter 11. The material terms of the Noteholders’ Proposal were nearly finalized as of the end of October and the Debtors were prepared to file a motion for approval of the agreement on October 28, 2011, with the proposed investment contingent upon obtaining labor savings that the Debtors had yet to secure.

However, on October 24, 2011, Yucaipa submitted to A&P’s Board of Directors a letter of interest to provide an alternative investment. At 8:30 AM on October 26, 2011, the Board formed an independent restructuring committee, excluding those directors that could be perceived as having an affiliation with Yucaipa (the “Restructuring Committee”), to evaluate both the Convertible Noteholders’ Proposal and Yucaipa’s proposal. The first meeting of the Restructuring Committee took place thirty minutes later, at 9:00 AM on October 26, 2011, for the purpose of evaluating Yucaipa’s proposal. Following the October 26, 2011 Restructuring Committee meeting, the Debtors’ management and professionals engaged in parallel, around-the clock negotiations with the Convertible Noteholders and Yucaipa, providing updates to the Restructuring Committee on October 28, October 31 and November 1, 2011. Before submission of the joint proposal, the Debtors’ believed Yucaipa’s proposal offered certain advantages to the Convertible Noteholders—namely that (i) a Yucaipa-sponsored plan of reorganization was more likely to garner support from the Debtors’ unions; (ii) Yucaipa had general familiarity with the Debtors’ operations; and (iii) Yucaipa had the supermarket industry experience that could benefit the Debtors’ going-forward operations and efforts to obtain exit financing. On the other hand, that the sale of certain assets to Yucaipa in conjunction with the Debtors’ emergence from chapter 11 apart from the rest of the corporate enterprise could possibly have made outside financing more costly to obtain.

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Ultimately, the convertible noteholders and Yucaipa expressed an interest in submitting a joint proposal early in the morning hours of November 1, and it became clear to the Debtors and the Restructuring Committee that the best solution for the Debtors and their estates would be to allow the Convertible Noteholders and Yucaipa to jointly invest, harnessing the benefits of each proposal. The Securities Purchase Agreements embody the results of these negotiations. Lazard and Kirkland updated the Restructuring Committee on November 1 of the developments overnight and moved forward with documenting a joint proposal. Specifically, as a result of these negotiations, the Convertible Noteholders agreed to, among other things, (a) decrease the $26 million agreed-to break-up fee to $20 million and (b) a include a “fiduciary out” provision which would allow the Debtors to consider unsolicited proposals upon execution of the Securities Purchase Agreements. For its part, Yucaipa agreed to forgo its earlier plan to purchase certain assets concurrently with the Debtors’ emergence.

On November 2, 2011, the Restructuring Committee recommended that the Board authorize the Debtors’ management to enter into the Securities Purchase Agreements, and the Board gave such authorization on that same day. The Debtors’ management and professionals then finalized the Securities Purchase Agreements, and the parties signed the Securities Purchase Agreements on November 3, 2011. The parties amended and restated the Securities Purchase Agreements and submitted them to the Bankruptcy Court, certain parties in interest and (in a redacted form) to certain parties that objected to the Debtors’ motion to enter into the Securities Purchase Agreements. On December 6, 2011, the Bankruptcy Court entered an order authorizing the Debtors to enter into the amended and restated Securities Purchase Agreements [Docket No. 2962]. The Securities Purchase Agreements are the backbone of the Plan, which the Debtors believe represents their best option to maximize value for the estates, exit chapter 11 as expeditiously as possible, and provide their reorganized enterprise with the capital needed to implement their post-reorganization business plan.

J. Plan Support Agreement With Certain Holders of Debtors’ Second Lien Notes

A&P, as issuer, and each of the Debtors, as guarantors, have issued notes (the “Second Lien Notes”) pursuant to that indenture dated as of August 4, 2009 (the “Second Lien Indenture”) by and between the Debtors and Wells Fargo Bank, N.A. in its capacity as successor trustee (the “Second Lien Trustee”). The Second Lien Notes are secured by liens on substantially all the Debtors’ personal property and certain parcels of the Debtors’ real property. Holders of the Second Lien Notes beneficially owning approximately 70% of the aggregate principal value of the Second Lien Notes are members of the Ad Hoc Consortium of Second Lien Noteholders.³⁴

Beginning in mid-November, 2011, the Debtors, the Ad Hoc Consortium of Second Lien Noteholders, the Investors, and the Second Lien Trustee and their respective professionals engaged in arm’s length, good faith negotiations around the terms of a potential settlement to address their respective positions and, ultimately, to secure the collective support of certain holders of the Debtors’ Second Lien Notes for the Debtors’ proposed Plan. Through these negotiations, the parties addressed:

• the treatment under the Plan of certain holders of the Debtors’ Second Lien Notes that have executed the Plan Support Agreement (collectively, the “Consenting Noteholders”),³⁵ including the treatment of makewhole claims potentially arising under the Second Lien Indenture and the Second Lien Notes and the treatment of other claims arising under the Second Lien Indenture and the Second Lien Notes under the Plan, including default interest, interest on interest, and other claims;

³⁴  The Ad Hoc Consortium of Second Lien Noteholders is described more fully in the Amended Verified Statement of Brown Rudnick LLP Pursuant to Bankruptcy Rule 2019(a) filed with the Bankruptcy Court on November 11, 2011 [Docket No. 2856].

³⁵  Collectively, the Consenting Noteholders hold approximately $204 million of the Debtors’ Second Lien Notes—or approximately 79% of the Second Lien Notes’ aggregate principal value.

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• issues related to the Debtors’ potential cramdown of the Consenting Noteholders under the Plan; and

• the Consenting Noteholders’ ultimate support for the Debtors’ Plan.

The negotiations were a success and are embodied in the Plan Support Agreement. Pursuant to the Plan Support Agreement, the Debtors have agreed to amend the Plan to provide for: (a) the allowance of Second Lien Note Claims in the aggregate amount of $309,660,000.00 (assuming a March 1, 2012 Effective Date), subject to a per diem adjustment for the accrual of interest of $108,785.00 per day;³⁶ (b) the payment of the Consenting Noteholders’ Second Lien Note Claims on a Pro Rata basis in full in Cash; (c) the Consenting Noteholders and, subject to certain conditions, the Second Lien Trustee to be Released Parties and Exculpated Parties under the Plan; and (d) the allowance and payment of the Consenting Noteholders’ and the Second Lien Trustee’s reasonable and documented fees and expenses as of the Effective Date in an amount not to exceed $1,800,000, plus any fees and expenses payable by the Debtors pursuant to the Final DIP Order that remain unpaid as of the Plan Effective Date.³⁷

Pursuant to the Plan Support Agreement, and as described more fully in Article VI.G.1 herein, the treatment of holders of Allowed Class A Second Lien Note Claims depend on whether Class A votes to accept the Plan (or is presumed to have accepted the Plan) or votes to reject the Plan.

The Bankruptcy Court authorized the Debtors to enter into the Plan Support Agreement at a hearing held on December 15, 2011.³⁸

ARTICLE VI.

PLAN SUMMARY

A. Overview of Chapter 11

Chapter 11 is the principal business reorganization chapter of the Bankruptcy Code. Under chapter 11, a debtor can reorganize its business for the benefit of itself, its creditors, and interest holders. Chapter 11 also strives to promote equality of treatment for similarly situated creditors and similarly situated interest holders with respect to the distribution of a debtor’s assets.

The commencement of a chapter 11 case creates an estate that is comprised of all of the legal and equitable interests of a debtor as of the filing date. The Bankruptcy Code provides that the debtor may continue to operate its business and remain in possession of its property as a “debtor-in-possession.”

³⁶  As set forth more fully in the Plan Support Agreement, this amount excludes and does not include any Applicable Premium (as defined in the Second Lien Indenture), makewhole premium, prepayment penalty, or similar Claim arising under or related to the Second Lien Indenture or the Second Lien Notes. Subject to the terms and conditions set forth in the Plan Support Agreement, the Debtors expressly reserve all rights to contest any such claims on any basis.

³⁷  The Final DIP Order provides for the reimbursement of up to $175,000 of reasonable fees and expenses per month as further adequate protection for the Second Lien Trustee, subject to the terms and conditions set forth more fully therein. (See Final DIP Order ¶ 15(e)(ii).) To be clear, the Debtors will not be obliged to pay any additional fees and expenses under the Plan Support Agreement unless and until the Plan is confirmed and consummated, nor is the Second Lien Trustee waiving any rights with respect to such fees and expenses pursuant to section 506(b) of the Bankruptcy Code.

³⁸  See Order Authorizing the Debtors to Enter Into a Plan Support Agreement With Certain Holders of the Debtors’ Second Lien Notes [Docket No.     ].

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The consummation of a plan of reorganization is the principal objective of a chapter 11 case. A plan of reorganization sets forth the means for satisfying claims against, and interests in, a debtor. Confirmation of a plan of reorganization makes the plan binding upon the debtor, any issuer of securities under the plan, any person or entity acquiring property under the plan, and any creditor of or equity holder in the debtor, whether or not such creditor or equity holder is impaired under or has accepted the plan, or receives or retains any property under the plan. Subject to certain limited exceptions, and except as otherwise provided in the plan or the confirmation order itself, a confirmation order discharges the debtor from any debt that arose prior to the date of confirmation of the Plan and substitutes for those debts the obligations specified under the confirmed plan.

A chapter 11 plan may specify that the legal, contractual, and equitable rights of the holders of claims or interests in certain classes are to remain unaltered by the reorganization effectuated by the plan. Such classes are referred to as “unimpaired” and, because of such favorable treatment, are presumed to accept the plan. Accordingly, a debtor need not solicit votes from the holders of claims or interests in such unimpaired classes. A chapter 11 plan also may specify that certain classes will not receive any distribution of property or retain any claim against a debtor. Such classes are deemed to reject the plan and, therefore, need not be solicited to vote to accept or reject the plan. Any classes that are receiving a distribution of property under the plan but are not “unimpaired” will be solicited to vote to accept or reject the plan.

Section 1123 of the Bankruptcy Code provides that a plan of reorganization shall classify the claims of a debtor’s creditors and interest holders. In compliance therewith, the Plan divides Claims and Interests into various Classes and sets forth the treatment for each Class. The Debtors believe that the Plan has classified all Claims and Interests in compliance with section 1122 of the Bankruptcy Code, but it is possible that a holder of a Claim or Interest may challenge the classification of Claims and Interests and that the Bankruptcy Court may find that a different classification is required for the Plan to be confirmed. In such event, the Debtors intend, to the extent permitted by the Bankruptcy Court and the Plan, to make such modifications of the classifications under the Plan to permit Confirmation and to use the Plan acceptances received in this solicitation for the purpose of obtaining the approval of the reconstituted Class or Classes of which the accepting holder is ultimately deemed to be a member. Any such reclassification could adversely affect the Class in which such holder was initially a member, or any other Class under the Plan, by changing the composition of such Class and the vote required of that Class for approval of the Plan.

THE REMAINDER OF THIS SECTION PROVIDES A SUMMARY OF THE STRUCTURE AND MEANS FOR IMPLEMENTATION OF THE PLAN AND THE CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS UNDER THE PLAN, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE PLAN, THE PLAN SUPPLEMENT, AND THE EXHIBITS AND DEFINITIONS CONTAINED IN EACH DOCUMENT.

THE STATEMENTS CONTAINED IN THE DISCLOSURE STATEMENT INCLUDE SUMMARIES OF THE PROVISIONS CONTAINED IN THE PLAN AND IN THE DOCUMENTS REFERRED TO IN THE PLAN. THE STATEMENTS CONTAINED IN THE DISCLOSURE STATEMENT DO NOT PURPORT TO BE PRECISE OR COMPLETE STATEMENTS OF ALL THE TERMS AND PROVISIONS OF THE PLAN OR DOCUMENTS REFERRED TO IN THE PLAN, AND REFERENCE IS MADE TO THE PLAN AND TO SUCH DOCUMENTS FOR THE FULL AND COMPLETE STATEMENT OF SUCH TERMS AND PROVISIONS OF THE PLAN OR DOCUMENTS REFERRED TO IN THE PLAN.

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THE PLAN ITSELF AND THE DOCUMENTS IN THE PLAN CONTROL THE ACTUAL TREATMENT OF CLAIMS AND INTERESTS UNDER THE PLAN AND WILL, UPON THE OCCURRENCE OF THE EFFECTIVE DATE, BE BINDING UPON, AMONG OTHER ENTITIES, ALL HOLDERS OF CLAIMS AND INTERESTS, THE REORGANIZED DEBTORS, ALL ENTITIES RECEIVING PROPERTY UNDER THE PLAN, AND OTHER PARTIES IN INTEREST. IN THE EVENT OF ANY CONFLICT BETWEEN THE DISCLOSURE STATEMENT AND THE PLAN OR ANY OTHER OPERATIVE DOCUMENT, THE TERMS OF THE PLAN AND SUCH OTHER OPERATIVE DOCUMENT SHALL CONTROL.

B. Overall Structure of the Plan

Pursuant to the Plan, the Investors are providing a total New Money Commitment of $490 million in the form of (i) $210 million³⁹ face amount of privately placed New Second Lien Notes, (ii) $210 million face amount of privately placed New Convertible Third Lien Notes, and (iii) an $80 million New Equity Investment. Pursuant to the Substantive Consolidation Settlement described herein, holders of allowed General Unsecured Claims will receive their Pro Rata share of a cash pool of $40 million, less the amount distributed pursuant to the Substantive Consolidation Settlement.

In connection with its purchase of the NewCo Equity and the New Convertible Third Lien Notes, Yucaipa will acquire warrants to purchase NewCo Equity representing 7.0% of the fully diluted (prior to the issuance of any equity incentives pursuant to any management equity incentive plan A&P may implement pursuant to the Plan) common equity in Reorganized A&P at the time of the Plan Effective Date (the “Investment Warrants”).

As part of the Plan, on November 3, 2011, the Debtors and the Investors entered into security purchase agreements in respect of the New Second Lien Notes, the New Convertible Third Lien Notes and the New Equity Investment (collectively, the “Securities Purchase Agreements”). The Securities Purchase Agreements each provide that the parties will support the Plan in all aspects. Each of the Investors has agreed that, subject to certain exceptions, so long as the Company is in compliance with its obligations under the Securities Purchase Agreements and the Securities Purchase Agreements have not been terminated, the Investors will, subject to the receipt by the Investors of a Disclosure Statement approved by the Bankruptcy Court, timely vote or cause to be voted all of their Claims against the Debtors to accept the Plan, and not to change or withdraw such vote.

The Securities Purchase Agreements contain customary representations, warranties and covenants. In certain limited circumstances, the Investors have the right to terminate the Securities Purchase Agreements and withdraw their support for the Plan. For example, the Investors may terminate the Securities Purchase Agreements and will not be required to support the Plan if (a) the representations and warranties made by the Debtors in connection with the Securities Purchase Agreements fail to be true and correct in all material respects or (b) the Debtors fail to materially perform or comply with any covenants contained in the Securities Purchase Agreements.

The Securities Purchase Agreements contain both exclusivity and non-solicitation covenants that prohibit the Debtors from soliciting alternative transactions; however, they also contain a limited “fiduciary out” permitting the Debtors to consider unsolicited superior offers.

The Securities Purchase Agreements provide that the Debtors will pay the Investors a $40 million commitment fee payable in New Convertible Third Lien Notes and, under certain circumstances, a $15 million break-up fee to the Investors. They also provide that the Debtors will pay the Investors’

³⁹  The $210 million face amount of the New Second Lien Notes will be issued with a 5.0% original issue discount, therefore, the aggregate amount of the securities includes $200 million–not $210 million–in funds from the issuance of the New Second Lien Notes.

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reasonable fees and expenses, provided, that to the extent the total fees and expenses of professional advisors retained by the Investors (excluding any success fees, transaction fees or comparable fees set forth on Schedule 1.7 of the Company Disclosure Schedule attached to the Securities Purchase Agreements) which are incurred during the period from and after the Execution Date of the Securities Purchase Agreements and on or before the Closing Date of the Securities Purchase Agreements (or any earlier termination of the Securities Purchase Agreements, exceed $5.0 million, the payment (or reimbursement) of such professional fees and expenses in excess of $5.0 million shall be subject to further approval by the Bankruptcy Court.

The Securities Purchase Agreements are the backbone of the Plan, which the Debtors believe represents their best option to maximize value for the estates, exit chapter 11 as expeditiously as possible, and provide their reorganized enterprise with the capital needed to implement their post-reorganization business plan.

The preceding description is a summary of the Securities Purchase Agreements and does not purport to be complete. This summary is subject to and is qualified by reference to all the provisions of Securities Purchase Agreements.

C. Substantive Consolidation Settlement

The Plan provides for a settlement and compromise of the issues relating to whether the liabilities and assets of the Debtors should be substantively consolidated for purposes of distributions under the Plan. These issues include: (a) whether the elements necessary to obtain an order of substantive consolidation are satisfied in the Chapter 11 Case; (b) the value of the Debtors’ Estates on an individual and a consolidated basis, and the proper method of determining such value; (c) whether the Estate of each Debtor should be treated separately for purposes of making payments to holders of Claims; (d) whether it is possible to attribute particular Claims asserted in the Chapter 11 Cases to a specific Debtor; (e) the value to be accorded to guarantees issued by one Debtor in favor of another Debtor; (f) the strength of the relative rights and positions of the different Classes of unsecured Claims with respect to disputes over substantive consolidation; (g) other issues having to do with the rights of certain Estates, Claims, or Classes of Claims vis-à-vis other Estates, Claims, or Classes of Claims; and (h) the nature of Intercompany Claims arising in the ordinary course of business.

Substantive consolidation is a judicially-created remedy whereby the assets and liabilities of two or more related entities are pooled, and the pooled assets are used to satisfy the claims of creditors of all the consolidated entities. The Debtors believe there is sufficient evidence to satisfy the legal standard for substantive consolidation, specifically that the Debtors’ businesses are “hopelessly entangled” and creditors relied on the Debtors as a single economic unit when transacting business with the Debtors in the ordinary course. However, certain creditors, namely holders of Guaranteed Landlord Claims and Pension Withdrawal Claims, may assert that they would be disadvantaged by substantive consolidation. After considering the various factors weighing both in favor of and against substantive consolidation, and in consultation with the Creditors’ Committee, the Debtors concluded that complex, time-consuming, and ultimately uncertain substantive consolidation litigation was likely if the Debtors pursued substantive consolidation of their estates, and that the cost of such litigation could pose material risk to the Debtors’ reorganization efforts and all creditor recoveries. Therefore, the Plan proposes a compromise that would eliminate the necessity of such costly and time-consuming litigation and that best approximates the equitable distribution of the Debtors’ assets after taking into account the issues described in the preceding paragraph.

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1. Legal Standard for Substantive Consolidation

The Second Circuit, in Union Sav. Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 518 (2d Cir. 1988) established a two-pronged test for determining whether the equitable remedy of substantive consolidation is appropriate: (i) did creditors deal with the entities as a single economic unit and not rely on the separate identity of the debtors in extending credit or (ii) are the affairs of the debtors so hopelessly entangled that consolidation will benefit all creditors. See Augie/Restivo, 860 F.2d at 518. Substantive consolidation is appropriate where either test is satisfied. In applying these tests, courts generally consider several of the following factors when determining whether to grant substantive consolidation of debtors in chapter 11, including: (a) the presence or absence of consolidated financial statements; (b) the unity of interests and ownership between the various entities; (c) the existence of intercompany guarantees; (d) the degree of difficulty in segregating and ascertaining the assets and liabilities of the various entities; (e) the informal transfer of assets among the entities; (f) the commingling of assets, liabilities, and business functions; (g) the profitability of consolidation at a single location; (h) whether a parent owns a majority of its subsidiary’s stock; (i) whether the entities have common officers and directors; (j) whether a subsidiary is grossly undercapitalized; (k) whether a subsidiary solely conducts business with its parent; (l) disregard of the legal requirements of a subsidiary as a corporation separate from its parent; (m) the existence of a single cash management system; (n) whether different entities were created only to provide tax benefits; (o) assumption by a parent of contractual obligations of its subsidiaries; (p) sharing of overhead, management, accounting, and other related expenses among different corporate entities; (q) failure to distinguish between property of each entity; (r) a parent paying salaries of employees of subsidiaries; (s) a parent or its affiliates financing the subsidiary; (t) a parent shifting people on and off its subsidiary’s board of directors; (u) a parent referring to its subsidiary as a department or division; (v) directors of a subsidiary not acting independently in the interest of the subsidiary, but taking direction from the parent; and (w) a parent acting from the same business location as its affiliates and subsidiaries. See, e.g., In re Vecco Constr. Indus., Inc., 4 B.R. 407, 410 (Bankr. E.D. Va. 1980); PBGC v. Ouimet Corp., 711 F.2d 1085, 1093 (1st Cir. 1983); In re Drexel Lambert Grp., Inc., 138 B.R. 723, 766 (Bankr. S.D.N.Y. 1992); In re Eagle-Picher Indus., Inc., 192 B.R. 903, 907 (Bankr. S.D. Ohio 1996); In re Lionel L.L.C., Case No. 04-17324, 2008 WL 905928, at *11 (Bankr. S.D.N.Y. Mar. 31, 2008). As the above-mentioned factors indicate, a substantive consolidation analysis is extremely fact-intensive.

2. The Debtors’ Analysis of Substantive Consolidation

The Debtors’ management and advisors undertook a comprehensive analysis of many of the factors listed in Article VI.C.1 above that courts consider in a substantive consolidation analysis. The Debtors reviewed, among other things, the Debtors books and records, public filings, accounting and cash management systems, intercompany claims, intercompany guarantees, and expense allocations. Through this extensive analysis, the Debtors determined that substantive consolidation may be feasible.

a. Hopeless Entanglement

The Debtors believe that a number of factors support a conclusion that their businesses are “hopelessly entangled” on a financial and operational basis, and that such factors satisfy the second prong of the Augie/Restivo test described above.

The Debtors’ reporting and accounting systems do not record information that would enable a determination of each individual Debtor’s financial picture with a high degree of certainty, although the Debtors maintained financial statements by Debtor entity prior to the Petition Date. Prior to the Petition Date, the Debtors financial reporting system generated intercompany balances arising from the ordinary operation of the Debtors’ business. Intercompany balances for any particular legal entity could fluctuate based on, among other things, transfers of cash or personal property from one legal entity to another, invoices satisfied by one legal entity on another’s behalf, or the allocation of corporate overhead or other expenses among different legal entities.

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For example, the Debtors would typically pay vendor invoices through a disbursement from an A&P-owned bank account, regardless of whether inventory was delivered to an A&P-owned store or a location nominally owned by an affiliated Debtor. Thus, a $1,000,000 payment on account of inventory delivered to a store location owned by Pathmark Stores, Inc. would be reflected as a $1,000,000 increase to A&P’s intercompany receivable balance, and a $1,000,000 decrease to Pathmark Stores, Inc.’s intercompany receivable balance. Prior to the Petition Date, the Debtors’ financial reporting system would record thousands of transactions like this in the ordinary course of business.

However, the Debtors’ financial reporting did not track the particular entity to which any given intercompany receivable is due, or vice versa. For example, the Debtors do not historically maintain an account that tracks all A&P/Pathmark Stores, Inc. transactions. Instead, each Debtor maintained a single intercompany balance that aggregated all intercompany transactions for that entity (as opposed to maintaining separate balances for intercompany transactions with each of its 53 Debtor Affiliates), although such transactions would be recorded in the Debtors’ general ledger. In other words, the Debtors cannot readily identify the affiliate(s) from which a particular prepetition intercompany balance is due.

Further, until 2009, the Debtors maintained financial statements on a consolidated basis only. The Debtors’ initial legal entity balance sheets were developed based on available records and required significant estimates with respect to, among other things, the assets (including inventory, contracts, store leases, and personal property), liabilities, and intercompany balances. Even after the Debtors began legal entity accounting, they continued to publicly file audited financial statements on a consolidated basis only. As a result, the Debtors’ intercompany balances have never been audited or otherwise tested by the Debtors’ independent accountants.

After extensively reviewing their financial accounting, the Debtors believe that it would be extremely difficult and prohibitively expensive to deconstruct their intercompany balances and consolidated financial statements and accurately determine the amount of assets and liabilities at each Debtor.

Further, the Debtors share overhead, management, accounting, and other related expenses. Each Debtor is managed and operated by the same executive management team based in Montvale, New Jersey. Corporate overhead is generally allocated to each Debtor as a percentage of sales or expenses to cover the pro rata share for costs such as executive compensation but is not allocated based on actual use of shared resources. Other corporate overhead expenses are allocated to divisions, and to the stores within a particular division, based on sales. However, these relationships are not governed by formal intercompany services agreements among the respective Debtors but are, instead, a function of accounting practices utilized by the Debtors’ centralized financial staff in the ordinary course of business.

Although, given a significant level of professional resources and a commensurate amount of time, it may be possible to reconcile or validate the Debtors’ intercompany books and records through a forensic accounting analysis, the Debtors believe this exercise would be prohibitive in terms of both cost and the resulting delays that would necessarily be imposed upon their overall reorganization efforts.

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b. Creditors’ Reliance on the Debtors as a Single Integrated Enterprise

The Debtors believe the vast majority of their creditors perceived and relied upon the Debtors as a single economic unit and did not rely on the separate identity of any Debtor in the ordinary course of business because, among other things: (i) most of the Debtors’ major vendor contracts are entered into by only A&P regardless of the fact that such vendors supplied store locations nominally owned by subsidiary Debtors; (ii) marketing relationships and merchandising programs were typically negotiated by the Debtors’ centralized merchandising staff on behalf of the A&P enterprise as a whole; (iii) the Debtors issued financial statements on a “consolidated only” basis prior to the Prepetition Date; (iv) the Debtors typically used the same letterhead, business cards, and check forms for business (regardless of the particular legal entity at issue); (v) creditors of A&P subsidiaries generally did not have access to financial statements of such entities, but instead only had access to consolidated financial statements; (vi) most of the Debtors did not have individual credit ratings, and (vii) substantially all cash disbursements are made through bank accounts owned or maintained by A&P. Overall, the Debtors generally presented themselves as a single integrated enterprise and their creditors did not rely on the separate identity of any one Debtor.

3. The Substantive Consolidation Settlement

Despite the strength of the Debtors’ arguments, the Debtors identified certain risks and barriers to continuing to dispute the substantive consolidation issue. Litigation, which would require significant discovery in addition to hearings and trial, could easily span several months and cost millions of dollars. Without the Substantive Consolidation Settlement, the Chapter 11 Cases would be substantially prolonged, and the Debtors would face not only the increased costs of substantive consolidation litigation but also the additional costs inherent in lingering in bankruptcy. In addition, the Debtors recognize that certain creditors may have relied on the corporate separateness of particular Debtors when electing to extend credit on a prepetition basis or that may otherwise hold claims against multiple Debtor entities on account of creditor-specific contractual rights.⁴⁰

Accordingly, and with the goal of effectuating a reorganization that maximizes value to creditors, the Debtors met with advisors to the Creditors’ Committee on numerous occasions to keep them apprised of the Debtors’ analysis, and also to provide the Creditors’ Committee with the opportunity to test the Debtors’ legal and factual determinations. The Debtors also provided the Creditors’ Committee’s advisors with significant levels of diligence throughout this process, including the opportunity to meet with various members of the Debtors’ legal, financial, and merchandising teams. Through these discussions, the Debtors proposed the framework for the Substantive Consolidation Settlement in consultation with the Creditors’ Committee’s advisors.

Pursuant to the Substantive Consolidation Settlement embodied in the Plan, holders of Allowed Unsecured Claims will receive their Pro Rata shares of the Unsecured Creditor Cash Pool. The Debtors believe that the substantive consolidation of the Debtors may adversely impact holders of Allowed (Class I) Guaranteed Landlord Claims and Allowed (Class J) Pension Withdrawal Claims because such holders may be entitled to a recovery from multiple operating Debtors on account of their Allowed (Class I) Guaranteed Landlord Claims and Allowed (Class J) Pension Withdrawal Claims. Therefore, in order to provide an equitable distribution to holders of Allowed Pension Withdrawal Claims and holders of Allowed Guaranteed Landlord Claims who vote to approve the Plan, in consultation with the Creditors’ Committee, the Plan and Substantive Consolidation Settlement provide for an enhanced recovery to these holders as provided in Article III.C.9.b and Article III.C.10.b of the Plan. The terms of the Substantive Consolidation Settlement shall not be changed without the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a change that is not adverse to the Investors), and any change shall be made in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent.

⁴⁰ The Debtors reserve their rights, subject to the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a decision by the Debtors or Reorganized Debtors that is not adverse to the Investors), to substantively consolidate their estates, in full, outside of the terms of the Substantive Consolidation Settlement.

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Holders of Allowed Guaranteed Landlord Claims specifically bargained to have recourse against both an operating Debtor and A&P, through a guarantee. Also, holders of Allowed Pension Withdrawal Claims assert that they are entitled to recover from all of the Debtors on a joint and several basis pursuant to ERISA and PBGC regulations.⁴¹ Accordingly, the Debtors believe that holders of Allowed Guaranteed Landlord Claims and holders of Allowed Pension Withdrawal Claims would have potentially viable arguments in opposition to the substantive consolidation of the Debtors’ Estates.

As a result of the Substantive Consolidation Settlement, except as otherwise provided herein (including any exhibits or supplements hereto), and only for purposes of voting and distributions under the Plan: (a) the separate Chapter 11 Cases of the Debtors will be consolidated into the case of A&P as a single consolidated case; (b) all property of the Estate of each Debtor will be deemed to be property of the consolidated Estates; (c) all Claims against each Estate will be deemed to be Claims against the consolidated Estates, any Proof of Claim filed against one or more of the Debtors will be deemed to be a single Proof of Claim filed against the consolidated Estates, and all duplicate Proofs of Claim filed on account of a Claim representing a single liability (other than Claims filed against multiple Debtors on the basis of joint and several liability) will be deemed expunged; (d) no distributions under the Plan will be made on account of Intercompany Claims or Intercompany Interests; (e) Allowed Claims based on joint and several liability shall be deemed satisfied by a single distribution as if the Claim were held solely against one Debtor Entity; (f) except as provided in the Plan with respect to the treatment of Guaranteed Landlord Claims and Pension Withdrawal Claims, all Claims based upon pre-petition unsecured guarantees by one Debtor in favor of any other of the Debtors or other basis of co-Debtor liability will be eliminated (other than guarantees existing under assumed Executory Contracts or Unexpired Leases), and no distributions under the Plan will be made on account of Claims based upon such guarantees or other basis of co-Debtor liability; and (g) for purposes of determining the availability of the right of setoff under section 553 of the Bankruptcy Code, the Debtors will be treated as one consolidated entity so that, subject to the other provisions of section 553 of the Bankruptcy Code, pre-petition debts due to any of the Debtors may be set off against the pre-petition debts of any other of the Debtors.

The Plan will not result in the merger or otherwise affect the separate legal existence of each Debtor, other than with respect to distribution rights under the Plan. The compromise plan structure will not (a) impair the validity or enforceability of guarantees that exist under or with respect to assumed executory contracts or unexpired leases; (b) affect valid, enforceable, and unavoidable Liens that would not otherwise be terminated under the Plan, except for Liens that secure a Claim that is eliminated by virtue of the plan structure and Liens against collateral that are extinguished by virtue of such plan structure; (c) have the effect of creating a Claim in a Class different from the Class in which a Claim would have been placed in the absence of such structure; or (d) affect the obligation of each of the Reorganized Debtors, pursuant to section 1930 of Title 28 of the United States Code, to pay quarterly fees to the Office of the United States Trustee until such time as each particular Debtor’s case is closed.

The Substantive Consolidation Settlement is the result of negotiations among the advisors to the Creditors’ Committee and the Debtors. This negotiation followed extensive legal analysis by the Debtors regarding whether substantive consolidation was appropriate. The Debtors will address certain aspects of their analysis at the Confirmation Hearing in support of the Substantive Consolidation Settlement. Among other things, key factors assessed in the analyses included:

⁴¹  See 29 U.S.C. 1381; 29 U.S.C. 1301(b)(1); 29 C.F.R. 4001.2; 29 C.F.R. 4001.3.

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• the strength of a given holder’s argument that their recoveries are materially affected by substantive consolidation of the Debtors in light of applicable law;

• the probability that a given holder would be successful in opposing substantive consolidation of the Debtors’ estates;

• the risks and costs of substantive consolidation;

• the magnitude and likely treatment of intercompany claims;

• the estimated size of a given holders’ claims relative to the estimated size of the entire Unsecured Creditors’ claims pool; and

• the projected recoveries of Unsecured Creditors on a consolidated basis with and without implementation of the Substantive Consolidation Settlement.

Based upon the Debtors’ analysis and negotiations with the Creditors’ Committee, the Debtors and the advisors for the Creditors’ Committee agreed that Pension Withdrawal Claims and Guaranteed Landlord Claims should be entitled to a recovery enhancement under the Substantive Consolidation Settlement. The Debtors and the advisors for the Creditors’ Committee then allocated the percentages in negotiations based upon the factors described above and their respective analyses. As a result of these analyses and negotiations, the Debtors’ determined that the Pension Withdrawal Claims and Guaranteed Landlord Claims’ incremental recovery as a multiple of General Unsecured Claims should be 2.35 times and 1.46 times General Unsecured Claim Recoveries, respectively. The Creditors’ Committee continues to consider and analyze the Substantive Consolidation Settlement.

As a result of the Substantive Consolidation Settlement, the Debtors estimate that holders of Allowed Pension Withdrawal Claims, Allowed Guaranteed Landlord Claims and other Allowed Unsecured Claims will receive the recoveries summarized in the table below. The below table is illustrative of projected recoveries and reflects current estimates of the categories of Claims below. The amounts and percentages, as applicable, may materially change. However, pursuant to the Substantive Consolidation Settlement, the row pertaining to the “Recovery as Multiple of Other Unsecured Claims” ratios will remain constant regardless of fluctuations in the ultimate amount of Allowed Claims.

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	Pension Withdrawal Claims			Guaranteed Landlord Claims			Other Unsecured Claims
Estimated Amount of Allowed Claims	$	238.0 million		$	25.0 million		$	1.237 billion
Estimated Aggregate Recovery	$	12.2 million		$	0.8 million		$	27.01 million
Percent Recovery		5.1	%		3.2	%		2.2	%
Incremental Recovery due to Substantive Consolidation Settlement v. Other Unsecured Claims		2.9	%		1.0	%		N/A
Recovery as Multiple of Other Unsecured Claims		2.35x			1.46x			N/A

4. The Substantive Consolidation Settlement is in the Best Interests of all Creditors

The Plan is deemed to be a motion under sections 105, 363, and 1123 of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules for approval of the compromise and settlement of the issues described above. The confirmation of the Plan shall constitute approval of such motion by the Bankruptcy Court, and the Confirmation Order shall contain findings supporting and conclusions approving the compromise and settlement as fair and equitable and within the bounds of reasonableness.

As indicated above, pursuant to Section 1123(b)(3)(A) of the Bankruptcy Code and Rule 9019 of the Bankruptcy Rules, the Plan incorporates the proposed Substantive Consolidation Settlement. In order to approve a compromise or settlement, a court must find that the proposed compromise is fair and equitable and in the best interests of the bankruptcy estate. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, (1968); Fisher v. Pereira (In re 47-49 Charles St., Inc.), 209 B.R. 618, 620 (S.D.N.Y. 1997). In the context of evaluating a settlement, the court may approve a settlement so long as the settlement does not “fall below the lowest point in the range of reasonableness.” Cosoff v. Rodman (In re W.T. Grant Co.), 699 F.2d 599, 608 (2d Cir. 1983) (citing Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972). In considering a settlement, a court need not conduct a “mini-trial” of the merits of the claims being settled, W.T. Grant Co., 699 F.2d at 608, or conduct an extended full independent investigation. In re Drexel Burnham, 134 B.R. at 496.

Courts in this Circuit consider the following factors when determining whether to approve a settlement under Rule 9019: (a) the balance between the litigation’s possibility of success and the settlement’s future benefits; (b) the likelihood of complex and protracted litigation, “with its attendant expense, inconvenience, and delay;” (c) “the paramount interests of the creditors;” (d) whether other parties in interest support the settlement; (e) the “competency and experience of counsel” supporting, and “[t]he experience and knowledge of the bankruptcy court judge” reviewing, the settlement; (f) “the nature and breadth of releases to be obtained by officers and directors”; and (g) “the extent to which the settlement is the product of arm’s length bargaining.” See In re Iridium Operating LLC, 478 F.3d 452, 462 (2d Cir. 2007) (quoting In re WorldCom, Inc., 347 B.R. 123, 137 (Bankr. S.D.N.Y. 2006)).

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The decision to approve a settlement lies within the sound discretion of the bankruptcy court. Nellis v. Shugrue, 165 B.R. 115, 122-23 (S.D.N.Y. 1994). The court may give weight to the informed judgment of the debtor that a compromise is fair and equitable. In re Purofied Down Prods. Corp., 150 B.R. 519, 522 (S.D.N.Y. 1993). Additionally, a court may exercise its discretion “in light of the general public policy favoring settlements.” In re Hibbard Brown & Co., Inc., 217 B.R. 41, 46 (Bankr. S.D.N.Y. 1998).

The Debtors believe that the proposed Substantive Consolidation Settlement is in the best interests of the Debtors’ Estates because of the complexity of potential substantive consolidation litigation, the Debtors’ corporate and operational structure, and the available proceeds for distribution to unsecured creditors. The Debtors, the Creditors’ Committee, and major creditor constituencies recognized that litigation would likely require a detailed, fact-intensive inquiry that would require substantial time, energy and expense to discover and adjudicate. Such lengthy litigation would significantly delay confirmation of the Plan and could significantly impair the Debtors’ ability to consummate the Securities Purchase Agreements on which the Debtors’ restructuring efforts hinge. Indeed, the benefit to the Debtors’ Estates is derived not only from the aforementioned benefits, but also from the fact that without the Debtors’ negotiation of the terms of the Substantive Consolidation Settlement, the Plan likely would not exist.

Finally, the Debtors recognized that preserving the Debtors’ corporate structure (a) was essential to the Debtors’ success after the Effective Date, (b) would ultimately enhance creditor recoveries, and (c) avoided potentially inaccurate valuations of entities that did not have historical stand-alone values.

Therefore, after taking into account the aforementioned facts, the Debtors conclude that the Substantive Consolidation Compromise and the related features embodied in the Plan are equitable and in the best interests of the Debtors’ Estates.

D. Trade Creditors

Trade Creditors who enter into a Trade Agreement, as defined in Exhibit A to the Plan, acceptable to the Debtors and the Investors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) prior to the Effective Date (to take effect upon and following the Effective Date) may receive an enhanced recovery on their applicable Allowed Trade Claim from the Trade Claims Cash Pool, as described in Exhibit A to the Plan.

On or before January 15, 2012, or such later date that may be agreed to by the Debtors and the Investors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), the Debtors shall provide a form of Trade Agreement to certain Trade Creditors under which the Debtors and the Investors may elect to provide an Incremental Trade Recovery, as defined in Exhibit A to the Plan, pursuant to the Plan.

As a condition to receive an Incremental Trade Recovery, the applicable Trade Creditor must hold an Allowed Class H Trade Claim and must execute a Trade Agreement on or before the objection deadline for the Confirmation Hearing, as such date may be extended by the Debtors and the Investors in their discretion. Unless otherwise agreed-to by the Debtors and the Investors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), each Trade Agreement shall provide the Reorganized Debtors with trade terms (including trade credit, pricing, and credit limits) at least as favorable to the Debtors as those in place prior to the Commencement Date. The executed form of Trade Agreement must be acceptable to the Debtors and the Investors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) for the applicable Trade Creditor to receive an Incremental Trade Recovery.

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On a weekly basis following entry of an order approving Disclosure Statement by the Bankruptcy Court, the Debtors shall disclose all Incremental Trade Recoveries to be provided pursuant to executed Trade Agreements, if any, to: (1) the Creditors’ Committee’s professionals (on a “professional eyes only” basis); (2) the DIP Facility Administrative Agent and its counsel; (3) the office of the United States Trustee; (4) the Investors; and (5) such other parties as may be agreed-to by the Debtors and the Investors or otherwise ordered by the Bankruptcy Court.

Notwithstanding anything herein or in the Plan to the contrary, (1) the Debtors shall be under no obligation to offer or agree to provide any Incremental Trade Recovery to any Trade Creditor and (2) the amount of any Incremental Trade Recovery offered or ultimately provided to a Trade Creditor, if any, shall be determined by the Debtors and the Investors in their discretion (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent).

E. Administrative and Priority Claims

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Professional Claims, DIP Facility Claims, and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims set forth in this Article VI.

1. Administrative Claims

Unless otherwise agreed to by the holder of an Allowed Administrative Claim and the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, each holder of an Allowed Administrative Claim (other than of a Professional Claim), including any Allowed Administrative Claim of the Notes Trustee or Second Lien Trustee, will receive in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of such Allowed Administrative Claim either: (1) on the Effective Date, or as soon as practicable thereafter, (2) if the Administrative Claim is not Allowed as of the Effective Date, no later than 30 days after the date on which an order Allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter, (3) if the Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after the Commencement Date, pursuant to the terms and conditions of the particular transaction giving rise to such Allowed Administrative Claims, without any further action by the holders of such Allowed Administrative Claims, (4) for any amounts owed pursuant to the Securities Purchase Agreements, in accordance with the Securities Purchase Agreements or as allowed pursuant to the Securities Purchase Agreements Order or (5) for any professional fee and expense amounts owed pursuant to the Union Settlement Agreements, in accordance with the Union Settlement Agreements, not to exceed $2.75 million pursuant to the terms thereof. For the avoidance of doubt, all reasonable fees and expenses that are submitted to the Debtors and the Creditors’ Committee of the Notes Trustee (and its counsel, agents, and advisors) that are provided for under the Notes Indentures, as applicable, shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, without a reduction to the recoveries of applicable holders of Allowed Claims only if Classes E, F and G (defined below) each vote in favor of the Plan.

Additionally, the reasonable and documented fees and expenses of (a) the Second Lien Trustee and Seward & Kissell LLP in its capacity as counsel to the Second Lien Trustee, and (b) Brown Rudnick LLP and Miller Buckfire & Co. LLC in their capacities as advisors to the Second Lien Trustee and/or the Ad Hoc Consortium (as defined in the Plan Support Agreement, and as applicable) submitted to the Debtors (subject to redaction to preserve attorney-client privilege) shall be Administrative Claims Allowed against the Debtors’ estates payable on the Effective Date in an aggregate amount not to exceed $1,800,000.00 plus any fees and expenses payable by the Debtors pursuant to Paragraph 15(e)(ii) of the Final DIP Order that remain unpaid as of the Effective Date (the “Second Lien Professional Fee Cap”);

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provided that the foregoing shall not in any way limit, waive, or modify (x) the rights of the Second Lien Trustee and its attorneys, professionals, and advisors to seek payment and/or reimbursement of fees, costs, and expenses pursuant to the Second Lien Indenture, including any such fees, costs, and expenses exceeding the Second Lien Professional Fee Cap or (y) any party’s ability to contest any such additional fees or expenses sought under clause (x) hereof; provided further that the foregoing shall not limit nor be deemed to limit fees and expenses payable by the Debtors pursuant to Paragraph 15(e)(ii) of the Final DIP Order). For the avoidance of doubt, the fees and expenses payable pursuant to this paragraph: (i) shall not be subject to a request for payment of Administrative Claims (other than with respect to fees and expenses requested pursuant to clause (x) of this paragraph) and (ii) shall not reduce the recoveries of the holders of Allowed Second Lien Note Claims (other than through the Second Lien Trustee’s exercise of its charging lien under Section 7.07 of the Second Lien Indenture in accordance with Article VII.A.3 of the Plan).

Except as otherwise provided in Article II.A of the Plan, unless previously filed, requests for payment of Administrative Claims (other than requests for the payment of Transaction Expenses, which shall be governed pursuant to the terms of the Securities Purchase Agreements and the Securities Purchase Agreements Order) must be filed and served on the Reorganized Debtors no later than the Administrative Claims Bar Date pursuant to the procedures specified in the Confirmation Order and the notice of entry of the Confirmation Order. Holders of Administrative Claims that are required to file and serve a request for payment of such Administrative Claims that do not file and serve such a request by the Administrative Claims Bar Date shall be forever barred, stopped and enjoined from asserting such Administrative Claims against the Debtors, the Reorganized Debtors or their property and Estates and such Administrative Claims shall be deemed discharged as of the Effective Date. For the avoidance of doubt, the payment of the Break-Up Fee and any Transaction Expenses shall be governed by the Securities Purchase Agreements and the Securities Purchase Agreements Order.

The UFCW Local Unions, on behalf of the employees represented by the UFCW Local Unions, shall accrue and shall be entitled to a stipulated, approved and allowed administrative claim in the amount of the actual cash savings provided to the Debtors under the Modified Collective Bargaining Agreements from the effective date of the Union Settlement Agreements through Confirmation, as provided in the Union Settlement Agreements. Any such administrative expense claim will be capped at a maximum of $18 million based on cash savings provided in the fourth calendar quarter of 2011 and $7 million based on cash savings provided in the first calendar quarter of 2012, it being understood that if the cash savings during the fourth calendar quarter of 2011 are less than $18 million, any excess will be added to the $7 million cap for the first calendar quarter of 2012. If the actual cash savings provided to the Company under the Modified Collective Bargaining Agreements between the effective date of the Union Settlement Agreements and Confirmation exceeds the amounts of the caps described above, any excess savings shall be treated as a stipulated, approved, and allowed administrative claim that is subordinated in priority and (to the extent relevant) payment timing to any other administrative expense claims allowed in the Chapter 11 Cases. In any event, any such administrative claim shall be waived, extinguished, and forever discharged upon Confirmation of a Plan which contemplates the continued operation of a chain of grocery stores, by either the Company or a buyer through a plan-related sale that is otherwise consistent with the Union Settlement Agreements.

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2. Professional Claims

a. Final Fee Applications

All final requests for payment of Professional Claims shall be filed and served no later than 60 days after the Confirmation Date. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts of such Professional Claims shall be determined by the Bankruptcy Court.

b. Professional Fee Escrow Account

In accordance with Article VI.E.2.c hereof, on the Confirmation Date, the Debtors shall establish and fund the Professional Fee Escrow Account with Cash equal to the aggregate Professional Fee Reserve Amount for all Professionals. The Professional Fee Escrow Account shall be maintained in trust for the Professionals. Except as provided in the last sentence of this paragraph, such funds shall not be considered property of the estates of the Debtors or Reorganized Debtors, as applicable. The amount of Professional Claims owing to the Professionals shall be paid in Cash to such Professionals by the Reorganized Debtors from the Professional Fee Escrow Account within 10 days after such Claims are Allowed by a Final Order. When all Allowed Professional Claims have been paid in full, amounts remaining in the Professional Fee Escrow Account, if any, shall revert to the Reorganized Debtors.

c. Professional Fee Reserve Amount

To receive payment for unbilled fees and expenses incurred through the Effective Date, the Professionals shall provide good faith estimates of their Professional Compensation prior to and as of the Effective Date and shall deliver such estimates to the Debtors no later than 10 days prior to the Confirmation Hearing, provided, however, that such estimate shall not be considered an admission with respect to the fees and expenses of such Professional. If a Professional does not provide an estimate, the Reorganized Debtors may estimate the unbilled fees and expenses of such Professional. The total amount so estimated as of the Effective Date shall comprise the Professional Fee Reserve Amount.

d. Post-Effective Date Fees and Expenses

Except as otherwise specifically provided in the Plan, from and after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, shall, without any further notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable legal, professional, or other fees and expenses related to implementation and Consummation incurred by the Debtors or Reorganized Debtors, as applicable. Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331 and 1103 of the Bankruptcy Code or the Interim Compensation Order in seeking retention or compensation for services rendered after such date shall terminate, and the Reorganized Debtors may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court.

3. DIP Facility Claims

Except to the extent that a holder of an Allowed DIP Facility Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed DIP Facility Claim, each such Allowed Claim shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, provided such payments shall be distributed to the DIP Facility Administrative Agent on behalf of holders of such Allowed Claims.

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4. Priority Tax Claims

With the reasonable consent of the Investors, each holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date shall receive one of the following treatments on account of such Claim (1) Cash, payable by the Debtors on the Effective Date, in an amount equal to the amount of such Allowed Priority Tax Claim, (2) Cash in an amount agreed to by the Debtor or Reorganized Debtor (on the Effective Date), as applicable, and such holder, provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim to occur at a later date, or (3) at the option of the Debtors (on the Effective Date) or the Reorganized Debtors (after the Effective Date), Cash in the aggregate amount of such Allowed Priority Tax Claim payable in installment payments over a period not more than five years after the Commencement Date pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors (on the Effective Date) or the Reorganized Debtors (after the Effective Date) and the holder of such Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.

F. Classification of Claims and Interests

The Plan constitutes a separate plan of reorganization for each Debtor, provided, however, that the classifications, recoveries and voting rights set forth below reflect the Substantive Consolidation Settlement described in Article IV.B above. Except for the Claims addressed in Article IV. E above, all Claims and Interests are classified in the Classes set forth below pursuant to section 1122 of the Bankruptcy Code. As set forth above, in accordance with section 1123(a)(1) of the Bankruptcy Code, the Debtors have not classified Administrative Claims, Professional Claims, DIP Facility Claims or Priority Tax Claims. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or Interest is also classified in a particular Class for the purpose of voting and receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date.

Below is a chart assigning each Class a letter for purposes of identifying each separate Class.

Class	Claim or Interest	Status	Voting Rights
A	Second Lien Note Claims	Impaired/ Unimpaired	Entitled to Vote/ Conclusively Presumed to Accept 42
B	Secured Tax Claims	Unimpaired	Conclusively Presumed to Accept
C	Other Secured Claims	Unimpaired	Conclusively Presumed to Accept
D	Other Priority Claims	Unimpaired	Conclusively Presumed to Accept
E	Convertible Notes Claims	Impaired	Entitled to Vote
F	9.125% Senior Note Claims	Impaired	Entitled to Vote

⁴²  Pursuant to Article III.C.1.d of the Plan, Class A is Impaired and holders of Allowed Class A Claims may vote to accept or reject the Plan; provided that the Debtors reserve the right to assert the treatment provided to holders of Second Lien Note Claims under Article III.C.1 of the Plan renders holders of Second Lien Note Claims Unimpaired.

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Class	Claim or Interest	Status	Voting Rights
G	Quarterly Interest Bond Claims	Impaired	Entitled to Vote
H	Trade Claims	Impaired	Entitled to Vote
I	Guaranteed Landlord Claims	Impaired	Entitled to Vote
J	Pension Withdrawal Claims	Impaired	Entitled to Vote
K	Union Claims	Impaired	Entitled to Vote
L M	General Unsecured Claims Intercompany Claims	Impaired Impaired/ Unimpaired	Entitled to Vote Deemed to Reject/ Conclusively Presumed to Accept43
N	Interests in A&P	Impaired	Deemed to Reject
O	Intercompany Interests	Impaired/ Unimpaired	Deemed to Reject/ Conclusively Presumed to Accept44
P	Subordinated Claims	Impaired	Deemed to Reject

G. Treatment of Classes of Claims and Interests

1. Class A — Second Lien Note Claims

a. Classification: Class A consists of all Second Lien Note Claims.

b. Allowance: Second Lien Note Claims shall be Allowed in the aggregate amount of $309,660,000.00; provided the Allowed aggregate Second Lien Note Claims shall (x) increase by $108,785.00 for each day that the Effective Date occurs after March 1, 2012 and (y) decrease by $108,785.00 for each day that the Effective Date occurs before March 1, 2012. For the avoidance of doubt, Second Lien Note Claims Allowed pursuant to this Article III.C.1b of the Plan excludes and shall not include any Applicable Premium (as defined in the Second Lien Indenture), makewhole premium, prepayment penalty, or similar Claim arising under or related to the Second Lien Indenture or the Second Lien Notes.

c. Treatment: Except to the extent that a holder of an Allowed Class A Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class A Claim, each such holder of an Allowed Class A Claim shall receive:

⁴³  Pursuant to Article III.C.12. of the Plan, Holders of Allowed Class N Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class N Interests are Reinstated, in which case the holders of Allowed Class N Interests are Unimpaired and are conclusively presumed to accept.

⁴⁴  Pursuant to Article III.C.14. of the Plan, Holders of Allowed Class N Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class N Interests are Reinstated, in which case the holders of Allowed Class N Interests are Unimpaired and are conclusively presumed to accept.

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(i) If Class A votes to accept the Plan or is presumed to have accepted the Plan: Cash distributed on the Effective Date in an amount equal to such Holder’s Pro Rata portion of the Second Lien Cash Pool.

(ii) If Class A votes to reject the Plan: At the holder’s election, (A) Cash distributed on the Effective Date in an amount equal to such holder’s Pro Rata portion of the Second Lien Cash Pool (without any reduction on account of the Allowed amount of any Second Lien Note Claims that are satisfied with Replacement Second Lien Notes), or (B) Replacement Second Lien Notes with a present value equal to the Allowed amount of such holder’s Second Lien Note Claim (which may include any makewhole claim, prepayment penalty, or Applicable Premium Allowed by the Bankruptcy Court, if any, in addition to Second Lien Note Claims Allowed pursuant to Article III.C.1.b of the Plan).⁴⁵

d. Voting: Class A is Impaired and holders of Allowed Class A Claims may vote to accept or reject the Plan; provided that the Debtors reserve the right to assert the treatment provided to holders of Second Lien Note Claims under Article III.C.1 of the Plan renders holders of Second Lien Note Claims Unimpaired.

e. Holders of Class A Claims must clearly indicate their election with respect to the treatment of their Second Lien Notes Claim in the event Class A votes to reject the Plan, as provided in the applicable Ballot. If a holder of Second Lien Notes Claims fails to make such an election or fails to timely return a duly completed Ballot, it will be deemed to have elected the cash distribution provided under Article III.C.1.c.ii.A of the Plan (which excludes any makewhole claim, prepayment penalty, or similar claim or charge) if Class A votes to reject the Plan. If Class A votes to accept the Plan, holders of Class A Claims will receive a cash distribution in an amount equal their pro rata portion of the Second Lien Cash Pool (which excludes any makewhole claim, prepayment penalty, or similar claim or charge) regardless of any such election.

2. Class B — Secured Tax Claims

a. Classification: Class B consists of all Secured Tax Claims.

⁴⁵  Under Article III.C.1.c.ii of the Plan, a holder of Second Lien Note Claims that duly elects option (A) will receive its Pro Rata share of the Second Lien Cash Pool (as determined by such holder’s Pro Rata share of the aggregate principal amount of all Second Lien Note Claims) without regard to any Second Lien Note Claims satisfied by Replacement Second Lien Notes if Class A votes to reject the Plan.

By way of illustration, under Article III.C.1.c.ii, a hypothetical holder of $26,000,000.00 in aggregate principal amount of Second Lien Note Claims (i.e., 10.0% of the aggregate principal amount of all Second Lien Note Claims) that duly elects option (A) will receive $30,966,000.00 on a March 1, 2012 Effective Date if Class A votes to reject the Plan (i.e., 10.0% of the Second Lien Notes Cash Pool)—regardless of whether other holders of Second Lien Note Claims elect to share in the Second Lien Cash Pool or to receive Replacement Second Lien Notes, and regardless of whether any Replacement Second Lien Notes issued by the Debtors incorporate the value of a makewhole premium, prepayment penalty, or similar charge allowed by the Bankruptcy Court, if any.

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b. Treatment: Except to the extent that a holder of an Allowed Class B Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class B Claim, each such holder of an Allowed Class B Claim shall receive, at the option of the Debtors or the Reorganized Debtors (with the reasonable consent of the Investors), as applicable:

(i) Cash on the Initial Distribution Date, or as soon as practicable thereafter, in an amount equal to such Allowed Class B Claim; or

(ii) commencing on the Initial Distribution Date, or as soon as practicable thereafter, and continuing over a period not exceeding five years from the Commencement Date, equal semi-annual Cash payments in an aggregate amount equal to such Allowed Class B Claim, together with interest at the applicable non-default contract rate under non-bankruptcy law, subject to the option of the Debtors or the Reorganized Debtors to prepay the entire amount of such Allowed Claim during such time period.

c. Voting: Class B is Unimpaired, and the holders of Allowed Class B Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class B Claims are not entitled to vote to accept or to reject the Plan.

3. Class C — Other Secured Claims

a. Classification: Class C consists of all Other Secured Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class C Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class C Claim, each such holder of an Allowed Class C Claim shall, at the option of the Debtors or the Reorganized Debtors, as applicable, and the Investors:

(i) have its Allowed Class C Claim Reinstated and rendered Unimpaired in accordance with section 1124(2) of the Bankruptcy Code, notwithstanding any contractual provision or applicable non-bankruptcy law that entitles the holder of an Allowed Class C Claim to demand or receive payment of such Allowed Class C Claim prior to the stated maturity of such Allowed Class C Claim from and after the occurrence of a default; or

(ii) receive Cash in an amount equal to such Allowed Class C Claim, including any interest on such Allowed Class C Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code, on the later of the Initial Distribution Date and the date such Allowed Class C Claim becomes an Allowed Class C Claim, or as soon as practicable thereafter; or

(iii) receive the collateral securing its Allowed Class C Claim.

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c. Voting: Class C is Unimpaired, and holders of Allowed Class C Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class C Claims are not entitled to vote to accept or reject the Plan.

4. Class D — Other Priority Claims

a. Classification: Class D consists of all Other Priority Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class D Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class D Claim, each such holder of an Allowed Class D Claim shall have its Allowed Class D Claim paid in full in Cash on the later of (i) the Initial Distribution Date, or as soon as practicable thereafter and (ii) the date such Class D Claim becomes Allowed, or as soon as practicable thereafter.

c. Voting: Class D is Unimpaired, and holders of Allowed Class D Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class D Claims are not entitled to vote to accept or reject the Plan.

5. Class E — Convertible Notes Claims

a. Classification: Class E consists of all Convertible Note Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class E Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class E Claim, each holder of an Allowed Class E Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class E is Impaired and holders of Allowed Class E Claims are entitled to vote to accept or reject the Plan.

6. Class F — 9.125% Senior Note Claims

a. Classification: Class F consists of all 9.125% Senior Note Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class F Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class F Claim, each holder of an Allowed Class F Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class F is Impaired and holders of Allowed Class F Claims are entitled to vote to accept or reject the Plan.

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7. Class G — Quarterly Interest Bond Claims

a. Classification: Class G consists of all Quarterly Interest Bond Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class G Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class G Claim, each holder of an Allowed Class G Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class G is Impaired and holders of Allowed Class G Claims are entitled to vote to accept or reject the Plan.

8. Class H — Trade Claims

a. Classification: Class H consists of all Trade Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class H Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class H Claim, each holder of an Allowed Class H Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool; and (b) if such holder enters into a trade agreement acceptable to the Debtors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors before the Effective Date, that provides for a distribution from the Trade Claims Cash Pool, a distribution from the Trade Claims Cash Pool.

c. Voting: Class H is Impaired and holders of Allowed Class H Claims are entitled to vote to accept or reject the Plan.

9. Class I — Guaranteed Landlord Claims

a. Classification: Class I consists of all Guaranteed Landlord Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class I Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class I Claim, each holder of an Allowed Class I Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool or (b) if such holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s aggregate recovery for its Allowed Class I Claim is equal to the product of (x) what such holder would receive under clause (a) above for such Allowed Class I Claim (as adjusted for Pro Rata calculations) and (y) 1.46.

c. Voting: Class I is Impaired and holders of Allowed Class I Claims are entitled to vote to accept or reject the Plan.

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10. Class J — Pension Withdrawal Claims

a. Classification: Class J consists of all Pension Withdrawal Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class J Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class J Claim, each holder of an Allowed Class J Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter: (a) Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool or (b) if such holder votes in favor of the Plan, a Cash distribution from the Unsecured Creditor Cash Pool such that the applicable holder’s aggregate recovery for its Allowed Class J Claim is equal to the product of (x) what such holder would receive under clause (a) above for its Allowed Class J Claim (as adjusted for Pro Rata calculations) and (y) 2.35.

c. Voting: Class J is Impaired and holders of Allowed Class J Claims are entitled to vote to accept or reject the Plan.

11. Class K — Union Claims

a. Classification: Class K consists of all Union Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class K Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class K Claim, each holder of an Allowed Class K Claim shall receive the consideration set forth in the Union Settlement Agreement.

c. Voting: Class K is Impaired and holders of Allowed Class K Claims are entitled to vote to accept or reject the Plan.

12. Class L — General Unsecured Claims

a. Classification: Class L consists of all General Unsecured Claims.

b. Treatment: Except to the extent that a holder of an Allowed Class L Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class L Claim, each holder of an Allowed Class L Claim shall receive on the Initial Distribution Date, or as soon as practicable thereafter, Cash equal to its Pro Rata portion of the Unsecured Creditor Cash Pool.

c. Voting: Class L is Impaired and holders of Allowed Class L Claims are entitled to vote to accept or reject the Plan.

13. Class M — Intercompany Claims

a. Classification: Class M consists of all Intercompany Claims.

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b. Treatment: Subject to the provisions of Article IV.T. of the Plan (“Restructuring Transactions”), holders of Allowed Class M Intercompany Claims shall not receive any distributions on account of such Allowed Class M Intercompany Claims; provided, however, the Debtors and Reorganized Debtors reserve the right to Reinstate any or all Allowed Class M Intercompany Claims on or after the Effective Date in accordance with section 1124 of the Bankruptcy Code and such Reinstated Intercompany Claims, including Intercompany Claims against non-Debtor affiliates, shall vest in the applicable Reorganized Debtor or its successor on the Effective Date free and clear of all Claims, Liens, charges, other encumbrances and interests.

c. Voting: Class M is Impaired, and holders of Allowed Class M Intercompany Claims are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Allowed Class M Intercompany Claims are Reinstated, in which case the holders of Allowed Class M Intercompany Claims are Unimpaired and are conclusively presumed to accept the Plan.

14. Class N — Intercompany Interests

a. Classification: Class N consists of all Intercompany Interests.

b. Treatment: Subject to the provisions of Article IV.T. of the Plan (“Restructuring Transactions”), holders of Allowed Class N Intercompany Interests shall not receive any distributions on account of such Allowed Class N Intercompany Interests; provided, however, the Debtors and the Reorganized Debtors reserve the right to Reinstate any or all Allowed Class N Intercompany Interests on or after the Effective Date in accordance with section 1124 of the Bankruptcy Code and such Reinstated Intercompany Interests, including Intercompany Interests in non-Debtor affiliates, shall vest in the applicable Reorganized Debtor or its successor on the Effective Date free and clear of all Claims, Liens, charges, other encumbrances and interests.

c. Voting: Class N is Impaired, and holders of Allowed Class N Intercompany Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code, unless Class N Intercompany Interests are Reinstated, in which case the holders of Allowed Class N Intercompany Interests are Unimpaired and are conclusively presumed to accept the Plan.

15. Class O — Interests in A&P

a. Classification: Class O consists of all Interests in A&P.

b. Treatment: Holders of Allowed Class O Interests shall not receive any distributions on account of such Allowed Class O Interests. On the Effective Date, all Class O Interests shall be canceled and extinguished.

c. Voting: Class O is Impaired, and holders of Allowed Class O Interests are deemed to have rejected the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class O Interests are not entitled to vote to accept or reject the Plan.

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16. Class P — Subordinated Claims

a. Classification: Class P consists of all Subordinated Claims.

b. Treatment: Holders of Allowed Class P Claims shall not receive any distributions on account of such Allowed Class P Claims. On the Effective Date, all Class P Claims shall be discharged.

c. Voting: Class P is Impaired and holders of Allowed Class P Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, holders of Allowed Class P Claims are not entitled to vote to accept or reject the Plan.

H. Special Provisions Governing Vote Tabulation

Except as otherwise provided herein, in the motion to approve the Disclosure Statement and its related exhibits: (i) if no holders of Claims eligible to vote in a particular Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the holders of such Claims in such Class; and (ii) any Class of Claims that does not have a holder of an Allowed Claim or Interest or a Claim temporarily allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.

I. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized Debtors’ rights in respect of any Unimpaired Claim, including all rights in respect of legal and equitable defenses to or setoffs or recoupments against the holder of any such Unimpaired Claim.

J. Provisions for Implementation of the Plan

1. Use of Proceeds from New Money Commitment and Exit Facility

Unless otherwise provided in the Plan or the Securities Purchase Agreements, the Debtors and Reorganized Debtors, as applicable, shall use the proceeds received from the New Money Commitment, together with proceeds from the Exit Facility and other funds held by the Debtors on the Effective Date, (i) to make cash distributions required by the Plan, (ii) to pay Transaction Expenses not previously paid, (iii) to pay other expenses of the Chapter 11 Cases, to the extent so ordered by the Bankruptcy Court, and (iv) for general corporate purposes.

The Debtors and their advisors have commenced a comprehensive process for obtaining an Exit Facility. As part of these efforts, the Debtors reached out to approximately a dozen banks, of which nine banks submitted proposals. The proposals contemplate a $400 million revolver and a $350 million term loan at market rates. The Debtors will likely select two to three banks to be underwriters or arrangers for the Exit Facility and anticipate having a fully underwritten Exit Facility by the Confirmation Hearing.

2. General Settlement of Claims and Interests

Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, on the Effective Date, the provisions of the Plan shall constitute a good-faith compromise and settlement of all Claims and Interests and controversies resolved pursuant to the Plan.

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3. NewCo Equity

The issuance of the NewCo Equity by Reorganized A&P to the Investors on the Effective Date in consideration for the New Equity Investment is authorized without the need for any further corporate action or without any further action by the Debtors or Reorganized A&P, as applicable. Pursuant to the Plan, the issuance and distribution by Reorganized A&P on or after the Effective Date of shares of NewCo Equity to the Investors in consideration for the New Equity Investment (to the extent practicable, directly, or else through a Distribution Agent) to satisfy the Debtors’ obligations under the Securities Purchase Agreements, subject to dilution by the Management Equity Incentive Program and/or other agreement or as otherwise provided by the Securities Purchase Agreements, is authorized. All of the shares of NewCo Equity issued pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable. On the Effective Date, each of Reorganized A&P and the other Reorganized Debtors shall be a private company. As such, the Reorganized Debtors will not list the NewCo Equity on a national securities exchange as of the Effective Date.

4. Registration Exemptions

The offering, issuance, and distribution of any Securities pursuant to the Plan and any and all settlement agreements incorporated therein are expected to be exempt from applicable federal and state securities laws (including blue sky laws), registration and other requirements, including but not limited to, the registration and prospectus delivery requirements of section 5 of the Securities Act, pursuant to section 4(2) of the Securities Act, or another available exemption from registration under the Securities Act, as applicable. In addition, under section 1145 of the Bankruptcy Code, if applicable, any Securities issued pursuant to the Plan or any and all settlement agreements incorporated therein will be transferable under the Securities Act by the recipients thereof, subject to (1) the restrictions, if any, on the transferability of such Securities and instruments, including restrictions contained in the Reorganized A&P Charter and the Securities Purchase Agreements and (2) any other applicable regulatory and legal requirements.

5. Vesting of Assets in the Reorganized Debtors

Except as specifically or expressly provided in the Plan or any agreement, instrument, or other document incorporated in the Plan, on the Effective Date, all property of the Debtors’ Estates, all of the Debtors’ Causes of Action, and any property acquired by any of the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances (except for Liens, if any, that may be specifically granted to secure the Exit Facility, the New Second Lien Notes and the New Convertible Third Lien Notes, and if applicable, the Replacement Second Lien Notes and the Other Secured Claims). On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

6. Cancellation of Notes, Instruments, Certificates and Other Documents

On the Effective Date, except as otherwise specifically provided for in the Plan or the Securities Purchase Agreements (and except for such Certificates, notes, or other instruments or documents evidencing indebtedness or obligations of the Debtors that are specifically Reinstated pursuant to the

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Plan): (1) the obligations of the Debtors under the DIP Facility, the 1991 Indenture, the 2007 Indenture, the Second Lien Indenture, the Convertible Notes, the 9.125% Senior Notes, the Quarterly Interest Bonds and the Second Lien Notes and any other Certificate, share, note, bond, indenture, purchase right, or other instrument or document directly or indirectly evidencing or creating any indebtedness or obligation of or ownership interest, equity or profits interest in the Debtors or any warrants, options or other securities exercisable or exchangeable for, or convertible into, debt, equity, ownership or profits interests in the Debtors giving rise to any Claim or Interest, and any options, or other securities exercisable or exchangeable for, or convertible into Interests or equity of the Debtors, shall be cancelled as to the Debtors; (2) the obligations of the Debtors under the DIP Facility, the 1991 Indenture, the 2007 Indenture, the Second Lien Indenture, the Convertible Notes, the 9.125% Senior Notes, the Quarterly Interest Bonds and the Second Lien Notes shall be fully released, settled, and compromised as to the Debtors and the non-Debtor Affiliates, and the Reorganized Debtors shall not have any continuing obligations thereunder except as otherwise provided in the Plan; and (3) the obligations of the Debtors, the Reorganized Debtors and the non-Debtor Affiliates, pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation or similar documents governing any shares, Certificates, notes, bonds, indentures, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of the Debtors shall be fully released, settled, and compromised; provided, however, that notwithstanding Consummation or the occurrence of the Effective Date, any indenture or agreement that governs the rights of the holder of a Claim or Interest shall continue in effect solely for purposes of (1) allowing holders to receive distributions under the Plan, (2) allowing and preserving the rights of the DIP Facility Administrative Agent, Second Lien Trustee, and Wilmington Trust, as provided in Article VI.M herein.

7. Reinstatement of Intercompany Claims and Interests

In the event that the Debtors elect to Reinstate Intercompany Claims or Intercompany Interests pursuant to Article III.C.13 or Article III.C.15 of the Plan, respectively, each Reorganized Debtor shall, without the need for any further corporate act or other action under any applicable law, regulation, order or rule, issue authorized new Equity Securities to the Reorganized Debtor that was that Debtor’s or non-Debtor Affiliate’s corporate parent prior to the Effective Date so that each Reorganized Debtor will retain its 100% ownership of its pre-Commencement Date subsidiaries. The foregoing may be modified by the Debtors and the Investors at any time.

8. Issuance of New Securities; Execution of Plan Documents

Except as otherwise provided in the Plan or the Securities Purchase Agreements, the Reorganized Debtors shall issue on the Effective Date all Securities, notes, instruments, Certificates, and other documents required to be issued pursuant to the Plan and the Securities Purchase Agreements (as approved by the Securities Purchase Agreements Order).

9. Post-Confirmation Property Sales

To the extent the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, purchase or sell any property after the Confirmation Date and prior to the Effective Date, the Debtors or Reorganized Debtors, as applicable, may elect to purchase or sell such property pursuant to sections 363, 1123(a)(5)(D), 1141(c), and 1146(a) of the Bankruptcy Code.

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10. Corporate Action

Each of the matters provided for by the Plan involving the corporate structure of the Debtors or corporate or related actions to be taken by or required of the Debtors or the Reorganized Debtors, whether taken prior to or as of the Effective Date, shall be deemed authorized, approved and ratified without the need for any further corporate action or without any further action by the Debtors or the Reorganized Debtors, holders of Claims or Interests, directors, managers or officers of the Debtors, the Reorganized Debtors, or the Investors, or any other Entity or Person, as applicable. Such actions include (1) the adoption and filing of the Reorganized A&P Charter and the adoption of the Reorganized A&P Bylaws, (2) the appointment of the New Board, (3) the adoption and implementation of the Management Equity Incentive Program, (4) the adoption of severance agreements (as applicable) without action by the New Board as, and to the extent, provided in section 1.11 of the Securities Purchase Agreements, (5) entering into the Management Services Agreement, (6) the authorization, issuance and distribution pursuant to the Plan and the Securities Purchase Agreements of the New Second Lien Notes, the New Convertible Third Lien Notes, the NewCo Equity, the Investment Warrants and any other Securities to be authorized, issued and distributed pursuant to the Plan and Securities Purchase Agreements, and (7) the consummation and implementation of the Exit Financing.

11. Certificate of Incorporation and Bylaws

The certificates of incorporation and bylaws (or other formation documents relating to limited liability companies, limited partnerships, or other forms of Entity) of the Debtors (other than A&P) shall be amended in a form as may be required to be consistent with the provisions of the Plan, the Securities Purchase Agreements and the Bankruptcy Code, and shall be in form and substance acceptable to the Investors. The certificate of incorporation and bylaws of A&P shall be as contained in the Plan Supplement and as acceptable to the Investors. The Reorganized A&P Charter will, among other things, (1) authorize the issuance of the shares of NewCo Equity; and (2) pursuant to and only to the extent required by section 1123(a)(6) of the Bankruptcy Code, include a provision prohibiting the issuance of non-voting Equity Securities.

After the Effective Date, each Reorganized Debtor may amend and restate its certificate of incorporation and other constituent documents as permitted by the laws of its respective state, province, or country of formation and its respective charters and bylaws.

12. Effectuating Documents, Further Transactions

On and after the Effective Date, the Reorganized Debtors, and the officers and members of the boards of directors thereof, are authorized to and may issue, execute, deliver, file, or record such contracts, Securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan and the Securities Purchase Agreements and the Securities issued pursuant thereto in the name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorizations, or consents except for those expressly required pursuant to the Plan or the Securities Purchase Agreements.

13. Section 1146(a) Exemption

Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property pursuant to the Plan shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, stamp act, real estate transfer tax, mortgage recording tax, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment

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and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment. Such exemption specifically applies, without limitation, to (1) the Restructuring Transactions; (2) the creation of any mortgage, deed of trust, Lien or other security interest; (3) the making or assignment of any lease or sublease; (4) the issuance and/or distribution of NewCo Equity, any Replacement Second Lien Notes, the New Second Lien Notes, the New Convertible Third Lien Notes, the Investment Warrants and any other securities of the Debtors or the Reorganized Debtors; or (5) the making or delivery of any deed or other instrument of transfer under, in furtherance of or in connection with the Plan or the Securities Purchase Agreements, including: (a) any merger agreements; (b) agreements of consolidation, restructuring, disposition, liquidation, or dissolution; (c) deeds; (d) bills of sale; or (e) assignment executed in connection with any Restructuring Transaction occurring pursuant to the Plan or the Securities Purchase Agreements.

14. Directors and Officers of Reorganized A&P

On the Effective Date, the term of the current members of the board of directors of A&P shall expire, and the New Board shall be appointed pursuant to the Securities Purchase Agreements. On and after the Effective Date, each director or officer of Reorganized A&P shall serve pursuant to the terms of the Reorganized A&P Charter, the Reorganized A&P Bylaws, or other constituent documents, the Management Services Agreement, as applicable, and applicable state corporation law. Pursuant to the terms of the Securities Purchase Agreements and the Union Settlement Agreements, the New Board shall be reconstituted to consist of seven (7) directors (or such larger number of directors as may be determined by the Investors in their discretion), of whom at least five (5) directors shall be persons designated by the Investors, one (1) person shall be a person designated by the UFCW (who (x) shall be an independent director and a grocery industry expert, and (y) shall not serve on behalf of, or take directions from, the UFCW), and one (1) person shall be the Chief Executive Officer of the Reorganized Debtors. The Reorganized A&P Bylaws and the Reorganized A&P Charter shall provide that the New Board will be divided into three classes serving staggered three-year terms. Pursuant to the Securities Purchase Agreements, on or before the Confirmation Hearing, the Investors may provide for employment offers for the Executive Management Team (as defined in the Securities Purchase Agreements).

15. Directors and Officers of Reorganized Debtors Other Than Reorganized A&P

Unless otherwise provided in the Debtors’ disclosure pursuant to section 1129(a)(5) of the Bankruptcy Code, the officers of each of the Reorganized Debtors, other than Reorganized A&P, shall continue to serve in their current capacities after the Effective Date. The classification and composition of the boards of directors of the Reorganized Debtors other than Reorganized A&P shall be consistent with their respective new certificates of incorporation and bylaws, if any. Each such director or officer shall serve from and after the Effective Date pursuant to the terms of the applicable certificate of incorporation, bylaws, other constituent documents, and applicable state corporation law.

16. Compensation, Pensions, and Benefits Programs

a. Management Equity Incentive Program. The Management Equity Incentive Program for Reorganized A&P, in accordance with the terms and conditions set forth in the “Management Equity Incentive Program” to be attached as an exhibit to the Plan Supplement, shall become effective on the Effective Date without need for further corporate action as contemplated by the Securities Purchase Agreements.

b. Employee and Retiree Benefits. Except with respect to any equity based awards, rejected employment agreements and any other rejected benefit or compensation plans, and subject to the terms and conditions of the Securities Purchase Agreements and the Union Settlement Agreements, on and after

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the Effective Date, the Reorganized Debtors may (1) honor, in the ordinary course of business, any contracts, agreements, policies, programs, and plans for compensation, including bonus compensation, health care benefits, disability benefits, travel benefits, savings, severance benefits, retirement benefits, welfare benefits, workers’ compensation insurance, and accidental death and dismemberment insurance for the directors, officers, and employees of any of the Debtors who served in such capacity at any time; and (2) honor, in the ordinary course of business, Claims of employees employed as of the Effective Date for accrued vacation time arising prior to the Commencement Date; provided, however, that the Debtors’ or Reorganized Debtors’ performance pursuant to any employment agreement that is not a rejected employment agreement will not entitle any Person to any benefit or alleged entitlement under any policy, program or plan that has expired or been terminated before the Effective Date, or restore, Reinstate, or revive any such benefit or alleged entitlement under any such policy, program, or plan; provided, further that any such assumed plans and obligation shall be subject to modification in accordance with their terms. Nothing in the Plan shall limit, diminish, or otherwise alter the Reorganized Debtors’ defenses, claims, Causes of Action, or other rights with respect to any such contracts, agreements, policies, programs, and plans, nor shall Confirmation of the Plan and/or Consummation of the Restructuring Transactions constitute a change of control under any such contracts, agreements, policies, programs, and plans.

c. Pensions. As of the Effective Date, the Reorganized Debtors shall continue the A&P Pension Plans in accordance with, and subject to, their terms, ERISA, and the Internal Revenue Code, and shall preserve all of their rights thereunder. The A&P Pension Claims and all Proofs of Claims filed on account thereof shall be deemed withdrawn as of the Effective Date without any further action of the Debtors, Reorganized Debtors, or the PBGC, and without any further action, order, or approval of the Bankruptcy Court.

d. Workers’ Compensation Programs. As of the Effective Date, except as set forth in the Securities Purchase Agreements and Plan Supplement, the Debtors and the Reorganized Debtors shall continue to honor their obligations under: (i) all applicable workers’ compensation laws in states in which the Reorganized Debtors operate; and (ii) the Debtors’ (a) written contracts, agreements, and agreements of indemnity, in each case relating to workers’ compensation, (b) self insurer workers’ compensation bonds, policies, programs, and plans for workers’ compensation, and (c) workers’ compensation insurance. All Proofs of Claims on account of workers’ compensation shall be deemed withdrawn automatically and without any further notice to or action, order, or approval of the Bankruptcy Court; provided, however, that nothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or Reorganized Debtors’ defenses, Causes of Action, or other rights under applicable non-bankruptcy law with respect to any such contracts, agreements, policies, programs and plans; provided, further, that nothing herein shall be deemed to impose any obligations on the Debtors in addition to what is provided for under applicable state law.

17. Intercompany Account Settlement

The Debtors and the Reorganized Debtors, and their respective Affiliates, will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable the Reorganized Debtors to satisfy their obligations under the Plan. Except as set forth herein, any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’ historical intercompany account settlement practices and will not violate the terms of the Plan.

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18. Preservation of Rights of Action

Subject to the releases set forth in Article VI.N.4 and Article VI.N.5 below, unless any of the Debtors’ Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Final Order, in accordance with section 1123(b) of the Bankruptcy Code, the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all of the Debtors’ Causes of Action, whether arising before or after the Commencement Date, including any actions specifically enumerated in the Plan Supplement, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date. The Reorganized Debtors may pursue such Causes of Action, as appropriate, in accordance with the best interests of the Reorganized Debtors. No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any of the Causes of Action against it as any indication that the Debtors or the Reorganized Debtors will not pursue any and all of their available Causes of Action against it. The Debtors and the Reorganized Debtors expressly reserve all rights to prosecute any and all of their Causes of Action against any Entity, except as otherwise expressly provided in the Plan or a Final Order. Unless any of the Debtors’ Causes of Action against an Entity are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Bankruptcy Court order, the Reorganized Debtors expressly reserve all such Causes of Action, for later adjudication, and, therefore no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.

Further, subject to the releases set forth in Article VI.N.4 and Article VI.N.5 below, the Reorganized Debtors reserve and shall retain the foregoing Debtors’ Causes of Action notwithstanding the rejection or repudiation of any Executory Contract during the Chapter 11 Cases or pursuant to the Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any Causes of Action that a Debtor may hold against any Entity shall vest in the Reorganized Debtors, as the case may be. The applicable Reorganized Debtor, through its authorized agents or representatives, shall retain and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw or litigate to judgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order or approval of the Bankruptcy Court.

19. Avoidance Actions

The Debtors and the Reorganized Debtors waive all Avoidance Actions, provided, however, that any Avoidance Actions against an Entity that has filed a Claim against the Debtors is expressly preserved solely for the purposes of resolving Disputed Claims pursuant to Article VI.L.6. The Debtors, in consultation with the Creditors’ Committee and the Investors, determined in an exercise of their business judgment that the waiver of Avoidance Actions pursuant to this Article VI.J.19 is in the best interests of the Debtors’ estates and the Debtors’ business going forward.

20. Restructuring Transactions

On or prior to the Effective Date, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors may enter into such transactions, execute and deliver such agreements, instruments and other documents, and take any actions as may be necessary or appropriate to effect a corporate restructuring of their respective businesses or a corporate restructuring of the overall corporate structure of the Reorganized Debtors, as and to the extent provided

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therein, with the consent of the Investors. The Restructuring Transactions may include one or more inter-company mergers, consolidations, amalgamations, arrangements, continuances, restructurings, conversions, dissolutions, transfers, asset sales, liquidations, or other corporate transactions as may be determined by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors, as applicable, and the Investors, to be necessary or appropriate to implement the transactions provided for in the Securities Purchase Agreements. None of the Restructuring Transactions contemplated herein or in the Securities Purchase Agreements shall constitute a change of control under any agreement, contract or document of the Debtors or Reorganized Debtors, as applicable. Subject to the Securities Purchase Agreements, the actions to effect the Restructuring Transactions may include: (1) the execution and delivery of appropriate agreements or other documents of merger, amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement, continuance, dissolution, sale, purchase, or liquidation containing terms that are consistent with the terms of the Plan and the Securities Purchase Agreements and that satisfy the requirements of applicable law and any other terms to which the relevant entities may agree; (2) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan and the Securities Purchase Agreements and having other terms for which the applicable parties agree; (3) the filing of appropriate certificates or articles of incorporation, reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state or provincial law; (4) pledging, granting of liens or security interests over, assuming or guarantying obligations or taking such similar actions as may be necessary to preserve the rights and collateral interests of the secured creditors of the Debtors and their subsidiaries at all times prior to the effectiveness and consummation of the Plan; (5) the creation of a new holding company, as provided in the Securities Purchase Agreements, or other changes to the organizational structure of the Debtors or the Reorganized Debtors, as applicable, as determined by the Debtors or the Reorganized Debtors, as applicable, and the Investors; and (6) all other actions that the applicable entities determine to be necessary or appropriate, including making filings or recordings that may be required by applicable law in connection with the Restructuring Transactions or that are otherwise provided for in the Securities Purchase Agreements.

21. Corporate Existence

Except as otherwise provided in the Plan, each Debtor shall continue to exist after the Effective Date as a separate corporate Entity, limited liability company, partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation documents) are amended pursuant to the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be amended pursuant to the Plan and without any further notice to or action, order, or approval of the Bankruptcy Court or any other court of competent jurisdiction (other than any requisite filings required under applicable state, provincial, or federal law), provided, however, that the Investors may elect to have a new holding company formed pursuant to the Securities Purchase Agreements.

22. Tax Reporting Matters

All parties (including the Reorganized Debtors and holders of Claims and Interests) shall report for all federal income tax purposes in a manner consistent with the Plan.

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23. Management Services Agreement

On the Effective Date, and pursuant to the terms of the Securities Purchase Agreements, Reorganized A&P or one of its Affiliates (as agreed among Yucaipa, Liberty Harbor, Mount Kellett and the Debtors or Reorganized Debtors, as applicable) shall enter into the Management Services Agreement with The Yucaipa Companies, LLC, and such Management Services Agreement shall be on terms and conditions acceptable to Yucaipa, Liberty Harbor and Mount Kellett.

24. Adequate Assurance Deposits

Notwithstanding anything to the contrary in the Plan or in an order previously entered by the Bankruptcy Court, unless the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, with the reasonable consent of the Investors, otherwise agree, all adequate assurance deposits provided by the Debtors to utility providers pursuant to the Order Determining Adequate Assurance of Payment for Future Utility Services [Docket No. 503] shall be returned to the Reorganized Debtors within 10 business days of the Effective Date.

K. Treatment of Executory Contracts and Unexpired Leases

1. Rejection of Executory Contracts and Unexpired Leases

Except as otherwise provided herein and pursuant to the terms and conditions of the Securities Purchase Agreements, each Executory Contract and Unexpired Lease not previously assumed shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless any such Executory Contract or Unexpired Lease: (1) is listed on the schedule of “Assumed Executory Contracts and Unexpired Leases” in the Plan Supplement; (2) has been previously assumed by the Debtors by Final Order or has been assumed by the Debtors by order of the Bankruptcy Court as of the Effective Date (including retroactively), which order becomes a Final Order after the Effective Date; (3) is the subject of a motion to assume or reject pending as of the Effective Date; (4) is an Intercompany Contract, unless such Intercompany Contract previously was rejected by the Debtors pursuant to a Final Order, is the subject of a motion to reject pending on the Effective Date, or is listed on the schedule of “Rejected Executory Contracts and Unexpired Leases” in the Plan Supplement; or (5) is otherwise assumed pursuant to the terms herein.

The Confirmation Order will constitute an order of the Bankruptcy Court approving such rejections pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date. Counterparties to Executory Contracts or Unexpired Leases that are deemed rejected as of the Effective Date shall have the right to assert any Claim on account of the rejection of such Executory Contracts or Unexpired Leases, including under section 502(g) of the Bankruptcy Code, subject to compliance with the requirements herein. All Executory Contracts and Unexpired Leases rejected by the Debtors on or prior to the Confirmation Date will not be continuing obligations of the Debtors or Reorganized Debtors.

Further, the Plan Supplement will contain a schedule of “Rejected Executory Contracts and Unexpired Leases,” as may be amended from time to time with the consent, as provided in the Securities Purchase Agreements, of the Investors; provided, however, that any Executory Contract and Unexpired Lease not previously assumed, assumed and assigned, or rejected by an order of the Bankruptcy Court, and not listed in the schedule of “Rejected Executory Contracts and Unexpired Leases” will be rejected on the Effective Date, notwithstanding its exclusion from such schedule.

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2. Assumption of Executory Contracts and Unexpired Leases

On the Effective Date, except as otherwise provided herein and pursuant to the terms and conditions of the Securities Purchase Agreements, in addition to those Executory Contracts and Unexpired Leases previously assumed by the Debtors pursuant to a Final Order (and not otherwise subsequently rejected prior to the Effective Date), the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) shall assume all of the Executory Contracts and Unexpired Leases listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” as may be amended from time to time, in the Plan Supplement and otherwise identified for assumption pursuant to Article V.A of the Plan. With respect to each such Executory Contract and Unexpired Lease listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors shall have designated a proposed Cure. The Confirmation Order shall constitute an order of the Bankruptcy Court approving any such assumptions pursuant to sections 365(a) and 1123 of the Bankruptcy Code; however, parties shall not be precluded from filing objections to the Debtors’ proposed Cure by the Cure Objection Deadline.

a. Modifications, Amendments, Supplements, Restatements, or Other Agreements

Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed by the Debtors or the Reorganized Debtors shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated hereunder; provided, however, that any anti-assignment provision in any assumed Executory Contract and/or Unexpired Lease shall be deemed invalid for the purposes of assumption and/or assignment pursuant to section 365 of the Bankruptcy Code in these Chapter 11 Cases, including assignment of any assumed Executory Contract and/or Unexpired Lease to any affiliate of the Debtors on or prior to the Effective Date. Confirmation of the Plan and Consummation of the Restructuring Transactions shall not constitute a change of control under any Unexpired Lease or Executory Contract assumed by the Debtors on or prior to the Effective Date. Any assignment by the Reorganized Debtors of an Executory Contract or Unexpired Lease after the Effective Date shall be governed by the terms of the Executory Contract or Unexpired Lease and applicable non-bankruptcy law.

Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

b. Proofs of Claim Based on Executory Contracts or Unexpired Leases that Have Been Assumed

Any and all Proofs of Claim based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including hereunder, except Proofs of Claim asserting Cures, pursuant to the order approving such assumption, including the Confirmation Order, shall be deemed disallowed as of the Effective Date without the need for any objection thereto or any further notice to or action, order, or approval of the Bankruptcy Court.

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c. Assumption of Modified Collective Bargaining Agreements

Unless previously assumed by the Debtors, on the Effective Date, the Debtors, pursuant to section 365 of the Bankruptcy Code, shall assume (a) the Modified Collective Bargaining Agreements as provided in the Union Settlement Agreements and as approved by the Bankruptcy Court and (b) the Other Collective Bargaining Agreements. Notwithstanding any other provision of this Plan, the cure obligations, if any, related to the assumption of each of the Modified Collective Bargaining Agreements and the Other Collective Bargaining Agreements, shall be satisfied by the Reorganized Debtors by payment, in the ordinary course, of all obligations arising under the Modified Collective Bargaining Agreements and any of the Other Collective Bargaining Agreements, including grievance settlements and arbitration awards subject to the Union Settlement Agreements and related documents and side letters. All Proofs of Claim filed by the UFCW, the UFCW Local Unions, the SEIU and the SEIU Local Union for amounts due under any collective bargaining agreement shall be considered satisfied by the agreement and obligation to assume and cure in the ordinary course as provided herein.

3. Indemnification Obligations

Notwithstanding anything herein to the contrary, the Reorganized Debtors shall assume and be deemed to have assumed the Indemnification Obligations as of and on the Effective Date other than any Indemnification Obligation that was previously rejected by the Debtors pursuant to an order of the Bankruptcy Court or is the subject of a motion to reject filed by the Debtors that was pending as of the Effective Date; provided, that the Reorganized Debtors shall assume and be deemed to have assumed Indemnification Obligations for a former director or officer that was not employed by, engaged by, or serving in such capacity for the Debtors at any time following November 1, 2010 only if the Debtor Release provided under Article VIII.D in the Plan is approved by the Bankruptcy Court with respect to such former director or officer; provided, further that Indemnification Obligations assumed or deemed assumed by the Reorganized Debtors pursuant to Article V.C of the Plan shall not be limited to obligations arising from or related to claims settled or released pursuant to the Debtor Release. Each Indemnification Obligation that is assumed or deemed assumed pursuant to this Article VI.K.3 shall remain in full force and effect, shall not be modified, reduced, discharged, impaired, or otherwise affected in any way (whether by the Plan, a Restructuring Transaction, or otherwise), and shall be Unimpaired and unaffected, irrespective of when such obligation arose.

4. Insurance Policies

Each insurance policy shall be assumed by the applicable Debtor effective as of the Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code, to the extent such insurance policy is executory, unless such insurance policy previously was rejected by the Debtors pursuant to a Bankruptcy Court order, is the subject of a motion to reject pending on the Effective Date, or is included in the schedule of “Rejected Executory Contracts and Unexpired Leases” contained in the Plan Supplement. Notwithstanding anything to the contrary in the Plan or the Plan Supplement (including any other provision that purports to be preemptory or supervening), nothing in the Plan or the Plan Supplement shall in any way operate to, or have the effect of, impairing the legal, equitable or contractual rights of the Debtors’ insurers, if any, in any respect or the rights of the Debtors or any other party against the Debtors’ insurers or in respect of any insurance of the Debtors. The rights of the Debtors and the Debtors’ insurers vis-à-vis one another shall be determined under their respective insurance policies and any related agreements with the Debtors, if any, subject to the rights of the Debtors to assume any such policy or agreement in accordance with this provision.

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5. Objections to Assumption of Executory Contracts and Unexpired Leases Including Cure of Defaults

With respect to each of the Executory Contracts or Unexpired Leases listed on the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors (in consultation with Creditors’ Committee and the DIP Facility Administrative Agent) shall designate a proposed Cure, however, the assumption of such Executory Contracts or Unexpired Leases shall not be conditioned upon the disposition of all issues with respect to Cure.⁴⁶ Such Cure shall be satisfied by the Debtors or their assignee, if any, by payment of the Cure in Cash on the Effective Date or as soon as reasonably practicable thereafter, or on such other terms as may be ordered by the Bankruptcy Court or agreed upon by the parties to the applicable Executory Contract or Unexpired Lease without any further notice to or action, order, or approval of the Bankruptcy Court. Any provisions or terms of the Executory Contracts or Unexpired Leases to be assumed pursuant to the Plan that are, or may be, alleged to be in default, shall be satisfied solely by Cure, or by an agreed-upon waiver of Cure. Nothing herein or in the Confirmation Order shall impact any unresolved Cure disputes or pending Cure objections filed by parties to Executory Contracts and Unexpired Leases that have been previously assumed by the Debtors pursuant to section 365 of the Bankruptcy Code.

Ten days prior to the objection deadline for the Confirmation Hearing, and subsequently as needed pursuant to the amendment of the schedule of “Assumed Executory Contracts and Unexpired Leases,” the Debtors shall file with the Bankruptcy Court and serve upon counterparties to such Executory Contracts and Unexpired Leases a notice of the proposed assumption that will (1) list the applicable Cure, if any, (2) describe the procedures for filing objections to the proposed assumption or Cure, and (3) explain the process by which related disputes will be resolved by the Bankruptcy Court.

Except with respect to Executory Contracts and Unexpired Leases in which the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the applicable counterparties have stipulated in writing to payment of Cure, all requests for payment of Cure that differ from the amounts proposed by the Debtors (i.e., Cure objections) must be filed with the Claims and Solicitation Agent on or before the Cure Objection Deadline. In addition, any non-Cure objection to the assumption of an Executory Contract or Unexpired Lease, to be deemed timely, must be filed with the Bankruptcy Court within fourteen days of receipt of the applicable notice of proposed assumption. To the extent counterparties file timely non-Cure objections to the assumption of any Executory Contracts or Unexpired Leases to be assumed pursuant to the Plan, and such disputes are not consensually resolved by the parties, such assumption shall be subject to entry of a Final Order approving such assumption, provided, that, such assumption will occur retroactively, at the discretion of the Debtors or Reorganized Debtors, to the Effective Date if approved by the Bankruptcy Court. Timely raised Cure and non-Cure objections to assumption may be litigated after the Effective Date.

Any request for payment of Cure that is not timely filed shall be disallowed automatically and forever barred, estopped, and enjoined from assertion and shall not be enforceable against any Reorganized Debtor, without the need for any objection by the Reorganized Debtors or any further notice to or action, order, or approval of the Bankruptcy Court, and any Cure shall be deemed fully satisfied, released, and discharged upon payment by the Debtors of the amounts listed on the Debtors’ proposed Cure schedule, notwithstanding anything included in the Schedules or in any Proof of Claim to the contrary; provided, however, that nothing shall prevent the Reorganized Debtors from paying any Cure despite the failure of the relevant counterparty to file such request for payment of such Cure. The Reorganized Debtors also may settle any Cure without any further notice to or action, order, or approval of the Bankruptcy Court.

⁴⁶  For the avoidance of doubt, the Debtors’ assumption of the Executory Contracts and Unexpired Leases, pursuant to the Confirmation Order, shall occur as of the Effective Date, subject to the Debtors satisfying their business judgment, any pending or unresolved objections to such assumptions based on Cure grounds.

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If the Debtors or Reorganized Debtors, as applicable, object to any Cure or any other matter related to assumption, the Bankruptcy Court shall determine the Allowed amount of such Cure and any related issues. If there is a dispute regarding such Cure, the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” within the meaning of section 365 of the Bankruptcy Code, or any other matter pertaining to assumption, then payment of Cure shall occur as soon as reasonably practicable after entry of a Final Order resolving such dispute, approving such assumption (and, if applicable, assignment), or as may be agreed upon by the Debtors or Reorganized Debtors, as applicable, and the counterparty to the Executory Contract or Unexpired Lease. Any counterparty to an Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption of any Executory Contract or Unexpired Lease and associated Cure will be deemed to have consented to such assumption and Cure. The Debtors or Reorganized Debtors, as applicable, reserve the right either to reject or nullify the assumption of any Executory Contract or Unexpired Lease within 45 days after a Final Order resolving an objection to assumption, or determining the Cure or any request for adequate assurance of future performance required to assume such Executory Contract or Unexpired Lease is entered.

Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Cures, Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption.

6. Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases

Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall not constitute a termination of pre-existing obligations owed to the Debtors under such contracts or leases. In particular, notwithstanding any non-bankruptcy law to the contrary, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations on goods previously purchased by the contracting Debtors or Reorganized Debtors, as applicable, from counterparties to rejected or repudiated Executory Contracts.

7. Claims Based on Rejection of Executory Contracts or Unexpired Leases

Unless otherwise provided by a Bankruptcy Court order, any Proofs of Claim asserting Claims arising from the rejection of the Executory Contracts and Unexpired Leases pursuant to the Plan or otherwise must be filed with the Claims Agent no later than 30 days after the later of the Effective Date or the effective date of rejection. In addition, any objection to the rejection of an Executory Contract or Unexpired Lease must be filed with the Bankruptcy Court no later than 30 days after the later of the Effective Date or the effective date of rejection. Any such objection will be scheduled to be heard by the Bankruptcy Court at the Debtors’ or Reorganized Debtors’, as applicable, first scheduled omnibus hearing for which such objection is timely filed.

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8. Contracts, Intercompany Contracts, and Leases Entered Into After the Commencement Date

Contracts, Intercompany Contracts, and leases entered into after the Commencement Date by any Debtor, and any Executory Contracts and Unexpired Leases assumed by any Debtor, may be performed by the applicable Reorganized Debtor in the ordinary course of business.

9. Reservation of Rights

Neither the exclusion nor inclusion of any contract or lease in the Plan Supplement, nor anything contained in the Plan, shall constitute an admission by the Debtors that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is any objection filed to the rejection of an Executory Contract or Unexpired Lease, the Debtors or Reorganized Debtors, as applicable, shall have 45 days after entry of a Final Order resolving such objection to alter their treatment of such contract or lease.

L. Procedures for Resolving Disputed Claims and Interests

1. Allowance of Claims and Interests

After the Effective Date, each Reorganized Debtor shall have and retain any and all rights and defenses such Debtor had with respect to any Claim or Interest immediately prior to the Effective Date, including the Causes of Action retained pursuant to Article VI.J.18. Except as expressly provided in the Plan or in any order entered in the Chapter 11 Cases prior to the Effective Date (including the Confirmation Order), no Claim shall become an Allowed Claim unless and until (i) the Debtors or Reorganized Debtors, as applicable, agree that such Claim is Allowed, provided, however, the Debtors shall not (I) Allow or settle, or (II) seek to Allow or settle, in either case, any Administrative or Priority Claim in excess of $250,000 arising outside the ordinary course of business without the Investors’ consent, which consent shall not be unreasonably withheld or delayed; provided, that (w) each of the Investors shall be deemed a Negative Notice Party (as defined in the Settlement Procedures Order);⁴⁷ (x) each of the Investors shall have standing to object to a settlement of a Claim proposed pursuant to the Settlement Procedures Order; (y) each of the Investors shall have the same consultation and information rights provided to the Creditors’ Committee and counsel for the DIP Facility Administrative Agent pursuant to paragraph 2(g) of the Settlement Procedures Order with respect to proposed settlements of Third-Party Claims and Debtors’ Claims (each as defined in the Settlement Procedures Order) and (z) the Debtors shall not propose a settlement of an Administrative Claim or a Priority Claim outside the ordinary course of business in excess of $250,000 pursuant to Paragraph 2(d) the Settlement Procedures Order without the Investors’ prior written consent (which consent shall not to be unreasonably withheld or delayed), or (ii) such Claim is deemed Allowed or the Bankruptcy Court has entered a Final Order, including the Confirmation Order, in the Chapter 11 Cases allowing such Claim or Interest. All settled claims approved prior to the Effective Date pursuant to a Final Order of the Bankruptcy Court, pursuant to Bankruptcy Rule 9019 or otherwise shall be binding on all parties.

⁴⁷  “Settlement Procedures Order” means the Order Authorizing and Approving Procedures for Settling Certain Claims and Causes of Action Brought by or Against the Debtors entered by the Bankruptcy Court on March 10, 2011 [Docket No. 1002].

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2. Claims and Interests Administration Responsibilities

Except as otherwise specifically provided in the Plan or the Securities Purchase Agreements, after the Effective Date, the Reorganized Debtors shall have the sole authority (1) to file, withdraw, or litigate to judgment, objections to Claims or Interests, (2) to settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court, and (3) to administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court.

3. Estimation of Claims and Interests

Before or after the Effective Date, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, as applicable, may (but are not required to) at any time request that the Bankruptcy Court estimate any Disputed Claim that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest or during the appeal relating to such objection. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Plan (including for purposes of distributions), and the relevant Reorganized Debtor may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.

4. Expungement or Adjustment to Paid, Satisfied, or Superseded Claims and Interests

Any Claim or Interest that has been paid, satisfied, or superseded, or any Claim or Interest that has been amended or superseded, may be adjusted or expunged on the Claims Register by the Reorganized Debtors without a claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

5. No Interest

Unless otherwise specifically provided for in the Plan (including with respect to the Allowed amount of any Claims hereunder), required under applicable bankruptcy law, or agreed to by the Debtors, the Confirmation Order, or a postpetition agreement in writing between the Debtors and a holder of a Claim, postpetition interest shall not accrue or be paid on Claims, and no holder of a Claim shall be entitled to interest accruing on or after the Commencement Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim, if and when such Disputed Claim becomes an Allowed Claim.

6. DISALLOWANCE OF CLAIMS OR INTERESTS

EXCEPT AS OTHERWISE AGREED, ANY AND ALL PROOFS OF CLAIM FILED AFTER THE APPLICABLE DEADLINE FOR FILING SUCH PROOFS OF CLAIM SHALL BE DEEMED DISALLOWED AND EXPUNGED AS OF THE EFFECTIVE DATE WITHOUT ANY FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT, AND HOLDERS OF SUCH CLAIMS SHALL NOT RECEIVE ANY DISTRIBUTIONS ON ACCOUNT OF SUCH CLAIMS, UNLESS SUCH LATE PROOF OF CLAIM IS DEEMED TIMELY FILED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

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All Claims of any Entity from which property is sought by the Debtors under section 542, 543, 550, or 553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors allege is a transferee of a transfer that is avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be disallowed if (1) the Entity, on the one hand, and the Debtors or the Reorganized Debtors, on the other hand, agree or the Bankruptcy Court has determined by Final Order that such Entity or transferee is liable to turn over any property or monies under any of the aforementioned sections of the Bankruptcy Code and (2) such Entity or transferee has failed to turn over such property by the date set forth in such agreement or Final Order.

7. Amendments to Claims

On or after the Effective Date, except as otherwise provided herein, a Claim may not be filed or amended without the authorization of the Bankruptcy Court or the Reorganized Debtors, and, to the extent such authorization is not received, any such new or amended Claim filed shall be deemed disallowed in full and expunged without any further notice to or action, order, or approval of the Bankruptcy Court.

8. No Distributions Pending Allowance

If an objection to a Claim or portion thereof is filed prior to the Effective Date, no payment or distribution provided under the Plan shall be made on account of such Claim or portion thereof, as applicable, unless and until such Disputed Claim becomes an Allowed Claim

9. Distributions After Allowance

To the extent that a Disputed Claim ultimately becomes an Allowed Claim, distributions, if any, shall be made to the holder of such Allowed Claim, however, the timing of such distribution(s) shall be at the sole reasonable discretion of the Debtors or Reorganized Debtors, and otherwise in accordance with the provisions of the Plan. As soon as practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim becomes a Final Order, the Distribution Agent shall provide to the holder of such Claim the distribution, if any, to which such holder is entitled under the Plan as of the Effective Date, without any interest to be paid on account of such Claim unless required under applicable bankruptcy law.

10. Disputed Claims Reserve

On the Effective Date (or as soon thereafter as is reasonably practicable), the Reorganized Debtors shall deposit in the Disputed Claims Reserve an amount of cash, as determined by the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or Reorganized Debtors, from the Unsecured Creditor Cash Pool and Trade Claims Cash Pool that would likely have been distributed to the holders of all applicable Disputed Claims (that, if Allowed, would be entitled to participate in such Claims pools) as if such Disputed Claims had been Allowed Claims on the Effective Date, with the amount of such Allowed Claims to be determined, solely for the purposes of establishing reserves and for maximum distribution purposes, to be (a) the lesser of (i) the asserted amount of each Disputed Claim filed with the Bankruptcy Court as set forth in the non-duplicative Proof of Claim or as provided by the parties to the Debtors as further information with respect to the Proof of Claim, or (if no Proof of Claim was filed) scheduled by the Debtors, and (ii) the amount, if any, estimated by the Bankruptcy Court pursuant to section 502(c) of the Bankruptcy Code or ordered by other order of the Bankruptcy Court, or (b) the amount otherwise agreed to by the Debtors, the Creditors’ Committee, the Investors and the holder of such Disputed Claim for reserve purposes.

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11. Distributions Following Resolution of All Claims

When all Disputed Claims are resolved and either become Allowed or are disallowed by Final Order, to the extent cash remains in the Disputed Claims Reserve after all holders of Disputed Claims that have become Allowed and have been paid the full amount they are entitled to pursuant to the treatment set forth for the appropriate Class under the Plan, then that excess cash shall be distributed to the Unsecured Creditor Cash Pool and holders of Allowed Unsecured Claims (to the extent they have not been paid in full) shall receive their Pro Rata share of the Unsecured Creditor Cash Pool.

M. Provisions Governing Distributions

1. Distributions on Account of Claims Allowed as of the Effective Date

a. Delivery of Distributions in General. Except as otherwise provided in the Plan or the Securities Purchase Agreements, a Final Order, or as otherwise agreed to by the relevant parties on the Distribution Date, the Distribution Agent shall make initial distributions under the Plan on account of Claims and Interests Allowed on or before the Effective Date, subject to the Reorganized Debtors’ right to object to Claims; provided, however, that (a) Allowed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice, and (b) Allowed Priority Tax Claims and Allowed Secured Tax Claims shall be paid in full in Cash on the Distribution Date or in installment payments over a period not more than five years after the Commencement Date pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim or Allowed Secured Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and the holder of such Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.

b. Delivery of Distributions on account of DIP Facility Claims. The DIP Facility Administrative Agent: (a) shall be deemed to be the holder of all DIP Facility Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of Allowed DIP Facility Claims to or on behalf of the DIP Facility Administrative Agent; (b) shall hold or direct such distributions for the benefit of the holders of Allowed DIP Facility Claims, as applicable; and (c) shall arrange to deliver such distributions to or on behalf of such holders of Allowed DIP Facility Claims; provided, however, the DIP Facility Administrative Agent shall retain all rights as administrative agent under the DIP Facility Credit Agreement in connection with delivery of distributions to DIP Facility Lenders; and provided further, however, that the Debtors’ obligations to make distributions in accordance with Article VI.E.3 shall be deemed satisfied upon delivery of distributions to the DIP Facility Administrative Agent.

c. Delivery of Distributions on account of the Second Lien Note Claims. The Second Lien Trustee: (a) shall be deemed to be the holder of the Second Lien Note Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of such Allowed Second Lien Note Claims to the Second Lien Trustee or on behalf of the Second Lien Trustee, provided that the Second Lien Trustee has given its prior written consent to the Distribution Agent to make such distributions; (b) shall hold or direct such distributions for the benefit of the holders of the Allowed Second Lien Note Claims, as applicable; and (c) shall arrange to deliver such distributions to or on behalf of the holders of the Allowed Second Lien Note Claims; provided, however, the Second Lien Trustee shall retain all rights as trustee under the Second Lien Indenture in connection with (i) delivering distributions to the holders of Allowed Second Lien Note Claims in accordance with

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the Plan and the Second Lien Indenture, (ii) permitting the Second Lien Trustee to exercise its charging lien under Section 7.07 of the Second Lien Indenture and (iii) allowing the Second Lien Trustee to appear in the Chapter 11 Cases after the Effective Date with respect to issues related to distributions. For the avoidance of doubt, the Second Lien Trustee shall only be required to act to make distributions in accordance with the terms of the Plan. The Debtors’ obligations to make distributions in accordance with Article III.C.1 of the Plan, including with respect to distributions due on the Effective Date pursuant to the Plan Support Agreement, shall be deemed satisfied upon delivery of distributions to the Second Lien Trustee or, if consent of the Second Lien Trustee is given as provided above, to the Distribution Agent on behalf of the Second Lien Trustee, as provided for herein.

d. Delivery of Distributions on account of Indenture Claims. Wilmington Trust, as indenture trustee for the Notes Indentures: (a) shall be deemed to be the holder of all Indenture Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution Agent shall make all distributions on account of such Allowed Indenture Claims to or on behalf of the Wilmington Trust; (b) shall hold or direct such distributions for the benefit of the holders of the Allowed Indenture Claims, as applicable; (c) shall arrange to deliver such distributions to or on behalf of the holder of the Allowed Indenture Claims; provided, however, Wilmington Trust shall retain all rights as the indenture trustee for the Convertible Notes, 9.125% Senior Notes and Quarterly Interest Bonds under the Notes Indentures in connection with delivery of distributions; and provided further, however, that the Debtors’ obligations to make distributions in accordance with Article VI.G.5, Article VI.G.6, and Article VI.G.7 shall be deemed satisfied upon delivery of distributions to Wilmington Trust.

2. Distributions on Account of Claims Allowed After the Effective Date

a. Payments and Distributions on Disputed Claims. Except as otherwise provided in the Plan, a Final Order, or as agreed to by the relevant parties (including the Debtors, the Reorganized Debtors and/or the Investors, as applicable), distributions under the Plan on account of Disputed Claims that become Allowed after the Effective Date shall be made on the Periodic Distribution Date; provided, however, that (a) Disputed Claims that are Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors on or before the Effective Date that become Allowed after the Effective Date shall be paid or performed in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice and (b) Disputed Claims that are Priority Tax Claims or Secured Tax Claims that become Allowed Priority Tax Claims or Allowed Secured Tax Claims after the Effective Date shall be paid in full in Cash on the Periodic Distribution Date that is at least 30 days after the Disputed Claim becomes an Allowed Claim or over a five-year period as provided in section 1129(a)(9)(C) of the Bankruptcy Code with annual interest provided by applicable non-bankruptcy law.

b. Special Rules for Distributions to Holders of Disputed Claims. Notwithstanding any provision otherwise in the Plan and except as otherwise agreed by the relevant parties (including the Debtors, the Reorganized Debtors and/or the Investors, as applicable), (a) no partial payments and no partial distributions shall be made with respect to a Disputed Claim until all such disputes in connection with such Disputed Claim have been resolved by settlement or Final Order and (b) any Entity that holds both an Allowed Claim and a Disputed Claim shall not receive any distribution on the Allowed Claim unless and until all objections to the Disputed Claim have been resolved by settlement or Final Order or the Claims have been Allowed or expunged. All distributions made pursuant to the Plan on account of a Disputed Claim that is deemed an Allowed Claim by the Bankruptcy Court shall be made together with any dividends, payments, or other distributions made on account of, as well as any obligations arising from, the distributed property as if such Allowed Claim had been an Allowed Claim on the dates distributions were previously made to holders of Allowed Claims included in the applicable Class;

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provided, however, that no interest shall be paid on account of such Allowed Claims unless required under applicable bankruptcy law or specifically provided for in the Plan (including with respect to the Allowed amount of any Claims hereunder).

3. Delivery of Distributions

a. Record Date for Distributions. On the Distribution Record Date, the Claims Register shall be closed and the Distribution Agent shall be authorized and entitled to recognize only those record holders listed on the Claims Register as of the close of business on the Distribution Record Date. Notwithstanding the foregoing, if a Claim or Interest, other than one based on a publicly traded Certificate is transferred less than 20 days before the Distribution Record Date, the Distribution Agent shall make distributions to the transferee only to the extent practical and in any event only if the relevant transfer form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor.

b. Distribution Process. Except as otherwise provided herein, the Distribution Agent shall make all distributions to holders of Allowed Claims required under the Plan, except that distributions to holders of Allowed Claims governed by a separate agreement and administered by a Servicer shall be deposited with the appropriate Servicer, at which time such distributions shall be deemed complete, and the Servicer shall deliver such distributions in accordance with the Plan and the terms of the governing agreement. Except as otherwise provided in the Plan, and notwithstanding any authority to the contrary, distributions to holders of Allowed Claims shall be made to holders of record as of the Distribution Record Date by the Distribution Agent or a Servicer, as appropriate: (a) to the signatory set forth on any of the Proofs of Claim filed by such holder or other representative identified therein (or at the last known addresses of such holder if no Proof of Claim is filed or if the Debtors have been notified in writing of a change of address); (b) at the addresses set forth in any written notices of address changes delivered to the Distribution Agent after the date of any related Proof of Claim; (c) in accordance with Federal Rule of Civil Procedure 4, as modified and made applicable by Bankruptcy Rule 7004 if no Proof of Claim has been filed and the Distribution Agent has not received a written notice of a change of address; (d) at the addresses reflected in the Schedules if no Proof of Claim has been filed and the Distribution Agent has not received a written notice of a change of address; or (e) on any counsel that has appeared in the Chapter 11 Cases on the holder’s behalf. The Debtors, the Reorganized Debtors, and the Distribution Agent, as applicable, shall not incur any liability whatsoever on account of any distributions under the Plan.

c. Accrual of Dividends and Other Rights. For purposes of determining the accrual of dividends or other rights after the Effective Date, the NewCo Equity shall be deemed issued as of the Effective Date regardless of the date on which it is actually issued, dated, authenticated, or distributed; provided however, the Reorganized Debtors shall not pay any such dividends or distribute such other rights, if any, until after the issuance of NewCo Equity actually take place.

d. Compliance Matters. In connection with the Plan, to the extent applicable, the Reorganized Debtors and the Distribution Agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the Distribution Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances.

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e. Foreign Currency Exchange Rate. Except as otherwise provided in the Plan or a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate as of Monday, December 13, 2010 as quoted at 4:00 p.m. (EDT), mid-range spot rate of exchange for the applicable currency as published in The Wall Street Journal, National Edition, on Monday, December 13, 2010.

f. Fractional, De Minimis, Undeliverable, and Unclaimed Distributions.

(i) Fractional Distributions. Notwithstanding any other provision of the Plan to the contrary, the Distribution Agent shall not be required to make distributions or payments of fractions of dollars. Whenever any payment of Cash of a fraction of a dollar pursuant to the Plan would otherwise be required, the actual payment shall reflect a rounding of such fraction to the nearest whole dollar (up or down), with half dollars or less being rounded down.

(ii) De Minimis Distributions. Neither the Distribution Agent nor any Servicer shall have any obligation to make a distribution on account of an Allowed Claim if (i) the aggregate amount of all distributions authorized to be made on the Periodic Distribution Date in question is or has an economic value less than $250,000, or (ii) the amount to be distributed to the specific holder of an Allowed Claim on the particular Periodic Distribution Date does not constitute a final distribution to such holder. The Distribution Agent need not make any distribution on account of an Allowed Claim to a specific holder if such distribution on such Allowed Claim is less than $25.00.

(iii) Undeliverable Distributions. If any distribution to a holder of an Allowed Claim is returned to a Distribution Agent as undeliverable, no further distributions shall be made to such holder unless and until such Distribution Agent is notified in writing of such holder’s then-current address, at which time all currently due missed distributions shall be made to such holder on the next Periodic Distribution Date. Undeliverable distributions shall remain in the possession of the Reorganized Debtors until such time as a distribution becomes deliverable, or such distribution reverts to the Reorganized Debtors or is cancelled pursuant to Article VI.M.3.f(iv) above, and shall not be supplemented with any interest, dividends, or other accruals of any kind.

(iv) Reversion. Any distribution under the Plan that is an Unclaimed Distribution for a period of six months after distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and such Unclaimed Distribution shall revest in the Reorganized Debtors and, to the extent such Unclaimed Distribution is NewCo Equity, shall be deemed cancelled. Upon such revesting, the Claim of any holder or its successors with respect to such property shall be cancelled, discharged, and forever barred notwithstanding any applicable federal or state escheat, abandoned, or unclaimed property laws to the contrary. The provisions of the Plan regarding undeliverable distributions and Unclaimed Distributions shall apply with equal force to distributions that are issued by the Debtors, the Reorganized Debtors, or the Distribution Agent made pursuant to any indenture or Certificate (but only with respect to the initial distribution by the Servicer to holders that are entitled to be recognized under the

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relevant indenture or Certificate and not with respect to Entities to whom those recognized holders distribute), notwithstanding any provision in such indenture or Certificate to the contrary and notwithstanding any otherwise applicable federal or state escheat, abandoned, or unclaimed property law.

(v) Surrender of Cancelled Instruments or Securities. Except as otherwise provided in the Plan, on the Effective Date, or as soon as reasonably practicable thereafter, each holder of a Certificate shall be deemed to have surrendered such Certificate to the Distribution Agent or a Servicer (to the extent the relevant Claim is governed by an agreement and administered by a Servicer). Such Certificate shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such Certificate. Notwithstanding that a holder of a Certificate will be deemed to have surrendered such Certificate, regardless of any actual surrender, the deemed surrender of a Certificate shall have the same effect as if such holder had actually surrendered such Certificate (including but not limited to the discharge of such holder’s Claim pursuant to the Plan), and such holder shall be deemed to have relinquished all rights, Claims and interests with respect to such Certificate. Notwithstanding the foregoing paragraph, this Article VI.M.3.f(v) shall not apply to any Claims Reinstated pursuant to the terms of the Plan.

(vi) Lost, Stolen, Mutilated, or Destroyed Debt Securities. Any holder of Allowed Claims evidenced by a Certificate that has been lost, stolen, mutilated, or destroyed shall, in lieu of surrendering such Certificate, deliver to the Distribution Agent or Servicer, if applicable, an affidavit of loss acceptable to the Distribution Agent or Servicer setting forth the unavailability of the Certificate, and such additional indemnity as may be required reasonably by the Distribution Agent or Servicer to hold the Distribution Agent or Servicer harmless from any damages, liabilities, or costs incurred in treating such holder as a holder of an Allowed Claim. Upon compliance with this procedure by a holder of an Allowed Claim evidenced by such a lost, stolen, mutilated, or destroyed Certificate, such holder shall, for all purposes pursuant to the Plan, be deemed to have surrendered such Certificate.

4. Claims Paid or Payable by Third Parties

Claims Paid by Third Parties. The Claims Agent shall reduce in full a Claim, and such Claim shall be disallowed without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent that the holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor or Reorganized Debtor. To the extent a holder of a Claim receives a distribution on account of such Claim and receives payment from a party that is not a Debtor or a Reorganized Debtor on account of such Claim, such holder shall, within two weeks of receipt thereof, repay or return the distribution to the applicable Reorganized Debtor, to the extent the holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan.

Claims Payable by Insurance Carriers. No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’ insurers agrees to satisfy in full a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement, such Claim may be expunged to the extent of any agreed upon satisfaction on the Claims Register by the Claims Agent without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

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Applicability of Insurance Policies. Except as otherwise provided in the Plan, distributions to holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity may hold against any other Entity, including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such insurers.

5. Setoffs

Except as otherwise expressly provided for in the Plan or a Final Order of the Bankruptcy Code, each Reorganized Debtor pursuant to the Bankruptcy Code (including section 553 of the Bankruptcy Code), applicable non-bankruptcy law, or as may be agreed to by the holder of a Claim, may set off against any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Allowed Claim (before any distribution is made on account of such Allowed Claim), any Claims, rights, and Causes of Action of any nature that such Debtor or Reorganized Debtor, as applicable, may hold against the holder of such Allowed Claim, to the extent such Claims, rights, or Causes of Action against such holder have not been otherwise compromised or settled on or prior to the Effective Date (whether pursuant to the Plan or otherwise); provided, however, that neither the failure to effect such a setoff nor the allowance of any Claim pursuant to the Plan shall constitute a waiver or release by such Reorganized Debtor of any such Claims, rights, and Causes of Action that such Reorganized Debtor may possess against such holder. In no event shall any Holder of a Claim be entitled to set off any Claim against any Claim, right, or Cause of Action of a Debtor or a Reorganized Debtor, as applicable, unless such Holder has timely filed a Proof of Claim with the Bankruptcy Court preserving such setoff.

6. Allocation Between Principal and Accrued Interest

Except as otherwise provided in the Plan, the aggregate consideration paid to holders with respect to their Allowed Claims shall be treated pursuant to the Plan as allocated first to the principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest, if any permitted pursuant to the Plan, accrued through the Effective Date.

N. Effect of Confirmation of the Plan

1. DISCHARGE OF CLAIMS AND TERMINATION OF INTERESTS

EXCEPT AS OTHERWISE PROVIDED IN THE PLAN AND EFFECTIVE AS OF THE EFFECTIVE DATE: (1) THE RIGHTS AFFORDED IN THE PLAN AND THE TREATMENT OF ALL CLAIMS AND INTERESTS SHALL BE IN EXCHANGE FOR AND IN COMPLETE SATISFACTION, DISCHARGE, AND RELEASE OF ALL CLAIMS AND INTERESTS OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON SUCH CLAIMS FROM AND AFTER THE COMMENCEMENT DATE, AGAINST THE DEBTORS OR ANY OF THEIR ASSETS, PROPERTY, OR ESTATES; (2) THE PLAN SHALL BIND ALL HOLDERS OF CLAIMS AND INTERESTS, NOTWITHSTANDING WHETHER ANY SUCH HOLDERS FAILED TO VOTE TO ACCEPT OR REJECT THE PLAN, VOTED TO ACCEPT THE PLAN, OR VOTED TO REJECT THE PLAN; (3) ALL CLAIMS AND INTERESTS SHALL BE SATISFIED, DISCHARGED, AND RELEASED IN FULL, AND THE DEBTORS’ LIABILITY WITH RESPECT THERETO SHALL BE EXTINGUISHED COMPLETELY, INCLUDING ANY LIABILITY OF THE KIND SPECIFIED UNDER SECTION 502(G) OF THE BANKRUPTCY

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CODE; AND (4) ALL ENTITIES SHALL BE PRECLUDED FROM ASSERTING AGAINST THE DEBTORS, THE DEBTORS’ ESTATES, THE REORGANIZED DEBTORS, THEIR SUCCESSORS AND ASSIGNS, AND THEIR ASSETS AND PROPERTIES ANY OTHER CLAIMS OR INTERESTS BASED UPON ANY DOCUMENTS, INSTRUMENTS, OR ANY ACT OR OMISSION, TRANSACTION, OR OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED PRIOR TO THE EFFECTIVE DATE.

2. Subordinated Claims

The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code, or otherwise and any such rights shall be settled, compromised, and released pursuant to the Plan. Specifically, pursuant to section 510 of the Bankruptcy Code, the Reorganized Debtors reserve the right to re-classify any Allowed Claim in accordance with any contractual, legal, or equitable subordination relating thereto.

3. Compromise and Settlement of Claims and Controversies

Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019 and in consideration for the distributions and other benefits provided pursuant to the Plan or any distribution to be made on account of an Allowed Claim, the provisions of the Plan shall constitute a good faith compromise of all Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that a holder of a Claim or Interest may have with respect to any Allowed Claim. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Interests, and controversies, as well as a finding by the Bankruptcy Court that any such compromise or settlement, including the Substantive Consolidation Settlement, is in the best interests of the Debtors, their Estates, and holders of Claims and Interests and is fair, equitable, and reasonable. In accordance with the provisions of the Plan, pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019(a), without any further notice to or action, order, or approval of the Bankruptcy Court, after the Effective Date, the Reorganized Debtors may compromise and settle Claims against them and Causes of Action against other Entities.

4. RELEASES BY THE DEBTORS

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, AND PURSUANT TO SECTION 1123(B) OF THE BANKRUPTCY CODE, ON THE EFFECTIVE DATE AND EFFECTIVE AS OF THE EFFECTIVE DATE, FOR GOOD AND VALUABLE CONSIDERATION, THE ADEQUACY OF WHICH IS HEREBY CONFIRMED, INCLUDING: (1) THE SETTLEMENT, RELEASE, AND COMPROMISE OF DEBT AND ALL OTHER GOOD AND VALUABLE CONSIDERATION PAID PURSUANT HERETO; AND (2) THE SERVICES OF THE DEBTORS’ PRESENT AND FORMER OFFICERS, DIRECTORS, MANAGERS, AND ADVISORS IN FACILITATING THE EXPEDIENT IMPLEMENTATION OF THE RESTRUCTURING TRANSACTIONS CONTEMPLATED HEREBY, EACH OF THE DEBTORS, THE REORGANIZED DEBTORS AND THE DEBTORS’ ESTATES (INCLUDING ALL PARTIES CLAIMING DERIVATIVELY OR THROUGH THE DEBTOR OR THE REORGANIZED DEBTORS OR THEIR ESTATES) OR THEIR AFFILIATES DISCHARGE AND RELEASE AND SHALL BE DEEMED TO HAVE PROVIDED A FULL DISCHARGE AND RELEASE TO EACH RELEASED PARTY AND THEIR RESPECTIVE PROPERTY (THE “DEBTOR RELEASE”) FROM ANY AND ALL CLAIMS, OBLIGATIONS, DEBTS, RIGHTS,

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SUITS, DAMAGES, REMEDIES, RIGHTS OF SETOFF, CAUSES OF ACTION, AND LIABILITIES WHATSOEVER (INCLUDING ANY DERIVATIVE CLAIMS ASSERTED ON BEHALF OF THE DEBTORS) WHETHER KNOWN OR UNKNOWN, MATURED OR UNMATURED, FORESEEN OR UNFORESEEN, LIQUIDATED OR UNLIQUIDATED, CONTINGENT OR NON-CONTINGENT, EXISTING AS OF THE EFFECTIVE DATE IN LAW, EQUITY OR OTHERWISE, WHETHER FOR TORT, CONTRACT VIOLATIONS OF FEDERAL OR STATE SECURITIES LAWS OR OTHERWISE, ARISING FROM OR RELATED IN ANY WAY TO THE DEBTORS, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE CHAPTER 11 CASES, THE ISSUANCE OF ANY SECURITY OF THE DEBTORS, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN ANY DEBTOR, ANY RELEASED PARTIES, THE RESTRUCTURING OF CLAIMS AND INTERESTS PRIOR TO OR IN THE CHAPTER 11 CASES, THE NEGOTIATION, FORMULATION OR PREPARATION OF THE PLAN, THE DISCLOSURE STATEMENT, THE PLAN SUPPLEMENT, THE PLAN SUPPORT AGREEMENT, THE SECURITIES PURCHASE AGREEMENTS, OR RELATED AGREEMENTS, INSTRUMENTS, OR OTHER DOCUMENTS, UPON ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, INCLUDING THOSE THAT ANY OF THE DEBTORS WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR THAT ANY HOLDER OF A CLAIM OR AN INTEREST OR OTHER ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT ON BEHALF OF THE DEBTORS OR ANY OF THEIR ESTATES; PROVIDED, HOWEVER, THAT THE FOREGOING DEBTOR RELEASE SHALL NOT OPERATE TO WAIVE OR RELEASE ANY CLAIMS OR LIABILITIES OF ANY DEBTOR: (1) ARISING UNDER ANY CONTRACTUAL OBLIGATION OWED TO THE DEBTORS, INCLUDING UNDER THE SECURITIES PURCHASE AGREEMENTS OR THE PLAN SUPPORT AGREEMENT; (2) EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT, OR RELATED DOCUMENTS; OR (3) CONSTITUTING INTERCOMPANY CLAIMS THAT ARE REINSTATED PURSUANT TO THE PLAN. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PLAN DOES NOT RELEASE ANY CAUSES OF ACTION THAT THE DEBTORS OR THE REORGANIZED DEBTORS HAVE OR MAY HAVE NOW OR IN THE FUTURE AGAINST ANY PARTY (INCLUDING, BUT NOT LIMITED TO, A RELEASED PARTY) ARISING OUT OF OR RELATING TO ANY ACT OR OMISSION OF A RELEASED PARTY THAT CONSTITUTES WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH AS DETERMINED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, OF THE DEBTOR RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED HEREIN, AND FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE DEBTOR RELEASE IS: (1) IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASING PARTIES; (2) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE DEBTOR RELEASE; (3) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (4) FAIR, EQUITABLE AND REASONABLE; (5) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (6) A BAR TO ANY OF THE DEBTORS OR THE REORGANIZED DEBTORS ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE DEBTOR RELEASE.

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5. RELEASES BY HOLDERS OF CLAIMS

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ON THE EFFECTIVE DATE AND AS OF THE EFFECTIVE DATE, THE RELEASING PARTIES⁴⁸ DISCHARGE AND RELEASE (AND EACH ENTITY SO DISCHARGED AND RELEASED SHALL BE DEEMED DISCHARGED AND RELEASED BY THE RELEASING PARTIES) (THE “THIRD PARTY RELEASE”) THE REORGANIZED DEBTORS, THEIR ESTATES, THEIR RESPECTIVE PROPERTY, AND THE RELEASED PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE PROPERTY FROM ANY AND ALL CLAIMS, INTERESTS, OBLIGATIONS, DEBTS, RIGHTS, SUITS, DAMAGES, REMEDIES, CAUSES OF ACTION, AND LIABILITIES WHATSOEVER, INCLUDING ANY DERIVATIVE CLAIMS ASSERTED ON BEHALF OF THE RELEASING PARTY, WHETHER KNOWN OR UNKNOWN, MATURED OR UNMATURED, FORESEEN OR UNFORESEEN, EXISTING OR HEREINAFTER ARISING, IN LAW, EQUITY, OR OTHERWISE, WHETHER FOR TORT, CONTRACT, VIOLATION OF FEDERAL OR STATE SECURITIES LAW OR OTHERWISE, ARISING FROM OR RELATED IN ANY WAY TO THE DEBTORS, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE CHAPTER 11 CASES, THE ISSUANCE OF ANY SECURITY OF THE DEBTORS, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN ANY DEBTOR, ANY RELEASED PARTIES, THE RESTRUCTURING OF CLAIMS AND INTERESTS PRIOR TO OR IN THE CHAPTER 11 CASES, THE NEGOTIATION, FORMULATION OR PREPARATION OF THE PLAN, THE DISCLOSURE STATEMENT, THE PLAN SUPPLEMENT, THE PLAN SUPPORT AGREEMENT, THE SECURITIES PURCHASE AGREEMENTS, OR RELATED AGREEMENTS, INSTRUMENTS, OR OTHER DOCUMENTS, UPON ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, INCLUDING THOSE THAT ANY OF THE DEBTORS WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN ITS OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR THAT ANY HOLDER OF A CLAIM OR AN INTEREST OR OTHER ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT ON BEHALF OF ITSELF, THE DEBTORS OR ANY OF THEIR ESTATES; PROVIDED, HOWEVER, THAT THE FOREGOING THIRD PARTY RELEASE SHALL NOT OPERATE TO RELEASE CLAIMS, OBLIGATIONS, DEBTS, RIGHTS, SUITS, DAMAGES, REMEDIES, CAUSES OF ACTION, AND LIABILITIES OF ANY RELEASING PARTY: (1) AGAINST A RELEASING PARTY OR A PARTY RELEASING UNDER THIS THIRD PARTY RELEASE ARISING FROM ANY CONTRACTUAL OBLIGATIONS OWED TO THE RELEASING PARTY OR LIABILITIES OF ANY RELEASING PARTY; (2) ARISING UNDER THE SECURITIES PURCHASE AGREEMENTS OR THE PLAN SUPPORT AGREEMENT; (3) EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT, OR RELATED DOCUMENTS; OR (4) AGAINST A PROFESSIONAL WITH RESPECT TO SUCH PROFESSIONAL’S FINAL FEE APPLICATION OR ACCRUED PROFESSIONAL COMPENSATION CLAIMS IN THESE CHAPTER 11 CASES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE RELEASES SET FORTH

⁴⁸  If you vote to accept the Plan, you are automatically deemed to consent to the Third Party Release in Article VIII.E of the Plan. If you vote to reject the Plan or do not submit a vote, you are not bound by the Third Party Release.

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ABOVE DO NOT RELEASE ANY (1) POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY UNDER THE PLAN OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN, OR (2) CLAIMS ARISING UNDER THE SECURITIES PURCHASE AGREEMENTS. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS PARAGRAPH SHALL IN ANY WAY AFFECT THE OPERATION OF ARTICLE VIII.A OF THE PLAN, PURSUANT TO SECTION 1141(D) OF THE BANKRUPTCY CODE.

NOTWITHSTANDING ANYTHING IN THE PLAN, NO PERSON SHALL BE DISCHARGED, RELEASED, OR RELIEVED FROM ANY LIABILITY ARISING UNDER ERISA OR THE INTERNAL REVENUE CODE SOLELY WITH RESPECT TO THE A&P PENSION PLANS AS A RESULT OF THE DEBTORS’ REORGANIZATION PROCEEDINGS OR CONFIRMATION OF THE PLAN. NOR SHALL THE PENSION BENEFIT GUARANTY CORPORATION, THE A&P PENSION PLANS, OR ANY OTHER PERSON BE ENJOINED OR PRECLUDED FROM ENFORCING ANY LIABILITY ARISING UNDER ERISA OR THE INTERNAL REVENUE CODE SOLELY WITH RESPECT TO THE A&P PENSION PLANS AS A RESULT OF THE DEBTORS’ REORGANIZATION PROCEEDINGS, THE PLAN’S PROVISIONS OR THE PLAN’S CONFIRMATION.

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PLAN DOES NOT RELEASE ANY CAUSES OF ACTION THAT THE DEBTORS OR THE REORGANIZED DEBTORS HAVE OR MAY HAVE NOW OR IN THE FUTURE AGAINST ANY PARTY (INCLUDING, BUT NOT LIMITED TO, A RELEASED PARTY) ARISING OUT OF OR RELATING TO ANY ACT OR OMISSION OF A RELEASED PARTY THAT CONSTITUTES WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH AS DETERMINED BY A FINAL ORDER OF THE BANKRUPTCY COURT.

ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, OF THE THIRD PARTY RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED HEREIN, AND FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE THIRD PARTY RELEASE IS: (1) IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASING PARTIES; (2) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE THIRD PARTY RELEASE; (3) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (4) FAIR, EQUITABLE AND REASONABLE; (5) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (6) A BAR TO ANY RELEASING PARTIES ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE THIRD PARTY RELEASE.

THE THIRD PARTY RELEASE IN ARTICLE VIII.E OF THE PLAN IS CONSENSUAL. THOSE HOLDERS OF CLAIMS THAT AFFIRMATIVELY VOTE IN FAVOR OF THE PLAN ARE BOUND BY THE THIRD PARTY RELEASE. FOR THE AVOIDANCE OF DOUBT, IF A HOLDER OF A CLAIM AFFIRMATIVELY VOTES IN FAVOR OF THE PLAN, SUCH HOLDER, IN ALL CAPACITIES, WILL BE RELEASING, AMONG OTHERS, THE DEBTORS’ CURRENT AND FORMER OFFICERS AND DIRECTORS, INCLUDING OFFICERS AND DIRECTORS WHO ARE NAMED AS DEFENDANTS IN THE SECURITIES CLASS ACTION LAWSUIT (SEE ARTICLE IV.I ABOVE).

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THE DEBTORS AND APPLICABLE NON-DEBTORS DO NOT CONCEDE ANY LIABILITY AND DO NOT AGREE WITH THE ALLEGATIONS IN THE SECURITIES CLASS ACTION LAWSUIT. THE DEBTORS AND APPLICABLE NON-DEBTORS RESERVE ANY AND ALL RIGHTS TO CONTEST THE CLAIMS AND TO ENFORCE ANY STAY OF THE ACTIONS AS AGAINST THE DEBTORS.

6. WAIVER OF STATUTORY LIMITATIONS ON RELEASES

EACH OF THE RELEASING PARTIES IN EACH OF THE RELEASES CONTAINED IN ARTICLE VIII.D AND ARTICLE VIII.E OF THE PLAN EXPRESSLY ACKNOWLEDGES THAT ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY RELEASED, THEY HAVE CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED PARTY, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN ARTICLE VIII.D AND ARTICLE VIII.E OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEN OR UNFORESEEN.

7. EXCULPATION

THE EXCULPATED PARTIES SHALL NEITHER HAVE, NOR INCUR ANY LIABILITY TO ANY ENTITY FOR ANY ACT TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH, OR RELATED TO FORMULATING, NEGOTIATING, PREPARING, DISSEMINATING, IMPLEMENTING, ADMINISTERING, CONFIRMING OR EFFECTING THE EFFECTIVE DATE OF THE PLAN, THE DISCLOSURE STATEMENT, THE SECURITIES PURCHASE AGREEMENTS, THE PLAN SUPPORT AGREEMENT, THE RESTRUCTURING TRANSACTIONS, THE ISSUANCE AND/OR DISTRIBUTION OF NEWCO EQUITY, THE NEW SECOND LIEN NOTES, THE REPLACEMENT SECOND LIEN NOTES IF APPLICABLE, THE NEW CONVERTIBLE THIRD LIEN NOTES, THE INVESTMENT WARRANTS OR ANY CONTRACT, INSTRUMENT, RELEASE OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE PLAN OR ANY OTHER PRE-PETITION OR POST-PETITION ACT TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH OR IN CONTEMPLATION OF THE PLAN OR THE RESTRUCTURING OF THE DEBTORS (COLLECTIVELY, “EXCULPATED CLAIMS”); PROVIDED, THAT THE FOREGOING PROVISIONS OF THIS EXCULPATION SHALL HAVE NO EFFECT ON (A) ANY POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY UNDER THE PLAN OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN OR (B) THE LIABILITY OF ANY ENTITY THAT RESULTS FROM ANY SUCH ACT OR OMISSION THAT IS DETERMINED IN A FINAL ORDER TO HAVE CONSTITUTED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, FURTHER, THAT EACH

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EXCULPATED PARTY SHALL BE ENTITLED TO RELY UPON THE ADVICE OF COUNSEL CONCERNING HIS, HER OR ITS DUTIES PURSUANT TO, OR IN CONNECTION WITH, THE PLAN; PROVIDED FURTHER, THAT THE FOREGOING “EXCULPATION” SHALL NOT APPLY TO ANY ACTS OR OMISSIONS EXPRESSLY SET FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT OR RELATED DOCUMENTS, EXCEPT FOR ACTS OR OMISSIONS OF RELEASING PARTIES.

8. INJUNCTION

EXCEPT AS OTHERWISE PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD OR MAY HOLD CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES THAT: (1) ARE SUBJECT TO COMPROMISE AND SETTLEMENT PURSUANT TO THE TERMS OF THE PLAN; (2) HAVE BEEN RELEASED PURSUANT TO ARTICLE VIII.D HEREOF; (3) HAVE BEEN RELEASED PURSUANT TO ARTICLE VIII.E; (4) ARE SUBJECT TO EXCULPATION PURSUANT TO ARTICLE VIII.G HEREOF, INCLUDING EXCULPATED CLAIMS (BUT ONLY TO THE EXTENT OF THE EXCULPATION PROVIDED IN ARTICLE VIII.E); OR (5) ARE OTHERWISE STAYED OR TERMINATED PURSUANT TO THE TERMS OF THE PLAN, ARE PERMANENTLY ENJOINED AND PRECLUDED, FROM AND AFTER THE EFFECTIVE DATE, FROM: (A) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND, INCLUDING ON ACCOUNT OF ANY CLAIMS, INTERESTS, CAUSES OF ACTIONS OR LIABILITIES THAT HAVE BEEN COMPROMISED OR SETTLED AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATE OF ANY ENTITY, DIRECTLY OR INDIRECTLY, SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES; (B) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST THE DEBTORS, THE REORGANIZED DEBTOR, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (C) CREATING, PERFECTING OR ENFORCING ANY LIEN, CLAIM, OR ENCUMBRANCE OF ANY KIND AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (D) ASSERTING ANY RIGHT OF SETOFF, SUBROGATION, OR RECOUPMENT OF ANY KIND AGAINST ANY OBLIGATION DUE FROM THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION OR LIABILITIES UNLESS SUCH HOLDER HAS FILED A TIMELY PROOF OF CLAIM WITH THE BANKRUPTCY COURT PRESERVING SUCH RIGHT OF SETOFF PURSUANT TO SECTION 553 OF THE BANKRUPTCY CODE OR OTHERWISE; AND (E) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION

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OR OTHER PROCEEDING OF ANY KIND AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE INVESTORS OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATES OF THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES RELEASED, SETTLED OR COMPROMISED PURSUANT TO THE PLAN; PROVIDED THAT NOTHING CONTAINED HEREIN SHALL PRECLUDE AN ENTITY FROM OBTAINING BENEFITS DIRECTLY AND EXPRESSLY PROVIDED TO SUCH ENTITY PURSUANT TO THE TERMS OF THE PLAN; PROVIDED, FURTHER, THAT NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT ANY ENTITY FROM DEFENDING AGAINST CLAIMS OBJECTIONS OR COLLECTION ACTIONS WHETHER BY ASSERTING A RIGHT OF SETOFF OR OTHERWISE TO THE EXTENT PERMITTED BY LAW.

9. Summary of Release

As set forth more fully herein and in the Plan, the Plan provides for voluntary releases of certain claims and causes of action by the Debtors and third parties. The Debtors believe that these releases are justified because such releases are being provided to parties who have played an integral role in the Debtors’ restructuring efforts and are consensual. As set forth herein and in the Plan, only those holders of Claims that affirmatively vote in favor of the Plan are bound by the Third Party Release. Moreover, the release provisions of the Plan are necessary to protect the reorganized company from any potential litigation from prepetition creditors after the Effective Date. Any such litigation would hinder the efforts of the reorganized entity to effectively fulfill its responsibilities as contemplated in the Plan. As a result, the Debtors believe the releases in the Plan satisfy the standard applicable in the Second Circuit. See In re Metromedia Fiber Network, Inc., 416 F.3d 136, 142 (2d Cir. 2005) (“Nondebtor releases may be tolerated if the affected creditor consents.”); Adelphia, 368 B.R. at 140 stay granted, 361 B.R. 337 (S.D.N.Y. 2007), appeal dismissed, 367 B.R. 84 (S.D.N.Y. 2007), appeal dismissed, 371 B.R. 660 (S.D.N.Y. 2007), order aff’d, 544 F.3d 420 (2d Cir. 2008) (“The Seventh Circuit held in Specialty Equipment that consensual releases are permissible, and the Metromedia court did not quarrel with that view.”) (citation omitted).

10. Protection Against Discriminatory Treatment

Consistent with section 525 of the Bankruptcy Code and paragraph 2 of Article VI of the United States Constitution, no Governmental Unit shall discriminate against the Reorganized Debtors or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Reorganized Debtors, or another Entity with whom such Reorganized Debtors have been associated, solely because one of the Debtors has been a debtor under chapter 11, has been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtor is granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11 Cases.

11. Indemnification

Notwithstanding anything in the Plan to the contrary, all indemnification provisions currently in place (whether in the Securities Purchase Agreements, by-laws, certificates of incorporation, articles of limited partnership, board resolutions, contracts, or otherwise) for the directors, officers, employees, attorneys, other professionals, and agents of the Debtors that served in such capacity from and after the Commencement Date and such directors’ and officers’ respective affiliates, shall be Reinstated (or assumed, as the case may be), and shall survive effectiveness of the Plan.

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12. Recoupment

In no event shall any holder of Claims or Interests be entitled to recoup any Claim or Interest against any Claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as applicable, unless such holder actually has performed such recoupment and provided notice thereof in writing to the Debtors on or before the Confirmation Date, notwithstanding any indication in any Proof of Claim or Interest or otherwise that such holder asserts, has, or intends to preserve any right of recoupment.

13. Release of Liens

Except as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released, and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtor and its successors and assigns.

14. Reimbursement or Contribution

If a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code is (i) disallowed by the Bankruptcy Court or (ii) is contingent as of the Effective Date, then such Claim shall be forever disallowed notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Effective Date (a) such Claim has been adjudicated as noncontingent or (b) the relevant holder of a Claim has filed a noncontingent Proof of Claim on account of such Claim and a Final Order has been entered determining such Claim as no longer contingent.

O. Conditions Precedent to Consummation of the Plan

1. Conditions Precedent to the Effective Date

It shall be a condition to the Effective Date that the following conditions shall have been satisfied or waived pursuant to Article VI.O.2 hereof:

a. the Bankruptcy Court shall have approved the Disclosure Statement, in a manner acceptable to the Debtors and the Investors, as containing adequate information with respect to the Plan within the meaning of section 1125 of the Bankruptcy Code and such order shall be in full force and effect and shall have become a Final Order;

b. the Confirmation Order: (i) shall be entered by the Bankruptcy Court on or before February 14, 2012 (as such date may be extended with the consent of the Debtors and the Investors, which consent shall not be unreasonably withheld or delayed); (ii) shall include the provisions in Exhibit D to the Securities Purchase Agreements and otherwise be in form and substance acceptable to the Investors; and (iii) shall be in full force and effect and, unless waived by the Investors, shall have become a Final Order;

c. the Plan and Plan Supplement, including any amendments, modifications, or supplements thereto, shall be in form and substance reasonably acceptable to the Investors and shall not have been modified without the consent of the Investors (such consent not to have been unreasonably withheld in the case of a modification that is not adverse to the Investors);

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d. the Transaction Expenses (as defined and provided in the Securities Purchase Agreements), to the extent not previously paid, shall be paid concurrently with the Effective Date in Cash in accordance with the terms of the Securities Purchase Agreements as approved by the Securities Purchase Agreements Order;

e. the Commitment Fee shall be paid concurrently with the Effective Date to Liberty Harbor and Mount Kellett, as provided in the Securities Purchase Agreements;

f. the Debtors shall have obtained an Exit Facility on terms as provided in the Securities Purchase Agreements and the Plan, and on terms and conditions reasonably acceptable to the Investors, and all conditions precedent to the consummation of the Exit Facility shall have been waived or satisfied in accordance with the terms thereof and the closing of the Exit Facility shall occur concurrently with the Effective Date;

g. with respect to all actions, documents, Certificates, and agreements necessary to implement the Plan (a) all conditions precedent to such documents and agreements shall have been satisfied or waived pursuant to the terms of such documents or agreements, (b) such documents, Certificates and agreements shall have been tendered for delivery, (c) to the extent required, such documents, Certificates and agreements shall have been filed with and approved by any applicable Governmental Units in accordance with applicable laws, and (d) such actions, documents, Certificates and agreements shall have been effected or executed;

h. the Cash payable pursuant to Article III.C.1.b of the Plan shall be distributed on the Effective Date as provided herein;

i. all conditions to the effectiveness of the Securities Purchase Agreements shall have been satisfied or waived in accordance with the terms thereof; and

j. all other “Conditions to Investors’ Obligations at Closing” identified in section 5.1 of the Securities Purchase Agreements shall have been satisfied or waived by the Investors in accordance with the terms thereof.

2. Waiver of Conditions Precedent

Subject to the terms of the Securities Purchase Agreements, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) and the Investors may jointly waive any of the conditions to the Effective Date set forth in Article VI.O.1, other than the condition set forth in Article IX.A.8 of the Plan (unless consented to by the Consenting Noteholders in accordance with the Plan Support Agreement) at any time without any notice to other parties in interest and without any further notice to or action, order, or approval of the Bankruptcy Court, and without any formal action other than proceeding to confirm or consummate the Plan.

3. Effect of Non-Occurrence of Conditions to Consummation

If prior to Consummation, the Confirmation Order is vacated pursuant to a Final Order, then except as provided in any order of the Bankruptcy Court vacating the Confirmation Order, the Plan will be null and void in all respects, and nothing contained in the Plan or Disclosure Statement shall (a) constitute a waiver or release of any Claims, Interests, or Causes of Action, (b) prejudice in any manner the rights of any Debtor or any other Entity, or (c) constitute an admission, acknowledgment, offer, or undertaking of any sort by any Debtor or any other Entity.

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P. Retention of Jurisdiction

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:

a. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;

b. decide and resolve all matters related to the granting and denying, in whole or in part, of any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Plan; provided, however, that from and after the Effective Date, the payment of the fees and expenses of any professionals of the Reorganized Debtors shall be made in the ordinary course of business and shall not be subject to Bankruptcy Court review or approval;

c. resolve any matters related to Executory Contracts or Unexpired Leases, including: (1) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Cure or Claims arising therefrom, including pursuant to section 365 of the Bankruptcy Code; (2) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (3) the Reorganized Debtors’ amendment, modification, or supplement, after the Effective Date, pursuant to Article VI.K, of the list of Executory Contracts and Unexpired Leases to be assumed or rejected or otherwise; and (4) any dispute regarding whether a contract or lease is or was executory or expired;

d. ensure that distributions to holders of Allowed Claims are accomplished pursuant to the provisions of the Plan and adjudicate any and all disputes arising from or relating to distributions under the Plan;

e. adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated matters, and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective Date;

f. adjudicate, decide, or resolve any and all matters related to Causes of Action of the Debtors or brought by or against the Reorganized Debtors;

g. adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;

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h. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan, the Plan Supplement or the Disclosure Statement;

i. enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code;

j. grant any consensual request to extend the deadline for assuming or rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code;

k. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;

l. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of all contracts, instruments, releases, indentures, and other agreements or documents approved by Final Order in the Chapter 11 Cases;

m. issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of the Plan;

n. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, exculpation, injunctions, and other provisions contained in Article VI.N above and enter such orders as may be necessary or appropriate to implement such releases, exculpation, injunctions, and other provisions;

o. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the holder of a Claim for amounts not timely repaid pursuant to Article VII.D.1 of the Plan;

p. enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;

q. determine any other matters that may arise in connection with or relate to the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Plan or the Disclosure Statement;

r. enter an order or Final Decree concluding or closing the Chapter 11 Cases;

s. consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;

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t. determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;

u. hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Plan;

v. hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;

w. hear and determine all disputes involving the existence, nature, or scope of the Debtors’ discharge, including any dispute relating to any liability arising out of the termination of employment or the termination of any employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective Date;

x. hear and determine matters related to the Securities Purchase Agreements and related agreements;

y. except as otherwise limited herein, recover all assets of the Debtors and property of the Estates, wherever located;

z. enforce all orders previously entered by the Bankruptcy Court; and

aa. hear any other matter not inconsistent with the Bankruptcy Code.

Q. Miscellaneous Provisions

1. No Stay of Confirmation Order

The Confirmation Order shall contain a waiver of any stay of enforcement otherwise applicable, including pursuant to Bankruptcy Rules 3020(e), 6004(h), 6006(d) and 7062.

2. Modification of Plan

Subject to the limitations contained in the Plan and the terms and conditions of the Securities Purchase Agreements: (1) the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan prior to the entry of the Confirmation Order, including amendments or modifications to satisfy section 1129(b) of the Bankruptcy Code; and (2) after the entry of the Confirmation Order, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) or the Reorganized Debtors, as the case may be, may, upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan.

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3. Revocation or Withdrawal of Plan

The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right, subject to, and in accordance with, the terms and conditions of each of the Securities Purchase Agreements and the Securities Purchase Agreements Order, to revoke or withdraw the Plan before the Confirmation Date and to file subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if Confirmation, Consummation or the Effective Date does not occur, then (1) the Plan shall be null and void in all respects, (2) any settlement or compromise embodied in the Plan, assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant hereto will be null and void in all respects, and (3) nothing contained in the Plan shall (a) constitute a waiver or release of any Claims, Interests, or Causes of Action, (b) prejudice in any manner the rights of any Debtor or any other Entity, or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by any Debtor or any other Entity.

4. Confirmation of the Plan

The Debtors request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with respect to any Impaired Class that does not accept the Plan pursuant to section 1126 of the Bankruptcy Code. The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) reserve the right to amend the Plan to the extent, if any, that Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification.

5. Additional Documents

On or before the Effective Date and subject to the terms and conditions of the Securities Purchase Agreements, the Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), with the consent of the Investors (such consent shall not be unreasonably withheld or delayed), may file with the Bankruptcy Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and the Securities Purchase Agreements. The Debtors (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), with the consent of the Investors (such consent shall not be unreasonably withheld or delayed), or the Reorganized Debtors, as applicable, and all holders of Claims receiving distributions pursuant to the Plan and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan and the Securities Purchase Agreements.

6. Payment of Statutory Fees

All fees payable pursuant to 28 U.S.C. §1930(a), as determined by the Bankruptcy Court at a hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid for each quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first.

7. Dissolution of Creditors’ Committee

On the Effective Date, the Creditors’ Committee shall dissolve automatically, and its members shall be released and discharged from all rights, duties, responsibilities, and liabilities arising from, or related to, the Chapter 11 Cases; provided, however, that the Creditors’ Committee shall be deemed to remain in existence solely with respect to the final fee applications filed in connection with Article II.B. of the Plan and the Creditors’ Committee shall have the right to be heard on all issues relating to such final fee applications.

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8. Reservation of Rights

Except as expressly set forth in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order. None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by any Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to the holders of Claims or Interests prior to the Effective Date.

9. Successors and Assigns

The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.

10. Service of Documents

After the Effective Date, any pleading, notice, or other document required by the Plan to be served on or delivered to the Reorganized Debtors shall be served on:

Debtors	Counsel to the Debtors
The Great Atlantic & Pacific Tea Company, Inc. 2 Paragon Drive Montvale, NJ 07645 Attn.:    Christopher W. McGarry, General               Counsel	Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 Attn.:   James H.M. Sprayregen, P.C.    Paul M. Basta, Esq.    Ray C. Schrock, Esq. Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attn.:    James J. Mazza, Jr., Esq.
Counsel to the Creditors’ Committee	Counsel to the Convertible Noteholders
Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, NY 10005 Attn.:    Dennis F. Dunne, Esq.               Matthew S. Barr, Esq.               Abhilash M. Raval, Esq.               Michael E. Comerford, Esq.	Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038 Attn.:   Kristopher M. Hansen, Esq.    Jayme T. Goldstein, Esq.
Counsel to the Second Lien Trustee	Counsel to DIP Facility Lenders
Brown Rudnick LLP 7 Times Square New York, NY 10036 Attn.:    Edward S. Weisfelner, Esq.               Daniel J. Saval, Esq.	Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 Attn.:    Donald S. Bernstein, Esq.               Marshall S. Huebner

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United States Trustee	Counsel to Yucaipa
Office of the United States Trustee U.S. Department of Justice 33 Whitehall Street, 21st Floor Attn.:    Susan Golden, Esq.               Richard Morrissey, Esq.	Latham & Watkins LLP 355 S. Grand Ave Los Angeles, CA 90071 Attn.:   Robert Klyman, Esq.

11. TERM OF INJUNCTIONS OR STAYS

UNLESS OTHERWISE PROVIDED IN THE PLAN OR IN THE CONFIRMATION ORDER, ALL INJUNCTIONS OR STAYS IN EFFECT IN THE CHAPTER 11 CASES PURSUANT TO SECTIONS 105 OR 362 OF THE BANKRUPTCY CODE OR ANY ORDER OF THE BANKRUPTCY COURT, AND EXISTING ON THE CONFIRMATION DATE (EXCLUDING ANY INJUNCTIONS OR STAYS CONTAINED IN THE PLAN OR THE CONFIRMATION ORDER) SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL THE EFFECTIVE DATE. ALL INJUNCTIONS OR STAYS CONTAINED IN THE PLAN OR THE CONFIRMATION ORDER SHALL REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR TERMS.

12. Entire Agreement

Except as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects (other than the Securities Purchase Agreements), all of which have become merged and integrated into the Plan.

Notwithstanding anything to the contrary in the Plan (including any amendments, supplements, or modifications to the Plan) or the Confirmation Order (and any amendments, supplements, or modifications thereto) or an affirmative vote to accept the Plan submitted by any Investor, nothing contained in the Plan (including any amendments, supplements, or modifications thereto) shall diminish, reduce or negatively impact the rights of the Investors under the Securities Purchase Agreements.

13. Plan Supplement Exhibits

All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. After the exhibits and documents are filed, copies of such exhibits and documents shall be made available upon written request to the Debtors’ counsel at the address above or by downloading such exhibits and documents from http://www.kccllc.net/APTEA or the Bankruptcy Court’s website at www.nysb.uscourts.gov. Unless otherwise ordered by the Bankruptcy Court, to the extent any exhibit or document in the Plan Supplement is inconsistent with the terms of any part of the Plan that does not constitute the Plan Supplement, such part of the Plan that does not constitute the Plan Supplement shall control.

14. Severability

If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or

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provision shall then be applicable as altered or interpreted (subject to the reasonable consent of the Investors). Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation (subject to the reasonable consent of the Investors). The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is (1) valid and enforceable pursuant to its terms, (2) integral to the Plan and may not be deleted or modified without the Debtors’ consent (in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent), and the consent of the Investors, and (3) nonseverable and mutually dependent.

ARTICLE VII.

SECURITIES LAW MATTERS

A. Securities Issued in Reliance on Section 1145 of the Bankruptcy Code

The Replacement Second Lien Notes are being issued under Section 1145 of the Bankruptcy Code (“1145 Securities”).

As described in detail below, such securities will be “freely tradeable.”

Section 1145(a)(1) of the Bankruptcy Code exempts the offer and sale of securities under a plan of reorganization from registration under Section 5 of the Securities Act and state laws when such securities are to be exchanged for Claims or principally in exchange for Claims and partly for cash. In general, securities issued under section 1145 may be resold without registration unless the recipient is an “underwriter” with respect to those securities. Section 1145(b)(1) of the Bankruptcy Code defines an “underwriter” as any person who:

• purchases a claim against, an interest in, or a claim for an administrative expense against the debtor, if that purchase is with a view to distributing any security received in exchange for such a claim or interest;

• offers to sell securities offered under a plan of reorganization for the holders of those securities;

• offers to buy those securities from the holders of the securities, if the offer to buy is (i) with a view to distributing those securities; and (ii) under an agreement made in connection with the plan of reorganization, the completion of the plan of reorganization, or with the offer or sale of securities under the plan of reorganization; or

• is an issuer with respect to the securities, as the term “issuer” is defined in Section 2(a)(11) of the Securities Act.

To the extent that persons who receive Replacement Second Lien Notes are deemed to be “underwriters,” resales by those persons would not be exempted from registration under the Securities Act or other applicable law by section 1145 of the Bankruptcy Code. Those persons would, however, be permitted to sell Replacement Second Lien Notes without registration if they are able to comply with the provisions of Rule 144 or Rule 144A under the Securities Act, as described further below.

You should confer with your own legal advisors to help determine whether or not you are an “underwriter.”

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B. Securities Issued Pursuant to Exemptions Under the Securities Act of 1933, as Amended

The following securities are being issued under Section 4(2) of Securities Act (collectively, the “4(2) Securities”):

• The NewCo Equity

• The New Second Lien Notes

• The New Convertible Third Lien Notes

• The Investment Warrants

Section 4(2) of the Securities Act provides that the issuance of securities by an issuer in transactions not involving any public offering is exempt from registration under the Securities Act. The term “issuer,” as used in section 4(2) of the Securities Act, means, among other things, a person who issues or proposes to issue any security.

Securities issued pursuant to the exemption provided by section 4(2) of the Securities Act are considered “restricted securities.” As a result, resales of such securities may not be exempt from the registration requirements of the Securities Act or other applicable law. Holders of such restricted securities may, however, be able, at a future time and under certain conditions described below, to sell securities without registration pursuant to the resale provisions of Rule 144 and Rule 144A under the Securities Act.

C. Resales of 1145 Securities and 4(2) Securities / Rule 144 and Rule 144A

To the extent that persons who receive 1145 Securities are deemed to be “underwriters” (collectively, the “Restricted 1145 Holders”), resales of such securities by Restricted 1145 Holders would not be exempted by section 1145 of the Bankruptcy Code from registration under the Securities Act or other applicable law. Restricted 1145 Holders would, however, be permitted to sell 1145 Securities without registration if they are able to comply with the applicable provisions of Rule 144 or Rule 144A under the Securities Act, as described further below, or if such securities are registered with the Securities and Exchange Commission. Any person who is an “underwriter” but not an “issuer” with respect to an issue of securities (other than a holder of “restricted securities”) is, in addition, entitled to engage in exempt “ordinary trading transactions” within the meaning of section 1145(b)(1) of the Bankruptcy Code.

To the extent that persons receive 4(2) Securities (collectively, the “Restricted 4(2) Holders” and together with the Restricted 1145 Holders, the “Restricted Holders”), such securities will be considered “restricted securities,” and Restricted 4(2) Holders are permitted to sell 4(2) Securities without registration if the applicable provisions of Rule 144 or Rule 144A under the Securities Act are complied with, as described further below, or if such securities are registered with the Securities and Exchange Commission.

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1. Rule 144

Under certain circumstances, Restricted Holders may be entitled to resell their securities pursuant to the limited safe harbor resale provisions of Rule 144. Generally, Rule 144 provides that if certain conditions are met (for example, the availability of current public information with respect to the issuer, and compliance with volume limitations, and notice and manner of sale requirements), specified persons who resell restricted securities, or who resell securities which are not restricted but who are “affiliates” of the issuer of the securities sought to be resold, will not be deemed to be “underwriters” as defined in section 2(11) of the Securities Act. Rule 144 provides that:

• a non-affiliate who has not been an affiliate during the preceding three months may resell restricted securities after a six-month holding period if at the time of the sale there is current public information regarding the issuer and after a one year holding period if there is not current public information regarding the issuer at the time of the sale; and

• an affiliate may sell restricted securities after a six month holding period if at the time of the sale there is current public information regarding the issuer and after a one-year holding period if there is not current public information regarding the issuer at the time of the sale, provided that in each case the affiliate otherwise complies with the volume, manner of sale and notice requirements of Rule 144.

As noted in this Disclosure Statement, it is not contemplated that the Debtors or the Reorganized Debtors will be a public reporting company and, therefore, it is not expected that current public information will be available to permit resales pursuant to Rule 144 during the one-year period following the Effective Date.

2. Rule 144A

Rule 144A provides a non-exclusive safe harbor exemption from the registration requirements of the Securities Act for resales to certain “qualified institutional buyers” of securities that are “restricted securities” within the meaning of the Securities Act, irrespective of whether the seller of such securities purchased its securities with a view towards reselling such securities, if certain other conditions are met (e.g., the availability of information required by paragraph 4(d) of Rule 144A and certain notice provisions). Under Rule 144A, a “qualified institutional buyer” is defined to include, among other persons “dealers” registered as such pursuant to section 15 of the Exchange Act, and entities that purchase securities for their own account or for the account of another qualified institutional buyer and that, in the aggregate, own and invest on a discretionary basis at least $100 million in the securities of unaffiliated issuers. Subject to certain qualifications, Rule 144A does not exempt the offer or sale of securities that, at the time of their issuance, were securities of the same class of securities then listed on a national securities exchange (registered as such pursuant to section 6 of the Exchange Act) or quoted in a United States automated inter-dealer quotation system).

WHETHER OR NOT ANY PARTICULAR PERSON WOULD BE DEEMED TO BE AN “UNDERWRITER” OF SECURITIES TO BE ISSUED PURSUANT TO THE PLAN OR AN “AFFILIATE” OF REORGANIZED DEBTORS WOULD DEPEND UPON VARIOUS FACTS AND CIRCUMSTANCES APPLICABLE TO THAT PERSON. ACCORDINGLY, THE DEBTORS AND REORGANIZED DEBTORS EXPRESS NO VIEW AS TO WHETHER ANY SUCH PERSON WOULD BE SUCH AN “UNDERWRITER” OR AN “AFFILIATE.” IN VIEW OF THE COMPLEX, SUBJECTIVE NATURE OF THE QUESTION OF WHETHER A PARTICULAR PERSON MAY BE AN UNDERWRITER OR AN AFFILIATE OF REORGANIZED DEBTORS THE DEBTORS AND REORGANIZED DEBTORS MAKE NO REPRESENTATIONS CONCERNING THE RIGHT OF ANY PERSON TO TRADE IN SECURITIES OF REORGANIZED DEBTORS. ACCORDINGLY, IT IS RECOMMENDED THAT POTENTIAL RECIPIENTS OF ANY SECURITIES TO BE ISSUED PURSUANT TO THE PLAN CONSULT THEIR OWN COUNSEL CONCERNING WHETHER THEY MAY FREELY TRADE SUCH SECURITIES.

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ARTICLE VIII.

STATUTORY REQUIREMENTS FOR CONFIRMATION OF THE PLAN

The following is a brief summary of the Confirmation process. Holders of Claims and Interests are encouraged to review the relevant provisions of the Bankruptcy Code and to consult with their own advisors.

A. The Confirmation Hearing

Section 1128(a) of the Bankruptcy Code provides that the Bankruptcy Court, after notice, may conduct the Confirmation Hearing to consider Confirmation of the Plan. Section 1128(b) of the Bankruptcy Code provides that any party in interest may object to Confirmation of the Plan.

B. Confirmation Standards

Among the requirements for the Confirmation of the Plan are that the Plan is accepted by all Impaired Classes of Claims and Interests, or if rejected by an Impaired Class, that the Plan “does not discriminate unfairly” and is “fair and equitable” as to such Class, is feasible, and is in the “best interests” of holders of Claims and Interests that are Impaired under the Plan. The following requirements must be satisfied pursuant to section 1129(a) of the Bankruptcy Code before the Bankruptcy Court may confirm a plan of reorganization. The Debtors believe that the Plan fully complies with the statutory requirements for Confirmation of the Plan listed below.

1. The proponents of the Plan have complied with the applicable provisions of the Bankruptcy Code.

2. The Plan has been proposed in good faith and not by any means forbidden by law.

3. Any payment made or to be made by the proponent, by the Debtors, or by a person issuing securities or acquiring property under a Plan, for services or for costs and expenses in or in connection with the Chapter 11 Cases, in connection with the Plan and incident to the Chapter 11 Cases, has been approved by, or is subject to the approval of, the Bankruptcy Court as reasonable.

4. The proponent of the Plan has disclosed the identity and affiliations of any individual proposed to serve, after Confirmation of the Plan, as a director, officer, or voting trustee of the Debtor, an Affiliate of the Debtor participating in a joint Plan with the Debtor or a successor to the Debtor under the Plan, and the appointment to, or continuance in, such office of such individual is consistent with the interests of Creditors and holders of Interests and with public policies.

5. The proponent of the Plan has disclosed the identity of any Insider that will be employed or retained by the Reorganized Debtors and the nature of any compensation for such Insider.

6. With respect to each holder within an Impaired Class of Claims or Interests, each such holder (a) has accepted the Plan, or (b) will receive or retain under the Plan on account of such Claim or Interest property of a value, as of the Effective Date of the Plan, that is not less than the amount that such holder would so receive or retain if the Debtor were liquidated under chapter 7 of the Bankruptcy Code on such date.

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7. With respect to each Class of Claims or Interests, such Class (a) has accepted the Plan, or (b) is Unimpaired under the Plan (subject to the “cram-down” provisions discussed below).

8. Except to the extent that the holder of a particular Claim has agreed to a different treatment of such Claim, the Plan provides that:

• with respect to a Claim of a kind specified in sections 507(a)(2) or 507(a)(3) of the Bankruptcy Code, on the Effective Date of the Plan, the holder of the Claim will receive on account of such Claim Cash equal to the Allowed amount of such Claim, unless otherwise agreed;

• with respect to a Class of Claim of the kind specified in sections 507(a)(1), 507(a)(4), 507(a)(5), 507(a)(6), or 507(a)(7) of the Bankruptcy Code, each holder of a Claim of such Class will receive (a) if such Class has accepted the Plan, deferred Cash payments of a value, on the Effective Date of the Plan, equal to the Allowed amount of such Claim; or (b) if such Class has not accepted the Plan, Cash on the Effective Date of the Plan equal to the Allowed amount of such Claim; and

• with respect to a priority tax claim of a kind specified in section 507(a)(8) of the Bankruptcy Code, the holder of such Claim will receive on account of such Claim deferred Cash payments, over a period not exceeding six years after the date of assessment of such Claim, of a value, as of the Effective Date of the Plan, equal to the Allowed amount of such Claim.

9. If a Class of Claims is Impaired under the Plan, at least one Class of Claims that is Impaired under the Plan has accepted the Plan, determined without including any acceptance of the Plan by any Insider.

10. Confirmation of the Plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the Debtor or any successor to the Debtor under the Plan, unless such liquidation or reorganization is proposed in the Plan.

11. All fees payable under 28 U.S.C. § 1930, as determined by the Bankruptcy Court at the hearing on Confirmation of the Plan, have been paid or the Plan provides for the payment of all such fees on the Effective Date of the Plan.

C. Liquidation Analysis

As described in greater detail in the Liquidation Analysis attached hereto as Exhibit D, in a hypothetical case under chapter 7 of the Bankruptcy Code, Holders of Allowed Administrative Claims would not be paid in full and Holders of Allowed Unsecured Claims would not receive any recovery. By comparison, under the Plan, Holders of Allowed Administrative Claims are paid in full in Cash, Holders of Allowed General Unsecured Claims receive their Pro Rata share of the Unsecured Creditor Cash Pool, Holders of Allowed Trade Claims who enter into a trade agreement acceptable to the Debtors and the Investors (and in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent) prior to the Effective Date may receive a portion of the Trade Claims Cash Pool, and Holders of Allowed Guaranteed Landlord Claims who vote in favor of the Plan and Holders of Allowed Pension Withdrawal Claims who vote in favor of the Plan, with the consent of the Investors (such consent shall not be unreasonably withheld or delayed in the case of a designation or distribution decision by the Debtors or Reorganized Debtors that is not adverse to the Investors), in consultation with the Creditors’ Committee and the DIP Facility Administrative Agent, will receive an additional distribution pursuant to the Substantive Consolidation Settlement. Therefore, the Debtors believe that the Plan satisfies the “best interests test” under section 1129(a)(7) of the Bankruptcy Code.

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The Liquidation Analysis was prepared in a manner consistent with the settlement and compromise of issues related to substantive consolidation set forth in the Plan and as discussed herein. Even if a deconsolidated chapter 7 liquidation were possible, and the Debtors do not believe it would be possible, the Debtors believe that unsecured creditor recoveries in a liquidation under chapter 7 of the Bankruptcy Code would not exceed recoveries provided to prepetition unsecured creditors pursuant to the Plan in any reasonable scenario.

D. Investment Analysis

The Plan and the Securities Purchase Agreements represent the culmination of several months of negotiations concerning capital investments in the Debtors. Throughout the process, the Debtors and their advisors have responded to all inbound investment inquiries.

Pursuant to the Plan, the Investors are providing a total New Money Commitment of $490 million in the form of (i) $210 million face amount privately placed New Second Lien Notes, (ii) $210 million face amount privately placed New Convertible Third Lien Notes, and (iii) an $80 million New Equity Investment.

The Debtors and Lazard believe the new capital infusion and post-reorganization capital structure proposed pursuant to the Plan is currently the best measure of the Debtors’ value in light of, among other things, (a) the Debtors’ and their advisors’ belief that a substantial capital infusion is necessary for the Debtors to reorganize and the Securities Purchase Agreements underlying the Plan provide for that necessary capital, (b) the robust and comprehensive negotiations that culminated in the Securities Purchase Agreements through which the Investors will provide the capital necessary to consummate the Plan and for the Debtors to reorganize, (c) the Court’s approval of the Securities Purchase Agreements and the capital commitments contained therein, which are subject to in-bound higher or better offers and subject to the plan confirmation and disclosure statement requirements in the Bankruptcy Code, and (d) the Debtors received no viable inbound inquiries except from the Investors, which, given the high profile of the Debtors’ Chapter 11 Cases and the fact that the Debtors filed for bankruptcy protection in late 2010, make it unlikely that additional parties with serious interest in providing the Debtors with the needed level of capital will emerge. In particular, pursuant to the Securities Purchase Agreements, the Debtors can continue to negotiate with parties who want to invest and make an offer. Further, the Creditors’ Committee and other parties are free to test the market for higher or better investment offers.

Lazard’s views as to the value of the Reorganized Debtors based on the capital to be provided pursuant to the Securities Purchase Agreements and the post-reorganization capital structure do not constitute a recommendation to any Holder of Claims against the Debtors as to how to vote on the Plan and do not constitute an opinion as to the fairness from a financial point of view of the consideration to be received under the Plan or of the terms and provisions of the Plan.

E. Financial Feasibility

Section 1129(a)(11) of the Bankruptcy Code requires that a debtor demonstrate that confirmation of a plan is not likely to be followed by liquidation or the need for further financial reorganization. For purposes of determining whether the Plan meets this requirement, the Debtors have analyzed their ability to meet their obligations under the Plan. As part of this analysis, the Debtors have prepared certain

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Financial Projections, which reflect the proposed effect of the Union Settlement Agreements. These Financial Projections and the assumptions upon which they are based, are attached hereto as Exhibit C. Based on these Financial Projections, the Debtors believe that given the deleveraging contemplated by the Plan, they will be able to make all payments required pursuant to the Plan and, therefore, that Confirmation of the Plan is not likely to be followed by liquidation or the need for further reorganization.

F. Acceptance by Impaired Classes

The Bankruptcy Code also requires, as a condition to Confirmation, that each Class of Claims or Interests that is Impaired but still receives distributions under the Plan vote to accept the Plan, unless the Debtors can “cram-down” such Classes, as described below. A Class that is Unimpaired is presumed to have accepted the Plan and, therefore, solicitation of acceptances with respect to such Class is not required. A Class is Impaired unless the Plan leaves unaltered the legal, equitable, and contractual rights to which the Claim or Interest entitles the holder of such Claim or Interest to, or the Debtors cure any default and Reinstate the original terms of the obligation.

Pursuant to sections 1126(c) and 1126(d) of the Bankruptcy Code and except as otherwise provided in section 1126(e) of the Bankruptcy Code: (1) an Impaired Class of Claims has accepted the Plan if the holders of at least two-thirds in dollar amount and more than half in number of the voting Allowed Claims have voted to accept the Plan and (2) an Impaired Class of Interests has accepted the Plan if the holders of at least two-thirds in amount of the Allowed Interests of such Class actually voting have voted to accept the plan.

G. Confirmation Without Acceptance by All Impaired Classes

Section 1129(b) of the Bankruptcy Code allows the Bankruptcy Court to confirm the Plan, even if the Plan has not been accepted by all Impaired Classes entitled to vote on the Plan, so long as the Plan has been accepted by at least one Impaired Class, excluding any Insider Classes, entitled to vote. Section 1129(b) of the Bankruptcy Code permits the Debtors to confirm the Plan, notwithstanding the failure of any Impaired Class to accept the Plan, in a procedure commonly known as “cram-down,” so long as the Plan does not “discriminate unfairly” and is “fair and equitable” with respect to each impaired Class of Claims or Interests that voted to reject the plan.

1. No Unfair Discrimination

The test to determine whether the Plan unfairly discriminates applies to Classes of Claims or Interests that are of equal priority and are receiving different treatment under the Plan. The test does not require that the treatment be the same or equivalent, but that such treatment be “fair.”

The Debtors do not believe the Plan discriminates unfairly against any Impaired Class of Claims or Interests. The Debtors believe the Plan and the treatment of all Classes of Claims and Interests under the Plan satisfies the foregoing requirements for nonconsensual Confirmation.

2. Fair and Equitable Treatment

The test to determine whether the Plan affords fair and equitable treatment applies to Classes of different priority and status (e.g., Secured Claims versus General Unsecured Claims) and includes the general requirement that no Class of Claims receive more than 100% of the amount of the Allowed Claims in such Class. As to a dissenting Class, the test sets different standards depending on the type of Claims or Interests in such Class. Specifically, in order to demonstrate that the Plan is fair and equitable, the Debtors must demonstrate that:

• Each holder of a Secured Claim either (a) retains its Liens on the property, to the extent of the Allowed amount of its Secured Claim and receives deferred Cash payments having a value, as of the effective date of the chapter 11 plan, of at least the Allowed amount of such Claim, (b) has the right to credit bid the amount of its Claim if its property is sold and retains its Liens on the proceeds of the sale (or if sold, on the proceeds thereof), or (c) receives the “indubitable equivalent” of its Allowed Secured Claim.

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• Either (a) each holder of an Impaired General Unsecured Claim receives or retains under the Plan property of a value equal to the amount of its Allowed Claim or (b) the holders of Claims and Interests that are junior to the Claims of the rejecting Classes will not receive any property under the Plan.

• Either (a) each holder of an Interest will receive or retain under the Plan property of a value equal to the greatest of the fixed liquidation preference to which such holder is entitled, the fixed redemption price to which such holder is entitled, or the value of the Interest or (b) the holder of an Interest that is junior to the rejecting Class will not receive or retain any property under the Plan.

The Debtors believe the Plan satisfies the “fair and equitable” requirement notwithstanding that Classes L, M, N and O are not receiving a distribution because there is no Class of equal priority receiving more favorable treatment and no junior Classes to Classes L, M, N and O that will receive or retain any property on account of the Claims or Interests in such Class.

ARTICLE IX.

PLAN-RELATED RISK FACTORS AND ALTERNATIVES

TO CONFIRMATION AND CONSUMMATION OF THE PLAN

PRIOR TO VOTING TO ACCEPT OR REJECT THE PLAN, ALL HOLDERS OF CLAIMS THAT ARE ENTITLED TO VOTE ON THE PLAN SHOULD READ AND CONSIDER CAREFULLY THE FACTORS SET FORTH IN THIS ARTICLE IX AS WELL AS ALL OTHER INFORMATION SET FORTH OR OTHERWISE REFERENCED IN THIS DISCLOSURE STATEMENT.

A. General

The following provides a summary of important considerations and risk factors associated with the Plan. However, it is not exhaustive. In considering whether to vote for or against the Plan, holders of Claims and Interests that are Impaired and entitled to vote should read and carefully consider the factors set forth below, as well as all other information set forth or otherwise referenced or incorporated by reference in this Disclosure Statement, including the various risks and other factors described in A&P’s Annual Report on Form 10-K for the fiscal year ended February 26, 2011 the entirety of which is publicly available at the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system, located at http://www.sec.gov/edgar.shtml.

B. Certain Bankruptcy Law Considerations

1. Undue Delay in Confirmation May Significantly Disrupt the Operations of the Debtors

The continuation of the Chapter 11 Cases, particularly if the Plan is not approved or confirmed in the time frame currently contemplated, could adversely affect the Debtors’ operations and relationships with the Debtors’ customers, vendors, and employees. If Confirmation and Consummation do not occur

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expeditiously, the Chapter 11 Cases could result in, among other things, increased Administrative Claims or Professional Claims, and similar expenses. Prolonged Chapter 11 Cases may also make it more difficult to retain and attract management and other key personnel, and would require senior management to spend a significant amount of time and effort dealing with the Debtors’ financial reorganization instead of focusing on the operation of the Debtors’ business.

2. Debtors May Not Be Able to Secure Confirmation or Consummation of the Plan

Section 1129 of the Bankruptcy Code sets forth the requirements for Confirmation of a chapter 11 plan, and requires, among other things, a finding by the Bankruptcy Court that: (a) Confirmation of such plan is not likely to be followed by a liquidation or a need for further financial reorganization unless such liquidation or reorganization is contemplated by the plan; and (b) the value of distributions to non-accepting holders of Claims and Interests within a particular Class under such plan will not be less than the value of distributions such holders would receive if the debtors were liquidated under chapter 7 of the Bankruptcy Code.

Furthermore, under section 1129(b)(2)(A) of the Bankruptcy Code, the Plan must provide a Class of Secured Claims that votes to reject the Plan with: (a) retention of Liens securing the Secured Claim to the extent of the Allowed amount of such Claims, whether the property subject to those Liens is retained by the Debtor or transferred to another Entity, and deferred Cash payments having a present value, as of the Effective Date of the plan of reorganization, at least equal to the value of such holder’s interest in the Estate’s interest in such property; or (b) the realization of the “indubitable equivalent” of its Allowed Secured Claim; or (c) the sale, subject to section 363(k) of the Bankruptcy Code, of any property that is subject to the Liens securing the Claims included in the rejecting Class, free and clear of such Liens, with such Liens to attach to the proceeds of the sale and the treatment of such Liens on proceeds in accordance with clause (a) or (b) of this paragraph.

The Debtors, subject to the terms and conditions of the Plan, reserve the right to modify the terms and conditions of the Plan as necessary for Confirmation. Any such modifications could result in a less favorable treatment of any rejecting Class, as well as of any Classes junior to such rejecting Class, than the treatment currently provided in the Plan. Any less favorable treatment could include a distribution of property to the Class affected by the modification of a lesser value than currently provided in the Plan or no distribution of property whatsoever under the Plan.

3. Parties in Interest May Object to Classification of Claims and Interests

Section 1122 of the Bankruptcy Code provides that a plan of reorganization may place a Claim or an Interest in a particular Class only if such Claim or Interest is substantially similar to the other Claims or Interests in such Class. The Debtors believe that the classification of Claims and Interests under the Plan complies with the requirements set forth in the Bankruptcy Code because the Debtors created Classes of Claims and Interests, each encompassing Claims or Interests, as applicable, that are substantially similar to the other Claims and Interests in each such Class. Nevertheless, there can be no assurance that the Bankruptcy Court will reach the same conclusion.

4. Nonconsensual Confirmation

In the event that any Impaired Class of Claims or Interests does not accept a chapter 11 plan of reorganization, a Bankruptcy Court may nevertheless confirm such a plan at the proponent’s request if at least one Impaired Class has accepted the plan (with such acceptance being determined without including the vote of any Insider in such Class), and, as to each Impaired Class that has not accepted the Plan, the Bankruptcy Court determines that the Plan “does not discriminate unfairly” and is “fair and equitable”

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with respect to the rejecting Impaired Classes. In the event that any Impaired Class of Claims or Interests does not accept a chapter 11 plan of reorganization, the Debtors will request such nonconsensual Confirmation in accordance with section 1129(b) of the Bankruptcy Code. Nevertheless, there can be no assurance that the Bankruptcy Court will find the Plan meets the requirements of section 1129(b) of the Bankruptcy Code.

5. Debtors May Object to Claims Before or After the Effective Date

Except as otherwise provided in the Plan, the Debtors and the Reorganized Debtors reserve the right to object to the amount or priority status of any Claim under the Plan. The estimates set forth in this Disclosure Statement cannot be relied on by any holder of a Claim. Any holder of a Claim that is or becomes subject to an objection thus may not receive its expected share of the estimated distributions described in this Disclosure Statement.

6. Risk of Nonoccurrence of the Effective Date

Although the Debtors believe that the Effective Date may occur shortly after the Confirmation Date, there can be no assurance as to such timing, or as to whether the Effective Date will, in fact, occur.

C. Risk Factors That May Affect the Value of the Securities to Be Issued Under the Plan

1. Debtors Cannot Guarantee What Recovery Will Be Available to Holders of Allowed Claims in Voting Classes

No less than three unknown factors make certainty in Creditor recoveries impossible: (a) how much money will remain after paying all Allowed Claims that are senior to the Allowed Claims in Voting Classes or unclassified Allowed Claims; (b) the number or amount of Claims in Voting Classes that will ultimately be Allowed; and (c) the number or size of Claims senior to the Claims in the Voting Classes or unclassified Claims that will ultimately be Allowed.

2. Debtors Cannot Guarantee What Recovery Will Be Available to Holders of Allowed Second Lien Note Claims

Pursuant to Article III.C.1. of the Plan, Holders of Allowed Second Lien Note Claims, shall: (i) if Class A votes to accept the Plan or is presumed to have accepted the Plan, receive Cash distributed on the Effective Date in an amount equal to such Holder’s Pro Rata portion of the Second Lien Cash Pool; or (ii) if Class A votes to reject the Plan, at the holder’s election, receive (a) Cash distributed on the Effective Date in an amount equal to such holder’s Pro Rata portion of the Second Lien Cash Pool (without any reduction on account of the Allowed amount of any Second Lien Note Claims that are satisfied with Replacement Second Lien Notes), or (b) Replacement Second Lien Notes with a present value equal to the Allowed amount of such holder’s Second Lien Note Claim (which may include any makewhole claim, prepayment penalty, or Applicable Premium Allowed by the Bankruptcy Court, if any, in addition to Second Lien Note Claims Allowed pursuant to Article III.C.1.b of the Plan).

To the extent Class A votes to reject the Plan, the Debtors cannot guarantee what recovery will be available to holders of Allowed Second Lien Note Claims who elect to receive Replacement Second Lien Notes.

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3. As a Result of Approval and Implementation of the Plan, Certain Changes in Ownership of A&P Could Occur, Which Could Adversely Affect the Debtors’ Ability to Utilize Significant Net Operating Loss Carry-Forwards Upon Emergence From Chapter 11

There are certain tax attributes, such as net operating loss carry-forwards, that may be limited or lost altogether in the event of an ownership change as defined under Section 382 of the Internal Revenue Code. If a change of ownership were to occur as a result of the implementation of the Plan, upon our emergence from chapter 11 there could be significant valuation allowances placed on deferred tax assets.

4. The Reorganized Debtors May Not Achieve Projected Financial Results or Meet Post-Reorganization Debt Obligations and Finance All Operating Expenses, Working Capital Needs, and Capital Expenditures

The Reorganized Debtors may not be able to meet their projected financial results. To the extent the Reorganized Debtors do not meet their projected financial results or achieve projected revenues and cash flows, the Reorganized Debtors may lack sufficient liquidity to continue operating as planned after the Effective Date, may be unable to service their debt obligations as they come due or may not be able to meet their operational needs. Any one of these failures may preclude the Reorganized Debtors from, among other things: (a) enhancing their current customer offerings; (b) taking advantage of future opportunities; (c) growing their business; or (d) responding to competitive pressures. Further, a failure of the Reorganized Debtors to meet their projected financial results or achieve their projected revenues and cash flows could lead to cash flow and working capital constraints, which constraints may require the Reorganized Debtors to seek additional working capital. The Reorganized Debtors may not be able to obtain such working capital when it is required. Further, even if the Reorganized Debtors were able to obtain additional working capital, it may only be available on unreasonable terms. For example, the Reorganized Debtors may be required to take on additional debt, the interest costs of which could adversely affect the results of the operations and financial condition of the Reorganized Debtors. If any such required capital is obtained in the form of equity, the interests of the holders of the then-outstanding Newco Equity (and options or other rights to acquire Newco Equity) could be diluted. While the Debtors’ Financial Projections represent management’s view based on current known facts and assumptions about the future operations of the Reorganized Debtors, there is no guarantee that the Financial Projections will be realized.

5. Estimated Valuation of the Reorganized Debtors and the NewCo Equity and the Estimated Recoveries to Holders of Allowed Claims Are Not Intended to Represent the Private Sale Values of the NewCo Equity

The Debtors’ estimated recoveries to holders of Allowed Claims are not intended to represent the private sale values of the Reorganized Debtors’ securities. The estimated recoveries are based on numerous assumptions (the realization of many of which is beyond the control of the Reorganized Debtors), including, without limitation: (a) the successful reorganization of the Debtors; (b) an assumed date for the occurrence of the Effective Date; (c) the Debtors’ ability to achieve the operating and financial results included in the Financial Projections; (d) the Debtors’ ability to maintain adequate liquidity to fund operations; and (e) the assumption that capital and equity markets remain consistent with current conditions.

6. The Reorganized Debtors May Be Controlled By a Small Number of Holders

Consummation of the Plan may result in a small number of holders owning a significant percentage of the outstanding shares of Newco Equity. These holders may, among other things, exercise a controlling influence over the business and affairs of the Reorganized Debtors and have the power to

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elect directors and approve significant mergers, acquisitions, divestures, and other material corporate transactions, including the sale of the Reorganized Debtors. The Debtors can make no assurances regarding the future actions of the holders of Newco Equity and the impact such actions may have on the value of the Newco Equity.

7. Certain Tax Implications of the Debtors’ Bankruptcy and Reorganization May Increase the Tax Liability of the Reorganized Debtors

Holders of Allowed Claims should carefully review Article X herein, “Certain Federal Income Tax Consequences,” to determine how the tax implications of the Plan and these Chapter 11 Cases may adversely affect the Reorganized Debtors.

8. Impact of Interest Rates

Changes in interest rates and foreign exchange rates may affect the fair market value of the Debtors’ assets. Specifically, decreases in interest rates will positively impact the value of the Debtors’ assets and the strengthening of the dollar will negatively impact the value of their net foreign assets.

D. Risk Factors That Could Negatively Impact the Debtors’ Business

1. The Debtors Are Subject to the Risks and Uncertainties Associated with the Chapter 11 Cases

For the duration of the Chapter 11 Cases, the Debtors’ operations and the Debtors’ ability to execute their business strategy will be subject to the risks and uncertainties associated with bankruptcy. These risks include:

• the Debtors’ ability to obtain approval of the Bankruptcy Court with respect to motions filed in the Chapter 11 Cases from time to time;

• the Debtors’ ability to sell and/or assign, assume or reject commercial leases and executor contracts;

• the Debtors’ ability to obtain and maintain normal trade terms with suppliers and service providers and maintain contracts that are critical to their operations;

• the Debtors’ ability to favorably negotiate approximately 34 CBAs with local unions;

• the Debtors’ ability to attract, motivate, and retain key employees;

• the Debtors’ ability to attract and retain customers;

• the Debtors’ ability to fund and execute their business plan; and

• the Debtors’ ability to obtain Creditor and Bankruptcy Court approval for, and then to consummate, a Plan to emerge from bankruptcy.

The Debtors will also be subject to risks and uncertainties with respect to the actions and decisions of the Creditors and other third parties who have interests in the Chapter 11 Cases that may be inconsistent with the Debtors’ restructuring and business goals.

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These risks and uncertainties could affect the Debtors’ business and operations in various ways. For example, negative events or publicity associated with the Chapter 11 Cases could adversely affect the Debtors’ sales and relationships with their customers, as well as with their suppliers and employees, which in turn could adversely affect the Debtors’ operations and financial condition. In addition, pursuant to the Bankruptcy Code, the Debtors need approval of the Bankruptcy Court for transactions outside the ordinary course of business, which may limit their ability to respond timely to certain events or take advantage of certain opportunities. Because of the risks and uncertainties associated with the Chapter 11 Cases, the Debtors cannot predict or quantify the ultimate impact that events occurring during the reorganization process will have on their business, financial condition, and results of operations.

As a result of the Chapter 11 Cases, the realization of assets and the satisfaction of liabilities are subject to uncertainty. While operating as debtors in possession, and subject to approval of the Bankruptcy Court, or otherwise as permitted in the normal course of business or Bankruptcy Court order, the Debtors may sell or otherwise dispose of assets and liquidate or settle liabilities for amounts other than those reflected in the condensed consolidated financial statements included in the Form 10-K for the year ended that February 26, 2011. Further, the Plan could materially change the amounts and classifications of assets and liabilities reported in the historical consolidated financial statements. The historical consolidated financial statements do not include any adjustments to the reported amounts of assets or liabilities that might be necessary as a result of Confirmation of a Plan.

2. Various Operating Factors and General Economic Conditions Affecting the Food Industry May Affect the Debtors’ Business and May Adversely Affect Ongoing Operating Results

The retail food and food distribution industries and the operation of A&P’s business, specifically in the New York, New Jersey and Philadelphia regions, are sensitive to a number of economic conditions and other factors such as: (a) food price deflation or inflation; (b) softness in local and national economies; (c) the availability of favorable credit and trade terms; (d) changes in business plans, operations, results and prospects; and (e) other economic conditions that may affect consumer buying habits. Any one or more of these economic conditions can affect the Debtors’ retail sales, the demand for products A&P distributes to their retail customers, operating costs and other aspects of our business. Failure to achieve sufficient levels of cash flow at reporting units could also result in additional impairment charges on goodwill, intangible assets and/or long-lived assets.

Changes in the general business and economic conditions in A&P’s markets, including the rate of inflation, population growth, the fluctuating prices of oil and gas, the nature and extent of continued consolidation in the food industry and the unemployment rate in the markets in which the Debtors’ operate, may negatively affect earnings and sales growth. General economic changes may also affect the shopping habits and buying patterns of the Debtors’ customers, which could affect sales and earnings.

The Debtors’ ability to achieve profitability may be affected by, among other things: (a) the Debtors’ success in executing their category management and purchasing programs, which are designed to improve gross margins and reduce product costs; (b) the effectiveness of efforts to improve value proposition for the Debtors’ customers through merchandising and marketing programs and to enhance customers’ experience in the Debtors’ stores; (c) the Debtors’ ability to achieve productivity improvements and reduce shrink in their stores; (d) the Debtors’ success in generating efficiencies in supporting activities; (e) the Debtors’ ability to eliminate or maintain a minimum level of supply and/or quality control problems with vendors; (f) the rebidding of the Debtors’ warehousing, logistics, procurement, and purchasing services; and (g) the results of negotiations with the Debtors’ union partners to alter existing CBAs.

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3. The Debtors Face a High Level of Competition, Including the Threat of Further Consolidation in the Food Industry, Which Could Adversely Affect the Debtors’ Sales and Future Profits

The retail food business is extremely competitive and is characterized by high inventory turnover and narrow profit margins. The retail food business is subject to competitive practices that may affect the prices at which the Debtors are able to sell products at retail locations, sales volume, and their ability to attract and retain customers. In addition, the nature and extent of consolidation in the retail food industry could affect the Debtors’ competitive position in the markets they serve.

The Debtors’ retail food business and the grocery retailing industry continue to experience aggressive competition from mass merchandisers, warehouse clubs, drug stores, convenience stores, discount merchandisers, dollar stores, restaurants, other retail chains, nontraditional competitors and emerging alternative formats in the markets where the Debtors have retail operations. Competition with these outlets is based on price, store location, advertising and promotion, product mix, quality and service. Some of these competitors may have greater financial resources, lower merchandise acquisition costs and lower operating expenses than the Debtors, and the Debtors may be unable to compete successfully in the future. Increasingly competitive markets have made it difficult generally for grocery store operators to achieve comparable store sales gains. Because sales growth has been difficult to attain, the Debtors’ competitors have attempted to maintain market share through increased levels of promotional activities and discount pricing, creating a more difficult environment in which to consistently increase year-over-year sales. Price-based competition has also, from time to time, adversely affected the Debtors’ operating margins. Competitors’ greater financial strengths enable them to participate in aggressive pricing strategies such as selling inventory below costs to drive overall increased sales. The Debtors’ continued success is dependent upon their ability to effectively compete in the food industry and to reduce operating expenses, including managing health care and pension costs contained in the Debtors’ CBAs. The competitive practices and pricing in the food industry generally and particularly in A&P’s principal markets may cause the Debtors to reduce their prices in order to gain or maintain market share of sales, thus reducing margins.

The Debtors’ in-store pharmacy business is also subject to intense competition. In particular, an adverse trend for drug retailing has been the significant growth in mail-order and Internet-based prescription processors, including importation from Canada and other countries. Due to the rapid rise in drug costs experienced in recent years, mail-order prescription distribution methods are perceived by employers and insurers as being less costly than traditional distribution methods and are being mandated by an increasing number of third party pharmacy benefit managers, many of which also own and manage mail-order distribution operations. As a result, some labor unions and employers are requiring, and others may encourage, that their members or employees obtain medications from mail-order pharmacies which offer drug prescriptions at prices that are lower than the Debtors are able to offer. In addition to these forms of mail-order distribution, there has also been increasing competition from a number of Internet-based prescription distributors, which specialize in offering certain high demand lifestyle drugs at deeply discounted prices, and importers from Canada and other foreign countries. These alternate distribution channels have acted to restrain the rate of sales growth for traditional chain drug retailers in the last few years. There can be no assurance that the Debtors’ efforts to offset the effects of alternate distribution channels and eligibility changes will be successful.

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4. The Debtors are Concentrated in the New York, New Jersey and Philadelphia Metropolitan Areas and, As a Result, Their Business is Significantly Influenced by the Economic Conditions and other Characteristics of these Areas

The Debtors are vulnerable to economic downturns in the New York, New Jersey and Philadelphia metropolitan areas, in addition to those that may affect the country as a whole, as well as other factors that may impact that region, such as the regulatory environment, the cost of real estate, insurance, taxes and rent, reliance on the financial industry, increasing unemployment, weather and natural catastrophes, demographics, the availability of labor, and geopolitical factors.

The Debtors cannot predict economic conditions in this region, and factors such as interest rates, energy costs and unemployment rates may adversely affect their sales which may lead to higher losses. Any unforeseen events or circumstances that affect the area could also materially adversely affect our revenues and profitability. Further, since the Debtors are concentrated in densely populated metropolitan areas, opportunities for future store expansion may be limited, which may adversely affect their business and results of operations.

5. The Debtors’ Vendors May Shorten Their Payment Terms, Which Would Impair Their Ability to Effectively Manage Their Cash Flow

The Debtors have negotiated payment terms with most of their vendors. However, there can be no assurance that the Debtors will be able to maintain such terms in the future.

6. The Debtors Rely on C&S for a Substantial Amount of Products

Pursuant to the terms of the New C&S Agreement, the Debtors currently acquire most of our saleable inventory, including groceries and perishables, from one supplier, C&S. During fiscal 2010, products supplied from C&S accounted for approximately 74% of A&P’s supermarket inventory purchases. Recently, the Debtors have experienced some difficulty in the supply of isolated products to certain stores and supply interruptions by C&S could occur in the future. Any significant interruption in this supply chain, either as a result of disruptions at C&S or if the New C&S Agreement were terminated for any reason, could have a material adverse effect on the Debtors’ business and results of operations. The Debtors are therefore subject to the risks of C&S’s business, including potential labor disruptions at C&S facilities, increased regulatory obligations and distribution problems which may affect C&S’s ability to obtain products. Further, C&S may terminate the New C&S Agreement if the Debtors fail to emerge from chapter 11 bankruptcy as an operating enterprise by June 12, 2012. In the event of disruptions to the supply chain, the Debtors believe that other suppliers could provide similar products on reasonable terms, but they are limited in number and a change in suppliers could cause a delay in distribution and a possible loss of sales, which would affect operating results adversely.

7. The Debtors May be Adversely Affected by Unexpected Changes in the Insurance Market or Changes in Factors Affecting Their Self-Insurance Reserve Estimates

The Debtors use a combination of self-insurance and insurance coverage to provide for the potential liabilities for general liability, property losses, fleet liability, workers’ compensation, employee benefits and directors and officers. There is no assurance that the Debtors will be able to continue to maintain their insurance coverage or obtain comparable coverage at a reasonable cost. Self-insurance reserves are determined based on actual claims experience and actuarially estimated claims incurred but not reported. Actuarial projections are subject to a high degree of variability, due to fluctuations in future interest and inflation rates, future economic conditions, litigation trends, benefit level changes, changes in state regulations, and changes in other factors. An increase in the frequency of claims, cost of claims or changes in actuarial assumptions could adversely affect the Debtors’ results of operations and financial condition.

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8. We May be Adversely Affected by Rising Utility and Fuel Costs

Rising fuel costs may adversely affect the Debtors’ operating costs since they incur the cost of fuel in connection with the transportation of goods from their warehouse and distribution facilities to their stores. In addition, operations at the Debtors’ stores are sensitive to rising utility fuel costs due to the amount of electricity and gas required to operate their stores. In the event of rising fuel costs, the Debtors may not be able to recover rising utility and fuel costs through increased prices charged to their customers. Oil prices directly affect the Debtors’ product transportation costs and fuel costs due to the amount of electricity and gas required to operate their stores as well as their utility and petroleum-based supply costs, including plastic bags.

9. The Debtors May be Affected by Loss of Consumer Confidence in their Food Supply Chain or the Quality and Safety of their Products

The Debtors could be adversely affected if consumers lose confidence in the safety and quality of the food supply chain. Adverse publicity about these concerns, whether or not ultimately based on fact, and whether or not involving products sold at our stores, could discourage consumers from buying the Debtors’ products. The real or perceived sale of contaminated food products by A&P could result in a loss of consumer confidence and product liability claims, which could have a material adverse effect on the Debtors’ sales and operations.

To the extent the Debtors are unable to maintain appropriate sanitation and quality standards in our stores, food safety and quality issues could involve expense and damage to the Debtors’ various brand names. Additionally, concerns about the safety or effectiveness of certain drugs or negative publicity surrounding certain categories of drugs may have a negative impact on pharmacy sales.

10. Threats or Potential Threats to Security of Food and Drug Safety May Adversely Affect the Debtors’ Business

Acts or threats of war or terror or other criminal activity directed at the grocery or drug store industry, the transportation industry, or computer or communications systems, whether or not directly involving the Debtors’ stores, could increase security costs, adversely affect operations, or impact general consumer behavior and spending as well as customer orders and the Debtors’ supply chain. Other events that give rise to actual or potential food contamination, drug contamination, or food-borne illnesses could have an adverse effect on operating results.

11. Various Aspects of the Debtors’ Business are Subject to Federal, State and Local Laws and Regulations. The Debtors’ Compliance with These Regulations May Require Additional Expenditures and Could Adversely Affect the Debtors’ Ability to Conduct Business as Planned. Changes in These Laws and Regulations Could Increase the Debtors’ Compliance Costs

The Debtors are subject to federal, state and local laws and regulations relating to zoning, land use, environmental protection, work place safety, public health, community right-to-know, beer and wine sales, pharmaceutical sales and gasoline station operations. A number of states and local jurisdictions regulate the licensing of supermarkets, including beer and wine license grants. In addition, under certain local regulations, we are prohibited from selling beer and wine in certain of our stores. Employers are also subject to laws governing their relationship with employees, including minimum wage requirements,

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overtime, working conditions, disabled access and work permit requirements. Compliance with these laws could reduce the revenue and profitability of the Debtors’ supermarkets and could otherwise adversely affect their business, financial condition or results of operations. In addition, any changes in these laws or regulations could significantly increase the Debtors’ compliance costs and adversely affect results of operations, financial condition and liquidity.

A number of federal state and local laws exist that impose burdens or restrictions on owners with respect to access by disabled persons. Our compliance with these laws may result in modifications to our properties, or prevent us from performing certain further renovations.

The Debtors’ pharmacy business is subject to certain government laws and regulations, including those administered and enforced by Medicare, Medicaid, the Drug Enforcement Administration (“DEA”), Consumer Product Safety Commission, U.S. Federal Trade Commission and Food and Drug Administration. For example, the conversion of various prescription drugs to over-the-counter medications may reduce the Debtors’ pharmacy sales, and if the rate at which new prescription drugs become available slows or if new prescription drugs that are introduced into the market fail to achieve popularity, the Debtors’ pharmacy sales may be adversely affected. The withdrawal of certain drugs from the market may also adversely affect the Debtors’ pharmacy business. Changes in third party reimbursement levels for prescription drugs, including changes in Medicare Part D or state Medicaid programs, could also reduce margins and have a material adverse effect on the Debtors’ business. In order to dispense controlled substances, the Debtors are required to register their pharmacies with the DEA and to comply with security, recordkeeping, inventory control and labeling standards.

In addition, the Debtors’ pharmacy business is subject to local regulations in the states where their pharmacies are located, applicable Medicare and Medicaid regulations and state and federal prohibitions against certain payments intended to induce referrals of patients or other health care business. Failure to properly adhere to these and other applicable regulations could result in the imposition of civil, administrative and criminal penalties including suspension of payments from government programs; loss of required government certifications; loss of authorizations to participate in, or exclusion from, government reimbursement programs such as Medicare and Medicaid; loss of licenses; significant fines or monetary penalties for anti-kickback law violations, submission of false claims or other failures to meet reimbursement program requirements and could adversely affect the continued operation of the Debtors’ business. The Debtors’ pharmacy business is also subject to the Health Insurance Portability and Accountability Act, including its obligations to protect the confidentiality of certain patient information and other obligations. Failure to properly adhere to these requirements could result in the imposition of civil as well as criminal penalties.

12. Certain Risks Are Inherent in Providing Pharmacy Services and the Debtors’ Insurance May Not Be Adequate to Cover All Claims Associated With Pharmacy Services

Pharmacies are exposed to risks inherent in the packaging and distribution of pharmaceuticals and other healthcare products. Although the Debtors maintain professional liability insurance and errors and omissions liability insurance, coverage limits under their insurance programs may not be adequate to protect against all future claims, or they may not be able to maintain this insurance on acceptable terms in the future. The Debtors’ results of operations, financial condition or cash flows may be adversely affected if in the future the insurance coverage proves to be inadequate or unavailable, or there is an increase in liability for which the Debtors self-insure, or suffer harm to their reputation as a result of an error or omission.

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13. Litigation, legal or Administrative Proceedings and Other Claims Could Expose the Debtors to Significant Liability

The Debtors, from time to time, are subject to various claims, administrative proceedings and litigation, which if determined adversely to them could negatively affect their financial results. The Debtors have estimated their exposure to claims, administrative proceedings and litigation and believe they have made adequate provisions for them, where appropriate. Unexpected outcomes in both the costs and effects of these matters could result in an adverse effect on the Debtors’ business and results of operation and earnings.

14. The Debtors are Affected By Increasing Labor, Benefit and Other Operating Costs and a Competitive Labor Market and are Subject to the Risks of Workforce Disruptions

The Debtors’ financial performance is greatly influenced by increasing wage and benefit costs, including pension and health care costs, a competitive labor market and the risk of labor disruption of our highly unionized workforce.

The Debtors have approximately 39,000 employees, of whom approximately 68% are employed on a part-time basis. Over the last few years, increased benefit costs have caused A&P’s labor costs to increase and may continue to do so. Any significant failure to attract and retain qualified employees, to control labor costs or to recover any increased labor costs through increased prices charged to customers could have a material adverse effect on the Debtors’ results of operations.

As of February 26, 2011, approximately 92% of the Debtors’ employees were represented by unions and covered by CBAs or similar agreements that are subject to periodic renegotiations. Although the Debtors believe that they have successfully negotiated new CBAs, these negotiations may not prove successful, may result in a significant increase in the cost of labor or may result in the disruption of the Debtors’ operations.

15. The Debtors Participate in Various Multiemployer Pension Plans for Substantially All Employees Represented by Unions

The Debtors will be required to make contributions to multiemployer pension plans in amounts established under CBAs. Pension expenses for these plans, which are recognized as contributions, are currently funded. Benefits generally are based on a fixed amount for each year of service. The Debtors contributed $56.6 million, $62.3 million and $48.2 million to multiemployer pension plans in fiscal 2010, fiscal 2009 and fiscal 2008, respectively. The Debtors could, under certain circumstances, be liable for unfunded vested benefits or other expenses of jointly administered union/management plans, which liabilities could be significant and material for the Debtors. To date, the Debtors have not established any liabilities for future withdrawals because such withdrawals from these plans are not probable and the amount cannot be estimated. As a result, the Debtors expect that contributions to these plans may increase. Additionally, the benefit levels and related items will be issues in the negotiation of future CBAs. Under current law, an employer that withdraws or partially withdraws from a multiemployer pension plan may incur withdrawal liability to the plan, which represents the portion of the plan’s underfunding that is allocable to the withdrawing employer under complex actuarial and allocation rules. The amount of any increase or decrease in the Debtors’ required contributions to these multiemployer pension plans will depend upon the outcome of collective bargaining, actions taken by trustees who manage the plans affecting the costs of future service benefits, government regulations and the actual return on assets held in the plans, among other factors.

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16. The Debtors May be Held Liable for Environmental Damages

The Debtors’ operations subject them to various laws and regulations relating to the protection of the environment, including those governing the management and disposal of hazardous materials and the cleanup of contaminated sites. Under some environmental laws, such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, also known as CERCLA or the Superfund law, and similar state statutes, responsibility for the entire cost of cleanup of a contaminated site can be imposed upon any current or former site owners or operators, or upon any party who sent waste to the site, regardless of the lawfulness of the original activities that led to the contamination. From time to time the Debtors have been named as one of many potentially responsible parties at Superfund sites, although their share of liability has typically been de minimis. Although the Debtors believe that they are currently in substantial compliance with applicable environmental requirements, future developments such as more aggressive enforcement policies, new laws or discoveries of unknown conditions may require expenditures that may have a material adverse effect on their business and financial condition.

17. The Debtors’ Ability to Effectively Operate Could be Hindered if They Fail to Attract and Retain Key Personnel

The Debtors’ ability to operate their business and implement their strategies effectively depends, in part, on the efforts of their executive officers and other key employees. In addition, the Debtors’ future success will depend on, among other factors, the ability to attract and retain qualified personnel, particularly engineers and other employees with critical expertise and skills that support key customers and products. The loss of the services of any key employees or the failure to attract or retain other qualified personnel could have a material adverse effect on the Debtors’ business.

E. Risks Associated with Forward Looking Statements

1. Financial Information Is Based on the Debtors’ Books and Records and, Unless Otherwise Stated, No Audit Was Performed

The financial information contained in this Disclosure Statement has not been audited. In preparing this Disclosure Statement, the Debtors relied on financial data derived from their books and records that was available at the time of such preparation. Although the Debtors have used their reasonable business judgment to ensure the accuracy of the financial information provided in this Disclosure Statement, and while the Debtors believe that such financial information fairly reflects, in all material respects, the financial results of the Debtors, the Debtors are unable to warrant or represent that the financial information contained herein and attached hereto is without inaccuracies.

2. Financial Projections and Other Forward Looking Statements Are Not Assured, Are Subject to Inherent Uncertainty Due to Numerous Assumptions Upon Which They Are Based and, as a Result, Actual Results May Vary

This Disclosure Statement contains various projections concerning the financial results of the Reorganized Debtors’ operations, including the Financial Projections that are, by their nature, forward looking, and which projections are necessarily based on certain assumptions and estimates. Should any or all of these assumptions or estimates ultimately prove to be incorrect, the actual future financial results of the Reorganized Debtors may turn out to be different from the Financial Projections. The Financial Projections do not reflect emergence adjustments, including the impact of “fresh start” accounting.

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Specifically, the projected financial results contained in this Disclosure Statement reflect numerous assumptions concerning the anticipated future performance of the Reorganized Debtors, some of which may not materialize.

Due to the inherent uncertainties associated with projecting financial results generally, the projections contained in this Disclosure Statement will not be considered assurances or guarantees of the amount of funds or the amount of Claims that may be Allowed in the various Classes. While the Debtors believe that the Financial Projections contained in this Disclosure Statement are reasonable, there can be no assurance that they will be realized.

F. Disclosure Statement Disclaimer

1. This Disclosure Statement Was Not Approved by the Securities and Exchange Commission

This Disclosure Statement was not filed with the Commission under the Securities Act or applicable state securities laws. Neither the Commission nor any state regulatory authority has passed upon the accuracy or adequacy of this Disclosure Statement, or the exhibits or the statements contained herein, and any representation to the contrary is unlawful.

2. Reliance on Exemptions from Registration Under the Securities Act

This Disclosure Statement has been prepared pursuant to section 1125 of the Bankruptcy Code and Rule 3016(b) of the Federal Rules of Bankruptcy Procedure and is not necessarily in accordance with federal or state securities laws or other similar laws. The offer of NewCo Equity to holders of certain Classes of Claims has not been registered under the Securities Act or similar state securities or “blue sky” laws. To the maximum extent permitted by section 1145 of the Bankruptcy Code, the Securities Act and other applicable non-bankruptcy law, the issuance of the New Debtors Common Stock (including the shares reserved for issuance under the Management Equity Incentive Program) will be exempt from registration under the Securities Act by virtue of Section 1145 of the Bankruptcy Code, section 4(2) of the Securities Act, or Regulation D promulgated thereunder, Rule 701 of the Securities Act or a “no sale” under the Securities Act as described herein.

3. This Disclosure Statement May Contain Forward Looking Statements

This Disclosure Statement may contain “forward looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements consist of any statement other than a recitation of historical fact and can be identified by the use of forward looking terminology such as “may,” “expect,” “anticipate,” “estimate,” or “continue” or the negative thereof or other variations thereon or comparable terminology. The reader is cautioned that all forward looking statements are necessarily speculative and there are certain risks and uncertainties that could cause actual events or results to differ materially from those referred to in such forward looking statements. The Liquidation Analyses, distribution projections, and other information contained herein and attached hereto are estimates only, and the timing and amount of actual distributions to holders of Allowed Claims may be affected by many factors that cannot be predicted. Therefore, any analyses, estimates, or recovery projections may or may not turn out to be accurate.

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4. No Legal or Tax Advice Is Provided to You by this Disclosure Statement

This Disclosure Statement is not legal advice to you. The contents of this Disclosure Statement should not be construed as legal, business or tax advice. Each holder of a Claim or an Interest should consult his or her own legal counsel and accountant with regard to any legal, tax and other matters concerning his or her Claim or Interest. This Disclosure Statement may not be relied upon for any purpose other than to determine how to vote on the Plan or object to Confirmation of the Plan.

5. No Admissions Made

The information and statements contained in this Disclosure Statement will neither (a) constitute an admission of any fact or liability by any Entity (including, without limitation, the Debtors) nor (b) be deemed evidence of the tax or other legal effects of the Plan on the Debtors, the Reorganized Debtors, holders of Allowed Claims or Interests, or any other parties in interest.

6. Failure to Identify Litigation Claims or Projected Objections

No reliance should be placed on the fact that a particular litigation Claim or projected objection to a particular Claim or Interest is, or is not, identified in this Disclosure Statement. The Debtors or the Reorganized Debtors may seek to investigate, file, and prosecute Claims and Interests and may object to Claims after the Confirmation or Effective Date of the Plan irrespective of whether this Disclosure Statement identifies such Claims or Objections to Claims.

7. No Waiver of Right to Object or Right to Recover Transfers and Assets

The vote by a holder of an Allowed Claim for or against the Plan does not constitute a waiver or release of any Claims or rights of the Debtors (or any party in interest, as the case may be) to object to that holder’s Allowed Claim, or recover any preferential, fraudulent or other voidable transfer or assets, regardless of whether any Claims or Causes of Action of the Debtors or their respective Estates are specifically or generally identified herein.

8. Information Was Provided by the Debtors and Was Relied Upon by the Debtors’ Advisors

Counsel to and other advisors retained by the Debtors have relied upon information provided by the Debtors in connection with the preparation of this Disclosure Statement. Although counsel to and other advisors retained by the Debtors have performed certain limited due diligence in connection with the preparation of this Disclosure Statement, they have not independently verified the information contained herein.

9. Potential Exists for Inaccuracies, and the Debtors Have No Duty to Update

The statements contained in this Disclosure Statement are made by the Debtors as of the date hereof, unless otherwise specified herein, and the delivery of this Disclosure Statement after that date does not imply that there has not been a change in the information set forth herein since that date. While the Debtors have used their reasonable business judgment to ensure the accuracy of all of the information provided in this Disclosure Statement and in the Plan, the Debtors nonetheless cannot, and do not, confirm the current accuracy of all statements appearing in this Disclosure Statement. Further, although the Debtors may subsequently update the information in this Disclosure Statement, the Debtors have no affirmative duty to do so unless ordered to do so by the Bankruptcy Court.

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10. No Representations Outside this Disclosure Statement Are Authorized

No representations concerning or relating to the Debtors, the Chapter 11 Cases, or the Plan are authorized by the Bankruptcy Court or the Bankruptcy Code, other than as set forth in this Disclosure Statement. Any representations or inducements made to secure your acceptance or rejection of the Plan that are other than as contained in, or included with, this Disclosure Statement, should not be relied upon by you in arriving at your decision. You should promptly report unauthorized representations or inducements to the counsel for the Debtors, the counsel for the Creditors Committee and the United States Trustee.

G. Liquidation Under Chapter 7

If no plan can be Confirmed, the Debtors’ Chapter 11 Cases may be converted to cases under chapter 7 of the Bankruptcy Code, pursuant to which a trustee would be elected or appointed to liquidate the assets of the Debtors for distribution in accordance with the priorities established by the Bankruptcy Code. A discussion of the effects that a chapter 7 liquidation would have on the recoveries of holders of Claims and the Debtors’ Liquidation Analyses is described herein and attached hereto as Exhibit D.

ARTICLE X.

CERTAIN FEDERAL INCOME TAX CONSEQUENCES

The following is a summary of certain United States federal income tax consequences of the Plan to the Debtors and certain holders of Claims. This summary is based on the Internal Revenue Code, Treasury Regulations thereunder (“Treasury Regulations”) and administrative and judicial interpretations and practice, all as in effect on the date of this Disclosure Statement and all of which are subject to change, with possible retroactive effect. Due to the lack of definitive judicial and administrative authority in a number of areas, substantial uncertainty may exist with respect to some of the tax consequences described below. No opinion of counsel has been obtained and the Debtors do not intend to seek a ruling from the Internal Revenue Service as to any of the tax consequences of the Plan discussed below. There can be no assurance that the Internal Revenue Service will not challenge one or more of the tax consequences of the Plan described below.

This summary does not apply to holders of Claims that are not United States Persons (as such term is defined in the Internal Revenue Code) or that are otherwise subject to special treatment under United States federal income tax law (including, without limitation, banks, governmental authorities or agencies, financial institutions, insurance companies, pass-through Entities, tax-exempt organizations, brokers and dealers in securities, mutual funds, small business investment companies, employees, persons who received their Claims or Interests pursuant to the exercise of an employee stock option or otherwise as compensation, persons holding Claims or Interests that are a hedge against, or that are hedged against, currency risk or that are part of a straddle, constructive sale, or conversion transaction and regulated investment companies). Moreover, this summary does not purport to cover all aspects of United States federal income taxation that may apply to the Debtors and holders of Allowed Claims based upon their particular circumstances. Additionally, this summary does not discuss any tax consequences that may arise under any laws other than United States federal income tax law, including under state, local or foreign tax law.

ACCORDINGLY, THE FOLLOWING SUMMARY OF CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR CAREFUL TAX PLANNING AND ADVICE BASED UPON THE INDIVIDUAL CIRCUMSTANCES PERTAINING TO A HOLDER OF A CLAIM. ALL HOLDERS OF CLAIMS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS FOR THE FEDERAL, STATE, LOCAL AND OTHER TAX CONSEQUENCES APPLICABLE UNDER THE PLAN.

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INTERNAL REVENUE SERVICE CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE INTERNAL REVENUE SERVICE, ANY TAX ADVICE CONTAINED IN THIS DISCLOSURE STATEMENT (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, BY ANY TAXPAYER FOR THE PURPOSE OF AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE. TAX ADVICE CONTAINED IN THIS DISCLOSURE STATEMENT (INCLUDING ANY ATTACHMENTS) IS WRITTEN TO SUPPORT THE PROMOTION AND MARKETING OF THE TRANSACTIONS OR MATTERS ADDRESSED BY THIS DISCLOSURE STATEMENT. EACH TAXPAYER SHOULD SEEK ADVICE BASED ON THE TAXPAYER’S PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.

A. Certain United States Federal Income Tax Consequences to the Reorganized Debtors

1. Cancellation of Debt and Reduction of Tax Attributes

In general, absent an exception, a debtor will realize and recognize cancellation of debt income (“CODI”) upon satisfaction of its outstanding indebtedness for total consideration less than the amount of such indebtedness. The amount of CODI, in general, is the excess of (a) the Adjusted Issue Price of the indebtedness satisfied, over (b) the sum of (i) the amount of cash paid, and (ii) the fair market value of any new consideration (including stock of the debtor) given in satisfaction of such indebtedness at the time of the exchange.

A debtor will not, however, be required to include any amount of CODI in gross income if the debtor is under the jurisdiction of a court in a case under chapter 11 of the Bankruptcy Code and the discharge of debt occurs pursuant to that proceeding. Instead, as a consequence of such exclusion, a debtor must reduce its tax attributes by the amount of CODI that it excluded from gross income pursuant to the rule discussed in the preceding sentence. In general, tax attributes will be reduced in the following order: (a) NOLs and NOL carryforwards; (b) general business and minimum tax credit carryovers; (c) capital loss carryovers; (d) tax basis in assets; and (e) foreign tax credit carryovers. A debtor with CODI may elect first to reduce the basis of its depreciable assets pursuant to section 108(b)(5) of the Internal Revenue Code. The reduction in tax attributes occurs only after the tax for the year of the debt discharge has been determined. Any excess CODI over the amount of available tax attributes is not subject to United States federal income tax and has no other United States federal income tax impact.

The Treasury Regulations address the method and order for applying tax attribute reduction to an affiliated group of corporations. Under these regulations, the tax attributes of each member of an affiliated group of corporations that is excluding CODI is first subject to reduction. To the extent the debtor member’s tax basis in stock of a lower tier member of the affiliated group is reduced, a “look through rule” requires that a corresponding reduction be made to the tax attributes of the lower tier member. If a debtor member’s excluded CODI exceeds its tax attributes, the excess CODI is applied to the reduction of certain remaining consolidated tax attributes of the affiliated group. Because the Plan provides for only partial Cash payment of certain Claims (those in Class A and Class E through Class L), the amount of CODI, and accordingly the amount of tax attributes required to be reduced, will depend on the Adjusted Issue Price of all such impaired Claims and the amount of Cash available for partial payment of such Claims. These values cannot be known with certainty until the Effective Date. However, as a result of Consummation, the Debtors expect that there could be material reductions in NOLs, NOL carryforwards, or other tax attributes.

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2. Limitation of NOL Carry Forwards and Other Tax Attributes

The Reorganized Debtors may have NOL carryovers and other tax attributes at emergence. The amount of such NOL carryovers and other tax attributes, such as tax basis, that will be available to the Reorganized Debtors at emergence is based on a number of factors and is impossible to calculate at this time. Some of the factors that will impact the amount of available NOLs include: (a) the amount of tax losses incurred by the Debtors in 2011; (b) the extent to which gain is recognized on any of the Debtors’ assets in connection with the preliminary asset transfer option under the Plan; and (c) the amount of CODI incurred by the Debtors in connection with Consummation. Some of the factors that will impact the amount of tax basis available to the Reorganized Debtors include: (a) the extent to which gain is recognized and tax basis increased on any of the Debtors’ assets in connection with the preliminary asset transfer option under the Plan and (b) the amount of CODI incurred by the Debtors in connection with Consummation. The Debtors anticipate that subsequent utilization of any losses and NOL carryovers remaining and possibly certain other tax attributes may be restricted as a result of and upon Consummation.

Following Consummation, the Debtors anticipate that any remaining NOL carryover, capital loss carryover, tax credit carryovers and, possibly, certain other tax attributes (such as losses and deductions that have accrued economically but are unrecognized as of the date of the ownership change) of the Reorganized Debtors allocable to periods prior to the Effective Date (collectively, the “Pre Change Losses”) may be subject to limitation under sections 382 and 383 of the Internal Revenue Code as a result of an “ownership change” of the Reorganized Debtors by reason of the transactions pursuant to the Plan.

Under sections 382 and 383 of the Internal Revenue Code, if a corporation undergoes an “ownership change,” the amount of its Pre Change Losses that may be utilized to offset future taxable income generally is subject to an annual limitation. As discussed in greater detail herein, the Debtors anticipate that the issuance of the NewCo Equity pursuant to the Plan will result in an “ownership change” of the Reorganized Debtors for these purposes, and that the Debtors’ use of their NOL carryovers and other Pre Change Losses will be subject to limitation unless an exception to the general rules of section 382 of the Internal Revenue Code applies.

3. General Section 382 Annual Limitation

In general, the annual limitation that applies to a corporation that undergoes an “ownership change” is equal to the product of (a) the fair market value of the corporation’s equity immediately before the “ownership change” (with certain adjustments) multiplied by (b) the “long term tax exempt rate.” Any unused limitation may be carried forward, thereby increasing the annual limitation in the subsequent taxable year.

4. Special Bankruptcy Exceptions

An exception to the foregoing annual limitation rules generally applies when so called “qualified creditors” of a debtor company in chapter 11 receive, in respect of their Claims, at least 50% of the vote and value of the stock of the reorganized debtor (or a controlling corporation if also in chapter 11) pursuant to a confirmed chapter 11 plan (the “382(l)(5) Exception”). Under the 382(l)(5) Exception, a debtor’s Pre Change Losses are not limited on an annual basis but, instead, are required to be reduced by the amount of any interest deductions claimed during the three taxable years preceding the effective date of the plan of reorganization, and during the part of the taxable year prior to and including the effective date of the plan of reorganization, in respect of all debt converted into stock in the reorganization. If the 382(l)(5) Exception applies and the Reorganized Debtors undergo another “ownership change” within two years after Consummation, then the Reorganized Debtors’ Pre Change Losses effectively would be eliminated in their entirety.

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Where the 382(l)(5) Exception is not applicable (either because the debtor does not qualify for it or the debtor otherwise elects not to utilize the 382(l)(5) Exception), a second special rule will generally apply (the “382(l)(6) Exception”). Under the 382(l)(6) Exception, the limitation will be calculated by reference to the lesser of the value of the Reorganized Debtor corporation’s new stock (with certain adjustments) immediately after the ownership change or the value of such debtor corporation’s assets (determined without regard to liabilities) immediately before the ownership change. The 382(l)(6) Exception differs from the ordinary rule that requires the fair market value of a debtor corporation that undergoes an “ownership change” to be determined before the events giving rise to the change. The 382(l)(6) Exception also differs from the 382(l)(5) Exception in that under it, the debtor corporation is not required to reduce its NOLs by the amount of interest deductions claimed within the prior three year period, and the debtor may undergo a change of ownership within two years without triggering the elimination of its NOLs.

While it is not certain, it is doubtful at this point that the Debtors will be eligible to utilize the 382(l)(5) Exception. In that case, the Debtors expect that their use of any remaining NOLs after the Effective Date will be subject to limitation based on the rules discussed above, but taking into account the 382(l)(6) Exception.

B. Certain United States Federal Income Tax Consequences to Holders of Claims

1. Consequences to Holders of Certain Claims

Holders of Class A Second Lien Note Claims, Class B Secured Tax Claims, Class C Other Secured Claims and Class D Other Priority Claims will either receive Cash or collateral in full payment of their Claims or have their Claims Reinstated and rendered unimpaired. Pursuant to the Plan, Holders of Class E, Class F, Class G, Class H, Class I, Class J, Class K, and Class L Claims will receive a partial Cash payment in exchange for their Claims. Holders of Class M, Class N, Class O, and Class P Claims will receive no recovery and their Claims will be cancelled. Thus, each Claim will either be extinguished and deemed satisfied in exchange for a full or partial payment of Cash or property (including zero recovery in the case of Class M, N, O, and P) or will be Reinstated in full.

A Holder who receives Cash or collateral in exchange for its Claim pursuant to the Plan generally will recognize income, gain, or loss for U.S. federal income tax purposes in an amount equal to the difference between (a) the amount of Cash (or the value of any collateral) received in exchange for its Claim and (b) the Holder’s adjusted tax basis in its Claim. The character of such gain or loss as capital gain or loss or as ordinary income or loss will be determined by a number of factors, including the tax status of the Holder, the nature of the Claim in such Holder’s hands, whether the Claim constitutes a capital asset in the hands of the Holder, whether the Claim was purchased at a discount and whether and to what extent the Holder has previously claimed a bad debt deduction with respect to its Claim. See the discussions of accrued interest and market discount below.

2. Accrued Interest

To the extent that any amount received by a Holder of a Claim is attributable to accrued but unpaid interest on the debt instruments constituting the surrendered Claim, the receipt of such amount should be taxable to the Holder as ordinary interest income (to the extent not already taken into income by the Holder). Conversely, a Holder of a Claim may be able to recognize a deductible loss (or, possibly, a write off against a reserve for worthless debts) to the extent that any accrued interest was previously included in the Holder’s gross income but was not paid in full by the Debtors. Such loss may be ordinary, but the tax law is unclear on this point.

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If the fair value of the consideration is not sufficient to fully satisfy all principal and interest on Allowed Claims, the extent to which such consideration will be attributable to accrued interest is unclear. Under the Plan, the aggregate consideration to be distributed to Holders of Allowed Claims in each Class will be allocated first to the principal amount of Allowed Claims, with any excess allocated to unpaid interest that accrued on such Claims, if any. Certain legislative history indicates that an allocation of consideration as between principal and interest provided in a chapter 11 plan of reorganization is binding for United States federal income tax purposes, while certain regulations treat payments as allocated first to any accrued but unpaid interest. The IRS could take the position that the consideration received by the Holder should be allocated in some way other than as provided in the Plan. Holders of Claims should consult their own tax advisors regarding the proper allocation of the consideration received by them under the Plan.

3. Market Discount

Under the “market discount” provisions of the Internal Revenue Code, some or all of any gain realized by a Holder of a Claim who exchanges the Claim for an amount on the Effective Date may be treated as ordinary income (instead of capital gain), to the extent of the amount of “market discount” on the debt instruments constituting the exchanged Claim. In general, a debt instrument is considered to have been acquired with “market discount” if it is acquired other than on original issue and if its Holder’s adjusted tax basis in the debt instrument is less than (a) the sum of all remaining payments to be made on the debt instrument, excluding “qualified stated interest” or (b) in the case of a debt instrument issued with original issue discount, its adjusted issue price, by at least a de minimis amount (equal to 0.25% of the sum of all remaining payments to be made on the debt instrument, excluding qualified stated interest, multiplied by the number of remaining whole years to maturity).

Any gain recognized by a Holder on the taxable disposition of a Claim that had been acquired with market discount should be treated as ordinary income to the extent of the market discount that accrued thereon while such Claim was considered to be held by the Holder (unless the Holder elected to include market discount in income as it accrued). To the extent that the Allowed Claims that were acquired with market discount are exchanged in a tax-free transaction for other property, any market discount that accrued on the Allowed Claims (i.e., up to the time of the exchange) but was not recognized by the Holder is carried over to the property received therefor and any gain recognized on the subsequent sale, exchange, redemption or other disposition of such property is treated as ordinary income to the extent of such accrued, but not recognized, market discount.

4. Limitations on Use of Capital Losses

A Holder of a Claim who recognizes capital losses as a result of the distributions under the Plan will be subject to limits on the use of such capital losses. For a non-corporate Holder, capital losses may be used to offset any capital gains (without regard to holding periods), and also ordinary income to the extent of the lesser of (a) $3,000 ($1,500 for married individuals filing separate returns) or (b) the excess of the capital losses over the capital gains. A non-corporate Holder may carry over unused capital losses and apply them against future capital gains and a portion of their ordinary income for an unlimited number of years. For corporate Holders, capital losses may only be used to offset capital gains. A corporate Holder that has more capital losses than may be used in a tax year may carry back unused capital losses to the three years preceding the capital loss year, but may carry over unused capital losses for the five years following the capital loss year.

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5. Information Reporting and Back-up Withholding

Payments in respect of Allowed Claims under the Plan may be subject to applicable information reporting and backup withholding (currently at a rate of 28%). Backup withholding of taxes will generally apply to Payments in respect of an Allowed Claim under the Plan if the Holder of such Allowed Claim fails to provide an accurate taxpayer identification number or otherwise fails to comply with the applicable requirements of the backup withholding rules.

Backup withholding is not an additional tax. Amounts withheld under the backup withholding rules may be credited against a Holder’s U.S. federal income tax liability, and a Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by filing an appropriate claim for refund with the IRS (generally, a federal income tax return).

THE FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN ARE COMPLEX. THE FOREGOING SUMMARY DOES NOT DISCUSS ALL ASPECTS OF FEDERAL INCOME TAXATION THAT MAY BE RELEVANT TO A PARTICULAR HOLDER IN LIGHT OF SUCH HOLDER’S CIRCUMSTANCES AND INCOME TAX SITUATION. ALL HOLDERS OF CLAIMS AND INTERESTS SHOULD CONSULT WITH THEIR TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE TRANSACTIONS CONTEMPLATED BY THE PLAN, INCLUDING THE APPLICABILITY AND EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS, AND OF ANY CHANGE IN APPLICABLE TAX LAWS.

ARTICLE XI.

RECOMMENDATION

The Debtors recommend the Plan because it provides for greater distributions to the holders of Claims and Interests than would otherwise result in a liquidation under chapter 7 of the Bankruptcy Code. In addition, any alternative other than Confirmation could result in extensive delays and increased administrative expenses resulting in smaller distributions to the holders of Claims. Accordingly, the Debtors recommend that holders of Claims and Interests entitled to vote on the Plan support Confirmation and vote to accept the Plan.

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Respectfully submitted,

	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
	(For itself and all other Debtors)
Montvale, New Jersey	By:	/s/ Frederic F. Brace
Dated: December 19, 2011	Name:	Frederic F. Brace
	Title:	Chief Financial Officer, Chief Administrative Officer, and Chief Restructuring Officer

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Exhibit A

Debtors’ Joint Plan of Reorganization Pursuant

to Chapter 11 of the United States Bankruptcy Code

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Exhibit B

Approved Disclosure Statement Order

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Exhibit C

The Reorganized Debtors’ Financial Projections

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Exhibit D

Liquidation Analysis

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Exhibit E

Debtors’ Prepetition Corporate Structure Chart

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