8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): August 4, 2009

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

(Exact name of registrant as specified in its charter)

Maryland	1-4141	13-1890974
(State or Other Jurisdiction	(Commission File Number)	(I.R.S. Employer
of Incorporation)		Identification No.)

Two Paragon Drive
Montvale, New Jersey 07645
(Address of principal executive offices)
(Zip Code)

(201) 573-9700
(Registrant’s telephone number,
including area code)

Not Applicable
(Former Name or Former Address, if Changed Since Last Report)

          Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS

EX-3.1

EX-4.1

EX-4.3

EX-10.1

EX-10.2

EX-10.3

EX-10.4

EX-10.5

EX-10.6

EX-99.1

          Section 1 — Registrant’s Business and Operations

Item 1.01. Entry into a Material Definitive Agreement.

Stockholder Agreements

          On August 4, 2009 (the “Closing Date”), the Company consummated the issuance and sale of 60,000 shares of 8.0% Cumulative Convertible Preferred Stock, Series A-T, without par value per share (the “Series A-T Preferred Stock”), to partners of Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”) for $60.0 million and the issuance and sale of 115,000 shares of 8.0% Cumulative Convertible Preferred Stock, Series A-Y, without par value per share (the “Series A-Y Preferred Stock” and together with the Series A-T Preferred Stock, the “Preferred Stock”), to affiliates of The Yucaipa Companies, LLC (“Yucaipa” and together with Tengelmann, the “Investors”) for $115.0 million. Tengelmann and certain affiliates of Yucaipa are existing stockholders of the Company and Tengelmann, the Company’s largest stockholder, is affiliated with the Company’s Executive Chairman, Christian Haub.

          In connection with the issuance and sale of the Series A-T Preferred Stock, the Company entered into an amended and restated stockholder agreement, dated August 4, 2009, by and between the Company and Tengelmann (the “Amended and Restated Tengelmann Stockholder Agreement”). In connection with the issue and sale of the Series A-Y Preferred Stock, the Company entered into an amended and restated stockholder agreement, dated August 4, 2009, by and among the Company, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I, LP, Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP and Yucaipa American Alliance Fund II, LLC, as Stockholder Representative (the “Amended and Restated Yucaipa Stockholder Agreement” and together with the Amended and Restated Tengelmann Stockholder Agreement, the “Stockholder Agreements”).

          Pursuant to their respective Stockholder Agreements, at any time that such Investor is not entitled to elect a director pursuant to the Articles Supplementary (as defined below), each of Tengelmann and Yucaipa are entitled to nominate directors for election by the stockholders to the Company’s Board of Directors. Pursuant to the Amended and Restated Yucaipa Stockholder Agreement, to the extent not already elected pursuant to the Articles Supplementary, Yucaipa is entitled to designate for nomination two directors for election by the stockholders to the Board of Directors so long as Yucaipa owns and has continuously owned since the Closing Date at least 20.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement). Yucaipa will have the right to designate for nomination one director for election by the stockholders to the Board of Directors, so long as Yucaipa owns and has continuously owned since the Closing Date at least 10.0% and less than 20.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement). Yucaipa’s right to designate directors for nomination to the Board of Directors will cease once the voting securities held by Yucaipa represent less than 10.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement). The Amended and Restated Tengelmann Stockholder Agreement provides that for so long as Tengelmann owns at least 10.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Tengelmann Stockholder Agreement), to the extent not already elected pursuant to the Articles Supplementary, Tengelmann will have the right to designate for nomination to the Company’s Board of Directors a number of directors in proportion to its percentage ownership of the Company (as calculated pursuant to the Amended and Restated Tengelmann Stockholder Agreement); provided, however, that so long as Yucaipa owns and has continuously owned since the Closing Date at least 20.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement), if Tengelmann’s percentage ownership of the Company would entitle Tengelmann to nominate five directors for nomination, Tengelmann only will be entitled to designate four directors for nomination. Tengelmann’s right to designate directors for nomination will cease once Tengelmann’s voting power in the Company (as calculated pursuant to the Amended and Restated Tengelmann Stockholder Agreement) is less than 10.0%. Directors elected in accordance with the Articles Supplementary or nominated by the Investors pursuant to their respective Stockholder Agreements have the right to serve on committees of the Board of Directors pursuant to the applicable Stockholder Agreements, so long as such services would not violate any law, the New York Stock Exchange (“NYSE”) Listed Company Manual or any comparable rule or regulation of the primary stock exchange or quotation system on which the Company’s common stock is listed or quoted. In addition, for so long as Yucaipa owns and has continuously owned since the Closing Date 10.0% or more of the voting power of the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement), it may designate a representative who will be permitted to attend all meetings of the Board of Directors as an observer, subject to certain limitations.

          If the Investors are entitled to designate nominees to the Board of Directors pursuant to their respective Stockholder Agreements, the Company shall include each of the Investors’ designees in management’s slate of nominees and recommend each such nominee for election to the Board of Directors. So long as any Preferred Stock is outstanding, the Investors, as

1

preferred stockholders, will be entitled to elect the number of directors set forth above to the Board of Directors of the Company. At any election of directors at a meeting of stockholders of the Company (until the third anniversary of the date of the Amended and Restated Yucaipa Stockholder Agreements with respect to Yucaipa), if the Company has nominated and recommended the nominees designated by the Investors as described above, each of the Investors must cause all voting securities held by the Investors to be present at such meeting and must vote for the other nominees in management’s slate in a manner identical to the manner in which all other holders of voting securities of the Company vote their securities (except with respect to the nominees designated by such Investor).

          The Stockholder Agreements and the By-Laws (defined below) provide that, so long as Tengelmann owns at least 25.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Tengelmann Agreement) and for so long as Yucaipa owns and has continuously owned since the Closing Date at least 17.8% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement), Tengelmann’s and Yucaipa’s approval will be required for specified Company actions, including, with certain exceptions, consummating business combinations involving the Company, issuances of additional equity securities of the Company, amending the Company’s charter or by-laws, amendments to the charter of a committee of the Board of Directors of the Company that would circumvent the Stockholder Agreements, actions that would dilute the ownership percentages of Tengelmann or Yucaipa, respectively, actions to amend certain of the Company’s existing indebtedness and actions to limit the Company’s ability to pay cash dividends on the Preferred Stock, among other things. In addition, in order to take certain corporate actions, the Company must obtain the approval of the majority of the Tengelmann directors, so long as Tengelmann owns at least 25.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Tengelmann Agreement), and the Company must obtain the approval of at least one of the Yucaipa directors so long as Yucaipa owns and has continuously owned since the Closing Date at least 17.8% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Agreement). Such corporate actions include entering into certain acquisitions or dispositions of assets, offering additional equity securities, repurchasing equity securities, incurring indebtedness over a certain dollar amount and declaring dividends on the Company’s common stock. If Yucaipa ceases to hold at least 17.8% of the voting power in the Company and so long as Tengelmann owns at least 25.0% of the voting power in the Company, the Company must also obtain the approval of Tengelmann in order to adopt certain anti-takeover measures and enter into affiliate transactions. Additionally, if Yucaipa ceases to hold at least 17.8% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Agreement) and so long as Tengelmann owns at least 25.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Tengelmann Agreement), the Company must also obtain approval of a majority of the Tengelmann directors in order to adopt or amend any long-term strategic plan over a certain dollar amount, adopt or amend any operating plan or budget over a certain dollar amount, appoint a chief executive officer of the Company, dissolve the Company or make capital expenditures over a certain dollar amount.

          Pursuant to the Stockholder Agreements, the Investors are entitled to certain registration rights with respect to shares of the Company’s common stock beneficially held by such Investor and certain preemptive rights on new issuances of equity securities by the Company. Pursuant to the Amended and Restated Yucaipa Stockholder Agreement, Yucaipa is entitled to certain tag-along rights with respect to the sale by another Investor of the Company’s outstanding common stock, any securities convertible into common stock or any options, rights or warrants to acquire common stock that represents 5.0% or more of the Company’s common stock (assuming the conversion and exercise of all of the Preferred Stock). In addition, Yucaipa has granted the Company a right of first offer on the transfer more than 5.0% of its voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement) in any twelve month period. Pursuant to the Amended and Restated Tengelmann Stockholder Agreement, if the Company exercises the above-mentioned right of first offer, Tengelmann has the right to purchase from the Company any such securities purchased by the Company pursuant to its exercise of its rights under its right of first offer.

          In addition, pursuant to the Amended and Restated Yucaipa Stockholder Agreement, Yucaipa is subject to a standstill provision which prevents Yucaipa, without the approval of the majority of the Board of Directors (excluding the directors designated by Yucaipa), from acquiring beneficial ownership of securities of the Company which would result in Yucaipa becoming the beneficial owner of over 35.5% of the outstanding common stock of the Company, as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement, provided that the following will not constitute a breach of the 35.5% limit: (a) stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of common stock, (b) the exercise of Yucaipa’s preemptive rights to purchase new issuances of common stock described above and (c) increases of Yucaipa’s ownership percentage resulting from repurchases or redemptions by the Company. Additionally, for purposes of calculating the 35.5% limitation, the following will not count toward or result in a breach of the 35.5% limitation: (x) the Company’s Series B Warrants held by Yucaipa and any common stock received or acquired pursuant to the exercise of such Series B Warrants, (y) any of the Company’s 5.125% Convertible Senior Notes or the Company’s 6.75% Convertible Senior Notes and any common stock received or acquired pursuant to the conversion of such notes, and (z) any Company security received by Yucaipa as a dividend under the Articles Supplementary. Such standstill expires upon the earliest of (i) August 4, 2014, (ii) such date that the Company’s board of directors publicly announces its intention to solicit an offer for the acquisition or purchase of 50% or more of the Company’s assets or outstanding shares of common stock or for a tender offer, merger, consolidation, business combination or other transaction

2

pursuant to which any third party would own 50% or more of any class of the Company securities (each an “Acquisition Proposal”) or publicly approves or recommends the Company stockholders approve an Acquisition Proposal, (iii) such date that the Company has entered into a binding letter of intent or agreement regarding an Acquisition Proposal, (iv) such date that Yucaipa holds less than 10.0% of the voting power in the Company (as calculated pursuant to the Amended and Restated Yucaipa Stockholder Agreement), (v) such date that any third party or group as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended, has acquired beneficial ownership of the Company’s securities (other than debt securities) in an amount that exceeds Tengelmann’s beneficial ownership of the Company’s securities (other than debt securities), or (vi) such date that Tengelmann and its affiliates beneficially own, in the aggregate, less than 20.0% of the voting power in the Company, or (vii) upon such earlier date that the Amended and Restated Yucaipa Stockholder Agreement is terminated pursuant to its terms.

          Subject to limited exceptions, the outstanding shares of Series A-Y Preferred Stock may not be transferred by Yucaipa prior to December 4, 2010. On and after December 4, 2010, all restrictions on transfers described in the preceding sentence will terminate. Yucaipa is also prohibited from transferring any of the securities of the Company to certain persons that receive at least 25.0% of its consolidated revenues from retailing grocery products, any subsidiary of such person or any person that owns at least 20.0% of the voting power of such person.

          Pursuant to the Stockholder Agreements, the Company has agreed to use its reasonable best efforts to hold as promptly as practical following the Closing Date a meeting of stockholders to obtain the approval of (i) the shares of Preferred Stock voting together with the Company’s common stock becoming entitled to cast the full number of votes on an as-converted basis and (ii) of the issuance of common stock upon conversion of the Preferred Stock, both to the extent required by the rules of the NYSE. On or prior to the first anniversary of the Closing Date, the Company has agreed to call a meeting of stockholders to vote upon the approval of an amendment to the Company’s charter to increase the number of shares of the Company’s common stock authorized for issuance for purposes of giving the Company additional flexibility to pay dividends on the Preferred Stock in additional shares of Preferred Stock.

          The foregoing descriptions of the Stockholder Agreements referenced above do not purport to be complete and are qualified in their entirety by reference to the agreements themselves which are filed as Exhibits 10.1 and 10.2 to this Form 8-K, and are incorporated herein by reference.

The Senior Secured Notes, the Indenture, the Security Agreement and the Registration Rights Agreement

          On August 4, 2009, the Company completed an offering of $260,000,000 aggregate principal amount of its 11³/₈% Senior Secured Notes due 2015 (the “Senior Secured Notes”) issued under an Indenture, dated as of August 4, 2009, among the Company, the guarantors named therein (the “Guarantors”) and Wilmington Trust Company, as trustee (the “Indenture”). The Company sold the Senior Secured Notes pursuant to a purchase agreement, dated July 30, 2009, between the Company, the Guarantors and Banc of America Securities LLC (the “Initial Purchaser”), in a private placement exempt from registration requirements under the Securities Act of 1933, as amended (the “Securities Act”). The Senior Secured Notes were resold by the Initial Purchaser within the United States only to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to persons outside the United States pursuant to Regulation S under the Securities Act. The Senior Secured Notes were issued at 97.385% of their principal amount. The Company is party to certain other instruments of indebtedness for which Wilmington Trust Company serves as trustee. In addition, Banc of America Securities LLC served as co-lead arranger for the Company’s Credit Agreement (defined below) and Bank of America, N.A., serves as administrative agent and collateral agent to the Credit Agreement.

          The Senior Secured Notes will mature on August 1, 2015 and interest will accrue at a rate of 11.375% per annum from the date of original issuance and will be payable semi-annually in cash in arrears on February 1 and August 1, commencing on February 1, 2010, and on the date of maturity. The Company at its option may redeem the Senior Secured Notes as follows:

• On or after August 1, 2012, some or all may be redeemed at a redemption price of 105.688% of the principal amount thereof if redeemed during the twelve-month period beginning on August 1, 2012, 102.844% of the principal amount thereof if redeemed during the twelve-month period beginning on August 1, 2013, and 100% of the principal amount thereof if redeemed on or after August 1, 2014, plus any accrued and unpaid interest;

• Prior to August 1, 2012, up to 35% of all Senior Secured Notes issued under the Indenture may be redeemed with the proceeds from certain equity offerings at a redemption price of 111.375% of the principal amount thereof, plus any accrued and unpaid interest;

• Prior to August 1, 2012, all or a part may be redeemed at a price equal to 100% of the principal amount thereof plus a make-whole premium of the greater of (i) 1.0% of the principal amount thereof and (ii) the excess of (a) the present value of 105.688% of the principal amount thereof at such present value plus all required interest payments due from the date of redemption through August 1, 2012 (excluding accrued but unpaid interest),

3

such present value computed using a discount rate equal to the treasury rate, as defined in the Indenture, on such redemption date plus 50 basis points over (b) the principal amount, as well as any accrued and unpaid interest.

          The Indenture provides for certain Events of Default (as defined in the Indenture), which include (i) default for 30 days in the payment when due of interest on the Senior Secured Notes, (ii) default in payment when due of the principal of, or premium, if any, on the Senior Secured Notes, (iii) failure by the Company or any of its restricted subsidiaries to comply with certain covenants relating to certain business combinations, (iv) failure by the Company or its restricted subsidiaries to comply with any of the other agreements in the Indenture after receiving notice by the requisite entities, (v) default under any mortgage, indenture or other indebtedness instrument if such default is a failure to make a payment or results in the acceleration of the indebtedness prior to its maturity, if the principal amount of such indebtedness aggregates to $35.0 million or more, (vi) failure of the Company or any restricted subsidiaries to pay final judgments aggregating over $35.0 million, (vii) certain findings of unenforceability with respect to Guarantees (as defined below), (viii) certain events of bankruptcy or insolvency with respect to the Company, any Guarantor of the Senior Secured Notes or any significant subsidiary of the Company and (ix) any default in the performance, or breach, of any covenant or agreement of the Company or any Guarantor of the Senior Secured Notes in any material respect under any collateral documents, which default or breach is not cured within a specified amount of time. Upon an Event of Default, the Senior Secured Notes will become due and payable immediately (i) without further notice if such Event of Default arises from events of bankruptcy or insolvency of the Company or (ii) upon declaration of acceleration in writing to the Company by the Trustee or holders of at least 25.0% in principal amount of then outstanding Senior Secured Notes if an Event of Default occurs and is continuing.

          Subject to certain exceptions, the Company and its subsidiaries are restricted from incurring additional debt; paying dividends on, redeeming or repurchasing stock; prepaying subordinated debt; creating liens, making specified types of investments, applying net proceeds from certain asset sales or losses, engaging in transactions with affiliates, merging, consolidating or selling substantially all of its assets; and restricting dividends or other payments from subsidiaries. Furthermore, in the event of a change of control as defined in the Indenture, the Company must offer to repurchase the Senior Secured Notes at 101% of the aggregate principal amount of the Senior Secured Notes repurchased, plus any accrued and unpaid interest. In connection with the sale of the Senior Secured Notes, the Company also entered into a security agreement (“Security Agreement”) governing the collateral by which the Senior Secured Notes are secured. Pursuant to the Intercreditor Agreement (as defined below) and the Security Agreement, the Notes and the guarantees thereof (the “Guarantees”) will be secured by a second priority lien on substantially all collateral pledged on a first priority basis to the lenders under the Credit Facility (as defined below), which includes substantially all of the assets of the Company and the Guarantors, subject to certain exceptions and permitted liens.

          The Notes and the Guarantees are senior secured obligations of the Company and the Guarantors and rank equally in right of payment with all of the Company’s and the Guarantors’ existing and future senior indebtedness, and senior to all of the Company’s and the Guarantors’ existing and future subordinated indebtedness. The Notes and the Guarantees are effectively subordinated to all of the Company’s and the Guarantors’ existing and future secured indebtedness under the Credit Facility and to any other obligations which are permitted to be secured with a prior lien on the collateral securing the Notes and the Guarantees, to the extent of the value of the assets securing Credit Facility and any other such obligations. In addition, the Notes will be structurally subordinated to all of the liabilities of any of the Company’s existing and future subsidiaries that do not guarantee the Notes, to the extent of the assets of those subsidiaries.

          The net proceeds of the offering will be used to repay borrowings under the Company’s existing Credit Facility and for general corporate purposes.

          Pursuant to a registration rights agreement, dated as of August 4, 2009, among the Company, the Guarantors and the Initial Purchaser (the “Registration Rights Agreement”), the Company and the Guarantors have agreed, so long as there are at least $26.0 million of Senior Secured Notes outstanding to consummate an exchange offer pursuant to an effective registration statement to allow holders of Senior Secured Notes to exchange the Senior Secured Notes for a new issue of substantially identical debt securities registered under the Securities Act. In addition, the Company and the Guarantors have agreed to file, under certain circumstances, a shelf registration statement to cover resales of the Senior Secured Notes. The Company and the Guarantors have agreed to use their commercially reasonable efforts, subject to applicable law, to file a registration statement, to cause such registration statement to be declared effective by the Securities and Exchange Commission (“SEC”) and to consummate the exchange offer within 730 calendar days of the date of the original issuance of the Senior Secured Notes. If the Company fails to complete the exchange offer or register the Senior Secured Notes for resale pursuant to a shelf registration statement within 730 calendar days of the date of original issuance of the Senior Secured Notes or such shelf registration statement, if applicable, ceases to be effective during the registration period (subject to certain exceptions), the Company will be required to pay 0.25% per annum additional interest for the first 90-day period immediately following such 730th day and by an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum additional rate of 1.0% per annum thereafter, on the Senior Secured Notes until the exchange offer is

4

completed or the shelf registration statement relating to resale of the Senior Secured Notes is declared effective by the SEC or if such shelf registration statement ceased to be effective until such shelf registration statement again becomes effective under the Securities Act or the Senior Secured Notes cease to be Transfer Restricted Securities (as defined under the Registration Rights Agreement).

          The foregoing descriptions of the Senior Secured Notes, the Indenture, the Security Agreement and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the Indenture, Senior Secured Notes, Registration Rights Agreement and Security Agreement which are filed as Exhibits 4.3, 4.4, 10.3 and 10.6, respectively, to this Form 8-K, and are incorporated herein by reference.

Intercreditor Agreement

          On August 4, 2009, Bank of America, N.A., as collateral agent for the first lien secured parties related to the Company’s existing credit facility (the “Credit Facility”) and Wilmington Trust Company, N.A., as collateral agent for the second lien secured parties related to the Senior Secured Notes, entered into an intercreditor agreement (the “Intercreditor Agreement”) which governs the relative rights of the secured parties.

          The Intercreditor Agreement will apply so long as the Credit Facility (or any facility refinancing or refunding the Credit Facility) has not been terminated and prior to, during and after any bankruptcy, insolvency or similar proceeding involving the Company or any of the Company’s subsidiaries acting as Guarantors of the obligations under the Credit Facility and the Senior Secured Notes. The Intercreditor Agreement provides, among other things, for lien priorities as follows: (1) the payment of principal of and interest on the loans under the Credit Facility, along with certain other obligations under the Credit Facility, are secured on a first priority basis by substantially all of the present and future personal and real property and proceeds thereof, other than certain excluded assets, of the Company and the Guarantors, up to a certain maximum amount as outlined in the Intercreditor Agreement (the “Maximum Credit Facility Amount”); (2) the Senior Secured Notes are secured by a second priority security interest in the assets and property constituting collateral under the Credit Facility, subject to certain permitted exceptions and excluding certain assets; (3) the lien securing the Senior Secured Notes is of a second priority subject only to the first priority lien securing certain of the obligations under the Credit Facility up to the Maximum Credit Facility Amount, and is of a first priority with respect to any portion of the obligations under the Credit Facility that exceed the Maximum Credit Facility Amount; (4) any lien on property that secures obligations under the Credit Facility but does not secure obligations under the Senior Secured Notes is senior to any rights granted under the Senior Secured Notes, without regard to the Maximum Credit Facility Amount. If any liens securing the Credit Facility are released and the Credit Facility (or a facility refinancing or refunding the Credit Facility) is not terminated, then the comparable liens securing the Senior Secured Notes must also be released. The Intercreditor Agreement also provides for certain procedures for enforcing the security interests discussed above.

          The foregoing description of the Intercreditor Agreement does not purport to be complete and is qualified in its entirety by reference to the agreement itself which is filed as Exhibit 10.4 to this Form 8-K, and is incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

          (a) See Item 1.01 above under the heading “The Senior Secured Notes, the Indenture, the Security Agreement and the Registration Rights Agreement” which is incorporated herein by reference.

Item 3.02. Unregistered Sales of Equity Securities.

          (a) On August 4, 2009, the Company issued 175,000 shares of Preferred Stock pursuant to investment agreements between the Company and affiliates of Yucaipa and partners of Tengelmann, each dated July 23, 2009. The information required in this item with respect to the Preferred Stock was provided in Item 3.02 of the Company’s Current Report on Form 8-K filed on July 24, 2009, which description is incorporated herein by reference.

          The descriptions of the Articles Supplementary and the Preferred Stock referenced in such Form 8-K do not purport to be complete and are qualified in their entirety by reference to the Articles Supplementary and Preferred Stock Certificate, which are filed as Exhibits 4.1 and 4.2, respectively, to this Form 8-K, and are incorporated herein by reference.

5

Item 3.03. Material Modification to Rights of Security Holders.

          (a) See Item 5.03 regarding the affect of the By-Laws (as defined below) and the Articles Supplementary (as defined below) on the holders of the Company’s common stock.

          (b) See Item 1.01 above under the headings “Stockholder Agreements” and “The Senior Secured Notes, the Indenture, the Security Agreement and the Registration Rights Agreement” and “Intercreditor Agreement” for information regarding the effect of the issuance of the Preferred Stock and the Senior Secured Notes on holders of the Company’s common stock.

          On August 4, 2009, in connection with the issuance of the Preferred Stock and the Senior Secured Notes, the Second Amendment, dated July 23, 2009, to the Company’s amended and restated credit agreement dated as of December 27, 2007, among the Company and the other Borrowers party thereto and the Lenders party thereto, and Bank of America, N.A., as administrative agent and collateral agent (the “Credit Agreement”) became effective. The amendment permits the payment-in-kind of dividends on the Preferred Stock. However, cash dividends on the Preferred Stock are subject to minimum excess availability requirements. In addition, the amendment conditions the Company’s ability to pay cash dividends on its common stock and other preferred stock upon its ability to maintain a consolidated fixed charge coverage ratio equal to at least 1.1:1.0 and to satisfy existing minimum excess availability requirements.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

          (d) On August 3, 2009, the Company conditionally added two new directors to the Company’s Board of Directors: Frederic F. Brace and Terrence J. Wallock. The addition of each new director was conditioned upon the consummation of the sale of the Preferred Stock, and became effective on August 4, 2009. Messrs. Brace and Wallock were elected to the Board of Directors by the holders of the Series A-Y Preferred Stock pursuant to the terms of the Amended and Restated Yucaipa Stockholder Agreement, the By-Laws and the Articles Supplementary. In addition, the Board of Directors appointed Mr. Brace to the Audit and Finance Committee and the Executive Committee and appointed Mr. Wallock to the Human Resources and Compensation Committee and the Governance Committee of the Board of Directors.

          Mr. Brace was an Executive Vice President and the Chief Financial Officer of UAL Corp., an air transportation company, from August 2002 until his retirement in October 2008. Mr. Brace is also a director of Anixter International, a communications, electrical wire and cable products distribution company, and Bearing Point, a consulting firm.

          Mr. Wallock is an attorney, consultant, and private investor and also serves as the secretary and acting general counsel of Simon Worldwide Inc., which holds an investment in Yucaipa AEC Associates, LLC, a limited liability company that is controlled by The Yucaipa Companies, LLC. Prior to engaging in a consulting and private legal practice in 2000, he served as a senior executive and/or general counsel for a number of public companies, including Denny’s Inc., The Vons Companies, Inc., and Ralphs Grocery Company. Mr. Wallock also serves on the Board of Directors of Source Interlink Companies, Inc.

     In connection with their appointment to the Board of Directors, each of Messrs. Brace and Wallock have entered into indemnification agreements with the Company that are substantially similar to indemnification agreements that the Company has entered into with its other directors and officers, a form of which is filed as Exhibit 10.5 to this Form 8-K and is incorporated by reference herein. The indemnification agreements provide that the Company will indemnify the indemnitee in connection with any proceeding arising from such indemnitee’s service to the Company to the fullest extent allowed under Maryland law, subject to certain exceptions for proceedings relating to the indemnitee’s bad faith, active and deliberate dishonesty, unlawful conduct or the receipt of an improper personal benefit.

     On August 4, 2009, the holders of the Series A-T Preferred Stock, voting as a single class, elected Christian Wilhelm Erich Haub, Dr. Andreas Guldin, John D. Barline and Dr. Jens-Jurgen Bockel, existing members of the Company’s Board of Directors, as Series A Preferred Directors (as defined in the Articles Supplementary) in satisfaction of the Series A-T Board Representation Entitlement (as defined in the Articles Supplementary).

Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

          (a) On August 3, 2009, the Company’s Board of Directors adopted amended and restated By-Laws (the “By-Laws”), which became effective on August 4, 2009, upon the consummation of the sale of the Preferred Stock described above. Among other things, the By-Laws have been amended to increase the size of the board from nine to eleven directors. In addition, the Board of Directors amended Article XI and added Article XII to the By-Laws, which Articles set forth certain rights of each of Tengelmann and Yucaipa, respectively, in connection with their purchase of Preferred Stock. Specifically, Articles XI and XII provide for, among other things, Tengelmann and Yucaipa’s rights to nominate directors for election under certain circumstances which may be adjusted from time to time based upon certain ownership thresholds and such parties’ rights to prior approval of certain actions by the Company under certain circumstances. In addition, the By-Laws

6

waive the application of Title 3, Subtitle 7 of the Corporations and Associations Article of the Annotated Code of Maryland, as it applies to any acquisition of shares of the Company’s stock by Tengelmann, Yucaipa or any of their Affiliates (as defined in the By-Laws). The amendment of this provision removed a super-majority stockholder vote requirement for the approval of control share voting rights.

          The foregoing description of the By-Laws referenced above does not purport to be complete and is qualified in its entirety by reference to the By-Laws which is filed as Exhibit 3.1 to this Form 8-K, and is incorporated herein by reference.

          In addition, on August 3, 2009, the Company filed the Articles Supplementary of 8% Cumulative Convertible Preferred Stock Series A-T, A-Y, B-T, B-Y (the “Articles Supplementary”) with the State of Maryland State Department of Assessments and Taxation, which Articles Supplementary became effective on August 3, 2009. The Articles Supplementary set forth the voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Preferred Stock, as summarized in Item 1.01 of the Company’s Current Report on Form 8-K filed on July 24, 2009 under the heading “Investment Agreements,” which description is incorporated herein by reference.

          The foregoing description of the Articles Supplementary referenced above does not purport to be complete and is qualified in its entirety by reference to the Articles Supplementary which is filed as Exhibit 4.1 to this Form 8-K, and is incorporated herein by reference.

Item 8.01. Other Events.

          On August 4, 2009, the Company issued a press release announcing the consummation of the issuance and sale of 175,000 shares of Preferred Stock and the Senior Secured Notes and announcing the election of two additional directors to the Company’s Board of Directors. A copy of the press release is filed as Exhibit 99.1 to this Form 8-K.

          Section 9 — Financial Statements and Exhibits

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit	Description
3.1	By-Laws of The Great Atlantic & Pacific Tea Company, Inc. as Amended and Restated on August 4, 2009
4.1	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.
4.2	Form of 8% Cumulative Convertible Preferred Stock Certificate (included in Exhibit 4.1)
4.3	Indenture, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the guarantors named therein and Wilmington Trust Company, as trustee
4.4	Form of 113/8% Senior Secured Notes due 2015 (included in Exhibit 4.3)
10.1	Amended and Restated Tengelmann Stockholder Agreement, dated as of August 4, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc. and Tengelmann Warenhandelsgesellschaft KG
10.2	Amended and Restated Yucaipa Stockholder Agreement, dated as of August 4, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc., Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP (collectively, the “Stockholders”) and Yucaipa American Alliance Fund II, LLC, as Stockholder Representative
10.3	Registration Rights Agreement, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the guarantors named therein and Banc of America Securities LLC
10.4	Intercreditor Agreement, dated as of August 4, 2009, among Bank of America, N.A., as First Lien Agent, Wilmington Trust Company, as Second Lien Agent, The Great Atlantic & Pacific Tea Company, Inc. and the subsidiaries of The Great Atlantic & Pacific Tea Company, Inc. party thereto

7

Exhibit	Description
10.5	Form of Director Indemnification Agreement
10.6	Security Agreement, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the subsidiaries from time to time party thereto, and Wilmington Trust Company, as collateral agent
99.1	Press Release, dated August 4, 2009

8

SIGNATURES

          Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

By:	/s/ Christopher McGarry
	Christopher McGarry
	Vice President, Legal Services

     Date: August 4, 2009

EXHIBIT INDEX

Exhibit	Description
3.1	By-Laws of The Great Atlantic & Pacific Tea Company, Inc. as Amended and Restated on August 4, 2009
4.1	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.
4.2	Form of 8% Cumulative Convertible Preferred Stock Certificate (included in Exhibit 4.1)
4.3	Indenture, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the guarantors named therein and Wilmington Trust Company, as trustee
4.4	Form of 113/8% Senior Secured Notes due 2015 (included in Exhibit 4.3)
10.1	Amended and Restated Tengelmann Stockholder Agreement, dated as of August 4, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc. and Tengelmann Warenhandelsgesellschaft KG.
10.2	Amended and Restated Yucaipa Stockholder Agreement, dated as of August 4, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc., Yucaipa American Alliance Fund II, LP, Yucaipa American Alliance (Parallel) Fund II, LP, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP (collectively, the “Stockholders”) and Yucaipa American Alliance Fund II, LLC, as Stockholder Representative
10.3	Registration Rights Agreement, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the guarantors named therein and Banc of America Securities LLC
10.4	Intercreditor Agreement, dated as of August 4, 2009, among Bank of America, N.A., as First Lien Agent, Wilmington Trust Company, as Second Lien Agent, The Great Atlantic & Pacific Tea Company, Inc. and the subsidiaries of The Great Atlantic & Pacific Tea Company, Inc. party thereto
10.5	Form of Director Indemnification Agreement
10.6	Security Agreement, dated as of August 4, 2009, among The Great Atlantic & Pacific Tea Company, Inc., the subsidiaries from time to time party thereto, and Wilmington Trust Company, as collateral agent
99.1	Press Release, dated August 4, 2009

EX-3.1

EXHIBIT 3.1

BY-LAWS OF THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.

As Amended and Restated
August 4, 2009

BY LAWS

OF

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

ARTICLE I.

OFFICES.

          SECTION 1. Principal Office. The principal office of The Great Atlantic & Pacific Tea Company, Inc. (hereinafter called the Corporation) in the State of Maryland shall be 245 West Chase Street, Baltimore, Maryland 21202. The name of the resident agent in charge thereof is HSC Agent Services, Inc.

          SECTION 2. Other Offices. The Corporation may also have an office or offices in the Borough of Montvale, in the State of New Jersey, and at such other place or places either within or without the State of Maryland as the Board of Directors may from time to time determine, or the business of the Corporation may require.

ARTICLE II.

MEETING OF STOCKHOLDERS.

          SECTION 1. Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly be brought before such meeting shall be held on such date between the thirtieth day of June and the thirty-first day of July in each year as may be fixed by the Board of Directors, at such time and place as may be designated by the Board of Directors in the notice thereof.

          SECTION 2. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called at any time by the Chief Executive Officer, the Chairman of the Board, or the President and shall be called by the Secretary upon written request of three or more members of the Board of Directors or of the holders of shares entitled to not less than twenty-five per cent of all the votes entitled to be cast at any such meeting. Such request shall state the purpose or purposes of such meeting and the matters proposed to be acted on thereat. No special meeting need be called upon the request of the holders of shares entitled to cast less than a majority of all votes entitled to be cast at such meeting, to consider any matter which is substantially the same as a matter voted upon at any special meeting of the stockholders held during the preceding twelve months. Each such special meeting shall be held at such time and place as may be designated in the notice thereof.

          SECTION 3. Notice of Meetings. Notice of time and place of each meeting of the stockholders shall be given to each stockholder entitled to vote at such meeting at least fifteen and not more than ninety days before the day on which the meeting is to be held by mailing such notice in a postage prepaid envelope addressed to him at his post office address as it appears on the records of the Corporation. The notice of a meeting of the stockholders shall

also state briefly the objects and purposes thereof as required by law. Any stockholder may at any time, in writing or by telegraph or cable, waive any notice required to be given him under the Corporations and Associations Article of the Annotated Code of Maryland, the Charter of the Corporation (the “Charter”), or these By-Laws.

          SECTION 4. Quorum. At each meeting of the stockholders, except as otherwise expressly provided by statute or the Charter, the holders of record of a majority of the issued and outstanding shares of stock of the Corporation entitled to vote at such meeting, present either in person or by proxy, shall constitute a quorum for the transaction of business. If there be no such quorum present, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of voting stock shall be present. At such adjourned meeting at which the requisite amount of voting stock shall be represented, any business may be transacted which might have been transacted at the meeting as originally notified.

          SECTION 5. Organization. At each meeting of the stockholders, the Chairman of the Board shall act as Chairman and preside thereat. In his absence, the following shall act in his stead in the order of precedence stated: The Chief Executive Officer, the President, the Executive Vice Presidents (if any) in order of seniority of service with the Corporation, the Vice Presidents in order of seniority of service with the Corporation, the Treasurer, or the Assistant Treasurer. The Secretary, or in his absence, the Assistant Secretary or in the absence of both, such person as the Chairman may designate, shall act as secretary of such meeting and keep the minutes thereof.

          SECTION 6. Voting. Except as otherwise provided in the Charter, each stockholder shall at each meeting of the stockholders be entitled to one vote in person or by proxy for each share of stock of the Corporation entitled to be voted thereat held by him and registered in his name on the books of the Corporation, on such date as may be fixed pursuant to Section 4 of Article VI as the record date for the determination of stockholders entitled to notice of and to vote at such meeting. At all meetings of the stockholders, all matters to be voted upon, except in the case of votes for the election of directors and for those other matters the manner of deciding which is otherwise expressly regulated by statute or the Charter, shall be decided by the vote of a majority in interest of the stockholders present in person or by proxy and entitled to vote on such matters. Except in the case of votes for the election of directors and for other matters expressly so regulated by statute, the vote at any meeting of the stockholders on any question need not be by ballot, unless demanded by a stockholder present in person or by proxy and entitled to vote on such matters.

          SECTION 7. List of Stockholders. It shall be the duty of the Secretary who shall have charge of the stock ledger of the Corporation, either directly or through a transfer agent appointed by the Board of Directors, to prepare and make a complete list of the stockholders entitled to vote at any meeting. Such list shall be kept at the place of election during the meeting.

          SECTION 8. Inspectors of Election. Before, or at each meeting of the stockholders, the Chairman of such meeting shall appoint two Inspectors of Election to act thereat. Each Inspector of Election so appointed shall first subscribe an oath or affirmation

-2-

faithfully to execute the duties of an Inspector of Election at such meeting with strict impartiality and according to the best of his ability. Such Inspectors of Election shall take charge of the ballots at such meeting and after the balloting thereat on any question shall count the ballots cast thereon and shall make a report in writing to the Secretary of such meeting of the results thereof.

ARTICLE III.

BOARD OF DIRECTORS.

          SECTION 1. General Powers. The property, business and affairs of the Corporation shall be managed by the Board of Directors.

          SECTION 2. Number, Qualification and Term of Office. The number of directors shall be determined by the vote of a majority of the entire Board of Directors, but such number shall not be decreased to less than three. Any decrease in the number of directors shall not affect the tenure in office of any director. Each director shall hold office until the annual meeting of the stockholders next following his election and until his successor shall have been elected and qualified or until his death, resignation or removal.

          SECTION 3. Resignation and Removal of Directors. Any director may resign at any time by giving notice to the Chief Executive Officer, the Chairman of the Board, the President or the Secretary, in writing. Any such resignation shall take effect at the time specified therein, or, if no time is so specified, upon its receipt. The acceptance of such resignation shall not be necessary to make it effective. At any meeting of stockholders, duly called and at which a quorum is present, the stockholders may, by the affirmative vote of the holders of a majority of the votes entitled to be cast thereon, remove any director or directors from office and may elect a successor or successors to fill any resulting vacancies for the unexpired terms of removed directors.

          SECTION 4. Vacancies. Any vacancy on the Board of Directors may be filled by vote of the majority of the remaining directors, except that a vacancy occurring by reason of an increase in the number of directors may be filled by vote of a majority of the entire Board, and each director so chosen shall hold office until the next annual meeting of stockholders and until his successor shall have been elected and qualified or until his death, resignation or removal.

          SECTION 5. Meetings. As soon as practical after each annual meeting of stockholders for the election of directors, the Board of Directors shall meet for the purpose of organizing, for the election of officers, and for the transaction of such other business as may come before the meeting. In addition to such meeting of the Board of Directors, regular meetings of the Board of Directors for the purpose of transacting such business as may properly come before the meeting shall be held at such times as shall be designated by the Board of Directors. All meetings of the Board of Directors shall be held at such places as the Board may designate.

          SECTION 6. Special Meetings; Notice. Special meetings of the Board of Directors shall be held whenever called by the Chief Executive Officer, the Chairman of the

-3-

Board, or the President, or by the Secretary on the written request of three directors. Notice of such meeting shall be given to each director at least one day before the day on which the meeting is to be held, which notice shall designate the time and place of such meeting. Any director may at any time, upon notice to the Secretary, waive any notice required to be given him under the Corporations and Associations Article of the Annotated Code of Maryland, the Charter, or these By-Laws, and attendance by a director at any meeting constitutes a waiver of the notice required for such meeting.

          SECTION 7. Organization. At each meeting of the Board of Directors, the Chairman and the Secretary shall be those persons who would have acted in such offices, respectively, at a meeting of the stockholders, as provided for in Section 5 of Article II of these By-Laws.

          SECTION 8. Quorum and Manner of Acting. One-half of the whole Board of Directors shall constitute a quorum for the transaction of business at any meeting, and the act 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.

          SECTION 9. Compensation. All directors may be allowed a fixed sum for attendance at each meeting of the Board of Directors as may be fixed by resolution of the Board and reimbursement for expenses incurred in connection with the performance of their duties. Directors who are not employees of the Corporation or of any of its subsidiaries may also be paid such annual compensation as may be fixed by resolution of the Board. Members of the Executive Committee or of other committees designated by the Board of Directors may be allowed a fixed sum and expenses incurred for attending meetings of such committees and, if they are not employees of the Corporation or of any of its subsidiaries, may also be paid such annual compensation as may be fixed by resolution of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.

          SECTION 10. Committees of Board of Directors.

          (A) The Executive Committee.

          There shall be an Executive Committee, composed of not less than five nor more than seven directors. During the intervals between the meetings of the Board of Directors, the Executive Committee shall have all the powers of the Board and may exercise such powers when the exercise thereof prior to the next regular meeting of the Board of Directors is deemed by the Executive Committee to be necessary in the management and direction of the business and affairs of the Corporation.

          The Executive Committee shall be elected by a majority of the Board of Directors at the first meeting of the Board following an annual meeting of stockholders. A majority of the members of the Executive Committee shall be composed of directors who are not employees of the Corporation or any of its subsidiaries and alternates for such members, who shall themselves be directors who are not employees of the Corporation or any of its subsidiaries, shall also be elected. In the absence from a meeting of the Executive Committee of any non-employee

-4-

member or members thereof, available alternates shall serve in the order their respective names shall appear in the resolution electing them, and shall act and vote in the stead of any such absent non-employee member or members.

          The Executive Committee shall keep minutes of its meetings and a copy of such minutes (or a summary thereof) shall be forwarded promptly to each director, and all action by the Executive Committee shall be reported to the Board of Directors at its next meeting.

          (B) Other Committees.

          The Board of Directors may by resolution designate other committees composed of three or more of its members, which resolution shall set forth the powers of such committees. All action by such other committees shall be reported to the Board of Directors at its next meeting.

          (C) General.

          A majority of the members of each committee shall constitute a quorum, but in the absence of a quorum the remaining members present may designate one or more other directors to act at such meetings in the place of absent members, subject to the provisions of Subsection A of this Section 10.

          Each committee may fix its rules of procedure, determine its manner of acting and fix the time and place of its meetings and specify what notice thereof, if any, shall be given, unless the Board of Directors shall otherwise by a resolution provide.

          The Board of Directors shall have the power to change the membership of any committee (including the Executive Committee) at any time, to fill vacancies therein, to discharge any such committee, and to remove any member thereof, either with or without cause, at any time.

          SECTION 11. 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 written consent to such action 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 such committee.

          The Board of Directors or any committee designated thereby may participate in a meeting of the Board or such committee, as the case may be, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time.

-5-

ARTICLE IV.

OFFICERS.

          SECTION 1. The officers of the Corporation shall be a Chief Executive Officer, a Chairman of the Board, a President, a Chief Financial Officer, one or more Vice Presidents, a Secretary, a Treasurer and a Controller. The Board may also elect one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Senior Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as the Board may deem appropriate. Without limiting the generality of the foregoing, if the Board of Directors has designated the Chairman as an Executive Chairman pursuant to Section 6 of this Article IV, then such person shall have, in addition to the duties set forth in these By-Laws, such duties, powers and authority as determined by the Board of Directors. The same person may hold more than one office, except that the same person shall not hold simultaneously the offices of President and Vice President or Chief Executive Officer and Chief Financial Officer.

          SECTION 2. Election and Term of Office. The 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. Resignations and Removal. Any officer may at any time resign in the same manner as provided for a director in Section 3 of Article III. Any officer may be removed, either with or without cause, at any time, by the vote of a majority of the whole Board of Directors.

          SECTION 4. Vacancies. A vacancy in any office because of death, resignation, removal or any other cause may be filled for the unexpired portion of the term at any meeting of the Board of Directors.

          SECTION 5. The Chief Executive Officer. The Chief Executive Officer shall have general and active supervision over the business and affairs of the Corporation, its officers (other than the Chairman of the Board, who shall be subject to the supervision of the Board of Directors), employees and agents, subject to the control of the Board of Directors, and, if a member of the Board of Directors, shall be an ex-officio member of all committees of the Board of Directors, with the exception of any committee having compensation or audit oversight responsibilities.

          SECTION 6. The Chairman of the Board. 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. The Board of Directors may designate the Chairman as an Executive Chairman of the Board and may assign to such Executive Chairman such duties, powers and authority as determined by the Board of Directors.

          SECTION 7. The President. The President in general shall perform such duties as are incident to the office of President and shall have such additional duties as may from

-6-

time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the Chairman of the Board.

          SECTION 8. Chief Financial Officer. The Chief Financial Officer shall have charge of the financial affairs of the Corporation and 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, or the President.

          SECTION 9. Executive Vice Presidents. The Executive 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, the Chief Executive Officer, the Chairman of the Board, or the President.

          SECTION 10. Senior Vice Presidents. The Senior 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, the Chief Executive Officer, the Chairman of the Board, or the President.

          SECTION 11. The Vice Presidents. 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, the Chief Executive Officer, the Chairman of the Board, or the President.

          SECTION 12. The Secretary. The Secretary shall record or cause to be recorded all the proceedings of the meetings of the stockholders of the Corporation and the Board of Directors in a book or books to be kept for that purpose; shall see that all notices are duly given in accordance with the provisions of these By-Laws or as required by statute or the Charter; shall have custody of the books and other records (other than the accounting records) and of the seal of the Corporation and shall see that the books, records and other documents required by law (including the stock ledger and the records of the issue, transfer and registration of certificated and uncertificated shares of stock) are properly kept and filed; 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; and in general shall 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 Board of Directors, the Chief Executive Officer, the Chairman of the Board, or the President.

          SECTION 13. Assistant Secretaries. At the request of the Secretary, or in the case of his absence or inability to act, the Assistant Secretary 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 14. 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 Corporation’s behalf all banking arrangements.

          SECTION 15. Assistant Treasurers. At the request of the Treasurer, or in case of his absence or inability to act, the Assistant Treasurer shall perform the duties of the Treasurer

-7-

and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Treasurer.

          SECTION 16. The Controller. The Controller shall have such powers and perform 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 Treasurer.

          SECTION 17. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors or by any committee or officer to which or to whom the Board of Directors shall delegate authority so to do.

ARTICLE V.

NOTES, CHECKS, PROXIES, ETC.

          SECTION 1. Loans. Loans may be contracted on behalf of the Corporation by those officers duly authorized by a resolution of the Board of Directors. Such authorization will pertain not only to the borrowing of funds but also to the execution and delivery by such officers of bonds, debentures, promissory notes, or other evidences of indebtedness of the Corporation relating thereto.

          SECTION 2. 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 3. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the President, the Chief Financial Officer, or the Treasurer shall direct in such banks, trust companies or other depositories as the Board of Directors or such officers may select or as may be selected by any officer or officers, or agent or agents, to whom power in that respect shall have been delegated by the Board of Directors.

          SECTION 4. Proxies in Respect of Stock or Other Securities of Other Corporations. Unless otherwise provided by resolution adopted by the Board of Directors, the Chief Executive Officer or, in his absence, the President may from time to time appoint on behalf of the Corporation by a proxy in writing an attorney or attorneys, or an agent or agents, to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation to vote or consent in respect of such stock or other securities, and the Chief Executive Officer, or in his absence, the President may instruct the person or persons so appointed as to the manner of exercising such powers and rights.

-8-

ARTICLE VI.

CAPITAL STOCK.

          SECTION 1. Certificates of Stock. Shares of the Corporation may be certificated or uncertificated and shall be issued to each stockholder for the fully paid shares owned by him. Owners of shares of the Corporation shall be recorded on the stock transfer books of the Corporation and ownership of such shares shall be evidenced by certificate or book entry notation in the stock transfer records of the Corporation. Any certificates representing shares shall be signed by the Chairman of the Board or President and countersigned by the Chief Financial Officer or the Treasurer and shall be sealed with the corporate seal which may be a facsimile; provided, however, that where such certificate is signed by a transfer agent acting on behalf of the Corporation and a registrar, the signature of any such officer may be by facsimile. In case any officer who has signed any certificate, or whose facsimile signature has been used thereon, ceases to be an officer of the Corporation before the certificate is issued, the certificate may nevertheless be issued by the Corporation with the same effect as if the officer had not ceased to be such officer as of the date of its issue. At the time of issue or transfer of shares without certificates, the Corporation shall provide the stockholder with a written statement of information containing the following information: (A) the name of the Corporation, (B) the name of the stockholder or other person to whom such uncertificated shares are issued, (C) the class of stock and number of shares represented, and (D) either (i) a summary of the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions or redemption of the shares of each class which the Corporation is authorized to issue, and the differences in the relative rights and preferences between shares of each series of stock the Corporation is authorized to issue, to the extent such relative rights and preferences have been set and the authority of the Board of Directors to set the relative rights and preferences of subsequent series, or (ii) a statement that the Corporation will furnish a full statement of the required information to any stockholder on request without charge.

          SECTION 2. Transfers of Shares. Each transfer 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 agent appointed as provided in Section 3 of this Article, upon the payment of all taxes thereon and, with respect to certificated shares, the surrender of the certificate or certificates for such shares properly endorsed. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the owner 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.

          SECTION 3. Regulations; Transfer Agents, etc. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with these By-Laws, concerning the issue, transfer and registration of certificated and uncertificated shares of stock of the Corporation. It may appoint one or more transfer agents and one or more registrars, and may require that all certificated shares of stock of the Corporation bear the signature or signatures of any of them.

-9-

          SECTION 4. Record Date. The Board of Directors may fix in advance a date, not exceeding ninety days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date for obtaining any consent of stockholders for any purpose, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or entitled to receive payment of any such dividend, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.

          SECTION 5. Lost, Destroyed and Mutilated Certificates. The holder of any certificated shares of stock of the Corporation shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor, and the Board of Directors may, by resolution, or regulation adopted pursuant to Section 3 of this Article, after the expiration of such period of time as it may determine to be advisable, cause to be issued to him a new certificate or certificates for shares of stock, upon the surrender of the mutilated certificate or, in case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and the Board of Directors may, by such resolution or regulation, require the owner of the lost, destroyed or mutilated certificate, or his legal representatives, to give the Corporation a bond in such sum and with such surety or sureties as it may direct, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, destruction or mutilation of any such certificate or the issuance of such new certificate.

          SECTION 6. Examination of Books by Stockholders. The Board of Directors shall, subject to any applicable statutes, have the power to determine whether and to what extent and at what times and places and under what conditions and regulations the accounts and books and documents of the Corporation or any of them, shall be open to the inspection of the stockholders; and no stockholder shall have any right to inspect any account or book or documents of the Corporation, except as conferred by any such statute unless and until authorized so to do by resolution of the Board of Directors.

          SECTION 7. Control Share Acquisition Act. Notwithstanding any other provision of the Charter or these By-Laws, Title 3, Subtitle 7 of the Corporations and Associations Article of the Annotated Code of Maryland, or any successor statute, shall not apply to any acquisition by Tengelmann, Yucaipa or any of their Affiliates (in each case, as defined in Article XIII hereto) of shares of stock of the Corporation. This Section may be amended or repealed, in whole or in part, at any time, but any such amendment or repeal shall not apply to any acquisition of shares of stock occurring prior to such amendment or repeal.

ARTICLE VII.

SEAL.

          The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall bear the full name of the Corporation and words and figures indicating the year and state in which the Corporation was incorporated and such other words or figures as the Board of Directors may approve and adopt.

-10-

ARTICLE VIII.

FISCAL YEAR.

          The fiscal year of the Corporation shall end on the last Saturday in February of each year.

ARTICLE IX.

AMENDMENTS.

          Subject to Article X, Section 5, Article XI, Section 5 and Article XII, Section 5 of the 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, but no amendment adopted by the stockholders shall thereafter be altered or repealed by the Board of Directors.

ARTICLE X.

INDEMNIFICATION.

          SECTION 1. Indemnification of Directors and Officers. In furtherance of Article VIII of the Corporation’s Charter, the Corporation shall indemnify its directors and officers, whether serving the Corporation or, at its request, any other entity, in any capacity, to the maximum extent required or permitted by Maryland law now or hereafter in force, including the advance of expenses under the procedures and to the maximum extent permitted by law.

          SECTION 2. Indemnification of Other Employees and Agents. The Corporation may indemnify other employees and agents to such extent as shall be authorized by the Board of Directors and be permitted by law.

          SECTION 3. Rights Not Exclusive. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled and shall continue as to a person who has ceased to be an officer, director, agent or employee, and shall inure to the benefit of the heirs, executors and administrators of such person.

          SECTION 4. General. The Board of Directors may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve and amend from time to time such resolutions or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law.

          SECTION 5. Effect of Amendment or Repeal. No amendment or repeal of this Article X of the Corporation’s By-Laws shall apply to or have any effect on any right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal.

-11-

ARTICLE XI.

TENGELMANN PROVISIONS.

          SECTION 1. Tengelmann Percentage Interest at Least Ten Percent. Notwithstanding anything to the contrary in the By-Laws, so long as the Tengelmann Percentage Interest (such term, and other capitalized terms used but not defined in the By-Laws, shall have the meanings set forth in Section 1 of Article XIII) has been continuously since the Tengelmann Closing Date 10% or more:

          (A) The Board of Directors will be composed of eleven directors, and, subject to any additional requirements provided for in the Charter or the By-Laws of the Corporation, the number of such directors may not be (i) increased without the consent of Tengelmann (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary) and that number of directors that is at least 66.67% of the total number of directorships (including vacancies) or (ii) decreased without the approval of that number of directors that is at least 66.67% of the total number of directorships (including vacancies); provided, however, that any decrease in the number of directorships that has the effect of reducing the number of directors that Tengelmann is entitled to nominate hereunder shall require the consent of Tengelmann.

          (B) Subject to Section 1(C) below, at any time that Tengelmann is not entitled to elect a Tengelmann Director pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary, Tengelmann will have the right to designate for nomination (it being understood that such nomination will include any nomination of any incumbent Tengelmann Director for reelection to the Board of Directors) to the Board of Directors that number of individuals equal to (i) the product of the total number of directorships (including vacancies) at such time and the Tengelmann Percentage Interest at such time (rounded to the nearest whole number), minus (ii) the number of Tengelmann Directors who are not then subject to election or who will otherwise be continuing to serve on the Board of Directors following such election (each such directorship, a “Tengelmann Directorship”) and each such designee (each, a “Tengelmann Nominee”) will be nominated and recommended for election to the Board of Directors by the Governance Committee; provided, however, that so long as the Yucaipa Percentage Interest is and has continuously been since the Yucaipa Closing Date at least 20%, if the calculation set forth above would result in a number of directors equal to five, then Tengelmann shall have the right to designate for nomination to the Board of Directors the number of individuals equal to (x) four, minus (y) the number of Tengelmann Directors who are not then subject to election or who will otherwise be continuing to serve on the Board of Directors following such election, and each such Tengelmann Nominee will be nominated and recommended for election to the Board of Directors by the Governance Committee. In the event that the Tengelmann Percentage Interest is at any time less than 10%, Tengelmann shall not have any right to designate any directors, and, at the request of a majority of the Non-Tengelmann Directors then in office, shall cause any Tengelmann Directors then in office to resign immediately upon such event. No individual who does not satisfy the qualification set forth in this paragraph shall be eligible for nomination or election to a Tengelmann Directorship.

-12-

          (C) Notwithstanding anything to the contrary in this Section 1, no member of the Governance Committee of the Board of Directors and no director shall be under any obligation to nominate and recommend a Tengelmann Nominee or elect a Tengelmann Nominee to fill a vacant Tengelmann Directorship if he or she determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to Tengelmann), that such nomination or recommendation would reasonably be expected to violate his or her duties under Section 2-405.1(a) of the Maryland General Corporation Law (the “MGCL”) because (i) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Common Stock is listed or quoted or (ii) service by such nominee as a director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Corporation is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted, in which case the Corporation shall provide Tengelmann with a reasonable opportunity (but in any event not less than 30 days) to designate an alternate Tengelmann Nominee in accordance with this Section 1.

          (D) No Tengelmann Nominee or Tengelmann Director shall be qualified to be a director unless at all times during his or her term, he or she remains acceptable to Tengelmann.

          (E) Upon the death, resignation, retirement, incapacity, disqualification or removal from office for any other reason of any Tengelmann Director, Tengelmann will have the right to designate the replacement for such Tengelmann Director and only such designee will, subject to Section 1(C) above, be qualified to fill such vacancy. Conversely, in the event of the death, resignation, incapacity, disqualification or removal of any Public Directors, a majority of the Public Directors will have the exclusive right to designate the replacement for such director and only such designee will be qualified to fill such vacancy.

          (F) Without limiting the generality of Section 1(B) above, in the event that the number of Tengelmann Directors on the Board of Directors differs from the number that Tengelmann has the right (and wishes) to designate pursuant to this Section 1, (i) if the number of Tengelmann Directors exceeds such number, Tengelmann shall use reasonable best efforts to take all necessary action to remove or cause to resign that number of Tengelmann Directors as is required to make the remaining number of such Tengelmann Directors conform to this Section 1 or (ii) if the number of Tengelmann Directors is less than such number, the number of directors shall automatically be increased by a number sufficient to permit Tengelmann to designate the full number of Tengelmann Directors that it is entitled (and wishes) to designate pursuant to this Section 1 or, alternatively, at the request of Tengelmann, the Secretary of the Corporation shall call a special meeting of the stockholders of the Corporation for the purpose of removing Non-Tengelmann Directors (other than a Yucaipa Director, if the number of Yucaipa Directors on the Board of Directors at such time equals the number of directors Yucaipa is entitled to designate pursuant to Article XII hereof) to create such vacancies as are necessary to permit Tengelmann to designate the full number of Tengelmann Directors that it is entitled (and wishes) to designate pursuant to this Section 1. Upon the creation of any vacancy pursuant to clause (ii) of the preceding sentence,

-13-

Tengelmann shall designate the person to fill such vacancy in accordance with this Section 1 and, subject to Section 1(C) above, the Board of Directors shall appoint each person so designated. In the event that the number of directors is increased pursuant to this Section 1(F), the Board of Directors shall cause the number of directors to be reduced at the first available opportunity to comply with the number of directors otherwise specified by Section 1(A).

          (G) The rights and obligations of Tengelmann under this Article XI shall apply to any and all Affiliate(s) of Tengelmann which Beneficially Own Voting Stock as of the date of the Amended and Restated Tengelmann Stockholder Agreement and any and all Affiliate(s) of Tengelmann to whom any shares of Voting Stock are transferred in any manner, and any such transfer shall be conditioned on such transferee entering into a written agreement in form and substance acceptable to the Corporation extending the rights and obligations of Tengelmann under such provisions to such transferee(s). All references to Tengelmann in this Article XI shall be deemed to refer to Tengelmann and such Affiliates except as the context otherwise requires.

          (H) Tengelmann Directors shall have the right (at Tengelmann’s election) to serve on each committee of the Board of Directors and the number of Tengelmann Directors on a committee of the Board of Directors shall be not less than (x) the number of Tengelmann Directors at such time divided by (y) the total number of seats on the Board of Directors at such time multiplied by (z) the number of directors serving on such committee (rounded to the nearest whole number). Tengelmann shall have the right to select the Tengelmann Directors who will serve on each committee of the Board of Directors; provided that, so long as there are any Tengelmann Directors serving on the Board of Directors, at least one Tengelmann Director shall have the right to serve on each committee of the Board of Directors. Notwithstanding the foregoing, a Tengelmann Director shall not serve on any committee if such service would violate any Law, the NYSE Listed Company Manual or, if the Corporation is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted. Upon any request by Tengelmann, as soon as reasonably practicable, one Tengelmann Director shall be appointed to the board of directors (or similar governing body) of each Subsidiary of the Corporation requested by Tengelmann and each committee of each such Subsidiary.

          (I) Any director will have the right to call a meeting of the Board of Directors.

          SECTION 2. Tengelmann Percentage Interest at Least Twenty-Five Percent. Notwithstanding anything to the contrary in the By-Laws, for so long as the Tengelmann Percentage Interest is at least 25%:

          (A) the approval of Tengelmann will be required for the Corporation to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or these By-Laws); provided, however, that the approval of Tengelmann will not be required in connection with the actions specified in clauses (v) and (vii) below until the Yucaipa Percentage Interest falls below 17.8%:

-14-

               (i) any Business Combination by the Corporation, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Corporation or its stockholders, as the case may be;

               (ii) the issuance of any Equity Security of the Corporation, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity based compensation plans, (C) of any Equity Security issued or issuable under rights existing as of the Tengelmann Closing Date or (D) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date of the Amended and Restated Tengelmann Stockholder Agreement;

               (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) the Amended and Restated Tengelmann Stockholder Agreement, (B) the Tengelmann Investment Agreement or (C) the Authorized Capital Stock Charter Amendment);

               (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by the Amended and Restated Tengelmann Stockholder Agreement that would reasonably be expected to circumvent in any manner any of Tengelmann’s rights thereunder or the exercise thereof;

               (v) the adoption, implementation or amendment of, or redemption under, any takeover defense measures (including a rights plan);

               (vi) any Tengelmann Discriminatory Transaction;

               (vii) any transaction between (A) the Corporation or any of its Subsidiaries, on the one hand, and (B) any Affiliate of the Corporation (other than (1) any director, officer or Subsidiary of the Corporation and (2) Tengelmann or any of its Affiliates), on the other hand;

               (viii) a change of the Corporation’s policies concerning the need for Board of Directors approval intended or reasonably likely to circumvent any of Tengelmann’s rights under the Amended and Restated Tengelmann Stockholder Agreement or the exercise thereof;

               (ix) the issuance and delivery to Yucaipa of any Common Stock of the Corporation upon exercise by Yucaipa of the Series B Warrants, except to the extent that a cash settlement of any Series B Warrants would reasonably be expected to cause a Liquidity Impairment, in which case the Corporation shall be permitted to issue and deliver Common Stock of the Corporation to Yucaipa upon exercise of such Series B Warrants to the extent necessary to avoid a Liquidity Impairment;

-15-

               (x) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Tengelmann in its capacity as a holder of the Convertible Preferred Stock or adversely affect any rights, privileges or preferences of the Convertible Preferred Stock;

               (xi) any action by the Corporation or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Corporation from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or

               (xii) any action by the Corporation or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Corporation’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary; and

          (B) the approval of a majority of the Tengelmann Directors will be required for the Board of Directors to approve or authorize, and for the Corporation to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or these By-Laws); provided, however, that the approval of a majority of the Tengelmann Directors will not be required in connection with the actions specified in clauses (v), (vi), (vii)(B), (viii) and (ix) until the Yucaipa Percentage Interest falls below 17.8%:

               (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Corporation), business operations or securities (other than Equity Securities of the Corporation), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly-owned Subsidiary of the Corporation or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a third party that is not a Subsidiary or Affiliate of the Corporation in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order;

               (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Corporation or any of its Subsidiaries (other than to the Corporation or any wholly owned Subsidiary of the Corporation), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity based compensation plans, (C) of any Equity Security issued or issuable under rights existing as of the Tengelmann Closing Date or (D) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date of the Amended and Restated Tengelmann Stockholder Agreement;

-16-

               (iii) any repurchase of Equity Securities of the Corporation or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Corporation from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Corporation from Tengelmann pursuant to the Amended and Restated Tengelmann Stockholder Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Corporation of the Convertible Notes;

               (iv) the declaration of any dividends or other distributions (whether in cash or property) on the Common Stock of the Corporation;

               (v) the adoption or amendment of any long term (i.e., three years or more) strategic plans, priorities or direction for the Corporation and its Subsidiaries and their businesses, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period;

               (vi) the adoption or amendment of the operating plan or budget, capital expenditure budget, financing plan or any financial goal, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period;

               (vii) (A) the appointment or removal of the chairman of the Board of Directors or (B) the appointment (but not removal) of the chief executive officer of the Corporation;

               (viii) the Dissolution of the Corporation;

               (ix) any capital expenditure of more than $10,000,000 (excluding any capital expenditure previously approved, or capital expenditure pursuant to a capital expenditure program or budget or plan that was previously approved, by the Board of Directors as part of the approval of the Corporation’s annual operating plan, capital expenditures budget or otherwise); or

               (x) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Corporation from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Tengelmann Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2(A)(x)); provided, further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Corporation’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which

-17-

refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement;

          provided, however, that notwithstanding the foregoing clauses (A) and (B) of this Section 2, Tengelmann shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Tengelmann, together with its Affiliates, own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Tengelmann, together with its Affiliates, own more than 25% of the aggregate principal amount of such notes.

          SECTION 3. Certain Other Transactions. Any transaction between the Corporation or any of its Subsidiaries, on the one hand, and Tengelmann, or any Subsidiary or Affiliate of Tengelmann, on the other hand (other than the compensation of directors and officers in the ordinary course of business), will require the approval of a majority of the Non-Tengelmann Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).

          SECTION 4. Certain Opportunities.

          (A) In recognition and anticipation (i) that the Corporation will not be a wholly-owned Subsidiary of Tengelmann and that Tengelmann and its Affiliates (including portfolio companies) may be controlling or significant stockholders of the Corporation, (ii) that directors, officers or employees of any of Tengelmann or its Affiliates may serve as directors or officers of the Corporation, (iii) that any of Tengelmann or its Affiliates may engage (and are expected to continue to engage) in the same, similar or related lines of business as those in which the Corporation, directly or indirectly, may engage or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, (iv) that any of Tengelmann or its Affiliates may have an interest in the same areas of opportunity as the Corporation and any Affiliate thereof, (v) that any of Tengelmann or its Affiliates may engage in material business transactions with the Corporation and any Affiliate thereof, and that any of Tengelmann or the Corporation may benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and duties of the Corporation and of any of Tengelmann and its Affiliates, and the duties of any directors or officers of the Corporation who are also directors, officers or employees of any of Tengelmann or its Affiliates, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Corporation or any Affiliate thereof, on the one hand, and any of Tengelmann or its Affiliates, on the other hand, and in recognition of the benefits to be derived by the Corporation through its continual contractual, corporate and business relations with any of Tengelmann or its Affiliates (including possible service of officers and directors of any of Tengelmann or its Affiliates as officers and directors of the Corporation), the provisions of this Section 4 shall to the fullest extent permitted by Law regulate and define the interest and reasonable expectancy of the Corporation in connection therewith.

          (B) The Corporation may from time to time enter into and perform, and cause or permit any Subsidiary or Affiliate of the Corporation to enter into and perform, one

-18-

or more agreements (or modifications or supplements to pre-existing agreements) with any of Tengelmann or its Affiliates pursuant to which the Corporation or any Affiliate thereof, on the one hand, and Tengelmann or its Affiliates, on the other hand, agree to engage in transactions of any kind or nature with each other or with any Affiliate thereof or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective representatives (including any who are directors, officers, stockholders, employees or agents of both) to allocate opportunities between or to refer opportunities to each other. No such agreement, or the performance thereof by the Corporation or any of Tengelmann or its Affiliates, shall to the fullest extent permitted by Law be considered contrary to (i) any duty that any of Tengelmann or its Affiliates may owe to the Corporation or any Affiliate thereof or to any stockholder or other owner of an equity interest in the Corporation or any Affiliate thereof by reason of any of Tengelmann or its Affiliates being a controlling or significant stockholder of the Corporation or of any Affiliate thereof or participating in the control of the Corporation or of any Affiliate thereof or (ii) any duty of any director or officer of the Corporation or of any Affiliate thereof who is also a director, officer, employee or agent of any of Tengelmann or its Affiliates to the Corporation or any Affiliate thereof, or to any stockholder thereof. To the fullest extent permitted by Law, none of Tengelmann or its Affiliates, as a stockholder of the Corporation or any Affiliate thereof, or participant in control of the Corporation or any Affiliate thereof, shall have or be under any duty to refrain from entering into any agreement or participating in any transaction referred to above.

          (C) Except as otherwise agreed in writing between the Corporation and Tengelmann, Tengelmann or its Affiliates shall to the fullest extent permitted by Law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Corporation or any Affiliate thereof and (ii) doing business with any client, customer or vendor of the Corporation or any Affiliate thereof, and neither Tengelmann nor any officer, director, employee or Affiliate of Tengelmann shall to the fullest extent permitted by Law be deemed to have breached its or his or her duties, if any, to the Corporation solely by reason of any of Tengelmann or its Affiliates engaging in any such activity. To the extent permitted by Law, neither the Corporation, any Affiliate thereof nor any of their respective stockholders shall have any rights in or to any of the activities described in the foregoing sentence or the income or profits derived therefrom. In the event that any of Tengelmann or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for any of Tengelmann or its Affiliates and the Corporation or any Affiliate thereof, Tengelmann and its Affiliates shall to the fullest extent permitted by Law have no duty to communicate or offer such opportunity to the Corporation or any Affiliate thereof and shall not to the fullest extent permitted by Law be liable to the Corporation or its stockholders for breach of any duty as a stockholder of the Corporation by reason of the fact that any of Tengelmann or its Affiliates acquires or seeks such opportunity for itself, directs such opportunity to another person or entity, or otherwise does not communicate information regarding such opportunity to the Corporation or any Affiliate thereof.

          (D) In the event that a director or officer of the Corporation who is also a director, officer or employee of any of Tengelmann or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for the Corporation or any

-19-

Affiliate thereof or, any of Tengelmann or its Affiliates, such director or officer shall, to the fullest extent permitted by Law, have fully satisfied and fulfilled his or her duty with respect to such opportunity, and the Corporation to the fullest extent permitted by Law acknowledges that it does not have any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any Affiliate thereof, if such director or officer acts in a manner consistent with the following policy: such an opportunity offered to any person who is an officer or director of the Corporation, and who is also an officer, director or employee of any of Tengelmann or its Affiliates, shall belong to Tengelmann or its Affiliates, unless such opportunity was offered to such person in his or her capacity as a director, officer or employee of the Corporation.

          (E) This Section 4 is also intended to apply to any Subsidiaries of the Corporation. In addition, any references to a director of Tengelmann in this Section 4 shall include any Person performing a similar function.

          SECTION 5. Amendments to Articles VI and XI. So long as the Tengelmann Percentage Interest is at least 10%, this Article XI and Section 7 of Article VI of the By-Laws shall not be altered, amended or repealed, or any new By-Law inconsistent with Article XI or Section 7 of Article VI of the By-Laws adopted, without the prior written approval of Tengelmann. Anything to the contrary herein notwithstanding, in the event that such Tengelmann Percentage Interest is at any time less than 10%, this Article XI shall expire and thereafter be of no further force or effect. For the avoidance of doubt, this Article XI is intended to codify certain of the rights of Tengelmann in accordance with the Amended and Restated Tengelmann Stockholder Agreement. In the event of any inconsistency between the Amended and Restated Tengelmann Stockholder Agreement and any provision of the By-Laws or corporate governance policies and guidelines of the Corporation, the provisions of the Amended and Restated Tengelmann Stockholder Agreement will control, to the extent permitted by applicable Law.

ARTICLE XII.

YUCAIPA PROVISIONS.

          SECTION 1. Yucaipa Percentage Interest at Least Ten Percent. Notwithstanding anything to the contrary in the By-Laws, so long as the Yucaipa Percentage Interest has been continuously since the Yucaipa Closing Date 10% or more:

          (A) The Board of Directors will be composed of eleven directors, and, subject to any additional requirements provided for in the Charter or the By-Laws of the Corporation, the number of such directors may not be (i) increased without the consent of Yucaipa (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary) and that number of directors that is at least 66.67% of the total number of directorships (including vacancies) or (ii) decreased without the approval of that number of directors that is at least 66.67% of the total number of directorships (including vacancies); provided, however, that any decrease in the number of directorships that has the effect of reducing the number of directors that Yucaipa is entitled to nominate hereunder shall require the consent of Yucaipa.

-20-

          (B) Subject to Section 1(C) below, at any time that Yucaipa is not entitled to elect a Yucaipa Director pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary, Yucaipa will have the right to designate for nomination (it being understood that such nomination will include any nomination of any incumbent Yucaipa Director for reelection to the Board of Directors) to the Board of Directors that number of individuals equal to (i) two directors (at least one of whom would qualify as an Independent Director) at any time the Yucaipa Percentage Interest is and has been continuously since the Yucaipa Closing Date, at least 20% or (ii) one director (who would qualify as an Independent Director) at any time the Yucaipa Percentage Interest is less than 20% and has been continuously since the Yucaipa Closing Date at least 10% (each such directorship, a “Yucaipa Directorship”) and each such designee (each, a “Yucaipa Nominee”) will be nominated and recommended for election to the Board of Directors by the Governance Committee and will stand for election at any stockholders’ meeting at which directors are elected and each subsequent meeting for so long as the conditions specified in clause (i) or (ii) above, as applicable, are satisfied and the Governance Committee is notified of each such Yucaipa Nominee no later than the date that is 30 days prior to the date the Corporation’s annual proxy statement is scheduled to be mailed to stockholders with respect to such meeting; provided, however, that if Yucaipa fails to give such notice in a timely manner, then Yucaipa shall be deemed to have nominated the incumbent Yucaipa Directors in a timely manner. In the event that (x) the Yucaipa Percentage Interest is at any time less than 20% but clause (ii) of the second preceding sentence is satisfied, Yucaipa shall not have the right to designate more than one director, and, at the request of a majority of the Non-Yucaipa Directors then in office, shall cause one of the two Yucaipa Directors then in office to resign immediately upon such events and (y) the Yucaipa Percentage Interest is at any time less than 10%, Yucaipa shall not have any right to designate any directors, and, at the request of a majority of the Non-Yucaipa Directors then in office, shall cause any Yucaipa Directors then in office to resign immediately upon such event. No individual who does not satisfy the qualification set forth in this paragraph shall be eligible for nomination or election to a Yucaipa Directorship.

          (C) Notwithstanding anything to the contrary in this Section 1, no member of the Governance Committee of the Board of Directors and no director shall be under any obligation to nominate and recommend a Yucaipa Nominee or elect a Yucaipa Nominee to fill a vacant Yucaipa Directorship if he or she determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to Yucaipa), that such nomination or recommendation would reasonably be expected to violate his or her duties under Section 2-405.1(a) of the MGCL because (i) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Common Stock is listed or quoted or (ii) service by such nominee as a director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Corporation is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted, in which case the Corporation shall provide Yucaipa with a reasonable opportunity (but in any event not less than 30 days) to designate an alternate Yucaipa Nominee in accordance with this Section 1.

-21-

          (D) No Yucaipa Nominee or Yucaipa Director shall be qualified to be a director unless at all times during his or her term, he or she remains acceptable to Yucaipa.

          (E) Upon the death, resignation, retirement, incapacity, disqualification or removal from office for any other reason of any Yucaipa Director, Yucaipa will have the right to designate the replacement for such Yucaipa Director and only such designee will, subject to Section 1(C) above, be qualified to fill such vacancy. Conversely, in the event of the death, resignation, incapacity, disqualification or removal of any Public Directors, a majority of the Public Directors will have the exclusive right to designate the replacement for such director and only such designee will be qualified to fill such vacancy.

          (F) Without limiting the generality of Section 1(B) above, if the number of Yucaipa Directors is less than the number that Yucaipa has the right (and wishes) to designate pursuant to this Section 1, at the request of Yucaipa, the Secretary of the Corporation shall call a special meeting of the stockholders of the Corporation for the purpose of removing Public Directors to create such vacancies as are necessary to permit Yucaipa to designate the full number of Yucaipa Directors that it is entitled (and wishes) to designate pursuant to this Section 1. Upon the creation of any vacancy pursuant to the preceding sentence, Yucaipa shall designate the person to fill such vacancy in accordance with this Section 1 and, subject to Section 1(C) above, the Board of Directors shall appoint each person so designated.

          (G) Yucaipa Directors shall have the right (at Yucaipa’s election) to serve on each Standing Committee of the Board of Directors and the number of Yucaipa Directors on a Standing Committee of the Board of Directors shall be not less than (x) the number of Yucaipa Directors at such time divided by (y) the total number of seats on the Board of Directors at such time multiplied by (z) the number of directors serving on such Standing Committee (rounded to the nearest whole number). Yucaipa shall have the right to select the Yucaipa Directors who will serve on each Standing Committee of the Board of Directors; provided that, so long as there are any Yucaipa Directors serving on the Board of Directors, at least one Yucaipa Director shall have the right to serve on each Standing Committee of the Board of Directors. Notwithstanding the foregoing, a Yucaipa Director shall not serve on any Standing Committee if such service would violate any Law, the NYSE Listed Company Manual or, if the Corporation is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted. Upon any request by Yucaipa, as soon as reasonably practicable, one Yucaipa Director shall be appointed to the board of directors (or similar governing body) of each Subsidiary of the Corporation requested by Yucaipa and each committee of each such Subsidiary.

          (H) Any director will have the right to call a meeting of the Board of Directors.

          SECTION 2. Yucaipa Percentage Interest at Least Seventeen and Eight-Tenths Percent. Notwithstanding anything to the contrary in the By-Laws, for so long as the Yucaipa Percentage Interest has been continuously since the Yucaipa Closing Date 17.8% or more:

-22-

          (A) the approval of Yucaipa will be required for the Corporation to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or these By-Laws):

               (i) any Business Combination by the Corporation, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Corporation or its stockholders, as the case may be;

               (ii) the issuance of any Equity Security of the Corporation, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Yucaipa Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date of the Amended and Restated Yucaipa Stockholder Agreement;

               (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) the Amended and Restated Yucaipa Stockholder Agreement, (B) the Yucaipa Investment Agreement or (C) the Authorized Capital Stock Charter Amendment);

               (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by the Amended and Restated Yucaipa Stockholder Agreement that would reasonably be expected to circumvent in any manner any of Yucaipa’s rights thereunder or the exercise thereof;

               (v) any Yucaipa Discriminatory Transaction;

               (vi) a change of the Corporation’s policies concerning the need for Board of Directors approval intended or reasonably likely to circumvent any of Yucaipa’s rights under the Amended and Restated Yucaipa Stockholder Agreement or the exercise thereof;

               (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Yucaipa in its capacity as a holder of the Convertible Preferred Stock or adversely affect any rights, privileges or preferences of the Convertible Preferred Stock;

               (viii) any action by the Corporation or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Corporation from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or

-23-

               (ix) any action by the Corporation or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Corporation’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary; and

          (B) the approval of at least one of the Yucaipa Directors will be required for the Board of Directors to approve or authorize, and for the Corporation to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or these By-Laws):

               (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Corporation), business operations or securities (other than Equity Securities of the Corporation) with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly-owned Subsidiary of the Corporation or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a third party that is not a Subsidiary or Affiliate of the Corporation in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order;

               (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Corporation or any of its Subsidiaries (other than to the Corporation or any wholly owned Subsidiary of the Corporation), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Yucaipa Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date of the Amended and Restated Yucaipa Stockholder Agreement;

               (iii) any repurchase of Equity Securities of the Corporation or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Corporation from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Corporation from Yucaipa pursuant to the Amended and Restated Yucaipa Stockholder Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Corporation of the Convertible Notes;

               (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Corporation from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided,

-24-

however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Yucaipa Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2(A)(vii)); provided, further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Corporation’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or

               (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Common Stock;

               provided, however, that notwithstanding the foregoing clauses (A) and (B) of this Section 2, Yucaipa shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Yucaipa, together with its Affiliates, own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Yucaipa, together with its Affiliates, own more than 25% of the aggregate principal amount of such notes.

          SECTION 3. Certain Other Transactions. Any transaction between the Corporation or any of its Subsidiaries, on the one hand, and Yucaipa, or any Subsidiary or Affiliate of Yucaipa, on the other hand (other than the compensation of directors and officers in the ordinary course of business), will require the approval of a majority of the Non-Yucaipa Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).

          SECTION 4. Certain Opportunities.

          (A) In recognition and anticipation (i) that the Corporation will not be a wholly-owned Subsidiary of Yucaipa and that Yucaipa and its Affiliates (including portfolio companies) may be controlling or significant stockholders of the Corporation, (ii) that directors, officers or employees of any of Yucaipa or its Affiliates may serve as directors or officers of the Corporation, (iii) that any of Yucaipa or its Affiliates may engage (and are expected to continue to engage) in the same, similar or related lines of business as those in which the Corporation, directly or indirectly, may engage or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, (iv) that any of Yucaipa or its Affiliates may have an interest in the same areas of opportunity as the Corporation and any Affiliate thereof, (v) that any of Yucaipa or its Affiliates may engage in material business transactions with the Corporation and any Affiliate thereof, and that any of Yucaipa or the Corporation may benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in the best interests of the Corporation that the respective rights and duties of the Corporation and of any of Yucaipa and its Affiliates, and the duties of any directors or officers of the Corporation who are also directors, officers or employees of any of Yucaipa or its Affiliates, be determined and delineated in respect of any transactions

-25-

between, or opportunities that may be suitable for both, the Corporation or any Affiliate thereof, on the one hand, and any of Yucaipa or its Affiliates, on the other hand, and in recognition of the benefits to be derived by the Corporation through its continual contractual, corporate and business relations with any of Yucaipa or its Affiliates (including possible service of officers and directors of any of Yucaipa or its Affiliates as officers and directors of the Corporation), the provisions of this Section 4 shall to the fullest extent permitted by Law regulate and define the interest and reasonable expectancy of the Corporation in connection therewith.

          (B) The Corporation may from time to time enter into and perform, and cause or permit any Subsidiary or Affiliate of the Corporation to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with any of Yucaipa or its Affiliates pursuant to which the Corporation or any Affiliate thereof, on the one hand, and Yucaipa or its Affiliates, on the other hand, agree to engage in transactions of any kind or nature with each other or with any Affiliate thereof or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective representatives (including any who are directors, officers, stockholders, employees or agents of both) to allocate opportunities between or to refer opportunities to each other. No such agreement, or the performance thereof by the Corporation or any of Yucaipa or its Affiliates, shall to the fullest extent permitted by Law be considered contrary to (i) any duty that any of Yucaipa or its Affiliates may owe to the Corporation or any Affiliate thereof or to any stockholder or other owner of an equity interest in the Corporation or any Affiliate thereof by reason of any of Yucaipa or its Affiliates being a controlling or significant stockholder of the Corporation or of any Affiliate thereof or participating in the control of the Corporation or of any Affiliate thereof or (ii) any duty of any director or officer of the Corporation or of any Affiliate thereof who is also a director, officer, employee or agent of any of Yucaipa or its Affiliates to the Corporation or any Affiliate thereof, or to any stockholder thereof. To the fullest extent permitted by Law, none of Yucaipa or its Affiliates, as a stockholder of the Corporation or any Affiliate thereof, or participant in control of the Corporation or any Affiliate thereof, shall have or be under any duty to refrain from entering into any agreement or participating in any transaction referred to above.

          (C) Except as otherwise agreed in writing between the Corporation and Yucaipa, Yucaipa or its Affiliates shall to the fullest extent permitted by Law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Corporation or any Affiliate thereof and (ii) doing business with any client, customer or vendor of the Corporation or any Affiliate thereof, and neither Yucaipa nor any officer, director, employee or Affiliate of Yucaipa shall to the fullest extent permitted by Law be deemed to have breached its or his or her duties, if any, to the Corporation solely by reason of any of Yucaipa or its Affiliates engaging in any such activity. To the extent permitted by Law, neither the Corporation, any Affiliate thereof nor any of their respective stockholders shall have any rights in or to any of the activities described in the foregoing sentence or the income or profits derived therefrom. In the event that any of Yucaipa or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for any of Yucaipa or its Affiliates and the Corporation or any Affiliate thereof, Yucaipa and its

-26-

Affiliates shall to the fullest extent permitted by Law have no duty to communicate or offer such opportunity to the Corporation or any Affiliate thereof and shall not to the fullest extent permitted by Law be liable to the Corporation or its stockholders for breach of any duty as a stockholder of the Corporation by reason of the fact that any of Yucaipa or its Affiliates acquires or seeks such opportunity for itself, directs such opportunity to another person or entity, or otherwise does not communicate information regarding such opportunity to the Corporation or any Affiliate thereof.

          (D) In the event that a director or officer of the Corporation who is also a director, officer or employee of any of Yucaipa or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for the Corporation or any Affiliate thereof or, any of Yucaipa or its Affiliates, such director or officer shall, to the fullest extent permitted by Law, have fully satisfied and fulfilled his or her duty with respect to such opportunity, and the Corporation to the fullest extent permitted by Law acknowledges that it does not have any claim that such business opportunity constituted a corporate opportunity that should have been presented to the Corporation or any Affiliate thereof, if such director or officer acts in a manner consistent with the following policy: such an opportunity offered to any person who is an officer or director of the Corporation, and who is also an officer, director or employee of any of Yucaipa or its Affiliates, shall belong to Yucaipa or its Affiliates, unless such opportunity was offered to such person in his or her capacity as a director, officer or employee of the Corporation.

          (E) This Section 4 is also intended to apply to any Subsidiaries of the Corporation. In addition, any references to a director of Yucaipa in this Section 4 shall include any Person performing a similar function.

          SECTION 5. Amendments to Articles VI and XII. So long as the Yucaipa Percentage Interest is, and has been continuously since the Yucaipa Closing Date, at least 10%, this Article XII and Section 7 of Article VI of the By-Laws shall not be altered, amended or repealed, or any new By-Law inconsistent with Article XII or Section 7 of Article VI of the By-Laws adopted, without the prior written approval of Yucaipa. Anything to the contrary herein notwithstanding, in the event that such Yucaipa Percentage Interest is at any time less than 10%, this Article XII shall expire and thereafter be of no further force or effect. For the avoidance of doubt, this Article XII is intended to codify certain of the rights of Yucaipa in accordance with the Amended and Restated Yucaipa Stockholder Agreement. In the event of any inconsistency between the Amended and Restated Yucaipa Stockholder Agreement and any provision of the By-Laws or corporate governance policies and guidelines of the Corporation, the provisions of the Amended and Restated Yucaipa Stockholder Agreement will control, to the extent permitted by applicable Law.

ARTICLE XIII.

DEFINITIONS

          SECTION 1. Definitions. The following terms used in Articles XI and XII but not defined in the By-Laws shall have the following definitions. Capitalized terms used in

-27-

Articles XI and XII and not defined in such Articles or in this Article XIII shall have the meanings assigned to such terms in the By-Laws.

          “2011 Convertible Notes” means the Corporation’s 5.125% Convertible Senior Notes due June 15, 2011.

          “2012 Convertible Notes” means the Corporation’s 6.75% Convertible Senior Notes due December 15, 2012.

          “ABL Credit Agreement” means the Corporation’s five-year amended and restated asset-based senior secured revolving credit agreement, dated as of December 27, 2007, among the Corporation, the other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of America Securities LLC, as lead arranger (as amended thereafter in accordance with the terms of the Amended and Restated Tengelmann Stockholder Agreement and/or the Amended and Restated Yucaipa Stockholder Agreement, if applicable).

          An “Affiliate” of any Person means another Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. The Corporation and its Subsidiaries shall not be deemed Affiliates of Tengelmann or Yucaipa for any reason hereunder.

          “Amended and Restated Tengelmann Stockholder Agreement” means the Amended and Restated Tengelmann Stockholder Agreement, dated as of August 4, 2009, between the Corporation and Tengelmann.

          “Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated Yucaipa Stockholder Agreement, dated as of August 4, 2009, between the Corporation and Yucaipa.

          “Authorized Capital Stock Charter Amendment” means an amendment to the Charter increasing the number of authorized shares of Common Stock by up to 100,000,000 shares.

          “Beneficial Owner” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the date of these By-Laws, but without reference to whether or not an Equity Security is exercisable or convertible for Voting Stock in less than 60 days. The term “Beneficially Own” has a meaning correlative to the foregoing.

          “Business Combination” with respect to any Person means any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), of all or substantially all of the assets of such Person and its Subsidiaries, taken as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the consummation of which would result in any other Person (or, in the case of a merger or consolidation, the shareholders of such other Person) becoming, directly or indirectly, the Beneficial Owner of more than 50% of the Voting Stock or Equity Securities (other than debt

-28-

securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number of shares).

          “Common Stock” means the common stock of the Corporation, par value $1.00 per share, and any other common stock of the Corporation that may be issued from time to time.

          “Conversion Stockholder Approval” means the approval, as required pursuant to NYSE Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with the Common Stock becoming entitled to cast the full number of votes on an as-converted basis and (y) the issuance of the full amount of Common Stock upon the exercise of conversion rights of the Convertible Preferred Stock, in each case, by the affirmative vote of holders of a majority of the votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock entitled to vote on such proposal.

          “Convertible Preferred Articles Supplementary” means the articles supplementary filed with and accepted for record by the Maryland State Department of Assessments and Taxation on August 3, 2009, which govern the designation, voting powers, preferences, conversions and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Convertible Preferred Stock.

          “Convertible Preferred Stock” means the shares of the Corporation’s 8.00% Convertible Preferred Stock redeemable August 1, 2016, designated in four (4) separate series as “8% Cumulative Convertible Preferred Stock, Series A-T”, “8% Cumulative Convertible Preferred Stock, Series A-Y”, “8% Cumulative Convertible Preferred Stock, Series B-T” and “8% Cumulative Convertible Preferred Stock, Series B-Y”.

          “Convertible Preferred Stock PIK Dividend Provision” means the Corporation’s ability to issue Convertible Preferred Stock as dividends pursuant to the Convertible Preferred Articles Supplementary.

          “Convertible Notes” means the 2011 Convertible Notes and the 2012 Convertible Notes.

          “Dissolution” means with respect to any Person the dissolution of such Person, the adoption of a plan of liquidation of such Person or any action by such Person to commence any suit, case, proceeding or other action (i) under any existing or future Law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors seeking to have an order for relief entered with respect to such Person, or seeking to adjudicate such Person bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to such Person or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for such Person, or making a general assignment for the benefit of the creditors of such Person. Any verb forms of this term have corresponding meanings.

          “Encumbrance” means any security interest, pledge, mortgage, lien or other material encumbrance, except for any restrictions arising under any applicable securities Laws.

-29-

          “Equity Security” means (i) any common stock or other Voting Stock, (ii) any securities convertible into or exchangeable for common stock or other Voting Stock, including the Series B Warrants or (iii) any options, rights or warrants (or any similar securities) to acquire common stock or other Voting Stock.

          “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

          “Fair Market Value” means (i) with respect to cash or cash equivalents, the amount of such cash or cash equivalents, (ii) with respect to any security listed on a national securities exchange or otherwise traded on any national securities exchange or other trading system, the average of the closing prices of such security as reported on such exchange or trading system for each of the five Trading Days prior to the date of determination, and (iii) with respect to property other than cash or securities of the type described in clauses (i) and (ii), the cash price at which a willing seller would sell and a willing buyer would buy such property in an arm’s length negotiated transaction without time constraints as determined in good faith by the Board of Directors.

          “GAAP” means U.S. generally accepted accounting principles, as in effect at the time such term is relevant.

          “Governmental Entity” means any transnational, Federal, state, local or foreign government, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any national securities exchange or national quotation system on which securities issued by the Corporation or any of its Subsidiaries are listed or quoted.

          “Indebtedness” means, with respect to any Person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person under interest rate or currency hedging transactions (valued at the termination value thereof), (D) all letters of credit issued for the account of such Person and (E) obligations of such Person to pay rent or other amounts under any lease of real property or personal property, which obligations are required to be classified as capital leases in accordance with GAAP; (ii) indebtedness for borrowed money of any other Person guaranteed, directly or indirectly, in any manner by such Person; and (iii) indebtedness of the type described in clause (i) above secured by any Encumbrance upon property owned by such Person, even though such Person has not in any manner become liable for the payment of such indebtedness; provided, however, that Indebtedness shall not be deemed to include (i) any accounts payable or trade payables incurred in the ordinary course of business of such Person, or (ii) any intercompany indebtedness between any Person and any wholly owned Subsidiary of such Person or between any wholly owned Subsidiaries of such Person.

          “Independent Director” means a director of the Corporation who qualifies as an “independent director” of the Corporation under (a) NYSE Rule 303A.02 (or any successor provision thereto) or (b) if the Corporation is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted.

-30-

          “Issue Date” means the date on which the Convertible Preferred Stock is originally issued by the Corporation.

          “Law” means any law, treaty, statute, ordinance, code, rule, regulation, judgment, decree, order, writ, award, injunction, authorization or determination enacted, entered, promulgated, enforced or issued by any Governmental Entity.

          A “Liquidity Impairment” shall be deemed to occur to the extent that any necessary cash settlement(s) Series B Warrants, or any payment(s) in accordance with Article V of the Amended and Restated Tengelmann Stockholder Agreement, would:

          (i) violate, breach or give rise to a default or event of default under or in respect of any contract, credit facility, agreement or other obligation of the Corporation, either existing as of the Tengelmann Closing Date or entered into after the Tengelmann Closing Date (with the approval of a majority of the Tengelmann Directors), or any refinancing thereof (with the approval of a majority of Tengelmann Directors or on terms substantially similar to, and in any event no less favorable to the Corporation than, the terms of the obligation being refinanced), or

          (ii) reasonably be expected, after giving effect to the proposed cash settlement or payment, to cause (A) cash plus cash equivalents plus marketable securities plus cash available for drawdown under any then existing credit agreement or other financing facility of the Corporation or any of its Subsidiaries (without conditions that are not reasonably capable of being satisfied at the applicable time) less (B) cash in stores plus restricted cash plus restricted marketable securities, to equal less than $150,000,000, as of the date of the proposed cash settlement or payment, as applicable, or any date within 180 days thereafter, after taking into account any changes or adjustments to any of the foregoing items scheduled or reasonably anticipated, in good faith, by the Chief Financial Officer of the Corporation to occur during such 180-day period.

For purposes of the foregoing definition, the terms “cash”, “cash equivalents”, “marketable securities”, “restricted cash” and “restricted marketable securities” shall mean the amount set forth opposite the corresponding line item on the Corporation’s most recent audited or unaudited consolidated balance sheet prior to the date of the proposed cash settlement or payment (i.e. as at the end of the most recently concluded 4-week fiscal period) and “cash in stores” shall mean cash held by all of the Corporation’s or any of its Subsidiaries’ stores as of such balance sheet date as determined by the Corporation in accordance with past practices.

          “Maturity Date” means August 1, 2016.

          “Merger” means the acquisition of Pathmark, a Delaware corporation, by the Corporation pursuant to that certain Merger Agreement by and among the Corporation, Sand Merger Corp. and Pathmark dated as of March 4, 2007.

          “Non-Tengelmann Director” means any member of the Board of Directors of the Corporation who is not a Tengelmann Director.

-31-

          “Non-Yucaipa Director” means any member of the Board of Directors of the Corporation who is not a Yucaipa Director.

          “NYSE” means the New York Stock Exchange.

          “Pathmark” means Pathmark Stores, Inc., a Delaware corporation.

          “Person” means any individual, firm, corporation, partnership, limited partnership, company, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated organization, syndicate or other entity, foreign or domestic.

          “Public Director” means a director who is not a Yucaipa Director or a Tengelmann Director.

          “Series B Warrants” means the Series B warrants issued as part of the Merger by the Corporation to Yucaipa, which entitled Yucaipa to purchase 6,965,858 shares of Common Stock of the Corporation at an exercise price of $32.40 per share which will expire on June 9, 2015, as such share amount and exercise price may be adjusted from time to time in accordance with the terms of such warrants in effect on the date of the Amended and Restated Yucaipa Stockholder Agreement.

          “Standing Committee” means each of the following committees: the Audit and Finance Committee; the Human Resources and Compensation Committee; the Governance Committee; and the Executive Committee.

          “Subsidiary” of any Person means another Person (i) in which such first Person’s ownership of Voting Stock, other voting ownership or voting partnership interests is in an amount sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which are Beneficially Owned directly or indirectly by such first Person) or (ii) which is required to be consolidated with such Person under GAAP.

          “Tengelmann” means Tengelmann Warenhandels-Gesellschaft KG, a limited partnership organized under the laws of the Federal Republic of Germany.

          “Tengelmann Closing Date” means the date of the closing of the Tengelmann Transaction.

          “Tengelmann Director” means a director either (i) elected by Tengelmann in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Tengelmann and actually elected (including to fill a vacancy), pursuant to the provisions of Section 1 of Article XI.

          “Tengelmann Discriminatory Transaction” means any corporate action (other than those taken pursuant to the express terms of the Amended and Restated Tengelmann Stockholder Agreement) that would (i) impose material limitations on the legal rights of Tengelmann as a holder of a class of Voting Stock of the Corporation (including any action that

-32-

would impose material restrictions without lawful exemption on Tengelmann that are based upon the size of security holding, the business in which a security holder is engaged or other considerations applicable to Tengelmann and not to holders of the same class of Voting Stock of the Corporation generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Tengelmann), which limitations are disproportionately (i.e. other than in a proportionate manner consistent with Tengelmann’s pro rata ownership of such class of Voting Stock) borne by Tengelmann as opposed to other holders of such class of Voting Stock or (ii) deny any material benefit to Tengelmann proportionately as a holder of any class of Voting Stock of the Corporation that is made available to other holders of that same class of Voting Stock of the Corporation generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Tengelmann.

          “Tengelmann Investment Agreement” means that certain investment agreement dated as of July 23, 2009, whereby the Tengelmann Parties purchased from the Corporation, and the Corporation issued and sold to the Tengelmann Parties, subject to the terms and conditions set forth therein, an aggregate of 60,000 shares of the Convertible Preferred Stock and, immediately following such purchase, the Tengelmann Parties contributed such shares to Tengelmann.

          “Tengelmann Parties” means, collectively, Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub and Georg Rudolf Otto Haub.

          “Tengelmann Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Corporation (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Corporation, as set forth in the most recent SEC filing of the Corporation prior to such date that contained such information) that is Beneficially Owned by Tengelmann and its Affiliates as of such date (including any Equity Securities owned prior to the date of the Amended and Restated Tengelmann Agreement); provided, however, that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of Beneficial Ownership or Voting Power, all determinations shall be made as if Tengelmann Beneficially Owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.

          “Tengelmann Transaction” means the transaction pursuant to the Tengelmann Investment Agreement.

          “Trading Day” means (i) for so long as Common Stock is listed or admitted for trading on the NYSE or another national securities exchange, a day on which the NYSE or such other national securities exchange is open for business and trading in the Common Stock is not suspended or restricted or (ii) if the Common Stock ceases to be so listed, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by Law or executive order to close.

          “Voting Power” means the ability to vote or to control, directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at the time such determination is made;

-33-

provided that a Person will not be deemed to have Voting Power as a result of an agreement, arrangement or understanding to vote such Voting Stock if such agreement, arrangement or understanding (i) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report). For purposes of determining the percentage of Voting Power of any class or series (or classes or series) Beneficially Owned by Tengelmann or Yucaipa, any Voting Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants, options or similar securities will not be deemed to be outstanding for the purpose of computing the Voting Power of any Person.

          “Voting Stock” of any Person means securities having the right to vote generally in any election of directors or the comparable governing Persons of such Person.

          “Yucaipa” means Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance Fund (Parallel) Fund I, LP, Yucaipa American Alliance Fund II, LP, and Yucaipa American Alliance (Parallel) Fund II, LP.

          “Yucaipa Closing Date” means the date of the closing of the Yucaipa Transaction.

          “Yucaipa Director” means a director either (i) elected by Yucaipa in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Yucaipa and actually elected (including to fill a vacancy), pursuant to the provisions of Section 1 of Article XII.

          “Yucaipa Discriminatory Transaction” means any corporate action (other than those taken pursuant to the express terms of the Amended and Restated Yucaipa Stockholder Agreement) that would (i) impose material limitations on the legal rights of Yucaipa as a holder of a class of Voting Stock of the Corporation (including any action that would impose material restrictions without lawful exemption on Yucaipa that are based upon the size of security holding, the business in which a security holder is engaged or other considerations applicable to Yucaipa and not to holders of the same class of Voting Stock of the Corporation generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Yucaipa), which limitations are disproportionately (i.e. other than in a proportionate manner consistent with Yucaipa’s pro rata ownership of such class of Voting Stock) borne by Yucaipa as opposed to other holders of such class of Voting Stock, or (ii) deny any material benefit to Yucaipa proportionately as a holder of any class of Voting Stock of the Corporation that is made available to other holders of that same class of Voting Stock of the Corporation generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Yucaipa.

          “Yucaipa Investment Agreement” means that certain investment agreement dated as of July 23, 2009, whereby Yucaipa purchased from the Corporation, and the Corporation issued and sold to Yucaipa, subject to the terms and conditions set forth therein, an aggregate of 115,000 shares of the Convertible Preferred Stock.

-34-

          “Yucaipa Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Corporation (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Corporation, as set forth in the most recent SEC filing of the Corporation prior to such date that contained such information) that is Beneficially Owned by Yucaipa and its controlled Affiliates as of such date (including any Equity Securities owned prior to the Yucaipa Closing Date); provided, however, that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of Beneficial Ownership or Voting Power, all determinations shall be made as if Yucaipa Beneficially Owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Security or Equity Securities.

          “Yucaipa Transaction” means the transaction pursuant to the Yucaipa Investment Agreement.

-35-

EX-4.1

EXHIBIT 4.1

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.

Pursuant to Section 2-208(b) of
the Maryland General Corporation Law

     The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), hereby certifies that:

          FIRST: The charter of the Company (as amended, corrected or supplemented from time to time, the “Charter”) authorizes the issuance of up to three million (3,000,000) shares of preferred stock, without par value per share.

          SECOND: The Charter expressly grants to the Board of Directors of the Company (the “Board of Directors”) the authority to provide for the issuance of the shares of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof.

          THIRD: Pursuant to the authority conferred upon the Board of Directors by Section VI of the Charter, the Board of Directors, by action duly taken on July 23, 2009, adopted resolutions authorizing the classification, issuance and sale of up to 1,400,000 shares of the Company’s preferred stock as described herein.

     FOURTH: Therefore, pursuant to the authority of the Board of Directors under the authority conferred upon it by the Charter and by action duly taken pursuant thereto, the Board of Directors does hereby establish, create, authorize, classify and provide for the issue of four separate series of preferred stock having the following designation, voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions:

Section 1. Designation.

          The designation of the series of preferred stock shall be “8% Cumulative Convertible Preferred Stock, Series A-T” (the “Series A-T Convertible Preferred Stock”), “8% Cumulative Convertible Preferred Stock, Series A-Y” (the “Series A-Y Convertible Preferred Stock” and, together with the Series A-T Convertible Preferred Stock, the “Series A Convertible Preferred Stock”), “8% Cumulative Convertible Preferred Stock, Series B-T” (the “Series B-T Convertible Preferred Stock”) and “8% Cumulative Convertible Preferred Stock, Series B-Y” (the “Series B-Y Convertible Preferred Stock” and, together with the Series B-T Convertible Preferred Stock, the “Series B Convertible Preferred Stock”). The Series A Convertible Preferred Stock and the Series B Convertible Preferred Stock are together referred to as the “Convertible Preferred Stock”. The Convertible Preferred Stock will rank equally with Parity Stock, if any, with respect to the payment of dividends and in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, and will rank senior to Junior Stock and junior to Senior Stock, if any, with respect to the payment of dividends and/or in the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, as applicable.

          The Convertible Preferred Stock initially issued to the Tengelmann Parties shall be issued as Series A-T Convertible Preferred Stock, and the Convertible Preferred Stock initially issued to the Yucaipa Parties shall be issued as Series A-Y Convertible Preferred Stock. Each share of Series A-T Convertible Preferred Stock shall automatically convert into one share of Series B-T Convertible Preferred Stock upon a sale or other transfer of such share of Series A-T Convertible Preferred Stock to a Person other than a Tengelmann Party; provided that if the Conversion Stockholder Approval has been obtained, each share of Series A-T Convertible Preferred Stock shall automatically convert into one share of Series A-Y Convertible Preferred Stock upon a sale or other transfer of such share of Series A-T Convertible Preferred Stock to a Yucaipa Party. Each share of Series A-Y Convertible Preferred Stock shall automatically convert into one share of Series B-Y Convertible Preferred Stock upon a sale or other transfer of such share of Series A-Y Convertible Preferred Stock to a Person other than a Yucaipa Party; provided that each share of Series A-Y Convertible Preferred Stock shall automatically convert into one share of Series A-T Convertible Preferred Stock upon a sale or other transfer of such share of Series A-Y Convertible Preferred Stock to a Tengelmann Party.

Section 2. Number of Shares.

          The number of authorized shares of Convertible Preferred Stock shall be 1,400,000, which shall consist of 350,000 shares of Series A-T Convertible Preferred Stock, 350,000 shares of Series A-Y Convertible Preferred Stock, 350,000 shares of Series B-T Convertible Preferred Stock and 350,000 shares of Series B-Y Convertible Preferred Stock. That number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock as set forth in the Charter which remain unissued) or decreased (but not below the number of shares of Convertible Preferred Stock then outstanding plus the number of shares of Convertible Preferred Stock issuable upon the exercise of options or rights then outstanding) by further resolution duly adopted by the Board of Directors or any duly authorized committee thereof and by the filing of articles supplementary with and the acceptance for record of such articles supplementary by the State Department of Assessments and Taxation of Maryland pursuant to the provisions of the MGCL, stating that such increase or reduction, as the case may be, has been so authorized. The Company shall have the authority to issue fractional shares of Convertible Preferred Stock.

Section 3. Definitions. As used herein with respect to Convertible Preferred Stock:

          “ABL Credit Agreement” means the Company’s five-year amended and restated asset-based senior secured revolving credit agreement, dated as of December 27, 2007, among the Company, the other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of America Securities LLC, as lead arranger, as in effect on the Issue Date or as amended thereafter.

          “Additional Shares” has the meaning set forth in Section 11(a).

          An “Affiliate” of any Person means another Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person.

          “Amended and Restated Tengelmann Stockholder Agreement” means the Amended and Restated Tengelmann Stockholder Agreement, intended to be dated as of August 4, 2009, between the Company and Tengelmann.

          “Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated Yucaipa Stockholder Agreement, intended to be dated as of August 4, 2009, among the Company and Yucaipa.

          “Applicable Rate” means, with respect to any Dividend Period, (i) the Base Rate in connection with any dividends paid in cash and (ii) the Base Rate plus 1.50% per annum in connection with any dividend paid pursuant to the Convertible Preferred Stock PIK Dividend Provision.

          “Applicable Series A Board Representation Entitlement” means the Series A-T Board Representation Entitlement or Series A-Y Board Representation Entitlement, as applicable.

2

          “Applicable Series A Convertible Preferred Stock” means Series A-T Convertible Preferred Stock or Series A-Y Convertible Preferred Stock, as applicable.

          “Applicable Series A Holders” means the Series A-T Holders or the Series A-Y Holders, as applicable.

          “Applicable Series A Preferred Director” means a Series A Preferred Director elected by the Series A-T Holders or the Series A-Y Holders, as applicable.

          “Authorized Capital Stock Charter Amendment Approval” means the approval of an amendment to the Charter increasing the number of authorized shares of Common Stock by up to 100,000,000 shares by the affirmative vote of holders entitled to cast two-thirds of the votes entitled to be cast on the matter.

          “Base Rate” means 8.00% per annum.

          “Beneficial Owner” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act; provided, however, that for purposes of any calculation of Tengelmann Percentage Interest, Yucaipa Percentage Interest or Voting Power, such terms have the meaning assigned them in Rule 13d-3 promulgated under the Exchange Act as in effect on the Issue Date, but without reference to whether or not an Equity Security is exercisable or convertible for Voting Stock in less than 60 days.

          “Board of Directors” has the meaning set forth in the recitals above.

          “Business Combination”, with respect to any Person, means any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation) of all or substantially all of the assets of such Person and its subsidiaries, taken as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the consummation of which would result in any other Person (or, in the case of a merger or consolidation, the shareholders of such other Person) becoming, directly or indirectly, the Beneficial Owner of more than 50% of the Voting Stock and/or Equity Securities (other than debt securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number of shares).

          “Business Day” means any day in which banks are not required or authorized by law to close in New York, New York.

          “Capital Stock” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

          “cash” means U.S. legal tender.

          “Certificated Common Stock” has the meaning set forth in Section 24(b).

          “Certificated Preferred Stock” has the meaning set forth in Section 24(a).

          “Certificated Security” has the meaning set forth in Section 24(b).

          “Charter” has the meaning set forth in the recitals above.

          “Closing Price” of the Common Stock on any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on such date as reported by The New York Stock Exchange or, if the shares of Common Stock are not reported by The New York Stock Exchange, in composite transactions for the principal U.S. national or regional securities exchange (including The Nasdaq Stock Market) on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the Closing Price will be the last quoted bid price for the Common Stock in the over-the-counter

3

market on the relevant date as reported by the Pink Sheets LLC or similar organization. If the Common Stock is not so quoted, the Closing Price will be the average of the mid-point of the last bid and asked prices for the Common Stock on the relevant date from each of at least three independent nationally recognized investment banking firms selected by the Company for this purpose.

          “Common Stock” means the common stock of the Company, par value $1.00 per share, or any other shares of the capital stock of the Company into which such shares of common stock shall be reclassified or changed.

          “Company” has the meaning set forth in the recitals above.

          “Constituent Person” has the meaning set forth in Section 14(a).

          “Continuing Director” means a director who either was a member of the Board of Directors on the Issue Date or who becomes a member of the Board of Directors subsequent to the Issue Date and whose appointment, election or nomination for election by the Company’s stockholders is duly approved by a majority of the members of the Board of Directors at the time of such approval (either by specific vote or by approval of the proxy statement issued by the Company on behalf of the Board of Directors in which such individual is named as nominee for director) who were either members of the Board of Directors on the Issue Date or whose appointment, election or nomination for election was previously so approved.

          “Conversion Agent” means the Transfer Agent acting in its capacity as conversion agent for the Convertible Preferred Stock, and its successors and assigns.

          “Conversion Date” has the meaning set forth in Section 8(d).

          “Conversion Notice” has the meaning set forth in Section 8(d).

          “Conversion Price” at any time means, for each share of Convertible Preferred Stock, a dollar amount equal to $1,000 (the Liquidation Preference) divided by the Conversion Rate (resulting initially in a Conversion Price of approximately $5.00).

          “Conversion Rate” means, for each share of Convertible Preferred Stock, 200 shares of Common Stock, subject to adjustment as set forth herein.

          “Conversion Stockholder Approval” means the approval, as required pursuant to New York Stock Exchange Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with the Common Stock becoming entitled to cast the full number of votes on an as-converted basis and (y) the issuance of the full amount of Common Stock upon the exercise of conversion rights of the Convertible Preferred Stock, in each case by the affirmative vote of holders of a majority of the votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock entitled to vote on such proposal.

          “Conversion Stockholder Approval Default” has the meaning set forth in Section 4(d)(ii).

          “Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Convertible Preferred Stock PIK Dividend Provision” has the meaning set forth in Section 4(a).

          “Dividend Payment Date” has the meaning set forth in Section 4(a).

          “Dividend Period” has the meaning set forth in Section 4(a).

          “Dividend Record Date” has the meaning set forth in Section 4(a).

4

          “Equity Security” means (i) any common stock or other Voting Stock; (ii) any securities convertible into or exchangeable for common stock or other Voting Stock; or (iii) any options, rights or warrants (or any similar securities) to acquire common stock or other Voting Stock.

          “Ex-Dividend Date” means the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant distribution from the seller of the Common Stock to its buyer.

          “Exchange Act” means the Securities Exchange Act of 1934, as amended.

          “Exchange Property” has the meaning set forth in Section 14(a).

          “Fundamental Change” means the occurrence of any of the following events after the date hereof:

     (i) a “person” or “group” (each within the meaning of Section 13(d)(3) of the Exchange Act), other than a Permitted Holder, has become the direct or indirect Beneficial Owner of shares of Common Stock representing more than 50% of the total voting power in the aggregate of classes of the Company’s Capital Stock entitled to vote generally in the election of directors; provided that a transaction covered under (iii)(A) below where no person or group other than a Permitted Holder becomes the direct or indirect Beneficial Owner of Common Stock representing more than 50% of the total voting power of the Company’s Capital Stock entitled to vote generally in the election of directors of the ultimate parent company of the continuing, surviving or successor company shall not constitute a Fundamental Change for purposes of this clause (i); or

     (ii) the first day on which a majority of the members of the Board of Directors does not consist of Continuing Directors; or

     (iii) a consolidation, merger or binding share exchange, any conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company’s assets to another Person or any recapitalization, reclassification or other transaction in which all or substantially all of the Common Stock is exchanged for or converted into cash, securities or other property, other than:

     (A) any transaction pursuant to which holders of the Company’s Capital Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock entitled to vote generally in elections of directors of the continuing or surviving or successor Person immediately after giving effect to such transaction, so long as the continuing or surviving or successor Person is a publicly reporting company whose common stock trades on a U.S. national or regional securities exchange (including The Nasdaq Stock Market) and the shares of preferred stock are convertible into such publicly traded common stock of such entity; or

     (B) any consolidation, merger, share exchange, conveyance, transfer, sale, lease or other disposition of assets or similar transaction solely for the purpose of changing the Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of outstanding Common Stock, if at all, solely into common stock, ordinary shares, American Depositary Shares or depositary receipts or other certificates representing common equity interests of the surviving entity or a direct or indirect parent of the surviving entity; or

     (C) any consolidation or merger with or into any of the Company’s subsidiaries, so long as such merger or consolidation is not part of a plan or a series of transactions designed to or having the effect of merging or consolidating with any Person that is not a subsidiary of the Company in a transaction that would otherwise be deemed a Fundamental Change by reason of this clause (iii); or

(iv) a Termination of Trading; or

5

     (v) the Company, within the meaning of Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors, (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a custodian of it for all or substantially all of its property or (D) makes a general assignment for the benefit of its creditors.

          “Fundamental Change Effective Date” has the meaning set forth in Section 11(b).

          “Fundamental Change Notice” has the meaning set forth in Section 9(b).

          “Fundamental Change Notice Date” has the meaning set forth in Section 9(b).

          “Fundamental Change Repurchase Date” has the meaning set forth in Section 9(a).

          “Fundamental Change Repurchase Notice” has the meaning set forth in Section 9(c).

          “Fundamental Change Repurchase Price” has the meaning set forth in Section 9(a).

          “Holder” means the Person in whose name the shares of the Convertible Preferred Stock are registered, which may be treated by the Company, Transfer Agent, Registrar, paying agent and Conversion Agent as the true and lawful owner of the shares of Convertible Preferred Stock for the purpose of making payment and settling the related conversions and for all other purposes.

          “Independent Director” means a director of the Company who qualifies as an “independent director” of the Company under (a) New York Stock Exchange Rule 303A.02 (or any successor provision thereto) or (b) if the Company is not listed on the New York Stock Exchange, any comparable rule or regulation of the primary stock exchange or quotation system on which the Common Stock is listed or quoted.

          “Issue Date” means the date on which the Convertible Preferred Stock is originally issued by the Company.

          “Junior Stock” means the Common Stock and any other class or series of stock of the Company now existing or hereafter authorized over which Convertible Preferred Stock has preference or priority in the payment of dividends or in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company.

          “Liquidation Preference” means $1,000 per share of Convertible Preferred Stock.

          “Listed Common Equity” has the meaning set forth in Section 11(a).

          “Make-Whole Fundamental Change” has the meaning set forth in Section 11(a).

          “Market Disruption Event” means the occurrence or existence for more than one half-hour period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by The New York Stock Exchange or another U.S. national or regional securities exchange (including The Nasdaq Stock Market) on which the Common Stock is traded or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

          “Maturity Date” means August 1, 2016.

          “Merger” means the transaction pursuant to which the Company acquired Pathmark Stores, Inc.

          “MGCL” means the Maryland General Corporation Law, codified in Md. Code Ann., Corps. & Ass’ns, Titles 1-3, as may be in effect from time to time.

6

          “Nonpayment” has the meaning set forth in Section 15(d)(i).

          “Nonpayment Preferred Director” has the meaning set forth in Section 15(d)(i).

          “Officer” means the Chief Executive Officer, the Chairman, the Chief Administrative Officer, any Vice Chairman, the Chief Financial Officer, the Controller, the Chief Accounting Officer, the Treasurer and Head of Corporate Finance, any Assistant Treasurer, the General Counsel and Corporate Secretary and any Assistant Secretary of the Company.

          “Officers’ Certificate” means a certificate signed (i) by the Chief Executive Officer, the Chairman, the Chief Administrative Officer, any Vice Chairman, the Chief Financial Officer, the Controller or the Chief Accounting Officer and (ii) by the Treasurer and Head of Corporate Finance, any Assistant Treasurer, the General Counsel and Corporate Secretary or any Assistant Secretary of the Company, and delivered to the Conversion Agent.

          “Parity Stock” means any class or series of stock of the Company now existing or hereafter authorized that ranks equally with the Convertible Preferred Stock in the payment of dividends and in the distribution of assets on any liquidation, dissolution or winding up of the affairs of the Company.

          “Permitted Holder” means any of the Tengelmann Parties and the Yucaipa Parties.

          “Person” means any individual, firm, corporation, partnership, limited partnership, company, limited liability company, trust, joint venture, association, unincorporated organization, syndicate or other entity, or any transnational, Federal, state, local or foreign government, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any U.S. national or regional securities exchange (including The Nasdaq Stock Market) on which the Common Stock is traded.

          “Pro Rata Repurchase” means any purchase of all or a portion of the shares of Common Stock by the Company or any Affiliate pursuant to (A) any tender offer or exchange offer subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (B) any other offer available to substantially all holders of Common Stock, in the case of both (A) and (B), whether for cash, shares of Capital Stock, other securities of the Company, evidences of indebtedness of the Company or any other Person or any other property (including shares of Capital Stock, other securities or evidences of indebtedness of a subsidiary), or any combination thereof.

          “Record Date” has the meaning set forth in Section 13(m).

          “Registrar” means the Transfer Agent acting in its capacity as registrar for the Convertible Preferred Stock, and its successors and assigns.

          “Reorganization Event” has the meaning set forth in Section 14(a).

          “Restricted Common Stock Legend” has the meaning set forth in Section 24(b).

          “Restricted Preferred Stock Legend” has the meaning set forth in Section 24(a).

          “Restricted Stock Legend” has the meaning set forth in Section 24(b).

          “SEC” means the U.S. Securities and Exchange Commission.

          “Securities” has the meaning set forth in Section 24(c)(i).

          “Securities Act” has the meaning set forth in Section 24(c)(i).

          “Senior Secured Notes” means the second-lien senior secured notes issued by the Company on the Issue Date pursuant to the Senior Secured Notes Indenture.

7

          “Senior Secured Notes Indenture” means the Indenture, intended to be dated as of August 4, 2009, by and among the Company, the corporations listed on the signature pages thereto and Wilmington Trust Company, as trustee and collateral agent.

          “Senior Stock” means any class or series of stock of the Company now existing or hereafter authorized which has preference or priority over the Convertible Preferred Stock as to the payment of dividends or in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Company.

          “Series A Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Series A Holder” means a Holder of Series A Preferred Stock.

          “Series A Preferred Director” has the meaning set forth in Section 15(b)(i).

          “Series A-T Board Representation Entitlement” means zero directors, except, from and after the Issue Date and to, but not including, the Maturity Date, for so long as the Tengelmann Percentage Interest is, and has been continuously since the Issue Date, at least 10%, that number of directors equal to the product of the total number of Company directorships (including vacancies) at such time and the Tengelmann Percentage Interest at such time (rounded to the nearest whole number); provided, however, that so long as the Series A-Y Board Representation Entitlement equals two directors, if the calculation set forth above would result in a number of directors equal to five, then the Series A-T Board Representation Entitlement shall mean four directors.

          “Series A-T Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Series A-T Holder” means a Holder of Series A-T Preferred Stock.

          “Series A-Y Board Representation Entitlement” means zero directors, except, from and after the Issue Date and to, but not including, the Maturity Date, (i) two directors (at least one of whom would qualify as an Independent Director) so long as the Yucaipa Percentage Interest is, and has been continuously since the Issue Date, at least 20% or (ii) one director (who would qualify as an Independent Director) so long as the Yucaipa Percentage Interest is less than 20% and has been continuously since the Issue Date at least 10%.

          “Series A-Y Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Series A-Y Holder” means a Holder of Series A-Y Preferred Stock.

          “Series B Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Series B-T Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Series B-Y Convertible Preferred Stock” has the meaning set forth in Section 1.

          “Share Price” has the meaning set forth in Section 11(b).

          “Special Voting Parity Stock” has the meaning set forth in Section 15(d)(i).

          “Spin-Off” has the meaning set forth in Section 13(c).

          “Tengelmann” means Tengelmann Warenhandelsgesellschaft, a partnership organized under the laws of the Federal Republic of Germany.

          “Tengelmann Parties” means (1) Tengelmann, (2) each controlled Affiliate of Tengelmann, (3) each partner of Tengelmann and the respective members of their immediate families and (4) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding a

8

majority or more controlling interest of which consist of any one or more of the Persons described in the preceding clauses (1), (2) and (3).

          “Tengelmann Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC filing of the Company prior to such date that contained such information) that is Beneficially Owned by Tengelmann and its Affiliates as of such date; provided, however, that for purposes of this calculation all determinations shall be made as if the Conversion Stockholder Approval has been obtained. Notwithstanding the foregoing sentence, to the extent that any decrease in the Tengelmann Percentage Interest is attributable to issuances from March 4, 2007 to, but not including, the Issue Date of Equity Securities by the Company (as opposed to dispositions of Equity Securities of the Company by Tengelmann or its Affiliates), such decrease will not be taken into account for purposes of determining the Tengelmann Percentage Interest unless such decrease was attributable to issuance of Equity Securities by the Company (x) in connection with a Business Combination by the Company or other acquisition by the Company, other than the Merger, approved by Tengelmann, in accordance with any consent right pursuant to any stockholder agreement between Tengelmann and Company or (y) on or about December 3, 2007 in connection with the Merger, as merger consideration, but not in any event by any warrants or options issued in connection with the Merger.

          “Termination of Trading” means the Common Stock (or other common stock into which the Convertible Preferred Stock is then convertible) is not listed for trading on a U.S. national or regional securities exchange (including The Nasdaq Stock Market).

          “Trading Day” means any day on which (i) there is no Market Disruption Event and (ii) The New York Stock Exchange or, if the Common Stock is not listed on The New York Stock Exchange, the principal U.S. national securities exchange (including The Nasdaq Stock Market) on which the Common Stock is listed, admitted for trading or quoted, is open for trading or, if the Common Stock is not so listed, admitted for trading or quoted, any Business Day; provided, however, that a “Trading Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the relevant exchange or trading system.

          “Transfer Agent” means American Stock Transfer & Trust Company acting as Transfer Agent, Registrar, paying agent and Conversion Agent for the Convertible Preferred Stock, and its successors and assigns.

          “Voting Power” means the ability to vote or to control, directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at the time such determination is made; provided that a Person will not be deemed to have Voting Power as a result of an agreement, arrangement or understanding to vote such Voting Stock if such agreement, arrangement or understanding (i) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report). For purposes of determining the percentage of Voting Power of any class or series (or classes or series) Beneficially Owned by any Person, any Voting Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants, options or similar securities will not be deemed to be outstanding for the purpose of computing the Voting Power of any Person.

          “Voting Stock”, of any Person, means securities having the right to vote generally in any election of directors or comparable governing Persons of such Person.

          “Yucaipa” means Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance Fund (Parallel) Fund I, LP, Yucaipa American Alliance Fund II, LP, and Yucaipa American Alliance (Parallel) Fund II, LP.

          “Yucaipa Parties” means (1) Yucaipa, (2) each controlled Affiliate of Yucaipa, The Yucaipa Companies, LLC or Ronald W. Burkle, (3) each partner of Yucaipa, any controlled Affiliate of Yucaipa, The Yucaipa Companies, LLC or Ronald W. Burkle and the respective members of their immediate families and (4) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons

9

beneficially holding a majority or more controlling interest of which consist of any one or more Persons described in the preceding clauses (1), (2) and (3).

          “Yucaipa Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC filing of the Company prior to such date that contained such information) that is Beneficially Owned by Yucaipa and its controlled Affiliates as of such date (including any Equity Securities owned prior to the Issue Date); provided, however, that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of Beneficial Ownership or Voting Power, all determinations shall be made as if Yucaipa beneficially owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.

Section 4. Dividends.

          (a) Rate. Holders shall be entitled to receive, if, as and when authorized by the Board of Directors or any duly authorized committee thereof and declared by the Company, but only out of assets legally available therefor, cumulative dividends accruing at the Applicable Rate (subject to increase pursuant to clause (d) below) per share per annum on the Liquidation Preference for the applicable Dividend Period. For any Dividend Period, such dividends shall be payable in cash; provided that, if and only if, either (i) the payment in full in cash of such dividends would be prohibited by the terms of the ABL Credit Agreement or (ii) insufficient assets are legally available to the Company for the payment in full of such cash dividends, such dividends shall instead be paid in additional duly authorized, validly issued and fully paid and nonassessable shares of the series of Convertible Preferred Stock in respect of which such dividend is being paid (such election, the “Convertible Preferred Stock PIK Dividend Provision”); provided further that if the Company pays such dividend in shares of Convertible Preferred Stock, no fractional shares shall be issued in payment of any such dividend, and the Company shall pay, at its option, in lieu of any fraction of a share that would otherwise be issuable in payment of such dividend, (x) cash or (y) an additional whole share. The Company must provide Holders written notice, at least five Business Days prior to the Dividend Record Date for such dividend, of any exercise of the Convertible Preferred Stock PIK Dividend Provision. Dividends shall be payable quarterly in arrears on each of March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2009, for so long as any Convertible Preferred Stock is outstanding; provided, however, that if any such day is not a Business Day, then payment of any dividend otherwise payable on that date will be made on the next succeeding day that is a Business Day, unless that day falls in the next calendar year, in which case payment of such dividend will occur on the immediately preceding Business Day (in either case, without any interest or other payment in respect of such delay) (each such day on which dividends are payable, a “Dividend Payment Date”). Accumulated and unpaid dividends for any prior Dividend Period may be paid at any time. The period from and including August 4, 2009 or any Dividend Payment Date to, but excluding, the next Dividend Payment Date is a “Dividend Period.” The record date for payment of dividends on the Convertible Preferred Stock will be the fifteenth day of the calendar month immediately preceding the month during which the Dividend Payment Date falls or such other record date fixed by the Board of Directors or any duly authorized committee thereof that is not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date will be a Dividend Record Date whether or not such day is a Business Day. The amount of the dividend per share of Convertible Preferred Stock payable will be computed on the basis of a 360-day year of twelve 30-day months.

          (b) Calculation of Non-Cash Dividends. In the event that the Company exercises the Convertible Preferred Stock PIK Dividend Provision and pays any dividend in shares of Convertible Preferred Stock, the amount of the dividend per share of Convertible Preferred Stock so payable shall be valued for such purposes at the Liquidation Preference of the Convertible Preferred Stock. The number of additional shares of Convertible Preferred Stock issuable to Holders pursuant to such Convertible Preferred Stock PIK Dividend Provision will be the number obtained by dividing (a) the amount of the dividend per share of Convertible Preferred Stock payable at the Applicable Rate (subject to increase pursuant to clause (d) below) on such applicable Dividend Payment Date by (b) the Liquidation Preference.

10

          (c) Accrual. Dividends on the Convertible Preferred Stock shall accrue whether or not the Company has earnings or profits, whether or not there are funds legally available for the payment of such dividends and whether or not dividends are declared. Dividends will accumulate to the extent they are not paid on the Dividend Payment Date for the Dividend Period to which they relate.

          (d) Dividend Step-Up.

     (i) If and whenever dividends on the Convertible Preferred Stock have not been paid in full (in cash or pursuant to the Convertible Preferred Stock PIK Dividend Provision), whether or not declared, in respect of any Dividend Period, then the Applicable Rate in respect of the dividend payable on any Dividend Payment Date shall be increased by an additional 2.00% per annum with respect to such Dividend Period. The increase in the Applicable Rate set forth herein shall be in addition to, and shall not be considered a substitution for, any remedies available for Nonpayment specified in Section 15(b).

     (ii) If the Company fails to obtain the Conversion Stockholder Approval on or prior to the six-month anniversary of the Issue Date (a “Conversion Stockholder Approval Default”), the Applicable Rate in respect of the dividend payable on any Dividend Payment Date shall be increased by an additional 2.00% per annum from the date of such Conversion Stockholder Approval Default through, but excluding, the date on which such Conversion Stockholder Approval Default shall have been cured, and until such cure shall further increase by an additional 1.00% per annum at the end of each six-month period thereafter.

          (e) Priority of Dividends. So long as any share of Convertible Preferred Stock remains outstanding and subject to the Company’s compliance with the provisions of Section 13, unless as to a Dividend Payment Date, full cumulative dividends on all outstanding shares of the Convertible Preferred Stock for all past Dividend Periods have been or are contemporaneously declared and paid and for the then current Dividend Period have been or are contemporaneously declared and paid or declared and a sum sufficient for the payment of those dividends has been set aside, the Company will not, and will cause its subsidiaries not to, during the next succeeding Dividend Period that commences on such Dividend Payment Date, declare or pay any dividend on, set apart any sum for the payment of dividends on, make any distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to, any Junior Stock or Parity Stock, or make any guarantee payment with respect thereto.

          The foregoing restriction, however, will not apply to any stock dividends paid by the Company with respect to Junior Stock where the dividend stock is the same stock as that on which the dividend is being paid.

          For so long as any share of Convertible Preferred Stock remains outstanding, if dividends are not declared and paid in full upon the shares of Convertible Preferred Stock and any Parity Stock, all dividends declared upon shares of Convertible Preferred Stock and any Parity Stock will be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends for the then-current Dividend Period per share of Convertible Preferred Stock and accrued dividends for the then-current Dividend Period per share of any Parity Stock (including, in the case of any such Parity Stock that bears cumulative dividends, all accumulated and unpaid dividends for past Dividend Periods with respect to both the Convertible Preferred Stock and such Parity Stock) bear to each other.

          Subject to the foregoing, and not otherwise, such dividends payable in cash, stock or otherwise, as may be determined by the Board of Directors or any duly authorized committee thereof, may be declared and paid on any Junior Stock and Parity Stock from time to time out of any assets legally available for such payment, and unless otherwise specifically provided, Holders will not be entitled to participate in those dividends.

          (f) Conversion Following A Record Date. If a Conversion Date for any shares of Convertible Preferred Stock is prior to the close of business on a Dividend Record Date for any declared dividend for the then-current Dividend Period, the Holder of such shares will not be entitled to any such dividend. If the Conversion Date for any shares of Convertible Preferred Stock is after the close of business on a Dividend Record Date for any declared dividend for the then-current Dividend Period, but prior to the corresponding Dividend Payment Date, the Holder of such shares shall be entitled to receive such dividend, notwithstanding the conversion of such shares prior to the Dividend Payment Date. However, such shares, upon surrender for conversion, must be accompanied by (i)

11

cash or (ii) additional shares of Convertible Preferred Stock with an aggregate Liquidation Preference equal to the dividend on such shares; provided that no such payment need be made if a conversion is made in connection with a Make-Whole Fundamental Change in accordance with the terms hereof.

          (g) Successive Adjustments. After any adjustment to the Applicable Rate under this Section 4 has been made, any subsequent event requiring an adjustment under this Section 4 shall cause an adjustment to the Applicable Rate as so adjusted. The increase in the Applicable Rate set forth in this Section 4 shall be in addition to, and shall not be considered a substitution for, any remedies set forth elsewhere in these Articles Supplementary.

Section 5. Liquidation Rights.

          (a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, Holders shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Company may be made to or set aside for the holders of any Junior Stock and subject to the rights of the holders of any class or series of securities ranking senior to or on parity with Convertible Preferred Stock upon liquidation and the rights of the Company’s creditors, to receive in full a liquidating distribution equal to the greater of (i) the amount of the Liquidation Preference, plus any accumulated and unpaid and accrued and unpaid dividends thereon up to, but excluding, the date of the liquidation, dissolution or winding up, and (ii) in lieu of any payment pursuant to clause (i) above, the amount that would be payable in such liquidation, dissolution or winding up with respect to the shares of Common Stock issuable to such Holders upon the conversion of the shares of Convertible Preferred Stock held by such Holders had such shares of Convertible Preferred Stock been converted into Common Stock immediately prior to such liquidation, dissolution or winding up; provided, that for purposes of this calculation such determination shall be made as if the Conversion Stockholder Approval has been obtained. Holders shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company other than what is expressly provided for in this Section 5.

          (b) Partial Payment. If the assets of the Company are not sufficient to pay in full the Liquidation Preference of the Convertible Preferred Stock, plus any accumulated and unpaid and accrued and unpaid dividends thereon, and the liquidation preference of any Parity Stock, plus any accumulated and unpaid and accrued and unpaid dividends thereon, any amounts paid to the Holders and to the holders of all Parity Stock shall be pro rata in accordance with the respective aggregate liquidating distributions to which they would otherwise be entitled.

          (c) Residual Distributions. If the respective aggregate liquidating distributions to which all Holders and all holders of any Parity Stock are entitled have been paid in full, the holders of Junior Stock shall be entitled to receive all remaining assets of the Company according to their respective rights and preferences.

          (d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Company shall not be deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, nor shall the merger, consolidation or any other business combination transaction of the Company into or with any other corporation or person or the merger, consolidation or any other business combination transaction of any other corporation or person into or with the Company be deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company.

          (e) Liquidation Preference Opt-Out. In determining whether a distribution (whether by voluntary or involuntary liquidation) by dividend, redemption or other acquisition of shares of stock of the Company or otherwise, is permitted under the MGCL, no effect shall be given to amounts that would be needed if the Company would be dissolved at the time of the distribution to satisfy the preferential rights upon dissolution of holders of shares of stock of the Company whose preferential rights upon dissolution are superior to those receiving the distribution.

12

Section 6. Redemption.

          Subject to the repurchase rights of the Holders set forth herein, the Convertible Preferred Stock will not be redeemable by the Company on any date prior to the Maturity Date.

Section 7. Right of the Holders to Convert.

          Except as otherwise specified herein, each Holder shall have the right, at such Holder’s option, after the first anniversary of the Issue Date (or earlier if in connection with a Fundamental Change) to convert all or any portion of such Holder’s Convertible Preferred Stock into duly authorized, validly issued and fully paid and nonassessable shares of Common Stock at the Conversion Rate per share of Convertible Preferred Stock (subject to the conversion procedures of Section 8), plus, in lieu of any fractional share, (x) cash or (y) an additional whole share of Common Stock, at the option of the Company; provided, however, that at any time prior to the receipt of the Conversion Stockholder Approval, (a) the aggregate amount of Series A-Y Convertible Preferred Stock and Series B-Y Convertible Preferred Stock will not be exercisable into more than 18.99% of the Common Stock outstanding prior to the issuance of the Convertible Preferred Stock and (b) the aggregate amount of Series A-T Convertible Preferred Stock and Series B-T Convertible Preferred Stock will not be exercisable into more than 1.00% of the Common Stock outstanding prior to the issuance of the Convertible Preferred Stock.

Section 8. Conversion Procedures.

          (a) Conversion Date. Effective immediately prior to the close of business on any applicable Conversion Date, dividends shall no longer be declared on any such converted shares of Convertible Preferred Stock and such shares of Convertible Preferred Stock shall cease to be outstanding, in each case, subject to the right of Holders to receive any declared and unpaid dividends on such shares and any other payments to which they are otherwise entitled pursuant to the terms hereof.

          (b) Rights Prior to Conversion. No allowance or adjustment, except pursuant to Section 13, shall be made in respect of dividends payable to holders of the Common Stock of record as of any date prior to the close of business on any applicable Conversion Date. Prior to the close of business on any applicable Conversion Date, shares of Common Stock issuable upon conversion of, or other securities issuable upon conversion of, any shares of Convertible Preferred Stock shall not be deemed outstanding for any purpose, and Holders shall have no rights with respect to the Common Stock or other securities issuable upon conversion (including voting rights, rights to respond to tender offers for the Common Stock or other securities issuable upon conversion and rights to receive any dividends or other distributions on the Common Stock or other securities issuable upon conversion) by virtue of holding shares of Convertible Preferred Stock, except pursuant to Section 15 hereof.

          (c) Record Holder as of Conversion Date. The Person or Persons entitled to receive the Common Stock and/or cash, securities or other property issuable upon conversion of Convertible Preferred Stock shall be treated for all purposes as the record holder(s) of such shares of Common Stock and/or securities as of the close of business on any applicable Conversion Date. In the event that a Holder shall not by written notice designate the name in which shares of Common Stock and/or cash, securities or other property to be issued or paid upon conversion of shares of Convertible Preferred Stock should be registered or paid or the manner in which such shares should be delivered, the Company shall be entitled to register and deliver such shares, and make such payment, in the name of the Holder and in the manner shown on the records of the Company.

          (d) Conversion Procedure. On the date of any conversion, if a Holder’s interest is in certificated form, a Holder must do each of the following in order to convert:

     (i) complete and manually sign the conversion notice provided by the Conversion Agent (a “Conversion Notice”), or a facsimile of the conversion notice, and deliver such irrevocable notice to the Conversion Agent;

     (ii) surrender the shares of Convertible Preferred Stock to the Conversion Agent;

13

     (iii) if required, furnish appropriate endorsements and transfer documents;

     (iv) if required, pay any stock transfer, documentary, stamp or similar taxes not payable by the Company pursuant to Section 25; and

     (v) if required pursuant to Section 4(f), pay funds equal to any declared and unpaid dividend payable on the next Dividend Payment Date to which such Holder is entitled.

          The date on which a Holder complies with the procedures in this clause (d) is the “Conversion Date.” The Conversion Agent shall, on a Holder’s behalf, convert the Convertible Preferred Stock into shares of Common Stock, in accordance with the terms of the Conversion Notice.

Section 9. Repurchase of Convertible Preferred Stock Upon a Fundamental Change.

          (a) Fundamental Change Repurchase. If a Fundamental Change occurs, at any time after December 3, 2012 (or, if the ABL Credit Agreement has been refinanced, such earlier date as permitted under the terms of the refinanced indebtedness) and, so long as any Senior Secured Notes are outstanding, after the completion of any Change of Control Offer (as defined in the Senior Secured Notes Indenture) required under the Senior Secured Notes as a result of the event that constitutes such Fundamental Change, the Convertible Preferred Stock shall be repurchased by the Company in whole or in part, out of funds legally available therefor, at the option of the Holder thereof, in cash at 101% of the Liquidation Preference of the Convertible Preferred Stock to be repurchased, plus any accumulated and unpaid and accrued and unpaid dividends thereon up to, but not including, such Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). The Fundamental Change Repurchase Date shall be a date that is no earlier than 20 Business Days and no later than 30 Business Days after the date of the Fundamental Change Notice delivered by the Company (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is on a date that is after a Dividend Record Date and on or prior to the corresponding Dividend Payment Date, the Company will pay the related dividend to the person to whom the Fundamental Change Repurchase Price is payable (and only to the extent that such dividend was not already paid as part of the Fundamental Change Repurchase Price).

          (b) Notices. On or before the twentieth day prior to the date on which the Company anticipates consummating a Fundamental Change (or, if later, promptly after the Company discovers a Fundamental Change will occur), a written notice shall be sent by or on behalf of the Company to the Holders by first-class mail setting forth the date on which it is anticipated that such Fundamental Change will occur. Within 15 days after the occurrence of a Fundamental Change, the Company shall mail a written notice of the Fundamental Change (the “Fundamental Change Notice”) by first-class mail to each Holder (the date of such mailing, the “Fundamental Change Notice Date”); provided that, if such Fundamental Change is also subject to the provisions of Section 11, any Fundamental Change Notice required to be delivered to the Holders pursuant to this Section 9 shall be mailed to each Holder by first class mail on the Fundamental Change Effective Date. The Fundamental Change Notice shall include a form of Fundamental Change Repurchase Notice to be completed by the Holder and shall state:

     (i) briefly, the nature of the Fundamental Change and the date of such Fundamental Change;

     (ii) the date by which the Fundamental Change Repurchase Notice pursuant to Section 9(c) must be given;

     (iii) the Fundamental Change Repurchase Date;

     (iv) the Fundamental Change Repurchase Price;

     (v) the name and address of (A) the bank or trust company with which funds necessary for the redemption contemplated by Section 9(a) will be deposited and (B) the paying agent and the Transfer Agent;

     (vi) the Conversion Rate and any adjustments thereto;

14

     (vii) that the Convertible Preferred Stock as to which a Fundamental Change Repurchase Notice has been given may instead be converted if such Convertible Preferred Stock are otherwise convertible pursuant to Section 7 only if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of these Articles Supplementary;

     (viii) that the Convertible Preferred Stock must be surrendered to the paying agent to collect the Fundamental Change Repurchase Price;

     (ix) briefly, the procedures the Holder must follow to exercise rights under this Section 9(b);

     (x) the procedures for withdrawing a Fundamental Change Repurchase Notice; and

     (xi) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price, dividends, if any, on the Convertible Preferred Stock surrendered for repurchase by the Company will cease to accrue on and after the Fundamental Change Repurchase Date.

          (c) Fundamental Change Repurchase Procedures. A Holder may exercise its rights specified in Section 9(a) upon delivery of a written notice of repurchase (a “Fundamental Change Repurchase Notice”) to the paying agent at any time on or prior to the close of business on the second Business Day prior to the Fundamental Change Repurchase Date, stating:

     (i) the certificate number of the Convertible Preferred Stock which the Holder will deliver to be repurchased;

     (ii) the aggregate liquidation preference of the Convertible Preferred Stock, or portion thereof, which the Holder will deliver to be repurchased; and

     (iii) that such Convertible Preferred Stock shall be repurchased pursuant to the terms and conditions specified in the applicable provisions of such Convertible Preferred Stock and these Articles Supplementary.

          The delivery of such Convertible Preferred Stock to the paying agent with the Fundamental Change Repurchase Notice at the offices of the paying agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9 only if the Convertible Preferred Stock so delivered to the paying agent shall conform in all material respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.

          (d) Termination of Rights. Any repurchase by the Company contemplated pursuant to the provisions of this Section 9 shall be consummated by the delivery of the consideration to be received by the Holder on the Business Day following the later of the Fundamental Change Repurchase Date or the satisfaction of the foregoing conditions to such repurchase to be fulfilled by the Holder hereunder. If the bank or trust company meeting the requirements set forth in Section 9(g) holds money sufficient to pay the Fundamental Change Repurchase Price of the Convertible Preferred Stock which Holders have elected to require the Company to repurchase on such Business Day in accordance with the terms of these Articles Supplementary, then, from and including the Fundamental Change Repurchase Date, such Convertible Preferred Stock shall cease to be outstanding and dividends on such Convertible Preferred Stock shall cease to accrue and all other rights of the Holders shall terminate, other than the right to receive the Fundamental Change Repurchase Price upon satisfaction of the foregoing conditions.

          (e) Effects of Fundamental Change Repurchase Notice. Upon receipt by the paying agent of the Fundamental Change Repurchase Notice specified in Section 9(c), the Holder of the Convertible Preferred Stock in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as specified in the following paragraph) thereafter be entitled to receive solely the Fundamental Change Repurchase Price with respect to such Convertible Preferred Stock. The Company shall cause

15

such Fundamental Change Repurchase Price to be paid to such Holder promptly following the later of (i) the Business Day following the Fundamental Change Repurchase Date, as the case may be, with respect to such Convertible Preferred Stock (provided the conditions in Section 9(c) have been satisfied) and (ii) the time of delivery of such Convertible Preferred Stock to the paying agent by the Holder thereof in the manner required by Section 9(c). Convertible Preferred Stock in respect of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to Section 7 hereof on or after the date of the delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly withdrawn as specified in the following paragraph.

          (f) Withdrawal. A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the paying agent in accordance with the Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day prior to the Fundamental Change Repurchase Date specifying:

     (i) the certificate number of the Convertible Preferred Stock in respect of which such notice of withdrawal is being submitted;

     (ii) the aggregate liquidation preference of the Convertible Preferred Stock, or portion thereof, with respect to which such notice of withdrawal is being submitted; and

     (iii) the aggregate liquidation preference, if any, of such Convertible Preferred Stock which remains subject to the original Fundamental Change Repurchase Notice and which has been or will be delivered for repurchase by the Holder;

provided, however, that such withdrawal shall be effective only if the description of the Convertible Preferred Stock set forth in such withdrawal notice conforms in all material respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.

          (g) Deposit of Fundamental Change Repurchase Price. Prior to 10:00 a.m. New York City time on the Business Day following the later of the Fundamental Change Repurchase Date and the Holder’s satisfaction of all applicable conditions specified in Section 9, the Company shall deposit with a bank or trust company selected by the Board of Directors doing business in the Borough of Manhattan, the City of New York, and having a capital and surplus of at least $500 million, an amount of cash (in immediately available funds if deposited on such Business Day), sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Convertible Preferred Stock or portions thereof which are to be repurchased in respect of such Fundamental Change Repurchase Date.

          (h) Convertible Preferred Stock Repurchased in Part. Any Convertible Preferred Stock which is to be repurchased only in part shall be surrendered at the office of the paying agent (with, if the Company or the Transfer Agent so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Company and the Transfer Agent duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and shall authenticate and deliver to the Holder of such Convertible Preferred Stock, without service charge, new Convertible Preferred Stock, of any authorized denomination as requested by such Holder in aggregate liquidation preference equal to, and in exchange for, the portion of the Liquidation Preference of the Convertible Preferred Stock so surrendered which is not repurchased.

Section 10. Reserved.

Section 11. Make-Whole.

          (a) Make-Whole Fundamental Change Conversion. If, after the Convertible Preferred Stock is issued, the Fundamental Change Effective Date of a Fundamental Change pursuant to paragraph (i) (without giving effect to the proviso at the end of paragraph (i) in the definition of “Fundamental Change”), (iii) (without giving effect to clause (A) under paragraph (iii) in the definition of “Fundamental Change”) or (iv) of the definition of “Fundamental Change” occurs (regardless of whether the Holder has the right to require the Company to repurchase

16

the Convertible Preferred Stock) and 10% or more of the consideration (excluding in calculating such percentage cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) for the Common Stock in the transaction consists of consideration other than common stock that is traded or scheduled to be traded immediately following such transaction on a U.S. national or regional securities exchange (including The Nasdaq Stock Market) (collectively, “Listed Common Equity”) (a “Make-Whole Fundamental Change”) and the Convertible Preferred Stock is surrendered for conversion in accordance with the procedures set forth in Section 8(d) in connection with such Fundamental Change transaction, the Company will increase the Conversion Rate by a number of additional shares of Common Stock (the “Additional Shares”) determined pursuant to this Section 11.

          A conversion of the Convertible Preferred Stock will be deemed for these purposes to be “in connection with” a Fundamental Change transaction if the related Conversion Notice is received by the Conversion Agent during the period from and including the Fundamental Change Effective Date until and including the 30th Business Day following such Fundamental Change Effective Date.

          (b) Number of Additional Shares. The number of Additional Shares by which the Conversion Rate shall be increased shall be determined by reference to the table below, with reference to the date such Fundamental Change transaction becomes effective (the “Fundamental Change Effective Date”) and the price (the “Share Price”) paid per share of Common Stock in such Fundamental Change transaction. If the holders of Common Stock receive only cash in the Fundamental Change transaction, the Share Price shall be the cash amount paid per share of Common Stock. Otherwise, the Share Price shall be the average of the Closing Prices of the Common Stock on the five Trading Days immediately prior to but not including the Fundamental Change Effective Date.

          As of any date upon which the Conversion Rate is adjusted pursuant to Section 13, the Share Prices set forth in the first row of the table below shall be adjusted by the Company such that the adjusted Share Prices shall equal the Share Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment and the denominator of which is the Conversion Rate as so adjusted pursuant to Section 13. If the Share Price is between two Share Prices in the table, or the Fundamental Change Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Prices and the two Effective Dates, as applicable, based on a 365-day year. If the Share Price is in excess of $40.00 per share (subject to adjustment as set forth herein), or if the Share Price is less than $4.00 per share (subject to adjustment as set forth herein), no Additional Shares will be added to the Conversion Rate.

Number of Additional Shares
Share Price

Effective Date	$4.00		$4.50		$5.00		$6.00		$8.00		$10.00		$15.00		$20.00		$30.00		$40.00
4-Aug-09		50.0000		46.0003		41.5267		34.8385		26.1594		21.1836		14.3705		10.9497		7.2809		5.6892
4-Aug-10		50.0000		43.9440		39.6511		33.0145		25.0260		20.2654		13.5942		10.2582		7.0385		5.1628
4-Aug-11		50.0000		41.1360		37.1115		30.9136		23.4248		18.7203		12.7812		9.5478		6.4523		5.0291
4-Aug-12		50.0000		37.2409		33.5946		27.9166		21.1402		16.8786		11.3230		8.6454		5.7261		4.4736
4-Aug-13		50.0000		31.9489		28.7922		24.0022		18.0230		14.3540		9.6154		7.3421		4.9131		3.8419
4-Aug-14		50.0000		24.8885		22.1294		18.3662		13.7871		11.0362		7.3390		5.5413		3.6946		2.7682
4-Aug-15		50.0000		22.2222		13.4875		10.6574		7.9701		6.3473		4.2364		3.1793		2.1144		1.5746
1-Aug-16		50.0000		22.2222		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000

          Notwithstanding the foregoing, in no event will the number of Additional Shares of Common Stock by which the Conversion Rate is adjusted pursuant to this Section 11 exceed 50.0000 shares, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 13.

17

          (c) Initial Make-Whole Fundamental Change Notice. On or before the twentieth day prior to the date on which the Company anticipates consummating a Make-Whole Fundamental Change (or, if later, promptly after the Company discovers a Make-Whole Fundamental Change will occur), a written notice shall be sent by or on behalf of the Company to the Holders by first-class mail. Such notice shall contain:

     (i) the date on which the Make-Whole Fundamental Change is anticipated to be effected; and

     (ii) the date, which shall be 30 Business Days after the anticipated Fundamental Change Effective Date, by which the conversion of the Convertible Preferred Stock will be deemed for purposes of this Section 11 to be in connection with a Fundamental Change transaction.

          (d) Second Make-Whole Acquisition Notice. On the Fundamental Change Effective Date, another written notice shall be sent by or on behalf of the Company to the Holders by first-class mail. Such notice shall contain:

     (i) the date that shall be 30 Business Days after the Fundamental Change Effective Date;

     (ii) the number of Additional Shares and, if applicable, the Fundamental Change Repurchase Price;

     (iii) the amount of cash, securities and other consideration payable per share of Common Stock and Convertible Preferred Stock in connection with such Fundamental Change; and

     (iv) the instructions a Holder must follow to convert its Convertible Preferred Stock in connection with such Fundamental Change transaction or to exercise rights under Section 9(b), if applicable.

Section 12. Mandatory Redemption.

          (a) Mandatory Redemption. On the Maturity Date the Company shall redeem all of the outstanding Convertible Preferred Stock at 100% of the Liquidation Preference, plus all accumulated and unpaid and accrued and unpaid dividends thereon up to, but not including, the Maturity Date, out of funds legally available for such purposes. The Company shall take all actions required or permitted under the MGCL to permit such redemption of the Convertible Preferred Stock.

          (b) Notice. At least 30 days prior to the Maturity Date, the Company shall mail a written notice by first-class mail to each Holder, which notice shall state:

     (i) the Maturity Date;

     (ii) the name and address of (A) the bank or trust company with which funds necessary for the redemption contemplated by Section 12(a) will be deposited and (B) the Transfer Agent;

     (iii) the redemption price for the Convertible Preferred Stock;

     (iv) that the Convertible Preferred Stock must be surrendered to the Transfer Agent to collect the redemption price; and

     (v) briefly, any procedures the Holder must follow to exercise rights under this Section 12.

          (c) Deposit of Funds. If on or before the Maturity Date all funds necessary for the redemption contemplated by Section 12(a) shall have been deposited with a bank or trust company selected by the Board of Directors doing business in the Borough of Manhattan, the City of New York, and having a capital and surplus of at least $500 million, for the purpose of redeeming the Convertible Preferred Stock, then, from and after the Maturity Date, dividends on the shares of the Convertible Preferred Stock shall cease to accrue and accumulate, and the shares of Convertible Preferred Stock shall no longer be deemed to be outstanding and shall not have the status of

18

shares of Convertible Preferred Stock, and all rights of the Holders thereof as stockholders of the Company (except the right to receive from the Company the redemption price) shall cease. Upon surrender of the certificates for shares so redeemed (properly endorsed or assigned for transfer, if the Company shall so require), such shares shall be redeemed by the Company at the redemption price.

          Any deposit by the Company of funds with a bank or trust company for the purpose of redeeming Convertible Preferred Stock shall be irrevocable, except that any balance of money so deposited and unclaimed by any Holders of shares of Convertible Preferred Stock entitled thereto at the expiration of two years from the Maturity Date shall be repaid, together with any interest or other earnings earned thereon, to the Company (or its successor), and after any such repayment, the Holders shall look only to the Company (or its successor) for payment without interest or other earnings.

Section 13. Anti-Dilution Adjustments.

          (a) Adjustment for Change in Capital Stock. If, after the Convertible Preferred Stock is issued, the Company:

     (i) pays a dividend or makes another distribution payable in shares of Common Stock on the Common Stock;

     (ii) subdivides the outstanding shares of Common Stock into a greater number of shares; or

     (iii) combines the outstanding shares of Common Stock into a smaller number of shares;

then the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, shall be adjusted by the Company based on the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to such Ex-Dividend Date, or effective date;

     CR₁ = the new Conversion Rate in effect immediately after such Ex-Dividend Date, or effective date;

     OS₀ = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend Date, or effective date; and

     OS₁ = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend Date, or effective date but after giving effect to such dividend, distribution, share split or share combination.

     If any dividend or distribution described in this Section 13(a) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

          (b) Adjustment for Rights Issue. If, after the Convertible Preferred Stock is issued, the Company distributes to all, or substantially all, holders of shares of Common Stock any rights, warrants or options entitling them, for a period of not more than 60 days after the date of issuance thereof, to subscribe for or to purchase shares of Common Stock at an exercise price per share of Common Stock less than the average of the Closing Prices of the Common Stock for each Trading Day in the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the time of announcement of such issuance (other than any rights, warrants or

19

options that by their terms will also be issued to Holders upon conversion of their Convertible Preferred Stock into Common Stock), then the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution shall be adjusted by the Company in accordance with the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;

     CR₁ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution (e.g., the Conversion Rate in effect before trading commences on the morning after the Ex-Dividend Date);

     OS₀ = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such distribution;

     X = the number of shares of Common Stock issuable pursuant to such rights, warrants or options; and

     Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options and (B) the average of the Closing Prices of the Common Stock for each Trading Day in the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for the issuance of such rights, warrants or options.

     For purposes of this Section 13(b), in determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Closing Prices for each Trading Day in the applicable 10-consecutive Trading Day period, there shall be taken into account any consideration the Company receives for such rights, warrants or options and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors.

     If any right, warrant or option described in this Section 13(b) is not exercised prior to the expiration of the exercisability thereof, the new Conversion Rate shall be readjusted by the Company to the Conversion Rate that would then be in effect if such right, warrant or option had not been so issued.

          (c) Adjustment for Other Distributions. If, after the Convertible Preferred Stock is issued, the Company distributes to all, or substantially all holders of its Common Stock shares of Capital Stock, evidences of indebtedness or other assets or property, excluding:

          (i) dividends, distributions, rights, warrants or options referred to in Section 13(a) or 13(b);

          (ii) dividends or distributions paid exclusively in cash; and

          (iii) Spin-Offs described below in this Section 13(c),

     then the Conversion Rate will be adjusted by the Company based on the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;

     CR₁ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;

20

     SP₀ = the average of the Closing Prices of the Common Stock for each Trading Day in the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

     FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the earlier of the Record Date or the Ex-Dividend Date for such distribution.

     With respect to an adjustment pursuant to this Section 13(c), where there has been a payment of a dividend or other distribution to all, or substantially all, holders of Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to any subsidiary of the Company or other business unit of the Company (a “Spin-Off”), then the Conversion Rate in effect immediately before the close of business on the effective date of the Spin-Off will be adjusted by the Company based on the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to the effective date of the Spin-Off;

     CR₁ = the new Conversion Rate after the Spin-Off;

     FMV₀ = the average of the Closing Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the 10-consecutive Trading Days after, and including, the effective date of the Spin-Off; and

     MP₀ = the average of the Closing Prices of the Common Stock over the 10-consecutive Trading Days after, and including, the effective date of the Spin-Off.

     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph will occur on the 10th Trading Day from, and including, the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days following, and including, the effective date of any Spin-Off, references within this Section 13(c) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date in determining the applicable Conversion Rate.

     If any such dividend or distribution described in this Section 13(c) is declared but not paid or made, the new Conversion Rate shall be readjusted by the Company to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

          (d) Adjustment for Cash Dividends. If, after the Convertible Preferred Stock is issued, the Company makes any cash dividend or distribution to all, or substantially all, holders of its outstanding Common Stock, then the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution shall be adjusted by the Company based on the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;

     CR₁ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;

21

     SP₀ = the average of the Closing Prices of the Common Stock for each Trading Day in the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

     C = the amount in cash per share that the Company distributes to holders of its Common Stock.

     If any dividend or distribution described in this Section 13(d) is declared but not so paid or made, the new Conversion Rate shall be readjusted by the Company to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

          (e) Adjustment for Common Stock Repurchases. If, after the Convertible Preferred Stock is issued, the Company or any of its subsidiaries effects a Pro Rata Repurchase of shares of Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of its Common Stock exceeds the Closing Price of a share of its Common Stock on the Trading Day following the effective date of such Pro Rata Repurchase, then the Conversion Rate in effect immediately prior to the effective date of such Pro Rata Repurchase shall be adjusted by the Company based on the following formula:

     where

     CR₀ = the Conversion Rate in effect immediately prior to the effective date of such Pro Rata Repurchase;

     CR₁ = the new Conversion Rate in effect after such Pro Rata Repurchase;

     AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for the Common Stock purchased in such Pro Rata Repurchase;

     OS₀ = the number of shares of Common Stock outstanding immediately prior to such Pro Rata Repurchase;

     OS₁ = the number of shares of Common Stock outstanding immediately after the effective date of such Pro Rata Repurchase (after giving effect to such Pro Rata Repurchase); and

     SP₁ = the average of the Closing Prices of the Common Stock for each Trading Day in the 10-consecutive Trading Day period commencing on the Trading Day following the effective date of such Pro Rata Repurchase.

     The adjustment to the Conversion Rate under this Section 13(e) will occur on the 10th Trading Day from, and including, the Trading Day following the effective date of such Pro Rata Repurchase; provided that in respect of any conversion within 10 Trading Days immediately following, and including, the effective date of such Pro Rata Repurchase, references in this Section 13(e) with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Pro Rata Repurchase and the Conversion Date in determining the Conversion Rate.

     (f) Additional Adjustments.

     (i) The Company may, from time to time, to the extent permitted by applicable law, increase the Conversion Rate by any amount for any period of at least 20 Business Days if the Board of Directors (taking into account, among other considerations, the impact of possible income or withholding taxes on the Holders) has determined that such increase would be in the Company’s best interests. The Company will give holders of Convertible Preferred Stock at least 15 days prior notice of such an increase in the Conversion Rate.

22

     (ii) To the extent that the Company has a rights plan in effect upon any conversion of the Convertible Preferred Stock into Common Stock, a Holder shall receive, in addition to the Common Stock, the rights under the rights plan, unless, prior to any conversion, the rights have separated from the Common Stock, in which case the Conversion Rate will be adjusted at the time of separation as described in Section 13(c). A further adjustment shall occur as described in Section 13(c) if such rights become exercisable to purchase different securities, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights.

     (iii) Following:

     (A) any reclassification of the Common Stock;

     (B) a consolidation, merger, binding share exchange or combination involving the Company;

     (C) a conveyance, transfer, sale, lease or other disposition to another Person or entity of all or substantially all of the Company’s assets; or

the settlement amount in respect of the Company’s conversion obligation will be computed as set forth in Section 13, based on the kind and amount of shares of stock, securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the applicable Conversion Rate multiplied by the number of shares of Convertible Preferred Stock owned would have been entitled to receive in such transaction. However, if in any such transaction holders of Common Stock would be entitled to elect the consideration for their Common Stock, the Company shall make adequate provisions so that upon conversion each Holder of Convertible Preferred Stock shall be entitled to elect the consideration that they shall receive upon conversion of Convertible Preferred Stock as described in Section 13, if applicable.

     (iv) Except as otherwise stated in this Section 13, the Company will not be required to adjust the Conversion Rate for the issuance of shares of Common Stock, including in connection with satisfaction of the Company’s conversion obligation in a combination of cash and shares of Common Stock, or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities.

          (g) De Minimis Impact on Conversion Rate. Notwithstanding anything in the forgoing provisions of this Section 13 to the contrary, the Company will not be required to adjust the Conversion Rate unless the adjustment would result in a change of at least 1% of the Conversion Rate. However, the Company will carry forward any adjustments that are less than 1% of the Conversion Rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, upon any conversion of Convertible Preferred Stock, or upon required purchases of Convertible Preferred Stock in connection with a Fundamental Change, on every one year anniversary from the Issue Date on the Record Date and immediately prior to the Maturity Date; provided that any such adjustment of less than 1% that has not been made will be made upon (x) the end of each fiscal year of the Company, (y) the date of any notice of redemption of the Convertible Preferred Stock in accordance with the provisions hereof or any notice of a Make-Whole Fundamental Change and (z) any Conversion Date.

          (h) Notice of Adjustments. Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders a notice of the adjustment. The Company shall file with the Conversion Agent such notice briefly stating the facts requiring the adjustment and the manner of computing it. The Conversion Agent shall not be under any duty or responsibility with respect to any such notice of adjustment except to exhibit the same to any Holder desiring inspection thereof. The Company shall also deliver to the Conversion Agent an Officers’ Certificate with respect to the adjustment.

          (i) Successive Adjustments. After an adjustment to the Conversion Rate under this Section 13 has been made, any subsequent event requiring an adjustment under this Section 13 shall cause an adjustment to the Conversion Rate as so adjusted.

23

          (j) Calculation of Adjustments. All adjustments to the Conversion Rate shall be calculated by the Company to the nearest 1/10,000th of one share of Common Stock (or if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share).

     (k) When No Adjustment Required.

     (i) Except as otherwise provided in this Section 13, the Conversion Rate will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing or for the repurchase of Common Stock.

     (ii) No adjustment to the Conversion Rate need be made:

     (A) upon the issuance of any shares of Common Stock pursuant to any present or future plan or arrangement providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Stock under any plan;

     (B) upon the issuance of any shares of Common Stock or options, warrants or other rights to acquire Common Stock (including the issuance of Common Stock pursuant to such options, warrants or other rights) in any transaction resulting in an exchange for fair market value, including in connection with a reduction of indebtedness or liabilities of the Company or any of its subsidiaries;

     (C) upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its subsidiaries;

     (D) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the Issue Date (or otherwise issued as a pay-in-kind dividend in respect thereof) (unless otherwise specifically provided in Section 13); or

     (E) for accumulated and unpaid and accrued and unpaid dividends on the Convertible Preferred Stock.

     (iii) No adjustment to the Conversion Rate need be made for a change in the par value or no par value of the Common Stock.

     (iv) No adjustment to the Conversion Rate will be made to the extent that such adjustment would result in the Conversion Price being less than the par value of the Common Stock.

          (l) Record Date. For purposes of this Section 13, “Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of the Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

          (m) Multiple Adjustments. For the avoidance of doubt, if an event occurs that would trigger an adjustment to the Conversion Rate pursuant to this Section 13 under more than one subsection hereof, such event, to the extent fully taken into account in a single adjustment, shall not result in multiple adjustments hereunder.

          (n) Other Adjustments. The Company may, but shall not be required to, make such increases in the Conversion Rate, in addition to those required by this Section, as the Board of Directors (taking into account, among other considerations, the impact of possible income or withholding taxes on the Holders) considers to be

24

advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reason.

          (o) Conversion Agent. The Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist that may require any adjustment of the applicable Conversion Rate or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. The Conversion Agent shall be fully authorized and protected in relying on an Officers’ Certificate and any adjustment contained therein and the Conversion Agent shall not be deemed to have knowledge of any adjustment unless and until it has received such certificate. The Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, that may at the time be issued or delivered with respect to any Convertible Preferred Stock; and the Conversion Agent makes no representation with respect thereto. The Conversion Agent shall not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock pursuant to the conversion of Convertible Preferred Stock or to comply with any of the duties, responsibilities or covenants of the Company contained in this Section 13.

          (p) Fractional Shares. No fractional shares of Common Stock will be issued to Holders of the Convertible Preferred Stock upon conversion. All shares of Common Stock (including fractional shares thereof) that would issuable upon conversion of more than one share of Convertible Preferred Stock by a Holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share of Common Stock. If after such aggregation, the conversion would result in the issuance of any fractional share of Common Stock, in lieu of issuing a fractional share of Common Stock, a Holder will be entitled to receive, at the option of the Company, (i) an amount in cash equal to the fraction of a share of Common Stock multiplied by the Closing Price of the Common Stock on the Trading Day immediately preceding the applicable Conversion Date or (ii) an additional whole share of Common Stock.

Section 14. Adjustment for Reorganization Events.

     (a) Reorganization Events. In the event of:

     (i) any consolidation or merger of the Company with or into another person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);

     (ii) any sale, transfer, lease or conveyance to another person of all or substantially all the property and assets of the Company in which holders of Common Stock would be entitled to receive cash, securities or other property for their shares of Common Stock; or

     (iii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition) or any binding share exchange which reclassifies or changes its outstanding Common Stock or pursuant to which the holders of Common Stock would be entitled to receive cash, securities or other property for their shares of Common Stock;

each of which is referred to as a “Reorganization Event,” each share of the Convertible Preferred Stock outstanding immediately prior to such Reorganization Event will, without the consent of the Holders of the Convertible Preferred Stock, become convertible into the kind and amount of securities, cash and other property (the “Exchange Property”) receivable in such Reorganization Event (without any interest thereon, and without any right to dividends or distributions thereon which have a record date that is prior to the applicable Conversion Date) per share of Common Stock by a holder of Common Stock that is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person. Upon the conversion of any Convertible Preferred Stock pursuant to Section 7 or Section 11 on each Conversion Date following a Reorganization Event, the Conversion Rate then in effect will be applied to the value on such Conversion Date of

25

such securities, cash or other property received per share of Common Stock, as determined in accordance with this Section 14.

          (b) Exchange Property Election. In the event that holders of the shares of Common Stock have the opportunity to elect the form of Exchange Property to be received in such transaction, the form of Exchange Property that the Holders shall be entitled to receive shall be determined by the Holders of two-thirds of the outstanding Convertible Preferred Stock.

          (c) Successive Reorganization Events. The Company shall make provision for the provisions of this Section 14 to similarly apply to successive Reorganization Events and the provisions of Section 13 to apply to any shares of capital stock of the Company (or any successor) received by the holders of the Common Stock in any such Reorganization Event.

          (d) Reorganization Event Notice. The Company (or any successor) shall, within 10 days of the occurrence of any Reorganization Event, provide written notice to the Holders of the occurrence of such event and of the kind and amount of cash, securities or other property that constitutes the Exchange Property. Failure to deliver such notice shall not affect the operation of this Section 14.

Section 15. Voting Rights.

          (a) General. So long as any shares of Series A Convertible Preferred Stock are outstanding, the Series A Holders shall vote together with the holders of Common Stock on all matters upon which the holders of Common Stock are entitled to vote. Each Series A Holder shall be entitled to such number of votes as the number of shares of Common Stock into which such Series A Holder’s shares of Series A Convertible Preferred Stock would be convertible at the time of the record date for any such vote (without regard to the limitations set forth in Section 7) and for the purpose of such calculation, shares of Common Stock sufficient for the full conversion of all shares of Series A Convertible Preferred Stock shall be deemed to be authorized for issuance under the Charter on such date and shall be included in such calculation; provided, however, that until such time as the Conversion Stockholder Approval has been obtained, (a) the aggregate number of votes entitled to be cast by the Series A Convertible Preferred Stock shall not exceed 19.99% of the voting power of the Common Stock outstanding immediately prior to the issuance of the Series A Convertible Preferred Stock, applied on a pro rata per share basis, among all Holders of Series A Convertible Preferred Stock and (b) the aggregate number of votes entitled to be cast by the Series A-T Convertible Preferred Stock shall not exceed 1.00% of the voting power of the Common Stock outstanding immediately prior to the issuance of the Series A Convertible Preferred Stock.

          (b) Right to Elect Preferred Directors.

     (i) Voting Right. So long as any shares of Series A-T Convertible Preferred Stock are outstanding, the Series A-T Holders shall have the right, voting separately as a single class, to the exclusion of any other Holders and the holders of Common Stock, to elect a total number of directors of the Company equal to the Series A-T Board Representation Entitlement. So long as any shares of Series A-Y Convertible Preferred Stock are outstanding, the Series A-Y Holders shall have the right, voting separately as a single class, to the exclusion of any other Holders and the holders of Common Stock, to elect a total number of directors of the Company equal to the Series A-Y Board Representation Entitlement. Each such director elected by either the Series A-T Holders or the Series A-Y Holders is a “Series A Preferred Director”. On the Issue Date, the Series A Preferred Directors elected by the Series A-T Holders shall be Christian W. E. Haub, Dr. Andreas Guldin, John D. Barline and Dr. Jens-Jürgen Böckel and the Series A Preferred Directors elected by the Series A-Y Holders shall be Frederic F. Brace and Terrence J. Wallock.

     (ii) Election. The election of the Applicable Series A Preferred Directors will take place at any annual meeting of stockholders or any special meeting of the Applicable Series A Holders, called as provided herein. If at any time the number of Applicable Series A Preferred Directors is less than the Applicable Series A Board Representation Entitlement, the Company shall promptly notify the Applicable Series A Holders and the secretary of the Company may, and upon the written request of the Applicable Series A Holders of at least 25% of the Applicable Series A Convertible Preferred Stock (addressed to the Corporate Secretary at the Company’s principal office) must (unless such request is received less than 90

26

days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), call a special meeting of the Applicable Series A Holders for the election of the number of directors necessary to make the number of the Applicable Series A Preferred Directors equal to the Applicable Series A Board Representation Entitlement. The Series A Preferred Directors shall each be entitled to one vote per director on any matter. At any meeting held for the purpose of electing the Applicable Series A Preferred Directors at which the Applicable Series A Holders shall have the right to elect directors as provided herein, the presence in person or by proxy of the Applicable Series A Holders of shares of the Applicable Series A Convertible Preferred Stock representing at least a majority in voting power of the then outstanding shares of the Applicable Series A Convertible Preferred Stock shall constitute a quorum of such class for the election of the Applicable Series A Preferred Directors. The affirmative vote of the holders of shares of Applicable Series A Convertible Preferred Stock constituting a majority of the shares of the Applicable Series A Convertible Preferred Stock present at such meeting, in person or by proxy, shall be required to elect any such Applicable Series A Preferred Director, in each case calculated on a per-directorship basis. In exercising the voting rights set forth in this Section 15(b), each share of Applicable Series A Convertible Preferred Stock shall be entitled to one vote.

     (iii) Notice of Special Meeting. Notice for a special meeting will be given in a similar manner to that provided in the Company’s by-laws for a special meeting of the stockholders. If the secretary of the Company does not call a special meeting within 20 days after receipt of any such request, then any Applicable Series A Holder may (at the expense of the Company) call such meeting, upon notice as provided in this Section 15(b)(iii), and for that purpose will have access to the stock register of the Company. The Applicable Series A Preferred Directors elected at any such special meeting will hold office until the next annual meeting of the stockholders of the Company and until their successors are duly elected and qualified unless they have been previously removed or terminated pursuant to Section 15(b)(iv) or 15(b)(v), respectively.

     (iv) Removal; Vacancy. Any Applicable Series A Preferred Director may be removed at any time without cause by the Applicable Series A Holders of a majority of the outstanding shares of the Applicable Series A Convertible Preferred Stock. In case any vacancy in the office of an Applicable Series A Preferred Director occurs (other than as a result of a termination pursuant to Section 15(b)(v)), the vacancy may be filled by the written consent of the Applicable Series A Preferred Directors remaining in office, or if none remains in office, by the vote of the Applicable Series A Holders as set forth in Section 15(b)(ii) to serve until the next annual meeting of the stockholders and until their successors are duly elected and qualified.

     (v) Termination. If at any time the number of Applicable Series A Preferred Directors exceeds the Applicable Series A Board Representation Entitlement, the number of Applicable Series A Preferred Directors shall be reduced immediately so that the total number of Applicable Series A Preferred Directors is equal to the Applicable Series A Board Representation Entitlement at such time. To effect such reduction, the term of office of the requisite number of Applicable Series A Preferred Directors shall immediately terminate, with the individual(s) whose term of office shall so terminate being determined by the Applicable Series A Preferred Directors in office immediately prior thereto. Any vacancy on the Board of Directors resulting from such cessation of the term of office of an Applicable Series A Preferred Director may be filled in accordance with the Company’s by-laws.

     (vi) Unfit Directors. At least fifteen Business Days prior to the election of any Applicable Series A Preferred Director, the Applicable Series A Holders shall submit to the Board of Directors a notice containing the name of the individual that such Applicable Series A Holders intend to elect as an Applicable Series A Preferred Director. To the extent that the Board of Directors determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to the Applicable Series A Holders), that such election would reasonably be expected to violate their duties under MGCL § 2-405.1(a) because (i) such individual is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Common Stock is listed or quoted or (ii) service by such nominee as a director of Company would reasonably be expected to violate applicable law, the New York Stock Exchange Listed Company Manual or, if the Company is not listed on the New York Stock Exchange, any comparable rule or regulation of the primary stock exchange or

27

quotation system on which the Company Common Stock is listed or quoted, the Applicable Series A Holders shall not elect such individual and shall not elect any other individual without first complying with this Section 15(b)(vi) with respect to such other individual; provided that the Series A Preferred Directors on the Issue Date shall be deemed to have been elected in accordance with this Section 15(b)(vi).

     (vii) Written Consent. Notwithstanding anything to the contrary in this Section 15(b), the Applicable Series A Holders shall be entitled to take by written consent any action described in this Section 15(b).

          (c) Voting Rights of Series B Convertible Preferred Stock. Except as provided in Sections 15(d) and 15(e), the Series B Convertible Preferred Stock shall have no voting rights.

          (d) Special Voting Right.

     (i) Voting Right. At any time when the equivalent of six quarterly dividends payable on the shares of Convertible Preferred Stock or any class or series of Parity Stock upon which voting rights equivalent to those granted by this Section 15(d) have been conferred and are exercisable (“Special Voting Parity Stock”) (whether or not consecutive and whether or not declared) are accrued and unpaid (a “Nonpayment”), the number of directors constituting the Board of Directors shall be automatically increased by two, and the Holders and the holders of any class or series of Special Voting Parity Stock, shall have the right, voting together as a single class without regard to class or series (and with voting power allocated pro rata based on the liquidation preference of such class or series), to the exclusion of the holders of Common Stock, to elect two directors of the Company to fill such newly created directorships (and to fill any vacancies in the terms of such directorships); provided that the Holders and the holders of any Special Voting Parity Stock shall not be entitled to elect such directors to the extent such election would cause the Company to violate the corporate governance requirements of The New York Stock Exchange (or other exchange on which the Company’s securities may be listed) that listed companies must have a majority of Independent Directors; provided further that the Board of Directors shall at no time include more than two such directors. The Company’s exercise of the Convertible Preferred Stock PIK Dividend Provision shall not constitute “Nonpayment” for purposes of this Section 15(d). Each such director elected by the Holders and the holders of any Special Voting Parity Stock is a “Nonpayment Preferred Director”.

     (ii) Election. The election of the Nonpayment Preferred Directors will take place at any annual meeting of stockholders or any special meeting of the Holders and the holders of any Special Voting Parity Stock, called as provided herein, and thereafter at each annual meeting until such time as all dividends in arrears on the Convertible Preferred Stock and the Special Voting Parity Stock shall have been paid in full. At any time after the special voting right has vested pursuant to Section 15(d)(i) above, the Company shall promptly notify the Holders and the holders of any Special Voting Parity Stock and the secretary of the Company may, and upon the written request of the Holders of at least 25% of the Convertible Preferred Stock or the holders of at least 25% of any class or series of Special Voting Parity Stock (addressed to the Corporate Secretary at the Company’s principal office) must (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), call a special meeting of the Holders and the holders of Special Voting Parity Stock for the election of the two directors to be elected by them as provided in Section 15(d)(iii) below. The Nonpayment Preferred Directors shall each be entitled to one vote per director on any matter. At any meeting held for the purpose of electing the Nonpayment Preferred Directors at which the Holders and the holders of any Special Voting Parity Stock shall have the right to elect directors as provided herein, the presence in person or by proxy of Holders and holders of any Special Voting Parity Stock representing at least a majority in voting power of the then outstanding shares of Convertible Preferred Stock and any Special Voting Parity Stock (voting together as a single class without regard to class or series and with voting power allocated pro rata based on liquidation preference) shall constitute a quorum of such class for the election of the Nonpayment Preferred Directors. The affirmative vote of Holders and holders of any Special Voting Parity Stock constituting two-thirds of the voting power of the Convertible Preferred Stock and any Special Voting Parity Stock present at such meeting (voting together as a single class without regard to class or series and with voting power allocated

28

pro rata based on liquidation preference), in person or by proxy, shall be required to elect any such Nonpayment Preferred Director, in each case calculated on a per-directorship basis.

     (iii) Notice of Special Meeting. Notice for a special meeting will be given in a similar manner to that provided in the Company’s by-laws for a special meeting of the stockholders. If the secretary of the Company does not call a special meeting within 20 days after receipt of any such request, then any Holder or any holder of any Special Voting Parity Stock may (at the expense of the Company) call such meeting, upon notice as provided in this Section 15(d)(iii), and for that purpose will have access to the stock register of the Company. The Nonpayment Preferred Directors elected at any such special meeting will hold office until the next annual meeting of the stockholders of the Company and until their successors are duly elected and qualified unless they have been previously removed or terminated pursuant to Section 15(d)(iv) or 15(d)(v), respectively.

     (iv) Removal; Vacancy. Any Nonpayment Preferred Director may be removed at any time without cause by the Holders of two-thirds of the voting power of the then outstanding shares of Convertible Preferred Stock and any Special Voting Parity Stock (such voting power allocated pro rata based on liquidation preference). In case any vacancy in the office of a Nonpayment Preferred Director occurs (other than prior to the initial election of the Nonpayment Preferred Directors), the vacancy may be filled by the written consent of the Nonpayment Preferred Director remaining in office, or if none remains in office, by the vote of the Holders and the holders of any Special Voting Parity Stock as set forth in Section 15(d)(ii) to serve until the next annual meeting of the stockholders and until their successors are duly elected and qualified.

     (v) Termination. Whenever the Company has paid all dividends in arrears in full, then the right of the Holders and the holders of any Special Voting Parity Stock to elect the Nonpayment Preferred Directors will cease (but subject always to the same provisions for the vesting of the special voting rights in the case of any similar non-payment of dividends in respect of future Dividend Periods). The terms of office of the Nonpayment Preferred Directors will immediately terminate, and the number of directors constituting the Board of Directors will be reduced accordingly.

     (vi) Written Consent. Notwithstanding anything to the contrary in this Section 15(d), the Holders and the holders of any Special Voting Parity Stock shall be entitled to take by written consent any action described in this Section 15(d).

          (e) Issuances; Adverse Changes. So long as any shares of Convertible Preferred Stock are outstanding, unless a greater percentage shall be required by law, the vote or consent of the Holders of at least two-thirds of the shares of Convertible Preferred Stock at the time outstanding, voting together as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating any of the following actions, whether or not such approval is required pursuant to the MGCL:

     (i) any amendment, alteration or repeal of any provision of the Charter (including these Articles Supplementary creating the Convertible Preferred Stock) or the Company’s by-laws, whether by merger, consolidation or otherwise, that would alter or change the preferences or privileges of the Convertible Preferred Stock so as to affect them adversely;

     (ii) any amendment or alteration of the Charter, whether by merger, consolidation or otherwise, to authorize or create, or increase the number of authorized shares of, or any securities convertible into shares of, or reclassify any security into, any class or series of the Company’s capital stock ranking equal or senior to the Convertible Preferred Stock in the payment of dividends or in the distribution of assets on any liquidation, dissolution or winding-up of the affairs of the Company; or

     (iii) the consummation of a binding share exchange or reclassification involving the Convertible Preferred Stock or a merger or consolidation of the Company with another entity, except that holders of Convertible Preferred Stock will have no right to vote under this provision if, in each case, (A) the Convertible Preferred Stock remains outstanding or, in the case of any such merger or consolidation with

29

respect to which the Company is not the surviving or resulting entity, is converted into or exchanged for preferred securities of the surviving or resulting entity or its ultimate parent, that is an entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and that is a corporation for U.S. federal income tax purposes (or if such entity is not a corporation, the Company having received an opinion of nationally recognized counsel experienced in such matters to the effect that Holders will be subject to tax for U.S. federal income tax purposes with respect to such new preferred securities after such merger or consolidation in the same amount, at the same time and otherwise in the same manner as would have been the case under the Convertible Preferred Stock prior to such merger or consolidation), and (B) such Convertible Preferred Stock remaining outstanding or such preferred securities, as the case may be, have such rights, preferences, privileges and voting powers, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers of the Convertible Preferred Stock, taken as a whole;

provided, however, that any increase in the number of authorized shares of preferred stock or any securities convertible into preferred stock or the creation and issuance, or an increase in the number of authorized or issued shares, of other series of preferred stock or any securities convertible into preferred stock, in each case, ranking junior to the Convertible Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) and the distribution of assets upon the Company’s liquidation, dissolution or winding up will not be deemed to adversely affect the preferences or privileges of the Convertible Preferred Stock and Holders will have no right to vote on such an increase, creation or issuance.

          In addition to the vote or consent required by the first sentence of this Section 15(e), if any amendment, alteration or repeal specified in clause (i) of the first sentence of this Section 15(e) would adversely affect one or more series of Convertible Preferred Stock disproportionately, the vote or consent of the Holders of at least two-thirds of each such series of Convertible Preferred Stock as are adversely affected by and entitled to vote on the matter, each voting as a class, will be necessary for effecting or validating such action.

          In exercising the voting rights set forth in this Section 15(e), each share of Convertible Preferred Stock shall be entitled to one vote.

Section 16. Preemption.

          The Holders shall not have any rights of preemption under these Articles Supplementary.

Section 17. Rank.

          Notwithstanding anything set forth in the Charter, including these Articles Supplementary, to the contrary, the Board of Directors or any duly authorized committee thereof, without the vote of the Holders, may authorize and issue additional shares of Junior Stock.

Section 18. Repurchase.

          Subject to the limitations imposed herein, the Company may purchase and sell Convertible Preferred Stock from time to time to such extent, in such manner, and upon such terms as the Board of Directors or any duly authorized committee thereof may determine; provided, however, that the Company shall not use any of its funds for any such purchase when there are reasonable grounds to believe that the Company is, or by such purchase would be, rendered insolvent; provided further, however, that in the event the Company beneficially owns any Convertible Preferred Stock, the Company will ensure that voting rights in respect of such Convertible Preferred Stock are not exercised.

Section 19. Reserved.

Section 20. No Sinking Fund.

          Shares of Convertible Preferred Stock are not subject to the operation of a sinking fund.

30

Section 21. Reservation of Common Stock.

          (a) Sufficient Shares. Following the Conversion Stockholder Approval and the Authorized Capital Stock Charter Amendment Approval, the Company shall at all times reserve and keep available out of its authorized and unissued Common Stock or shares acquired by the Company, solely for issuance upon the conversion of shares of Convertible Preferred Stock as provided in these Articles Supplementary, free from any preemptive or other similar rights (except for the preemptive rights set forth in the Amended and Restated Yucaipa Stockholder Agreement or the Amended and Restated Tengelmann Stockholder Agreement), such number of shares of Common Stock as shall from time to time be issuable upon the conversion of all the shares of Convertible Preferred Stock then outstanding.

          (b) Free and Clear Delivery. All shares of Common Stock delivered upon conversion of the Convertible Preferred Stock shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims, security interests and other encumbrances (other than liens, charges, security interests and other encumbrances created by the Holders).

          (c) Compliance with Law. Prior to the delivery of any securities that the Company shall be obligated to deliver upon conversion of the Convertible Preferred Stock, the Company shall use its reasonable best efforts to comply with all federal and state laws and regulations thereunder requiring the registration of such securities with, or any approval of or consent to the delivery thereof by, any governmental authority.

          (d) Listing. The Company hereby covenants and agrees that, if at any time the Common Stock shall not be listed on the New York Stock Exchange or any other national securities exchange (including The Nasdaq Stock Market) or automated quotation system, the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all the Common Stock issuable upon conversion of the Convertible Preferred Stock; provided, however, that if the rules of such exchange or automated quotation system require the Company to defer the listing of such Common Stock until the first conversion of Convertible Preferred Stock into Common Stock in accordance with the provisions hereof, the Company covenants to list such Common Stock issuable upon conversion of the Convertible Preferred Stock in accordance with the requirements of such exchange or automated quotation system at such time.

Section 22. Transfer Agent, Conversion Agent, Registrar and Paying Agent.

          The duly appointed Transfer Agent, Conversion Agent, Registrar and paying agent for the Convertible Preferred Stock shall be American Stock Transfer & Trust Company. The Company may, in its sole discretion, remove the Transfer Agent in accordance with the agreement between the Company and the Transfer Agent; provided that the Company shall appoint a successor transfer agent who shall accept such appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Company shall send notice thereof by first-class mail, postage prepaid, to the Holders.

Section 23. Replacement Certificates.

          (a) Mutilated, Destroyed, Stolen and Lost Certificates. The Company shall replace any mutilated certificate at the Holder’s expense upon surrender of that certificate to the Transfer Agent. The Company shall replace certificates that become destroyed, stolen or lost at the Holder’s expense upon delivery to the Company and the Transfer Agent of reasonably satisfactory evidence that the certificate has been destroyed, stolen or lost, together with any customary indemnity that may be required by the Transfer Agent and the Company.

          (b) Certificates Following Conversion. The Company shall not be required to issue any certificates representing the Convertible Preferred Stock on or after the applicable Conversion Date. In place of the delivery of a replacement certificate following the applicable Conversion Date, the Company shall cause the Transfer Agent, upon delivery of the evidence and indemnity described in clause (a) above, to deliver the shares of Common Stock pursuant to the terms of the Convertible Preferred Stock formerly represented by the certificate.

31

Section 24. Form and Transfer.

          (a) Certificated Preferred Stock. Shares of Convertible Preferred Stock shall be issued in the form of one or more physical certificated shares of Convertible Preferred Stock (each, a “Certificated Preferred Stock”) and, unless otherwise determined by the Company and the Transfer Agent, with a legend (the “Restricted Preferred Stock Legend”) in substantially the form attached hereto as Exhibit A, which is hereby incorporated in and expressly made a part of these Articles Supplementary. The Certificated Preferred Stock may have notations, legends or endorsements required by law, stock exchange rules, agreements between the Company and the applicable Holder, if any, or usage.

          (b) Certificated Common Stock. Shares of Common Stock issuable upon conversion of shares of Convertible Preferred Stock or delivered as payment for dividends pursuant to Section 4 of these Articles Supplementary shall be issued in the form of one or more physical certificated shares of Common Stock (each, a “Certificated Common Stock” and, together with Certificated Preferred Stock, a “Certificated Security”) and, unless otherwise determined by the Company and the Transfer Agent, with a legend (the “Restricted Common Stock Legend” and, together with the Restricted Preferred Stock Legend, the “Restricted Stock Legends”) in substantially the form attached hereto as Exhibit B.

     (c) Transfer of Securities.

     (i) The shares of Convertible Preferred Stock and the shares of Common Stock issuable upon conversion of shares of Convertible Preferred Stock (collectively, the “Securities”) have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any other applicable securities laws and may not be offered or sold except in compliance with the registration requirements of such laws, or pursuant to an exemption from such laws, or in a transaction not subject to such laws.

     (ii) When a Certificated Security bearing a Restricted Stock Legend is presented to the Transfer Agent with a request to register the transfer of such Certificated Security, the Transfer Agent shall register such transfer, subject to the rules and procedures of the Transfer Agent; provided that the Transfer Agent has received (1) a written instrument of transfer in form reasonably satisfactory to the Company and the Transfer Agent duly executed by the Holder of such Certificated Security, (2) a certificate of transfer in substantially the form attached hereto as Exhibit C or Exhibit D, as applicable, and (3) such other certifications, legal opinions and other information as the Company or the Transfer Agent may reasonably require to confirm that such transfer is being made in accordance with the transfer restrictions set forth in the Restricted Stock Legend.

     (iii) If a request is made to remove the applicable Restricted Stock Legend on any Securities, the Restricted Stock Legend shall be removed if, unless otherwise required by applicable securities laws, (1) the sale of such shares is registered under the Securities Act or (2) there is delivered to the Company and the Transfer Agent an opinion of counsel, in form, substance and scope reasonably satisfactory to the Company to the effect that a sale or transfer of such shares may be made without registration under the Securities Act.

     (iv) The Company may refuse to register any transfer of Securities that is not made in accordance with the provisions of the applicable Restricted Stock Legend; provided that the provisions of this Section 24(c) shall not be applicable to any Security that does not bear any Restricted Stock Legend.

     (v) Notwithstanding anything to the contrary in this Section 24(c), (1) the Company shall cause the Transfer Agent to exchange Series A-T Convertible Preferred Stock for Series B-T Convertible Preferred Stock if such Series A-T Convertible Preferred Stock is being transferred to a Person other than a Tengelmann Party; provided that if the Conversion Stockholder Approval has been obtained the Transfer Agent shall exchange Series A-T Convertible Preferred Stock for Series A-Y Convertible Preferred Stock if such Series A-T Convertible Preferred Stock is being transferred to a Yucaipa Party and (2) the Company shall cause the Transfer Agent to exchange Series A-Y Convertible Preferred Stock for Series B-Y Convertible Preferred Stock if such Series A-Y Convertible Preferred Stock is being transferred to a Person other than a Yucaipa Party; provided that the Transfer Agent shall exchange Series A-Y Convertible

32

Preferred Stock for Series A-T Convertible Preferred Stock if such Series A-Y Convertible Preferred Stock is being transferred to a Tengelmann Party.

Section 25. Taxes.

          (a) Transfer Taxes. The Company shall pay any and all stock transfer, documentary, stamp and similar taxes that may be payable in respect of any issuance or delivery of shares of Convertible Preferred Stock or shares of Common Stock or other securities issued on account of Convertible Preferred Stock pursuant hereto or certificates representing such shares or securities. The Company shall not, however, be required to pay any such tax that may be payable in respect of any transfer involved in the issuance or delivery of shares of Convertible Preferred Stock, shares of Common Stock or other securities in a name other than that in which the shares of Convertible Preferred Stock with respect to which such shares or other securities are issued or delivered were registered, or in respect of any payment to any Person other than a payment to the registered holder thereof, and shall not be required to make any such issuance, delivery or payment unless and until the Person otherwise entitled to such issuance, delivery or payment has paid to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid or is not payable.

          (b) Withholding. All payments and distributions (or deemed distributions) on the shares of Convertible Preferred Stock (and on the shares of Common Stock received upon their conversion) shall be subject to withholding and backup withholding of tax to the extent required by law, subject to applicable exemptions, and amounts withheld, if any, shall be treated as received by Holders.

Section 26. Notices.

          All notices referred to herein shall be in writing, and, unless otherwise specified herein, all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or three Business Days after the mailing thereof if sent by registered or certified mail (unless first class mail shall be specifically permitted for such notice under the terms of these Articles Supplementary) with postage prepaid, addressed: (i) if to the Company, to its office at 2 Paragon Drive, Montvale, New Jersey 07645 (Attention: Corporate Secretary) or to the Transfer Agent at its office at 59 Maiden Lane, New York, New York 10038 (Attention: Geraldine Zarbo), or other agent of the Company designated as permitted by these Articles Supplementary, or (ii) if to any Holder, to such Holder at the address of such Holder as listed in the stock record books of the Company (which may include the records of the Transfer Agent) or (iii) to such other address as the Company or any such Holder, as the case may be, shall have designated by notice similarly given.

          FIFTH: The shares of Convertible Preferred Stock have been classified and designated by the Board of Directors under the authority contained in the Charter.

          SIXTH: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law, namely, by the vote of a majority of directors at a meeting of the Board of Directors duly called and held.

          SEVENTH: The undersigned acknowledges these Articles Supplementary to be the corporate act of the Company and, as to all matters or facts required to be verified under oath, the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury.

33

          IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to be duly executed this 3rd day of August, 2009.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
	By:	/s/ Eric Claus
		Name:  Eric Claus
		Title:  President and Chief Executive Officer

ATTEST:
By:	/s/ Brenda Galgano
	Name:  Brenda Galgano
	Title:  Senior Vice President, Chief Financial Officer

Exhibit A

FORM OF
8% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES [•]

FACE OF SECURITY

THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS [AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENTS REFERRED TO BELOW (AS SUCH AGREEMENTS MAY BE AMENDED FROM TIME TO TIME). THIS INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF AN INVESTMENT AGREEMENT, DATED AS OF JULY 23, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN AND AN AMENDED AND RESTATED STOCKHOLDER AGREEMENT, DATED AS OF AUGUST 4, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN. THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENTS. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENTS WILL BE VOID. THE FOREGOING SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SAID AGREEMENTS, COPIES OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE]¹.

THE COMPANY IS AUTHORIZED TO ISSUE DIFFERENT CLASSES AND SERIES OF STOCK. THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES OF STOCK AND THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES FOR EACH CLASS AND SERIES OF STOCK (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF FUTURE CLASSES AND SERIES OF STOCK) WILL BE FURNISHED WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.

¹ Include the bracketed language only for Series A-Y Convertible Preferred Stock, Series B-Y Convertible Preferred Stock held by a Yucaipa Party and Series B-T Convertible Preferred Stock held by a Yucaipa Party.

A-1

Certificate Number:___ ___Shares of Convertible Preferred Stock, Series [•]

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

8% Cumulative Convertible Preferred Stock, Series [•]
(liquidation preference $1,000 per share)

     THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), hereby certifies that [HOLDER] (the “Holder”) is the registered owner of [NUMBER OF SHARES] fully paid and non-assessable shares of capital stock of the Company designated as the Convertible Preferred Stock, Series [•], without par value per share and an initial liquidation preference of $1,000.00 per share (the “Series [•] Convertible Preferred Stock”). Shares of Series [•] Convertible Preferred Stock are transferable on the books and records of the Transfer Agent and Registrar, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designation, voting powers, preferences, conversion and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Series [•] Convertible Preferred Stock represented hereby are issued and shall in all respects be subject to the provisions of the Articles Supplementary of 8% Cumulative Convertible Preferred Stock of the Company dated August 3, 2009, as the same may be amended from time to time in accordance with its terms (the “Articles Supplementary”). Capitalized terms used herein but not defined shall have the respective meanings given them in the Articles Supplementary. The Company will provide a copy of the Articles Supplementary to the Holder without charge upon written request to the Company at its principal place of business.

     Reference is hereby made to select provisions of the Series [•] Convertible Preferred Stock set forth on the reverse hereof, and to the Articles Supplementary, which select provisions and the Articles Supplementary shall for all purposes have the same effect as if set forth in this certificate.

     Upon receipt of this certificate, the Holder is bound by the Articles Supplementary and is entitled to the benefits thereunder. Unless the Registrar’s valid countersignature appears hereon, the Series [•] Convertible Preferred Stock represented hereby shall not be entitled to any benefit under the Articles Supplementary or be valid or obligatory for any purpose.

     IN WITNESS WHEREOF, the Company has executed this Series [•] Convertible Preferred Stock certificate as of the date set forth below.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

By:
Name:

Title:

By:
Name:

Title:

Dated:

A-2

REGISTRAR’S COUNTERSIGNATURE

     These are shares of Series [•] Convertible Preferred Stock referred to in the within-mentioned Articles Supplementary.

[                                        ]
as Registrar,

By:

Authorized Signatory

Dated:

A-3

REVERSE OF CERTIFICATE

     Dividends on each share of Series [•] Convertible Preferred Stock shall be payable in cash or Convertible Preferred Stock as provided in the Articles Supplementary.

     The Series [•] Convertible Preferred Stock shall be convertible into Common Stock, in the manner and in accordance with the terms of the Articles Supplementary.

     The Series [•] Convertible Preferred Stock shall be redeemable at the option of the Holder in the manner and in accordance with the terms of the Articles Supplementary.

     The Series [•] Convertible Preferred Stock is subject to mandatory redemption by the Company on August 1, 2016 in the manner and in accordance with the terms of the Articles Supplementary.

A-4

ASSIGNMENT

     FOR VALUE RECEIVED, the undersigned assigns and transfers the Series [•] Convertible Preferred Stock represented hereby to:

(Insert assignee’s social security or tax identification number)

(Insert address and zip code of assignee)

and irrevocably appoints:

agent to transfer the Series [•] Convertible Preferred Stock represented hereby on the books of the Transfer Agent and Registrar. The Transfer Agent may substitute another to act for him or her.

Date:

Signature:

(Sign exactly as your name appears on the other side of this Series [•] Convertible Preferred Stock certificate)

Signature Guarantee:

* Signature must be guaranteed by an “eligible guarantor institution” (i.e., a bank, stockbroker, savings and loan association or credit union) meeting the requirements of the Transfer Agent and Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Transfer Agent and Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

A-5

Exhibit B

FORM OF
RESTRICTED COMMON STOCK LEGEND

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.

THE COMPANY IS AUTHORIZED TO ISSUE DIFFERENT CLASSES AND SERIES OF STOCK. THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES OF STOCK AND THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES FOR EACH CLASS AND SERIES OF STOCK (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF FUTURE CLASSES AND SERIES OF STOCK) WILL BE FURNISHED WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.

B-1

Exhibit C

FORM OF
CERTIFICATE OF TRANSFER FOR CONVERTIBLE PREFERRED STOCK

(Transfers pursuant to Section 24 of the Articles Supplementary)

                                        , as Transfer Agent
[                                        ]
                    , ___[                    ]
Attn: [                                        ]

Re: The Great Atlantic & Pacific Tea Company, Inc.
Convertible Preferred Stock (the “Convertible Preferred Stock”)

     Reference is hereby made to the Articles Supplementary of 8% Cumulative Convertible Preferred Stock of the Company dated August 3, 2009, as such may be amended from time to time (the “Articles Supplementary”). Capitalized terms used but not defined herein shall have the respective meanings given them in the Articles Supplementary.

     This Letter relates to ___ shares of Convertible Preferred Stock (the “Securities”) which are held in the name of [name of transferor] (the “Transferor”) to effect the transfer of the Securities.

     In connection with such request, and in respect of the shares of Convertible Preferred Stock, the Transferor does hereby certify that the shares of Convertible Preferred Stock are being transferred in accordance with applicable securities laws of any state of the United States or any other jurisdiction:

CHECK ONE BOX BELOW:

(1)	[ ] to a transferee that the Transferor reasonably believes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A;
(2)	[ ] pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);
(3)	[ ] outside the United States in a transaction complying with Regulation S under the Securities Act; or
(4)	[ ] in accordance with another exemption from the registration requirements of the Securities Act (based upon an opinion of counsel if the Company so requests).

     Unless one of the boxes is checked, the Transfer Agent will refuse to register any of the Securities represented by this certificate in the name of any person other than the registered holder thereof; provided, however, that if box (2) or (3) is checked, the Transfer Agent shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144 or Regulation S under such Act.

[Name of Transferor]

By:

Name:

Title:

Dated:                     

cc: The Great Atlantic & Pacific Tea Company, Inc
[                                        ]
                    , ___ [                    ]
Attn: [                                        ]

C-1

Exhibit D

FORM OF
CERTIFICATE OF TRANSFER FOR COMMON STOCK

(Transfers pursuant to Section 24 of the Articles Supplementary)

                                        , as Transfer Agent
[                                        ]
                    , ___[                    ]
Attn: [                                        ]

Re: The Great Atlantic & Pacific Tea Company, Inc.
Convertible Preferred Stock (the “Convertible Preferred Stock”)

     Reference is hereby made to the Articles Supplementary of 8% Cumulative Convertible Preferred Stock of the Company dated August 3, 2009, as such may be amended from time to time (the “Articles Supplementary”). Capitalized terms used but not defined herein shall have the respective meanings given them in the Articles Supplementary.

     This Letter relates to ___ shares of Common Stock (the “Securities”) represented by the accompanying certificate(s) that were issued upon conversion of Convertible Preferred Stock and which are held in the name of [name of transferor] (the “Transferor”) to effect the transfer of the Securities.

     In connection with such request and in respect of the shares of Common Stock, the Transferor does hereby certify that the shares of Common Stock are being transferred in accordance with applicable securities laws of any state of the United States or any other jurisdiction:

CHECK ONE BOX BELOW:

(1)	[ ] to a transferee that the Transferor reasonably believes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A;
(2)	[ ] pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available);
(3)	[ ] outside the United States in a transaction complying with Regulation S under the Securities Act;
(4)	[ ] in accordance with another exemption from the registration requirements of the Securities Act (based upon an opinion of counsel if the Company so requests); or
(5)	[ ] pursuant to an effective registration statement under the Securities Act.

     Unless one of the boxes is checked, the Transfer Agent will refuse to register any of the Securities represented by this certificate in the name of any person other than the registered holder thereof; provided, however, that if box (2) or (3) is checked, the Transfer Agent shall be entitled to require, prior to registering any such transfer of the Securities, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144 or Regulation S under such Act.

[Name of Transferor]

By:

Name:

Title:

Dated:                     

cc: The Great Atlantic & Pacific Tea Company, Inc
[                                        ]
                    , ___ [                    ]
Attn: [                                        ]

D-1

EX-4.3

EXHIBIT 4.3

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

$260,000,000

11³/8% SENIOR SECURED NOTES DUE 2015

INDENTURE

DATED AS OF AUGUST 4, 2009

WILMINGTON TRUST COMPANY,

AS TRUSTEE AND COLLATERAL AGENT

THIS AGREEMENT OR INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT DATED AS OF AUGUST 4, 2009, AMONG BANK OF AMERICA, N.A., AS CREDIT FACILITY COLLATERAL AGENT, WILMINGTON TRUST COMPANY, AS NOTE COLLATERAL AGENT, THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND THE SUBSIDIARIES OF THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. PARTY THERETO (THE “INTERCREDITOR AGREEMENT”), AND EACH PARTY TO OR HOLDER UNDER THIS AGREEMENT OR INSTRUMENT, BY ITS ACCEPTANCE OF THIS INDENTURE OR ANY NOTES ISSUED HEREUNDER, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.

Table of Contents

		Page
LIST OF EXHIBITS			V
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE			1
Section 1.01.	Definitions		1
Section 1.02.	Incorporation by Reference of Trust Indenture Act		36
Section 1.03.	Rules of Construction		37
ARTICLE II. THE NOTES			37
Section 2.01.	Form and Dating		37
Section 2.02.	Execution and Authentication		39
Section 2.03.	Registrar and Paying Agent		39
Section 2.04.	Paying Agent to Hold Money in Trust		40
Section 2.05.	Holder Lists		40
Section 2.06.	Transfer and Exchange		40
Section 2.07.	Replacement Notes		57
Section 2.08.	Outstanding Notes		58
Section 2.09.	Treasury Notes		58
Section 2.10.	Temporary Notes		58
Section 2.11.	Cancellation		59
Section 2.12.	Defaulted Interest		59
ARTICLE III. REDEMPTION AND PREPAYMENT			59
Section 3.01.	Notices to Trustee		59
Section 3.02.	Selection of Notes to Be Redeemed		60
Section 3.03.	Notice of Redemption		60
Section 3.04.	Effect of Notice of Redemption		61
Section 3.05.	Deposit of Redemption Price		61
Section 3.06.	Notes Redeemed in Part		62
Section 3.07.	Optional Redemption		62
Section 3.08.	Mandatory Redemption		63
ARTICLE IV. COVENANTS			63
Section 4.01.	Payment of Notes		63
Section 4.02.	Maintenance of Office or Agency		64
Section 4.03.	Investment Company Act		64
Section 4.04.	Compliance Certificate		64
Section 4.05.	Taxes		65
Section 4.06.	Stay, Extension and Usury Laws		65
Section 4.07.	Restricted Payments		66
Section 4.08.	Incurrence of Indebtedness		69
Section 4.09.	Asset Sales		73

i

		Page
Section 4.10.	Liens		77
Section 4.11.	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries		78
Section 4.12.	Events of Loss		81
Section 4.13.	Corporate Existence		83
Section 4.14.	Offer to Repurchase upon Change of Control		83
Section 4.15.	Transactions with Affiliates		85
Section 4.16.	Designation of Restricted and Unrestricted Subsidiaries		87
Section 4.17.	Guarantees		89
Section 4.18.	Business Activities		90
Section 4.19.	Reports		90
Section 4.20.	Impairment of Security Interest		91
Section 4.21.	After-Acquired Property		92
Section 4.22.	Creation and Perfection of Liens Securing Collateral; Further Assurances		92
Section 4.23.	Insurance		93
Section 4.24.	Real Estate		94
ARTICLE V. SUCCESSORS			97
Section 5.01.	Merger, Consolidation or Sale of Assets		97
Section 5.02.	Successor Corporation Substituted		98
ARTICLE VI. DEFAULTS AND REMEDIES			98
Section 6.01.	Events of Default		98
Section 6.02.	Acceleration		100
Section 6.03.	Other Remedies		101
Section 6.04.	Waiver of Past Defaults		101
Section 6.05.	Control by Majority		102
Section 6.06.	Limitation on Suits		102
Section 6.07.	Rights of Holders of Notes to Receive Payment		102
Section 6.08.	Collection Suit by Trustee		103
Section 6.09.	Trustee May File Proofs of Claim		103
Section 6.10.	Priorities		104
Section 6.11.	Undertaking for Costs		104
Section 6.12.	Restoration of Rights and Remedies		104
Section 6.13.	Rights and Remedies Cumulative		105
Section 6.14.	Delay or Omission Not Waiver		105
ARTICLE VII. TRUSTEE			105
Section 7.01.	Duties of Trustee		105
Section 7.02.	Rights of Trustee		106
Section 7.03.	Individual Rights of Trustee		107
Section 7.04.	Trustee’s Disclaimer		108
Section 7.05.	Notice of Defaults		108

ii

		Page
Section 7.06.	Reports by Trustee to Holders of the Notes		108
Section 7.07.	Compensation and Indemnity		108
Section 7.08.	Replacement of Trustee		109
Section 7.09.	Successor Trustee by Merger, Etc.		111
Section 7.10.	Eligibility; Disqualification		111
Section 7.11.	Preferential Collection of Claims Against Company		111
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE			112
Section 8.01.	Option to Effect Legal Defeasance or Covenant Defeasance		112
Section 8.02.	Legal Defeasance and Discharge		112
Section 8.03.	Covenant Defeasance		112
Section 8.04.	Conditions to Legal or Covenant Defeasance		113
Section 8.05.	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions		115
Section 8.06.	Repayment to Company		115
Section 8.07.	Reinstatement		116
ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER			116
Section 9.01.	Without Consent of Holders of Notes		116
Section 9.02.	With Consent of Holders of Notes		118
Section 9.03.	Compliance with Trust Indenture Act		120
Section 9.04.	Revocation and Effect of Consents		120
Section 9.05.	Notation on or Exchange of Notes		120
Section 9.06.	Trustee to Sign Amendments, Etc.		120
ARTICLE X. NOTE GUARANTEES			121
Section 10.01.	Note Guarantees		121
Section 10.02.	Execution and Delivery of Note Guarantee		122
Section 10.03.	Guarantors May Consolidate or Merge on Certain Terms		122
Section 10.04.	Releases of Note Guarantees		123
Section 10.05.	Trustee to Include Paying Agent		124
Section 10.06.	Limits on Note Guarantees		124
ARTICLE XI. COLLATERAL AND SECURITY			125
Section 11.01.	Collateral Documents		125
Section 11.02.	Recording and Opinions		126
Section 11.03.	Release of Collateral		126
Section 11.04.	Disposition of Collateral Without Release		128
Section 11.05.	Authorization of Actions to Be Taken by the Trustee and the Collateral Agent Under the Collateral Documents		129
Section 11.06.	Authorization of Receipt of Funds by the Trustee under the Security Agreement		130
Section 11.07.	Intercreditor Agreement		130

iii

		Page
Section 11.08.	Limitation on Duty of Trustee and Collateral Agent in Respect of Collateral		130
Section 11.09.	Powers Exercisable by Receiver or Trustee		131
Section 11.10.	Collateral Agent		131
ARTICLE XII. SATISFACTION AND DISCHARGE			137
Section 12.01.	Satisfaction And Discharge Of Indenture		137
Section 12.02.	Application of Trust Money		138
ARTICLE XIII. MISCELLANEOUS			138
Section 13.01.	Trust Indenture Act Controls		138
Section 13.02.	Notices		138
Section 13.03.	Communication by Holders of Notes with Other Holders of Notes		139
Section 13.04.	Certificate and Opinion As to Conditions Precedent		139
Section 13.05.	Statements Required in Certificate or Opinion		140
Section 13.06.	Rules by Trustee and Agents		141
Section 13.07.	No Personal Liability of Directors, Officers, Employees and Stockholders		141
Section 13.08.	Governing Law		141
Section 13.09.	No Adverse Interpretation of Other Agreements		141
Section 13.10.	Successors		141
Section 13.11.	Severability		142
Section 13.12.	Counterpart Originals		142
Section 13.13.	Table of Contents, Headings, Etc.		142
Section 13.14.	Further Instruments and Acts		142

iv

LIST OF EXHIBITS
Exhibit A	FORM OF NOTE
Exhibit B	FORM OF CERTIFICATE OF TRANSFER
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E	FORM OF NOTE GUARANTEE
Exhibit F	FORM OF SUPPLEMENTAL INDENTURE
Schedule I	List of Guarantors
Schedule II	List of Principal Properties
Schedule III	List of Initial Mortgaged Properties

v

CROSS-REFERENCE TABLE

Reconciliation and tie between the Trust Indenture Act of 1939, as amended, and the Indenture, dated as of August 4, 2009.

TRUST INDENTURE	INDENTURE
ACT SECTION	SECTION
§310(a)(l)	7.10
(a)(2)	7.10
(a)(3)	N.A.
(a)(4)	N.A.
(a)(5)	7.10
(b)	7.03; 7.08; 7.10
(c)	N.A.
§311(a)	7.11
(b)	7.11
(c)	N.A.
§312(a)	2.05
(b)	13.03
(c)	13.03
§313(a)	7.06
(b)	7.06
(c)	7.06
(d)	7.06
§314(a)	4.04; 4.19
(b)	11.02
(c)(1)	13.04
(c)(2)	13.04
(c)(3)	11.03
(d)	11.03; 11.04
(e)	13.05
(f)	13.14
§315(a)	7.01(b)
(b)	7.05
(c)	7.01(a)
(d)	7.01(c)
(e)	6.11
§316(a)	2.08
(a)(1)(A)	6.05
(a)(1)(B)	6.04
(a)(2)	N.A.
(b)	6.07

vi

TRUST INDENTURE	INDENTURE
ACT SECTION	SECTION
(c)	N.A.
§317(a)(1)	6.08
(a)(2)	6.09
(b)	2.04
§318(a)	13.01

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

vii

INDENTURE

          THIS INDENTURE is dated as of August 4, 2009 (this “Indenture”), by and among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), the corporations and limited liability companies listed on the signature pages hereto (each, a “Guarantor” and collectively, the “Guarantors”, as more fully defined below) and WILMINGTON TRUST COMPANY, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”).

RECITALS

          The Company has duly authorized the creation and issue of its 11⅜% Senior Secured Notes due 2015 (the “Initial Notes”) of substantially the tenor and amount hereinafter set forth (subject to the ability of the Company to issue additional Notes hereunder as described herein), and to provide therefor and for, if and when issued in exchange for the Initial Notes pursuant to this Indenture and the Registration Rights Agreement (as defined herein), the Company’s 11⅜% Senior Secured Notes due 2015 (the “Exchange Notes”), the Company has duly authorized the execution and delivery of this Indenture.

          All things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company and this Indenture a valid instrument of the Company, in accordance with their respective terms, have been done.

          NOW, THEREFORE, THIS INDENTURE WITNESSETH, that, for and in consideration of the premises and the purchase of the Initial Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

ARTICLE I.

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01. Definitions.

          “144A Global Note” means a global note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

          “Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or is merged or amalgamated with or into or consolidated with the Company or a Restricted

Subsidiary or which is assumed in connection with the acquisition of assets from such Person and, in each case, not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary or such merger, amalgamation, consolidation or acquisition.

          “Additional Interest” means all additional interest then owing pursuant to the Registration Rights Agreement.

          “Additional Note Obligations” means Obligations of the Company with respect to Additional Notes permitted to be incurred under this Indenture which are secured by a Lien on the Collateral equally and ratably with the Notes issued on the Issue Date; provided that (x) such Lien is permitted to be incurred under this Indenture and (y) the Trustee or the Collateral Agent (for the benefit of the Holders of such Additional Notes) executes an appropriate amendment or supplement to the Collateral Documents executed by the Collateral Agent and the Company or the relevant Guarantor agreeing to be bound thereby, to the extent required to create or perfect a Lien for the benefit of the holders of Additional Notes.

          “Additional Notes” means an unlimited maximum principal amount of notes (other than the Notes) issued under this Indenture in accordance with the terms of this Indenture, including Sections 2.01 and 2.02 hereof, as part of the same or a different series as the Notes ranking equally with the Notes in all respects (other than the issuance dates and at the option of the Company the date from which interest will accrue), subject to compliance with Sections 4.08 and 4.10 herein. The Notes and any Additional Notes subsequently issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions, and offers to purchase.

          “Affiliate” of any specified Person means (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person or (2) any executive officer or director of such specified Person. For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

          “Affiliate Transaction” has the meaning set forth in Section 4.15 hereof.

          “After-Acquired Property” means any and all assets or property (other than Excluded Assets) acquired after the Issue Date, including any property or assets acquired by the Company or a Guarantor from another Guarantor, which in each case constitutes Collateral as defined in this Indenture.

2

          “Agent” means any Registrar, Paying Agent or co-registrar.

          “Applicable Premium” means with respect to any Note on any redemption date the greater of (i) 1.0% of the principal amount of such Note and (ii) the excess (if any) of (a) the present value at such redemption date of (1) the redemption price of such Note at August 1, 2012 as set forth under Section 3.07(c) plus (2) all required interest payments due on such Note through August 1, 2012 (excluding accrued but unpaid interest), computed using a discount rate equal to the Treasury Rate on such redemption date plus 50 basis points over (b) the principal amount of such Note.

          “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

          “Asset Sale” means (1) the sale, lease, sublease, license, consignment, conveyance or other disposition of any property or assets of the Company or any of its Restricted Subsidiaries other than a transaction governed by the provisions of this Indenture described under Section 4.14 and/or the provisions described under Section 5.01; and (2) the issuance of Equity Interests by any of the Restricted Subsidiaries of the Company or the sale by the Company or any of its Restricted Subsidiaries of Equity Interests in any of its Restricted Subsidiaries (other than directors’ qualifying shares and shares issued to foreign nationals to the extent required by applicable law). Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales: (i) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $10.0 million in the aggregate; (ii) the sale, lease, conveyance or other disposition of any property or assets between or among the Company and its Restricted Subsidiaries; (iii) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to another Restricted Subsidiary of the Company; (iv) the sale, lease, sublease, license or sublicense or consignment of equipment, inventory, accounts receivable, prescription lists or other assets in the ordinary course of business (it being understood that the sale of inventory or goods or other assets in bulk in connection with the closing or dispositions of any retail location of the Company or one of its Restricted Subsidiaries in the ordinary course of business shall be deemed to be within the meaning of this clause (iv)); (v) the licensing of intellectual property to third Persons in the ordinary course of business; (vi) the sale or other disposition of cash or Cash Equivalents; (vii) dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy, workout or similar proceedings; (viii) a Restricted Payment that is permitted by the covenant described under Section 4.07 and any Permitted Investment; (ix) any sale or disposition of any property or equipment that has become damaged, worn out, obsolete or otherwise unsuitable or not required for use in connection with the business of the Company or its Restricted Subsidiaries, whether or not in the ordinary course of business; (x) to the extent allowable under Section 1031 of the Code,

3

any exchange of like property (excluding any boot thereon) for use in a Permitted Business; (xi) the unwinding of any Hedging Obligations; (xii) the disposition of Capital Stock of an Unrestricted Subsidiary; (xiii) the creation of a Lien not prohibited by this Indenture and the sale of assets received as a result of the foreclosure upon a Lien; and (xiv) the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind.

          “Asset Sale Offer” has the meaning set forth in Section 4.09 hereof.

          “Authentication Order” has the meaning set forth in Section 2.02 hereof

          “Bank Products” means any services or facilities provided to the Company or any Guarantor by the administrative agent or any lender under the Credit Facility or any of their respective Affiliates (but excluding Cash Management Obligations) on account of, without limitation, (a) Credit Facility Hedging Obligations, (b) purchase cards, and (c) leasing.

          “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors as now or hereinafter constituted.

          “Board of Directors” means (1) with respect to a corporation, the board of directors of the corporation or, except in the context of the definitions of “Change of Control” and “Continuing Directors,” a duly authorized committee thereof, (2) with respect to a partnership, the Board of Directors of the general partner of the partnership or, if the partnership has more than one general partner, the managing general partner of the partnership and (3) with respect to any other Person, the board or committee of such Person serving a similar function.

          “Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification.

          “Borrowing Base” shall be equal to (1) 80% of the “Inventories” of the Company and its Restricted Subsidiaries, plus (2) 80% of the “Accounts receivable, net of allowance for doubtful accounts” of the Company and its Restricted Subsidiaries, plus (3) 15% of the “Property, net” of the Company and its Restricted Subsidiaries (but in no event shall the amount in clause (3) be less than $259.0 million), in each case as such amounts are shown on the Company’s most recent publicly available balance sheet.

          “Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.

          “Business Day” means any day other than a Legal Holiday.

4

          “Capital Lease” means any capital lease as determined in accordance with GAAP as in effect on the Issue Date.

          “Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP as in effect on the Issue Date.

          “Capital Stock” means (i) in the case of a corporation, corporate stock, (ii) in the case of an association or other business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

          “Cash Equivalents” means (i) United States dollars, (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof), maturing not more than one year from the date of acquisition, (iii) commercial paper rated at least P-2 by Moody’s Investors Service, Inc. or at least A-2 by Standard & Poor’s Rating Services and in each case maturing within one year after the date of the acquisition thereof, (iv) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of the acquisition thereof, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank organized under the laws of the United States (or any state, province or territory thereof) or any foreign branch thereof having capital and surplus aggregating at least $250.0 million, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, and any department, agency, board, commission, tribunal, committee or instrumentality of any of the foregoing, (v) direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision of any such state, any public instrumentality or taxing authority thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., (vi) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (v) of this definition, (vii) repurchase obligations of any commercial bank organized under the laws of the United States of America or any state thereof having capital and surplus aggregating at least $250.0 million, having a term of not more than 30 days, with respect to securities referred to in clause (ii) of this definition; and (viii) instruments equivalent to those referred to in clauses (i) to (vii) above denominated in euro or any other foreign currency comparable in credit quality and tenor to those

5

referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by a Restricted Subsidiary organized in such jurisdiction.

          “Cash Management Agreement” means any agreement with a Cash Management Bank to provide (i) Automated Clearing House (ACH) transactions, (ii) cash management services, including controlled disbursement services, treasury, depositary, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements and/or (iii) foreign exchange facilities.

          “Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Credit Facility Lender or an Affiliate of a Credit Facility Lender, in its capacity as a party to such Cash Management Agreement.

          “Cash Management Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person under or in respect of a Cash Management Agreement.

          “Casualty” means any casualty, loss, damage, destruction or other similar loss with respect to real or personal property or improvements.

          “Change of Control” means the occurrence of any of the following: (i) the direct or indirect sale, transfer, conveyance, lease or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Permitted Holder, (ii) the Company is liquidated or dissolved or adopts a plan of liquidation or dissolution, (iii) any “person” or “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act, or any successor provision), other than a Permitted Holder, in a single transaction or in a series of related transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) becomes the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision, except that for purposes of this definition, such person or group will be deemed to have “beneficial ownership” of all securities that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 50% or more of the total voting power of the Voting Stock of the Company, (iv) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors, (v) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the

6

Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for (1) Voting Stock (other than Disqualified Stock) of the surviving or transferee Person or (2) cash, securities and other property in an amount which could then be paid by the Company as a Restricted Payment under this Indenture, or a combination thereof, and (B) immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder becomes, directly or indirectly, the beneficial owner (as defined in clause (iii) above) of 50% or more of the voting power of the Voting Stock of the surviving or transferee Person or (vi) any event which would constitute a “fundamental change” as defined from time to time in the documents governing the Convertible Preferred Stock, the indenture governing the Company’s 5.125% Convertible Senior Notes due 2011 or the indenture governing the Company’s 6.75% Convertible Senior Notes due 2012, in each case, to the extent any securities issued under such instrument are outstanding upon the occurrence of such event and such fundamental change is not cured or waived in accordance with such instrument.

          “Change of Control Offer” has the meaning set forth in Section 4.14 hereof.

          “Change of Control Payment” has the meaning set forth in Section 4.14 hereof.

          “Change of Control Payment Date” has the meaning set forth in Section 4.14 hereof.

          “Clearstream” means Clearstream, société anonyme Luxembourg (or any successor securities clearing agency).

          “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder.

          “Collateral” means, collectively, the assets and property (and rights and interests in assets and property), now owned or hereafter acquired, of any Person subject to, or intended or required to be subject to, the Liens created by the Collateral Documents; provided, that Collateral shall not include any Excluded Assets so long as such assets and property (or rights and interests in assets and property) are Excluded Assets.

          “Collateral Agent” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

          “Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, the Blocked Account Agreement (as defined in the Intercreditor

7

Agreement), the Intercreditor Agreement, any mortgage or deed of trust and all other pledges, agreements, financing statements, patent, trademark or copyright filings, mortgages or other filings or documents that create or purport to create a Lien in any property or assets in favor of the Collateral Agent (for the benefit of the Trustee and the Holders of Notes), as they may be amended, modified, supplemented, restated, amended and restated or replaced from time to time, and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing.

          “Commission” means the United States Securities and Exchange Commission.

          “Company” means The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation, its successors and assigns.

          “Condemnation” means any taking by a Governmental Authority of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.

          “Condemnation Award” means all proceeds of any Condemnation or transfer in lieu thereof.

          “Consolidated Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus (i) provision for taxes paid or accrued based on income, profits or capital of such Person and its Restricted Subsidiaries (including, without limitation, state, franchise and similar taxes and foreign withholding taxes) for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income, plus (ii) Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that any such Fixed Charges were deducted in computing such Consolidated Net Income, plus (iii) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), non-cash asset impairment charges and other non-cash charges and expenses (provided that any such non-cash charges or expenses to the extent representing an accrual of or reserve for cash expenses in any future period shall reduce Consolidated Cash Flow in such future period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash charges or expenses were deducted in computing such Consolidated Net Income, plus (iv) any expenses or charges (including amortization of financing fees) related to any issuance of Equity Interests, Permitted Investment, acquisition, disposition, recapitalization or the incurrence, amendment, modification or waiver or refinancing of Indebtedness (whether or not successful) and any amendment or modification to the terms of any of the foregoing, in each case deducted (and not added back) in computing Consolidated Net Income, plus (v) the

8

amount of any minority interest expense consisting of income attributable to minority equity interests of third parties deducted (and not added back) in such period in calculating Consolidated Net Income, minus (vi) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue, in each case, on a consolidated basis.

          “Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (or loss) of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that (i) the net income or loss of any Person that is not a Restricted Subsidiary shall be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary thereof, (ii) solely for the purposes of calculating Consolidated Net Income for determining whether a Restricted Payment may be made pursuant to Section 4.07(a), the net income of any Restricted Subsidiary (other than a Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders, (iii) in the case of any Person acquired during the specified period, the net income of such Person for any period prior to the date of such acquisition shall be excluded, (iv) the cumulative effect of a change in accounting principles shall be excluded, (v) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with (A) any sale of assets outside the ordinary course of business of such Person or (B) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries shall be excluded, (vi) any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss, shall be excluded, (vii) solely for the purposes of calculating the Fixed Charge Coverage Ratio test set forth in Section 4.08(a), any non-recurring or unusual gain or loss (in each case, as determined in good faith by an executive officer of the Company), together with any related provision for taxes on such non-recurring or unusual gain or loss, shall be excluded, (viii) any non-cash goodwill or intangible asset impairment charges resulting from the application of Statement of Financial Accounting Standards Nos. 141, 141R or 142, as applicable, and non-cash charges relating to the amortization of intangibles resulting from the application of Statement of Financial Accounting Standards Nos. 141 or 141R, as applicable, shall be excluded, (ix) any charges related to restructuring, debt retirement, extinguishment of Hedging Obligations and/or store closings shall be excluded, (x) all non-cash expenses related to stock-based compensation plans or other non-cash compensation, including stock option non-cash expenses, shall be excluded, (xi) the calculation of Consolidated Net Income will not give effect to, without duplication, any deduction for (A) any increased amortization, depreciation or cost of sales resulting from the write-up of assets pursuant to Accounting

9

Principles Board Opinion Nos. 16 and 17, and (B) any nonrecurring charges relating to any premium or penalty paid, write-off of deferred financing costs or other financial recapitalization charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity, and (xii) unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of Statement of Financial Accounting Standards No. 52 shall be excluded.

          “Consolidated Net Tangible Assets” of any Person means, at any time, for such Person and its Restricted Subsidiaries on a consolidated basis, an amount equal to (a) the consolidated assets of the Person and its Restricted Subsidiaries (less applicable reserves) minus (b) the current liabilities of the Person and its Restricted Subsidiaries minus (c) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles of the Person and its Restricted Subsidiaries, all as set forth on the books and records of the Person and its Restricted Subsidiaries and in accordance with GAAP.

          “Continuing Directors” means, as of any date of determination, those members of the Board of Directors of the Company, each of whom (i) was a member of such Board of Directors on the Issue Date or (ii) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company.

          “Covenant Defeasance” has the meaning set forth in Section 8.03 hereof.

          “Convertible Preferred Stock” means the 175,000 shares of convertible preferred stock due 2016 of the Company, each with an initial liquidation preference of $1,000, to be issued on August 4, 2009 to Affiliates of Tengelmann Warenhandelsgesellschaft KG, a partnership organized under the laws of Germany (“Tengelmann”) and Yucaipa Companies, LLC, and any dividends paid thereon in additional shares of Capital Stock (including additional shares of such convertible preferred stock due 2016).

          “Credit Agreement” means that certain credit agreement, dated as of December 3, 2007 and amended and restated as of December 27, 2007, among The Great Atlantic & Pacific Tea Company, Inc. and the other Borrowers party thereto, as borrowers, the lenders party thereto, Bank of America N.A., as administrative agent and collateral agent, and Banc of America Securities LLC, as Lead Arranger, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and as the same may be amended, restated, modified, renewed,

10

refunded, replaced or refinanced from time to time, including without limitation any amendment increasing the amount of Indebtedness incurred or available to be borrowed thereunder and extending the maturity of any Indebtedness incurred or contemplated thereby, regardless of whether such amendment, restatement, modification, renewal, refunding, replacement or refinancing is with the same financial institutions or otherwise, whether in one or more facilities or agreements.

          “Credit Facilities” means one or more debt facilities, commercial paper facilities or other debt instruments, indentures or agreements (including, without limitation, the Credit Agreement), providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or other debt obligations, in each case, as amended, restated, modified, renewed, refunded, restructured, supplemented, replaced or refinanced in whole or in part from time to time, including without limitation any amendment increasing the amount of Indebtedness incurred or available to be borrowed thereunder, extending the maturity of any Indebtedness incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties thereto (whether or not such added or substituted parties are banks or other institutional lenders).

          “Credit Facility Collateral” means all of the collateral which secures obligations under a Credit Facility together with the proceeds thereof.

          “Credit Facility Collateral Agent” means Bank of America, N.A. or such other financial institution or entity which serves as collateral agent under the Credit Facility.

          “Credit Facility Hedging Obligations” means all Hedging Obligations of the Company or any of its Restricted Subsidiaries and Cash Management Obligations of the Company or any of its Restricted Subsidiaries in each case owing to a Person that is a holder of Indebtedness under a Credit Facility or an Affiliate of such holder at the time of entry into such Hedging Obligations or Cash Management Obligations.

          “Credit Facility Lenders” means each lender under a Credit Facility and any other Person that shall have become a party thereto as a lender pursuant to an assignment and assumption, other than any person that ceases to be a party thereto pursuant to an assignment and assumption.

          “Credit Facility Loan Obligations” means the payment of the principal of and interest on the loans under the Credit Facility, together with all fees and other obligations then due to the Credit Facility Lenders.

11

          “Credit Facility Obligations” means the Credit Facility Loan Obligations and the obligations on account of Cash Management Services, Credit Facility Hedging Obligations and obligations on account of other Bank Products.

          “Custodian” means any receiver, trustee, assignee, liquidator, sequester or similar official under any Bankruptcy Law.

          “Debtor Relief Laws” means the Title 11 of the U.S. Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

          “Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

          “Definitive Note” means a Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of the Notes attached hereto as Exhibit A and that does not include the information called for by footnotes 1, 2 and 4 thereof.

          “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, until a successor shall have been appointed and become such pursuant to the applicable provision of this Indenture, and, thereafter, “Depositary” shall mean or include such successor.

          “Designated Amount” has the meaning set forth in Section 4.16 hereof.

          “Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.

          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature; provided, however, that (i) only the portion of such Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior

12

to such date shall be deemed to be Disqualified Stock and (ii) with respect to any Capital Stock issued to any employee or to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability and if any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not Disqualified Stock, such Equity Interests shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control, fundamental change or an asset sale shall not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.

          “Domestic Subsidiary” means, with respect to any Person, each Subsidiary of such Person that is organized under the laws of the United States or any political subdivision thereof, and “Domestic Subsidiaries” means any two or more of them.

          “DTC” has the meaning set forth in Section 2.03 hereof.

          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

          “Equity Offering” means a public or private issuance of Capital Stock (other than Disqualified Stock) of the Company (other than (1) pursuant to a registration statement on Form S-8 or otherwise relating to Equity Interests issuable under an employee benefit plan of the Company and (2) any issuance of Convertible Preferred Stock).

          “Euroclear” means Euroclear Bank, SA/NV as operator of the Euroclear Clearance System (or any successor securities clearing agency).

          “Event of Default” has the meaning set forth in Section 6.01 hereof.

          “Event of Loss” means, with respect to any Collateral, any (1) Casualty of such Collateral, (2) Condemnation or seizure (other than pursuant to foreclosure or confiscation or requisition of the use of such Collateral) or (3) settlement in lieu of clause (2) above, in each case having a Fair Market Value in excess of $7.5 million.

13

          “Excess Proceeds” has the meaning set forth in Section 4.09 hereof.

          “Excess Proceeds Trigger Date” has the meaning set forth in Section 4.09 hereof.

          “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute.

          “Exchange Notes” has the meaning set forth in the Recitals.

          “Exchange Offer” means the offer that may be made by the Company pursuant to the Registration Rights Agreement to exchange Exchange Notes for Initial Notes.

          “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights Agreement.

          “Excluded Assets” means (i) Excluded Contracts, (ii) Excluded Equipment, (iii) any United States intent-to-use trademark application to the extent and for so long as creation of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application as determined by the Company, (iv) any assets or Equity Interests acquired by the Company or any Guarantor after the Issue Date in a transaction not prohibited by this Indenture to the extent such assets or Equity Interests are subject to a Lien permitted by clauses (v) or (vi) of the definition of Permitted Liens so long as the documents applicable to such Lien prohibit any other Lien on such assets or Equity Interests, (v) each Principal Property, except as otherwise provided under Section 4.10 hereof, (vi) any property or assets to the extent such property or assets does not constitute collateral for the benefit of the holders of the obligations under the Credit Agreement; provided, however, that this clause (vi) shall be applicable only at such time or times as the Credit Agreement is in effect, (vii) any voting equity interests of a Foreign Subsidiary in excess of 65% of all outstanding voting equity interests of a first-tier Foreign Subsidiary, (viii) any property or assets owned by any Foreign Subsidiary and (ix) SX Rule 3-16 Excluded Securities (as defined in the Pledge Agreement). Proceeds from the sale or other disposition of any of the foregoing Excluded Assets described in clauses (i) through (ix) above shall not be Excluded Assets to the extent that the assignment of such proceeds is not prohibited or to the extent not otherwise required to be paid to the holder of the Indebtedness secured by such Excluded Asset.

          “Excluded Contract” means any permit, lease, license, contract, agreement, joint venture agreement, or other instrument to which the Company or any Guarantor is a party and any Equity Interests in a joint venture to the extent the Company or such Guarantor is prohibited from granting a Lien in its rights thereunder pursuant to the terms of such permit, lease, license, contract, agreement, or other instrument, or the shareholder or other similar agreement governing such joint venture, or under applicable law (other

14

than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity).

          “Excluded Contribution” means net cash proceeds received by the Company and its Restricted Subsidiaries as capital contributions after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Company or any Restricted Subsidiary) of Equity Interests (other than Disqualified Stock) of the Company, in each case to the extent designated as an Excluded Contribution pursuant to an Officers’ Certificate and not previously included in the calculation set forth in Section 4.07(a)(3)(ii) for purposes of determining whether a Restricted Payment may be made.

          “Excluded Equipment” means at any date any assets of the Company or any Guarantor which are subject to a Lien securing Indebtedness permitted by Section 4.08(b)(iv) if and to the extent that (i) the express terms of a valid and enforceable restriction in favor of a Person who is not the Company or a Guarantor contained in the agreements or documents granting or governing such Capital Lease Obligation, mortgage financings or Purchase Money Obligation prohibits, or requires any consent or establishes any other conditions for, an assignment thereof, or a grant of a security interest therein, by the Company or the applicable Guarantor and (ii) such restriction relates only to the asset or assets acquired by the Company or the applicable Guarantor with the proceeds of such Capital Lease Obligation, mortgage financings or Purchase Money Obligation and attachments thereto or substitutions therefor.

          “Existing Indebtedness” means the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement or the Notes and the related Note Guarantees) in existence on the Issue Date.

          “Fair Market Value” means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by an executive officer of the Company. Notwithstanding the foregoing, if the Fair Market Value exceeds $25.0 million, the determination of Fair Market Value must be made by the Board of Directors of the Company and be evidenced by a Board Resolution attached to an Officers’ Certificate delivered to the Trustee.

          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any

15

Indebtedness (other than Indebtedness Incurred, repaid, repurchased or redeemed under any revolving credit facility in the ordinary course of business for working capital purposes) or issues, repurchases or redeems Disqualified Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (for purposes of this definition, the “Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of such period.

          In addition, for purposes of calculating the Fixed Charge Coverage Ratio (i) acquisitions and dispositions of business entities or property and assets constituting a division or line of business of any Person that have been made by the specified Person or any of its Restricted Subsidiaries (including any Person that becomes a Restricted Subsidiary as a result of a Permitted Investment), including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act, (ii) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded, (iii) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP shall be excluded as if such discontinued operation occurred at the beginning of the applicable four-quarter reference period and (iv) consolidated interest expense attributable to interest on any Indebtedness (whether existing or being Incurred) computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Calculation Date (taking into account any interest rate option, swap, cap or similar agreement applicable to such Indebtedness) had been the applicable rate for the entire period, and for purposes of making the computations referred to above, interest on any Indebtedness under a revolving credit facility (to the extent not excluded from the calculation of the Fixed Charge Coverage Ratio due to the operation of the first parenthetical phrase of this definition) computed on a pro forma basis shall be computed based on the weighted average daily balance of such Indebtedness during the applicable period.

          “Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of (i) the consolidated interest expense in respect of Indebtedness of such Person and its Restricted Subsidiaries for such period (excluding any non-cash interest expense arising from the application of Statement of Financial Accounting Standards No. 133 or the adoption of FASB Staff Position No. APB 14-1), whether paid or accrued, the interest component of all payments associated with Capital

16

Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letters of credit (other than trade letters of credit in the ordinary course of business) or bankers’ acceptance financings, excluding any commissions, discounts, yield and other fees and charges or interest expense related to any Qualified Receivables Transaction, and net of the effect of all payments made or received pursuant to Hedging Obligations, plus (ii) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period, plus (iii) any cash interest expense on Indebtedness of another Person that is Guaranteed by such Person or any of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, to the extent such Guarantee or Lien is called upon, plus (iv) the product of (A) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock or Preferred Stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests (other than Disqualified Stock) of the Person or to the Person or a Restricted Subsidiary of the Person, times (B) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, minus (v) interest income actually received by the Company or any Restricted Subsidiary in cash during such period, in each case, on a consolidated basis.

          “Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not a Domestic Subsidiary of such Person.

          “GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight Board and the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States, which are in effect on the Issue Date.

          “Global Note” means a Note that contains the information called for by footnote 1, the paragraphs referred to in footnote 2 and the additional schedule referred to in footnote 4 to the form of the Note attached hereto as Exhibit A.

          “Global Note Legend” means the legend set forth in Section 2.06(g)(iv), which is required to be placed on all Global Notes issued under this Indenture.

          “Government Securities” means securities that are direct obligations of the United States of America for the timely payment of which its full faith and credit are pledged.

          “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity

17

exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central bank).

          “Guarantee” means, as to any Person, a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another Person.

          “Guarantors” means any Subsidiary that executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns until released from their obligations under their Note Guarantees and this Indenture in accordance with the terms of this Indenture.

          “Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under (i) interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and other agreements or arrangements with respect to interest rates, (ii) commodity swap agreements, commodity option agreements, forward contracts and other agreements or arrangements with respect to commodity prices and (iii) foreign exchange contracts, currency swap agreements and other agreements or arrangements with respect to foreign currency exchange rates, including without limitation, the Hedging Obligations as such term is defined under the Intercreditor Agreement, the Credit Agreement or any security agreement related thereto.

          “Hedging Providers” means counterparties to any Credit Facility Hedging Obligations, including any Cash Management Bank with respect to Cash Management Obligations.

          “Holder” means a Person in whose name a Note is registered.

          “IAI Global Note” mean the global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued on the Issue Date or thereafter in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.

          “Immaterial Subsidiary” means any Subsidiary of the Company whose Total Assets equal $1.0 million or less; provided, however, that in no event shall the Total Assets of all Immaterial Subsidiaries exceed in the aggregate $10.0 million.

          “Incur” means, with respect to any Indebtedness, to incur (by merger, conversion, exchange or otherwise), create, issue, assume, Guarantee or otherwise become directly or indirectly liable for or with respect to, or become responsible for, the

18

payment of, contingently or otherwise, such Indebtedness (and “Incurrence” and “Incurred” shall have meanings correlative to the foregoing); provided that (1) any Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary of the Person will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Person and (2) neither the accrual of interest nor the accretion of original issue discount nor the payment of interest in the form of additional Indebtedness and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of Disqualified Stock or Preferred Stock (to the extent provided for when the Indebtedness or Disqualified Stock or Preferred Stock on which such interest or dividend is paid was originally issued) shall be considered an Incurrence of Indebtedness; provided that in each case the amount thereof is included in the Fixed Charges and Indebtedness of the Person or such Restricted Subsidiary as accrued to the extent required by the definitions of Fixed Charges and Indebtedness, respectively.

          “Indebtedness” means, with respect to any specified Person, all obligations of such Person, whether or not contingent (i) in respect of borrowed money, (ii) evidenced by bonds, notes, debentures, surety bonds or similar instruments or letters of credit (or reimbursement agreements in respect thereof), (iii) in respect of banker’s acceptances, (iv) in respect of Capital Lease Obligations, (v) in respect of the balance deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense, trade payable or earn-out, or (vi) representing Hedging Obligations.

          In addition, the term “Indebtedness” includes (x) all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person), provided that the amount of such Indebtedness shall be the lesser of (A) the Fair Market Value of such asset at such date of determination and (B) the amount of such Indebtedness, (y) to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person, and (z) Preferred Stock of any Restricted Subsidiary of such Person valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued dividends, provided that the “maximum fixed repurchase price” of any Preferred Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Preferred Stock, as applicable, as if such Preferred Stock were repurchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture.

          The amount of the Indebtedness in respect of any Hedging Obligations at any time shall be equal to the net amount payable as a result of the termination of such Hedging Obligations at such time. The amount of Indebtedness in respect of any letter of credit (or reimbursement agreement in respect thereof) at any time shall be equal to the amount drawn but not yet reimbursed at such time. Notwithstanding the foregoing, no operating lease of any store of the Company or any Restricted Subsidiary or residual

19

liabilities with respect to assigned leaseholds shall be deemed to be Indebtedness. The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, and shall be (1) the accreted value thereof, in the case of any Indebtedness issued with original issue discount and (2) the principal amount thereof, in the case of any other Indebtedness.

          “Indenture” means this Indenture, as amended or supplemented from time to time.

          “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

          “Initial Mortgaged Property” means each of the properties listed on Schedule III hereto.

          “Initial Mortgages” has the meaning set forth in Section 4.24 hereof.

          “Initial Notes” has the meaning set forth in the Recitals.

          “Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501 (a) (1), (2), (3), (7) under the Securities Act, who is not also a QIB.

          “Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Issue Date, between the Collateral Agent and the Credit Facility Collateral Agent and acknowledged by the Company and the Guarantors, as it may be amended, modified, supplemented, restated, amended and restated or replaced from time to time in accordance with its terms.

          “Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of loans or other extensions of credit (including Guarantees), advances, capital contributions (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP (excluding in each case accounts receivable, credit card and debit card receivables, trade credit and advances to customers made in the ordinary course of business and residual liabilities with respect to assigned leaseholds). If the Person or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Person such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Person,

20

then the Person shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Investment in such Subsidiary not sold or disposed of. The acquisition by the Person or any of its Restricted Subsidiaries of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Person or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investment held by the acquired Person in such third Person on the date of such acquisition.

          “Issue Date” means the date of original issuance of the Notes (other than Additional Notes) under this Indenture.

          “Leased Real Property” has the meaning set forth in Section 4.24 hereof.

          “Leasing Deliverables” shall include (i) (A) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the lessor of such leasehold interest, or (B) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary, in the Trustee’s or the Collateral Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, and (ii) any lessor consent or approval of such mortgage as may be required pursuant to the terms of the applicable lease with respect to such leasehold interest.

          “Legal Defeasance” has the meaning set forth in Section 8.02 hereof.

          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in The City of New York or at a place of payment are authorized or required by law, regulation or executive order to remain closed.

          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.

          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease in the nature thereof.

          “Loss Proceeds Offer” has the meaning set forth in Section 4.12 hereof.

          “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar document, together with any assignment of leases and rents referred to therein, in each case in form and substance reasonably satisfactory to the Collateral Trustee.

          “Mortgage Policies” has the meaning set forth in Section 4.24 hereof.

21

          “Net Loss Proceeds” means, with respect to any Event of Loss, the proceeds in the form of (a) cash or Cash Equivalents and (b) insurance proceeds from Condemnation Awards or damages awarded by any judgment, in each case received by the Company or any of its Restricted Subsidiaries from such Event of Loss, net of (i) reasonable out-of-pocket expenses and fees relating to such Event of Loss (including without limitation legal, accounting and appraisal or insurance adjuster fees), (ii) taxes paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements, (iii) any repayment of Indebtedness that is secured by, or directly related to, the property or assets that are the subject of such Event of Loss, (iv) amounts required to be paid to any Person (other than the Company or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Event of Loss or having a Lien thereon, and (v) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Event of Loss and retained by the Company or any Restricted Subsidiary, as the case may be, after such Event of Loss, including, without limitation, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Event of Loss.

          “Net Proceeds” means the aggregate cash proceeds, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not the interest component, thereof), received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (i) the costs relating to such Asset Sale, including, without limitation, legal, accounting, investment banking and brokerage fees, and sales commissions, and any relocation expenses incurred as a result thereof, (ii) taxes paid or payable as a result thereof, (iii) amounts required to be applied to the repayment of Indebtedness or other liabilities secured by a Lien on the asset or assets that were the subject of such Asset Sale or required to be paid as a result of such sale, (iv) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP, (v) in the case of any Asset Sale by a Restricted Subsidiary of the Company, payments to holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity Interests held by the Company or any of its Restricted Subsidiaries) and (vi) appropriate amounts to be provided by the Company or its Restricted Subsidiaries as a reserve against liabilities associated with such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined in accordance with GAAP; provided that (A) excess amounts set aside for payment of taxes pursuant to clause (ii) above remaining after such taxes have been paid in full or the statute of limitations therefor has expired and (B) amounts initially held in reserve pursuant to clause (vi) no longer so held, will, in the case of each of subclauses (A) and (B), at that time become Net Proceeds.

22

          “Non-U.S. Person” means a Person who is not a U.S. Person.

          “Note” or “Notes” means the Initial Notes, the Exchange Notes and the Additional Notes, if any.

          “Note Custodian” means the Trustee, as custodian with respect to the Global Notes, or any successor entity thereto.

          “Note Guarantee” means a Guarantee of the Notes pursuant to Article X hereof, including a notation in the Notes substantially in the form included in Exhibit E.

          “Note Obligations” means (i) all principal of, interest (including, without limitation, any interest which accrues after the commencement of any proceeding under any Debtor Relief Law with respect to any of the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding), and premium, if any, and Additional Interest, if any, on any Note, (ii) all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by the Company or any Guarantor (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding) pursuant to this Indenture, the Notes, the Intercreditor Agreement or any Collateral Document, (iii) all expenses of the Trustee or the Collateral Agent (or any agent or sub-agent thereof) under this Indenture as to which the Trustee or the Collateral Agent or one or more of such agents have a right to reimbursement or under any other similar provision of any Collateral Document, including, without limitation, any and all sums advanced by the Trustee or the Collateral Agent to preserve the Collateral or preserve its security interests, mortgages or Liens in the Collateral to the extent permitted under this Indenture, the Notes, the Intercreditor Agreement or any other Collateral Document or applicable law, and (iv) in the case of each Guarantor, all amounts now or hereafter payable by such Guarantor and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to the Company or such Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the part of such Guarantor pursuant to the Notes, this Indenture, the Note Guarantees, the Intercreditor Agreement or any other Collateral Document, together in each case with all renewals, modifications, consolidations or extensions thereof.

          “Obligations” means any principal, interest, penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

          “Offer Amount” has the meaning set forth in Section 4.09 hereof.

          “Offer Period” has the meaning set forth in Section 4.09 hereof.

23

          “Offering Memorandum” means the final offering memorandum relating to the offering of the Initial Notes dated July 30, 2009.

          “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, the Assistant Secretary or any Vice-President of such Person.

          “Officers’ Certificate” means a certificate signed on behalf of the Company by at least two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the controller, the treasurer, the assistant treasurer or the principal accounting officer of the Company, that meets the requirements of Section 13.05 hereof.

          “Opinion of Counsel” means an opinion from legal counsel (who may be counsel to, in-house counsel for or an employee of the Company) that meets the requirements of Section 13.05 hereof.

          “Pari Passu Indebtedness” has the meaning set forth in Section 4.09 hereof.

          “Pari Passu Lien Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries (including Additional Note Obligations) that is secured by a Lien on the Collateral ranking pari passu with the Liens securing the Notes.

          “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

          “Paying Agent” has the meaning set forth in Section 2.03 hereof.

          “Payment Default” has the meaning set forth in Section 6.01 hereof.

          “Permitted Business” means any business conducted or proposed to be conducted by the Company and its Restricted Subsidiaries on the Issue Date and other businesses reasonably related or ancillary thereto or extensions thereof.

          “Permitted Debt” has the meaning set forth in Section 4.08 hereof.

          “Permitted Holders” means (i) Tengelmann, (ii) each Affiliate of Tengelmann, (iii) each partner of Tengelmann and the respective members of their immediate families and (iv) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons beneficially holding a majority or more controlling interest of which consist of any one or more of the Persons described in the preceding clauses (i), (ii) and (iii).

24

          “Permitted Investments” means (i) any Investment in the Company or in a Restricted Subsidiary of the Company, (ii) any Investment in cash or Cash Equivalents, (iii) any Investment by the Company or any of its Restricted Subsidiaries in a Person, if as a result of such Investment (A) such Person becomes a Restricted Subsidiary of the Company or (B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company, (iv) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described under Section 4.09 or any disposition of assets or rights not constituting an Asset Sale by reason of the $10.0 million threshold contained in the definition thereof, (v) Investments to the extent acquired in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company, (vi) Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, (vii) stock, obligations or securities received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business or received in satisfaction of judgment, (viii) advances to customers, franchises or suppliers in the ordinary course of business, (ix) commission, payroll, travel and similar advances to officers and employees of the Company or any of its Restricted Subsidiaries in the ordinary course of business, (x) Investments consisting of the licensing or contribution of intellectual property in the ordinary course of business, (xi) Loans or advances to employees of the Company or any of its Restricted Subsidiaries in an aggregate amount outstanding not to exceed $1.5 million at any time, (xii) other Investments having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (xii) since the date hereof, not to exceed $50.0 million in the aggregate outstanding at any time, (xiii) Investments existing on the Issue Date and any extensions, renewals and replacements thereof that in each case do not materially increase the amount thereof, (xiv) Investments by the Company or a Restricted Subsidiary of the Company in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in each case, in connection with a Qualified Receivables Transaction, (xv) any Investment of the Company or any of its Restricted Subsidiaries existing on the date hereof, and any extension, modification or renewal of any such Investment, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities), in each case, pursuant to the terms of such Investment as in effect on the Issue Date, (xvi) any Investment acquired by the Company or any of its Restricted Subsidiaries (A) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of a Person, or (B) as a result

25

of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default, (xvii) Investments in joint ventures engaged in a Permitted Business not in excess of $25.0 million in the aggregate outstanding at any one time, (xviii) Investments in Unrestricted Subsidiaries not in excess of $10.0 million in the aggregate outstanding at any one time, (xix) Guarantees of Indebtedness permitted to be incurred by the primary obligor pursuant to the covenant described under Section 4.08, and (xx) Investments which are held by a Restricted Subsidiary that is acquired after the Issue Date or Investments of a Person merged into the Company or a Restricted Subsidiary after the Issue Date, to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation.

          In connection with any assets or property contributed or transferred to any Person as an Investment, such property and assets shall be equal to the Fair Market Value at the time of Investment. The amount of Investments outstanding at any time pursuant to clauses (xii), (xvii) and (xviii) shall be reduced by an amount equal to the net reduction in Investments by the Company and its Restricted Subsidiaries, subsequent to the date of this Indenture, resulting from repayments of loans or advances or other transfers of assets, in each case, to the Company or any such Restricted Subsidiary from any such Investment, or from the net cash proceeds from the sale of any such Investment, or from a redesignation of an Unrestricted Subsidiary to a Restricted Subsidiary, not to exceed, in the case of any Investment, the amount of the Investment previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

          “Permitted Liens” means: (i) subject to the priorities established by the Intercreditor Agreement, any Lien on Collateral granted in favor of the Collateral Agent, Trustee and/or Holders under Note Obligations, securing such Note Obligations, existing at the Issue Date or granted thereafter, in an aggregate principal amount not to exceed $260.0 million; (ii) Liens on any assets or property of the Company or any of its Subsidiaries granted in favor of a Hedging Provider securing Hedging Obligations pursuant to Section 4.08(b)(viii); (iii) Liens on Credit Facility Collateral which secures Indebtedness under Credit Facilities on a first priority basis (so long as the Intercreditor Agreement is in effect) (A) in an aggregate principal amount at any one time outstanding that is permitted to be incurred pursuant to Section 4.08(b)(i), plus up to $75.0 million, plus in each case the sum of the accrued and unpaid interest, fees, expenses and all other (non-principal) charges due to the lenders, under the Credit Facilities, plus (B) Cash Management Obligations, plus (C) Credit Facility Hedging Obligations, plus (D) obligations on account of other Bank Products; (iv) Liens in favor of the Company or any of its Restricted Subsidiaries; (v) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any of its Restricted Subsidiaries; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than

26

those of the Person merged into or consolidated with the Company or the Restricted Subsidiary; (vi) Liens on property existing at the time of acquisition thereof by the Company or any of its Restricted Subsidiaries, provided that such Liens were in existence prior to the contemplation of such acquisition and do not extend to any property other than the property so acquired by the Company or the Restricted Subsidiary; (vii) Liens existing on the Issue Date or resulting from operating leases existing on the Issue Date being reclassified as Capital Leases in accordance with GAAP; (viii) Liens securing Permitted Refinancing Indebtedness; provided that such Liens (A) do not extend to any property or assets other than the property or assets that secure the Indebtedness being refinanced and (B) are not materially less favorable to the Holders of the Notes and are not materially more favorable to the lienholders with respect to such Liens in respect of the Indebtedness being refinanced; (ix) Liens on property or assets used to defease or to satisfy and discharge Indebtedness; provided that (a) the Incurrence of such Indebtedness was not prohibited by this Indenture and (b) such defeasance or satisfaction and discharge is not prohibited by this Indenture; (x) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.08(b)(iv); provided that any such Lien covers only the assets acquired, constructed or improved with such Indebtedness and proceeds thereof and accessions and improvements thereto; (xi) Liens on cash or Cash Equivalents securing Hedging Obligations of the Company or any of its Restricted Subsidiaries (A) that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, or (B) securing letters of credit that support such Hedging Obligations; (xii) Liens incurred or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other social security obligations, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith; (xiii) Liens, deposits or pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of Indebtedness), leases, or other similar obligations arising in the ordinary course of business, including Liens in favor of the Trustee under this Indenture; (xiv) survey exceptions, encumbrances, easements or reservations of, or rights of other for, rights of way, zoning or other restrictions as to the use of properties, and defects in title which, in the case of any of the foregoing, were not incurred or created to secure the payment of Indebtedness; (xv) judgment and attachment Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made; (xvi) Liens, deposits or pledges to secure public or statutory obligations, surety, stay, appeal, indemnity, performance or other similar bonds or obligations; and Liens, deposits or pledges in lieu of such bonds or obligations, or to secure such bonds or obligations, or to secure letters of credit in lieu of or supporting the payment of such bonds or obligations; (xvii) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Subsidiary thereof on deposit with or in possession of such bank; (xviii) any interest or title of a lessor, licensor or sublicensor in

27

the property subject to any lease, license or sublicense; (xix) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Company or any of its Restricted Subsidiaries relating to such property or assets; (xx) Liens of franchisors in the ordinary course of business not securing Indebtedness; (xxi) Liens for taxes, assessments and governmental charges not yet delinquent or being contested in good faith; (xxii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue or are being contested in good faith by appropriate proceedings; (xxiii) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of letters of credit or bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (xxiv) deposits in the ordinary course of business to secure liability to insurance carriers; (xxv) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; (xxvi) Liens (A) of a collection bank arising under Section 4-210 of the Uniform Commercial Code (or equivalent statutes) on items in the course of collection, (B) attaching to commodity trading accounts or other commodity brokerage amounts incurred in the ordinary course of business and (C) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry; (xxvii) Liens on cash and Cash Equivalents to secure letters of credit for the account of any Person that were in existence prior to, and not in contemplation of, the acquisition of such Person by the Company or any of its Restricted Subsidiaries pending the replacement thereof with letters of credit issued under the Credit Agreement; provided that the aggregate Fair Market Value of all cash and Cash Equivalents subject to such Liens pursuant to this clause (xxvii) shall not at any time exceed $10.0 million, (xxviii) Liens on any assets of any of the Company’s Foreign Subsidiaries that are granted to lenders under a Credit Facility within the jurisdiction of such Foreign Subsidiary, provided that the Indebtedness Incurred pursuant to such Credit Facility is otherwise permitted to be Incurred by this Indenture; (xxix) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any obligations secured by any Lien referred to in the foregoing clauses (i), (iii), (v), (vi), (vii), (viii), (x), (xxvii), (xxx) and (xxxiv); provided, however, that (A) such new Lien shall be limited to all or part of the same property or assets that secured the original Lien (plus improvements and accessions on such property or assets and proceeds thereof) and (B) the obligations secured by such Lien at such time are not increased to any amount greater than the sum of (x) the outstanding amount or, if greater, committed amount of the Indebtedness described under clauses (i), (iii), (v), (vi), (vii), (viii), (x), (xxvii), (xxx) and (xxxiv) at the time the original Lien became a Permitted Lien under this Indenture and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; (xxx) Liens securing Pari Passu Lien

28

Indebtedness (including Additional Note Obligations) in an aggregate principal amount at any one time outstanding not to exceed the greater of (A) $100.0 million and (B) such amount as would not cause the Senior Secured Leverage Ratio as of the date of incurrence and immediately after giving effect to the incurrence thereof to exceed 4.25 to 1.0; (xxxi) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (xxxii) Liens solely on any cash earnest money deposits made by the Company or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Indenture; (xxxiii) Liens on assets of a Receivables Subsidiary arising in connection with a Qualified Receivables Transaction; and (xxxiv) Additional Liens incurred by the Company or any of its Restricted Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $10.0 million.

          “Permitted Refinancing Indebtedness” means: (a) any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its Restricted Subsidiaries (other than Disqualified Stock and intercompany Indebtedness); provided that (1) the principal amount of such Permitted Refinancing Indebtedness does not exceed the principal amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued and unpaid interest thereon and the amount of any premiums, fees and expenses paid to accomplish such refinancing), (2) such Permitted Refinancing Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is Subordinated Indebtedness, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees, as applicable, on terms at least as favorable, taken as a whole, to the Holders of Notes as those contained in the documentation governing the Subordinated Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is pari passu in right of payment with the Notes or any Note Guarantees, such Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of payment to, the Notes or such Note Guarantees, and (5) such Indebtedness is Incurred by either (A) the Restricted Subsidiary that is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded or (B) the Company; and (b) any Disqualified Stock of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace or refund Indebtedness or other Disqualified Stock of the Company or any of its Restricted Subsidiaries (other than Indebtedness or Disqualified Stock held by the Company or any of its Restricted Subsidiaries); provided that (1) the liquidation or face value of such Permitted

29

Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness, or the liquidation or face value of the Disqualified Stock, as applicable, so extended, refinanced, renewed, replaced or refunded (plus all accrued and unpaid interest or dividends thereon and the amount of any reasonably determined premium necessary to accomplish such refinancing and such reasonable expenses incurred in connection therewith), (2) such Permitted Refinancing Indebtedness has a final redemption date equal to or later than the final maturity or redemption date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness or Disqualified Stock being extended, refinanced, renewed, replaced or refunded, (3) such Permitted Refinancing Indebtedness has a final redemption date equal to or later than the final maturity date of the Notes and is subordinated in right of payment to the Notes, on terms at least as favorable, taken as a whole, to the Holders of Notes as contained in the documentation governing the Indebtedness or Disqualified Stock being extended, refinanced, renewed, replaced or refunded, (4) such Permitted Refinancing Indebtedness is not redeemable at the option of the holder thereof or mandatorily redeemable prior to the final maturity or redemption date of the Indebtedness or Disqualified Stock being extended, refinanced, renewed, replaced or refunded, and (5) such Disqualified Stock is issued by either (A) the Restricted Subsidiary that is the obligor on the Indebtedness or the issuer of the Disqualified Stock being extended, refinanced, renewed, replaced or refunded, (B) a Guarantor or (C) the Company.

          “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or Governmental Authority or other entity.

          “Pledge Agreement” means the pledge agreement, dated as of the Issue Date, among the Company, the other parties thereto from time to time, and the Collateral Agent, as such agreement may be amended, supplemented, restated, amended and restated, or otherwise modified from time to time.

          “Preferred Stock” means, with respect to any Person, any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions upon liquidation.

          “Principal Property” has the meaning ascribed to it in the QUIBS Indenture, but includes in any event any property identified on Schedule II hereto.

          “Private Placement Legend” means the legend set forth in Section 2.06(g)(iii) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

          “Purchase Date” has the meaning set forth in Section 4.09 hereof.

30

          “Purchase Money Obligation” means Indebtedness of the Company or any Restricted Subsidiary incurred for the purpose of financing all or any part of the purchase price of property, plant or equipment used in the business of the Company or any Restricted Subsidiary or the cost of installation, construction or improvement thereof, and the payment of any sales or other taxes associated therewith; provided, however, that (i) the amount of such Indebtedness shall not exceed such purchase price or cost and payment plus applicable taxes, and (ii) such Indebtedness shall be incurred within one year of such acquisition of such asset by the Company or such Restricted Subsidiary or such installation, construction or improvement.

          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.

          “Qualified Receivables Transaction” means any transaction or series of transactions entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or such Restricted Subsidiary transfers to (a) a Receivables Subsidiary (in the case of a transfer by the Company or any of its Restricted Subsidiaries) or (b) any other Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company of any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms as determined in good faith by the Board of Directors of the Company at the time the Company or such Restricted Subsidiary enters into such transaction.

          “QUIBS” means all of the Company’s outstanding 9 3/8% Senior Quarterly Interest Bonds due 2039 issued under the QUIBS Indenture.

          “QUIBS Indenture” means the Company’s indenture, dated as of January 1, 1991, governing the QUIBS.

          “Receivables Subsidiary” means a Subsidiary of the Company (i) that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable of the Company and/or its Restricted Subsidiaries, (ii) that is designated by the Board of Directors as a “Receivables Subsidiary” pursuant to a Board Resolution set forth in an Officers’ Certificate and delivered to the Trustee, (iii) that is either (A) a Restricted Subsidiary or (B) an Unrestricted Subsidiary designated in accordance with the covenant described under Section 4.16, (iv) no portion of the Indebtedness or any other obligation (contingent or otherwise) of which (A) is at any time Guaranteed by the Company or any Restricted Subsidiary (excluding Guarantees of obligations (other than any Guarantee of Indebtedness) pursuant to Standard Securitization Undertakings), (B) is at any time

31

recourse to or obligates the Company or any Restricted Subsidiary in any way, other than pursuant to Standard Securitization Undertakings or (C) subjects any asset of the Company or any other Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (v) with which neither the Company nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding other than (A) contracts, agreements, arrangements and understandings entered into in the ordinary course of business on terms no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company in connection with a Qualified Receivables Transaction as determined in good faith by the Board of Directors of the Company and (B) fees payable in the ordinary course of business in connection with servicing accounts receivable, as determined in good faith by the Board of Directors of the Company, and (vi) with respect to which neither the Company nor any other Restricted Subsidiary has any obligation (A) to subscribe for additional shares of Capital Stock therein or make any additional capital contribution or similar payment or transfer thereto except in connection with a Qualified Receivables Transaction or (B) to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

          “Registrar” has the meaning set forth in Section 2.03 hereof.

          “Registration Rights Agreement” means (i) the Registration Rights Agreement, dated as of August 4, 2009, by and among the Company and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and (ii) with respect to any Additional Notes issued subsequent to August 4, 2009, the Registration Rights Agreement entered into for the benefit of the holders of such Additional Notes, if any.

          “Regulations S” means Regulation S promulgated under the Securities Act.

          “Regulation S Global Note” means a Global Note bearing the Private Placement Legend and deposited with or on behalf of the Depositary and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903 of Regulation S.

          “Replacement Assets” means (i) assets (other than cash or Cash Equivalents) that will be used or useful in a Permitted Business, (ii) substantially all the assets of a Permitted Business or a majority of the Voting Stock of any Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary of such Person or (iii) a combination thereof.

          “Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions

32

similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer or employee to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

          “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

          “Restricted Global Note” means a Global Note bearing the Private Placement Legend.

          “Restricted Investment” means an Investment other than a Permitted Investment.

          “Restricted Payments” has the meaning set forth in Section 4.07 hereof.

          “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise specified, a “Restricted Subsidiary” shall be deemed to be a Restricted Subsidiary of the Company.

          “Rule 144” means Rule 144 promulgated under the Securities Act.

          “Rule 144A” means Rule 144A promulgated under the Securities Act.

          “Rule 903” means Rule 903 promulgated under the Securities Act.

          “Rule 904” means Rule 904 promulgated under the Securities Act.

          “Securities Act” means the Securities Act of 1933, as amended, or any successor statute.

          “Security Agreement” means the security agreement, dated as of the Issue Date, among the Company, the other parties thereto from time to time, and the Collateral Agent, as such agreement may be amended, supplemented, restated, amended and restated, or otherwise modified from time to time.

          “Senior Secured Debt” means with respect to any specified Person for any period, the aggregate principal amount of Indebtedness of such Person and its Restricted Subsidiaries that consists of, without duplication, Indebtedness that is then secured by a Lien on property or assets of such Person and its Restricted Subsidiaries (including, without limitation, Capital Stock of another Person owned by such Person but excluding property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby).

          “Senior Secured Leverage Ratio” means with respect to any specified Person for any period, the ratio of Senior Secured Debt outstanding as of such date

33

(assuming any commitments for Senior Secured Debt were fully drawn) to Consolidated Cash Flow for the period of four consecutive fiscal quarters of such Person most recently ended, all on a consolidated basis, determined in accordance with GAAP; provided, that, Senior Secured Debt and Consolidated Cash Flow shall be determined for the relevant period on a pro forma basis in a manner consistent with the pro forma and other adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.

          “Shelf Registration Statement” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

          “Significant Subsidiary” means any Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X of the Securities Act, as in effect on the Issue Date.

          “Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Restricted Subsidiary which are reasonably customary in an accounts receivable securitization transaction as determined in good faith by the Board of Directors of the Company.

          “Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. The Stated Maturity of any intercompany Indebtedness payable upon demand shall be the date of demand of payment under such Indebtedness.

          “Subordinated Indebtedness” means any Indebtedness of the Company or any Guarantor that is subordinated in right of payment to the Notes or the Note Guarantee of such Guarantor, respectively (it being understood that no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or being secured by a junior priority lien or by virtue of the fact that the holders of such Indebtedness have entered into intercreditor agreements or other agreements giving one or more of such holders priority over the other holders to the collateral held by them).

          “Subsidiary” means, with respect to any specified Person (i) any corporation, association, limited liability company or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof) and (ii) any partnership (A) the sole general partner or the managing general partner of which is

34

such Person or a Subsidiary of such Person or (B) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

          “Surviving Entity” has the meaning set forth in Section 5.01 hereof.

          “Tenderable Indebtedness” has the meaning set forth in Section 4.09 hereof.

          “TIA” means the Trust Indenture Act of 1939 (15 U.S.C.ss.ss.77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA.

          “Total Assets” means, with respect to any Person, the total amount of all assets of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP as shown on the most recent balance sheet of such Person.

          “Transfer Restricted Securities” means securities that bear or are required to bear the legend set forth in Section 2.06(g)(iii) hereof.

          “Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to August 1, 2012; provided, however, that if the period from such redemption date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

          “Trustee” means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

          “Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.

          “Unrestricted Global Note” means a permanent Global Note substantially in the form of Exhibit A attached hereto that bears the Global Note Legend and that has the “Schedule of Increases and Decreases of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing a series of Notes that do not bear the Private Placement Legend.

          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a Board Resolution in compliance with Section 4.16, and any Subsidiary of such Subsidiary.

35

          “U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.

          “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

          “Weighted Average Life to Maturity” means, when applied to any Indebtedness or Disqualified Stock, as the case may be, at any date, the quotient obtained by dividing (i) the sum of the products of the number of years (calculated to the nearest one-twelfth) from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock (excluding any payment of interest or dividends thereon) multiplied by the amount of such payment, by (ii) the sum of all such payments.

          “Wholly Owned Restricted Subsidiary” of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or Investments by foreign nationals mandated by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.

Section 1.02. Incorporation by Reference of Trust Indenture Act.

          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

          The following TIA terms used in this Indenture have the following meanings:

          “indenture securities” means the Notes and the Note Guarantees;

          “indenture security Holder” means a Holder of a Note;

          “indenture to be Qualified” means this Indenture;

          “indenture trustee” or “institutional trustee” means the Trustee;

          “obligor” on the Notes means the Company and any successor obligor upon the Notes or any Guarantor.

          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them.

36

Section 1.03. Rules of Construction.

          Unless the context otherwise requires:

          (a) a term has the meaning assigned to it;

          (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

          (c) words in the singular include the plural, and in the plural include the singular;

          (d) provisions apply to successive events and transactions; and

          (e) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and

          (f) references to “property and assets” or “property” or “assets” means any right or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.

ARTICLE II.

THE NOTES

Section 2.01. Form and Dating.

          (a) General. The Notes and the certificate of authentication of the Trustee thereon shall be substantially in the form included in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture. The notations of the Note Guarantees shall be substantially in the form of Exhibit E hereto, the terms of which are incorporated in and made part of this Indenture. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes may be issuable from time to time in denominations of less than $2,000 solely to the extent necessary to accommodate book-entry positions that have been created in denominations of less than $2,000 by the Depositary.

          The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the

37

Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

          The initial aggregate principal amount of the Notes which may be authenticated and delivered under this Indenture is $260,000,000 in principal amount of Notes, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to the terms of this Indenture. Notwithstanding the foregoing, the Company may, from time to time, without notice to or the consent of Holders of Notes, create and issue Additional Notes under this Indenture ranking equally with the Notes in all respects, subject to the limitations described in Sections 4.08 and 4.10 hereof. The Company may issue transfer restricted Additional Notes (with or without registration rights) or freely tradeable Notes. The terms of the Notes and any Additional Notes may have different issuance dates and dates from which interest accrues and shall be part of the same series. Such Additional Notes will be consolidated and form a single series with the Notes, vote together with the Notes and have the same terms as to status, redemption or otherwise as the Notes. References to the Notes under this Indenture include these Additional Notes if they are in the same series, unless the context requires otherwise.

          With respect to any Additional Notes issued subsequent to the date of this Indenture notwithstanding anything else herein, (1) all references in Exhibit A herein and elsewhere in this Indenture to a Registration Rights Agreement shall be to the Registration Rights Agreement entered into with respect to such Additional Notes, (2) any references in Exhibit A and elsewhere in this Indenture to the Exchange Offer, Exchange Offer Registration Statement, Shelf Registration Statement, and any other term related thereto shall be to such terms as they are defined in such Registration Rights Agreement entered into with respect to such Additional Notes, (3) all time periods described in the Notes with respect to the registration of such Additional Notes shall be as provided in such Registration Rights Agreement entered into with respect to such Additional Notes, (4) any Additional Interest may, if set forth in the Registration Rights Agreement, be paid to the holders of the Additional Notes immediately prior to the making or the consummation of the Exchange Offer regardless of any other provisions regarding record dates herein and (5) all provisions of this Indenture shall be construed and interpreted to permit the issuance of such Additional Notes and to allow such Additional Notes to become fungible and interchangeable with the Notes originally issued under this Indenture.

          (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A attached hereto (including the text referred to in footnotes 1, 2 and 4 thereto). Notes issued in certificated form shall be substantially in the form of Exhibit A attached hereto (but without including the text referred to in footnotes 1, 2 and 4 thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of

38

outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

          (c) Euroclear and Clearstream Procedures Applicable. The provisions of Euroclear and Clearstream shall be applicable to transfers of beneficial interests in Global Notes that are held by Participants through Euroclear or Clearstream.

Section 2.02. Execution and Authentication.

          Two Officers shall sign the Notes for the Company by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

          A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

          The Trustee shall, upon a written order of the Company signed by two Officers (“Authentication Order”), (1) authenticate the Initial Notes in an aggregate principal amount of $260,000,000 and (2) authenticate Notes for original issue up to the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate principal amount of Notes outstanding at any time may not exceed such amount except as provided in Sections 2.07, 9.01(i) and 9.05 hereof. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.

Section 2.03. Registrar and Paying Agent.

          The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the

39

name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

          The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.

          The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Note Custodian with respect to the Global Notes.

Section 2.04. Paying Agent to Hold Money in Trust.

          The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest on the Notes, and will notify the Trustee of any default by the Company or any Guarantor in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money received from the Company or a Subsidiary. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company or a Guarantor, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05. Holder Lists.

          The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA §312(a). If the Trustee is not the Registrar, the Company shall, or shall cause the Registrar to, furnish to the Trustee at least seven Business Days before each interest payment date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company and the Guarantors shall otherwise comply with TIA §312(a).

Section 2.06. Transfer and Exchange.

          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Global Notes will not be exchanged by the Company for

40

Definitive Notes unless (i) the Depositary (A) notifies the Company that it is unwilling or unable to continue as depositary for the Global Notes and the Company fails to appoint a successor depositary within ninety (90) days of delivery of such notice or (B) has ceased to be a clearing agency registered under the Exchange Act, and the Company fails to appoint a successor depositary within ninety (90) days of delivery of such notice or (ii) there shall have occurred and be continuing a Default or Event of Default with respect to the Notes. Beneficial interests in a Global Note may also be exchanged for Certificated Notes upon prior written notice given to the Trustee by or on behalf of the Depositary in accordance with this Indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.

          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

     (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).

     (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written

41

order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon consummation of an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.

     (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:

     (A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

     (B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

     (C) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the

42

certifications and certificates and opinion of counsel required by item (3) thereof, if applicable.

     (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and:

     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company;

     (B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

     (D) the Registrar receives the following:

          (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

          (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

43

and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

     (v) Through and including the 40th day after the Issue Date, beneficial interests in the Regulation S Global Note may be held only through Euroclear or Clearstream, unless transferred to a person that takes delivery through a Rule 144A Global Note.

          If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.

          Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

     (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

     (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

     (B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

44

     (C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

     (D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

     (E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable;

     (F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

     (G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

     the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount.

     Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note

45

pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

     (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company;

     (B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

     (D) the Registrar receives the following:

     (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

     (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a Definitive Note that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

46

and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

     (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the Private Placement Legend.

          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

     (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

     (A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

47

     (B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

     (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

     (D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

     (E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable;

     (F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;

     (G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof;

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI Global Note.

     (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may

48

exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company;

     (B) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

     (D) the Registrar receives the following:

     (1) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

     (2) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an opinion of counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

49

          Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

     (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

          If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

     (i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

     (A) if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

     (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

50

     (C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and opinion of counsel required by item (3) thereof, if applicable.

     (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:

     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company;

     (B) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement;

     (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or

     (D) the Registrar receives the following:

     (1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

     (2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an opinion of counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act

51

and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

     (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

          (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable Letters of Transmittal that (x) they are not broker-dealers, (y) they are not participating in a distribution of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the Company, and accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount.

          (g) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

     (i) Intercreditor Agreement. Each Global Note and each Definitive Note (and all Notes issued in exchange therefore or substitution thereof) shall bear the legend in substantially the following form:

THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT DATED AS OF AUGUST 4, 2009, AMONG BANK OF AMERICA, N.A., AS CREDIT FACILITY COLLATERAL AGENT, WILMINGTON TRUST COMPANY, AS NOTE COLLATERAL AGENT, THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND THE SUBSIDIARIES OF THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. PARTY THERETO (THE “INTERCREDITOR

52

AGREEMENT”), AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.

     (ii) Tax Legend.

          (A) Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE PRICE OF THIS NOTE WAS 97.385% OF ITS PRINCIPAL AMOUNT; THE TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $26.15 PER NOTE WITH A PRINCIPAL AMOUNT OF $1,000; THE ISSUE DATE IS AUGUST 4, 2009; AND THE YIELD TO MATURITY IS 12.000%.

     (B) Notwithstanding the foregoing, for any Additional Notes issued pursuant to the terms of this Indenture, the legend in Section 2.11(g)(ii)(A) shall be modified as appropriate to reflect the tax characteristics of such Additional Notes.

     (iii) Private Placement Legend.

     (A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION

53

5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (THE “COMPANY”) THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”

     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

54

     (iv) Global Note Legend. Each Global Note shall bear a legend in substantially the following form:

“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”

          (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not

55

in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

     (i) General Provisions Relating to Transfers and Exchanges.

     (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s order or at the Registrar’s request.

     (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.07, 3.08, 4.09, 4.14 and 9.05 hereof).

     (iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

     (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

     (v) The Company shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed

56

portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

     (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

     (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

     (viii) All certifications, certificates and opinions of counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

     (ix) The Trustee shall have no obligation or duty to monitor, determine of inquire as to compliance with any restrictions on transfer that may be imposed under this Indenture with respect to the Notes or under applicable law, other than to require delivery of such certificates, documentation or other evidence as are expressly required by, and to do so if and when expressly required by, this Indenture. The Trustee shall have no responsibility for any actions taken or not taken by the Depositary.

Section 2.07. Replacement Notes.

          If any mutilated Note is surrendered to the Trustee, or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon the written order of the Company signed by two Officers of the Company, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee each may charge for their respective expenses in replacing a Note.

          Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

57

          The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

Section 2.08. Outstanding Notes.

          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.

          If a Note is replaced pursuant to Section 2.07 hereof, such Note ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

          If the principal amount of any Note is considered paid under Section 4.01 hereof, the Note ceases to be outstanding and interest on it ceases to accrue.

          If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

Section 2.09. Treasury Notes.

          In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Guarantor or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Trustee knows are so owned shall be so disregarded.

Section 2.10. Temporary Notes.

          Until definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes upon a written order of the Company signed by two Officers of the Company. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.

58

          Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.

Section 2.11. Cancellation.

          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee (and no one else) shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all cancelled Notes shall be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12. Defaulted Interest.

          If the Company defaults in a payment of interest on the Notes, the Company shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof, and such defaulted interest shall cease to be payable to the Persons who were Holders on the relevant regular record date. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date; provided, that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

ARTICLE III.

REDEMPTION AND PREPAYMENT

Section 3.01. Notices to Trustee.

          If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, the Company shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price.

59

Section 3.02. Selection of Notes to Be Redeemed.

          If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes for redemption as follows:

(1)	in compliance with the requirements of the principal national securities exchange or the Nasdaq Stock Market, as the case may be, on which the Notes are listed; or
(2)	if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate.

          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption. No Notes of $2,000 or less shall be redeemed in part. Notices of redemption shall be electronically delivered or mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address. Notices of redemption may not be conditional.

          If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption will become due on the date fixed for redemption. On and after the redemption date, interest will cease to accrue on Notes or portions of them called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price.

Section 3.03. Notice of Redemption.

          At least 30 days but not more than 60 days before a redemption date, the Company shall electronically deliver or cause to be electronically delivered or mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address.

          The notice shall identify the Notes to be redeemed and shall state:

          (a) the redemption date;

          (b) the redemption price;

          (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;

60

          (d) the name and address of the Paying Agent;

          (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

          (f) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

          (g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

          (h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.

          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the redemption date (unless a shorter period shall be satisfactory to the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

Section 3.04. Effect of Notice of Redemption.

          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.

Section 3.05. Deposit of Redemption Price.

          On or prior to the redemption date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest and any Additional Interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest and any Additional Interest on, all Notes to be redeemed.

          If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply

61

with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

Section 3.06. Notes Redeemed in Part.

          Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

Section 3.07. Optional Redemption.

          (a) At any time, or from time to time, prior to August 1, 2012, the Company may redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture (including any Additional Notes) at a redemption price of 111.375% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon to the redemption date, with the net cash proceeds of one or more Equity Offerings; provided that:

     (i) at least 65% of the aggregate principal amount of Notes issued under this Indenture (including any Additional Notes) remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company or its Affiliates); and

     (ii) the redemption must occur within 120 days of the date of the closing of such Equity Offering.

          (b) Prior to August 1, 2012, the Company may redeem the Notes at its option, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ prior notice electronically delivered or mailed by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).

          (c) On or after August 1, 2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on August 1 of the years indicated below:

62

YEAR	PERCENTAGE
2012		105.688	%
2013		102.844	%
2014 and thereafter		100.000	%

          (d) Any redemption pursuant to this Section 3.07 shall be made in accordance with the provisions of Sections 3.01 through 3.06.

Section 3.08. Mandatory Redemption.

          The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

ARTICLE IV.

COVENANTS

Section 4.01. Payment of Notes.

          The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. The Company shall pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.

          The Company shall pay interest (including without limitation any interest which accrues after the commencement of any proceeding under any Debtor Relief Law with respect to the Company or any Guarantor, whether or not allowed or allowable as a claim in such proceeding) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful. The Company shall pay interest (including without limitation any interest in any proceeding under any Debtor Relief Law with respect to the Company or any Guarantor, whether or not allowed or allowable as a claim in such proceeding) on overdue installments of interest and Additional Interest (without regard to any applicable grace period) at the same rate to the extent lawful.

63

Section 4.02. Maintenance of Office or Agency.

          The Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

          The Company also from time to time may designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and from time to time may rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

          The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03.

Section 4.03. Investment Company Act.

          The Company shall not, and shall not permit any of its Subsidiaries to, become an investment company subject to registration under the Investment Company Act of 1940, as amended.

Section 4.04. Compliance Certificate.

          (a) 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

64

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 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.

          (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants or the Public Company Accounting Oversight Board, the year-end financial statements delivered pursuant to Section 4.19 shall be accompanied by a written statement of the Company’s independent public accountants (who shall be a firm of established national reputation) that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would lead them to believe that the Company has violated any provisions of Article IV or Article V hereof insofar as they relate to accounting matters or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation.

          (c) The Company shall, so long as any of the 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.

Section 4.05. Taxes.

          The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies, except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

Section 4.06. Stay, Extension and Usury Laws.

          The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted herein (or in any Collateral Document) to the Trustee or the Collateral Agent, but shall suffer and permit the execution of every such power as though no such law has been enacted.

65

Section 4.07. Restricted Payments.

          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay (without duplication) any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends, payments or distributions (x) payable in Equity Interests (other than Disqualified Stock) of the Company or (y) to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any of its Restricted Subsidiaries held by Persons other than the Company or any of its Wholly Owned Restricted Subsidiaries; (iii) make any principal payment on or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, in each case prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, except purchase, repurchase, redemption, defeasance or other acquisition or retirement of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”) unless, at the time of and after giving effect to such Restricted Payment:

               (1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;

               (2) the Company would, after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a) of this Indenture; and

               (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (9), (11), (12) or (13) of the next succeeding paragraph (b)), is less than the sum, without duplication, of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the last fiscal quarter commencing after the Issue Date to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company (other than from Excluded Contributions) since the Issue Date from the issue or sale of Equity Interests (other than Disqualified Stock) of, or capital contributions to, the

66

Company (plus the Fair Market Value of assets other than cash received by the Company or a Guarantor since the Issue Date), plus (iii) the principal amount of Indebtedness of the Company or any Restricted Subsidiary that has been converted into or exchanged for such Equity Interests (other than Equity Interests sold to, or Indebtedness held by, a Restricted Subsidiary of the Company) after the Issue Date, plus (iv) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the net reduction in such Restricted Investments in any Person resulting from repayments of loans or advances, or other transfers of assets, in each case to the Company or any of its Restricted Subsidiaries or from the net cash proceeds from the sale of any such Restricted Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income), from the release of any Note Guarantee (except to the extent any amounts are paid under such Note Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each case, the amount of Restricted Investments previously made by the Company or any of its Restricted Subsidiaries in such Person or Unrestricted Subsidiary after the Issue Date.

          (b) The preceding provisions will not prohibit (so long as, in the case of clause (10) below, no Default has occurred and is continuing or would be caused thereby):

          (1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture;

          (2) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;

          (3) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness or of any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of a contribution to the capital of the Company or a substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests (other than Disqualified Stock) of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3)(ii) of Section 4.07(a);

          (4) the repayment, defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness;

          (5) Investments acquired as a capital contribution to, or in exchange for, or out of the net cash proceeds of a substantially concurrent offering of, Equity Interests (other than Disqualified Stock) of the Company; provided that the amount of any such net

67

cash proceeds that are utilized for any such acquisition or exchange shall be excluded from clause (3)(ii) of Section 4.07(a);

          (6) the repayment, defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness or Disqualified Stock of the Company (a) in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to any of the Company’s Subsidiaries) of, the Company’s Disqualified Stock, or (b) pursuant to a required change of control offer or asset sale offer arising from a Change of Control or Asset Sale, as the case may be, provided that such repayment, repurchase, redemption, acquisition or retirement occurs after all Notes tendered by Holders in connection with a related Change of Control Offer or Asset Sale Offer, as the case may be, have been repurchased, redeemed or acquired for value;

          (7) the purchase, repurchase, redemption, acquisition or retirement for value of any Capital Stock of the Company upon the exercise of warrants, options or similar rights if such Capital Stock constitutes all or a portion of the exercise price or is surrendered in connection with satisfying any federal or state income tax obligation incurred in connection with such exercise; provided that no cash payment in respect of such purchase, repurchase, redemption, acquisition, retirement or exercise shall be made by the Company or any of its Restricted Subsidiaries;

          (8) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any current or former employee, officer, director or consultant of the Company (or any of its Restricted Subsidiaries) or their respective estates, spouses, former spouses or family members; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed $2.0 million, such amount to be increased in any fiscal year by (x) the net cash proceeds of sales of Equity Interests (other than Disqualified Stock) of the Company (or from the exercise of options therefor) to any current or former employee, officer, director or consultant of the Company (or any of its Restricted Subsidiaries) or their respective estates, spouses, former spouses or family members and (y) the proceeds of any key man life insurance policies (with any unused amounts in this clause (8) in any such fiscal year permitted to be used in any other fiscal year, provided that the aggregate amount of repurchases made pursuant to this clause (8) may not exceed $4.0 million in any fiscal year);

          (9) the payment of cash in lieu of the issuance of fractional shares of Equity Interests upon conversion or exchange of securities convertible into or exchangeable for Equity Interests of the Company;

          (10) other Restricted Payments not otherwise permitted pursuant to this covenant in an aggregate principal amount since the Issue Date not to exceed $50.0 million;

68

          (11) the payment of fees and expenses in connection with a Qualified Receivables Transaction;

          (12) Restricted Payments in an aggregate amount not to exceed the amount of all Excluded Contributions;

          (13) payments or distributions to dissenting stockholders pursuant to or in connection with a consolidation, merger or transfer of assets;

          (14) the declaration and payment of dividends to holders of shares of the Convertible Preferred Stock in accordance with the terms of such Convertible Preferred Stock in effect on the Issue Date; and

          (15) the repurchase or redemption of shares of the Convertible Preferred Stock pursuant to a required offer to repurchase such shares upon the occurrence of a “fundamental change” (as defined in the documents governing the Convertible Preferred Stock and in accordance with the terms of such Convertible Preferred Stock in effect on the Issue Date), provided that such repurchase or redemption occurs after all Notes tendered by Holders in connection with a related Change of Control Offer have been repurchased, redeemed or acquired for value.

          The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

          For purposes of determining compliance with this Section 4.07, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (15) of Section 4.07(b), or is entitled to be incurred pursuant to Section 4.07(a) above, the Company shall be entitled to classify or reclassify such Restricted Payment (or portion thereof) on the date of its payment in any manner that complies with this Section 4.07. It is understood and agreed that cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from employees, directors or consultants of the Company or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Company to the extent described in clause (8) of Section 4.07(b) will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture.

Section 4.08. Incurrence of Indebtedness.

          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness or issue Disqualified Stock; provided, however, that the Company or any of the Guarantors may Incur Indebtedness or issue Disqualified Stock if the Fixed Charge Coverage Ratio for the Company’s most

69

recently ended four full fiscal quarters for which internal financial statements are available would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been Incurred or issued at the beginning of such four-quarter period.

          (b) Section 4.08(a) will not prohibit the Incurrence of any of the following items of Indebtedness or Disqualified Stock (collectively, “Permitted Debt”):

     (i) the Incurrence by the Company or any Restricted Subsidiary, in the capacity of a borrower or a guarantor, of Indebtedness under Credit Facilities, in an aggregate principal amount at any one time outstanding pursuant to this clause (1) not to exceed the greater of (x) $775.0 million, less, without duplication, the amount of any permanent repayments thereof or permanent reductions in commitments thereunder from the proceeds of one or more Asset Sales which are used to prepay or repay Indebtedness under the Credit Facilities pursuant to Section 4.09(c) and (y) the Borrowing Base as of the date of such Incurrence, in each case, minus any amounts Incurred and outstanding pursuant to a Qualified Receivables Transaction permitted under clause (xviii) of this Section 4.08(b);

     (ii) the Incurrence of Existing Indebtedness;

     (iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue Date;

     (iv) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligations, in an aggregate principal amount at any one time outstanding pursuant to this clause (iv) not to exceed 10.0% of the Company’s Consolidated Net Tangible Assets;

     (v) the Incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness that was permitted by this Indenture to be Incurred under Section 4.08(a) or clauses (ii), (iii) or (v) of Section 4.08(b);

     (vi) the Incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, if the Company or any Guarantor is the obligor on such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness must be

70

unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and, provided, further that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or any of its Restricted Subsidiaries and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or any of its Restricted Subsidiaries will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

     (vii) the Guarantee by the Company or any Guarantor of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be Incurred by another provision of this Section 4.08;

     (viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations (including Credit Facility Hedging Obligations) that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes or Cash Management Obligations;

     (ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, bankers’ acceptances, accommodation guarantees, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Capital Stock of any Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Capital Stock of such Restricted Subsidiary for the purpose of financing such acquisition);

     (x) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within 10 Business Days of its Incurrence;

71

     (xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising in connection with endorsements of instruments for deposit in the ordinary course of business;

     (xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations (or the financing of insurance premiums in the ordinary course of business) or bid, performance or surety bonds or completion guarantees provided in the ordinary course of business;

     (xiii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit and bankers’ acceptances issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;

     (xiv) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;

     (xv) the Incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding not to exceed $75.0 million;

     (xvi) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business;

     (xvii) Indebtedness issued by the Company or any of its Restricted Subsidiaries to current or former officers, directors, employees and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Company to the extent described in clause (8) of Section 4.07(b);

     (xviii) the Incurrence of any Indebtedness by a Receivables Subsidiary that is not recourse to the Company or any other Restricted Subsidiary of the Company and Incurred in connection with a Qualified Receivables Transaction; or

     (xix) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $25.0 million.

72

          For purposes of determining compliance with this Section 4.08, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xix) above, or is entitled to be Incurred pursuant to Section 4.08(a), the Company shall be permitted to classify or reclassify such item of Indebtedness at the time of its Incurrence in any manner that complies with this covenant. In addition, any Indebtedness or portion thereof originally classified as Incurred pursuant to clauses (i) through (xix) above may later be reclassified one or more times by the Company such that it will be deemed as having been Incurred pursuant to one or more other of such clauses to the extent that such reclassified Indebtedness could be incurred pursuant to such new clause at the time of such reclassification. Notwithstanding the foregoing, Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.08(b)(i).

          Indebtedness permitted by this Section 4.08 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.08 permitting such Indebtedness.

          Notwithstanding any other provision of this Section 4.08, the maximum amount of Indebtedness that may be Incurred pursuant to this Section 4.08 will not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.

Section 4.09. Asset Sales.

          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of (A) cash, (B) Cash Equivalents, (C) Replacement Assets, or (D) a combination of the foregoing.

          (b) For purposes of requirement (a)(ii) of this Section 4.09, the following shall be deemed to be cash: (i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Company or such Restricted Subsidiary (other than Subordinated Indebtedness or other liabilities that by their terms are expressly subordinated in right of payment to the Notes and the Note Guarantees) that are assumed by the transferee (or a third party on behalf of the transferee) of any such assets or Equity Interests in writing whereby the Company or such Restricted Subsidiary are released from further liability therefor; (ii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into

73

cash or Cash Equivalents within 180 days after the date of such Asset Sale (to the extent of the cash or Cash Equivalents received in that conversion); and (iii) any Designated Non-cash Consideration received by the Company or such applicable Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed 2.0% of the Company’s Consolidated Net Tangible Assets (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

          (c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at its option, (i) with respect to Net Proceeds of any Asset Sale, whether or not involving Collateral, to purchase Replacement Assets (or, if such Replacement Assets are not so purchased by such 365th day, enter into a binding agreement to purchase such Replacement Assets; provided that (x) such purchase is consummated within 365 days after the date of such binding agreement and (y) if such purchase is not consummated within the period set forth in subclause (x), the Net Proceeds not so applied will be deemed to be Excess Proceeds (as defined below)); and provided further that, in case of the acquisition of Replacement Assets, such Replacement Assets are thereupon pledged to the extent required by the Collateral Documents (subject to the exclusions and exceptions therein) and otherwise in compliance with Section 4.21; or (ii) with respect to Net Proceeds of an Asset Sale of any assets that constitute Collateral, to prepay permanently or repay permanently any Indebtedness secured by such Collateral (and in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility); or (iii) with respect to Net Proceeds of an Asset Sale of any asset that does not constitute Collateral, to prepay permanently or repay permanently any Indebtedness under a Credit Facility or any other Indebtedness then outstanding (other than Subordinated Indebtedness) (and in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility).

          (d) On the 366th day after an Asset Sale or such earlier date, if any, as the Company determines not to apply the Net Proceeds relating to such Asset Sale as set forth in paragraph (c) above (each such date being referred as an “Excess Proceeds Trigger Date”), such aggregate amount of Net Proceeds that has not been applied on or before the Excess Proceeds Trigger Date as permitted in paragraph (c) above (“Excess Proceeds”) shall be applied by the Company to make an offer (an “Asset Sale Offer”) to all Holders of Notes and (i) in the case of Net Proceeds from Collateral, to the holders of any Pari Passu Lien Indebtedness that is required to be repurchased or repaid or offered to be repurchased or repaid as a result of such Asset Sale or (ii) in the case of any other Net Proceeds, to all holders of other Indebtedness that is pari passu in right of payment (whether or not secured and whether or not secured by a Lien of any priority on any

74

collateral) with the Notes or any Note Guarantee (“Pari Passu Indebtedness” and, together with Pari Passu Lien Indebtedness, “Tenderable Indebtedness”) that is required to be repurchased or repaid or offered to be repurchased or repaid as a result of such Asset Sale, to purchase the maximum principal amount of Notes and such other Tenderable Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such other Tenderable Indebtedness plus accrued and unpaid interest thereon, if any, to the date of purchase, and will be payable in cash.

          (e) The Company may defer the Asset Sale Offer until there are aggregate unutilized Excess Proceeds equal to or in excess of $20.0 million resulting from one or more Asset Sales, at which time the entire unutilized amount of Excess Proceeds (not only the amount in excess of $20.0 million) will be applied as provided in paragraph (d) above. If any Excess Proceeds remain after consummation of an Asset Sale Offer, such Excess Proceeds may be used for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Tenderable Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, then the Notes and such other Tenderable Indebtedness will be purchased on a pro rata basis based on the principal amount of Notes and such other Tenderable Indebtedness tendered. Upon completion of each Asset Sale Offer, the Excess Proceeds subject to such Asset Sale will no longer be deemed to be Excess Proceeds.

          (f) Pending the final application of any Net Proceeds pursuant to this covenant, the holder of such Net Proceeds may invest such Net Proceeds in Cash Equivalents or apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility, or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.

          (g) In the event that the Company shall be required to commence an Asset Sale Offer pursuant to this Section 4.09, the Company shall follow the procedures specified below.

          The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be purchased pursuant to Sections 4.09(d) and 4.09(e) hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

75

          Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

     (i) that the Asset Sale Offer is being made pursuant to this Section 4.09 and the length of time the Asset Sale Offer shall remain open;

     (ii) the Offer Amount, the purchase price and the Purchase Date;

     (iii) that any Note not tendered or accepted for payment shall continue to accrue interest;

     (iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;

     (v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;

     (vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

     (vii) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

     (viii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and

76

     (ix) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

          On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.

          Other than as specifically provided in this Section 4.09, any purchase pursuant to this Section 4.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

          (h) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.09, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.09 by virtue of such compliance.

          The terms of this Section 4.09 are subject to compliance with the Intercreditor Agreement.

Section 4.10. Liens.

          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind on or with respect to (i) the Collateral, except Permitted Liens, and (ii) any Principal Property, except as Collateral for the benefit of holders of obligations under the Credit Agreement, provided, however, that in the case of the repayment, repurchase or redemption of all of the outstanding QUIBS or the defeasance

77

or removal (through amendment or otherwise) of Section 1008 of the QUIBS Indenture, the Company and each applicable Subsidiary will grant the Collateral Agent, for the equal and ratable benefit of the Trustee and Holders of the Notes, valid and perfected second priority liens and security interests in each Principal Property in which the Company or any Subsidiary has granted a first priority lien or security interest in favor of the holder of any other Indebtedness of the Company or such Subsidiary.

          Subject to the immediately preceding paragraph, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than (i) Permitted Liens or (ii) Liens on Principal Properties for the benefit of the holders of the obligations under the Credit Agreement, subject to the proviso in the preceding paragraph) upon any of their property or assets, now owned or hereafter acquired, unless this Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured (or, in the case the Indebtedness so secured is Subordinated Indebtedness, the Notes and this Indenture are secured by a Lien on such property or assets that is senior to the Lien securing such Subordinated Indebtedness to at least the same extent that the Notes and this Indenture are senior to such Subordinated Indebtedness) until such time as such obligations are no longer secured by a Lien on such property or assets; provided, however, that if the Company or any Restricted Subsidiary creates, incurs, assumes or otherwise causes or suffers to exist or become effective any Lien for the benefit of holders of the obligations under the Credit Facility on a first priority basis, which Lien shall not exceed the Maximum Credit Facility Obligation Amount, then this Indenture and the Notes shall be secured on a second priority basis in accordance with the terms of this Indenture and the Collateral Documents, but in all other instances, this Indenture and the Notes shall be secured on an equal and ratable basis with the obligations so secured by such Lien. At the time at which the obligations which triggered the requirement to secure the Notes on an equal and ratable basis are no longer so secured by any such property or assets, the Trustee shall immediately release the Lien securing the Notes and this Indenture on such property or assets, provided, however, that if such triggering obligations subsequently become secured by any such property or assets, then such Lien securing the Notes and this Indenture on such property or assets shall immediately be reinstated.

Section 4.11. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

     (1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries or pay any liabilities owed to the Company or any of its Restricted Subsidiaries;

78

     (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or

     (3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

          (b) The restrictions set forth in Section 4.11(a) shall not apply to encumbrances or restrictions:

     (1) existing under, by reason of or with respect to the Credit Agreement, Existing Indebtedness or any other agreements in effect on the Issue Date and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, than those contained in the Credit Agreement, Existing Indebtedness or such other agreements, as the case may be, as in effect on the Issue Date;

     (2) set forth in this Indenture, the Notes and the Note Guarantees or existing under Pari Passu Indebtedness of the Company or a Guarantor, which is incurred under an indenture pursuant to Section 4.08, provided that the encumbrances and restrictions are no more restrictive, taken as a whole, than those contained in this Indenture;

     (3) existing under, by reason of or with respect to applicable law;

     (4) with respect to any Person or the property or assets of a Person acquired by the Company or any of its Restricted Subsidiaries existing at the time of such acquisition and not incurred in connection with or in contemplation of such acquisition (including any instrument governing Acquired Indebtedness), which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, than those in effect on the date of the acquisition;

     (5) in the case of clause (3) of Section 4.11(a):

79

     (A) restricting in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, intellectual property, conveyance or contract or similar property or asset, or

     (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any of its Restricted Subsidiaries not otherwise prohibited by this Indenture;

     (6) on cash or other deposits or net worth imposed by customers or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;

     (7) pursuant to the security documents evidencing any Lien securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.10, including Permitted Liens;

     (8) pursuant to contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions only apply to such Receivables Subsidiary or the receivables and related assets which are subject to such Qualified Receivables Transaction;

     (9) contained in Permitted Refinancing Indebtedness; provided that such restrictions are not on the whole materially more restrictive than those contained in the agreements governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

     (10) contained in security agreements or mortgages securing Indebtedness of the Company or a Restricted Subsidiary entered in the ordinary course of business and consistent with past practices, only to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;

     (11) contained in Capital Lease Obligations or Purchase Money Obligations for property acquired, in each case in the ordinary course of business and consistent with past practices, to the extent that such encumbrance or restriction (i) only restricts the transfer of the assets financed with such Capital Lease Obligations or Purchase Money Obligations and (ii) solely relates to the property financed with such Capital Lease Obligations or Purchase Money Obligations;

80

     (12) contained in any agreement for the sale of assets, including any Asset Sale, that restricts transfers of such assets pending their sale;

     (13) existing under or by reason of customary provisions in joint venture or similar agreements, asset sale agreements, stock sale agreements and sale and leaseback transactions required in connection with the entering into of such transactions, which encumbrance or restriction is applicable only to the assets that are the subject of such agreements;

     (14) contained in agreements entered into between a Restricted Subsidiary and another Restricted Subsidiary which second Restricted Subsidiary is not a Subsidiary of the first Restricted Subsidiary provided that such agreement does not limit dividends or distributions to the direct parent or direct subsidiary of either such Restricted Subsidiary;

     (15) contained in Indebtedness of a Foreign Subsidiary permitted to be incurred under this Indenture; and

     (16) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (15) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 4.12. Events of Loss.

          (a) Subject to the Intercreditor Agreement and the other Collateral Documents, in the case of an Event of Loss with respect to any Collateral, the Company or the affected Restricted Subsidiary, as the case may be, shall apply the Net Loss Proceeds from such Event of Loss, within 365 days after receipt, at its option to:

     (1) with respect to Net Proceeds of an Event of Loss relating to any assets that constitute Collateral and/or Credit Facility Collateral, prepay permanently or repay permanently any Indebtedness secured by such Collateral and/or Credit Facility Collateral in accordance with the applicable collateral documents (and in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility);

81

     (2) the rebuilding, repair, replacement or construction of improvements to the affected property or facility (or enter into a binding agreement to do so, provided that (x) such rebuilding, repair, replacement or construction has been completed within 365 days after the date of such binding agreement and (y) if such rebuilding, repair, replacement or construction is not consummated within the period set forth in subclause (x), the Net Loss Proceeds not so applied will be deemed to be Excess Loss Proceeds (as defined below)); or

     (3) the uses described in clause (i) of Section 4.09(c), substituting the term “Event of Loss” for the term “Asset Sale,” the term “Net Loss Proceeds” for the term “Net Proceeds” and the term “Excess Loss Proceeds” for the term “Excess Proceeds.”

          In case of clause (2) or (3) above, any replacement assets or property not constituting Excluded Assets shall be pledged as Collateral in accordance with the Collateral Documents and otherwise in compliance with Section 4.21, subject to Liens securing Credit Facility Loan Obligations and Credit Facility Hedging Obligations. Pending the final application of any Net Loss Proceeds, the Company or the affected Restricted Subsidiary may use such Net Loss Proceeds to either temporarily repay any revolving credit facility or invest in any manner not prohibited by this Indenture.

          (b) Any Net Loss Proceeds from an Event of Loss that are not applied or invested as provided in Section 4.12(a) shall be deemed to constitute “Excess Loss Proceeds.” When the aggregate amount of Excess Loss Proceeds exceeds $20.0 million, the Company shall make an offer (a “Loss Proceeds Offer”) to all Holders of Notes and all holders of Pari Passu Lien Indebtedness that is required to be repurchased or repaid or offered to be repurchased or repaid as a result of such Event of Loss to purchase the maximum principal amount of Notes and such Pari Passu Lien Indebtedness that may be purchased out of such Excess Loss Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and such Pari Passu Lien Indebtedness plus accrued and unpaid interest thereon, if any, to the date of purchase. A Loss Proceeds Offer shall be made in accordance with the procedures applicable to an Asset Sale Offer pursuant to Section 4.09 mutatis mutandis. If any Excess Loss Proceeds remain after consummation of a Loss Proceeds Offer, such Excess Loss Proceeds may be used for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Loss Proceeds Offer exceeds the amount of Excess Loss Proceeds, then the Notes will be purchased on a pro rata basis based on the principal amount of Notes tendered.

          (c) The Company shall comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable securities laws or regulations in connection with a Loss Proceeds Offer.

82

Section 4.13. Corporate Existence.

          Subject to Article V hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes.

Section 4.14. Offer to Repurchase upon Change of Control.

          (a) If a Change of Control occurs, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to an offer (a “Change of Control Offer”) on the terms set forth in this Indenture. In the Change of Control Offer, the Company shall offer payment (a “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, thereon, to the date of repurchase (the “Change of Control Payment Date,” which date shall be no earlier than the date of such Change of Control). No later than 30 days following any Change of Control, the Company shall mail a notice to each Holder stating that a Change of Control has occurred and offering to repurchase Notes on the Change of Control Payment Date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by this Section 4.14 and described in such notice.

               The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer and shall state:

               (i) that the Change of Control Offer is being made pursuant to this Section 4.14;

               (ii) the amount of the Change of Control Payment and the Change of Control Payment Date;

               (iii) that any Note not tendered or accepted for payment shall continue to accrue interest;

83

               (iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;

               (v) that Holders electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Change of Control Payment Date;

               (vi) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and

               (vii) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.

          (b) On the Change of Control Payment Date, the Company shall, to the extent lawful:

               (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;

               (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and

               (3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.

          (b) The Paying Agent shall promptly (but in any case not later than five days after the Change of Control Payment Date) mail or wire transfer to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. If the Change of Control

84

Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Change of Control Offer. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Subject to Section 4.14(d) below, the provisions described herein that require the Company to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether any other provisions of this Indenture are applicable.

          (d) The Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.

          (e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.14, the Company shall comply with the applicable securities laws or regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue of such compliance.

Section 4.15. Transactions with Affiliates.

          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any transaction or series of related transactions with any Affiliate of the Company or any such Restricted Subsidiary (each, an “Affiliate Transaction”) involving aggregate consideration in excess of $2.5 million, unless:

          (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by the Company or such Restricted Subsidiary with a Person that is not an Affiliate of the Company or any of its Restricted Subsidiaries; and

85

          (ii) the Company delivers to the Trustee:

     (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a Board Resolution set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company; and

     (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an independent accounting, appraisal or investment banking firm of national standing.

          (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.15(a):

          (1) transactions (including guarantees of Indebtedness) between or among the Company and/or its Restricted Subsidiaries;

          (2) payment of reasonable and customary fees to, and reasonable and customary indemnification and similar payments on behalf of, directors of the Company or any of its Restricted Subsidiaries;

          (3) Restricted Payments that are permitted by the provisions of this Indenture described under Section 4.07;

          (4) any sale of Capital Stock (other than Disqualified Stock) of the Company;

          (5) transactions pursuant to agreements or arrangements in effect on the Issue Date (including, without limitation, all agreements or arrangements in effect on the Issue Date in connection with the issuance of the Convertible Preferred Stock), or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more disadvantageous to the Company and its Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;

          (6) any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Company or

86

any of its Restricted Subsidiaries with officers and employees of the Company or any of its Restricted Subsidiaries that are Affiliates of the Company and the payment of compensation to such officers and employees (including amounts paid pursuant to employee benefit plans, employee stock option or similar plans) so long as such agreement has been approved by the Board of Directors of the Company or has been entered into in the ordinary course of business consistent with past practice;

          (7) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of the Company or any of its Restricted Subsidiaries;

          (8) transactions with suppliers or other purchasers or sales of goods or services, in each case in the ordinary course of business on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, as determined in good faith by the Company;

          (9) sales of accounts receivable, or participations therein, in connection with any Qualified Receivables Transaction;

          (10) transactions with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the Company or any of its Subsidiaries, where such Affiliates receive the same consideration as non-Affiliates in such transactions;

          (11) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction; and

          (12) any transaction entered into in the ordinary course of business between the Company or any Restricted Subsidiary and any Affiliate of the Company controlled by the Company that is a joint venture or similar entity.

Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.

          (a) The Board of Directors of the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary; provided that:

          (1) any Guarantee by the Company or any of its Restricted Subsidiaries of any Indebtedness of the Subsidiary being so designated will be deemed to be an Incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation, and such Incurrence of Indebtedness would be permitted under the covenant described under Section 4.08;

          (2) (A) the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guarantee by the Company or any of its Restricted

87

Subsidiaries of any Indebtedness of such Subsidiary) (such amount, the “Designation Amount”) will be deemed to be a Restricted Investment made as of the time of such designation, and such Investment would be permitted to be made under Section 4.07 or (B) the Designation Amount is less than $10,000;

          (3) such Subsidiary does not hold any Liens on any property of the Company or any of its Restricted Subsidiaries; and

          (4) the Subsidiary being so designated:

     (A) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries (i) provides credit support for, or Guarantee of, any Indebtedness of such Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness, but excluding in the case of a Receivables Subsidiary any Standard Securitization Undertakings) or (ii) is directly or indirectly liable for any Indebtedness of such Subsidiary or any Subsidiary of such Subsidiary (except in the case of a Receivables Subsidiary any Standard Securitization Undertakings); and

     (B) has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries, except to the extent such Guarantee or credit support would be released upon such designation; and

          (5) no Default or Event of Default would be in existence following such designation.

          (b) If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness, Investments, or Liens on the property, of such Subsidiary will be deemed to be Incurred or made by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness, Investments or Liens are not permitted to be Incurred or made as of such date under this Indenture, the Company will be in default under this Indenture.

          (c) The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:

          (1) such designation will be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if such Indebtedness is permitted under the covenant described under Section 4.08, calculated on a pro forma

88

basis as if such designation had occurred at the beginning of the applicable four-quarter reference period;

          (2) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation would be permitted under Section 4.10; and

          (3) no Default or Event of Default would be in existence following such designation.

          (d) Any designation of a Restricted Subsidiary of the Company as an Unrestricted Subsidiary or redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, as the case may be, shall be evidenced to the Trustee by filing with the Trustee an Officers’ Certificate giving effect to such designation or redesignation and an Officers’ Certificate, signed on behalf of the Company by its principal executive officer or principal financial officer, certifying that such designation or redesignation complied with the preceding conditions, as applicable, and was permitted by this Indenture.

Section 4.17. Guarantees.

          (a) The Company shall provide to the Trustee, within 30 days following the date that any Person becomes a Restricted Subsidiary (other than (x) any Foreign Subsidiary, (y) any Immaterial Subsidiary or (z) a Receivables Subsidiary) that guarantees Indebtedness (other than the Notes or Note Guarantees) of the Company or a Guarantor, a supplemental indenture to this Indenture substantially in the form set forth in Exhibit F hereto and a joinder or accession agreement or agreements related to (and if specified in a Collateral Document, in the form required by) the Collateral Documents, accompanied by an Opinion of Counsel, executed by such new Restricted Subsidiary, providing for a full and unconditional guarantee on a senior secured basis (subject to Permitted Liens) by such new Restricted Subsidiary of the Company’s obligations under the Notes and this Indenture and a pledge of its assets as Collateral for the Notes to the same extent as that set forth herein and the Collateral Documents.

          (b) The Company shall not permit any of its Restricted Subsidiaries, directly or indirectly, to Guarantee or pledge any assets to secure the payment of any Indebtedness (other than the Notes or Note Guarantees) of the Company or any Restricted Subsidiary unless:

          (i) such Restricted Subsidiary is (A) a Guarantor, (B) a Foreign Subsidiary, (C) an Immaterial Subsidiary or (D) a Receivables Subsidiary; or

          (ii) within 30 days, such Restricted Subsidiary executes and delivers to the Trustee a supplemental indenture to this Indenture substantially in the form set forth in Exhibit F hereto and a joinder or accession agreement or agreements related to (and if specified in a Collateral Document, in the form required by) the Collateral Documents,

89

accompanied by an Opinion of Counsel, providing for (x) the full and unconditional Guarantee on a senior secured basis of the payment of the Notes by such Restricted Subsidiary, which Note Guarantee shall be senior to or pari passu with such Subsidiary’s Guarantee of such other Indebtedness, and (y) a pledge of its assets (subject to Permitted Liens) as Collateral for the Notes to the same extent as that set forth herein and the Collateral Documents.

          (c) A Note Guarantee provided pursuant to Section 4.17(a) or (b) shall otherwise be subject to release in accordance with the provisions of Section 10.04 of this Indenture.

          (d) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, except in accordance with the provisions of Section 10.03 of this Indenture.

Section 4.18. Business Activities.

          The Company shall not, and shall not permit any Restricted Subsidiary thereof to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.

Section 4.19. Reports.

          (a) The Company shall furnish to the Trustee and, upon request, to beneficial owners and prospective investors a copy of all of the information and reports referred to in clauses (1) and (2) below within 30 days after the time periods specified in the Commission’s rules and regulations:

          (1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report (whether or not unqualified) on the annual financial statements by the Company’s certified independent accountants; and

          (2) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports;

          provided that, if the Commission has accepted any of the Company’s reports as provided in the immediately succeeding paragraph and such reports have been made available to the public on the Commission’s EDGAR system (or any similar successor system), the Company shall have no obligations to furnish such report to the Trustee, beneficial owners or prospective investors.

90

          (b) Whether or not required by the Commission, the Company shall file the reports specified in Section 4.19(a) with the Commission, containing all of the information required by such reports, within the time periods specified above unless the Commission will not accept such a filing. If, notwithstanding the foregoing, the Commission will not accept the Company’s filings for any reason, the Company shall provide such reports to the Trustee.

          (c) The Company shall be deemed to have furnished to the Holders the reports referred to in clauses (1) and (2) of Section 4.19(a) if the Company has posted such reports on the Company Website and issued a press release in respect thereof. For purposes of this Section 4.19, the term “Company Website” means the collection of web pages that may be accessed on the World Wide Web using the URL address http://www.aptea.com or such other address as the Company may from time to time designate in writing to the Trustee.

          (d) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries (other than Unrestricted Subsidiaries that, when taken together with all other Unrestricted Subsidiaries, are “minor” within the meaning of Rule 3-10 of Regulation S-X, substituting 5% for 3% where applicable), then the quarterly and annual financial information required by this Section 4.19 shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, or in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

          (e) The Company and the Guarantors have agreed that, for so long as any Notes remain outstanding, they will furnish to the Holders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

          (f) The Company shall comply with is obligations, if any, under TIA §314(a).

Section 4.20. Impairment of Security Interest.

          Subject to the rights of the holders of Permitted Liens, the Company and the Guarantors shall not take or omit to take any action, which action or omission would impair or could reasonably be expected to have the result of impairing, the security interest or Lien with respect to the Collateral for the benefit of the Trustee and the Holders of the Notes, except to the extent otherwise permitted by Article IX and Article XI of this Indenture or by the Collateral Documents, including the Intercreditor Agreement.

91

Section 4.21. After-Acquired Property.

          (a) Promptly following the acquisition by the Company or any Guarantor of any After-Acquired Property, the Company or such Guarantor shall execute and deliver such mortgages, deeds of trust, security instruments, financing statements and certificates, title insurance and Opinions of Counsel as shall be reasonably necessary to vest in the Trustee or the Collateral Agent a perfected security interest, mortgage or other Lien in such After-Acquired Property that is of second (subject only (x) if and to the extent of the Liens of first priority required by the Intercreditor Agreement and (y) other Permitted Liens) priority and to have such After-Acquired Property added to the Collateral including, but not limited to, those items set forth in Section 4.24 hereof, mutatis mutandis, and, to the extent commercially reasonable, the Leasing Deliverables, where applicable, in each case, in respect of such After-Acquired Property and thereupon all provisions of this Indenture and the Collateral Documents relating to the Collateral shall be deemed to relate to such After-Acquired Property to the same extent and with the same force and effect.

          (b) Notwithstanding Section 4.21(a), if granting or perfecting any Lien to secure the Note Obligations on any Collateral that consists of rights that are licensed or leased from a third-party requires the consent of such third party pursuant to the terms of an applicable license or lease agreement, and such terms are enforceable under applicable law, the Company or the Guarantors, as the case may be, will use all commercially reasonable efforts to obtain such consent with respect to the granting or perfecting of such Lien, but if the third party does not consent to the granting or perfecting of such Lien after the use of commercially reasonable efforts, none of the Company or the Guarantors will be required to do so.

Section 4.22. Creation and Perfection of Liens Securing Collateral; Further Assurances.

          (a) On or prior to the Issue Date, the Company and the Guarantors shall have granted, created and perfected the security interests, mortgages and other Liens created or intended to be created in the Collateral Documents in the Collateral in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes; provided, that to the extent any such security interest, mortgage or other Lien was not perfected by the Issue Date, the Company and the Guarantors shall use commercially reasonable efforts to have all security interests, mortgages and other Liens granted, created and perfected, to the extent required by the Collateral Documents, as promptly as practicable following the Issue Date.

          (b) The Company and the Guarantors shall execute any and all further documents, financing statements, agreements and instruments, and take all further action that may be required under applicable law, or that the Trustee or the Collateral Agent may reasonably request, in order to grant, create, preserve, enforce, protect and perfect

92

the validity and priority of the security interests, mortgages and other Liens created or intended to be created by this Indenture or the Collateral Documents in the Collateral.

          (c) In addition, from time to time, the Company and the Guarantors shall reasonably promptly secure the Note Obligations by pledging or creating, or causing to be pledged or created, perfected security interests, mortgages and other Liens with respect to the Collateral. Such security interests, mortgages and Liens shall be created under the Collateral Documents and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance reasonably satisfactory to the Trustee or the Collateral Agent.

          (d) The Company and each of the Guarantors shall do or cause to be done all acts and things that may be required, or that the Trustee or the Collateral Agent from time to time may reasonably request, to assure and confirm that the Collateral Agent holds, for the benefit of the Trustee and the Holders of the Notes, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become Collateral after the Issue Date), in each case, as contemplated by, and with the lien priority required under, this Indenture and the Collateral Documents; provided that the Company and the Guarantors shall not be required to provide, and the Collateral Agent shall not request, any additional Liens in respect of any Excluded Assets.

          (e) Upon request of the Trustee or the Collateral Agent at any time after an Event of Default has occurred and is continuing, the Company and the Guarantors shall, and shall cause the Restricted Subsidiaries to, (i) permit the Trustee or the Collateral Agent or any advisor, auditor, consultant, attorney or representative acting for the Trustee or the Collateral Agent, upon reasonable notice to the Company and during normal business hours, to visit and inspect any of the property of the Company and its Subsidiaries, to review, make extracts from and copy the books and records of the Company and its Subsidiaries relating to any such property, and to discuss any matter pertaining to any such property with the officers and employees of the Company and its Subsidiaries, and (ii) deliver to the Trustee or the Collateral Agent such reports, including valuations, relating to any such property or any Lien thereon as the Trustee or the Collateral Agent may reasonably request. The Company shall promptly reimburse the Trustee and Collateral Agent for all reasonable costs and expenses incurred by the Trustee or Collateral Agent in connection therewith, including all reasonable fees and charges of any advisors, auditors, consultants, attorneys or representatives acting for the Trustee or for the Collateral Agent.

Section 4.23. Insurance.

          (a) The Company and the Guarantors shall:

93

          (i) keep their properties adequately insured at all times by financially sound and reputable insurers;

          (ii) maintain such other insurance, to such extent and against such risks (and with such deductibles, retentions and exclusions), including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by them;

          (iii) maintain such other insurance as may be required by law; and

          (iv) maintain such other insurance as may be required by the Collateral Documents.

          (b) The Collateral Agent shall be named as an additional insured and loss payee as its interests may appear, and the Company and the Guarantors shall within sixty (60) calendar days following the end of each six month period ending on March 31 or September 30 of any year, furnish to the Collateral Agent copies of certificates of insurance and copies of insurance policies (or endorsements thereof) showing compliance with this sentence. Upon the request of the Trustee or the Collateral Agent, the Company and the Guarantors shall furnish to the Collateral Agent full information as to their property and liability insurance carriers.

Section 4.24. Real Estate.

          (a) On or prior to the Issue Date, or as soon as practicable after the Issue Date using commercially reasonable efforts, the Company and the Guarantors will deliver to the Collateral Agent, with respect to each Initial Mortgaged Property, the following:

          (i) to the extent a first lien mortgage has been delivered in connection with the Credit Agreement with respect to real properties, fully executed and notarized Mortgages encumbering the fee interest of the Company or any of the Guarantors in each real property asset owned or leased by the Company and the Guarantors as listed on Schedule III hereto, together with any such assignments of leases and rents and UCC-1 financing statements as the Collateral Agent shall reasonably deem appropriate with respect to each such Initial Mortgaged Property;

          (ii) evidence that counterparts of the Mortgages (and such other documents referenced in this Section 4.24(a) have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid and subsisting Lien (second in priority only to the extent required by the

94

Intercreditor Agreement) on the property described therein in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;

          (iii) a fully paid title insurance policy (in form and substance (x) substantially identical to the title insurance policy delivered by the Company in connection with the Credit Agreement with respect to all matters in existence as of the date of such title insurance policy, and (y) reasonably acceptable to the Collateral Agent with respect to any matters first appearing of record after the date of the title insurance policy delivered by the Company in connection with the Credit Agreement), with endorsements that are substantially identical to those endorsements delivered in connection with the Credit Agreement and in amounts reasonably acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid and subsisting Liens (second in priority to the extent required by the Intercreditor Agreement) on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens;

          (iv) copies of each survey delivered in connection with the Credit Agreement with respect to the properties described in the Mortgages;

          (v) copies of each appraisal, engineering, soils and other report delivered in connection with the Credit Agreement with respect to the properties described in the Mortgages;

          (vi) evidence that all other action that the Collateral Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens (second in priority only to the extent required by the Intercreditor Agreement) on the property described in the Mortgages has been taken, provided, however, that in no event shall the Collateral Agent be entitled to request any documents, or that any action be taken, if such document or action is not required by the Credit Agreement or the Credit Facility Collateral Agent with respect to such Mortgage; and

          (vii) to the extent a legal opinion has been delivered in connection with the Credit Agreement with respect to a Mortgage, the Company and Guarantors shall deliver to the Collateral Agent for the benefit of the Trustee and the Notes substantially the same favorable opinion from local counsel in states in which the real property to be covered by the Mortgage is located with respect to the enforceability and perfection of the Mortgages and any related fixture filings, each in form no less favorable, in the reasonable judgment of the Collateral Agent, than the opinions rendered by such local counsel with respect to the Mortgages executed and delivered in connection with the Credit Agreement, and otherwise in form and substance reasonably satisfactory to the Collateral Agent (including that the relevant mortgagor is validly existing and in good standing, corporate power, due authorization, execution and delivery, no conflicts and no consents);

95

          provided, however, that with respect to this Section 4.24(a), in no event shall the Collateral Agent be entitled to request any documents, or that any action be taken, if such document or action is not required by the Credit Agreement or the Credit Facility Collateral Agent with respect to such Mortgage.

          (b) Notwithstanding the foregoing in this Section 4.24, to the extent any mortgaged property to be subject to the Lien of the Trustee is a lease, license or other agreement or other instrument for the use of real property (“Leased Real Property”) to which the Company or any Guarantor is a party, and to the extent the Company or such Guarantor is prohibited from granting a Lien in its rights thereunder pursuant to the terms of such lease, license, contract, agreement or other instrument, or under applicable law (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law) none of the Company or the Guarantors will be required to grant or perfect, as applicable, such Lien. Notwithstanding the foregoing provisions in this clause (b) of Section 4.24, if granting or perfecting any Lien to secure the Note Obligations on any Collateral that consists of Leased Real Property requires the consent of such lessor, licensor or other third party pursuant to the terms of an applicable license, lease, agreement or other instrument, and such terms are enforceable under applicable law, the Company or the Guarantors, as the case may be, shall use all commercially reasonable efforts to obtain such consent with respect to the granting or perfecting of such Lien, but if the third party does not consent to the granting or perfecting of such Lien after the use of commercially reasonable efforts, none of the Company or the Guarantors will be required to do so and such Leased Real Property shall be considered to be an Excluded Asset hereunder.

          (c) The Company shall give written notice to the Collateral Agent of any default by the Company or any Guarantor with respect to its payment or other material obligations (or the receipt by the Company or any Guarantor of any written communication or notice by the landlord or other third party alleging any such default) under any Leased Real Property that is subject to a Lien for the benefit of the Collateral Agent, Trustee or Holders. The Company shall give such notice promptly (but not later than five (5) Business Day’s after such event) and include reasonable details of the nature and amount of the default or the alleged default and the name and contact information of the landlord or other third party with respect to such Leased Real Property.

96

ARTICLE V.

SUCCESSORS

Section 5.01. Merger, Consolidation or Sale of Assets.

          The Company shall not: (i) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties and assets of the Company, in one or more related transactions, to another Person, unless at the time and after giving effect thereto:

          (1) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition will have been made (the “Surviving Entity”) (i) is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia and (ii) assumes all the obligations of the Company under the Notes, this Indenture and the Collateral Documents;

          (2) immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company or any of its Restricted Subsidiaries which becomes the obligation of the Company or any of its Restricted Subsidiaries as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default exists;

          (3) immediately after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Company or the Surviving Entity (if other than the Company) would, on the date of such transaction, be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a);

          (4) each Guarantor, unless such Guarantor is the Person with which the Company has entered into a transaction under this Section 5.01, will have by amendment to its Note Guarantee confirmed that its Note Guarantee will apply to the obligations of the Company or the Surviving Entity in accordance with the Notes and this Indenture;

          (5) the Company delivers to the Trustee an Officers’ Certificate stating that such transaction and such agreement comply with this Section 5.01 and that all conditions precedent provided for herein relating to such transaction have been complied with;

97

          (6) the Collateral transferred to the Surviving Entity will (a) continue to constitute Collateral under this Indenture and the Collateral Documents, (b) be subject to the Lien in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes, and (c) not be subject to any Lien, other than Permitted Liens; and

          (7) to the extent that the assets of the Person which is merged or consolidated with or into the Surviving Entity are assets of the type which would constitute Collateral under the Collateral Documents, the Surviving Entity will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in this Indenture and the Collateral Documents.

          Clauses (2), (3) and (5) of this Section 5.01 will not apply to any merger, consolidation or sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any of its Wholly Owned Restricted Subsidiaries.

Section 5.02. Successor Corporation Substituted.

          Upon any consolidation or merger, or any sale, assignment, transfer, conveyance or other disposition of all or substantially all of the assets of the Company or the Company and its Restricted Subsidiaries taken as a whole, in accordance with Section 5.01 hereof, the Surviving Entity will succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, conveyance or other disposition, the provisions of this Indenture referring to the “Company” shall refer instead to the Surviving Entity and not to the Company), and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein. In any such event (other than any transfer by way of lease), the predecessor Company shall be released and discharged from all liabilities and obligations in respect of the Notes and this Indenture and the predecessor Company may be dissolved, wound up or liquidated at any time thereafter.

ARTICLE VI.

DEFAULTS AND REMEDIES

Section 6.01. Events of Default.

          Each of the following shall constitute an “Event of Default”:

          (a) default for 30 days in the payment when due of interest on the Notes;

          (b) default in payment when due (whether at maturity, upon acceleration, redemption or otherwise) of the principal of, or premium, if any, on the Notes;

98

          (c) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions described under Article V;

          (d) failure by the Company or any of its Restricted Subsidiaries for 45 days after written notice by the Trustee or Holders representing 25% or more of the aggregate principal amount of Notes outstanding to comply with any of the other agreements in this Indenture;

          (e) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, if that default (i) is caused by a failure to make any payment when due at the Stated Maturity of such Indebtedness (a “Payment Default”) or (ii) results in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $35.0 million or more;

          (f) failure by the Company or any of its Restricted Subsidiaries to pay final judgments (to the extent such judgments are not paid or covered by insurance provided by a carrier that has not denied coverage in writing) aggregating in excess of $35.0 million, to the extent such judgments are not discharged or stayed for a period of more than 60 days after such judgments have become final and non-appealable;

          (g) except as permitted by this Indenture, any Note Guarantee of a Guarantor that is a Significant Subsidiary, or the Note Guarantees of any group of Guarantors that, taken together, would constitute a Significant Subsidiary, shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Note Guarantee;

          (h) the Company, any Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary):

     (i) commences a voluntary case,

     (ii) consents to the entry of an order for relief against it in an involuntary case,

     (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property,

     (iv) makes a general assignment for the benefit of its creditors, or

99

     (v) generally is not paying its debts as they become due;

          (i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

     (i) is for relief against the Company, any Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) in an involuntary case;

     (ii) appoints a Custodian of the Company, any Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) or for all or substantially all of the property of the Company, any Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary); or

     (iii) orders the liquidation of the Company, any Guarantor or any Significant Subsidiary of the Company (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary);

and the order or decree remains unstayed and in effect for 60 consecutive days; or

          (j) (a) there shall be a default in the performance, or breach, of any covenant or agreement of the Company or any Guarantor, in any material respect, under any Collateral Document and such default or breach shall continue for a period of 45 days after written notice has been given, by certified mail, (1) to the Company by the Trustee or (2) to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the then outstanding Notes or (b) any Collateral Document shall for any reason cease to be, or any Collateral Document shall for any reason be asserted in writing by the Company or any Guarantor, not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated by this Indenture and any such Collateral Document or due to any act or omission of the Trustee or Credit Facility Collateral Agent.

Section 6.02. Acceleration.

          If any Event of Default (other than an Event of Default specified in clause (h) or (i) of Section 6.01 hereof with respect to the Company occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately by notice in writing to the Company specifying the Event of Default(s). Upon any such declaration, the Notes shall become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (h) or (i) of Section 6.01 hereof occurs with respect to the Company, all outstanding Notes shall become due and payable

100

immediately without further action, notice or declaration on the part of the Trustee or any Holder.

          After a declaration of acceleration, but before any exercise of remedies by the Trustee, the holders of a majority in aggregate principal amount of Notes outstanding, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue interest on all Notes then outstanding, (3) the principal of, and premium, if any, on any Notes then outstanding which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes and (4) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate borne by the Notes, (b) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (c) all Events of Default, other than the non-payment of principal of, premium, if any, and interest on the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in this Indenture. No such rescission shall affect any subsequent default or impair any right consequent thereon.

Section 6.03. Other Remedies.

          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes, this Indenture or any Collateral Document.

          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee, the Collateral Agent or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Section 6.04. Waiver of Past Defaults.

          Subject to Section 6.07 and 9.02 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under this Indenture or the Collateral Documents except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that

101

resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

Section 6.05. Control by Majority.

          Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it; provided, however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes.

Section 6.06. Limitation on Suits.

          Holders of the Notes may not enforce this Indenture or the Notes except as provided herein. A Holder of a Note may not pursue any remedy with respect to this Indenture or the Notes unless:

          (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;

          (b) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;

          (c) such Holder of a Note or Holders of Notes offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense;

          (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and

          (e) during such 60-day period, the Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request.

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.

Section 6.07. Rights of Holders of Notes to Receive Payment.

          Notwithstanding any other provision of this Indenture (including Section 6.06) or any Collateral Document, the right of any Holder of a Note to receive payment

102

of principal of, premium and Additional Interest, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), shall be absolute and unconditional and shall not be impaired or affected without the consent of such Holder, except to the extent that the institution or prosecution thereof or the entry of judgment thereon would, under applicable law, result in the surrender, impairment, waiver or loss of any Lien of a Collateral Document upon any property subject to such Lien.

Section 6.08. Collection Suit by Trustee.

          If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company or any Guarantor for the whole amount of principal of, premium and Additional Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

Section 6.09. Trustee May File Proofs of Claim.

          The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting

103

the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.10. Priorities.

          If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:

          FIRST: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

          SECOND: to Holders of Notes for amounts due and unpaid on the Notes for principal of, premium, if any, and Additional Interest, if any, and interest on, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, premium and Additional Interest, if any, and interest on, respectively; and

          THIRD: to the Company or to such party as a court of competent jurisdiction shall direct.

          The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.

Section 6.11. Undertaking for Costs.

          In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.

Section 6.12. Restoration of Rights and Remedies.

          If the Trustee or any Holder of Notes has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of

104

the Trustee and the Holders shall continue as though no such proceeding had been instituted.

Section 6.13. Rights and Remedies Cumulative.

          Except as otherwise provided in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 6.14. Delay or Omission Not Waiver.

          No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

ARTICLE VII.

TRUSTEE

Section 7.01. Duties of Trustee.

          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

          (b) Except during the continuance of an Event of Default:

     (i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.

105

However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

     (i) this paragraph does not limit the effect of paragraph (b) of this Section;

     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

     (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

          (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section. No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holder, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

          (e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

          (f) The Trustee shall not be deemed to have knowledge of any Default or Event of Default unless (i) the Trustee or a Responsible Officer shall have actual knowledge of a Default or an Event of Default, (ii) the Trustee or a Responsible Officer shall have received notice of a Default or an Event of Default in accordance with the provisions of this Indenture or (iii) a Default or an Event of Default occurred or is occurring pursuant to Section 4.01 hereof.

Section 7.02. Rights of Trustee.

          (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. Except as provided in Section 7.01(b), the Trustee need not investigate any fact or matter stated in the document.

          (b) Before the Trustee acts or refrains from acting, the Trustee may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not

106

be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

          (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture; provided, that the Trustee’s conduct does not constitute willful misconduct or negligence.

          (d) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or Guarantor shall be sufficient if signed by an Officer of the Company or such Guarantor.

          (e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order, demand or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request, order, demand or direction.

          (f) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article IV. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 4.01, 6.01(a) or 6.01(b) or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge.

          (g) Delivery of reports, information and documents to the Trustee under Section 4.19 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

Section 7.03. Individual Rights of Trustee.

          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee; provided, however, in the event that the Trustee acquires any conflicting interest, the Trustee must (a) eliminate such conflict within 90 days, (b) if a registration statement with respect to the Notes is

107

effective, apply to the Commission for permission to continue as Trustee or (c) resign as Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.

Section 7.04. Trustee’s Disclaimer.

          The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

Section 7.05. Notice of Defaults.

          If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes.

Section 7.06. Reports by Trustee to Holders of the Notes.

          Within 60 days after May 15 of each year commencing with the year 2010, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA §313(a) (but if no event described in TIA §313(a) has occurred within the 12 months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA §313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA §313(c).

          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Company and filed with the Commission and each stock exchange on which the Notes are listed in accordance with TIA §313(d). The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange.

Section 7.07. Compensation and Indemnity.

          The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable

108

disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

          The Company shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder (except to the extent such failure prejudices the Company). The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of one such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

          The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.

          To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien (which Lien shall be a Permitted Lien) prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.

          When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

          The Trustee shall comply with the provisions of TIA §313(b)(2) to the extent applicable.

Section 7.08. Replacement of Trustee.

          A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

109

          The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of Notes of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

          (a) the Trustee fails to comply with Section 7.10 hereof;

          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

          (c) a Custodian or public officer takes charge of the Trustee or its property; or

          (d) the Trustee becomes incapable of acting.

          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

          If a successor Trustee does not take office within 90 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

          If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note for at least six months, fails to comply with Section 7.10, such Holder of a Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

          A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided, all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.

110

Section 7.09. Successor Trustee by Merger, Etc.

          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, that such corporation shall be otherwise qualified and eligible under this Article VII and under the TIA, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In the event that any Notes shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Notes, in either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the Trustee.

Section 7.10. Eligibility; Disqualification.

          There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus (with its affiliates) of at least $50.0 million as set forth in its most recent published annual report of condition.

          If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 7.10, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. None of the Company or any of its Affiliates shall serve as Trustee hereunder. If at any time the Trustee shall cease to be eligible to serve as Trustee hereunder pursuant to the provisions of this Section 7.10, it shall resign immediately in the manner and with the effect specified in this Article VII.

          This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and (5). The Trustee is subject to TIA §310(b).

Section 7.11. Preferential Collection of Claims Against Company.

          The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent indicated therein.

111

ARTICLE VIII.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.

          The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.

Section 8.02. Legal Defeasance and Discharge.

          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes (and the Guarantors shall be deemed to have been discharged from their Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Indenture, and all Obligations of the Guarantors with respect to their Note Guarantees shall be discharged (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of or interest or premium, if any, on such Notes when such payments are due; (b) the Company’s obligations with respect to such Notes under Article II and Section 4.02 hereof; (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s and the Guarantors’ obligations in connection therewith; and (d) this Article VIII (and applicable provisions of Article III insofar as the Notes are to be defeased through a redemption date). Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section 8.03. Covenant Defeasance.

          Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from their

112

obligations under the covenants contained in Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.20, 4.21, 4.22, 4.23 and 4.24 hereof with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(g) and 6.01(j) hereof shall not constitute Events of Default. Notwithstanding any Covenant Defeasance hereunder, however, the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s and the Guarantors’ obligations in connection therewith, shall survive until otherwise terminated or discharged hereunder.

Section 8.04. Conditions to Legal or Covenant Defeasance.

          The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:

          (a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium and Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;

          (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes

113

as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

          (c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders and the beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

          (d) no Default or Event of Default shall have occurred and be continuing either (i) on the date of such deposit or (ii) insofar as Sections 6.01(h) or 6.01(i) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit;

          (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

          (f) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (i) assuming no intervening bankruptcy of the Company or any Guarantor between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider” of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, including Section 547 of the United States Bankruptcy Code and Section 15 of the New York Debtor and Creditor Law, and (ii) the creation of the defeasance trust does not violate the Investment Company Act of 1940;

          (g) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;

          (h) if the Notes are to be redeemed prior to their Stated Maturity, the Company shall deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date; and

          (i) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

114

Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.

          Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

          The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

          Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or noncallable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

Section 8.06. Repayment to Company.

          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest or Additional Interest, if any, on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request (unless any abandoned property law designates that such amounts be paid to another Person) or, if then held by the Company, shall be discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor, look only to the Company for payments thereof (unless any abandoned property law designates another Person), and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment to the Company, may at the expense of the Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

115

Section 8.07. Reinstatement.

          If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE IX.

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01. Without Consent of Holders of Notes.

          Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Notes, the Note Guarantees or any of the Collateral Documents without the consent of any Holder of a Note:

          (a) to cure any ambiguity, defect or inconsistency;

          (b) to conform the text of this Indenture to the corresponding provision of the “Description of Notes” contained in the Offering Memorandum to the extent that such provision in the “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture;

          (c) to provide for uncertificated Notes in addition to or in place of certificated Notes;

          (d) to provide for the assumption of the Company’s or any Guarantor’s obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Company’s or such Guarantor’s assets;

          (e) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not materially adversely affect the legal rights under this Indenture or any Collateral Document of any such Holder;

          (f) to comply with the provisions of Section 4.17;

116

          (g) to comply with the rules of any applicable securities depositary;

          (h) to evidence and provide for the acceptance of appointment by a successor Trustee;

          (i) to provide for the issuance of Additional Notes in accordance with this Indenture;

          (j) to mortgage, pledge, hypothecate or grant a security interest in favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes as additional security for the payment and performance of the Company’s and any Guarantor’s obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to the Trustee or the Collateral Agent pursuant to this Indenture or otherwise;

          (k) to provide for the succession of any parties to the Collateral Documents (and other amendments that are administrative or ministerial in nature) in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of the Credit Agreement or any other agreement that is not prohibited by this Indenture;

          (l) to provide for the release or addition of Collateral or Guarantees in accordance with the terms of this Indenture and the Collateral Documents;

          (m) to provide security for borrowings under the Credit Agreement that are incurred in accordance with this Indenture;

          (n) to secure Additional Note Obligations, if any; or

          (o) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA.

          Upon the request of the Company and the Guarantors accompanied by a resolution of their respective Boards of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

117

Section 9.02. With Consent of Holders of Notes.

          Except as provided below in this Section 9.02, this Indenture, any of the Collateral Documents, the Notes and the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes).

          Upon the request of the Company and the Guarantors accompanied by a resolution of their respective Boards of Directors authorizing the execution of any such amended or supplemental Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company and the Guarantors in the execution of such amended or supplemental Indenture unless such amended or supplemental Indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental Indenture. It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

          After an amendment, supplement or waiver under this Section becomes effective, the Company shall mail to the Trustee and the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver.

          However, without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder):

          (a) reduce the percentage of principal amount of Notes whose Holders must consent to an amendment, supplement or waiver of this Indenture or the Collateral Documents; reduce the principal of or change the fixed maturity of any Note or alter the provisions, or waive any payment, with respect to the redemption of the Notes other than provisions relating to covenants described under Section 4.09 and Section 4.14 (except to the extent provided in clause (h) below);

118

          (b) reduce the rate of or change the time for payment of interest on any Note;

          (c) waive a Default or Event of Default in the payment of principal of, or interest, or premium, if any, on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment Default that resulted from such acceleration);

          (d) make any Note payable in money other than U.S. dollars;

          (e) make any change in the provisions of this Indenture or the Collateral Documents relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium, if any, on, the Notes;

          (f) release all or substantially all of the value of the Note Guarantees of the Guarantors from any of their obligations under their Note Guarantees or this Indenture, except in accordance with the terms of this Indenture;

          (g) impair the right to institute suit for the enforcement of any payment on or with respect to the Notes or the Note Guarantees;

          (h) amend, change or modify the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control in accordance with the covenant described under Section 4.14 after such Change of Control has occurred, including, amending, changing or modifying any definition relating thereto;

          (i) subordinate, in right of payment, the Notes to any other Indebtedness of the Company; or

          (j) make any change in this Section 9.02, except to increase any such percentage required for such actions or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby.

          Notwithstanding anything to the contrary in this Article IX, an amendment or waiver may not amend, change or modify the obligation of the Company to make and consummate an Asset Sale Offer with respect to any Asset Sale in accordance with the covenant described under Section 4.09 after the obligation to make such Asset Sale Offer has arisen, including, amending, changing or modifying any definition relating thereto, without the consent of Holders of the Notes representing at least 66 2/3% of the aggregate principal amount of the outstanding Notes.

          Collateral may be released in accordance with this Indenture (including without limitation Sections 11.03 and 11.04 hereof) and to the extent that such a release is not prohibited by the Intercreditor Agreement. Notwithstanding anything to the contrary in this Article IX, any Guarantor

119

that is a Significant Subsidiary may not be released from any of its obligations under its Note Guarantee or this Indenture (except in accordance with the terms of this Indenture) without the consent of Holders of the Notes representing at least 75% of the aggregate principal amount of the outstanding Notes.

          Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

          Section 9.03. Compliance with Trust Indenture Act.

          Every amendment or supplement to this Indenture, the Note Guarantees or the Notes shall be set forth in an amended or supplemental Indenture that complies with the TIA as then in effect.

Section 9.04. Revocation and Effect of Consents.

          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

Section 9.05. Notation on or Exchange of Notes.

          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.

          Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06. Trustee to Sign Amendments, Etc.

          The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company and each Guarantor may not sign an amendment or supplemental Indenture until each of their respective Boards of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully

120

protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

ARTICLE X.

NOTE GUARANTEES

Section 10.01. Note Guarantees.

          Each of the Guarantors hereby, jointly and severally, fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and interest (including without limitation any interest which accrues under any Debtor Relief Law with respect to the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest (including without limitation any interest which accrues under any Debtor Relief Law with respect to the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture and as otherwise provided in this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company or Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the

121

Company or Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.

Section 10.02. Execution and Delivery of Note Guarantee.

          To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form included in Exhibit E hereto shall be endorsed by an officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by its President or one of its Vice Presidents.

          Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01, shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

          If an officer or Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless.

          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

Section 10.03. Guarantors May Consolidate or Merge on Certain Terms.

          (a) A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, unless:

122

          (1) immediately after giving effect to that transaction, no Event of Default exists; and

          (2) either:

     (A) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) is organized or existing under the laws of the United States, any state thereof or the District of Columbia and assumes all the obligations of that Guarantor under this Indenture and its Note Guarantee pursuant to a supplemental indenture satisfactory to the Trustee and under the Collateral Documents pursuant to a joinder or accession agreement or agreements satisfactory to the Collateral Agent; or

     (B) such sale or other disposition or consolidation or merger complies with Section 4.09.

          (b) Nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety, to the Company.

          (c) Except as set forth in Section 10.04, in the case of any consolidation, merger, sale or conveyance of a Guarantor pursuant to Section 10.03(a)(2)(A), upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Section 10.04. Releases of Note Guarantees.

          (a) The Note Guarantee of a Guarantor will be released automatically:

          (1) in connection with any sale or other disposition of all of the Capital Stock, or all or substantially all of the assets, of such Guarantor to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Company, if the sale of all such Capital Stock, or all or substantially all of the assets, of that Guarantor complies with Section 4.09; or

123

          (2) if the Company designates the Restricted Subsidiary that is such Guarantor as an Unrestricted Subsidiary under and in compliance with this Indenture.

          (b) If all or substantially all of the assets of any Guarantor or all of the capital stock of any Guarantor are sold or disposed of in compliance with Section 10.04(a)(1), then such Guarantor (in the event of a sale or other disposition of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of a Guarantor) shall be released and relieved of its obligations under its Note Guarantee or Section 10.03, hereof, as the case may be; provided, that in the event of an Asset Sale, the Net Proceeds from such sale or other disposition are treated in accordance with the provisions of Section 4.09 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.09 hereof, the Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

          (c) Any Guarantor not released from its obligations under its Note Guarantee pursuant to this Section 10.04 shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article X.

Section 10.05. Trustee to Include Paying Agent.

          In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article X, shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent were named, in this Article X, in place of the Trustee.

Section 10.06. Limits on Note Guarantees.

          Notwithstanding anything to the contrary in this Article X, the aggregate amount of the Obligations guaranteed under this Indenture by any Guarantor shall be reduced to the extent necessary to prevent the Note Guarantee of such Guarantor from violating or becoming voidable under any law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors.

124

ARTICLE XI.

COLLATERAL AND SECURITY

Section 11.01. Collateral Documents.

          The due and punctual payment of the principal of, premium, if any, on and interest (including any Additional Interest) on, the Notes (including, without limitation, any interest which accrues after the commencement of any proceedings under any Debtor Relief Laws with respect to any of the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding) when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest (including, without limitation, any interest which accrues after the commencement of any proceedings under any Debtor Relief Laws with respect to any of the Company or any Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the overdue principal of, premium on, if any, and interest, on the Notes and any other Note Obligations and performance of all other Obligations of the Company and the Guarantors to the Holders of Notes, the Trustee or the Collateral Agent under this Indenture, the Notes (including, without limitation, the Note Guarantees) or the Collateral Documents according to the terms hereunder or thereunder, are secured as provided in the Security Agreement and the Pledge Agreement, which the Company and the Guarantors have entered into simultaneously with the execution of this Indenture, and the other Collateral Documents in effect from time to time. Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended, supplemented or otherwise modified from time to time in accordance with their terms and authorizes and directs the Collateral Agent and/or the Trustee (as the case may be) to enter into the Collateral Documents (including Mortgages) and to perform their obligations and exercise their rights thereunder in accordance therewith. The Company and the Guarantors will deliver to the Trustee copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Collateral Documents, to assure and confirm to the Trustee and the Collateral Agent the security interest, mortgage or other Lien in the Collateral contemplated hereby or by the Collateral Documents, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company and the Guarantors shall comply with the terms and provisions of the Collateral Documents and shall take, upon request of the Trustee or the Collateral Agent, any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Note Obligations of the Company and the Guarantors hereunder, a valid and enforceable perfected Lien in and on all the

125

Collateral, in favor of the Collateral Agent for the benefit of the Trustee and the Holders of Notes, superior to and prior to the rights of all third Persons and subject to no other Liens other than Permitted Liens.

Section 11.02. Recording and Opinions.

          The Company shall comply with the provisions of TIA §314(b) (including, without limitation, the provision of an initial and annual Opinion of Counsel under TIA §314(b)); provided that the Company shall not be required to comply with TIA §314(b)(1) until this Indenture is qualified pursuant to the TIA. Following such qualification, to the extent the Company is required to furnish to the Trustee an Opinion of Counsel pursuant to TIA §314(b)(2), the Company shall furnish such opinion within three months following each anniversary date of such qualification.

Section 11.03. Release of Collateral.

          (a) The Collateral Agent’s Liens upon the Collateral will no longer secure the Notes and Note Guarantees outstanding under this Indenture or any other Obligations under this Indenture, and the right of the Holders of the Notes and such Obligations to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be discharged:

               (1) in whole, as to all property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;

               (2) in whole, as to all property subject to such Liens, upon:

                    (A) payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes; or

          (B) satisfaction and discharge of this Indenture as set forth in Article XII hereof; or

          (C) Legal Defeasance or Covenant Defeasance of this Indenture as set forth in Article VIII hereof;

               (3) in part, as to any property that (A) is sold, transferred or otherwise disposed of by the Company or one of its Subsidiaries in a transaction not prohibited by this Indenture, at the time of such sale, transfer or disposition, to the extent of the interest sold, transferred or disposed of or (B) is owned or at any time acquired by a Guarantor that has been released from its Note Guarantee (and any guarantee of other Note Obligations), concurrently with the release of such Note Guarantee (and any guarantee of other Note Obligations);

126

               (4) on any or all of the Credit Facility Collateral, upon any release of a first priority Lien thereon by the Credit Facility Collateral Agent or as otherwise authorized or directed by the Credit Facility Collateral Agent unless the Credit Facility Loan Obligations have been paid in full and the Credit Facility is terminated without it being refinanced; provided, however, that if a Lien is reinstated securing obligations under the Credit Facility on any or all of the Credit Facility Collateral upon which the Lien securing Obligations has been released pursuant to this clause (4), then the Lien securing the Note Obligations on such Credit Facility Collateral will also be deemed reinstated on the same basis (including as to priority) that it was immediately prior to the release;

               (5) as to property that constitutes all or substantially all of the Collateral securing the Note Obligations and any Additional Notes, with the consent of the Holders of 80% of the aggregate principal amount of the Notes then outstanding voting as a single class together with any Additional Notes (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);

               (6) as to property that constitutes less than all or substantially all of the Collateral securing the Note Obligations and any Additional Notes, with the consent of the Holders of at least 60% of the aggregate principal amount of the Notes then outstanding voting as a single class together with any Additional Notes (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, purchase of, the Notes); or

               (7) in whole or in part, in accordance with the applicable provisions of the Collateral Documents, including the Intercreditor Agreement.

          Upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying that all conditions precedent under this Indenture and the Collateral Documents, if any, to such release have been met and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral Document to the contrary, the Trustee and Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.

          (b) To the extent applicable, the Company shall cause TIA §313(b), relating to reports, and TIA §314(d), relating to the release of property or securities or

127

relating to the substitution therefore of any property or securities to be subjected to the Lien created by the Collateral Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by an Officer of the Company except in cases where TIA §314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert reasonably satisfactory to the Trustee. Notwithstanding anything to the contrary in this Section 11.03, the Company shall not be required to comply with all or any portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the Commission and its staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is inapplicable to released Collateral.

          (c) To the extent applicable, the Company shall furnish to the Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents:

(i)	all documents required by TIA §314(d); and
(ii)	an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d).

          (d) The release of any Collateral from the terms of the Collateral Documents, or the release, in whole or in part, of the Liens created by the Collateral Documents, will not be deemed to impair the security under this Indenture in contravention of the provisions hereof and of the Collateral Documents if and to the extent that the Collateral is released pursuant to this Indenture and the Collateral Documents, including the Intercreditor Agreement. In connection with the release of Collateral, the Trustee shall determine whether it has received all documentation required by TIA §314(d) to permit such release.

Section 11.04. Disposition of Collateral Without Release.

          (a) Notwithstanding Section 11.03 hereof relating to releases of Collateral, but subject to and in accordance with the provisions of the Collateral Documents and this Indenture, so long as the Collateral Agent, the Trustee, the Credit Facility Collateral Agent or the Credit Facility Lenders have not exercised their rights with respect to the Collateral upon the occurrence and during the continuance of an Event of Default, the Company and the Guarantors will have the right to remain in possession and retain exclusive control of the Collateral, to operate the Collateral, to alter and repair the Collateral and to collect, invest and dispose of any income therefrom.

          (b) Notwithstanding the foregoing, the Company and the Guarantors may, among other things, without any release or consent by the Trustee or the Collateral Agent, use and dispose of the Collateral in any lawful manner not inconsistent with the

128

provisions of this Indenture or any of the Collateral Documents, including, without limitation, (i) selling or otherwise disposing of, in any transaction or series of related transactions, any property subject to the Lien of the Collateral Documents which has become worn out, defective or obsolete or that would no longer be used or useful in the business; (ii) abandoning, terminating, canceling, releasing or making alterations in or substitutions of any leases or contracts subject to the Lien of this Indenture or any of the Collateral Documents; (iii) surrendering or modifying any franchise, license or permit subject to the Lien of this Indenture or any of the Collateral Documents which it may own or under which it may be operating; altering, repairing, replacing, changing the location or position of and adding to its structures, machinery, systems, equipment, fixtures and appurtenances; (iv) granting a license of any intellectual property; (v) selling, transferring or otherwise disposing of inventory in the ordinary course of business; (vi) selling, collecting, liquidating, factoring or otherwise disposing of accounts receivable in the ordinary course of business; (vii) making cash payments (including for the scheduled repayment of Indebtedness) from cash that is at any time part of the Collateral in the ordinary course of business that are not otherwise prohibited by this Indenture and the Collateral Documents; and (viii) abandoning any intellectual property which is no longer used or useful in the Company’s business.

Section 11.05. Authorization of Actions to Be Taken by the Trustee and the Collateral Agent Under the Collateral Documents.

          (a) Subject to the provisions of the Collateral Documents, the Trustee may (but without any obligation to do so), in its sole discretion and without the consent of the Holders of Notes, direct, on behalf of the Holders of Notes, the Collateral Agent to, take all actions it deems necessary or appropriate in order to:

               (1) enforce any of the terms of the Security Agreement, the Pledge Agreement and any other Collateral Document (including Mortgages); and

               (2) collect and receive any and all amounts payable in respect of the Note Obligations of the Company and the Guarantors hereunder.

          (b) Subject to the provisions of the Collateral Documents, the Trustee will have power (but without any obligation) to institute and maintain, or to direct, on behalf of the Holders of the Notes, the Collateral Agent to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of this Indenture or any of the Collateral Documents, and such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or

129

compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders of Notes or of the Trustee).

          (c) Unless otherwise provided herein, all instructions to the Trustee are to be made pursuant to the vote of the Holders of a majority in aggregate principal amount of Notes.

Section 11.06. Authorization of Receipt of Funds by the Trustee under the Security Agreement.

          The Trustee is authorized to receive any funds for the benefit of the Holders of Notes distributed under any of the Collateral Documents, and to make further distributions of such funds to the Holders of Notes according to the provisions of this Indenture.

Section 11.07. Intercreditor Agreement.

          The Trustee agrees for itself and on behalf of the Holders of the Notes, and by holding Notes each such Holder shall be deemed to agree:

          (a) that the holders of Obligations in respect of this Indenture, the Notes and the Note Guarantees are bound by the provisions of the Intercreditor Agreement, including the provisions relating to the ranking of Liens and the order of application of proceeds from enforcement of Liens; and

          (b) to consent to and direct the Collateral Agent to enter into and perform its obligations under the Intercreditor Agreement and the other Collateral Documents.

Section 11.08. Limitation on Duty of Trustee and Collateral Agent in Respect of Collateral.

          (a) Beyond the exercise of reasonable care in the custody thereof, the Trustee and the Collateral Agent shall have no duty as to any Collateral in their possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in their possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any agent or bailee selected by the Trustee or the Collateral Agent in good faith.

130

          (b) The Trustee and the Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Trustee or the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Collateral Documents by the Company, the Guarantors or the Collateral Agent (if the Trustee is not the Collateral Agent).

Section 11.09. Powers Exercisable by Receiver or Trustee.

          In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article XI upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any officer or officers thereof required by the provisions of this Article XI; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.

Section 11.10. Collateral Agent.

          (a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture and the Collateral Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.10. The provisions of this Section 11.10 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section 11.10. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties,

131

obligations or liabilities shall be read into this Indenture and the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture and the Collateral Documents, including the exercise of remedies pursuant to Article VI, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.

          (b) The Collateral Agent may execute any of its duties under this Indenture or the Collateral Documents by or through agents, employees, attorneys-in-fact or through its Affiliates and shall be entitled to an Officers’ Certificate or an Opinion of Counsel or both concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Affiliate that it selects as long as such selection was made without negligence or willful misconduct.

          (c) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with the Collateral Documents or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or Guarantor, or any officer thereof, contained in this Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Collateral Documents, or for any failure of the Company any Guarantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Collateral Documents or to inspect the properties, books, or records of the Company, any Guarantor or their respective Affiliates.

          (d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit,

132

letter, telegram, facsimile, telex, or other document believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.

          (e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, Holders of Notes, the Company or a Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI (subject to this Section 11.10); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.

          (f) Wilmington Trust Company and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Guarantor or their respective Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Wilmington Trust Company or its respective Affiliates may receive information regarding the Company or any Guarantor or any of their Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or any Guarantor or any of their Affiliates) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Wilmington Trust Company to advance funds.

          (g) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the

133

Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Default or Event of Default), shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Default or Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.10 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.

          (h) The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral Documents, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.

          (i) The Trustee, as such and as Collateral Agent, is authorized and directed to (i) enter into the Collateral Documents, (ii) bind the Holders on the terms as set forth in the Collateral Documents and (iii) perform and observe its obligations under the Collateral Documents.

          (j) The Trustee agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any action to enforce its rights under

134

this Indenture or against the Company or the Guarantors, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral.

          If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VII, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.

          (k) The Trustee is each Holder’s agent and the Collateral Agent is the Trustee’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession or control. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.

          (l) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or any part of the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.

          (m) No provision of this Indenture or any Collateral Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any

135

action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.

          (n) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a an officer thereof, unless it is proved that the Collateral Agent was negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company or any Guarantor (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. The Collateral Agent shall be indemnified by the Company and the Guarantors to the same extent as the indemnification of the Trustee herein.

          (o) Neither the Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.

          (p) The Collateral Agent shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holder, unless such Holder shall have offered to the Collateral Agent security and indemnity satisfactory to it against any loss, liability or expense.

          (q) Notwithstanding anything herein to the contrary, in acting as Collateral Agent, the Collateral Agent may rely upon and enforce each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article VII hereof.

136

ARTICLE XII.

SATISFACTION AND DISCHARGE

Section 12.01. Satisfaction And Discharge Of Indenture.

          This Indenture will be discharged and will cease to be of further effect as to all outstanding 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 Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and 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 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 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 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 Notes at maturity or the redemption date, as the case may be.

          Notwithstanding the satisfaction and discharge hereof, the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s and the Guarantors’

137

obligations in connection therewith, the obligations of the Company to the Trustee under Section 7.07 and, if United States dollars shall have been deposited with the Trustee pursuant to subclause (2) of subsection (a) of this Section 12.01, the obligations of the Trustee under Section 12.02 and Section 8.06, shall survive.

Section 12.02. Application of Trust Money.

          Subject to the provisions of Section 8.06, all United States dollars deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal of, premium, if any, and interest on, the Notes for whose payment such United States dollars have been deposited with the Trustee.

ARTICLE XIII.

MISCELLANEOUS

Section 13.01. Trust Indenture Act Controls.

          If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

Section 13.02. Notices.

          Any notice or communication by the Company, a Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:

          If to the Company or a Guarantor:

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
Telecopier No.: (201) 571-8715
Attention: Brenda Galgano, Senior Vice President and Chief Financial
Officer

          If to the Trustee:

138

Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Telecopier No.: (302) 636-4145
Attention: Corporate Trust Administration

          The Company, a Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.

          All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

          Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA §313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

          If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

          If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

Section 13.03. Communication by Holders of Notes with Other Holders of Notes.

          Holders may communicate pursuant to TIA §312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA §312(c).

Section 13.04. Certificate and Opinion As to Conditions Precedent.

          Upon any request or application by the Company and/or any Guarantor to the Trustee to take any action or refrain from taking any action under this Indenture, the Company and/or such Guarantor, as the case may be, shall furnish to the Trustee:

          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.05

139

hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

          In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such eligible and qualified Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

          Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company stating the information on which counsel is relying unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Section 13.05. Statements Required in Certificate or Opinion.

          Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and shall include:

          (a) a statement that the Person making such certificate or opinion has read such covenant or condition;

          (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

          (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

140

          (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Section 13.06. Rules by Trustee and Agents.

          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions; provided, that no such rule shall conflict with the terms of this Indenture or the TIA.

Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders.

          No director, officer, employee, incorporator, stockholder, member, manager or partner of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

Section 13.08. Governing Law.

          THE INDENTURE, THE NOTES, ANY NOTE GUARANTEES AND THE COLLATERAL DOCUMENTS WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.

Section 13.09. No Adverse Interpretation of Other Agreements.

          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture, the Notes or the Note Guarantees.

Section 13.10. Successors.

          All agreements of the Company and the Guarantors in this Indenture, the Note Guarantees and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

141

Section 13.11. Severability.

          In case any provision in this Indenture, the Note Guarantees or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 13.12. Counterpart Originals.

          The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

Section 13.13. Table of Contents, Headings, Etc.

          The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 13.14. Further Instruments and Acts.

          Upon request of the Trustee, the Company and the Guarantors will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

[Signatures on following pages]

142

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

COMPANY: THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary

GUARANTORS:

ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.),
a Delaware corporation
NORTH JERSEY PROPERTIES, INC. VI,
a Delaware corporation
AAL REALTY CORP.,
a New York corporation
ADBRETT CORP.,
a Delaware corporation
BERGEN STREET PATHMARK, INC.,
a New Jersey corporation
BRIDGE STUART INC.,
a New York corporation
EAST BRUNSWICK STUART LLC,
a Delaware limited liability company
LANCASTER PIKE STUART, LLC,
a Delaware limited liability company
MACDADE BOULEVARD STUART, LLC,
a Delaware limited liability company
PLAINBRIDGE LLC,
a Delaware limited liability company
SUPERMARKETS OIL COMPANY, INC.,
a New Jersey corporation
UPPER DARBY STUART LLC,
a Delaware limited liability company
BEST CELLARS, INC.,
a New York corporation
BEST CELLARS MASSACHUSETTS, INC.,
a Massachusetts corporation
BEST CELLARS VA INC.,
a Virginia corporation
GRAPE FINDS LICENSING CORP.,
a District of Columbia corporation
GRAPE FINDS AT DUPONT, INC.,
a District of Columbia corporation
BEST CELLARS DC INC.,
a District of Columbia corporation
BEST CELLARS LICENSING CORP.,
a New York corporation

By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	President

COMPASS FOODS, INC.,
a Delaware corporation
FOOD BASICS, INC.,
a Delaware corporation
HOPELAWN PROPERTY I, INC.,
a Delaware corporation
KOHL’S FOOD STORES, INC.,
a Wisconsin corporation
THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.,
a South Dakota corporation
KWIK SAVE INC.,
a Pennsylvania corporation
MONTVALE HOLDINGS, INC.,
a New Jersey corporation
SUPER FRESH FOOD MARKETS, INC.,
a Delaware corporation
SUPER FRESH FOOD MARKETS OF MARYLAND, INC.,
a Maryland corporation
SUPER FRESH / SAV - A - CENTER, INC.,
a Delaware corporation
SUPER MARKET SERVICE CORP.,
a Pennsylvania corporation
SUPER PLUS FOOD WAREHOUSE, INC.,
a Delaware corporation
SUPERMARKET DISTRIBUTION SERVICES, INC.,
a Delaware corporation
2008 BROADWAY, INC.,
a New York corporation
BEV, LTD.,
a Delaware corporation
FARMER JACK’S OF OHIO, INC.,
an Ohio corporation
SHOPWELL, INC. (DBA FOOD EMPORIUM),
a Delaware corporation
CLAY-PARK REALTY CO., INC., a New York corporation
AMSTERDAM TRUCKING CORPORATION (F/K/A
DAITCH CRYSTAL DAIRIES, INC.),
a New York corporation
DELAWARE COUNTY DAIRIES, INC.,
a New York corporation
GRAMATAN FOODTOWN CORP.,
a New York corporation
SHOPWELL, INC.,
a Connecticut corporation
SHOPWELL, INC.,
a Massachusetts corporation
SHOPWELL, INC. (NEW JERSEY),
a New Jersey corporation
THE FOOD EMPORIUM, INC.,
a Connecticut corporation
THE FOOD EMPORIUM, INC.,
a Delaware corporation
THE FOOD EMPORIUM, INC.,
a New Jersey corporation
TRADEWELL FOODS OF CONN., INC.,
a Connecticut corporation
APW SUPERMARKET CORPORATION,
a Delaware corporation
APW SUPERMARKETS, INC.,
a New York corporation
WALDBAUM, INC. (DBA WALDBAUM, INC. AND
FOOD MART),
a New York corporation

LBRO REALTY, INC.,
a New York corporation
MCLEAN AVENUE PLAZA CORP.,
a New York corporation
SPRING LANE PRODUCE CORP.,
a New York corporation
THE MEADOWS PLAZA DEVELOPMENT CORP.,
a New York corporation
GREENLAWN LAND DEVELOPMENT CORP.,
a New York corporation

By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Secretary
S E G STORES, INC., a Delaware corporation THE OLD WINE EMPORIUM OF WESTPORT, INC., a Connecticut corporation
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Secretary
PATHMARK STORES, INC., a Delaware corporation
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary
BORMAN’S, INC. (DBA FARMER JACK), a Delaware corporation
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary
MILIK SERVICE COMPANY, LLC, a Virginia limited liability company By Pathmark Stores, Inc., its Manager
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary
LO-LO DISCOUNT STORES, INC., a Texas corporation
By:	/s/ William Moss
	Name:	William Moss
	Title:	Vice President and Treasurer

TRUSTEE: WILMINGTON TRUST COMPANY
By:	/s/ Michael G. Oller, Jr.
	Name:	Michael G. Oller, Jr.
	Title:	Assistant Vice President

EXHIBIT A
CUSIP NUMBER [390064 AL7]
[U4370P AB1]

ISIN NUMBER [US390064AL78]
[USU4370PAB14]

(Face of Note)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

11³/8% SENIOR SECURED NOTES DUE 2015

No.                     

$                     

          THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation, for value received, hereby promises to pay to                                                                                                                            or registered assigns, the principal sum of                      Dollars [, or such greater or lesser amount as may from time to time be endorsed on the Schedule of Increases and Decreases of Interests in the Global Note attached hereto (but in no event may such amount exceed the aggregate principal amount of Notes authenticated pursuant to Section 2.02 of the Indenture referred to below and then outstanding pursuant to Section 2.08 of the Indenture]¹ on August 1, 2015.

Interest Payment Dates: February 1 and August 1

First Interest Payment Date: February 1, 2010

Record Dates: January 15 and July 15

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By:
	Name:
	Title:

¹ Use if Global Note

A-1

By:
	Name:
	Title:

This is one of the [Global] Notes referred
to in the within mentioned Indenture:

Dated:                     , ____

WILMINGTON TRUST COMPANY,
as Trustee

By:
	Authorized Signatory

A-2

(Back of Note)

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

11³/8% SENIOR SECURED NOTES DUE 2015

THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT DATED AS OF AUGUST 4, 2009, AMONG BANK OF AMERICA, N.A., AS CREDIT FACILITY COLLATERAL AGENT, WILMINGTON TRUST COMPANY, AS NOTE COLLATERAL AGENT, THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND THE SUBSIDIARIES OF THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. PARTY THERETO (THE “INTERCREDITOR AGREEMENT”), AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.

THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE PRICE OF THIS NOTE WAS 97.385% OF ITS PRINCIPAL AMOUNT; THE TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $26.15 PER NOTE WITH A PRINCIPAL AMOUNT OF $1,000; THE ISSUE DATE IS AUGUST 4, 2009; AND THE YIELD TO MATURITY IS 12.000%.

[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL

A-3

INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.]²

[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (THE “COMPANY”) THAT (a) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(A) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE

² This paragraph should be included only if the Note is issued in Global Form.

A-4

COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.]³

          Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. The Securities are general obligations of the Company, secured by Liens on the Collateral as described in the Indenture. This Note is entitled to the benefits of the Note Guarantees by the Guarantors on the terms set forth in the Indenture.

          1. Interest. The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (such corporation, and its successors and assigns under the Indenture, being herein called the “Company”), promises to pay interest on the principal amount of this Note at 11.375% per annum from August 4, 2009 until maturity and shall pay the Additional Interest, if any, payable pursuant to the Registration Rights Agreement referred to below. The Company shall pay interest and Additional Interest semi-annually on February 1 and August 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be February 1, 2010. The Company shall pay, to the extent lawful, interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

          2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on January 15 or July 15 next

³ This paragraph should be included only if the Note is a Transfer Restricted Security.

A-5

preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, interest and Additional Interest, if any, at the office or agency of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of interest and Additional Interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium, if any, and Additional Interest, if any, on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

          3. Paying Agent and Registrar. Initially, Wilmington Trust Company, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity; provided that if the Company or such Subsidiary is acting as Paying Agent, the Company or such Subsidiary shall segregate all funds held by it as Paying Agent and hold them in a separate trust fund for the benefit of the Holders.

          4. Indenture. The Company issued the Notes under an Indenture dated as of August 4, 2009 (the “Indenture”), among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms.

          The Company may, from time to time, without notice to or the consent of the Holders of the Notes, create and issue Additional Notes under the Indenture ranking equally with the Notes in all respects, subject to the limitations described in Sections 4.08 and 4.10 of the Indenture. The terms of the Notes and any Additional Notes may have additional issuance dates and dates from which interest accrues and shall be part of the same series. Such Additional Notes will be consolidated and form a single series with the Notes, vote together with the Notes and have the same terms as to status, redemption or otherwise as the Notes. References to the Notes under the Indenture include these Additional Notes if they are in the same series, unless the context requires otherwise.

          The summary of the terms of this Note contained herein does not purport to be complete and is qualified by reference to the Indenture. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control.

A-6

          The Indenture restricts, among other things, the Company’s and the Guarantors’ ability to incur additional indebtedness, pay dividends or make certain other restricted payments, incur liens, apply net proceeds from certain asset sales, merge or consolidate with any other person, sell, assign, transfer, lease, convey or otherwise dispose of substantially all of the assets of the Company or enter into certain transactions with affiliates.

          5. Optional Redemption.

          Prior to August 1, 2012, the Company may redeem the Notes at its option, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ prior notice electronically delivered or mailed by first-class mail to each Holder’s registered address, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, the applicable redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).

          On or after August 1, 2012, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on August 1 of the years indicated below:

Year	Percentage
2012		105.688	%
2013		102.844	%
2014 and thereafter		100.000	%

          At any time prior to August 1, 2012, the Company may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture (including any Additional Notes) at a redemption price of 111.375% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon to the redemption date, with the net cash proceeds of one or more Equity Offerings; provided that (i) at least 65% of the aggregate principal amount of Notes issued under the Indenture (including any Additional Notes) remains outstanding immediately after the occurrence of such redemption (excluding Notes held by the Company or its Affiliates) and (ii) the redemption must occur within 120 days of the date of the closing of such Equity Offering.

          6. Mandatory Redemption.

          The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

A-7

          7. Repurchase at Option of Holder.

          (a) If a Change of Control occurs, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to an offer (a “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, the Company shall offer payment (a “Change of Control Payment”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional Interest, if any, thereon, to the date of repurchase (the “Change of Control Payment Date,” which date will be no earlier than the date of such Change of Control). No later than 30 days following any Change of Control, the Company shall mail a notice to each Holder stating that a Change of Control has occurred and offering to repurchase Notes on the Change of Control Payment Date specified in such notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice.

          (b) Under certain circumstances described in the Indenture, the Company shall be required to offer to repurchase the Notes and Tenderable Indebtedness with the proceeds of Asset Sales.

          8. Notice of Redemption. Notice of redemption will be electronically delivered or mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date, interest ceases to accrue on Notes or portions thereof called for redemption.

          9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes may be issuable from time to time in denominations of less than $2,000 solely to the extent necessary to accommodate book-entry positions that have been created in denominations of less than $2,000 by the Depositary. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or register the transfer of or to exchange a Note during the period between a record date and the corresponding Interest Payment Date.

A-8

          10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes.

          11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the Notes, the Note Guarantees and the Collateral Documents may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a tender offer or exchange offer for the Notes), and, subject to the terms of the Indenture, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a tender offer or exchange offer for the Notes). Certain provisions in the Indenture, Notes, Notes Guarantees and Collateral Documents may be amended or supplemented without the consent of any Holder of a Note. Certain provisions in the Indenture, Notes, Notes Guarantees and Collateral Documents may not be amended or supplemented without the consent of every Holder affected thereby.

          12. Defaults and Remedies. The Indenture contains certain Events of Default.

          If any Event of Default (other than an Event of Default specified in clause (h) or (i) of Section 6.01 with respect to the Company) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (h) or (i) of Section 6.01 occurs with respect to the Company, all outstanding Notes will become due and immediately payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

A-9

          13. Trustee and Collateral Agent Dealings with Company. Each of the Trustee and the Collateral Agent, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee and/or the Collateral Agent, as the case may be.

          14. No Recourse Against Others. No director, officer, employee, incorporator, stockholder, member, manager or partner of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

          15. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

          16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JE TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

          17. Additional Rights of Holders. In addition to the rights provided to Holders of Notes under the Indenture, Holders shall have all the rights set forth in the Registration Rights Agreement dated as of August 4, 2009, among the Company and the parties named on the signature pages thereto (the “Registration Rights Agreement”).

          18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

          The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to:

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
Attention: Secretary

A-10

          19. Unclaimed Money. Subject to certain conditions, if money for the payment of principal, premium, if any, or interest, or Additional Interest, if any, remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request in accordance with the Indenture unless any abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment unless such abandoned property law designates another Person.

          20. Discharge and Defeasance. Subject to certain conditions, the Company at any time may terminate some or all of the obligations of the Company under the Notes and the Indenture if the Company irrevocably deposits in trust with the Trustee an amount in United States dollars sufficient to pay and discharge the entire Indebtedness on the Notes, not theretofore delivered for cancellation, including the principal of, premium, if any, and accrued interest on such Notes at such maturity, Stated Maturity or redemption date, as the case may be.

          21. Governing Law. THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.

A-11

ASSIGNMENT FORM

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:

(Insert Assignee’s legal name)

(Insert assignee’s soc, sec, or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

and irrevocably appoint

          to transfer this Note on the books of the Company. The agent may substitute another to act for him.

          Date:                           

Your Signature:                                                             
(Sign exactly as your name appears on the face of this Note)

          Signature Guarantee:                                         

               Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-12

OPTION OF HOLDER TO ELECT PURCHASE

               If you want to elect to have this Note purchased by the Company pursuant to Section 4.09 or 4.14 of the Indenture, check the appropriate box below:

o Section 4.09 o Section 4.14.

               If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.09 or Section 4.14 of the Indenture, state the amount you elect to have purchased:

$                     

          Date:                                         

Your Signature:                                                             
(Sign exactly as your name appears on the face of this Note)

Tax Identification No:                     

          Signature Guarantee*:                                         

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-13

SCHEDULE OF INCREASES AND DECREASES OF INTERESTS

IN THE GLOBAL NOTE⁴

The following increases or decreases in this Global Note have been made:

	Amount of	Amount of	Principal Amount
	decrease	increase in	of this Global	Signature of
	in Principal	Principal	Note following	authorized officer
Date of	Amount of	Amount of	such decrease	of Trustee or
Exchange	this Global Note	this Global Note	(or increase)	Note Custodian

⁴ This should be included only if the Note is issued in Global Form.

A-14

EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645

Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890

Re: 11³/8% Senior Secured Notes due 2015

     Reference is hereby made to the Indenture, dated as of August 4, 2009 (the “Indenture”), among The Great Atlantic & Pacific Tea Company, Inc., as issuer (the “Company”), the guarantors named therein and Wilmington Trust Company, as trustee and collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                                             , (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

     1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

B-1

     2. o Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act.

     3. o Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

     (a) o such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

or

     (b) o such Transfer is being effected to the Company or a subsidiary thereof;

or

     (c) o such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

or

B-2

     (d) o such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an opinion of counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Definitive Notes and in the Indenture and the Securities Act.

     4. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated

B-3

in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

     This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated:                          

B-4

ANNEX A TO CERTIFICATE OF TRANSFER

1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

(a)		o	a beneficial interest in the:
	(i)	o	144A Global Note (CUSIP                     ), or
	(ii)	o	Regulation S Global Note (CUSIP                     ), or
	(iii)	o	IAI Global Note (CUSIP                     ); or
(b)		o	a Restricted Definitive Note.

2. After the Transfer the Transferee will hold:

[CHECK ONE]

(a)		o	a beneficial interest in the:
	(i)	o	144A Global Note (CUSIP                     ), or
	(ii)	o	Regulation S Global Note (CUSIP                     ), or,
	(iii)	o	IAI Global Note (CUSIP                     ), or
	(iv)	o	Unrestricted Global Note (CUSIP                     ); or
(b)		o	a Restricted Definitive Note; or
(c)		o	an Unrestricted Definitive Note,

          in accordance with the terms of the Indenture.

B-5

EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645

     Re: 11⅜% Senior Secured Notes due 2015

(CUSIP                      )

     Reference is hereby made to the Indenture, dated as of August 4, 2009 (the “Indenture”), among The Great Atlantic & Pacific Tea Company, Inc., as issuer (the “Company”), the guarantors named therein and Wilmington Trust Company, as trustee and collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                         , (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:

     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive

C-1

Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

C-2

     (b) Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global Note, o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

     This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Transferor]
By:
	Name:
	Title:

Dated:                          

C-3

EXHIBIT D

FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645

Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890

     Re: 11⅜% Senior Secured Notes due 2015

     Reference is hereby made to the Indenture, dated as of August 4, 2009 (the “Indenture”), among The Great Atlantic & Pacific Tea Company, Inc., as issuer (the “Company”), the guarantors named therein and Wilmington Trust Company, as trustee and collateral agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

     In connection with our proposed purchase of $                     aggregate principal amount of:

     (a) o a beneficial interest in a Global Note, or

     (b) o a Definitive Note,

     we confirm that:

     1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the United States Securities Act of 1933, as amended (the “Securities Act”).

     2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any

D-1

subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an opinion of counsel in form reasonably acceptable to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to and in accordance with the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.

     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.

D-2

     You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

[Insert Name of Accredited Investor]
By:
	Name:
	Title:

Dated:

D-3

EXHIBIT E

FORM OF NOTE GUARANTEE

          For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, fully and unconditionally, guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal and premium, and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

GUARANTORS:

ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.),
a Delaware corporation

NORTH JERSEY PROPERTIES, INC. VI, a Delaware
corporation

AAL REALTY CORP., a New York corporation

ADBRETT CORP., a Delaware corporation

BERGEN STREET PATHMARK, INC., a New Jersey
corporation

BRIDGE STUART INC., a New York corporation

EAST BRUNSWICK STUART LLC, a Delaware limited
liability company

LANCASTER PIKE STUART, LLC, a Delaware limited
liability company

MACDADE BOULEVARD STUART, LLC, a Delaware
limited liability company

PLAINBRIDGE LLC, a Delaware limited liability company

SUPERMARKETS OIL COMPANY, INC., a New Jersey
corporation

UPPER DARBY STUART LLC, a Delaware limited liability
company

BEST CELLARS, INC., a New York corporation

BEST CELLARS MASSACHUSETTS, INC., a
Massachusetts corporation

BEST CELLARS VA INC., a Virginia corporation

E-1

GRAPE FINDS LICENSING CORP., a District of Columbia
corporation

GRAPE FINDS AT DUPONT, INC., a District of Columbia
corporation

BEST CELLARS DC INC., a District of Columbia corporation

BEST CELLARS LICENSING CORP., a New York
corporation

By:
	Name:	Christopher McGarry
	Title:	President

COMPASS FOODS, INC., a Delaware corporation

FOOD BASICS, INC., a Delaware corporation

HOPELAWN PROPERTY I, INC., a Delaware corporation

KOHL’S FOOD STORES, INC., a Wisconsin corporation

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC., a South Dakota corporation

KWIK SAVE INC., a Pennsylvania corporation

MONTVALE HOLDINGS, INC., a New Jersey corporation

SUPER FRESH FOOD MARKETS, INC., a Delaware
corporation

SUPER FRESH FOOD MARKETS OF MARYLAND, INC.,
a Maryland corporation

SUPER FRESH / SAV - A - CENTER, INC., a Delaware
corporation

SUPER MARKET SERVICE CORP., a Pennsylvania
corporation

SUPER PLUS FOOD WAREHOUSE, INC., a Delaware
corporation

SUPERMARKET DISTRIBUTION SERVICES, INC., a
Delaware corporation

2008 BROADWAY, INC., a New York corporation

BEV, LTD., a Delaware corporation

FARMER JACK’S OF OHIO, INC., an Ohio corporation

SHOPWELL, INC. (DBA FOOD EMPORIUM), a Delaware
corporation

CLAY-PARK REALTY CO., INC., a New York corporation

AMSTERDAM TRUCKING CORPORATION (F/K/A
DAITCH CRYSTAL DAIRIES, INC.), a New York
corporation

DELAWARE COUNTY DAIRIES, INC., a New York
corporation

GRAMATAN FOODTOWN CORP., a New York corporation

SHOPWELL, INC., a Connecticut corporation

SHOPWELL, INC., a Massachusetts corporation

SHOPWELL, INC. (NEW JERSEY), a New Jersey corporation

THE FOOD EMPORIUM, INC., a Connecticut corporation

THE FOOD EMPORIUM, INC., a Delaware corporation

E-2

THE FOOD EMPORIUM, INC., a New Jersey corporation

TRADEWELL FOODS OF CONN., INC., a
Connecticut corporation

APW SUPERMARKET CORPORATION, a Delaware
corporation

APW SUPERMARKETS, INC., a New York corporation

WALDBAUM, INC. (DBA WALDBAUM, INC. AND
FOOD MART), a New York corporation

LBRO REALTY, INC., a New York corporation

MCLEAN AVENUE PLAZA CORP., a New York corporation

SPRING LANE PRODUCE CORP., a New York corporation

THE MEADOWS PLAZA DEVELOPMENT CORP., a New
York corporation

GREENLAWN LAND DEVELOPMENT CORP., a New York
corporation

By:
	Name:	Christopher McGarry
	Title:	Vice President and Secretary

S E G STORES, INC., a Delaware corporation

THE OLD WINE EMPORIUM OF WESTPORT, INC., a Connecticut corporation
By:
	Name:	Christopher McGarry
	Title:	Secretary
PATHMARK STORES, INC., a Delaware corporation
By:
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary
BORMAN’S, INC. (DBA FARMER JACK), a Delaware corporation
By:
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary
MILIK SERVICE COMPANY, LLC, a Virginia limited liability company
By Pathmark Stores, Inc., its Manager
By:
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary

E-3

LO-LO DISCOUNT STORES, INC., a Texas corporation
By:
	Name:	William Moss
	Title:	Vice President and Treasurer

E-4

EXHIBIT F

FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of              , among                      (the “Guaranteeing Subsidiary”), a subsidiary of The Great Atlantic & Pacific Tea Company, Inc. (or its permitted successor), a Maryland corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust Company, as trustee under the indenture referred to below (the “Trustee”).

WITNESSETH

     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of August 4, 2009 providing for the issuance of an aggregate principal amount of up to $260,000,000 of 11³/8% Senior Secured Notes due 2015 (the “Notes”);

     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and

     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

     NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

     1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

     2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as follows:

          (a) Along with all Guarantors named in the Indenture, to jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee, and to the Trustee and its successors and assigns, that:

F- 1

          (i) the principal of and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

          (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately.

          (b) The obligations hereunder shall be full and unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.

          (c) The following is hereby waived: diligence presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever.

          (d) This Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.

          (e) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

          (f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.

F- 2

          (g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee.

          (h) The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.

     3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the Note Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

     4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than the Company or another Guarantor, except in accordance the Indenture.

     5. RELEASES. A Note Guarantee shall be released in accordance with Section 10.04 of the Indenture.

     6. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator, stockholder, member, manager or partner of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, the Indenture, this Supplemental Indenture or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.

     7. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.

F- 3

     8. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

     9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

     10. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.

F- 4

     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated:                                        ,        

[Guaranteeing Subsidiary]
By:
	Name:
	Title:
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By:
	Name:
	Title:
[Existing Guarantors]
By:
	Name:
	Title:
WILMINGTON TRUST COMPANY, as Trustee
By:
	Authorized Signatory

F- 5

Schedule I

SCHEDULE OF GUARANTORS

     The following schedule lists each Guarantor under the Indenture as of the Issue Date:

COMPASS FOODS, INC., a Delaware corporation

FOOD BASICS, INC., a Delaware corporation

ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.), a
Delaware corporation

HOPELAWN PROPERTY I, INC., a Delaware corporation

KOHL’S FOOD STORES, INC., a Wisconsin corporation

THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC., a South Dakota corporation

KWIK SAVE INC., a Pennsylvania corporation

LO-LO DISCOUNT STORES, INC., a Texas corporation

MONTVALE HOLDINGS, INC., a New Jersey corporation

SUPER FRESH FOOD MARKETS, INC., a Delaware
corporation

NORTH JERSEY PROPERTIES, INC. VI, a Delaware
corporation

SUPER FRESH FOOD MARKETS OF MARYLAND, INC., a
Maryland corporation

SUPER FRESH / SAV - A - CENTER, INC., a Delaware
corporation

SUPER MARKET SERVICE CORP., a Pennsylvania
corporation

SUPER PLUS FOOD WAREHOUSE, INC., a Delaware
corporation

SUPERMARKET DISTRIBUTION SERVICES, INC., a
Delaware corporation

2008 BROADWAY, INC., a New York corporation

THE OLD WINE EMPORIUM OF WESTPORT, INC., a
Connecticut corporation

BORMAN’S, INC. (DBA FARMER JACK), a Delaware
corporation

BEV, LTD., a Delaware corporation

FARMER JACK’S OF OHIO, INC., an Ohio corporation

S E G STORES, INC., a Delaware corporation

SHOPWELL, INC. (DBA FOOD EMPORIUM), a Delaware
corporation

CLAY-PARK REALTY CO., INC., a New York corporation

AMSTERDAM TRUCKING CORPORATION (F/K/A
DAITCH CRYSTAL DAIRIES, INC.), a New York
corporation

DELAWARE COUNTY DAIRIES, INC., a New York

Sch. I- 1

corporation

GRAMATAN FOODTOWN CORP., a New York corporation

SHOPWELL, INC., a Connecticut corporation

SHOPWELL, INC., a Massachusetts corporation

SHOPWELL, INC. (NEW JERSEY), a New Jersey corporation

THE FOOD EMPORIUM, INC., a Connecticut corporation

THE FOOD EMPORIUM, INC., a Delaware corporation

THE FOOD EMPORIUM, INC., a New Jersey corporation

TRADEWELL FOODS OF CONN., INC., a
Connecticut corporation

APW SUPERMARKET CORPORATION, a Delaware
corporation

APW SUPERMARKETS, INC., a New York corporation

WALDBAUM, INC. (DBA WALDBAUM, INC. AND
FOOD MART), a New York corporation

LBRO REALTY, INC., a New York corporation

MCLEAN AVENUE PLAZA CORP., a New York corporation

SPRING LANE PRODUCE CORP., a New York corporation

THE MEADOWS PLAZA DEVELOPMENT CORP., a New
York corporation

PATHMARK STORES, INC., a Delaware corporation

AAL REALTY CORP., a New York corporation

ADBRETT CORP., a Delaware corporation

BERGEN STREET PATHMARK, INC., a New Jersey
corporation

BRIDGE STUART INC., a New York corporation

EAST BRUNSWICK STUART LLC, a Delaware limited
liability company

LANCASTER PIKE STUART, LLC, a Delaware limited liability
company

MACDADE BOULEVARD STUART, LLC, a Delaware limited
liability company

MILIK SERVICE COMPANY, LLC, a Virginia limited liability
company

PLAINBRIDGE LLC, a Delaware limited liability company

SUPERMARKETS OIL COMPANY, INC., a New Jersey
corporation

UPPER DARBY STUART LLC, a Delaware limited liability
company

BEST CELLARS, INC., a New York corporation

BEST CELLARS MASSACHUSETTS, INC., a Massachusetts
corporation

BEST CELLARS VA INC., a Virginia corporation

GRAPE FINDS LICENSING CORP., a District of Columbia
corporation

GRAPE FINDS AT DUPONT, INC., a District of Columbia
corporation

BEST CELLARS DC INC., a District of Columbia corporation

Sch. I- 2

BEST CELLARS LICENSING CORP., a New York corporation

GREENLAWN LAND DEVELOPMENT CORP., a New York
corporation

Sch. I- 3

Schedule II

SCHEDULE OF PRINCIPAL PROPERTIES

     The following schedule lists each principal property of the Company and its Subsidiaries as of the Issue Date:

Interest	Address	Town/City	County	State
Fee	410 West 207th Street	Washington Heights	New York	NY
Fee	115 Belmont Avenue	Belleville	Essex	NJ
Fee & LH	2110 Route 130	Edgewater Park	Burlington	NJ
Fee & LH	50 Racetrack Road	East Brunswick	Middlesex	NJ
Fee & LH	1764 Grand Avenue	Baldwin	Nassau	NY
Fee & LH	92-10 Atlantic Avenue	Ozone Park	Queens	NY
Fee & LH	140 North MacDade Boulevard	Glenolden	Delaware	PA
Fee & LH	4055 Merrick Road	Seaford	Nassau	NY

Sch.II- 1

Schedule III

SCHEDULE OF INITIAL MORTGAGED PROPERTIES

The following schedule lists each initial mortgaged property under the Indenture and the Collateral Documents as of the Issue Date:

Owned Mortgaged Properties:

Interest	Address	Town/City	County	State
Fee	3901 Lancaster Pike	Wilmington	New Castle	DE
Fee	130 White Horse Pike	Lawnside	Camden	NJ
Fee	528 Harry L. Drive	Johnson City	Broome	NY
Fee	50 Lawrence Road	Broomall	Delaware	PA
Fee	421 South 69th Boulevard	Upper Darby	Delaware	PA
Fee	3500 Aramingo Avenue	Philadelphia	Philadelphia	PA
Fee	1886 Pleasantville Road	Briarcliff Manor	Westchester	NY
Fee	49 Old Route 22	Clinton	Hunterdon	NJ
Fee	895 Paulison Avenue	Clifton	Passaic	NJ

Leased Mortgaged Properties:

Interest	Address	Town/City	County	State
Leasehold	130 White Horse Pike	Lawnside	Camden	NJ
Leasehold	50 Lawrence Road	Broomall	Delaware	PA
Leasehold	421 South 69th Boulevard	Upper Darby	Delaware	PA
Leasehold	3500 Aramingo Avenue	Philadelphia	Philadelphia	PA
Leasehold	85 Ackerman Ave.	Clifton	Passaic	NJ
Leasehold	420 Grand Street	Jersey City	Hudson	NJ
Leasehold	726 Washington Avenue	Belleville	Essex	NJ
Leasehold	405 Route 17 SOUTH	Hackensack	Bergen	NJ
Leasehold	450 Hackensack Avenue	Hackensack	Bergen	NJ
Leasehold	1475 Bergen Boulevard	Fort Lee	Bergen	NJ
Leasehold	4100 Park Avenue	Union City	Hudson	NJ
Leasehold	58 Broadway	Elmwood Park	Bergen	NJ
Leasehold	281-295 Ferry Street	Newark	Essex	NJ
Leasehold	498 East 30th Street	Paterson	Passaic	NJ
Leasehold	1510 Route 46	West Paterson	Passaic	NJ
Leasehold	2200 Maple Avenue	Fair Lawn	Bergen	NJ
Leasehold	167 Bergen Street	Newark	Essex	NJ
Leasehold	471-79 Lyons Avenue	Irvington	Essex	NJ
Leasehold	407 Valley Street	South Orange	Essex	NJ
Leasehold	35 Lackawanna Plaza	Montclair	Essex	NJ
Leasehold	1157 Route 46	Parsippany	Morris	NJ
Leasehold	25 Kinnelon Road	Kinnelon	Morris	NJ
Leasehold	831 Route 10	Whippany	Morris	NJ

Sch.III- 1

Interest	Address	Town/City	County	State
Leasehold	195 Route 59 East	Nanuet	Rockland	NY
Leasehold	1757 Central Park Avenue	Yonkers	Westchester	NY
Leasehold	2540 Central Park Avenue	Yonkers	Westchester	NY
Leasehold	10 Triangle Plaza	Ramsey	Bergen	NJ
Leasehold	4999 Stelton Road	South Plainfield	Middlesex	NJ
Leasehold	242 Lincoln Boulevard	Middlesex	Middlesex	NJ
Leasehold	977 Valley Road	Gillette	Morris	NJ
Leasehold	2463 Route 22 West	Union	Union	NJ
Leasehold	651 North Stiles Street	Linden	Union	NJ
Leasehold	95 New Brunswick Avenue	Hopelawn	Middlesex	NJ
Leasehold	330 Oregon Avenue	Philadelphia	Philadelphia	PA
Leasehold	8700 Frankford Avenue	Philadelphia	Philadelphia	PA
Leasehold	5005 Edgemont Avenue	Brookhaven	Delaware	PA
Leasehold	5070 Jonestown Road	Harrisburg	Dauphin	PA
Leasehold	989 Church Road	Cherry Hill	Camden	NJ
Leasehold	120 Highway 9	Englishtown	Monmouth	NJ
Leasehold	3020 Highway 35	Hazlet	Monmouth	NJ
Leasehold	6718 Black Horse Pike	Pleasantville	Atlantic	NJ
Leasehold	4578 Highway 9	Howell	Monmouth	NJ
Leasehold	1123 Highway 35	Middletown	Monmouth	NJ
Leasehold	1930 HIghway 88	Bricktown	Ocean	NJ
Leasehold	1933 Highway 35	Wall	Monmouth	NJ
Leasehold	1600 St. Georges Avenue	Avenel	Middlesex	NJ
Leasehold	1043 Route 9	Old Bridge	Middlesex	NJ
Leasehold	4365 Robert Kirkwood Highway	Wilmington	New Castle	DE
Leasehold	5100 Wellington Avenue	Ventnor City	Atlantic	NJ
Leasehold	100 College Square	Newark	New Castle	DE
Leasehold	2060 Sunrise Highway	Bayshore	Suffolk	NY
Leasehold	300 West 145th Street	New York	New York	NY
Leasehold	120 Wheatley Plaza	Greenvale	Nassau	NY
Leasehold	6070 Jericho Turnpike	Commack	Suffolk	NY
Leasehold	42-02 Northern Boulevard	Long Island City	Queens	NY
Leasehold	460 Franklin Avenue	Franklin Square	Nassau	NY
Leasehold	1525 Albany Avenue	Brooklyn	Kings	NY
Leasehold	155 Islip Avenue	Islip	Suffolk	NY
Leasehold	1-37 12th Street	Brooklyn	Kings	NY
Leasehold	531 Montauk Highway	West Babylon	Suffolk	NY
Leasehold	1351 Forest Avenue	Staten Island	Richmond	NY
Leasehold	5020 Jericho Turnpike	Commack	Suffolk	NY
Leasehold	561 Route 1 — Unit B	Edison	Middlesex	NJ
Leasehold	1345 Route 1	North Brunswick	Middlesex	NJ
Leasehold	1251 Deer Park Avenue	North Babylon	Suffolk	NY
Leasehold	31-06 Farrington Street	Flushing	Queens	NY
Leasehold	1111 Flatlands Avenue	Brooklyn	Kings	NY
Leasehold	2965 Cropsey Avenue	Brooklyn	Kings	NY
Leasehold	321 Route 440 & Kellogg St.	Jersey City	Hudson	NJ

Sch.III- 2

Interest	Address	Town/City	County	State
Leasehold	800 Montauk Highway	Shirley	Suffolk	NY
Leasehold	1897 Front Street	East Meadow	Nassau	NY
Leasehold	2875 Richmond Avenue	Staten Island	Richmond	NY
Leasehold	330 Connecticut Avenue	Norwalk	Fairfield	CT

Sch.III- 3

EX-10.1

EXHIBIT 10.1

EXECUTION COPY

AMENDED AND RESTATED TENGELMANN STOCKHOLDER AGREEMENT

by and among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

and

TENGELMANN WARENHANDELSGESELLSCHAFT KG

Dated as of August 4, 2009

TABLE OF CONTENTS

	Page
ARTICLE I
Definitions
SECTION 1.01. Definitions		2
ARTICLE II
Corporate Governance
SECTION 2.01. Composition of the Board of Directors		11
SECTION 2.02. Committees		16
SECTION 2.03. Solicitation of Shares		16
SECTION 2.04. Approval Required for Certain Actions		16
SECTION 2.05. Charter and By-Laws		20
SECTION 2.06. Change in Law		20
ARTICLE III
Registration Rights
SECTION 3.01. Registration		21
SECTION 3.02. Piggyback Registration		23
SECTION 3.03. Reduction of Underwritten Offering		24
SECTION 3.04. Registration Procedures		25
SECTION 3.05. Conditions to Offerings		29
SECTION 3.06. Blackout Period		29
SECTION 3.07. Registration Expenses		30
SECTION 3.08. Indemnification; Contribution		31
SECTION 3.09. Lockup		34
SECTION 3.10. Termination of Registration Rights		34
SECTION 3.11. Specific Performance		34
SECTION 3.12. Other Registration Rights		34
SECTION 3.13. Rule 144		35
SECTION 3.14. Transfer of Registration Rights		35
ARTICLE IV
Preemptive Rights
SECTION 4.01. Rights To Purchase New Equity Securities		35

  i

	Page
ARTICLE V
Put Right
SECTION 5.01. Put Right		37
ARTICLE VI
Covenants
SECTION 6.01. Stockholder Approvals		38
SECTION 6.02. Voting Agreement		39
SECTION 6.03. Petition for Bankruptcy		40
ARTICLE VII
Right of First Offer
SECTION 7.01. First Offer Exercise Rights		40
SECTION 7.02. Convertible Note Purchase		41
ARTICLE VIII
Miscellaneous
SECTION 8.01. Corporate Opportunities		42
SECTION 8.02. Adjustments		44
SECTION 8.03. Changes in Tengelmann Percentage Interest Attributable to Issuances of the Company’s Equity Securities		44
SECTION 8.04. Notices		45
SECTION 8.05. Reasonable Efforts; Further Actions		46
SECTION 8.06. Consents		46
SECTION 8.07. Fees and Expenses		46
SECTION 8.08. Access to Information; Financial Statements		47
SECTION 8.09. Amendments; Waivers		47
SECTION 8.10. Interpretation		48
SECTION 8.11. Severability		48
SECTION 8.12. Counterparts		48
SECTION 8.13. Entire Agreement; No Third-Party Beneficiaries		48
SECTION 8.14. Governing Law		49
SECTION 8.15. Assignment		49
SECTION 8.16. Enforcement		49
SECTION 8.17. Automatic Termination		50
SECTION 8.18. Confidentiality		50
SECTION 8.19. No Liability of Partners		51

ii

     AMENDED AND RESTATED TENGELMANN STOCKHOLDER AGREEMENT dated as of August 4, 2009 (this “Agreement”), among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”) and TENGELMANN WARENHANDELSGESELLSCHAFT KG, a limited partnership organized under the laws of Germany (“Tengelmann”).

          WHEREAS, the Company, Sand Merger Corp., a Delaware corporation and a wholly owned Subsidiary of the Company, and Pathmark Stores, Inc., a Delaware corporation (“Pathmark”), entered into a Merger Agreement, dated as of March 4, 2007, pursuant to which the Company acquired Pathmark (the “Merger”);

          WHEREAS, in connection with the Merger, the parties hereto entered into that certain Stockholder Agreement dated as of March 4, 2007 (the “Existing Agreement”), to establish certain terms and conditions concerning the corporate governance of the Company and certain other matters;

          WHEREAS, the Company and Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub and Georg Rudolf Otto Haub (collectively, the “Tengelmann Partners”) have entered into an investment agreement dated as of July 23, 2009 (the “Investment Agreement”), pursuant to which the Tengelmann Partners are purchasing from the Company, and the Company is issuing and selling to the Tengelmann Partners (the “Transaction”), subject to the terms and conditions set forth therein, an aggregate of 60,000 shares of Convertible Preferred Stock (capitalized terms used in this Agreement shall have the meanings given to such terms in Article I) (the “Initial Shares”, together with any shares of Convertible Preferred Stock issued to Tengelmann pursuant to the Convertible Preferred Stock PIK Dividend Provision, the “Tengelmann Shares”), and immediately following such purchase, the Tengelmann Partners shall contribute the Initial Shares to Tengelmann;

          WHEREAS, the Company and Yucaipa have entered into an investment agreement dated as of July 23, 2009, pursuant to which Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP (the “New Investors”) are purchasing from the Company, and the Company is issuing and selling to the New Investors, subject to the terms and conditions set forth therein, an aggregate of 115,000 shares of Convertible Preferred Stock; and

          WHEREAS, it is a condition to the closing under the Investment Agreement that the parties hereto amend and restate in its entirety the Existing Agreement as provided herein.

          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  2

ARTICLE I

Definitions

          SECTION 1.01. Definitions. (a) As used in this Agreement, the following terms will have the following meanings:

          “13D Group” means any group of Persons formed for the purpose of acquiring, holding, voting or disposing of Voting Stock of the Company that would be required under Section 13(d) of the Exchange Act (as in effect on, and based on legal interpretations thereof existing on, the date hereof) to file a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Stock of the Company representing more than 5% of any class of Voting Stock of the Company (whether or not registered pursuant to Section 12 of the Exchange Act) then outstanding.

          “2000 Warrants” means the warrants issued by Pathmark pursuant to the Warrant Agreement dated as of September 19, 2000, between Pathmark and ChaseMellon Shareholder Services, LLC.

          “2011 Convertible Notes” means the Company’s 5.125% Convertible Senior Notes due June 15, 2011.

          “2012 Convertible Notes” means the Company’s 6.75% Convertible Senior Notes due December 15, 2012.

          “ABL Credit Agreement” means the Company’s five-year amended and restated asset-based senior secured revolving credit agreement, dated as of December 27, 2007, among the Company, the other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of America Securities LLC, as lead arranger (as amended thereafter in accordance with the terms hereof, if applicable).

          An “Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. The Company and its Subsidiaries shall not be deemed Affiliates of Tengelmann for any reason under this Agreement.

          “Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated Yucaipa Stockholder Agreement, dated as of the date hereof, between the Company and Yucaipa.

          “Authorized Capital Stock Charter Amendment” means an amendment to the Charter increasing the number of authorized shares of Company Common Stock by up to 100,000,000 shares.

          “Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

3

          “beneficial owner” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the date of this Agreement, but without reference to whether or not an Equity Security is exercisable or convertible for Voting Stock in less than 60 days. The term “beneficially own” has a meaning correlative to the foregoing.

          “Board” or “Board of Directors” means the board of directors of the Company.

          “Business Combination” with respect to any Person means any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation) of all or substantially all of the assets of such Person and its Subsidiaries, taken as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the consummation of which would result in any other Person (or, in the case of a merger or consolidation, the shareholders of such other Person) becoming, directly or indirectly, the beneficial owner of more than 50% of the Voting Stock or Equity Securities (other than debt securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number of shares).

          “Business Day” means any day on which banks are not required or authorized by law to close in New York, New York.

          “By-Laws” means the By-Laws of the Company, as in effect from time to time.

          “Charter” means the Articles of Amendment and Restatement of the Articles of Incorporation of the Company, as in effect from time to time.

          “Charter Amendment Stockholder Approval” means the approval of the Authorized Capital Stock Charter Amendment by the affirmative vote of holders entitled to cast two-thirds of the votes entitled to be cast on the matter.

          “Closing” means the closing of the Transaction.

          “Closing Date” means the date of the Closing.

          “Company Common Stock” means the common stock of the Company, par value $1.00 per share, and any other common stock of the Company that may be issued from time to time.

          “Conversion Date” means any date on which shares of Convertible Preferred Stock are converted into shares of Company Common Stock subject to the terms and conditions of the Convertible Preferred Articles Supplementary.

          “Conversion Stockholder Approval” means the approval, as required pursuant to NYSE Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with the Common Stock becoming entitled to cast the full number of votes on an as converted basis and (y) the issuance of the full amount of Company Common Stock

4

upon the exercise of conversion rights of the Convertible Preferred Stock, in each case, by the affirmative vote of holders of a majority of the votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock entitled to vote on such proposal.

          “Convertible Notes” means the 2011 Convertible Notes and the 2012 Convertible Notes.

          “Convertible Preferred Articles Supplementary” means the articles supplementary filed with the Maryland State Department of Assessments and Taxation on August 3, 2009, which govern the designation, voting powers, preferences, conversions and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Convertible Preferred Stock.

          “Convertible Preferred Stock” means the shares of the Company’s 8.00% Convertible Preferred Stock redeemable August 1, 2016, designated in four separate series as “8% Cumulative Convertible Preferred Stock, Series A-T”, “8% Cumulative Convertible Preferred Stock, Series A-Y”, “8% Cumulative Convertible Preferred Stock, Series B-T” and “8% Cumulative Convertible Preferred Stock, Series B-Y”.

          “Convertible Preferred Stock PIK Dividend Provision” means the Company’s ability to issue Convertible Preferred Stock as dividends pursuant to the Convertible Preferred Articles Supplementary.

          “Convertible Underlying Securities” means the shares of Company Common Stock issuable upon the conversion of any Convertible Preferred Stock.

          “Director” means a member of the Board of Directors.

          “Discriminatory Transaction” means any corporate action (other than those taken pursuant to the express terms of this Agreement) that would (i) impose material limitations on the legal rights of Tengelmann as a holder of a class of Voting Stock of the Company (including any action that would impose material restrictions without lawful exemption on Tengelmann that are based upon the size of security holding, the business in which a security holder is engaged or other considerations applicable to Tengelmann and not to holders of the same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Tengelmann), which limitations are disproportionately (i.e., other than in a proportionate manner consistent with Tengelmann’s pro rata ownership of such class of Voting Stock) borne by Tengelmann as opposed to other holders of such class of Voting Stock or (ii) deny any material benefit to Tengelmann proportionately as a holder of any class of Voting Stock of the Company that is made available to other holders of that same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Tengelmann.

5

          “Dissolution” means with respect to any Person the dissolution of such Person, the adoption of a plan of liquidation of such Person or any action by such Person to commence any suit, case, proceeding or other action (i) under any existing or future Law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors seeking to have an order for relief entered with respect to such Person, or seeking to adjudicate such Person bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to such Person or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for such Person, or making a general assignment for the benefit of the creditors of such Person. Any verb forms of this term have corresponding meanings.

          “Encumbrance” means any security interest, pledge, mortgage, lien, or other material encumbrance, except for any restrictions arising under any applicable securities Laws.

          “Equity Security” means (i) any common stock or other Voting Stock, (ii) any securities convertible into or exchangeable for common stock or other Voting Stock or (iii) any options, rights or warrants (or any similar securities) to acquire common stock or other Voting Stock.

          “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

          “Exempt Transfer” has the meaning set forth in the Amended and Restated Yucaipa Stockholder Agreement.

          “Existing Registrable Securities” means all shares of Company Common Stock beneficially owned by Tengelmann immediately prior to the Closing.

          “Fair Market Value” means (i) with respect to cash or cash equivalents, the amount of such cash or cash equivalents, (ii) with respect to any security listed on a national securities exchange or otherwise traded on any national securities exchange or other trading system, the average of the closing prices of such security as reported on such exchange or trading system for each of the five Trading Days prior to the date of determination and (iii) with respect to property other than cash or securities of the type described in clauses (i) and (ii), the cash price at which a willing seller would sell and a willing buyer would buy such property in an arm’s-length negotiated transaction without time constraints as determined in good faith by the Board.

          “GAAP” means U.S. generally accepted accounting principles, as in effect at the time such term is relevant.

          “Governance Committee” means the Governance Committee of the Board of Directors or any successor committee thereto.

          “Governmental Entity” means any transnational, Federal, state, local or foreign government, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or

6

any national securities exchange or national quotation system on which securities issued by the Company or any of its Subsidiaries are listed or quoted.

          “Indebtedness” means, with respect to any Person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person under interest rate or currency hedging transactions (valued at the termination value thereof), (D) all letters of credit issued for the account of such Person and (E) obligations of such Person to pay rent or other amounts under any lease of real property or personal property, which obligations are required to be classified as capital leases in accordance with GAAP; (ii) indebtedness for borrowed money of any other Person guaranteed, directly or indirectly, in any manner by such Person; and (iii) indebtedness of the type described in clause (i) above secured by any Encumbrance upon property owned by such Person, even though such Person has not in any manner become liable for the payment of such indebtedness; provided, however, that Indebtedness shall not be deemed to include (i) any accounts payable or trade payables incurred in the ordinary course of business of such Person, or (ii) any intercompany indebtedness between any Person and any wholly owned Subsidiary of such Person or between any wholly owned Subsidiaries of such Person.

          “Issuer FWP” has the meaning assigned to “issuer free writing prospectus” in Rule 433 under the Securities Act.

          “Law” means any law, treaty, statute, ordinance, code, rule, regulation, judgment, decree, order, writ, award, injunction, authorization or determination enacted, entered, promulgated, enforced or issued by any Governmental Entity.

          “Market Price” for any security on each business day means: (A) if such security is listed or admitted to trading on any securities exchange, the closing price, regular way, on such day on the principal exchange on which such security is traded, or if no sale takes place on such day, the average of the closing bid and asked prices on such day; (B) if such security is not then listed or admitted to trading on any securities exchange, the last reported sale price on such day, or if there is no such last reported sale price on such day, the average of the closing bid and the asked prices on such day, as reported by a reputable quotation source designated by the Company; or (C) if neither clause (A) nor (B) is applicable, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the Borough of Manhattan, City of New York, customarily published on each business day, designated by the Company. If there are no such prices on a business day, then the Market Price shall not be determinable on such business day.

          “Maturity Date” means August 1, 2016.

          “MGCL” means the Maryland General Corporation Law, codified in Md. Code Ann., Corps. & Ass’ns, Titles 1-3, as may be in effect from time to time.

          “NYSE” means the New York Stock Exchange.

7

          “Original Yucaipa Stockholders” means Yucaipa Corporate Initiative Fund I, LP, Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP.

          “Other Directors” means any Director who is not a Tengelmann Director.

          “Other Investors” means any holder of Convertible Preferred Stock with which the Company has or enters into a stockholder agreement (other than Tengelmann and its Affiliates).

          “Partner” means any partner of such Person.

          “Permitted Transferee” means, with respect to a specified Person, any controlled Affiliate of such Person or any Partner of such Person and with respect to Tengelmann, any controlled Affiliate of either Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub, Georg Rudolf Otto Haub or Tengelmann.

          “Person” means any individual, firm, corporation, partnership, limited partnership, company, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated organization, syndicate or other entity, foreign or domestic.

          “Piggyback Percentage” of Tengelmann or Yucaipa, as applicable, means the result of dividing (i) the product of the number of shares requested to be registered by such Person (including, in the case of Yucaipa, shares issuable under the Series B Warrants) and the number of shares beneficially owned by such Person as of the date of any notice given pursuant to Section 3.02 or, if not practicably obtainable as of such date, as of the most recent date practicably obtainable (excluding, in the case of Yucaipa, shares issuable under the Series B Warrants to the extent not requested to be registered) (in the case of Tengelmann, the “Tengelmann Amount” and, in the case of Yucaipa, the “Yucaipa Amount”), by (ii) the sum of the Tengelmann Amount and the Yucaipa Amount.

          “Public Director” means a Director who is not a Tengelmann Director or a Yucaipa Director.

          “Public Equity Holders” means holders of Equity Securities of the Company, other than (i) Tengelmann and its Affiliates and any Person included in any 13D Group with Tengelmann or any of its Affiliates and (ii) Yucaipa and its Affiliates and any Person included in any 13D Group with Yucaipa or any of its Affiliates.

          “Registrable Securities” means (i) all shares of Company Common Stock beneficially owned by Tengelmann on the date hereof or purchased by Tengelmann and beneficially owned at any time by Tengelmann, (ii) any Convertible Underlying Securities beneficially owned by Tengelmann and (iii) any securities issued or issuable with respect to any such shares of Company Common Stock by way of a stock dividend or other similar distribution or stock split, or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided that

8

such securities shall cease to be Registrable Securities when (A) Tengelmann Transfers such securities to any Person other than an Affiliate of Tengelmann or a Registration Rights Transferee or (B) Tengelmann or Registration Rights Transferee, as applicable, has beneficial ownership of less than 1% of the outstanding Company Common Stock.

          “Registration Statement” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

          “Rule 144” means Rule 144 promulgated under the Security Act or any similar rule or regulation hereafter adopted by the SEC as a replacement thereto having substantially the same effect as such Rule.

          “SEC” means the U.S. Securities and Exchange Commission.

          “Securities Act” means the Securities Act of 1933, and the rules and regulations promulgated thereunder.

          “Series B Warrants” means the Series B warrants issued as part of the Merger by the Company to the Original Yucaipa Stockholders, which entitled the Original Yucaipa Stockholders to purchase 6,965,858 shares of common stock of the Company at an exercise price of $32.40 per share which will expire on June 9, 2015, as such share amount and exercise price may be adjusted from time to time in accordance with the terms of such warrants in effect on the date hereof.

          “Stockholder Approvals” means the Conversion Stockholder Approval and the Charter Amendment Stockholder Approval.

          “Subsidiary” of any Person means, on any date, any Person (i) the accounts of which would be consolidated with and into those of the applicable Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (ii) of which (a) securities or other ownership interests representing more than 50% of the equity or (b) more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests, as of such date, are owned, controlled or held by the applicable Person or one or more Subsidiaries of such Person.

          “Tengelmann Director” means a Director either (i) elected by Tengelmann in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Tengelmann and actually elected or appointed pursuant to the provisions of Section 2.01.

          “Tengelmann Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC filing of the Company prior to such date that contained

9

such information) that is beneficially owned by Tengelmann and its Affiliates as of such date (including any Equity Securities owned prior to the date of this Agreement); provided, however, that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of “beneficial ownership” or Voting Power, all determinations shall be made as if Tengelmann beneficially owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.

          “Trading Day” means (i) for so long as Company Common Stock is listed or admitted for trading on the NYSE or another national securities exchange, a day on which the NYSE or such other national securities exchange is open for business and trading in Company Common Stock is not suspended or restricted or (ii) if Company Common Stock ceases to be so listed, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by Law or executive order to close.

          “Transfer” means, with respect to any security, any sale, assignment, transfer or distribution, whether voluntarily or by operation of Law, whether in a single transaction or a series of related transactions and whether to a single Person or a 13D Group. The terms “Transferred”, “Transferring”, “Transferor”, “Transferee” and “Transferable” have meanings correlative to the foregoing.

          “Underwriter” means, with respect to any Underwritten Offering, a securities dealer who purchases any Registrable Securities as a principal in connection with a distribution of such Registrable Securities and not as part of such dealer’s market-making activities.

          “Underwritten Offering” means a public offering of securities registered under the Securities Act in which an Underwriter, placement agent or other intermediary participates in the distribution of such securities.

          “Voting Power” means the ability to vote or to control, directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at the time such determination is made; provided that a Person will not be deemed to have Voting Power as a result of an agreement, arrangement or understanding to vote such Voting Stock if such agreement, arrangement or understanding (i) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report). For purposes of determining the percentage of Voting Power of any class or series (or classes or series) beneficially owned by Tengelmann, any Voting Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants, options or similar securities will not be deemed to be outstanding for the purpose of computing the Voting Power of any Person.

10

          “Voting Stock” of any Person means securities having the right to vote generally in any election of directors or comparable governing Persons of such Person.

          “Yucaipa” means Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I, LP, Yucaipa American Alliance Fund II, LP, and Yucaipa American Alliance (Parallel) Fund II, LP.

          “Yucaipa Director” means a Director either (i) elected by Tengelmann in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Yucaipa and actually elected or appointed pursuant to Section 2.01 of the Amended and Restated Yucaipa Stockholder Agreement.

          “Yucaipa Representative” means Yucaipa American Alliance Fund II, LLC.

          (b) As used in this Agreement, the terms set forth below will have the meanings assigned in the corresponding Section listed below:

Term	Section
Acceptance Date	7.01(b)
Accepted Offered Stock	7.01(b)
Agreement	Preamble
Company	Preamble
Deferral Period	3.06(a)
Demand Notice	3.01(c)
Demand Offering	3.01(c)
EDGAR	3.04(a)(i)
effective date	3.04(a)(xii)
Election Notice	7.01(d)
Effectiveness Date	3.01(a)
Effectiveness Period	3.01(a)
Existing Agreement	Recitals
First Offer Acceptance	7.01(b)
Filing Date	3.01(a)
First Offer Exercise Notice	7.01(a)
First Offer Transferor	7.01(a)
fraudulent misrepresentation	3.08(e)
IDEA	3.04(a)(i)
indemnified party	3.08(c)
Indemnified Persons	3.08(a)
indemnifying party	3.08(c)
Initial Shares	Recitals
Inspectors	3.04(a)(viii)
Investment Agreement	Recitals
Liquidated Damages	3.01(b)
Liquidity Impairment	5.01(f)

11

Term	Section
Lock-up	3.09
Merger	Recitals
New Equity Securities	4.01(a)
New Investors	Recitals
Notice of Issuance	4.01(b)
Offer Price	7.01(a)
Offered Stock	7.01(a)
Pathmark	Recitals
Piggyback Registration	3.02
Proposed Stock Settlement Amount	5.01(b)
Proxy Statement	6.01(a)
Put Notice	5.01(c)
Put Price	5.01(c)
Put Right	5.01(a)
Records	3.04(a)(viii)
Registration Default	3.01(b)
Registration Default Date	3.01(b)
Registration Default Period	3.01(b)
Registration Rights Transferee	3.14
Representative	8.19
Required Financial Statements	3.06(b)
Share Number	5.01(b)
Subject Securities	6.02(a)
Tengelmann	Preamble
Tengelmann Mirror Vote	2.01(d)
Tengelmann Nominee	2.01(c)(i)
Tengelmann Partners	Recitals
Tengelmann Shares	Recitals
Transaction	Recitals
Warrant Exercise Notice	5.01(b)

ARTICLE II

Corporate Governance

          SECTION 2.01. Composition of the Board of Directors. The composition of the Board of Directors will be as follows:

          (a) Immediately after the Closing Date, the By-Laws shall be amended to provide that the authorized number of directors comprising the Board of Directors shall be eleven Directors, and, subject to any additional requirements provided for in the Charter or the By-Laws, the number of such Directors may not be (i) increased without the consent of Tengelmann (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary) and that number of directors that is at least 66.67% of the total number of directorships (including vacancies) or (ii) decreased without the

12

approval of that number of directors that is at least 66.67% of the total number of directorships (including vacancies); provided, however, that any decrease in the number of directorships that has the effect of reducing the number of Directors that Tengelmann is entitled to nominate hereunder shall require the consent of Tengelmann.

          (b) Immediately upon the Closing, the Board of Directors will be comprised of (i) four Tengelmann Directors that, immediately prior to the Closing, were Tengelmann Directors serving on the Board of Directors, (ii) five Public Directors that, immediately prior to the Closing, were Public Directors serving on the Board of Directors and (iii) two Yucaipa Directors selected in accordance with Section 2.01 of the Amended and Restated Yucaipa Stockholder Agreement and Section 15 of the Convertible Preferred Articles Supplementary.

          (c) From and after the Closing Date (without duplication of Tengelmann’s rights to elect a Tengelmann Director pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary), so long as the Tengelmann Percentage Interest has been continuously since the Closing Date 10% or more, then the manner of selecting members of the Board of Directors will be as follows:

     (i) Tengelmann will have the right to designate for nomination (it being understood that such nomination will include any nomination of any incumbent Tengelmann Director for reelection to the Board of Directors) to the Board of Directors that number of individuals equal to (i) the product of the total number of directorships (including vacancies) at such time and the Tengelmann Percentage Interest at such time (rounded to the nearest whole number), minus (ii) the number of Tengelmann Directors who are not then subject to election or who will otherwise be continuing to serve on the Board following such election, and each such designee (each, a “Tengelmann Nominee”) will be nominated and recommended for election to the Board of Directors by the Governance Committee; provided, however, that so long as the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholder Agreement) is and has continuously been since the Closing at least 20%, if the calculation set forth above would result in a number of Directors equal to five, then Tengelmann shall have the right to designate for nomination to the Board of Directors the number of individuals equal to (x) four, minus (y) the number of Tengelmann Directors who are not then subject to election or who will otherwise be continuing to serve on the Board following such election, and each such Tengelmann Nominee will be nominated and recommended for election to the Board of Directors by the Governance Committee. In the event that the Tengelmann Percentage Interest is at any time less than 10%, Tengelmann shall not have any right to designate any Directors, and, at the request of a majority of the Other Directors then in office, shall cause any Tengelmann Directors then in office to resign immediately upon such event.

     (ii) Subject to Section 2.01(c)(iii), the Company and the Board of Directors, including the Governance Committee, shall cause each Tengelmann Nominee to be included in management’s slate of nominees for such

13

stockholders’ meeting at which Directors are elected and shall recommend such Person for election to the Board of Directors.

     (iii) Notwithstanding anything to the contrary in this Section 2.01, neither the Governance Committee, the Company nor the Board of Directors shall be under any obligation to nominate and recommend a Tengelmann Nominee to the extent it determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to Tengelmann), that such recommendation would reasonably be expected to violate their duties under MGCL § 2-405.1(a) because (A) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Company’s Common Stock is listed or quoted or (B) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted, in which case the Company shall provide Tengelmann with a reasonable opportunity (but in any event not less than 30 days) to designate an alternate Tengelmann Nominee.

     (iv) Without limiting the generality of Section 2.01(c), and except as otherwise specified in Section 2.01(c)(ii) in the event that the number of Tengelmann Directors on the Board of Directors differs from the number that Tengelmann has the right (and wishes) to designate pursuant to this Section 2.01, (i) if the number of Tengelmann Directors exceeds such number, Tengelmann shall use reasonable best efforts to take all necessary action to remove or cause to resign that number of Tengelmann Directors as is required to make the remaining number of such Tengelmann Directors conform to this Section 2.01 or (ii) if the number of Tengelmann Directors is less than such number, the number of Directors shall automatically be increased by a number sufficient to permit Tengelmann to designate the full number of Tengelmann Directors that it is entitled (and wishes) to designate pursuant to this Section 2.01 or, alternatively, at the request of Tengelmann, the Secretary of the Company shall call a special meeting of the stockholders of the Company for the purpose of removing Other Directors (other than a Yucaipa Director, if the number of Yucaipa Directors on the Board of Directors at such time equals the number of Directors Yucaipa is entitled to designate pursuant to Section 2.01(c) of the Amended and Restated Yucaipa Stockholder Agreement) to create such vacancies as are necessary to permit Tengelmann to designate the full number of Tengelmann Directors that it is entitled (and wishes) to designate pursuant to this Section 2.01. Upon the creation of any vacancy pursuant to clause (ii) of the preceding sentence, Tengelmann shall designate the person to fill such vacancy in accordance with this Section 2.01 and, subject to Section 2.01(c)(iii), the Board of Directors shall appoint each person so designated. In the event that the number of Directors is increased pursuant to this Section 2.01(c)(iv), the Board of Directors shall cause the number of Directors to be reduced at the first available opportunity to comply with the number of Directors otherwise specified by Section 2.01(a).

14

          (d) In any election of Directors at a meeting of the stockholders of the Company, if (x) Tengelmann has elected the applicable number of Tengelmann Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Company has nominated and recommended the Tengelmann Nominees (to the extent required by Section 2.01(c)) that Tengelmann wished to nominate (subject to Section 2.01(c)(iii) above), then Tengelmann, (i) agrees (A) to cause all Voting Stock held by Tengelmann to be present at such meeting either in person or by proxy and (B) to vote such Voting Stock beneficially owned by it for all nominees (other than the Tengelmann Nominees) included in management’s slate, in a manner identical (on a proportionate basis) to the manner in which the Public Equity Holders vote their shares of Voting Stock in such elections (the “Tengelmann Mirror Vote”) and (ii) shall be entitled to vote all Voting Stock held by Tengelmann for any Tengelmann Nominee in its sole discretion. For purposes of allocating the Tengelmann Mirror Vote, abstentions and broker non-votes shall be disregarded. As promptly as practicable following the nomination and recommendation of the Tengelmann Nominees in accordance with Section 2.01(c) above, Tengelmann shall, and shall cause its Affiliates to, provide the Company a proxy (which will be subject to Section 2.01(k)) for purposes of effecting the first sentence of this Section 2.01(d). Notwithstanding the foregoing, this Section 2.01(d) shall not apply with respect to any election of Directors in connection with which any Person (other than (x) Tengelmann or any Affiliate of Tengelmann, (y) any member of any 13D Group that includes Tengelmann or any Affiliate of Tengelmann or (z) any other Person with whom Tengelmann is acting in concert) (i) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes in favor of one or more nominees for election to the Board of Directors that are different from the nominees to the Board of Directors in management’s slate, (ii) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes against one or more of the nominees to the Board of Directors in management’s slate or (iii) has included one or more stockholder nominated director candidates in the Company’s proxy materials using the direct proxy access procedures under the Exchange Act or otherwise.

          (e) In any matter submitted to a vote of stockholders not subject to Section 2.01(d) or 6.02, Tengelmann may vote any or all of its Voting Stock in its sole discretion subject to applicable Law.

          (f) For so long as (x) Tengelmann has elected the applicable number of Tengelmann Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Board of Directors or Governance Committee nominates and recommends (subject to Section 2.01(c)(iii) above), the number of Tengelmann Nominees contemplated by Section 2.01(c) that Tengelmann wishes to nominate and so long as the Company has complied with Section 2.01(c)(iv), Tengelmann agrees not to take, without the consent of a majority of the Other Directors, any action to remove or oppose any Other Director or to seek to change the size of the Board of Directors or otherwise seek to expand Tengelmann’s representation on the Board of Directors in a manner inconsistent with Section 2.01(d) (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary).

15

          (g) No Tengelmann Nominee or Tengelmann director shall be qualified to be a Director unless at all times during his or her term, he or she remains acceptable to Tengelmann.

          (h) Upon the death, resignation, retirement, incapacity, disqualification or removal from office for any other reason of any Tengelmann Director, Tengelmann will have the right to designate the replacement for such Tengelmann Director and the Board of Directors will, subject to Section 2.01(c)(iii), elect each such Person so designated in accordance with this Section 2.01(h). Upon the death, resignation, incapacity, disqualification or removal of any Public Director, a majority of the Public Directors will have the exclusive right to designate the replacement for such Public Director and elect same.

          (i) For the avoidance of doubt, Tengelmann Directors shall be entitled to compensation and expense reimbursement in accordance with the Company’s policies and practices applicable to Directors generally. The Company will also provide and hereby agrees to enter into indemnification agreements with the Tengelmann Directors on terms not less favorable to the Tengelmann Directors than any indemnification agreement entered into with any Other Director

          (j) The rights and obligations of Tengelmann shall apply to any and all Affiliate(s) of Tengelmann which currently beneficially own Voting Stock and any and all Affiliate(s) of Tengelmann to whom any shares of Voting Stock are transferred in any manner, and any such transfer shall be conditioned on such transferee entering into a written agreement in form and substance acceptable to the Company extending the rights and obligations of Tengelmann under this Agreement to such transferee(s), in which cases all references to Tengelmann herein shall be deemed to refer to Tengelmann and such Affiliates except as the context otherwise requires.

          (k) Notwithstanding anything to the contrary in this Section 2.01, Tengelmann shall be under no obligation to vote in favor of an Other Director nominee who has been nominated by a Person other than the Governance Committee or the Board of Directors to the extent Tengelmann determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to the Company and the Board of Directors), that the hypothetical nomination or recommendation of such nominee by the Board of Directors would have been reasonably expected to violate the Directors’ duties under MGCL § 2-405.1(a) because (i) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which Company’s Common Stock is listed or quoted or (ii) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted; provided that Tengelmann shall make such determination as soon as practicable and, if applicable, provide written notice thereof to the Company and the Board of Directors as soon as practicable thereafter.

16

          (l) If the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholder Agreement) falls below 10%, the By-Laws shall promptly be amended to provide that the authorized number of directors comprising the Board of Directors shall be nine Directors and Tengelmann shall continue to have the right to designate for nomination a number of Tengelmann Nominees as set forth in Section 15 of the Convertible Preferred Articles Supplementary or 2.01(c)(i) of this Agreement.

          (m) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Article II and in the event of any such inconsistency, shall negotiate in good faith to revise this Article II to achieve the parties’ intention set forth herein to the greatest extent possible.

          SECTION 2.02. Committees. Tengelmann Directors shall have the right (at Tengelmann’s election) to serve on each committee of the Board of Directors and the number of Tengelmann Directors on a committee of the Board of Directors shall be not less than (x) the number of Tengelmann Directors at such time divided by (y) the total number of seats on the Board of Directors at such time multiplied by (z) the number of Directors serving on such committee (rounded to the nearest whole number). Tengelmann shall have the right to select the Tengelmann Directors that will serve on each committee of the Board of Directors; provided that, so long as there are any Tengelmann Directors serving on the Board of Directors, at least one Tengelmann Director shall have the right to serve on each committee of the Board of Directors. Notwithstanding the foregoing, a Tengelmann Director shall not serve on any committee if such service would violate any Law , the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted. Upon any request by Tengelmann, as soon as reasonably practicable, one Tengelmann Director shall be appointed to the board of directors (or similar governing body) of each Subsidiary of the Company requested by Tengelmann and each committee of each such Subsidiary.

          SECTION 2.03. Solicitation of Shares. The Company will use its reasonable best efforts to solicit proxies in favor of the Tengelmann Nominees selected in accordance with Section 2.01 from its stockholders eligible to vote for the election of Directors.

          SECTION 2.04. Approval Required for Certain Actions. (a) For so long as the Tengelmann Percentage Interest is at least 25%, the approval of Tengelmann will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws); provided, however, that the approval of Tengelmann will not be required in connection with the actions specified in clauses (v) and (vii) below until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholder Agreement) falls below 17.8%:

17

     (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be;

     (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity based compensation plans, (C) of any Equity Security issued or issuable under rights existing as of Closing Date or (D) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment);

     (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Tengelmann’s rights hereunder or the exercise thereof;

     (v) the adoption, implementation or amendment of, or redemption under, any takeover defense measures (including a rights plan);

     (vi) any Discriminatory Transaction;

     (vii) any transaction between (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Affiliate of the Company (other than (1) any Director, officer or Subsidiary of the Company and (2) Tengelmann or any of its Affiliates), on the other hand;

     (viii) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Tengelmann’s rights hereunder or the exercise thereof;

     (ix) the issuance and delivery to Yucaipa of any Company Common Stock upon exercise by Yucaipa of the Series B Warrants, except to the extent that a cash settlement of any Series B Warrants would reasonably be expected to cause a Liquidity Impairment (as defined in Section 5.01(f)), in which case the Company shall be permitted to issue and deliver Company Common Stock to Yucaipa upon exercise of such Series B Warrants to the extent necessary to avoid a Liquidity Impairment;

18

     (x) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Tengelmann in its capacity as a holder of the Convertible Preferred Stock or adversely affect any rights, privileges or preferences of the Convertible Preferred Stock; or

     (xi) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or

     (xii) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary.

          (b) For so long as the Tengelmann Percentage Interest is at least 25%, the approval of a majority of the Tengelmann Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws); provided, however, that the approval of a majority of the Tengelmann Directors will not be required in connection with the actions specified in clauses (v), (vi), (vii)(B), (viii) and (ix) until the Stockholder Percentage Interest (as defined in the Amended and Restated Yucaipa Stockholders Agreement) falls below 17.8%:

     (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order;

     (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) of any Series B Warrants, (B) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (C) of

19

any Equity Security issued or issuable under rights existing as of the Closing Date or (D) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Tengelmann pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes;

     (iv) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock.

     (v) the adoption or amendment of any long term (i.e., three years or more) strategic plans, priorities or direction for the Company and its Subsidiaries and their businesses, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period;

     (vi) the adoption or amendment of the operating plan or budget, capital expenditure budget, financing plan or any financial goal, except for amendments not exceeding $10,000,000 individually or in the aggregate in any 12-month period;

     (vii) (A) the appointment or removal of the chairman of the Board of Directors or (B) the appointment (but not removal) of the chief executive officer of the Company;

     (viii) the Dissolution of the Company;

     (ix) any capital expenditure of more than $10,000,000 (excluding any capital expenditure previously approved, or capital expenditure pursuant to a capital expenditure program or budget or plan that was previously approved, by the Board of Directors as part of the approval of the Company’s annual operating plan, capital expenditures budget or otherwise); or

     (x) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided,

20

however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.04(a)(x)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement.

          (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Tengelmann, or any Subsidiary or Affiliate of Tengelmann, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).

          (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.04.

          (e) Notwithstanding the foregoing, Tengelmann shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Tengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Tengelmann, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

          SECTION 2.05. Charter and By-Laws. (a) Immediately after the Closing, any Director will have the right to call a meeting of the Board of Directors.

          (b) The Company represents and warrants to Tengelmann that it has adopted resolutions providing that automatically upon the Closing and without any further act of any Person, the By-Laws will be amended substantially on the terms set forth in Exhibit A. The Company will not amend, rescind or cause to be superseded such resolution prior to the effectiveness of such amendments.

          (c) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Agreement.

          SECTION 2.06. Change in Law. Without limiting the obligations of the Board of Directors under Section 2.05(c), in the event any Charter provision, By-Law provision or any Law exists or hereafter comes into force or effect (including by

21

amendment) which conflicts with the terms and conditions of this Agreement, the parties will negotiate in good faith to revise this Agreement to achieve the parties’ intention set forth herein to the greatest extent possible.

ARTICLE III

Registration Rights

          SECTION 3.01. Registration. (a) Prior to the six-month anniversary of the date hereof (the “Filing Date”), the Company shall prepare and file with the SEC a Registration Statement providing for the direct primary sales for cash by Tengelmann of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Thereafter, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act within 365 days after the date hereof (the “Effectiveness Date”), and subject to the other provisions of this Article III, shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the shares of Company Common Stock subject to this Article III cease to be Registrable Securities (the “Effectiveness Period”). The Company agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period, including (A) to respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, (C) as may be required by the Securities Act or (D) as may be reasonably requested in writing by Tengelmann or any Underwriter regarding information about Tengelmann or any Underwriter to be included in a prospectus.

          (b) If (i) the Registration Statement is not filed on or prior to the Filing Date, (ii) a Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required Effectiveness Date, or (iii) after its Effectiveness Date, such Registration Statement ceases for any reason to be effective and available to Tengelmann as to all Registrable Securities to which it is required to cover at any time prior to the expiration of the Effectiveness Period (in each case, except as specifically permitted herein) (any such failure or breach being referred to as a “Registration Default,” and for purposes of clauses (i) or (ii) the date on which such Registration Default occurs, and for purposes of clause (iii) the date on which the Registration Statement ceases to be effective and available, being referred to as the “Registration Default Date” and each period from and including the Registration Default Date during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, during the Registration Default Period, in addition to any other rights available to Tengelmann, the Company shall pay to Tengelmann (“Liquidated Damages”) in an amount in cash equal to the product of (x) 1.00% per annum and (y) the difference between (1) the sum of (A) $60,000,000 and (B) the Liquidation Preference (as defined in the Convertible Preferred Articles Supplementary) attributable to any Convertible Preferred Stock issued to Tengelmann pursuant to the Convertible Preferred Articles Supplementary after the date hereof and (2) the Liquidation Preference

22

attributable to Registrable Securities (determined based on the amount attributable to them prior to their becoming Registrable Securities) Transferred prior to the beginning of the applicable Registration Default Period to a Third Party that does not receive registration rights pursuant to Section 3.14. Liquidated Damages shall accrue from the applicable Registration Default Date until all Registration Defaults have been cured, and shall be payable quarterly in arrears on each March 15, June 15, September 15 and December 15 following the applicable Registration Default Date to the record holder of the applicable security on the date that is 15 days prior to such payment date, until paid in full. Following the cure of any Registration Default, Liquidated Damages will cease to accrue with respect to such Registration Default. Liquidated Damages payable in respect of any Registration Default Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Liquidated Damages shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing.

          (c) At any time and from time to time on or after the Effective Date, upon the written request (a “Demand Notice”) of Tengelmann requesting that the Company effect an Underwritten Offering of Registrable Securities of Tengelmann (a “Demand Offering”), the Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, an Underwritten Offering of the Registrable Securities which the Company has been so requested to register; provided, however, that (A) (x) with respect to any Registrable Securities (other than Existing Registrable Securities), the Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in any 12-month period and (2) no more than five times in the aggregate and (y) with respect to the Existing Registrable Securities, the Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in any 12 month period and (2) since December 3, 2007, no more than three times in the aggregate and (B) in each case, the Registrable Securities for which a Demand Offering has been requested will have a value (based on the average closing price per share of Company Common Stock for the ten Trading Days preceding the delivery of such Demand Notice) of not less than $20,000,000 or such lesser remaining amount of Registrable Securities held by Tengelmann. Each such Demand Notice will specify the number of Registrable Securities proposed to be offered for sale and will also specify the intended method of distribution thereof. Notwithstanding anything to the contrary herein, the Company shall not be required to make any Registration Statement available for, or permit the use of any such Registration Statement for the registration of all or any portion of a hedging transaction.

          (d) In the event an offering of Registrable Securities under this Section 3.01 involves one or more Underwriters, Tengelmann will select the lead Underwriter and any additional Underwriters in connection with the offering from the list of investment banks set forth on Schedule I. The list of investment banks on Schedule I may be amended from time to time by Tengelmann with the consent of the Company (such consent not to be unreasonably withheld or delayed).

          (e) Notwithstanding the foregoing provisions of this Section 3.01, Tengelmann may not request a Demand Offering during a period commencing upon the

23

filing (or earlier, but not more than 30 days prior to such filing upon notice by the Company to Tengelmann that it so intends to file) of a Registration Statement for Company Common Stock by the Company (for its own account or for any other security holder) and ending (i) 90 days after such Registration Statement is declared effective by the SEC (or becomes automatically effective), (ii) upon the withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if Tengelmann was not given reasonable opportunity, in violation of Section 3.02, to include its Registrable Securities in the Registration Statement described in this Section 3.01(e).

          (f) Tengelmann will be permitted to rescind a Demand Offering or request the removal of any Registrable Securities held by it from any Demand Offering at any time (so long as, in the case of a Demand Offering, after such removal it would still constitute a Demand Offering, including with respect to the required Fair Market Value thereof); provided that, if Tengelmann rescinds a Demand Offering, such Demand Offering will nonetheless count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by Tengelmann pursuant to this Section 3.01, unless Tengelmann reimburses the Company for all expenses (including reasonable fees and disbursements of counsel) incurred by the Company in connection with such Demand Offering.

          SECTION 3.02. Piggyback Registration. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of Company Common Stock for (a) the Company’s own account (other than (i) a Registration Statement on Form S-4 or S-8 (or any substitute form that may be adopted by the SEC) or (ii) a Registration Statement filed in connection with an offering of securities solely to the Company’s existing security holders) or (b) the account of any holder of Company Common Stock (other than Tengelmann) pursuant to a demand registration requested by such holder, then the Company will give written notice of such proposed filing to Tengelmann as soon as practicable (but in no event less than 20 days before the anticipated filing date), and upon the written request, given within 10 days after delivery of any such notice by the Company, of Tengelmann to include Registrable Securities in such registration (which request shall specify the number of Registrable Securities proposed to be included in such registration), the Company will, subject to Section 3.03, include all such Registrable Securities in such registration on the same terms and conditions as the Company’s or such holder’s Company Common Stock (a “Piggyback Registration”); provided, however, that if at any time after giving written notice of such proposed filing and prior to the business day prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall determine for any reason not to proceed with the proposed registration of the securities, then the Company may, at its election, give written notice of such determination to Tengelmann and, thereupon, will be relieved of its obligation to register any Registrable Securities in connection with such registration. The Company will control the determination of the form of any offering contemplated by this Section 3.02, including whether any such offering will be in the form of an Underwritten Offering and, if any such offering is in the form of an Underwritten Offering, (i) the Company will select the lead Underwriter and

24

any additional Underwriters in connection with such offering and (ii) Tengelmann’s right to participate shall be conditioned on Tengelmann entering into an underwriting agreement in customary form and acting in accordance with the provisions thereof.

          SECTION 3.03. Reduction of Underwritten Offering. Notwithstanding anything contained herein, if the lead Underwriter of an Underwritten Offering described in Section 3.01 or 3.02 advises the Company in writing that in its reasonable opinion the number of shares of Company Common Stock (including any Registrable Securities) that the Company, Tengelmann and any other Persons intend to include in any Registration Statement is such that the success of any such offering would be materially and adversely affected, including the price at which the securities can be sold or the number of Registrable Securities that any participant may sell, then the number of shares of Company Common Stock to be included in the Registration Statement for the account of the Company, Tengelmann and any other Persons will be reduced to the extent necessary to reduce the total number of securities to be included in any such Registration Statement to the number recommended by such lead Underwriter; provided that (a) priority in the case of a Demand Offering pursuant to Section 3.01 will be (i) first, the Registrable Securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to its registration rights provided in this Agreement, (ii) second, securities proposed to be offered by the Company for its own account and (iii) third, among any other securities of the Company requested to be registered by the holders thereof pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter; (b) priority in the case of a Registration Statement initiated by the Company for its own account which gives rise to a Piggyback Registration pursuant to Section 3.02 will be (i) first, securities initially proposed to be offered by the Company for its own account, (ii) second, the Registrable Securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to its registration right provided in this Agreement and securities requested to be included in the Registration Statement for the account of Yucaipa pursuant to the registration rights afforded to Yucaipa pursuant to the Amended and Restated Yucaipa Stockholder Agreement pro rata, based on Tengelmann’s Piggyback Percentage and Yucaipa’s Piggyback Percentage, respectively and (iii) third, among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter; (c) priority in the case of a Registration Statement initiated by the Company for the account of Yucaipa pursuant to the registration rights afforded to Yucaipa pursuant to the Amended and Restated Yucaipa Stockholder Agreement will be (i) first, the securities requested to be included in the Registration Statement for the account of Yucaipa, (ii) second, securities to be offered by the Company for its own account, (iii) third, securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to its registration right provided in this Agreement and (iv) fourth, among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter; and (d) priority with respect to inclusion of securities in a Registration Statement initiated

25

by the Company for the account of holders other than Tengelmann or Yucaipa pursuant to registration rights afforded such holders will be (i) first, pro rata among securities requested to be included in the Registration Statement for the account of such holders, (ii) second, securities requested to be included in the Registration Statement by the Company for its own account, (iii) third, the Registrable Securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to its registration right provided in this Agreement and securities requested to be included in the Registration Statement for the account of Yucaipa pursuant to the registration rights afforded to Yucaipa pursuant to the Amended and Restated Yucaipa Stockholder Agreement pro rata, based on Tengelmann’s Piggyback Percentage and Yucaipa’s Piggyback Percentage, respectively and (iv) fourth, pro rata among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter.

          SECTION 3.04. Registration Procedures. (a) Subject to the provisions of Section 3.01 hereof, in connection with the registration of the sale of Registrable Securities hereunder, the Company will as promptly as reasonably practicable:

     (i) furnish to Tengelmann without charge, if requested, prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein, except to the extent such exhibits or documents are currently available electronically via the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) Interactive Data Electronic Applications system (“IDEA”) or any successor system of the SEC), which documents (other than those incorporated by reference) will be subject to the review and good faith objection of Tengelmann prior to filing (provided, however, if Tengelmann does not object to any such document prior to the close of business on the third Business Day after receipt thereof, Tenglemann shall be deemed to have waived any objection) the prospectus included in such Registration Statement (including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement (except to the extent such letters or correspondence are currently available electronically via EDGAR, IDEA or any successor system of the SEC) and such other documents in such quantities as Tengelmann may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities;

     (ii) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Tengelmann reasonably requests and do any and all other acts and things as may be reasonably necessary or advisable to enable Tengelmann to consummate the disposition of such Registrable Securities in such jurisdictions; provided that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify

26

but for this Section 3.04(a)(ii), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;

     (iii) notify Tengelmann at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will promptly prepare and file with the SEC a supplement or amendment to such prospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner) so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

     (iv) advise the Underwriters, if any, and Tengelmann promptly and, if requested by such Persons, confirm such advice in writing, of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;

     (v) use its commercially reasonable efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company to enable Tengelmann to consummate the disposition of such Registrable Securities; provided that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.04(a)(v), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;

     (vi) enter into customary agreements and use commercially reasonable efforts to take such other actions as are reasonably requested by Tengelmann in order to expedite or facilitate the disposition of such Registrable Securities, including preparing for and participating in a road show and all such other

27

customary selling efforts as the Underwriters reasonably request in order to expedite or facilitate such disposition;

     (vii) if requested by Tengelmann or the Underwriter(s) in connection with such sale, if any, promptly include in any Registration Statement or prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as Tengelmann and such Underwriter(s), if any, may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities, information with respect to the number of Registrable Securities being sold to such Underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering, and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such prospectus supplement or post-effective amendment;

     (viii) make available for inspection by Tengelmann, any Underwriter participating in any disposition of such Registrable Securities, and any attorney for Tengelmann and such Underwriter and any accountant or other agent retained by Tengelmann or such Underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as will be reasonably necessary to enable them to conduct customary due diligence with respect to the Company and the related Registration Statement and prospectus, and cause the Representatives of the Company and its Subsidiaries to supply all information reasonably requested by any such Inspector; provided that (x) Records and information obtained hereunder will be used by such Inspector only to conduct such due diligence and (y) Records or information that the Company determines, in good faith, to be confidential will not be disclosed by such Inspector unless (A) the disclosure of such Records or information is necessary to avoid or correct a material misstatement or omission in a Registration Statement or related prospectus or (B) the release of such Records or information is ordered pursuant to a subpoena or other order from a court or governmental authority of competent jurisdiction;

     (ix) (A) cause the Company’s Representatives to supply all information reasonably requested by Tengelmann, or any Underwriter, attorney, accountant or agent in connection with the Registration Statement and (B) provide Tengelmann and its counsel with the opportunity to participate in the preparation of such Registration Statement and the related prospectus;

     (x) use its commercially reasonable efforts to obtain and deliver to each Underwriter and Tengelmann a comfort letter from the independent registered public accounting firm for the Company (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Company whose financial statements are included or incorporated by reference in the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such Underwriter and Tengelmann may

28

reasonably request, including (x) that the financial statements included or incorporated by reference in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and (y) as to certain other financial information for the period ending no more than five business days prior to the date of such letter; provided, however, that if the Company fails to obtain such comfort letter, then such Demand Offering will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by Tengelmann pursuant to Section 3.01;

     (xi) use its commercially reasonable efforts to obtain and deliver to each Underwriter and Tengelmann a 10b-5 statement and legal opinion from the Company’s counsel in customary form and covering such matters as are customarily covered by 10b-5 statements and legal opinions as such Underwriter and Tengelmann may reasonably request; provided, however, that if the Company fails to obtain such statement or opinion, then such Demand Offering will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by Tengelmann pursuant to Section 3.01;

     (xii) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, within the required time period, an earnings statement (which need not be audited) covering a period of 12 months, beginning with the first fiscal quarter after the effective date of the Registration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor provisions thereto; and

     (xiii) use its commercially reasonable efforts to cause such Registrable Securities to be listed or quoted on the NYSE or, if Company Common Stock is not then listed on the NYSE, then on any other securities exchange or national quotation system on which similar securities issued by the Company are listed or quoted.

          (b) In connection with the Registration Statement relating to such Registrable Securities covering an Underwritten Offering, (i) the Company and Tengelmann agree to enter into a written agreement with each Underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between such Underwriter and companies of the Company’s size and investment stature and, to the extent practicable, on terms consistent with underwriting agreements entered into by the Company (it being understood that, unless required otherwise by the Securities Act or any other Law, the Company will not require Tengelmann to make any representation, warranty or agreement in such agreement other than with respect to Tengelmann, the ownership of Tengelmann’s securities being registered and Tengelmann’s intended method of disposition) and (ii) Tengelmann agrees to complete and execute all such other

29

documents customary in similar offerings, including any reasonable questionnaires, powers of attorney, holdback agreements, letters and other documents customarily required under the terms of such underwriting arrangements. The representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Underwriter in such written agreement with such Underwriter will also be made to and for the benefit of Tengelmann. In the event an Underwritten Offering is not consummated because any condition to the obligations under any related written agreement with such Underwriter is not met or waived in connection with a Demand Offering, and such failure to be met or waived is not attributable to the fault of Tengelmann, such Demand Offering will not be deemed exercised.

          SECTION 3.05. Conditions to Offerings. (a) The obligations of the Company to take the actions contemplated by Section 3.01, Section 3.02 and Section 3.04 with respect to an offering of Registrable Securities will be subject to the following conditions:

     (i) the Company may require Tengelmann to furnish to the Company such information regarding Tengelmann or the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing, in each case only as required by the Securities Act or under state securities or blue sky laws; and

     (ii) in any Underwritten Offering pursuant to Section 3.01 or Section 3.02 hereof, Tengelmann, together with the Company, will enter into an underwriting agreement in accordance with Section 3.04(b) above with the Underwriter or Underwriters selected for such underwriting, as well as such other documents customary in similar offerings.

          (b) Tengelmann agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.04(a)(iii) or Section 3.04(a)(iv) hereof or a condition described in Section 3.06 hereof, Tengelmann will forthwith discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering the sale of such Registrable Securities until Tengelmann’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.04(a)(iii) hereof or notice from the Company of the termination of the stop order or Deferral Period.

          SECTION 3.06. Blackout Period. (a) The Company’s obligations pursuant to Section 3.01, Section 3.02 and Section 3.03 hereof will be suspended (including any obligation to pay Liquidated Damages) (1) upon the receipt of comments from the SEC on any document incorporated by reference in the Registration Statement or (2) if compliance with such obligations would (a) violate applicable Law or otherwise prevent the Company from complying with applicable Law, (b) require the Company to disclose a financing, acquisition, disposition or other corporate development, and the chief executive officer of the Company has determined, in the good faith exercise of his reasonable business judgment, that such disclosure is not in the best interests of the Company, (c) require the Company to make changes in the Registration Statement in

30

order that the Registration Statement not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (d) otherwise require premature disclosure of information the disclosure of which, the chief executive officer of the Company has determined, in the good faith exercise of his reasonable business judgment, is not in the best interests of the Company, or (e) otherwise represent an undue hardship for the Company; provided that (i) any and all such suspensions pursuant to clause (1) will not exceed 120 days in the aggregate in any 12-month period and (ii) any and all such suspensions pursuant to clause (2)(b), (2)(c), (2)(d) or (2)(e) will not exceed 120 days in the aggregate in any 12-month period; provided that any suspensions attributable to clause 2(e) will not extend beyond 90 days (any such period, a “Deferral Period”). The Company will promptly give Tengelmann written notice of any such suspension containing the approximate length of the anticipated delay, and the Company will notify Tengelmann upon the termination of any Deferral Period. Upon receipt of any notice from the Company of any Deferral Period, Tengelmann shall forthwith discontinue disposition of the Registrable Securities pursuant to the Registration Statement relating thereto until Tengelmann receives copies of the supplemented or amended prospectus contemplated hereby or until it is advised in writing by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemented filings that are incorporated by reference in the prospectus, and, if so directed by the Company, Tengelmann will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company all copies, other than permanent file copies, then in Tengelmann’s or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities.

          (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 3.06(a), unless and until the seven business day period referenced in Section 3.06(c) shall have passed without the updating of financial statements required by Section 3.06(c).

          (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the date hereof, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 3.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such earlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.

          SECTION 3.07. Registration Expenses. All fees and expenses incident to the Company’s performance of or compliance with the obligations of this Article III, including all fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters in connection with qualification of Registrable Securities under applicable blue sky laws), printing expenses,

31

messenger and delivery expenses of the Company, any registration or filing fees payable under any Federal or state securities or blue sky laws, the fees and expenses incurred in connection with any listing or quoting of the securities to be registered on any national securities exchange or automated quotation system, fees of the Financial Industry Regulatory Authority, fees and disbursements of counsel for the Company, its independent registered certified public accounting firm and any other public accountants who are required to deliver comfort letters (including the expenses required by or incident to such performance), transfer taxes, fees of transfer agents and registrars, costs of insurance, fees and expenses of one counsel (in addition to any local counsel) for Tengelmann and the fees and expenses of other Persons retained by the Company, will be borne by the Company. Tengelmann will bear and pay any underwriting discounts and commissions applicable to Registrable Securities offered for its account pursuant to any Registration Statement. The Company shall also pay and reimburse Tengelmann for all reasonable out-of-pocket fees and expenses incurred by Tengelmann of one counsel for Tengelmann in connection with each Registration Statement.

          SECTION 3.08. Indemnification; Contribution. (a) In connection with any registration of Registrable Securities pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company agrees to indemnify and hold harmless, to the fullest extent permitted by Law, Tengelmann, its Affiliates, directors, officers and stockholders and each Person who controls Tengelmann within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and against any and all losses, claims, damages, liabilities, judgments, actions and expenses (including reasonable attorneys’ fees) joint or several, caused by any untrue or alleged untrue statement of material fact contained in any part of any Registration Statement or any preliminary or final prospectus used in connection with the Registrable Securities or any Issuer FWP, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading; provided that the Company will not be required to indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments, actions or expenses resulting from any such untrue statement or omission if such untrue statement or omission was made in reliance on and in conformity with information with respect to any Indemnified Person furnished to the Company in writing by Tengelmann expressly for use therein.

          (b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, Tengelmann agrees to indemnify the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to Tengelmann, but only with respect to information with respect to any Indemnified Person furnished to the Company in writing by Tengelmann expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP.

          (c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be

32

sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense of such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. In any such claim, action or proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, By-Laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to the Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them or (C) the indemnifying party has failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could

33

have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

          (d) If the indemnification provided for in this Section 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to in this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of the Company, on the one hand, and Tengelmann, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 3.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.

          (e) The parties agree that it would not be just and equitable if contribution pursuant to Section 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 3.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 3.08(e), Tengelmann shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Tengelmann with respect to the Registrable Securities exceed the greater of (A) the amount paid by Tengelmann for its Registrable Securities and (B) the amount of any damages which Tengelmann has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

          (f) For purposes of this Section 3.08, each controlling Person of Tengelmann shall have the same rights to contribution as Tengelmann, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the

34

immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.

          (g) If indemnification is available under this Section 3.08, the indemnifying party will indemnify each indemnified party to the full extent provided in Sections 3.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in Section 3.08(d) or (e).

          SECTION 3.09. Lockup. If and to the extent requested by the lead Underwriter of an Underwritten Offering of Equity Securities of the Company, the Company and Tengelmann agree not to effect, and to cause their respective Affiliates not to effect, except as part of such registration, any offer, sale, pledge, transfer or other distribution or disposition or any agreement with respect to the foregoing of the issue being registered or offered, as applicable, or of a similar security of the Company, or any securities into which such Equity Securities are convertible, or any securities convertible into, or exchangeable or exercisable for, such Equity Securities, including a sale pursuant to Rule 144 under the Securities Act, during a period of up to seven days prior to, and during a period of up to 45 days after, the effective date of such registration, as reasonably requested by the lead Underwriter (the “Lock-up”); provided, however, that Tengelmann shall not be obligated to enter into a Lock-up more than one time in any 12-month period. The lead Underwriter shall give the Company and Tengelmann prior notice of any such request.

          SECTION 3.10. Termination of Registration Rights. This Article III (other than Sections 3.07 and 3.08) will terminate on the date on which all shares of Company Common Stock subject to this Article III cease to be Registrable Securities.

          SECTION 3.11. Specific Performance. Tengelmann, in addition to being entitled to exercise all rights provided herein or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

          SECTION 3.12. Other Registration Rights. The Company (a) has not granted and will not grant to any Third Party any registration rights inconsistent with any of those contained herein and (b) has not entered into and will not enter into any

35

agreement that will impair its ability to perform its obligations under this Article III, so long as any of the registration rights under this Agreement remain in effect; provided, however, that the registration rights in the Amended and Restated Yucaipa Stockholder Agreement shall be deemed not to impair these rights under any circumstances. If the Company provides Yucaipa with the right to require the Company to file a shelf registration statement pursuant to Rule 415 under the Securities Act for resales of Registrable Securities (as such term is defined in the Amended and Restated Yucaipa Stockholder Agreement) held by Yucaipa, then Tengelmann shall have the right to require a shelf registration statement to register all of Tengelmann’s Registrable Securities on substantially the same terms and conditions as provided to Yucaipa.

          SECTION 3.13. Rule 144. For so long as the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, if the Company fails to timely file the reports required to be filed by it under the Securities Act and the Exchange Act and such failure continues unremedied for a period of 90 days, then, if such failure shall be continuing, the Company shall pay Liquidated Damages to Tengelmann from the date of such failure to, but excluding the date on which such failure has been cured and otherwise in the amount and at the same time and terms as provided in Section 3.01(b).

          SECTION 3.14. Transfer of Registration Rights. Notwithstanding anything to the contrary in this Agreement, the rights to cause the Company to register securities granted to Tengelmann under this Article III may be assigned by Tengelmann in whole or part to any Person to whom Tengelmann Transfers Equity Securities of the Company representing 10% or more of the Voting Power of the Company (a “Registration Rights Transferee”); provided, however, that (x) the Company is given prior written notice of the assignment, stating the name and address of the transferee or assignee and identifying the securities with respect to which such registration rights are being assigned and (y) such Registration Rights Transferee agrees in writing to be bound by subject to the provisions of this Article III mutatis mutandis as if the Registration Rights Transferee were a party hereto.

ARTICLE IV

Preemptive Rights

          SECTION 4.01. Rights To Purchase New Equity Securities. (a) In the event that after the date hereof, the Company proposes to issue any Equity Securities of the Company (“New Equity Securities”), Tengelmann shall have the right to purchase, in accordance with paragraph (b) below, a number of such New Equity Securities equal to the product of (x) the total number of such New Equity Securities to be issued and (y) the Tengelmann Percentage Interest at such time. The following issuances shall be exempt from the right to purchase New Equity Securities: (i) Equity Securities of the Company which are issued or reserved for issuance pursuant to any employee compensation plan or other benefit incentive plan (including stock option, restricted stock or other equity-based compensation plans), now existing or hereafter approved by the Board of Directors, (ii) Equity Securities of the Company issued or issuable upon the exercise of the Series B Warrants or the 2000 Warrants, (iii) Equity Securities of the Company to the extent

36

issued or issuable in exchange for consideration consisting of property or assets other than cash, (iv) Equity Securities of the Company which are issued or issuable to Tengelmann or any Affiliate of Tengelmann or any wholly owned Subsidiaries of the Company, (v) Equity Securities of the Company which are issued or issuable to Yucaipa or its Affiliates under the Yucaipa Investment Agreement and pursuant to the Convertible Preferred Articles Supplementary (including any Equity Securities of the Company issued as dividends thereunder), (vi) Equity Securities of the Company which are issued in connection with a Business Combination and (vii) Equity Securities of the Company which are existing as of the date hereof or that are issued or issuable thereafter pursuant to the terms of any Equity Securities of the Company or other purchase rights existing or assumed by the Company as of the date hereof but in each case, only to the extent disclosed on Schedule 2.03 of the Investment Agreement and without any amendments or modifications thereto.

          (b) In the event that the Company proposes to undertake an issuance of New Equity Securities to which this Section 4.01 applies, and to which an exception in clauses (i) through (vi) of Section 4.01(a) does not apply, it shall give written notice to Tengelmann (a “Notice of Issuance”) of its intention, describing the material terms of the New Equity Securities and the issuance thereof, including the number of New Equity Securities proposed to be issued, the price (or method for determining price) thereof, the terms of payment and the proposed date of issuance. Tengelmann shall then have 20 days from the date of receipt of the Notice of Issuance to exercise its right to purchase all or a portion of its pro rata share of such New Equity Securities (as determined pursuant to paragraph (a) above) for the same consideration, and otherwise upon the terms specified in the Notice of Issuance, by giving written notice to the Company and stating therein the quantity of New Equity Securities to be purchased by Tengelmann. The rights of Tengelmann with respect to a particular issuance of New Equity Securities under this Section 4.01(b) shall expire if unexercised within 20 days after receipt of the applicable Notice of Issuance. Tengelmann shall have 30 days after receipt of the applicable Notice of Issuance to consummate such purchase.

          (c) If Tengelmann exercises its right pursuant to a Notice of Issuance, then the closing of the purchase and sale of the New Equity Securities to be issued to Tengelmann will be consummated simultaneously with the closing of the purchase and sale of the New Equity Securities to be issued to Persons other than Tengelmann, unless the closing of the purchase and sale of the New Equity Securities issued to Tengelmann is required by Law to be consummated on a later date. In the event any purchase by Tengelmann is not consummated, other than as a result of the fault of the Company, within the provided time period, the Company may issue the New Equity Securities to Persons other than Tengelmann free and clear from the rights of Tengelmann and restrictions under this Section 4.01. Any New Equity Securities not elected to be purchased by Tengelmann may be sold by the Company to any Person or Persons to which the Company intended to sell such New Equity Securities at a price and other economic terms not less than those offered to Tengelmann and on terms and conditions no less favorable to the Company than those offered to Tengelmann.

37

          (d) If, for any reason, the issuance of New Equity Securities to Persons other than Tengelmann is not consummated within 90 days after the Notice of Issuance, Tengelmann’s right to purchase its pro rata share of the New Equity Securities shall automatically be rescinded. Thereafter, Tengelmann will continue to have preemptive rights set forth in this Section 4.01 with respect to other issuances of New Equity Securities at later dates or times.

ARTICLE V

Put Right

          SECTION 5.01. Put Right. (a) Prior to the settlement by the Company of any Series B Warrant upon exercise by the Original Yucaipa Stockholders, and subject to Tengelmann’s right to approve any issuance of Company Common Stock in connection therewith pursuant to Section 2.04(a)(ix), the Company will give Tengelmann the right (a “Put Right”) to (i) cause the Company to settle such Series B Warrant by issuing and delivering Company Common Stock to Original Yucaipa Stockholders (in which case, such issuance shall be deemed to be approved by Tengelmann pursuant to Section 2.04(b)(ii)) and (ii) sell to the Company some or all of the shares of Company Common Stock to be so issued and delivered to Yucaipa in the following manner, provided that the Company shall not be required to purchase Company Common Stock pursuant to this clause (ii) to the extent necessary to avoid a Liquidity Impairment:

          (b) The Company will give notice (a “Warrant Exercise Notice”) to Tengelmann in writing of each exercise by Yucaipa of one or more Series B Warrants, specifying the number of shares (the “Share Number”) of Company Common Stock subject to such Series B Warrants and what portion, if any, the Company proposes to settle by the issuance and delivery to Yucaipa of Company Common Stock (the “Proposed Stock Settlement Amount”) and what portion, if any, the Company proposes to settle in cash.

          (c) If Tengelmann determines to exercise its Put Right, Tengelmann will deliver a notice (a “Put Notice”) to the Company within 10 Business Days after receipt of a Warrant Exercise Notice indicating, (i) the number of shares of Company Common Stock which the Company shall purchase from Tengelmann pursuant to Tengelmann’s Put Right (which number shall not exceed the Share Number) and (ii) if the Proposed Stock Settlement Amount exceeds the number specified pursuant to clause (i), the portion of such excess to be settled by the issuance and delivery of Company Common Stock, if any, which Tengelmann has approved pursuant to Section 2.04(a)(ii) (to the extent such approval is required thereby). The purchase price per share for such Company Common Stock will be equal to the Market Price of the Company Common Stock on the business day immediately preceding the date of exercise by Yucaipa of such Series B Warrants (the “Put Price”).

          (d) If Tengelmann exercises its Put Right, the Company will purchase from Tengelmann, the number of shares of Company Common Stock set forth in the Put Notice at the Put Price.

38

          (e) Such purchase and sale shall occur on the date the Company issues and delivers Company Common Stock to Yucaipa in settlement of such Series B Warrants.

          (f) A “Liquidity Impairment” shall be deemed to occur to the extent that any necessary cash settlement(s) of Series B Warrants, or any payment(s) in accordance with Article V of this Agreement, would:

     (i) violate, breach or give rise to a default or event of default under or in respect of any contract, credit facility, agreement or other obligation of the Company, either existing as of the Closing Date or entered into after the Closing Date (with the approval of a majority of the Tengelmann Directors), or any refinancing thereof (with the approval of a majority of Tengelmann Directors or on terms substantially similar to, and in any event no less favorable to the Company than, the terms of the obligation being refinanced), or

     (ii) reasonably be expected, after giving effect to the proposed cash settlement or payment, to cause (A) cash plus cash equivalents plus marketable securities plus cash available for drawdown under any then existing credit agreement or other financing facility of the Company or any of its Subsidiaries (without conditions that are not reasonably capable of being satisfied at the applicable time) less (B) cash in stores plus restricted cash plus restricted marketable securities, to equal less than $150,000,000, as of the date of the proposed cash settlement or payment, as applicable, or any date within 180 days thereafter, after taking into account any changes or adjustments to any of the foregoing items scheduled or reasonably anticipated, in good faith, by the Chief Financial Officer of the Company to occur during such 180-day period.

     (iii) For purposes of the foregoing definition, the terms “cash”, “cash equivalents”, “marketable securities”, “restricted cash” and “restricted marketable securities” shall mean the amount set forth opposite the corresponding line item on the Company’s most recent audited or unaudited consolidated balance sheet prior to the date of the proposed cash settlement or payment (i.e., as at the end of the most recently concluded 4-week fiscal period) and “cash in stores” shall mean cash held by all of the Company’s or any of its Subsidiaries’ stores as of such balance sheet date as determined by the Company in accordance with past practices.

ARTICLE VI

Covenants

          SECTION 6.01. Stockholder Approvals. (a) (x) as promptly as practicable after the date hereof, the Company, acting through the Board of Directors, shall, in accordance with applicable Law, the Charter and By-Laws, duly call, establish a record date for, give notice of, convene and hold an annual or special meeting of the holders of Voting Stock for the purposes of considering and taking action to obtain the Conversion Stockholder Approval and (y) on or prior to the first anniversary of the date

39

hereof, the Company, acting through the Board of Directors, shall, in accordance with applicable Law, the Charter and By-Laws, duly call, establish a record date for, give notice of, convene and hold an annual or special meeting of the holders of Voting Stock for the purposes of considering and taking action to obtain the Charter Amendment Stockholder Approval and, in each case, shall include in a proxy statement filed with the SEC under the Exchange Act (the “Proxy Statement”) the recommendation of the Board of Directors that the holders of Voting Stock adopt such Conversion Stockholder Approval or Charter Amendment Stockholder Approval , as applicable, which recommendation shall include that the Board of Directors has found it advisable that such holders adopt the Conversion Stockholder Approval or Charter Amendment Stockholder Approval, as applicable.

          (b) (x) as promptly as practicable after the date hereof but in no event later than September 1, 2009, with respect to the Conversion Stockholder Approval and (y) no later than August 4, 2010, with respect to the Charter Amendment Stockholder Approval, the Company shall, in each case, file a Proxy Statement with the SEC under the Exchange Act, and shall use its reasonable best efforts to have such Proxy Statement cleared by the SEC promptly. Tengelmann and its counsel will be given a reasonable opportunity to review and comment on the applicable Proxy Statement and any amendments or supplements thereto in advance of their filings; it being understood that any disclosure specifically regarding Tengelmann shall be subject to Tengelmann’s final review and approval (such approval not to be unreasonably withheld). In addition, the Company shall provide Tengelmann and its counsel a written copy of any comments the Company or its counsel may receive from the SEC or its staff with respect to the applicable Proxy Statement promptly after receipt of such comments and with copies of any written responses to such comments, other correspondence and telephonic notification of any verbal responses to such comments by the Company or its counsel. The Company agrees to use its reasonable best efforts, after consultation with Tengelmann, to respond promptly to all such comments of and requests by the SEC and to cause the applicable Proxy Statement and all required amendments and supplements thereto to be mailed to the holders entitled to vote at the stockholders’ meeting at the earliest practicable time. Tengelmann agrees to use its reasonable best efforts to respond promptly to any comments and requests by the SEC specifically directed to Tengelmann. The Company will promptly reimburse Tengelmann for all reasonable legal fees incurred by Tengelmann or on Tengelmann’s behalf in connection with the applicable Proxy Statement and any SEC comments or requests.

          SECTION 6.02. Voting Agreement. (a) Tengelmann agrees that as long as any shares of Convertible Preferred Stock are outstanding and until the Company obtains the Stockholder Approvals, at any annual or special meeting of the holders of Company Common Stock, however called, or at any adjournment thereof, and in any action by written consent of the holders of Company Common Stock, Tengelmann will, and will cause each of its Affiliates to, vote all of the Tengelmann Shares and shares of Company Common Stock now or hereafter beneficially owned by Tengelmann or an Affiliate of Tengelmann (the “Subject Securities”) in favor of the Stockholder Approvals.

40

          (b) Tengelmann hereby irrevocably grants to, and appoints the Company and any individual designated in writing by the Company, as Tengelmann’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of Tengelmann, to vote, or cause to be voted, the Subject Securities, or grant a consent or approval in respect of the Subject Securities in a manner consistent with Section 6.02(a). Tengelmann hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Tengelmann hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with Section 2-507 of the MGCL. The irrevocable proxy granted hereunder shall terminate immediately upon the date on which the Company obtains the Stockholder Approvals.

          SECTION 6.03. Petition for Bankruptcy. Stockholder agrees not to, and agrees to cause its Affiliates not to, commence an involuntary case or proceeding against the Company or any Subsidiary under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar Law or any other case or proceeding to cause the Company or any of its Subsidiaries to be adjudicated bankrupt or insolvent.

ARTICLE VII

Right of First Offer

          SECTION 7.01. First Offer Exercise Rights. (a) The Company will provide notice (a “First Offer Exercise Notice”) to Tengelmann in writing any time the Company receives written notice from an Other Investor (a “First Offer Transferor”) of such Other Investor’s intention to Transfer Equity Securities of the Company in an amount of at least 5% of its outstanding percentage interest during any twelve-month period to any one Person (other than in an Exempt Transfer). The First Offer Exercise Notice shall indicate the number of Equity Securities being offered for Transfer (the “Offered Stock”), the price at which such Other Investor proposes to Transfer the Offered Stock (the “Offer Price”) and all other material terms and conditions on which the Other Investor proposes to Transfer such Company Common Stock (including the identity of the proposed Transferees).

          (b) If Tengelmann determines to exercise its right to purchase the Offered Stock, Tengelmann will deliver a notice (the “First Offer Acceptance”) to the Company within three Trading Days following the receipt of the First Offer Exercise Notice (the “Acceptance Date”) indicating, (x) its irrevocable election to purchase all or any portion of the Offered Stock (the “Accepted Offered Stock”), (y) the closing arrangements and (z) a closing date not less than 30 nor more than 45 days following the Acceptance Date (unless a longer period of time is necessary to comply with the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, or to obtain any other consent required to effect such purchase and sale, in which case such longer period).

          (c) If Tengelmann delivers a First Offer Acceptance to the Company before 5:00 p.m. on or prior to the Acceptance Date, the Company shall deliver a written notice to the First Offer Transferor on the same date it receives such First Offer Acceptance, indicating the Company’s binding commitment to purchase the Accepted Offered Stock from the First Offer Transferor on the terms set forth in the First Offer

41

Acceptance, and Tengelmann commits to purchase the Accepted Offered Stock from the Company on the same terms set forth in such First Offer Acceptance.

          (d) If Tengelmann does not respond to the First Offer Exercise Notice within the required response time period set forth above, or elects by written notice to the Company (an “Election Notice”) not to purchase the Offered Stock, the Company shall promptly deliver such Election Notice to the First Offer Transferor and the First Offer Transferor shall then be free to Transfer the Offered Stock to any Person; provided that (x) such Transfer is consummated within 90 days after the latest of (A) the expiration of the foregoing required response time periods, or (b) the receipt by the First Offer Transferor of the foregoing Election Notice, and (y) the price at which the Equity Securities is Transferred must be equal to or higher than the Offer Price.

          SECTION 7.02. Convertible Note Purchase. (a) If Tengelmann or any of its Affiliates purchase any Convertible Notes, then within 10 days after the closing of such purchase, Tengelmann shall deliver to the Company and the Yucaipa Representative written notice indicating the principal amount of Convertible Notes acquired and the price paid per $1,000 principal amount of Convertible Notes. If any agreement effecting the purchase and sale (other than the standard assignment or transfer documents contemplated by the indentures for the Convertible Notes) is entered into to effect the purchase, such notice will also describe the material terms and conditions of such agreement. Within five Business Days following receipt of such notice, the Yucaipa Representative may elect to notify Tengelmann that it desires to purchase up to 50% of the Convertible Notes subject to the notice. The purchase price paid by the Yucaipa Representative on behalf of Yucaipa shall equal the price paid by Tengelmann per $1,000 principal amount of Convertible Notes plus 50% of any fees or expenses incurred by the Yucaipa Representative in connection with the purchase of the Convertible Notes. The Yucaipa Representative on behalf of Yucaipa, shall also agree to be bound by and assume, in a pro rata manner, any other obligations or agreements entered into by Tengelmann or its Affiliates in connection with the purchase and sale of such Convertible Notes. The Yucaipa Representative must deliver the purchase price, satisfy the other requirements herein and close its purchase of the Convertible Notes contemplated herein within fifteen Business Days following receipt of Tengelmann’s notice to the Yucaipa Representative regarding the purchase of Convertible Notes. As a condition to purchasing such Convertible Notes from Tengelmann, the Yucaipa Representative must also agree to abide by the provisions set forth in Section 7.02(b) below and agree if it fails to do so that Tengelmann will have the right to immediately repurchase any Convertible Notes acquired by the Stockholder Representative from Tengelmann or its Affiliates for the price paid by the Yucaipa Representative. If the Yucaipa Representative fails to comply with the provisions of Section 7.02(b) then this Section 7.02(a) shall immediately terminate and Tengelmann and its Affiliates shall no longer have any obligations under this Section 7.02(a).

          (b) If Yucaipa or any of its Affiliates purchase any Convertible Notes, then within 10 days after the closing of such purchase, the Yucaipa Representative shall

42

deliver to the Company and Tengelmann written notice indicating the principal amount of Convertible Notes acquired, the price paid per $1,000 principal amount of Convertible Notes. If any agreement effecting the purchase and sale (other than the standard assignment or transfer documents contemplated by the indentures for the Convertible Notes) is entered into to effect the purchase, such notice will also describe the material terms and conditions of such agreement. Within five Business Days following receipt of such notice, Tengelmann may elect to notify the Yucaipa Representative that it desires to purchase a portion of the Convertible Notes subject to the notice calculated by dividing (1) an amount equal to the aggregate number of shares of Convertible Preferred Stock owned by Tengelmann and its Affiliates at the time by (2) the aggregate number of shares of Convertible Preferred Stock outstanding at such time. The purchase price paid by Tenglemann shall equal the price paid by Yucaipa per $1,000 principal amount of Convertible Notes plus Tengelmann’s pro rata share of any fees or expenses incurred by Yucaipa in connection with the purchase of the Convertible Notes. Tengelmann shall also agree to be bound by and assume, in a pro rata manner, any other obligations or agreements entered into by Yucaipa or its Affiliates in connection with the purchase and sale of such Convertible Notes. Tengelmann must deliver the purchase price, satisfy the other requirements herein and close its purchase of the Convertible Notes contemplated herein within fifteen Business Days following receipt of the Yucaipa Representatives’ notice to Stockholder regarding the purchase of Convertible Notes.

ARTICLE VIII

Miscellaneous

          SECTION 8.01. Corporate Opportunities. (a) Certain Acknowledgments. In recognition and anticipation (i) that the Company will not be a wholly-owned Subsidiary of Tengelmann and that Tengelmann and its Affiliates (including portfolio companies) may be controlling or significant stockholders of the Company, (ii) that directors, officers or employees of any of Tengelmann or its Affiliates may serve as directors or officers of the Company, (iii) that any of Tengelmann or its Affiliates may engage (and are expected to continue to engage) in the same, similar or related lines of business as those in which the Company, directly or indirectly, may engage or other business activities that overlap with or compete with those in which the Company, directly or indirectly, may engage, (iv) that any of Tengelmann or its Affiliates may have an interest in the same areas of opportunity as the Company and any Affiliate thereof, (v) that any of Tengelmann or its Affiliates may engage in material business transactions with the Company and any Affiliate thereof, and that any of the Tengelmann or the Company may benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in the best interests of the Company that the respective rights and duties of the Company and of any of Tengelmann and its Affiliates, and the duties of any directors or officers of the Company who are also directors, officers or employees of any of Tengelmann or its Affiliates, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Company or any Affiliate thereof, on the one hand, and any Tengelmann or its Affiliates, on the other hand, and in recognition of the benefits to be derived by the Company through its continual contractual, corporate and business relations with any of Tengelmann or its Affiliates

43

(including possible service of officers and directors of any of Tengelmann or its Affiliates as officers and directors of the Company), the provisions of this Section 8.01 shall to the fullest extent permitted by Law regulate and define the interest and reasonable expectancy of the Company in connection therewith.

          (b) Certain Agreements and Transactions Permitted; Certain Duties of Certain Stockholders, Directors and Officers. The Company may from time to time enter into and perform, and cause or permit any Subsidiary or Affiliate of the Company to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with any of Tengelmann or its Affiliates pursuant to which the Company or any Affiliate thereof, on the one hand, and Tengelmann or its Affiliates, on the other hand, agree to engage in transactions of any kind or nature with each other or with any Affiliate thereof or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective Representatives (including any who are directors, officers, stockholders, employees or agents of both) to allocate opportunities between or to refer opportunities to each other. No such agreement, or the performance thereof by the Company or any of Tengelmann or its Affiliates, shall to the fullest extent permitted by Law be considered contrary to (i) any duty that any of Tengelmann or its Affiliates may owe to the Company or any Affiliate thereof or to any stockholder or other owner of an equity interest in the Company or any Affiliate thereof by reason of any of Tengelmann or its Affiliates being a controlling or significant stockholder of the Company or of any Affiliate thereof or participating in the control of the Company or of any Affiliate thereof or (ii) any duty of any director or officer of the Company or of any Affiliate thereof who is also a director, officer, employee or agent of any of Tengelmann or its Affiliates to the Company or any Affiliate thereof, or to any stockholder thereof. To the fullest extent permitted by law, none of Tengelmann or its Affiliates, as a stockholder of the Company or any Affiliate thereof, or participant in control of the Company or any Affiliate thereof, shall have or be under any duty to refrain from entering into any agreement or participating in any transaction referred to above.

          (c) Similar Activities or Lines of Tengelmann Business. Except as otherwise agreed in writing between the Company and Tengelmann or its Affiliates shall to the fullest extent permitted by Law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Company or any Affiliate thereof and (ii) doing business with any client, customer or vendor of the Company or any Affiliate thereof, and no Tengelmann nor any officer, director, employee or Affiliate of Tengelmann shall to the fullest extent permitted by Law be deemed to have breached its or his or her duties, if any, to the Company solely by reason of any of Tengelmann or its Affiliates engaging in any such activity. To the extent permitted by Law, neither the Company, any Affiliate thereof nor any of their respective stockholders shall have any rights in or to any of the activities described in the foregoing sentence or the income or profits derived therefrom. In the event that any Tengelmann or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for any of Tengelmann or its Affiliates and the Company or any Affiliate thereof, Tengelmann and its Affiliates shall to the fullest extent permitted by Law have no duty to communicate or offer such opportunity to the Company or any Affiliate thereof and shall not to the fullest

44

extent permitted by Law be liable to the Company or its stockholders for breach of any duty as a stockholder of the Company by reason of the fact that any of the Tengelmann or its Affiliates acquires or seeks such opportunity for itself, directs such opportunity to another person or entity, or otherwise does not communicate information regarding such opportunity to the Company or any Affiliate thereof.

          (d) Duties of Directors and Officers of the Company. In the event that a director or officer of the Company who is also a director, officer or employee of any Tengelmann or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for the Company or any Affiliate thereof or, any Tengelmann or its Affiliates, such director or officer shall to the fullest extent permitted by Law have fully satisfied and fulfilled his or her duty with respect to such opportunity, and the Company to the fullest extent permitted by Law acknowledges that it does not have any claim that such business opportunity constituted an opportunity that should have been presented to the Company or any Affiliate thereof, if such director or officer acts in a manner consistent with the following policy: such an opportunity offered to any person who is an officer or director of the Company, and who is also an officer, director or employee of any of Tengelmann or its Affiliates, shall belong to Tengelmann or its Affiliates, unless such opportunity was offered to such person in his or her capacity as a director, officer or employee of the Company.

          (e) This Section 8.01 is also intended to apply to any Subsidiaries of the Company. In addition, any references to a director of Tengelmann in this Section 8.01 shall include any Person performing a similar function. The Company represents, warrants and agrees that it and its Subsidiaries and their respective boards of directors have not adopted and will not adopt any codes of conduct or ethics or other policies inconsistent with this Section 8.01.

          SECTION 8.02. Adjustments. References to numbers of shares and to sums of money contained herein will be adjusted to account for any reclassification, exchange, substitution, combination, stock split or reverse stock split of the shares.

          SECTION 8.03. Changes in Tengelmann Percentage Interest Attributable to Issuances of the Company’s Equity Securities. (a) To the extent that any decrease in the Tengelmann Percentage Interest is attributable to issuances of Equity Securities by the Company (as opposed to dispositions of Equity Securities of the Company by Tengelmann or its Affiliates) from March 4, 2007 to, but not including, the date hereof, such decrease will not be taken into account for purposes of this Agreement unless such decrease was attributable to issuance of Equity Securities by the Company (x) in connection with a Business Combination by the Company or other acquisition by the Company, other than the Merger, approved by Tengelmann in accordance with Section 2.04(a)(i) or 2.04(b)(i), (y) for purposes of Article IV only, in connection with which Tengelmann was entitled to exercise its rights under Article IV hereof or (z) on or about December 3, 2007 in connection with the Merger, as merger consideration, but not in any event by any warrants or options issued in connection with the Merger.

45

          (b) Tengelmann represents that Schedule II sets forth, as of the date of this Agreement, Tengelmann’s beneficial ownership of Equity Securities of the Company (including Company Common Stock and Convertible Preferred Stock) and the calculation of the Tengelmann Percentage Interest.

          SECTION 8.04. Notices. All notices, requests, claims, demands and other communications under this Agreement will be in writing and will be deemed given (i) when delivered, if delivered in person, (ii) when sent by facsimile (provided the facsimile is promptly confirmed by telephone confirmation thereof), (iii) when sent by email (provided the email is promptly confirmed by telephone confirmation thereof) or (iv) two business days following sending by overnight delivery by an internationally recognized overnight courier, in each case to the respective parties at the following addresses (or at such other address for a party as will be specified in a notice given in accordance with this Section 8.04):

          (a) if to the Company:

The Great Atlantic & Pacific Tea Company, Inc.
Two Paragon Drive
Montvale, New Jersey 07645
Attn: Allan Richards, Esq.
Fax: (201) 571-4106
Phone: 201-573-9700
Email: richarda@aptea.com

          with a copy (which shall not constitute notice to the Company) to:

Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attn: Patrick J. Dooley, Esq.
Fax: (212) 872-1002
Email: pdooley@akingump.com

and,

Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Fax: 212-269-5420
Phone: 212-701-3215
Email: korce@cahill.com
Attention: Kenneth W. Orce, Esq.

and,

46

McGuireWoods LLP
7 Saint Paul St., Suite 1000
Baltimore, MD 21202-1671
Fax: 410.659.4535
Phone: 410.659.4419
Email: cmartin@mcguirewoods.com
Attention: Cecil E. Martin, III, Esq.

          (b) if to Tengelmann:

Wissollstrasse 5-43
D-45478 Mülheim an der Ruhr
GERMANY
Fax: +49 (0)208 5806 6585
Phone: +49 (0)208 5806 6382
Email: HaubC@APTEA.com,
            fhartmann@uz.tengelmann.de
Attention: Mr. Christian Haub
                 Dr. Frank Hartmann

          with a copy (which shall not constitute notice to Tengelmann) to:

Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
Fax: 212-474-3700
Phone: 212-474-1000
Email: sjebejian@cravath.com
            lizann.eisen@cravath.com
Attention: Sarkis Jebejian, Esq.
                 LizabethAnn Eisen, Esq.

          SECTION 8.05. Reasonable Efforts; Further Actions. The parties hereto each will use commercially reasonable efforts to take or cause to be taken all action and to do or cause to be done all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable.

          SECTION 8.06. Consents. The parties hereto will cooperate, with each other in filing any necessary applications, reports or other documents with, giving any notices to, and seeking any consents from, all regulatory bodies and all Governmental Entities and all Third Parties as may be required in connection with the consummation of the transactions contemplated by this Agreement.

          SECTION 8.07. Fees and Expenses. (a) Following the date hereof, the Company and Tengelmann agree, subject to any restrictions under applicable Law, to negotiate in good faith to enter into a services agreement whereby Tengelmann would

47

provide transactional and other services to the Company as requested from time to time in exchange for reasonable compensation to Tengelmann as agreed by the parties.

          (b) The Company will pay its own costs and expenses, and will reimburse Tengelmann for its reasonable out-of-pocket costs and expenses, incurred in connection with (a) this Agreement and (b) subject to authorization of Tengelmann’s activities by the Other Directors, any purchase or sale of more than 15% of the Company Common Stock outstanding on the date of such purchase or sale or Business Combination or other strategic transaction or capital transaction involving the Company, in each case including the reasonable fees and expenses of counsel, irrespective of when incurred.

          SECTION 8.08. Access to Information; Financial Statements. (a) Upon reasonable prior written notice, the Company will, and will cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, afford Tengelmann and its Representatives reasonable access, consistent with applicable Law, to its and its Subsidiaries’ Representatives, and to the books and records of the Company and its Subsidiaries, and shall furnish Tengelmann with financial, operating and other data and information of the Company and its Subsidiaries as Tengelmann may from time to time reasonably request in writing, including to enable Tengelmann to prepare its financial statements and in connection with its financial reporting generally. Neither the Company nor its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or its Subsidiaries or contravene any Law (including antitrust Laws).

          (b) As soon as reasonably practicable following the end of each fiscal quarter and fiscal year, the Company will furnish to Tengelmann the consolidated financial statements of the Company (including providing draft statements as such statements become available and, with respect to fiscal years, audit reports as such reports become available). The Company shall use its reasonable best efforts to assist Tengelmann with respect to preparing Tengelmann’s financial statements and in connection with Tengelmann’s financial reporting generally, in a manner consistent with past practice. The Company will cooperate, in a manner consistent with past practice, with and assist Tengelmann in the translation of the Company’s financial statements in order to conform such financial statements to applicable German and/or international accounting standards and shall otherwise provide Tengelmann with access to information necessary in connection with such financial statements and financial reporting.

          SECTION 8.09. Amendments; Waivers. (a) No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed, in the case of an amendment, by the parties hereto or, in the case of a waiver, by the party against whom the waiver is to be effective.

          (b) The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights nor will any single or partial exercise by any party to this Agreement of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under

48

this Agreement. The rights and remedies herein provided will be cumulative and not exclusive of any rights or remedies provided by Law or otherwise.

          SECTION 8.10. Interpretation. When a reference is made in this Agreement to an Article, a Section, a subsection or a Schedule, such reference will be to an Article, a Section, a subsection or a Schedule of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” and “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “date hereof” will refer to the date of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” will mean the degree to which a subject or other thing extends, and such phrase will not mean simply “if.” The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, rule or statute defined or referred to herein or in any agreement, instrument, rule or statute that is referred to herein means such agreement, instrument, rule or statute as from time to time amended, modified or supplemented. References to a Person are also to its permitted successors and assigns.

          SECTION 8.11. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Without limiting the generality of the foregoing, the invalidity, illegality or unenforceability of the Tengelmann Mirror Vote provisions hereof will be deemed to materially adversely affect the economic and legal substance of the transactions contemplated hereby in the event Tengelmann ceases to comply therewith. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the purpose of this Agreement is fulfilled to the fullest extent possible.

          SECTION 8.12. Counterparts. This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

          SECTION 8.13. Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and is not intended to and does not confer upon any Person other than the parties any rights or remedies.

49

          SECTION 8.14. Governing Law. Except to the extent specifically required by the MGCL, this Agreement will be governed by, and construed in accordance with, the Laws of the State of New York, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof. The parties declare that it is their intention that this Agreement will be regarded as made under the Laws of the State of New York and that the Laws of the State of New York will be applied in interpreting its provisions in all cases where legal interpretation will be required, except to the extent that the MGCL is specifically required by such act to govern the interpretation of this Agreement.

          SECTION 8.15. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement will be assigned, in whole or in part, by any of the parties without the prior written consent of the other parties hereto, except as provided in Section 3.14. Any purported assignment without such prior written consent will be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

          SECTION 8.16. Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Supreme Court of the State of New York sitting in New York County or the United States District Court of the Southern District of New York, or in each case any appellate court thereof, without the necessity of proving the inadequacy of money damages as a remedy, this being in addition to any other remedy to which they are entitled at Law or in equity. In addition, each of the parties: (a) irrevocably and unconditionally consents to submit itself and its property to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and in each case any appellate court thereof, in the event any dispute arises out of this Agreement, (b) agrees that it will not attempt to deny or defeat such exclusive jurisdiction by motion or other request for leave from any such court, (c) irrevocably and unconditionally waives (and agrees not to plead or claim) any objection to the laying of venue, or the defense of an inconvenient forum to the maintenance, of any action, suit or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, (d) agrees that it will not bring any action arising out of or relating to this Agreement in any court other than the Supreme Court of the State of New York sitting in New York County or the United States District Court of the Southern District of New York, or in each case any appellate court thereof, and (e) waives any right to trial by jury with respect to any action related to or arising out of this Agreement, or for recognition or enforcement of any judgment. Each of the parties hereto agrees that a final nonappealable judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of the parties to this Agreement irrevocably consents to service of process in the manner provided for delivering notices

50

in Section 8.04. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

          SECTION 8.17. Automatic Termination. (a) Notwithstanding anything to the contrary contained in this Agreement, this Agreement will automatically terminate upon the earlier to occur of (i) the percentage of Voting Power in the Company (determined on the basis of the number of outstanding shares of Voting Stock of the Company as set forth in the most recent SEC filing of the Company prior to such date that contained such information) that is beneficially owned by Tengelmann and its Affiliates equaling 100% or (ii) such percentage equaling less than 10%. For purposes of clarity, and notwithstanding anything to the contrary herein, no hedging transaction will be deemed to reduce the Tengelmann Percentage Interest, result in a termination of this Agreement or result in a loss of rights under Article II or any other provision hereof.

          (b) Survival. In the event that this Agreement will terminate, all provisions of this Agreement will terminate and will be void, except (i) Article III will survive any such termination until Tengelmann and its Affiliates no longer hold Registrable Securities and (ii) Articles I and VIII will survive any such termination indefinitely. Nothing in this Section 8.17 will be deemed to release any party from any liability for any willful and material breach of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

          SECTION 8.18. Confidentiality. (a) Tengelmann agrees to maintain, and shall cause its Representatives to maintain, the confidentiality of all material non-public information obtained by it from the Company or any of its Subsidiaries or any of their respective Representatives, and not to use such information for any purpose other (i) than the evaluation of its investment in the Company, (ii) the protection or Transfer of its investment in the Company, (iii) the exercise of any of its respective rights under this Agreement and (iv) the exercise by the Tengelmann Directors of their duties as Directors.

          (b) Notwithstanding the foregoing, the confidentiality obligations of Section 8.18(a) will not apply to information obtained other than in violation of this Agreement:

     (i) which Tengelmann or any of its Representatives is required to disclose by judicial or administrative process, or by other requirements of applicable Law or regulation or any governmental authority (including any applicable rule, regulation or order of a self-governing authority, such as the NYSE); provided that, where and to the extent practicable, the disclosing party (A) gives the other party reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (B) cooperates with such party in attempting to obtain such protective measures;

51

     (ii) which becomes available to the public other than as a result of a breach of Section 8.18(a); or

     (iii) which has been provided to Tengelmann or any of its Representatives by a Third Party who obtained such information other than from any such Person or other than as a result of a breach of Section 8.18(a).

          SECTION 8.19. No Liability of Partners. Notwithstanding anything that may be expressed or implied in this Agreement, the Company acknowledges and agrees that (i) notwithstanding that Tengelmann may be a partnership, no recourse hereunder or under any documents or instruments delivered by Tengelmann in connection herewith may be had against any officer, agent or employee of Tengelmann or any partner, member or stockholder of Tengelmann or any director, officer, employee, partner, affiliate, member, manager, stockholder, assignee or representative of the foregoing (any such Person or entity, a “Representative”), whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law and (ii) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any Representative under this Agreement or any documents or instruments delivered in connection herewith or for any claim based on, in respect of or by reason of such obligations or by their creation.

[Signature page to follow.]

          IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Stockholder Agreement as of the day and year first above written.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
By:	/s/ Brenda Galgano
	Name:	Brenda Galgano
	Title:	Senior Vice President, Chief Financial Officer

TENGELMANN
WARENHANDELSGESELLSCHAFT KG,
By:	Tengelmann Verwaltungs-und
	Beteiligungs GmbH, as Managing Partner
	By:	/s/ Christian W. E. Haub Name: Christian W. E. Haub
		Title: Managing Director

Signature Page to Stockholder Agreement

SCHEDULE I

Investment Banks

1.	J.P. Morgan
2.	Morgan Stanley
3.	UBS Securities LLC
4.	Goldman Sachs & Co.
5.	Banc of America Securities LLC
6.	Barclays

SCHEDULE II

Tengelmann’s Equity Securities and Tengelmann Percentage Interest Calculation

Beneficial Ownership

	Equity Securities
Tengelmann Warenhandelsgesellschaft KG	22,495,371 shares of Common Stock
Karl-Erivan Haub	13,000 shares of Common Stock
Christian Haub	281,351 shares of Common Stock
Emil Capital Partners, LLC	1,290,393 shares of Common Stock

Tengelmann Percentage Interest

41,602,638	Shares of Common Stock outstanding as of March 3, 2007
6,781,067	Shares of Common Stock issued pursuant to Merger
189,618	Options exercised by Christian Haub
35,000,000	Convertible Preferred Stock (as converted)
83,573,323

Beneficial ownership of Tengelmann and its affiliates:	24,080,115
Tengelmann Convertible Preferred Stock (as converted):	12,000,000
	36,080,115

Tengelmann Percentage Interest : 43.17%

Exhibit A

Amended and Restated By-Laws of the Company

EX-10.2

EXHIBIT 10.2

EXECUTION COPY

AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT

by and among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,

STOCKHOLDERS,

and

YUCAIPA AMERICAN ALLIANCE FUND II, LLC, AS STOCKHOLDER
REPRESENTATIVE

Dated as of August 4, 2009

Table of Contents

	Page
ARTICLE I
Definitions
SECTION 1.01. Definitions		2
ARTICLE II
Corporate Governance; Information Rights and Stockholder Representative
SECTION 2.01. Composition of the Board of Directors		13
SECTION 2.02. Information Rights		17
SECTION 2.03. Committees		17
SECTION 2.04. Solicitation of Shares		18
SECTION 2.05. Approval Required for Certain Actions		18
SECTION 2.06. Stockholder Representative		21
SECTION 2.07. VCOC Information Rights/Management Rights		21
SECTION 2.08. Labor Consultant		22
SECTION 2.09. Charter and By-Laws		23
SECTION 2.10. Change in Law		23
ARTICLE III
Registration Rights
SECTION 3.01. Registration		23
SECTION 3.02. Piggyback Registration		26
SECTION 3.03. Reduction of Underwritten Offering		26
SECTION 3.04. Registration Procedures		27
SECTION 3.05. Conditions to Offerings		31
SECTION 3.06. Blackout Period		32
SECTION 3.07. Registration Expenses		33
SECTION 3.08. Indemnification; Contribution		33
SECTION 3.09. Lockup		36
SECTION 3.10. Termination of Registration Rights		37
SECTION 3.11. Specific Performance		37
SECTION 3.12. Other Registration Rights		37
SECTION 3.13. Rule 144		37
SECTION 3.14. Transfer of Registration Rights		38
ARTICLE IV
Preemptive Rights
SECTION 4.01. Rights To Purchase New Equity Securities		38

i

	Page
ARTICLE V
Standstill, Acquisitions of Securities and Other Matters
SECTION 5.01. Acquisitions of Common Stock		39
SECTION 5.02. No Participation in a Group or Solicitation of Proxies		40
SECTION 5.03. Convertible Note Purchase		41
ARTICLE VI
Restrictions on Transferability of Securities
SECTION 6.01. General		42
SECTION 6.02. Hedging Transactions		44
SECTION 6.03. No Transfer to a Grocery Retailer		44
SECTION 6.04. Improper Transfer or Encumbrance		44
SECTION 6.05. Tag-Along Rights		44
SECTION 6.06. Right of First Offer		46
SECTION 6.07. Restrictive Legend		47
ARTICLE VII
Covenants
SECTION 7.01. Stockholder Approvals		48
SECTION 7.02. Voting Agreement		49
SECTION 7.03. Petition for Bankruptcy		50
ARTICLE VIII
Miscellaneous
SECTION 8.01. Certain Opportunities		50
SECTION 8.02. Adjustments		52
SECTION 8.03. Notices		52
SECTION 8.04. Reasonable Efforts; Further Actions		53
SECTION 8.05. Consents		54
SECTION 8.06. Expenses		54
SECTION 8.07. Amendments; Waivers		54
SECTION 8.08. Interpretation		54
SECTION 8.09. Severability		54
SECTION 8.10. Counterparts		55
SECTION 8.11. Entire Agreement; No Third-Party Beneficiaries		55
SECTION 8.12. Governing Law		55
SECTION 8.13. Assignment		55
SECTION 8.14. Enforcement		55
SECTION 8.15. Termination; Survival		56

ii

	Page
SECTION 8.16. Confidentiality		56
SECTION 8.17. No Joint and Several Liability		57
SECTION 8.18. No Liability of Partners		57

iii

     AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT dated as of August 4, 2009 (this “Agreement”), among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), YUCAIPA CORPORATE INITIATIVES FUND I, LP, YUCAIPA AMERICAN ALLIANCE FUND I, LP, YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP, YUCAIPA AMERICAN ALLIANCE FUND II, LP, and YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP (collectively, “Stockholder”) and YUCAIPA AMERICAN ALLIANCE FUND II, LLC, as the representative of Stockholder (the “Stockholder Representative”) (which is a party to this Agreement solely with respect to Section 2.06 hereof).

          WHEREAS, the Company, Sand Merger Corp., a Delaware corporation and a wholly owned Subsidiary of the Company, and Pathmark Stores, Inc., a Delaware corporation (“Pathmark”), entered into a Merger Agreement, dated as of March 4, 2007, pursuant to which the Company acquired Pathmark (the “Merger”);

          WHEREAS, pursuant to the Merger, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP (the “Existing Stockholders”) were issued shares of Company Common Stock and granted Series B Warrants (capitalized terms used in this Agreement shall have the meanings given to such terms in Article I) exercisable for shares of Company Common Stock;

          WHEREAS, the Series A Warrants issued to the Existing Stockholders by the Company as part of the Merger were exercised on May 7, 2008 and are no longer outstanding;

          WHEREAS, in connection with the Merger, the Existing Stockholders entered into that certain Yucaipa Stockholder Agreement dated as of March 4, 2007 (the “Existing Agreement”), to establish certain terms and conditions concerning the ownership, acquisition and disposition of Equity Securities of the Company and certain other matters;

          WHEREAS, the Company and Stockholder have entered into an investment agreement dated as of July 23, 2009 (the “Investment Agreement”), pursuant to which the Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP (the “New Stockholders”) are purchasing from the Company, and the Company is issuing and selling to the New Stockholders (the “Transaction”), subject to the terms and conditions set forth therein, an aggregate of 115,000 shares of the Convertible Preferred Stock (together with any shares of the Convertible Preferred Stock issued to the New Stockholders pursuant to the Convertible Preferred Stock PIK Dividend Provision, the “Stockholder Convertible Preferred Stock”);

1

          WHEREAS, the Company and Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub and Georg Rudolf Otto Haub (collectively, the “Tengelmann Partners”) entered into an investment agreement dated as of July 23, 2009, pursuant to which the Tengelmann Partners are purchasing from the Company, and the Company is issuing and selling to the Tengelmann Partners, subject to the terms and conditions set forth therein, an aggregate of 60,000 shares of Convertible Preferred Stock (the “Tengelmann Shares”), and immediately following such purchase, the Tengelmann Partners shall contribute the Tengelmann Shares to Tengelmann; and

          WHEREAS, it is a condition to the closing under the Investment Agreement that the parties hereto amend and restate in its entirety the Existing Agreement as provided herein.

          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I

Definitions

          SECTION 1.01. Definitions. (a) As used in this Agreement, the following terms will have the following meanings:

          “13D Group” means any group of Persons formed for the purpose of acquiring, holding, voting or disposing of Voting Stock of the Company that would be required under Section 13(d) of the Exchange Act (as in effect on, and based on legal interpretations thereof existing on, the date hereof) to file a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Stock of the Company representing more than 5% of any class of Voting Stock of the Company (whether or not registered pursuant to Section 12 of the Exchange Act) then outstanding.

          “2000 Warrants” means the warrants issued by Pathmark pursuant to the Warrant Agreement dated as of September 19, 2000, between Pathmark and ChaseMellon Shareholder Services, LLC.

          “2011 Convertible Notes” means the Company’s 5.125% Convertible Senior Notes due June 15, 2011.

          “2012 Convertible Notes” means the Company’s 6.75% Convertible Senior Notes due December 15, 2012.

          “ABL Credit Agreement” means the Company’s five-year amended and restated asset-based senior secured revolving credit agreement, dated as of December 27, 2007, among the Company, the other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of

2

America Securities LLC, as lead arranger (as amended thereafter in accordance with the terms hereof, if applicable).

          “Acquisition” means (i) any direct or indirect acquisition or purchase, in a single transaction or a series of transactions, of (A) 50% or more (based on the Fair Market Value thereof) of the assets (including capital stock of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole, or (B) 50% or more of the outstanding shares of Company Common Stock by a Third Party or 13D Group except a transaction pursuant to which the stockholders of the Company prior to such transaction would continue to own, directly or indirectly, 50% or more of the Voting Power of the Voting Stock of any direct or indirect parent of the Company; (ii) any tender offer or exchange offer that, if consummated, would result in any Third Party or 13D Group owning, directly or indirectly, 50% or more of the outstanding shares of Company Common Stock; or (iii) any merger, consolidation, Business Combination, recapitalization, liquidation, dissolution, binding share exchange or similar transaction involving the Company or its stockholders pursuant to which any Third Party or 13D Group (or the stockholders or other equity owners of any Third Party or members of a 13D Group) would own, directly or indirectly, 50% or more of any class of Equity Securities (other than debt securities) of the Company or of the surviving entity in a merger or the resulting direct or indirect parent of the Company or such surviving entity.

          “Acquisition Proposal” means any inquiry, proposal or offer relating to an Acquisition.

          An “Affiliate” of any Person means another Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. The Company and its Subsidiaries shall not be deemed Affiliates of Stockholder for any reason under this Agreement.

          “Amended and Restated Tengelmann Stockholder Agreement” means the Amended and Restated Tengelmann Stockholder Agreement, dated as of the date hereof, between the Company and Tengelmann.

          “Audit and Finance Committee” means the Audit and Finance Committee of the Board of Directors or any successor committee thereto.

          “Authorized Capital Stock Charter Amendment” means an amendment to the Charter increasing the number of authorized shares of Company Common Stock by up to 100,000,000 shares.

          “Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

          “beneficial owner” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the date of this Agreement, but without reference to whether or not an Equity Security is exercisable or convertible for Voting Stock in less than 60 days. The term “beneficially own” has a meaning correlative to the foregoing.

3

          “Board” or “Board of Directors” means the board of directors of the Company.

          “Business Combination” with respect to any Person means any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation) of all or substantially all of the assets of such Person and its Subsidiaries, taken as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the consummation of which would result in any other Person (or, in the case of a merger or consolidation, the shareholders of such other Person) becoming, directly or indirectly, the beneficial owner of more than 50% of the Voting Stock or Equity Securities (other than debt securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number of shares).

          “Business Day” means any day on which banks are not required or authorized by law to close in New York, New York.

          “By-Laws” means the By-Laws of the Company, as in effect from time to time.

          “Charter” means the Articles of Amendment and Restatement of the Articles of Incorporation of the Company, as in effect from time to time.

          “Charter Amendment Stockholder Approval” means the approval of the Authorized Capital Stock Charter Amendment, by the affirmative vote of holders entitled to cast two-thirds of the votes entitled to be cast on the matter.

          “Closing” means the closing of the Transaction.

          “Closing Date” means the date of the Closing.

          “Company Common Stock” means the common stock of the Company, par value $1.00 per share, and any other common stock of the Company that may be issued from time to time.

          “Conversion Date” means any date on which shares of Convertible Preferred Stock are converted into shares of Company Common Stock subject to the terms and conditions of the Convertible Preferred Articles Supplementary.

          “Conversion Stockholder Approval” means the approval, as required pursuant to NYSE Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with the Common Stock becoming entitled to cast the full number of votes on an as-converted basis and (y) the issuance of the full amount of Company Common Stock upon the exercise of conversion rights of the Convertible Preferred Stock, in each case, by the affirmative vote of holders of a majority of the votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock entitled to vote on such proposal.

4

          “Convertible Notes” means the 2011 Convertible Notes and the 2012 Convertible Notes.

          “Convertible Preferred Articles Supplementary” means the articles supplementary filed with the Maryland State Department of Assessments and Taxation on August 3, 2009, which govern the designation, voting powers, preferences, conversions and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Convertible Preferred Stock.

          “Convertible Preferred Stock” means the shares of the Company’s 8.00% Convertible Preferred Stock redeemable August 1, 2016, designated in four separate series as “8% Cumulative Convertible Preferred Stock, Series A-T”, “8% Cumulative Convertible Preferred Stock, Series A-Y”, “8% Cumulative Convertible Preferred Stock, Series B-T” and “8% Cumulative Convertible Preferred Stock, Series B-Y”.

          “Convertible Preferred Stock PIK Dividend Provision” means the Company’s ability to issue Convertible Preferred Stock as dividends pursuant to the Convertible Preferred Articles Supplementary.

          “Convertible Underlying Securities” means the shares of Company Common Stock issuable upon the conversion of any Convertible Preferred Stock.

          “Director” means a member of the Board of Directors.

          “Discriminatory Transaction” means any corporate action (other than those taken pursuant to the express terms of this Agreement) that would (i) impose material limitations on the legal rights of Stockholder as a holder of a class of Voting Stock of the Company (including any action that would impose material restrictions without lawful exemption on Stockholder that are based upon the size of security holding, the business in which a security holder is engaged or other considerations applicable to Stockholder and not to holders of the same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Stockholder), which limitations are disproportionately (i.e., other than in a proportionate manner consistent with Stockholder’s pro rata ownership of such class of Voting Stock) borne by Stockholder as opposed to other holders of such class of Voting Stock, or (ii) deny any material benefit to Stockholder proportionately as a holder of any class of Voting Stock of the Company that is made available to other holders of that same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Stockholder.

          “Encumbrance” means any security interest, pledge, mortgage, lien, or other material encumbrance, except for any restrictions arising under any applicable securities Laws.

          “Equity Security” means (i) any common stock or other Voting Stock, (ii) any securities convertible into or exchangeable for common stock or other Voting

5

Stock, including the Series B Warrants or (iii) any options, rights or warrants (or any similar securities) to acquire common stock or other Voting Stock.

          “Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

          “Executive Committee” means the Executive Committee of the Board of Directors or any successor committee thereto.

          “Exempt Transfer” means (i) a Transfer to a Permitted Transferee, (ii) any exercise of tag-along rights pursuant to Section 6.05, (iii) any Transfer of Registrable Securities pursuant to a Registration Statement pursuant to Article III, (iv) any Acquisition, Business Combination or similar transaction approved by the Board of Directors, or (v) any Transfer of Equity Securities that were held by Stockholder prior to the date hereof.

          “Existing Registrable Securities” means all shares of Company Common Stock beneficially owned by Stockholder immediately prior to the Closing or purchased by Stockholder upon exercise of the Series B Warrants and beneficially owned at any time by Stockholder.

          “Fair Market Value” means (i) with respect to cash or cash equivalents, the amount of such cash or cash equivalents, (ii) with respect to any security listed on a national securities exchange or otherwise traded on any national securities exchange or other trading system, the average of the closing prices of such security as reported on such exchange or trading system for each of the five Trading Days prior to the date of determination and (iii) with respect to property other than cash or securities of the type described in clauses (i) and (ii), the cash price at which a willing seller would sell and a willing buyer would buy such property in an arm’s-length negotiated transaction without time constraints as determined in good faith by the Board.

          “GAAP” means U.S. generally accepted accounting principles, as in effect at the time such term is relevant.

          “General Partner” means, with respect to a specified Person, the general partner or managing member, as applicable, of such Person.

          “Governance Committee” means the Governance Committee of the Board of Directors or any successor committee thereto.

          “Governmental Entity” means any transnational, Federal, state, local or foreign government, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any national securities exchange or national quotation system on which securities issued by the Company or any of its Subsidiaries are listed or quoted.

          “Grocery Retailer” means (i) any Person (including such Person’s direct and indirect Subsidiaries, taken as a whole) that received at least 25% of its consolidated

6

revenues for the most recently completed fiscal year of such Person from retailing grocery products, (ii) any Person that owns, directly or indirectly, at least 20% of the equity or Voting Power of any Person identified in the preceding clause (i), or (iii) any Subsidiary of any Person identified in the preceding clause (ii).

          “Human Resources and Compensation Committee” means the Human Resources and Compensation Committee of the Board of Directors or any successor committee thereto.

          “Indebtedness” means, with respect to any Person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person under interest rate or currency hedging transactions (valued at the termination value thereof), (D) all letters of credit issued for the account of such Person and (E) obligations of such Person to pay rent or other amounts under any lease of real property or personal property, which obligations are required to be classified as capital leases in accordance with GAAP; (ii) indebtedness for borrowed money of any other Person guaranteed, directly or indirectly, in any manner by such Person; and (iii) indebtedness of the type described in clause (i) above secured by any Encumbrance upon property owned by such Person, even though such Person has not in any manner become liable for the payment of such indebtedness; provided, however, that Indebtedness shall not be deemed to include (i) any accounts payable or trade payables incurred in the ordinary course of business of such Person, or (ii) any intercompany indebtedness between any Person and any wholly owned Subsidiary of such Person or between any wholly owned Subsidiaries of such Person.

          “Independent Director” means a Director of the Company who qualifies as an “independent director” of the Company under (a) NYSE Rule 303A.02 (or any successor provision thereto) or (b) if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted.

          “Issuer FWP” has the meaning assigned to “issuer free writing prospectus” in Rule 433 under the Securities Act.

          “Labor Term” means the period from the date hereof until the earlier of (i) the third anniversary of the date hereof and (ii) the first date on which the Stockholder Percentage Interest is less than 10%; provided, however, that in each case, the Term shall be extended until the latest maturity, expiration or other termination date of any written contract in which the Labor Consultant was substantially involved in the negotiation related thereto during the course of the Term, without giving effect to the proviso herein.

          “Law” means any law, treaty, statute, ordinance, code, rule, regulation, judgment, decree, order, writ, award, injunction, authorization or determination enacted, entered, promulgated, enforced or issued by any Governmental Entity.

          “Lenders” means those lenders party to the ABL Credit Agreement.

          “Maturity Date” means August 1, 2016.

7

          “MGCL” means the Maryland General Corporation Law, codified in Md. Code Ann., Corps. & Ass’ns, Titles 1-3, as may be in effect from time to time.

          “NYSE” means the New York Stock Exchange.

          “Other Directors” means any Director who is not a Stockholder Director.

          “Other Investors” means any holder of Convertible Preferred Stock with which the Company has or enters into a stockholder agreement (other than Stockholder and its Affiliates).

          “Partner” means any partner of such Person.

          “Permitted Transferee” means, with respect to a specified Person, any controlled Affiliate of such Person or any Partner of such Person and with respect to each Stockholder, any controlled Affiliate of either Ronald W. Burkle or The Yucaipa Companies, LLC.

          “Person” means any individual, firm, corporation, partnership, limited partnership, company, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated organization, syndicate or other entity, foreign or domestic.

          “Piggyback Percentage” of Tengelmann or Stockholder, as applicable, means the result of dividing (i) the product of the number of shares requested to be registered by such Person (including, in the case of Stockholder, shares issuable under the Series B Warrants) and the number of shares beneficially owned by such Person as of the date of any notice given pursuant to Section 3.02 or, if not practicably obtainable as of such date, as of the most recent date practicably obtainable (excluding, in the case of Stockholder, shares issuable under the Series B Warrants to the extent not requested to be registered) (in the case of Tengelmann, the “Tengelmann Amount” and, in the case of Stockholder, the “Stockholder Amount”), by (ii) the sum of the Tengelmann Amount and the Stockholder Amount.

          “Public Director” means a Director who is not a Stockholder Director or a Tengelmann Director.

          “Public Equity Holders” means holders of Equity Securities of the Company, other than (i) Tengelmann and its Affiliates and any Person included in any 13D Group with Tengelmann or any of its Affiliates and (ii) Yucaipa and its Affiliates and any Person included in any 13D Group with Yucaipa or any of its Affiliates.

          “Registrable Securities” means (i) all shares of Company Common Stock beneficially owned by Stockholder on the date hereof or purchased by Stockholder upon exercise of the Series B Warrants and beneficially owned at any time by Stockholder, (ii) any Convertible Underlying Securities beneficially owned by Stockholder and (iii) any securities issued or issuable with respect to any such shares of Company Common Stock by way of a stock dividend or other similar distribution or stock split, or in connection

8

with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided that such securities shall cease to be Registrable Securities when (A) Stockholder Transfers such securities to any Person other than an Affiliate of Stockholder or a Registration Rights Transferee or (B) Stockholder or Registration Rights Transferee, as applicable, has beneficial ownership (including Company Common Stock issuable upon exercise of the Series B Warrants) of less than 1% of the outstanding Company Common Stock.

          “Registration Statement” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

          “Rule 144” means Rule 144 promulgated under the Security Act or any similar rule or regulation hereafter adopted by the SEC as a replacement thereto having substantially the same effect as such Rule.

          “SEC” means the U.S. Securities and Exchange Commission.

          “Securities Act” means the Securities Act of 1933, and the rules and regulations promulgated thereunder.

          “Series B Warrants” means the Series B warrants issued as part of the Merger by the Company to the Existing Stockholders, which entitled the Existing Stockholders to purchase 6,965,858 shares of common stock of the Company at an exercise price of $32.40 per share which will expire on June 9, 2015, as such share amount and exercise price may be adjusted from time to time in accordance with the terms of such warrants in effect on the date hereof.

          “Standing Committee” means each of the following committees: the Audit and Finance Committee; the Human Resources and Compensation Committee; the Governance Committee; and the Executive Committee.

          “Standstill Expiration Date” means the earliest of (i) the five year anniversary of the date hereof; (ii) such date as the Board of Directors publicly announces its intention to solicit an Acquisition Proposal, or publicly approves, accepts, authorizes or recommends to the Company stockholders the approval of an Acquisition Proposal; (iii) such date as the Company or any Affiliate thereof (other than the parties hereto or any of their Affiliates) has entered into a binding letter of intent, binding agreement in principle or definitive agreement with any party agreeing to an Acquisition Proposal; (iv) such date that the Stockholder Percentage Interest is less than 10%; (v) such date that any Third Party or 13D Group has acquired beneficial ownership of outstanding Equity Securities of the Company (other than debt securities) in an amount that exceeds Tengelmann’s beneficial ownership of Equity Securities (other than debt securities) of the Company; (vi) such date that Tengelmann and its Affiliates beneficially own, in the

9

aggregate, less than 20% of the Voting Power of Equity Securities of the Company; or (vii) such earlier date that this Agreement is terminated pursuant to Section 8.15.

          “Stockholder Approvals” means the Conversion Stockholder Approval and the Charter Amendment Stockholder Approval.

          “Stockholder Director” means a Director either (i) elected by Stockholder in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Stockholder and actually elected or appointed pursuant to the provisions of Section 2.01.

          “Stockholder Percentage Interest” means, as of any date of determination, the percentage of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC filing of the Company prior to such date that contained such information) that is beneficially owned by Stockholder and its controlled Affiliates as of such date (including any Equity Securities owned prior to the date of this Agreement); provided, however, that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of “beneficial ownership” or Voting Power, all determinations shall be made as if Stockholder beneficially owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.

          “Subsidiary” of any Person means another Person (i) in which such first Person’s ownership of Voting Stock, other voting ownership or voting partnership interests is in an amount sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which are beneficially owned directly or indirectly by such first Person) or (ii) which is required to be consolidated with such Person under GAAP.

          “Tengelmann” means Tengelmann Warenhandelsgesellschaft KG, a partnership organized under the laws of the Federal Republic of Germany.

          “Tengelmann Director” means a Director either (i) elected by Tengelmann in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Tengelmann and actually elected or appointed pursuant to Section 2.01 of the Amended and Restated Tengelmann Stockholder Agreement.

          “Third Party” means any Person other than the Company, Stockholder, Tengelmann or any of their respective controlled Affiliates.

          “Trading Day” means (i) for so long as Company Common Stock is listed or admitted for trading on the NYSE or another national securities exchange, a day on which the NYSE or such other national securities exchange is open for business and trading in Company Common Stock is not suspended or restricted or (ii) if Company Common Stock ceases to be so listed, any day other than a Saturday or Sunday or a day

10

on which banking institutions in the State of New York are authorized or obligated by Law or executive order to close.

          “Transfer” means, with respect to any security, any sale, assignment, transfer or distribution, whether voluntarily or by operation of Law, whether in a single transaction or a series of related transactions and whether to a single Person or a 13D Group. The terms “Transferred”, “Transferring”, “Transferor”, “Transferee” and “Transferable” have meanings correlative to the foregoing.

          “Underwriter” means, with respect to any Underwritten Offering, a securities dealer who purchases any Registrable Securities as a principal in connection with a distribution of such Registrable Securities and not as part of such dealer’s market-making activities.

          “Underwritten Offering” means a public offering of securities registered under the Securities Act in which an Underwriter, placement agent or other intermediary participates in the distribution of such securities.

          “Voting Power” means the ability to vote or to control, directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at the time such determination is made; provided that a Person will not be deemed to have Voting Power as a result of an agreement, arrangement or understanding to vote such Voting Stock if such agreement, arrangement or understanding (i) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report). For purposes of determining the percentage of Voting Power of any class or series (or classes or series) beneficially owned by Stockholder, any Voting Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants, options or similar securities will not be deemed to be outstanding for the purpose of computing the Voting Power of any Person.

          “Voting Stock” of any Person means securities having the right to vote generally in any election of directors or comparable governing Persons of such Person.

          (b) As used in this Agreement, the terms set forth below will have the meanings assigned in the corresponding Section listed below:

Term	Section
Accepted Offered Stock	6.06(c)
Agreement	Preamble
Company	Preamble
Covered Securities	6.01(a)
Deferral Period	3.06(a)
Demand Notice	3.01(c)
Demand Offering	3.01(c)
EDGAR	3.04(a)

11

Term	Section
Effectiveness Date	3.01(a)
Effectiveness Period	3.01(a)
Election Notice	6.06(d)
Existing Agreement	Recitals
Existing Stockholders	Recitals
Filing Date	3.01(a)
First Offer Acceptance	6.06(c)
First Offer Notice	6.06(a)
First Offer Offeree	6.06(a)
First Offer Transferor	6.06(a)
Hedging Transaction	6.02
IDEA	3.04(a)(i)
indemnified party	3.08(c)
Indemnified Persons	3.08(a)
indemnifying party	3.08(c)
Inspectors	3.04(a)(viii)
Investment Agreement	Recitals
Labor Consultant	2.08
Lender Information	2.02
Liquidated Damages	3.01(b)
Lock-Up	3.09
Merger	Recitals
New Equity Securities	4.01(a)
New Stockholders	Recitals
Notice of Issuance	4.01(b)
Offer Date	6.06(c)
Offer Price	6.06(a)
Offered Stock	6.06(a)
Pathmark	Recitals
Piggyback Registration	3.02
Proxy Statement	7.01(a)
Records	3.04(a)(viii)
Registration Default	3.01(b)
Registration Default Date	3.01(b)
Registration Default Period	3.01(b)
Registration Rights Transferee	3.14
Representative	8.18
Required Financial Statements	3.06(b)
Stockholder	Preamble
Stockholder Convertible Preferred Stock	Recitals
Stockholder Mirror Vote	2.01(d)
Stockholder Nominee	2.01(c)(i)
Stockholder Observer	2.01(l)
Stockholder Representative	Preamble
Subject Securities	7.02(a)

12

Term	Section
Tag-Along Notice	6.05(a)
Tag-Along Shares	6.05(c)
Tag-Along Terms	6.05(a)
Tag-Along Transferor	6.05(a)
Tengelmann Partners	Recitals
Tengelmann Shares	Recitals
Transaction	Recitals
YAAF II	2.07(c)
YAAF Parallel II	2.07(c)

ARTICLE II

Corporate Governance; Information Rights and Stockholder Representative

          SECTION 2.01. Composition of the Board of Directors. The composition of the Board of Directors will be as follows:

          (a) Immediately after the Closing Date, (i) the By-Laws shall be amended to provide that the authorized number of directors comprising the Board of Directors shall be eleven Directors and (ii) Frederic F. Brace and Terry J. Wallock shall be elected to the Board of Directors. As of the date of this Agreement, the Company represents and warrants that the Board of Directors has determined that both Frederic F. Brace and Terry J. Wallock qualify as Independent Directors.

          (b) Immediately after the Closing Date, the Board of Directors shall be composed of eleven Directors, and, subject to any additional requirements provided for in the Charter or the By-Laws, the number of such Directors may not be (i) increased without the consent of Stockholder (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary) and that number of directors that is at least 66.67% of the total number of directorships (including vacancies) or (ii) decreased without the approval of that number of directors that is at least 66.67% of the total number of directorships (including vacancies); provided, however, that any decrease in the number of directorships that has the effect of reducing the number of Directors that Stockholder is entitled to nominate hereunder shall require the consent of Stockholder.

          (c) From and after the Closing Date (without duplication of Stockholder’s rights to elect a Stockholder Director pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary), so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, then the manner of selecting members of the Board of Directors will be as follows:

     (i) Stockholder will have the right to designate for nomination (it being understood that such nomination will include any nomination of any incumbent Stockholder Director for reelection to the Board of Directors) to the Board of Directors (A) two Directors (at least one of whom would qualify as an Independent Director) at any time the Stockholder Percentage Interest is and has

13

been continuously since the Closing Date, at least 20% or (B) one Director (who would qualify as an Independent Director) at any time the Stockholder Percentage Interest is less than 20% and has been continuously since the Closing Date at least 10% (each such designee, a “Stockholder Nominee”). Each Stockholder Nominee will be nominated and recommended for election to the Board of Directors by the Governance Committee and will stand for election at any stockholders’ meeting at which Directors are elected and each subsequent meeting for so long as the conditions specified in clause (A) or (B) above, as applicable, are satisfied and the Governance Committee is notified of each such Stockholder Nominee no later than the date that is 30 days prior to the date the Company’s annual proxy statement is scheduled to be mailed to stockholders with respect to such meeting; provided, however, that if Stockholder fails to give such notice in a timely manner, then Stockholder shall be deemed to have nominated the incumbent Stockholder Directors or Stockholder Directors, as applicable, in a timely manner. In the event that (x) the Stockholder Percentage Interest is at any time less than 20% but clause (B) of the second preceding sentence is satisfied, Stockholder shall not have the right to designate more than one Director, and, at the request of a majority of the Other Directors then in office, shall cause one of the two Stockholder Directors then in office to resign immediately upon such events and (y) the Stockholder Percentage Interest is at any time less than 10%, Stockholder shall not have any right to designate any Directors, and, at the request of a majority of the Other Directors then in office, shall cause any Stockholder Directors then in office to resign immediately upon such event.

     (ii) Subject to Section 2.01(c)(iii), the Company and the Board of Directors, including the Governance Committee, shall cause each Stockholder Nominee to be included in management’s slate of nominees for such stockholders’ meeting at which Directors are elected and shall recommend such Person for election to the Board of Directors.

     (iii) Notwithstanding anything to the contrary in this Section 2.01, neither the Governance Committee, the Company nor the Board of Directors shall be under any obligation to nominate and recommend a Stockholder Nominee to the extent it determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to Stockholder), that such recommendation would reasonably be expected to violate their duties under MGCL § 2-405.1(a) because (A) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Company’s Common Stock is listed or quoted or (B) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted, in which case the Company shall provide Stockholder with a reasonable opportunity (but in any event not less than 30 days) to designate an alternate Stockholder Nominee.

14

     (iv) Without limiting the generality of Section 2.01(c), if the number of Stockholder Directors is less than the number that the Stockholder has the right (and wishes) to designate pursuant to this Section 2.01, at the request of the Stockholder, the Secretary of the Company shall call a special meeting of the stockholders of the Company for the purpose of removing Public Directors to create such vacancies as are necessary to permit Stockholder to designate the full number of Stockholder Directors that it is entitled (and wishes) to designate pursuant to this Section 2.01. Upon the creation of any vacancy pursuant to the preceding sentence, Stockholder shall designate the Person to fill such vacancy in accordance with this Section 2.01 and, subject to Section 2.01(c)(iii), the Board of Directors shall appoint each Person so designated.

          (d) Until the third anniversary of the date of this Agreement, in any election of Directors at a meeting of the stockholders of the Company, if (x) Stockholder has elected the applicable number of Stockholder Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Company has nominated and recommended the Stockholder Nominees (to the extent required by Section 2.01(c)) that Stockholder wished to nominate (subject to Section 2.01(c)(iii) above), then Stockholder (i) agrees (A) to cause all Voting Stock held by Stockholder to be present at such meeting either in person or by proxy and (B) to vote such Voting Stock beneficially owned by it for all nominees (other than the Stockholder Nominees) included in management’s slate, in a manner identical (on a proportionate basis) to the manner in which the Public Equity Holders vote their shares of Voting Stock in such elections (the “Stockholder Mirror Vote”) and (ii) shall be entitled to vote all Voting Stock held by Stockholder for any Stockholder Nominee in its sole discretion. For purposes of allocating the Stockholder Mirror Vote, abstentions and broker non-votes shall be disregarded. As promptly as practicable following the nomination and recommendation of the Stockholder Nominees in accordance with Section 2.01(c) above, Stockholder shall, and shall cause its Affiliates to, provide the Company a proxy (which will be subject to Section 2.01(k)) for purposes of effecting the first sentence of this Section 2.01(d). Notwithstanding the foregoing, this Section 2.01(d) shall not apply with respect to any election of Directors in connection with which any Person (other than (x) Stockholder or any Affiliate of Stockholder, (y) any member of any 13D Group that includes Stockholder or any Affiliate of Stockholder or (z) any other Person with whom Stockholder is acting in concert) (i) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes in favor of one or more nominees for election to the Board of Directors that are different from the nominees to the Board of Directors in management’s slate, (ii) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes against one or more of the nominees to the Board of Directors in management’s slate, or (iii) has included one or more stockholder nominated director candidates in the Company’s proxy materials using the direct proxy access procedures under the Exchange Act or otherwise. This Section 2.01(d) shall automatically terminate upon the third anniversary of the date of this Agreement.

          (e) In any matter submitted to a vote of stockholders not subject to Section 2.01(d) or 7.02, Stockholder may vote any or all of its Voting Stock in its sole discretion, subject to applicable Law.

15

          (f) Until the third anniversary of the date of this Agreement, for so long as (x) Stockholder has elected the applicable number of Stockholder Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Board of Directors or Governance Committee nominates and recommends (subject to Section 2.01(c)(iii) above) the number of Stockholder Nominees contemplated by Section 2.01(c) that Stockholder wishes to nominate and so long as the Company has complied with Section 2.01(c)(iv), Stockholder agrees not to take, without the consent of a majority of the Other Directors, any action to remove or oppose any Other Director or to seek to change the size of the Board of Directors or otherwise seek to expand Stockholder’s representation on the Board of Directors in a manner inconsistent with Section 2.01(d) (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary). This Section 2.01(f) shall automatically terminate upon the third anniversary of the date of this Agreement.

          (g) No Stockholder Nominee or Stockholder Director shall be qualified to be a Director unless at all times during his or her term, he or she remains acceptable to Stockholder.

          (h) Upon the death, resignation, retirement, incapacity, disqualification or removal from office for any other reason of any Stockholder Director, Stockholder will have the right to designate the replacement for such Stockholder Director and the Board of Directors will, subject to Section 2.01(c)(iii), elect each such Person so designated in accordance with this Section 2.01(h). Upon the death, resignation, incapacity, disqualification or removal of any Public Director, a majority of the Public Directors will have the exclusive right to designate the replacement for such Public Director and elect same.

          (i) For the avoidance of doubt, Stockholder Directors shall be entitled to compensation and expense reimbursement in accordance with the Company’s policies and practices applicable to Directors generally. The Company will also provide and hereby agrees to enter into indemnification agreements with the Stockholder Directors on terms not less favorable to the Stockholder Directors than any indemnification agreement entered into with any Other Director.

          (j) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Article II and in the event of any such inconsistency, shall negotiate in good faith to revise this Article II to achieve the parties’ intention set forth herein to the greatest extent possible.

          (k) Notwithstanding anything to the contrary in this Section 2.01, Stockholder shall be under no obligation to vote in favor of an Other Director nominee who has been nominated by a Person other than the Governance Committee or the Board of Directors to the extent Stockholder determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to the Company and the Board of Directors), that the hypothetical nomination or

16

recommendation of such nominee by the Board of Directors would have been reasonably expected to violate the Directors’ duties under MGCL §2-405.1(a) because (i) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Company’s Common Stock is listed or quoted or (ii) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted; provided that Stockholder shall make such determination as soon as practicable and, if applicable, provide written notice thereof to the Company and Board of Directors as soon as practicable thereafter.

          (l) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, Stockholder shall be entitled to designate (and to remove and replace from time to time) a representative (the “Stockholder Observer”) who shall (i) have the right to receive due notice of and to attend and participate in discussions (but not vote on any matters on which the directors are entitled to vote) at all meetings of the entire Board of Directors and, if permitted by any committee of the Board of Directors (as determined by such committee), meetings of such committee of the Board of Directors, (ii) have the right to receive copies of all documents and other information, including minutes, consents, business plans, presentation materials, budgets and financial information furnished to all members of the Board of Directors and any committees thereof (to the extent the Stockholder Observer has received permission to participate in the meeting of such committee), in each case, substantially concurrently with the provision of such documents or information to the members of the Board of Directors or the committee, as applicable; provided that the observation is not prohibited by applicable Law, the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted and shall not require the Company to jeopardize the attorney-client privilege of the Company and (iii) be entitled to be indemnified by the Company to the same extent mutatis mutandis as if the Stockholder Observer was a director.

          SECTION 2.02. Information Rights. For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, each Stockholder shall be entitled to receive the financial and other information (the “Lender Information”) provided to all of the Lenders (at the same time such information is made available to the Lenders) by the Company in the form and same manner in which it is delivered to such Lenders. The Lender Information shall be subject to the confidentiality provisions set forth in Section 8.16.

          SECTION 2.03. Committees. Stockholder Directors shall have the right (at Stockholder’s election) to serve on each Standing Committee of the Board of Directors and the number of Stockholder Directors on a Standing Committee of the Board of Directors shall be not less than (x) the number of Stockholder Directors at such time divided by (y) the total number of seats on the Board of Directors at such time multiplied by (z) the number of Directors serving on such Standing Committee (rounded

17

to the nearest whole number). Stockholder shall have the right to select the Stockholder Directors that will serve on each Standing Committee of the Board of Directors; provided that, so long as there are any Stockholder Directors serving on the Board of Directors, at least one Stockholder Director shall have the right to serve on each Standing Committee of the Board of Directors. Notwithstanding the foregoing, a Stockholder Director shall not serve on any Standing Committee if such service would violate any Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted. Upon written request by the Stockholder Representative, as soon as reasonably practicable, one Stockholder Director shall be appointed to the board of directors (or similar governing body) of each Subsidiary of the Company requested by such Stockholder Representative and each committee of each such Subsidiary.

          SECTION 2.04. Solicitation of Shares. The Company will use its reasonable best efforts to solicit proxies in favor of the Stockholder Nominees selected in accordance with Section 2.01 from its stockholders eligible to vote for the election of Directors.

          SECTION 2.05. Approval Required for Certain Actions. (a) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):

     (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be;

     (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment);

18

     (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof;

     (v) any Discriminatory Transaction;

     (vi) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof;

     (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock;

     (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or

     (ix) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary.

          (b) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):

     (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order;

19

     (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided, however, that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes;

     (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided, however, that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further, however, that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or

     (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock.

20

          (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).

          (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.05.

          (e) Notwithstanding the foregoing, Stockholder shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

          SECTION 2.06. Stockholder Representative. The parties hereto acknowledge and agree that Yucaipa American Alliance Fund II, LLC shall be the designated representative of Stockholder, or the Stockholder Representative, with the authority to make all decisions and determinations and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of Stockholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of Stockholder, any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Investor shall be deemed so given if given to Stockholder Representative and the Company shall be fully protected against liability in relying on the actions of the Stockholder Representative as being authorized by the Stockholder.

          SECTION 2.07. VCOC Information Rights/Management Rights. (a) The Company shall provide each Stockholder and any Permitted Transferee with the following information to the extent otherwise prepared by the Company: (1) unaudited monthly financial statements in the form prepared by management consistent with past practice (if so prepared, as soon as available), (2) unaudited quarterly financial statements (as soon as available) and (3) annual financial statements audited by a nationally recognized accounting firm (as soon as available) prepared in all material respects in accordance with GAAP, which audited annual statements shall include: (A) the consolidated balance sheets of the Company and its Subsidiaries and the related consolidated statements of income, shareholders’ equity and cash flows; (B) a comparison to the corresponding data for the corresponding periods of the previous fiscal year and from the Company’s financial plan; and (C) a reasonably detailed narrative descriptive report of the operations of the Company and its Subsidiaries in the form prepared for presentation to the senior management of the Company for the applicable period and for the period from the beginning of the then current fiscal year to the end of such period; provided, however, that to the extent the Company is required by Law or

21

pursuant to the terms of any outstanding Indebtedness of the Company to prepare any of the foregoing reports or other annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act and such reports are actually prepared by the Company those reports shall be delivered as soon as available (provided further however, that any such reports shall be deemed to have been delivered when such reports are publicly available via EDGAR, IDEA or any successor system of the SEC).

          (b) In addition, (x) upon reasonable prior notice, and subject to applicable Law relating to the confidentiality of information, the Company shall permit any authorized representatives designated by Stockholder reasonable access at reasonable times upon not less than 5 Business Days prior notice to visit and inspect any of the properties of the Company or any of its Subsidiaries, including its and their books of account, and to discuss its and their affairs, finances and accounts with its and their officers, all at such times as Stockholder may reasonably request and may be mutually agreed upon, and (y) Stockholder shall have the right to consult with and advise the management of the Company and its Subsidiaries, upon reasonable prior written notice at reasonable times from time to time, on all matters relating to the operation of the Company and its Subsidiaries. The Company shall not be required to take any actions contemplated by this Section where such action would jeopardize the attorney-client privilege of the Company or contravene any applicable Law or binding agreement. All information and materials provided pursuant to this Section shall be subject to the confidentiality provisions set forth in Section 8.16.

          (c) The parties hereby acknowledge, agree and reaffirm that Stockholder has the right to elect or nominate, as applicable, up to two members of the Board of Directors pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary and Section 2.01 of this Agreement. Yucaipa American Alliance (Parallel) Fund II, LP (“YAAF Parallel II”) shall be entitled to designate one of the members of the Board of Directors, and Yucaipa American Alliance Fund II, LP (“YAAF II”) shall be entitled to designate the other member of the Board of Directors, if any; provided, however, that this shall not be deemed to modify the terms of Section 15(b) of the Convetible Preferred Articles Supplementary or Section 2.01 of this Agreement. In the event that YAAF II is not entitled to designate a member of the Board of Directors, then YAAF II shall be entitled to select the Stockholder Observer pursuant to Section 2.01(l).

          (d) The provisions of this Section 2.07 are intended to permit the investments by certain Persons comprising Stockholder, including YAAF Parallel II and YAAF II, in the Company to qualify as “venture capital investments” for purposes of Department of Labor Regulation section 2510.3-101, and the Company agrees to permit any reasonable modifications or additions to this Section 2.07 proposed by such Persons or Stockholder in order to ensure that such Persons continue to have “management rights” with respect to the Company for purposes thereof.

          SECTION 2.08. Labor Consultant. Stockholder shall designate in writing by notice to the Board within 30 days after the date hereof and subject to the Company and the Labor Consultant entering into an appropriate and mutually agreed upon confidentiality and consultant agreement, a consultant (the “Labor Consultant”), who

22

shall be authorized during the Term to attend and participate in all meetings of the Company on any labor-related matters, including with respect to collective bargaining agreements, labor unions or other labor organizations, any strikes, disputes, slowdowns of employees of the Company and any other matter concerning labor relations. The consultant agreement for the Labor Consultant shall obligate the Company to pay the reasonable consulting fees and expenses of the Labor Consultant and will contain confidentiality covenants similar to the terms set forth in Section 8.16.

          SECTION 2.09. Charter and By-Laws. (a) Immediately after the Closing, any Director will have the right to call a meeting of the Board of Directors.

          (b) The Company represents and warrants to Stockholder that it has adopted resolutions providing that automatically upon the Closing and without any further act of any Person, the By-Laws will be amended substantially on the terms set forth in Exhibit A. The Company will not amend, rescind or cause to be superseded such resolution prior to the effectiveness of such amendments.

          (c) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Agreement.

          SECTION 2.10. Change in Law. Without limiting the obligations of the Board of Directors under Section 2.09(c), in the event any Charter provision, By-Law provision or any Law exists or hereafter comes into force or effect (including by amendment) which conflicts with the terms and conditions of this Agreement, the parties will negotiate in good faith to revise this Agreement to achieve the parties’ intention set forth herein to the greatest extent possible.

ARTICLE III

Registration Rights

          SECTION 3.01. Registration. (a) Prior to the six-month anniversary of the date hereof (the “Filing Date”), the Company shall prepare and file with the SEC a Registration Statement providing for the direct primary sales for cash by Stockholder of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Thereafter, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act within 365 days after the date hereof (the “Effectiveness Date”), and subject to the other provisions of this Article III, shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the shares of Company Common Stock subject to this Article III cease to be Registrable Securities (the “Effectiveness Period”). The Company agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period, including (A) to

23

respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, (C) as may be required by the Securities Act or (D) as may be reasonably requested in writing by Stockholder or any Underwriter regarding information about Stockholder or any Underwriter to be included in a prospectus.

          (b) If (i) the Registration Statement is not filed on or prior to the Filing Date, (ii) a Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required Effectiveness Date, or (iii) after its Effectiveness Date, such Registration Statement ceases for any reason to be effective and available to Stockholder as to all Registrable Securities to which it is required to cover at any time prior to the expiration of the Effectiveness Period (in each case, except as specifically permitted herein) (any such failure or breach being referred to as a “Registration Default,” and for purposes of clauses (i) or (ii) the date on which such Registration Default occurs, and for purposes of clause (iii) the date on which the Registration Statement ceases to be effective and available, being referred to as the “Registration Default Date” and each period from and including the Registration Default Date during which a Registration Default has occurred and is continuing, a “Registration Default Period”), then, during the Registration Default Period, in addition to any other rights available to Stockholder, the Company shall pay to Stockholder (“Liquidated Damages”) in an amount in cash equal to the product of (x) 1.00% per annum and (y) the difference between (1) the sum of (A) $115,000,000 and (B) the Liquidation Preference (as defined in the Convertible Preferred Articles Supplementary) attributable to any Convertible Preferred Stock issued to Stockholder pursuant to the Convertible Preferred Articles Supplementary after the date hereof and (2) the Liquidation Preference attributable to Registrable Securities (determined based on the amount attributable to them prior to their becoming Registrable Securities) Transferred prior to the beginning of the applicable Registration Default Period to a Third Party that does not receive registration rights pursuant to Section 3.14. Liquidated Damages shall accrue from the applicable Registration Default Date until all Registration Defaults have been cured, and shall be payable quarterly in arrears on each March 15, June 15, September 15 and December 15 following the applicable Registration Default Date to the record holder of the applicable security on the date that is 15 days prior to such payment date, until paid in full. Following the cure of any Registration Default, Liquidated Damages will cease to accrue with respect to such Registration Default. Liquidated Damages payable in respect of any Registration Default Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Liquidated Damages shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing.

          (c) At any time and from time to time on or after the Effective Date, upon the written request (a “Demand Notice”) of Stockholder requesting that the Company effect an Underwritten Offering of Registrable Securities of Stockholder (a “Demand Offering”), the Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, an Underwritten Offering of the Registrable Securities which the Company has been so requested to register; provided, however, that (A) (x) with respect to any Registrable Securities (other than Existing Registrable Securities), the

24

Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in any 12-month period and (2) no more than five times in the aggregate and (y) with respect to the Existing Registrable Securities, the Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in any 12-month period and (2) since December 3, 2007, no more than three times in the aggregate and (B) in each case, the Registrable Securities for which a Demand Offering has been requested will have a value (based on the average closing price per share of Company Common Stock for the ten Trading Days preceding the delivery of such Demand Notice) of not less than $20,000,000 or such lesser remaining amount of Registrable Securities held by Stockholder. Each such Demand Notice will specify the number of Registrable Securities proposed to be offered for sale and will also specify the intended method of distribution thereof. Notwithstanding anything to the contrary herein, the Company shall not be required to make any Registration Statement available for, or permit the use of any such Registration Statement for the registration of all or any portion of a Hedging Transaction.

          (d) In the event an offering of Registrable Securities under this Section 3.01 involves one or more Underwriters, Stockholder will select the lead Underwriter and any additional Underwriters in connection with the offering from the list of investment banks set forth on Schedule I. The list of investment banks on Schedule I may be amended from time to time by Stockholder with the consent of the Company (such consent not to be unreasonably withheld or delayed).

          (e) Notwithstanding the foregoing provisions of this Section 3.01, Stockholder may not request a Demand Offering during a period commencing upon the filing (or earlier, but not more than 30 days prior to such filing upon notice by the Company to Stockholder that it so intends to file) of a Registration Statement for Company Common Stock by the Company (for its own account or for any other security holder) and ending (i) 90 days after such Registration Statement is declared effective by the SEC (or becomes automatically effective), (ii) upon the withdrawal of such Registration Statement or (iii) 30 days after such notice if no such Registration Statement has been filed within such 30-day period, whichever occurs first; provided that the foregoing limitation will not apply if Stockholder was not given reasonable opportunity, in violation of Section 3.02, to include its Registrable Securities in the Registration Statement described in this Section 3.01(e).

          (f) Stockholder will be permitted to rescind a Demand Offering or request the removal of any Registrable Securities held by it from any Demand Offering at any time (so long as, in the case of a Demand Offering, after such removal it would still constitute a Demand Offering, including with respect to the required Fair Market Value thereof); provided that, if Stockholder rescinds a Demand Offering, such Demand Offering will nonetheless count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by Stockholder pursuant to this Section 3.01, unless Stockholder reimburses the Company for all expenses (including reasonable fees and disbursements of counsel) incurred by the Company in connection with such Demand Offering.

25

          SECTION 3.02. Piggyback Registration. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of Company Common Stock for (a) the Company’s own account (other than (i) a Registration Statement on Form S-4 or S-8 (or any substitute form that may be adopted by the SEC) or (ii) a Registration Statement filed in connection with an offering of securities solely to the Company’s existing security holders) or (b) the account of any holder of Company Common Stock (other than Stockholder) pursuant to a demand registration requested by such holder, then the Company will give written notice of such proposed filing to Stockholder as soon as practicable (but in no event less than 20 days before the anticipated filing date), and upon the written request, given within 10 days after delivery of any such notice by the Company, of Stockholder to include Registrable Securities in such registration (which request shall specify the number of Registrable Securities proposed to be included in such registration), the Company will, subject to Section 3.03, include all such Registrable Securities in such registration, on the same terms and conditions as the Company’s or such holder’s Company Common Stock (a “Piggyback Registration”); provided, however, that if, at any time after giving written notice of such proposed filing and prior to the business day prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall determine for any reason not to proceed with the proposed registration of the securities, then the Company may, at its election, give written notice of such determination to Stockholder and, thereupon, will be relieved of its obligation to register any Registrable Securities in connection with such registration. The Company will control the determination of the form of any offering contemplated by this Section 3.02, including whether any such offering will be in the form of an Underwritten Offering and, if any such offering is in the form of an Underwritten Offering, (i) the Company will select the lead Underwriter and any additional Underwriters in connection with such offering and (ii) Stockholder’s right to participate shall be conditioned on Stockholder entering into an underwriting agreement in customary form and acting in accordance with the provisions thereof.

          SECTION 3.03. Reduction of Underwritten Offering. Notwithstanding anything contained herein, if the lead Underwriter of an Underwritten Offering described in Section 3.01 or 3.02 advises the Company in writing that in its reasonable opinion, the number of shares of Company Common Stock (including any Registrable Securities) that the Company, Stockholder and any other Persons intend to include in any Registration Statement is such that the success of any such offering would be materially and adversely affected, including the price at which the securities can be sold or the number of Registrable Securities that any participant may sell, then the number of shares of Company Common Stock to be included in the Registration Statement for the account of the Company, Stockholder and any other Persons will be reduced pro rata by proposed participation in the Underwritten Offering to the extent necessary to reduce the total number of securities to be included in any such Registration Statement to the number recommended by such lead Underwriter; provided that (a) priority in the case of a Demand Offering pursuant to Section 3.01 will be (i) first, the Registrable Securities requested to be included in the Registration Statement for the account of Stockholder, (ii) second, securities to be offered by the Company for its own account, (iii) third, securities requested to be included in the Registration Statement by Tengelmann pursuant to any piggyback registration rights set forth in the Amended and Restated Tengelmann

26

Stockholder Agreement and (iv) fourth, pro rata among any other holders of securities of the Company having the right to be so included so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter; (b) priority in the case of a Registration Statement initiated by the Company for its own account which gives rise to a Piggyback Registration pursuant to Section 3.02 will be (i) first, securities initially proposed to be offered by the Company for its own account, (ii) second, securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to any piggyback registration rights set forth in the Amended and Restated Tengelmann Stockholder Agreement hereof and securities requested to be included in the Registration Statement for the account of Stockholder pursuant to Section 3.02 hereof, pro rata based on Tengelmann’s Piggyback Percentage and Stockholder’s Piggyback Percentage, respectively, and (iii) third, among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter; (c) priority in the case of a Registration Statement initiated by the Company for the account of Tengelmann pursuant to registration rights afforded to Tengelmann pursuant to the Amended and Restated Tengelmann Stockholder Agreement will be (i) first, the securities requested to be included in the Registration Statement for the account of Tengelmann, (ii) second, securities to be offered by the Company for its own account, (iii) third, securities requested to be included in the Registration Statement for the account of Stockholder pursuant to Section 3.02 hereof and (iv) fourth, among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter and (d) priority with respect to inclusion of securities in a Registration Statement initiated by the Company for the account of holders other than Stockholder and Tengelmann pursuant to registration rights afforded such holders will be (i) first, pro rata among securities requested to be included in the Registration Statement for the account of such holders, (ii) second, securities requested to be included in the Registration Statement by the Company for its own account, (iii) third, securities requested to be included in the Registration Statement for the account of Tengelmann pursuant to any piggyback registration rights set forth in the Amended and Restated Tengelmann Stockholder Agreement and securities requested to be included in the Registration Statement for the account of Stockholder pursuant to Section 3.02 hereof, pro rata based on Tengelmann’s Piggyback Percentage and Stockholder’s Piggyback Percentage, respectively, and (iv) fourth, pro rata among any other securities of the Company requested to be registered pursuant to a contractual right so that the total number of securities to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter.

          SECTION 3.04. Registration Procedures. (a) Subject to the provisions of Section 3.01 hereof, in connection with the registration of the sale of Registrable Securities hereunder, the Company will as promptly as reasonably practicable:

27

     (i) furnish to Stockholder without charge, if requested, prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein, except to the extent such exhibits or documents are currently available electronically via the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”), Interactive Data Electronic Applications system (“IDEA”) or any successor system of the SEC), which documents (other than those incorporated by reference) will be subject to the review and good faith objection of Stockholder prior to filing (provided, however, if Stockholder does not object to any such document prior to the close of business on the third Business Day after receipt thereof, Stockholder shall be deemed to have waived any objection) the prospectus included in such Registration Statement (including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement (except to the extent such letters or correspondence is currently available electronically via EDGAR, IDEA or any successor system of the SEC) and such other documents in such quantities as Stockholder may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities;

     (ii) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as Stockholder reasonably requests and do any and all other acts and things as may be reasonably necessary or advisable to enable Stockholder to consummate the disposition of such Registrable Securities in such jurisdictions; provided that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.04(a)(ii), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;

     (iii) notify Stockholder at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will promptly prepare and file with the SEC a supplement or amendment to such prospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner) so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

28

     (iv) advise the Underwriters, if any, and Stockholder promptly and, if requested by such Persons, confirm such advice in writing, of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;

     (v) use its commercially reasonable efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company to enable Stockholder to consummate the disposition of such Registrable Securities; provided that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.04(a)(v), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;

     (vi) enter into customary agreements and use commercially reasonable efforts to take such other actions as are reasonably requested by Stockholder in order to expedite or facilitate the disposition of such Registrable Securities, including preparing for and participating in a road show and all such other customary selling efforts as the Underwriters reasonably request in order to expedite or facilitate such disposition;

     (vii) if requested by Stockholder or the Underwriter(s) in connection with such sale, if any, promptly include in any Registration Statement or prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as Stockholders and such Underwriter(s), if any, may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities, information with respect to the number of Registrable Securities being sold to such Underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering, and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such prospectus supplement or post-effective amendment;

     (viii) make available for inspection by Stockholder, any Underwriter participating in any disposition of such Registrable Securities, and any attorney for Stockholder and such Underwriter and any accountant or other agent retained by Stockholder or such Underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company

29

(collectively, the “Records”) as will be reasonably necessary to enable them to conduct customary due diligence with respect to the Company and the related Registration Statement and prospectus, and cause the Representatives of the Company and its Subsidiaries to supply all information reasonably requested by any such Inspector; provided that (x) Records and information obtained hereunder will be used by such Inspector only to conduct such due diligence and (y) Records or information that the Company determines, in good faith, to be confidential will not be disclosed by such Inspector unless (A) the disclosure of such Records or information is necessary to avoid or correct a material misstatement or omission in a Registration Statement or related prospectus or (B) the release of such Records or information is ordered pursuant to a subpoena or other order from a court or governmental authority of competent jurisdiction;

     (ix) (A) cause the Company’s Representatives to supply all information reasonably requested by Stockholder, or any Underwriter, attorney, accountant or agent in connection with the Registration Statement and (B) provide Stockholder and its counsel with the opportunity to participate in the preparation of such Registration Statement and the related prospectus;

     (x) use its commercially reasonable efforts to obtain and deliver to each Underwriter and Stockholder a comfort letter from the independent registered public accounting firm for the Company (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Company whose financial statements are included or incorporated by reference in the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such Underwriter and Stockholder may reasonably request, including (x) that the financial statements included or incorporated by reference in the Registration Statement or the prospectus, or any amendment or supplement thereof, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and (y) as to certain other financial information for the period ending no more than five business days prior to the date of such letter; provided, however, that if the Company fails to obtain such comfort letter, then such Demand Offering will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by a Stockholder pursuant to Section 3.01;

     (xi) use its commercially reasonable efforts to obtain and deliver to each Underwriter and Stockholder a 10b-5 statement and legal opinion from the Company’s counsel in customary form and covering such matters as are customarily covered by 10b-5 statements and legal opinions as such Underwriter and Stockholder may reasonably request; provided, however, that if the Company fails to obtain such statement or opinion, then such Demand Offering will not count as a Demand Offering for purposes of determining when future Demand Offerings can be requested by a Stockholder pursuant to Section 3.01;

     (xii) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its

30

security holders, within the required time period, an earnings statement (which need not be audited) covering a period of 12 months beginning with the first fiscal quarter after the effective date of the Registration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor provisions thereto; and

     (xiii) use its commercially reasonable efforts to cause such Registrable Securities to be listed or quoted on the NYSE or, if Company Common Stock is not then listed on the NYSE, then on any other securities exchange or national quotation system on which similar securities issued by the Company are listed or quoted.

          (b) In connection with the Registration Statement relating to such Registrable Securities covering an Underwritten Offering, (i) the Company and Stockholder agree to enter into a written agreement with each Underwriter selected in the manner herein provided in such form and containing such provisions as are customary in the securities business for such an arrangement between such Underwriter and companies of the Company’s size and investment stature and, to the extent practicable, on terms consistent with underwriting agreements entered into by the Company (it being understood that, unless required otherwise by the Securities Act or any other Law, the Company will not require Stockholder to make any representation, warranty or agreement in such agreement other than with respect to Stockholder, the ownership of Stockholder’s securities being registered and Stockholder’s intended method of disposition) and (ii) Stockholder agrees to complete and execute all such other documents customary in similar offerings, including any reasonable questionnaires, powers of attorney, holdback agreements, letters and other documents customarily required under the terms of such underwriting arrangements. The representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such Underwriter in such written agreement with such Underwriter will also be made to and for the benefit of Stockholder. In the event an Underwritten Offering is not consummated because any condition to the obligations under any related written agreement with such Underwriter is not met or waived in connection with a Demand Offering, and such failure to be met or waived is not attributable to the fault of Stockholder, such Demand Offering will not be deemed exercised.

          SECTION 3.05. Conditions to Offerings. (a) The obligations of the Company to take the actions contemplated by Section 3.01, Section 3.02, Section 3.03 and Section 3.04 with respect to an offering of Registrable Securities will be subject to the following conditions:

     (i) the Company may require Stockholder to furnish to the Company such information regarding Stockholder or the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing, in each case only as required by the Securities Act or under state securities or blue sky laws; and

31

     (ii) in any Underwritten Offering pursuant to Section 3.01 or Section 3.02 hereof, Stockholder, together with the Company, will enter into an underwriting agreement in accordance with Section 3.04(b) above with the Underwriter or Underwriters selected for such underwriting, as well as such other documents customary in similar offerings.

          (b) Stockholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.04(a)(iii) or Section 3.04(a)(iv) hereof or a condition described in Section 3.06 hereof, Stockholder will forthwith discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering the sale of such Registrable Securities until Stockholder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.04(a)(iii) hereof or notice from the Company of the termination of the stop order or Deferral Period.

          SECTION 3.06. Blackout Period. (a) The Company’s obligations pursuant to Section 3.01, Section 3.02 and Section 3.03 hereof will be suspended (including any obligation to pay Liquidated Damages) (1) upon the receipt of comments from the SEC on any document incorporated by reference in the Registration Statement or (2) if compliance with such obligations would (a) violate applicable Law or otherwise prevent the Company from complying with applicable Law, (b) require the Company to disclose a financing, acquisition, disposition or other corporate development, and the chief executive officer of the Company has determined, in the good faith exercise of his reasonable business judgment, that such disclosure is not in the best interests of the Company, (c) require the Company to make changes in the Registration Statement in order that the Registration Statement not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (d) otherwise require premature disclosure of information the disclosure of which, the chief executive officer of the Company has determined, in the good faith exercise of his reasonable business judgment, is not in the best interests of the Company, or (e) otherwise represent an undue hardship for the Company; provided that (i) any and all such suspensions pursuant to clause (1) will not exceed 120 days in the aggregate in any 12-month period and (ii) any and all such suspensions pursuant to clause (2)(b), 2(c), 2(d) or 2(e) will not exceed 120 days in the aggregate in any 12-month period; provided that any suspensions attributable to clause 2(e) will not extend beyond 90 days (any such period, a “Deferral Period”). The Company will promptly give Stockholder written notice of any such suspension containing the approximate length of the anticipated delay, and the Company will notify Stockholder upon the termination of any Deferral Period. Upon receipt of any notice from the Company of any Deferral Period, Stockholder shall forthwith discontinue disposition of the Registrable Securities pursuant to the Registration Statement relating thereto until Stockholder receives copies of the supplemented or amended prospectus contemplated hereby or until it is advised in writing by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemented filings that are incorporated by reference in the prospectus, and, if so directed by the Company, Stockholder will, and will request the lead Underwriter or Underwriters, if any, to, deliver to the Company all copies, other than

32

permanent file copies, then in Stockholder’s or such Underwriter’s or Underwriters’ possession of the current prospectus covering such Registrable Securities.

          (b) The parties hereto further agree and acknowledge that any suspension or non-use of the Registration Statement due to the updating of the Registration Statement to include any financial statement the Registration Statement is required to contain (the “Required Financial Statements”) shall not be deemed to be a suspension for purposes of Section 3.06(a), unless and until the seven business day period referenced in Section 3.06(c) shall have passed without the updating of financial statements required by Section 3.06(c).

          (c) The Company shall use its commercially reasonable efforts to update the Registration Statement on each date on which it shall be necessary to do so to cause the Registration Statement to contain the Required Financial Statements; provided, however, that, with respect to any financial period ending after the date hereof, the Company shall not be obligated to update the Required Financial Statements pursuant to Section 3.06(b) and shall not be deemed to be in default under this sentence until seven business days after (or such earlier date as may be reasonably practicable) the date upon which such updated financial statements are required to be filed with the SEC.

          SECTION 3.07. Registration Expenses. All fees and expenses incident to the Company’s performance of or compliance with the obligations of this Article III, including all fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters in connection with qualification of Registrable Securities under applicable blue sky laws), printing expenses, messenger and delivery expenses of the Company, any registration or filing fees payable under any Federal or state securities or blue sky laws, the fees and expenses incurred in connection with any listing or quoting of the securities to be registered on any national securities exchange or automated quotation system, fees of the Financial Industry Regulatory Authority, fees and disbursements of counsel for the Company, its independent registered certified public accounting firm and any other public accountants who are required to deliver comfort letters (including the expenses required by or incident to such performance), transfer taxes, fees of transfer agents and registrars, costs of insurance and the fees and expenses of other Persons retained by the Company will be borne by the Company. Stockholder will bear and pay any underwriting discounts and commissions applicable to Registrable Securities offered for its account pursuant to any Registration Statement. The Company shall also pay and reimburse Stockholder for all reasonable out-of-pocket fees and expenses incurred by Stockholder of one counsel for Stockholder in connection with each Registration Statement.

          SECTION 3.08. Indemnification; Contribution. (a) In connection with any registration of Registrable Securities pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company agrees to indemnify and hold harmless, to the fullest extent permitted by Law, Stockholder, its Affiliates, directors, officers and stockholders and each Person who controls Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and against any and all losses, claims, damages, liabilities, judgments,

33

actions and expenses (including reasonable attorneys’ fees) joint or several caused by any untrue or alleged untrue statement of material fact contained in any part of any Registration Statement or any preliminary or final prospectus used in connection with the Registrable Securities or any Issuer FWP, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading; provided that the Company will not be required to indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments, actions or expenses resulting from any such untrue statement or omission if such untrue statement or omission was made in reliance on and in conformity with information with respect to any Indemnified Person furnished to the Company in writing by Stockholder expressly for use therein.

          (b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, Stockholder agrees to indemnify the Company, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to Stockholder, but only with respect to information with respect to any Indemnified Person furnished to the Company in writing by Stockholder expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP.

          (c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided that the failure to give such notice shall not relieve the indemnifying party of its obligations pursuant to this Agreement except to the extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit the indemnifying party to assume the defense of such claim, action or proceeding with counsel reasonably satisfactory to the indemnified party to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. In any such claim, action or proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (without prejudice to such indemnified party’s indemnity and other rights under the Charter, By-Laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to the Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them or (C) the indemnifying party has failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party. It is understood that the indemnifying party will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of

34

more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if such claim, action or proceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

          (d) If the indemnification provided for in this Section 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to in this Section 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of the Company, on the one hand, and Stockholder, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party will be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such

35

action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 3.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.

          (e) The parties agree that it would not be just and equitable if contribution pursuant to Section 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 3.08(d). No Person guilty of “fraudulent misrepresentation” (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 3.08(e), Stockholder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Stockholder with respect to the Registrable Securities exceed the greater of (A) the amount paid by Stockholder for its Registrable Securities and (B) the amount of any damages which Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Stockholder’s obligation to contribute pursuant to this Section 3.08 is several in proportion to the respective number of Registrable Securities held by such Stockholder hereunder and not joint.

          (f) For purposes of this Section 3.08, each controlling Person of a Stockholder shall have the same rights to contribution as such Stockholder, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.

          (g) If indemnification is available under this Section 3.08, the indemnifying party will indemnify each indemnified party to the full extent provided in Sections 3.08(a) and (b) without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in Section 3.08(d) or (e).

     SECTION 3.09. Lockup. If and to the extent requested by the lead Underwriter of an Underwritten Offering of Equity Securities of the Company, the Company and Stockholder agree not to effect, and to cause their respective Affiliates not to effect, except as part of such registration, any offer, sale, pledge, transfer or other

36

distribution or disposition or any agreement with respect to the foregoing of the issue being registered or offered, as applicable, or of a similar security of the Company, or any securities into which such Equity Securities are convertible, or any securities convertible into, or exchangeable or exercisable for, such Equity Securities, including a sale pursuant to Rule 144 under the Securities Act, during a period of up to seven days prior to, and during a period of up to 45 days after, the effective date of such registration, as reasonably requested by the lead Underwriter (the “Lock-up”); provided, however, that Stockholder shall not be obligated to enter into a Lock-up more than one time in any 12-month period. The lead Underwriter shall give the Company and Stockholder prior notice of any such request.

          SECTION 3.10. Termination of Registration Rights. This Article III (other than Sections 3.07, 3.08 and 3.09) will terminate on the date on which all shares of Company Common Stock subject to this Article III cease to be Registrable Securities.

          SECTION 3.11. Specific Performance. Stockholder, in addition to being entitled to exercise all rights provided herein or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

          SECTION 3.12. Other Registration Rights. The Company (a) has not granted and will not grant to any Third Party any registration rights inconsistent with any of those contained herein and (b) has not entered into and will not enter into any agreement that will impair its ability to perform its obligations under this Article III, so long as any of the registration rights under this Agreement remain in effect; provided, however, that the registration rights in the Amended and Restated Tengelmann Stockholder Agreement shall be deemed not to impair these rights under any circumstances. If the Company provides Tengelmann with the right to require the Company to file a shelf registration statement pursuant to Rule 415 under the Securities Act for resales of Registrable Securities (as such term is defined in the Amended and Restated Tengelmann Stockholder Agreement) held by Tengelmann, then Stockholder shall have the right to require a shelf registration statement to register all of Stockholder’s Registrable Securities on substantially the same terms and conditions as provided to Tengelmann.

          SECTION 3.13. Rule 144. For so long as the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, if the Company fails to timely file the reports required to be filed by it under the Securities Act and the Exchange Act and such failure continues unremedied for a period of 90 days, then, if such failure shall be continuing, the Company shall pay Liquidated Damages to Stockholder from the date of such failure to, but excluding the date on which such failure has been cured and otherwise in the amount and at the same time and terms as provided in Section 3.01(b).

37

          SECTION 3.14. Transfer of Registration Rights. Notwithstanding anything to the contrary in this Agreement, the rights to cause the Company to register securities granted to Stockholder under this Article III may be assigned by Stockholder in whole or part to any Person to whom Stockholder Transfers Equity Securities of the Company representing 10% or more of the Voting Power of the Company (a “Registration Rights Transferee”); provided, however, that (x) the Company is given prior written notice of the assignment, stating the name and address of the transferee or assignee and identifying the securities with respect to which such registration rights are being assigned and (y) such Registration Rights Transferee agrees in writing to be bound by subject to the provisions of this Article III mutatis mutandis as if the Registration Rights Transferee were a party hereto.

ARTICLE IV

Preemptive Rights

          SECTION 4.01. Rights To Purchase New Equity Securities. (a) In the event that after the date hereof, the Company proposes to issue any Equity Securities of the Company (“New Equity Securities”), Stockholder shall have the right to purchase, in accordance with paragraph (b) below, a number of such New Equity Securities equal to the product of (x) the total number of such New Equity Securities to be issued and (y) the Stockholder Percentage Interest at such time. The following issuances shall be exempt from the right to purchase New Equity Securities: (i) Equity Securities of the Company which are issued or reserved for issuance pursuant to any employee compensation plan or other benefit incentive plan (including stock option, restricted stock or other equity-based compensation plans), now existing or hereafter approved by the Board of Directors, (ii) Equity Securities of the Company to the extent issued or issuable in exchange for consideration consisting of property or assets other than cash, (iii) Equity Securities of the Company which are issued or issuable to Stockholder or any Affiliate of Stockholder or any wholly owned Subsidiaries of the Company, (iv) Equity Securities of the Company which are existing as of the date hereof or that are issued or issuable thereafter pursuant to the terms of any Equity Securities of the Company or other purchase rights existing or assumed by the Company as of the date hereof but in each case, only to the extent disclosed on Schedule 2.03 of the Investment Agreement and without any amendments or modifications thereto, (v) Equity Securities of the Company issued or issuable upon exercise of the 2000 Warrants, (vi) Equity Securities of the Company which are issued or issuable to Tengelmann or its Affiliates under the Tengelmann Investment Agreement and pursuant to the Convertible Preferred Articles Supplementary (including any Equity Securities of the Company issued as dividends thereunder), or (vii) Equity Securities of the Company which are issued in connection with a Business Combination.

          (b) In the event that the Company proposes to undertake an issuance of New Equity Securities to which this Section 4.01 applies, and to which an exception in clauses (i) through (vii) of Section 4.01(a) does not apply, it shall give written notice to Stockholder (a “Notice of Issuance”) of its intention, describing the material terms of the New Equity Securities and the issuance thereof, including the number of New Equity

38

Securities proposed to be issued, the price (or method for determining price) thereof, the terms of payment and the proposed date of issuance. Stockholder shall then have 20 days from the date of receipt of the Notice of Issuance to exercise its right to purchase all or a portion of its pro rata share of such New Equity Securities (as determined pursuant to paragraph (a) above) for the same consideration, and otherwise upon the terms specified in the Notice of Issuance, by giving written notice to the Company and stating therein the quantity of New Equity Securities to be purchased by Stockholder. The rights of Stockholder with respect to a particular issuance of New Equity Securities under this Section 4.01(b) shall expire if unexercised within 20 days after receipt of the applicable Notice of Issuance. Stockholder shall have 30 days after receipt of the applicable Notice of Issuance to consummate such purchase.

          (c) If Stockholder exercises its right pursuant to a Notice of Issuance, then the closing of the purchase and sale of the New Equity Securities to be issued to Stockholder will be consummated simultaneously with the closing of the purchase and sale of the New Equity Securities to be issued to Persons other than Stockholder unless the closing of the purchase and sale of the New Equity Securities issued to Stockholder is required by Law to be consummated on a later date. In the event any purchase by Stockholder is not consummated, other than as a result of the fault of the Company, within the provided time period, the Company may issue the New Equity Securities to Persons other than Stockholder free and clear from the rights of Stockholder and restrictions under this Section 4.01. Any New Equity Securities not elected to be purchased by Stockholder may be sold by the Company to any Person or Persons to which the Company intended to sell such New Equity Securities at a price and other economic terms not less than those offered to Stockholder and on terms and conditions no less favorable to the Company than those offered to Stockholder.

          (d) If, for any reason, the issuance of New Equity Securities to Persons other than Stockholder is not consummated within 90 days after the Notice of Issuance, Stockholder’s right to purchase its pro rata share of the New Equity Securities shall automatically be rescinded. Thereafter, Stockholder will continue to have the preemptive rights set forth in this Section 4.01 with respect to other issuances of New Equity Securities at later dates or times.

ARTICLE V

Standstill, Acquisitions of Securities and Other Matters

          SECTION 5.01. Acquisitions of Common Stock. Until the Standstill Expiration Date, without the prior approval of a majority of the Board of Directors (excluding the Stockholder Directors), Stockholder shall not, nor shall it permit its controlled or controlling Affiliates or General Partners to purchase, in the aggregate, or otherwise acquire, offer to acquire or agree to acquire, directly or indirectly, beneficial ownership of Company Common Stock or any other Equity Security of the Company such that, after giving effect to any such acquisition and the exercise, conversion or exchange of any Equity Security of the Company, Stockholder would be the beneficial owner of in excess of 35.5% of the outstanding Company Common Stock, assuming the

39

exercise, conversion and exchange of all Equity Securities of the Company, which are not Company Common Stock; provided, however, the following shall not constitute a breach of this Section 5.01: (x) pursuant to stock dividends, reclassifications, recapitalizations or other distributions by the Company to all holders of Company Common Stock, (y) the purchase of any Equity Securities of the Company by Stockholder pursuant to Section 4.01 and (z) the increase of Stockholder’s beneficial ownership resulting from stock repurchases or redemptions by the Company. For purposes of such calculation, Stockholder shall not be deemed to beneficially own, and the following shall not count toward or result in a breach of, the 35.5% limitation: (i) the Series B Warrants and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder pursuant to the exercise of the Series B Warrants in accordance with their terms, (ii) any Convertible Notes and any Company Common Stock received or acquired, or that may be received or acquired, by Stockholder or its Affiliates pursuant to the conversion of the Convertible Notes and (iii) any Equity Securities of the Company received by Stockholder as a dividend under the Convertible Preferred Articles Supplementary. Stockholder represents that Schedule II sets forth, as of the date of this Agreement, Stockholder’s beneficial ownership of Equity Securities of the Company, including Company Common Stock, Convertible Preferred Stock and Series B Warrants.

          SECTION 5.02. No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Section 5.01 and its exercise of rights and obligations pursuant to the provisions of this Agreement or the Convertible Preferred Articles Supplementary, Stockholder agrees that, prior to the earlier of (x) the Standstill Expiration Date and (y) the date Tengelmann directly or indirectly engages in any of the activities prohibited by clauses (a) through (d) below (for purposes of this clause (y), any references to “Stockholder” shall be deemed to refer to “Tengelmann” and any references to this “Agreement” shall be deemed to refer to the “Amended and Restated Tengelmann Stockholder Agreement”), it will not, nor shall it permit its controlled or controlling Affiliates or General or any controlled Affiliate of Ronald W. Burkle to, without the prior approval of the Board, directly or indirectly:

     (a) acquire Equity Securities in excess of that allowed under Section 5.01;

     (b) publicly announce any proposal to the Company or all its stockholders for any extraordinary corporate transaction (including any Business Combination or dissolution) involving the Company or any Subsidiary;

     (c) make, or in any way participate, directly or indirectly, in, any “solicitation” of “proxies” to vote or in any “election contest” (as such terms are used in the proxy rules of the Exchange Act), or agree or announce an intention to vote with any Person undertaking a “solicitation”, or seek to advise or influence any Person or 13D Group with respect to the voting of, any Voting Stock of the Company or any Subsidiary thereof, or make any proposal to be voted upon by holders of Voting Stock;

     (d) form, join, encourage the formation of or in any way engage in discussions relating to the formation of, or in any way participate in, any 13D

40

Group (other than with any other Stockholder or its Permitted Transferees) with respect to any Voting Stock of the Company or any Subsidiary thereof, including pursuant to any voting agreement or trust; or

     (e) request the Company to amend or waive any provision of this Section 5.02 (including this clause (e)); provided, however, that Stockholder shall be permitted to make confidential requests to the Board of Directors to amend or waive any of the limitations set forth in this Section 5.02, which the Other Directors, acting by majority, may accept or reject in their sole discretion; provided, further that (A) any such request shall be made in a manner that shall not require the public disclosure of such request by Stockholder or the Company and (B) any such request shall not be publicly disclosed by Stockholder.

For purposes of clarity and notwithstanding the foregoing, nothing in this Article V shall (i) permit Stockholder to take any action that would require Stockholder, the Company or any Subsidiary thereof, or any Person required under Section 13(d) of the Exchange Act to file a statement on Schedule 13D with the SEC, to make any public announcement or otherwise be required make any public disclosure as a result of any such action by Stockholder, (ii) prohibit or in any way limit any Stockholder Director from fully participating in meetings of the Board of Directors in his or her capacity as a Director, (iii) restrict Stockholder’s ability to sell or Transfer any Equity Securities held by Stockholder in a manner permitted by this Agreement, and actions related thereto shall not be a breach of this Article V, or (iv) permit Stockholder to disclose confidential business information about the Company in violation of Section 8.16. Further, Sections 5.01 and 5.02 shall automatically terminate upon the Standstill Expiration Date.

          SECTION 5.03. Convertible Note Purchase. (a) The Company acknowledges and agrees that (i) nothing in this Agreement or in any other agreement between the Company and Stockholder or its Affiliates prohibits, limits or restricts the ability of Stockholder or its Affiliates to purchase, hold or own any Convertible Notes or exercise any rights related thereto (except as provided in Section 2.05(e)) in accordance with applicable Law and (ii) the Convertible Notes shall not be subject to the restrictions on Transfer, Encumbrances, Hedging Transactions or any other restrictions applicable to Equity Securities or Voting Stock under this Agreement.

          (b) If Stockholder or any of its Affiliates purchase any Convertible Notes, then within 10 days after the closing of such purchase, Stockholder shall deliver to the Company and Tengelmann written notice indicating the principal amount of Convertible Notes acquired and the price paid per $1,000 principal amount of Convertible Notes. If any agreement effecting the purchase and sale (other than the standard assignment or transfer documents contemplated by the indentures for the Convertible Notes) is entered into to effect the purchase, such notice will also describe the material terms and conditions of such agreement. Within five Business Days following receipt of such notice, Tengelmann may elect to notify Stockholder that it desires to purchase a portion of the Convertible Notes subject to the notice calculated by dividing (1) an amount equal to the aggregate number of shares of Convertible Preferred Stock owned by Tengelmann and its Affiliates at the time by (2) the aggregate number of shares of Convertible

41

Preferred Stock outstanding at such time. The purchase price paid by Tengelmann shall equal the price paid by Stockholder per $1,000 principal amount of Convertible Notes plus Tengelmann’s pro rata share of any fees or expenses incurred by Stockholder in connection with the purchase of the Convertible Notes. Tengelmann shall also agree to be bound by and assume, in a pro rata manner, any other obligations or agreements entered into by Stockholder or its Affiliates in connection with the purchase and sale of such Convertible Notes. Tengelmann must deliver the purchase price, satisfy the other requirements herein and close its purchase of the Convertible Notes contemplated herein within fifteen Business Days following receipt of Stockholders notice to Tengelmann regarding the purchase of Convertible Notes. As a condition to purchasing such Convertible Notes from Stockholder, Tengelmann must also agree to abide by the provisions set forth in Section 5.03(c) below and agree if it fails to do so that Stockholder will have the right to immediately repurchase any Convertible Notes acquired by Tengelmann from Stockholder or its Affiliates for the price paid by Tengelmann. If Tengelmann fails to comply with the provisions of Section 5.03(c) then this Section 5.03(b) shall immediately terminate and Stockholder and its Affiliates shall no longer have any obligations under this Section 5.03(b).

          (c) If Tengelmann or any of its Affiliates purchase any Convertible Notes, then within 10 days after the closing of such purchase, Tengelmann shall deliver to the Company and Stockholder written notice indicating the principal amount of Convertible Notes acquired, the price paid per $1,000 principal amount of Convertible Notes. If any agreement effecting the purchase and sale (other than the standard assignment or transfer documents contemplated by the indentures for the Convertible Notes) is entered into to effect the purchase, such notice will also describe the material terms and conditions of such agreement. Within five Business Days following receipt of such notice, Stockholder may elect to notify Tengelmann that it desires to purchase 50% of the Convertible Notes subject to the notice. The purchase price paid by Stockholder shall equal the price paid by Tengelmann per $1,000 principal amount of Convertible Notes plus 50% of any fees or expenses incurred by Tengelmann in connection with the purchase of the Convertible Notes. Stockholder shall also agree to be bound by and assume, in a pro rata manner, any other obligations or agreements entered into by Tengelmann or its Affiliates in connection with the purchase and sale of such Convertible Notes. Stockholder must deliver the purchase price, satisfy the other requirements herein and close its purchase of the Convertible Notes contemplated herein within fifteen Business Days following receipt of Tengelmann’s notice to Stockholder regarding the purchase of Convertible Notes.

ARTICLE VI

Restrictions on Transferability of Securities

SECTION 6.01. General. (a) Until the sixteen-month anniversary of the Closing Date, Stockholder shall not make or solicit any Transfer of, or create, incur or assume any Encumbrance with respect to, and shall cause each of its controlled Affiliates

42

not to make or solicit any Transfer of, or create, incur or assume any Encumbrance with respect to, any Convertible Preferred Stock now owned or hereafter acquired by Stockholder or its controlled Affiliates (collectively, the “Covered Securities”); provided, however, that Stockholder or any of its Affiliates may make or solicit a Transfer of any of the Covered Securities:

     (i) to a Permitted Transferee of Stockholder (subject, in the case of a Transfer to a controlled Affiliate, in compliance with Section 6.01(b) hereof);

     (ii) to Tengelmann or any of its Affiliates;

     (iii) to the Company or a Subsidiary of the Company;

     (iv) pursuant to any Business Combination, tender or exchange offer to acquire Company Common Stock or any other extraordinary transaction (A) in connection therewith, Stockholder was not in violation of Section 5.02; (B) that is for 100% of the outstanding Company Common Stock; (C) includes a majority tender or approval condition; and (D) includes a statement of intention to pay the same or higher consideration in a back-end merger; or

     (v) pursuant to any Business Combination, tender or exchange offer to acquire Company Common Stock or other extraordinary transaction that (A) the Board of Directors has recommended; (B) was proposed or made by or on behalf of Tengelmann or any of its Affiliates; or (C) has been accepted by holders of a majority of the shares of Company Common Stock outstanding (other than those owned by Stockholder), but only after all material conditions with respect to such combination or offer (other than any such condition that can be satisfied only at the closing of such offer) have been satisfied or irrevocably waived by the offeror.

          (b) No Transfer of Covered Securities to a controlled Affiliate of Stockholder shall be effective until such time as such controlled Affiliate has executed and delivered to the Company, as a condition precedent to such Transfer, an instrument or instruments, reasonably acceptable to the Company, confirming that such controlled Affiliate agrees to be bound by all obligations of Stockholder hereunder. Stockholder shall not transfer control of any of its controlled Affiliates to any Person that is not also a controlled Affiliate of Stockholder if such transfer would directly or indirectly result in a Transfer of Covered Securities in violation of the provisions of this Section 6.01.

          (c) Until the sixteen-month anniversary of the Closing Date, no Transfer of any Equity Securities of the Company now owned or hereafter acquired by Stockholder or its controlled Affiliates shall be effective if made to any Person or 13D Group (in each case that has a statement on Schedule 13D with respect to the Company in effect), in any single or series of related transactions, such that, after giving effect to such Transfer, such Person or 13D Group (other than Tengelmann or its Affiliates) would have beneficial ownership of Equity Securities of the Company representing more than 35.5% of the Voting Power of the Company’s outstanding capital stock.

43

          (d) After the sixteen-month anniversary of the Closing Date, all restrictions and limitations on Transfers or Encumbrances in this Section 6.01 shall terminate and no Person to which Stockholder Transfers any Convertible Preferred Stock shall be bound by or required to join this Agreement.

          SECTION 6.02. Hedging Transactions. Until the sixteen-month anniversary of the Closing Date, Stockholder, its controlled Affiliates or its Partners shall not enter into any swap, hedge, forward contract, credit default swap, or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of any Convertible Preferred Stock of the Company, whether any such transaction, swap or series of transactions is to be settled by delivery of securities, in cash or otherwise (each, a “Hedging Transaction”). The Company acknowledges that after the sixteen-month anniversary of the Closing Date, there shall be no restriction on Stockholder’s ability to hedge any Equity Securities of the Company or take any of the other actions described in the previous sentence. Further, the Company represents and warrants that it has amended and waived all policies prohibiting or limiting hedging transactions or other actions described in the first sentence of this Section 6.02 by Stockholder, its Affiliates or the Stockholder Directors and the Company agrees not to reinstate, adopt, approve or make applicable any such policies or limitations to the extent applicable to Stockholder, its Affiliates or the Stockholder Designee.

          SECTION 6.03. No Transfer to a Grocery Retailer. Stockholder hereby agrees that it will not at any time, directly or knowingly indirectly (without any duty of investigation), Transfer any Equity Securities of the Company to any Grocery Retailer.

          SECTION 6.04. Improper Transfer or Encumbrance. Any attempt not in compliance with this Agreement to make any Transfer of, or create, incur or assume any Encumbrance with respect to, or any entry into any swap, hedge, forward contract, credit default swap, or any other agreement, transaction or series of transactions that hedges, any Covered Securities shall be null and void and of no force and effect, the purported Transferee shall have no rights or privileges in or with respect to the Company, and the Company shall not give any effect in the Company’s stock records to such attempted Transfer, Encumbrance or hedge.

          SECTION 6.05. Tag-Along Rights. (a) If any Other Investor or a 13D Group that includes any Other Investors (each a “Tag-Along Transferor”) seeks to Transfer in any transaction or series of related transactions (other than a Transfer (i) to a Permitted Transferee of such Other Investor, (ii) pursuant to any Business Combination, tender offer or exchange offer, (iii) in an Underwritten Offering or (iv) conducted as a broker’s transaction) an aggregate amount of Equity Securities of the Company representing in excess of 5% of the outstanding Company Common Stock, assuming the exercise, conversion and exchange of all Convertible Preferred Stock, as a condition to such Transfer, such Other Investor(s) shall provide written notice (the “Tag-Along Notice”) to the Company of such intent to Transfer, and the Company shall promptly (but in any event no later than two Business Days after receipt of such Tag-Along Notice) deliver such Tag-Along Notice to Stockholder. The Tag-Along Notice shall contain the

44

amount of Equity Securities of the Company to be Transferred, the identity of the prospective Transferee, the purchase price, the terms of the prospective Transferee’s financing, if any, and any other material terms and conditions of the Transfer (the “Tag-Along Terms”).

          (b) Upon receipt of a Tag-Along Notice from the Company, Stockholder shall have the right to participate in such proposed Transfer on the Tag-Along Terms on a pro rata basis with the Tag-Along Transferor, exercisable by delivering written notice to the Company within 20 days from the date of receipt of the Tag-Along Notice and the Company shall promptly (but in any event no later than two Business Days after receipt of such written notice) deliver such written notice to the Tag-Along Transferor. The right of Stockholder pursuant to this Section 6.05(b) shall terminate with respect to that proposed Transfer if not exercised within such 20-day period. Such notice from Stockholder shall specify the amount of Stockholder Convertible Preferred Stock or Convertible Underlying Securities (as the case may be) which Stockholder wishes to include in the proposed Transfer, if less than such pro rata amount.

          (c) Following the expiration of the 20-day period referred to in Section 6.05(b), the Tag-Along Transferor shall deliver written notice to the Company to notify the Company of the amount of the Equity Securities of the Company which Stockholder may include in the proposed Transfer (based on the pro rata allocation described in Section 6.05(b)) (the “Tag-Along Shares”). The Company shall promptly (but in any event no later than two Business Days after receipt of such notice) deliver such written notice to Stockholder. Stockholder shall then be entitled and obligated to sell to the prospective Transferee its Tag-Along Shares on the Tag-Along Terms (with Stockholder being subject to the same representations and warranties, covenants, indemnities, holdback and escrow provisions, if any, and any similar components of the Tag-Along Terms to which the Tag-Along Transferor is subject and which have been disclosed as part of the Tag-Along Notice). All reasonable fees and expenses incurred by the Tag-Along Transferor (including in respect of financial advisors, accountants and counsel to the Tag-Along Transferor) in connection with a Transfer pursuant to this Section 6.05 shall be shared on a pro rata basis by Stockholder.

          (d) At the closing of the proposed Transfer (which date, place and time shall be designated by the Tag-Along Transferor and provided to the Stockholder by the Company in writing at least seven days prior thereto), Stockholder shall deliver written instruments of transfer in form and substance satisfactory to the proposed purchaser, duly executed by Stockholder, free and clear of any Encumbrances, against delivery of the purchase price therefor (less Stockholder’s pro rata share of fees and expenses as provided in Section 6.05(c)).

          (e) In the event that, following delivery of a Tag-Along Notice, the 20-day period set forth in Section 6.05(b) shall have expired without any valid exercise of the rights under Section 6.05(b) by Stockholder, the Tag-Along Transferor shall have the right, during the 90-day period following the expiration of such 20-day period, to Transfer to the prospective Transferee all but not less than all of the Equity Securities of the Company held by the Tag-Along Transferor and referenced in the Tag-Along Notice

45

on the Tag-Along Terms without any further obligation under this Section 6.05. In the event that the Tag-Along Transferor shall not have consummated such Transfer within such 90-day period, any subsequent Transfer of the Convertible Preferred Stock or the Convertible Underlying Securities shall once again be subject to the terms of this Section 6.05.

          (f) If (i) the Company breaches the terms of this Section 6.05, (ii) any Tag-Along Transferor or proposed Transferee fails to cooperate in order to give effect to the terms of this Section 6.05 or (iii) for any other reason the terms of this Section 6.05 are not complied with or given effect to enable Stockholder to Transfer the Tag-Along Shares to the proposed Transferee on the terms set forth in this Section 6.05, then in addition to any other rights or remedies available to Stockholder, at the option of Stockholder exercised by written request to the Company, the Company shall repurchase the Tag-Along Shares in cash at a price (without any escrow, deductions or other withholding) equal to the amount Stockholder would have received for such Tag-Along Shares had the terms of this Section 6.05 been fully complied with. The closing of the repurchase and payment by the Company of the repurchase price shall occur on the same day as the closing of the Transfer by the Tag-Along Transferor or such later date as designated by Stockholder.

          SECTION 6.06. Right of First Offer. (a) If Stockholder (the “First Offer Transferor”) desires to engage in or effect a Transfer of Equity Securities (other than in an Exempt Transfer) in an amount of more than 5% of the Stockholder Percentage Interest during any twelve-month period to any one Person, the First Offer Transferor shall first deliver to the Company (the “First Offer Offeree”) written notice (the “First Offer Notice”) of its bona fide intention to Transfer such Equity Securities, indicating the number of shares of Equity Securities to be offered for Transfer (the “Offered Stock”), the per share price at which the First Offer Transferor proposes to Transfer the Offered Stock (the “Offer Price”) and all other material terms and conditions on which the First Offer Transferor proposes to Transfer the Offered Stock (including the identity of the proposed Transferee).

          (b) Delivery of a First Offer Notice shall constitute an offer by the First Offer Transferor, irrevocable through and including the Offer Date (as defined below) to Transfer to the First Offer Offeree, subject to the terms of this Section 6.06, all or any portion of the Offered Stock at the Offer Price and on the terms and conditions set forth in the First Offer Notice.

          (c) During the three Trading Days following the receipt of such First Offer Notice (such third Trading Day, for the purposes of this Section 6.06, the “Offer Date”), the First Offer Offeree shall have the right to exercise the right to purchase, at the Offer Price, the Offered Stock by delivery of a reply notice (a “First Offer Acceptance”) to the First Offer Transferor setting forth (x) its irrevocable election to purchase from the First Offer Transferor all or any portion of the Offered Stock (the “Accepted Offered Stock”), (y) closing arrangements and (z) a closing date not less than 30 nor more than 45 days following the Offer Date. The First Offer Acceptance shall constitute a binding commitment of the First Offer Offeree to purchase, and a binding commitment of the

46

First Offer Transferor to Transfer, the Accepted Offered Stock at the Offer Price. The First Offer Transferor shall transfer to the First Offer Offeree the Accepted Offered Stock, free and clear of all Encumbrances and shall deliver to the First Offer Offeree such other documents and instruments of transfer as the First Offer Offeree reasonably may request.

          (d) If the First Offer Offeree does not respond to the First Offer Notice within the required response time period set forth above, or elects by written notice to the First Offer Transferor (an “Election Notice”), not to purchase the Offered Stock, the First Offer Transferor shall be free to Transfer the Offered Stock in any manner permitted by this Agreement; provided that (x) such Transfer is consummated within 90 days after the latest of (A) the expiration of the foregoing required response time periods, or (B) the receipt by the First Offer Transferor of the foregoing Election Notice, and (y) the price at which the Equity Security is Transferred must be equal to or higher than the Offer Price.

          (e) In the event that the First Offer Transferor shall not have consummated such Transfer within such 90 day period, any subsequent Transfer of Equity Securities shall once again be subject to the terms of this Section 6.06.

          SECTION 6.07. Restrictive Legend. (a) Each certificate representing the Covered Securities or Preferred Covered Securities shall be stamped or otherwise imprinted with a legend in substantially the following form (in addition to any legends required by agreement between the Company and Stockholder or by applicable securities laws):

          THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENTS REFERRED TO BELOW (AS SUCH AGREEMENTS MAY BE AMENDED FROM TIME TO TIME). THIS INSTRUMENT IS ISSUED PURSUANT TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF AN INVESTMENT AGREEMENT, DATED AS OF JULY 23, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN AND AN AMENDED AND RESTATED STOCKHOLDER AGREEMENT, DATED AS OF AUGUST 4, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN. THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED

47

EXCEPT IN COMPLIANCE WITH SAID AGREEMENTS. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENTS WILL BE VOID. THE FOREGOING SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SAID AGREEMENTS, COPIES OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.

          THE COMPANY IS AUTHORIZED TO ISSUE DIFFERENT CLASSES AND SERIES OF STOCK. THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES OF STOCK AND THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES FOR EACH CLASS AND SERIES OF STOCK (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF FUTURE CLASSES AND SERIES OF STOCK) WILL BE FURNISHED WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.

          (b) Stockholder consents to the Company’s making a notation on its records and giving instructions to any transfer agent of its capital stock in order to implement the restrictions on transfer established in this Agreement.

          (c) The Company shall, at the request of Stockholder, remove from each certificate representing Company Common Stock or Convertible Preferred Stock transferred in compliance with the terms of Section 6.01 or to which the restrictions set forth in Section 6.01 do not apply and with respect to which no rights or obligations under this Agreement shall transfer, the legend described in Section 6.07(a), and shall remove from each certificate representing such securities any Securities Act legend if, at the request of the Company, Stockholder provides, at its expense, an opinion of counsel satisfactory to the Company that the securities evidenced thereby may be transferred without the imposition of any such legend.

          (d) At any time following the termination of this Agreement, the Company shall, at the request of Stockholder, remove from each certificate representing Company Common Stock or Convertible Preferred Stock the legend described in Section 6.07(a).

ARTICLE VII

Covenants

          SECTION 7.01. Stockholder Approvals. (a) (x) as promptly as practicable after the date hereof, the Company, acting through the Board of Directors, shall, in accordance with applicable Law, the Charter and By-Laws, duly call, establish a

48

record date for, give notice of, convene and hold an annual or special meeting of the holders of Voting Stock for the purposes of considering and taking action to obtain the Conversion Stockholder Approval and (y) on or prior to the first anniversary of the date hereof, the Company, acting through the Board of Directors, shall, in accordance with applicable Law, the Charter and By-Laws, duly call, establish a record date for, give notice of, convene and hold an annual or special meeting of the holders of Voting Stock for the purposes of considering and taking action to obtain the Charter Amendment Stockholder Approval and, in each case, shall include in a proxy statement filed with the SEC under the Exchange Act (the “Proxy Statement”) the recommendation of the Board of Directors that the holders of Voting Stock adopt such Conversion Stockholder Approval or Charter Amendment Stockholder Approval , as applicable, which recommendation shall include that the Board of Directors has found it advisable that such holders adopt the Conversion Stockholder Approval or Charter Amendment Stockholder Approval, as applicable.

          (b) (x) as promptly as practicable after the date hereof but in no event later than September 1, 2009, with respect to the Conversion Stockholder Approval and (y) no later than August 4, 2010, with respect to the Charter Amendment Stockholder Approval, the Company shall, in each case, file a Proxy Statement with the SEC under the Exchange Act, and shall use its reasonable best efforts to have such Proxy Statement cleared by the SEC promptly. Stockholder and its counsel will be given a reasonable opportunity to review and comment on the applicable Proxy Statement and any amendments or supplements thereto in advance of their filings; it being understood that any disclosure specifically regarding Stockholder shall be subject to Stockholder’s final review and approval (such approval not to be unreasonably withheld). In addition, the Company shall provide Stockholder and its counsel a written copy of any comments the Company or its counsel may receive from the SEC or its staff with respect to the applicable Proxy Statement promptly after receipt of such comments and with copies of any written responses to such comments, other correspondence and telephonic notification of any verbal responses to such comments by the Company or its counsel. The Company agrees to use its reasonable best efforts, after consultation with Stockholder, to respond promptly to all such comments of and requests by the SEC and to cause the applicable Proxy Statement and all required amendments and supplements thereto to be mailed to the holders entitled to vote at the stockholders’ meeting at the earliest practicable time. Stockholder agrees to use its reasonable best efforts to respond promptly to any comments and requests by the SEC specifically directed to Stockholder. The Company will promptly reimburse Stockholder for all reasonable legal fees incurred by Stockholder or on Stockholder’s behalf in connection with the applicable Proxy Statement and any SEC comments or requests; provided, however, that such reimbursement obligation shall not exceed $50,000 in the aggregate without the consent of the Company.

          SECTION 7.02. Voting Agreement. (a) Stockholder agrees that as long as any shares of Convertible Preferred Stock are outstanding and until the Company obtains the Stockholder Approvals, at any annual or special meeting of the holders of Company Common Stock, however called, or at any adjournment thereof, and in any action by written consent of the holders of Company Common Stock, Stockholder will,

49

and will cause each of its Affiliates to, vote all of the Stockholder Convertible Preferred Shares and shares of Company Common Stock now or hereafter beneficially owned by Stockholder or an Affiliate of Stockholder (the “Subject Securities”) in favor of the Stockholder Approvals.

          (b) Stockholder hereby irrevocably grants to, and appoints the Company and any individual designated in writing by the Company, as Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of Stockholder, to vote, or cause to be voted, the Subject Securities, or grant a consent or approval in respect of the Subject Securities in a manner consistent with Section 7.02(a). Stockholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Stockholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is executed and intended to be irrevocable in accordance with Section 2-507 of the MGCL. The irrevocable proxy granted hereunder shall terminate immediately upon the date on which the Company obtains the Stockholder Approvals.

          SECTION 7.03. Petition for Bankruptcy. Stockholder agrees not to, and agrees to cause its Affiliates not to, commence an involuntary case or proceeding against the Company or any Subsidiary under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar Law or any other case or proceeding to cause the Company or any of its Subsidiaries to be adjudicated bankrupt or insolvent.

ARTICLE VIII

Miscellaneous

          SECTION 8.01. Certain Opportunities. (a) Certain Acknowledgments. In recognition and anticipation (i) that the Company will not be a wholly-owned Subsidiary of Stockholder and that Stockholder and its Affiliates (including portfolio companies) may be controlling or significant stockholders of the Company, (ii) that directors, officers or employees of any of Stockholder or its Affiliates may serve as directors or officers of the Company, (iii) that any of Stockholder or its Affiliates may engage (and are expected to continue to engage) in the same, similar or related lines of business as those in which the Company, directly or indirectly, may engage or other business activities that overlap with or compete with those in which the Company, directly or indirectly, may engage, (iv) that any of Stockholder or its Affiliates may have an interest in the same areas of opportunity as the Company and any Affiliate thereof, (v) that any of Stockholder or its Affiliates may engage in material business transactions with the Company and any Affiliate thereof, and that any of the Stockholder or the Company may benefit therefrom, and (vi) that, as a consequence of the foregoing, it is in the best interests of the Company that the respective rights and duties of the Company and of any of Stockholder and its Affiliates, and the duties of any directors or officers of the Company who are also directors, officers or employees of any of Stockholder or its Affiliates, be determined and delineated in respect of any transactions between, or opportunities that may be suitable for both, the Company or any Affiliate thereof, on the one hand, and any Stockholder or its Affiliates, on the other hand, and in recognition of

50

the benefits to be derived by the Company through its continual contractual, corporate and business relations with any of Stockholder or its Affiliates (including possible service of officers and directors of any of Stockholder or its Affiliates as officers and directors of the Company), the provisions of this Section 8.01 shall to the fullest extent permitted by Law regulate and define the interest and reasonable expectancy of the Company in connection therewith.

          (b) Certain Agreements and Transactions Permitted; Certain Duties of Certain Stockholders, Directors and Officers. The Company may from time to time enter into and perform, and cause or permit any Subsidiary or Affiliate of the Company to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with any of Stockholder or its Affiliates pursuant to which the Company or any Affiliate thereof, on the one hand, and Stockholder or its Affiliates, on the other hand, agree to engage in transactions of any kind or nature with each other or with any Affiliate thereof or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective Representatives (including any who are directors, officers, stockholders, employees or agents of both) to allocate opportunities between or to refer opportunities to each other. No such agreement, or the performance thereof by the Company or any of Stockholder or its Affiliates, shall to the fullest extent permitted by Law be considered contrary to (i) any duty that any of Stockholder or its Affiliates may owe to the Company or any Affiliate thereof or to any stockholder or other owner of an equity interest in the Company or any Affiliate thereof by reason of any of Stockholder or its Affiliates being a controlling or significant stockholder of the Company or of any Affiliate thereof or participating in the control of the Company or of any Affiliate thereof or (ii) any duty of any director or officer of the Company or of any Affiliate thereof who is also a director, officer, employee or agent of any of Stockholder or its Affiliates to the Company or any Affiliate thereof, or to any stockholder thereof. To the fullest extent permitted by law, none of Stockholder or its Affiliates, as a stockholder of the Company or any Affiliate thereof, or participant in control of the Company or any Affiliate thereof, shall have or be under any duty to refrain from entering into any agreement or participating in any transaction referred to above.

          (c) Similar Activities or Lines of Stockholder Business. Except as otherwise agreed in writing between the Company and Stockholder or its Affiliates shall to the fullest extent permitted by Law have no duty to refrain from (i) engaging in the same or similar activities or lines of business as the Company or any Affiliate thereof and (ii) doing business with any client, customer or vendor of the Company or any Affiliate thereof, and no Stockholder nor any officer, director, employee or Affiliate of Stockholder shall to the fullest extent permitted by Law be deemed to have breached its or his or her duties, if any, to the Company solely by reason of any of Stockholder or its Affiliates engaging in any such activity. To the extent permitted by Law, neither the Company, any Affiliate thereof nor any of their respective stockholders shall have any rights in or to any of the activities described in the foregoing sentence or the income or profits derived therefrom. In the event that any Stockholder or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for any of Stockholder or its Affiliates and the Company or any Affiliate thereof, Stockholder and

51

its Affiliates shall to the fullest extent permitted by Law have no duty to communicate or offer such opportunity to the Company or any Affiliate thereof and shall not to the fullest extent permitted by Law be liable to the Company or its stockholders for breach of any duty as a stockholder of the Company by reason of the fact that any of the Stockholder or its Affiliates acquires or seeks such opportunity for itself, directs such opportunity to another person or entity, or otherwise does not communicate information regarding such opportunity to the Company or any Affiliate thereof.

          (d) Duties of Directors and Officers of the Company. In the event that a director or officer of the Company who is also a director, officer or employee of any Stockholder or its Affiliates acquires knowledge of a potential transaction or matter which may be an opportunity for the Company or any Affiliate thereof or, any Stockholder or its Affiliates, such director or officer shall, to the fullest extent permitted by Law have fully satisfied and fulfilled his or her duty with respect to such opportunity, and the Company to the fullest extent permitted by Law acknowledges that it does not have any claim that such business opportunity constituted an opportunity that should have been presented to the Company or any Affiliate thereof, if such director or officer acts in a manner consistent with the following policy: such an opportunity offered to any person who is an officer or director of the Company, and who is also an officer, director or employee of any of Stockholder or its Affiliates, shall belong to the Stockholder or its Affiliates, unless such opportunity was offered to such person in his or her capacity as a director, officer or employee of the Company.

          (e) This Section 8.01 is also intended to apply to any Subsidiaries of the Company. In addition, any references to a director of Stockholder in this Section 8.01 shall include any Person performing a similar function. The Company represents, warrants and agrees that it and its Subsidiaries and their respective boards of directors have not adopted and will not adopt any codes of conduct or ethics or other policies inconsistent with this Section 8.01.

          SECTION 8.02. Adjustments. References to numbers of shares and to sums of money contained herein will be adjusted to account for any reclassification, exchange, substitution, combination, stock split or reverse stock split of the shares.

          SECTION 8.03. Notices. All notices, requests, claims, demands and other communications under this Agreement will be in writing and will be deemed given (i) when delivered, if delivered in person, (ii) when sent by facsimile (provided the facsimile is promptly confirmed by telephone confirmation thereof), (iii) when sent by email (provided the email is promptly confirmed by telephone confirmation thereof) or (iv) two business days following sending by overnight delivery by an internationally recognized overnight courier, in each case to the respective parties at the following addresses (or at such other address for a party as will be specified in a notice given in accordance with this Section 8.03):

If to any of the Stockholders, to:

Yucaipa American Alliance Fund II, LLC

52

9130 W. Sunset Boulevard
Los Angeles, California 90069
Fax: (310) 789-1791
Email: legal@yucaipaco.com

with a copy (which shall not constitute notice to any Stockholder) to:

Latham & Watkins LLP
355 South Grand Avenue
Los Angeles, California 90071
Attn: Robert O’Shea, Esq.
Fax: (213) 891-8763
Email: robert.oshea@lw.com

If to the Company, to:

The Great Atlantic & Pacific Tea Company, Inc.
Two Paragon Drive
Montvale, New Jersey 07645
Attn: Allan Richards, Esq.
Fax: (201) 571-4106
Email: richarda@aptea.com

with a copy (which shall not constitute notice to the Company) to:

Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attn: Patrick J. Dooley, Esq.
Fax: (212) 872-1002
Email: pdooley@akingump.com

and,

Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Attn: Kenneth W. Orce, Esq.
Fax: (212) 269-5420
Email: korce@cahill.com

          SECTION 8.04. Reasonable Efforts; Further Actions. The parties hereto each will use commercially reasonable efforts to take or cause to be taken all action and to do or cause to be done all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable.

53

          SECTION 8.05. Consents. The parties hereto will cooperate with each other in filing any necessary applications, reports or other documents with, giving any notices to, and seeking any consents from, all regulatory bodies and all Governmental Entities and all Third Parties as may be required in connection with the consummation of the transactions contemplated by this Agreement.

          SECTION 8.06. Expenses. Except as otherwise set forth herein or in the Investment Agreement, each party to this Agreement shall pay its own expenses incurred in connection with this Agreement. If the Company reimburses Tengelmann for its out-of-pocket costs and expenses in connection with any transaction, and Stockholder is involved in such transaction, then the Company shall also reimburse Stockholder for its reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel, incurred in connection with such transaction.

          SECTION 8.07. Amendments; Waivers. (a) No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed, in the case of an amendment, by the parties hereto or, in the case of a waiver, by the party against whom the waiver is to be effective.

          (b) The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights nor will any single or partial exercise by any party to this Agreement of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under this Agreement. The rights and remedies herein provided will be cumulative and not exclusive of any rights or remedies provided by Law or otherwise.

          SECTION 8.08. Interpretation. When a reference is made in this Agreement to an Article, a Section, a subsection or a Schedule, such reference will be to an Article, a Section, a subsection or a Schedule of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” and “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “date hereof” will refer to the date of this Agreement. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” will mean the degree to which a subject or other thing extends, and such phrase will not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms. Any agreement, instrument, rule or statute defined or referred to herein or in any agreement, instrument, rule or statute that is referred to herein means such agreement, instrument, rule or statute as from time to time amended, modified or supplemented. References to a Person are also to its permitted successors and assigns.

          SECTION 8.09. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, all other conditions and provisions of this Agreement will nevertheless remain in

54

full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Without limiting the generality of the foregoing, (i) the invalidity, illegality or unenforceability of the Stockholder Mirror Vote provisions hereof will be deemed to materially adversely affect the economic and legal substance of the transactions contemplated hereby in the event Stockholder ceases to comply therewith and (ii) the invalidity, illegality or unenforceability of the rights and privileges of Stockholder under the various provisions of Article II hereof or Section 8.01 hereof will be deemed to materially adversely affect the economic and legal substance of the transactions contemplated hereby in the event the Company ceases to comply therewith. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the purpose of this Agreement is fulfilled to the fullest extent possible.

          SECTION 8.10. Counterparts. This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement, and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties.

          SECTION 8.11. Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and is not intended to and does not confer upon any Person other than the parties any rights or remedies.

          SECTION 8.12. Governing Law. This Agreement will be governed by, and construed in accordance with, the MGCL, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws thereof. The parties declare that it is their intention that this Agreement will be regarded as made under the MGCL and that the laws of the State of Maryland will be applied in interpreting its provisions in all cases where legal interpretation will be required, except to the extent the Maryland Corporations and Associations Code is specifically required by such code to govern the interpretation of this Agreement.

          SECTION 8.13. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement will be assigned, in whole or in part, by any of the parties without the prior written consent of the other parties hereto except as provided in Section 3.14. Any purported assignment without such prior written consent will be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

          SECTION 8.14. Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to an injunction or injunctions to prevent breaches

55

of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Supreme Court of the State of New York sitting in New York County or the United States District Court of the Southern District of New York, or in each case any appellate court thereof, without the necessity of proving the inadequacy of money damages as a remedy, this being in addition to any other remedy to which they are entitled at Law or in equity. In addition, each of the parties: (a) irrevocably and unconditionally consents to submit itself and its property to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and in each case any appellate court thereof, in the event any dispute arises out of this Agreement, or for recognition or enforcement of any judgment; (b) agrees that it will not attempt to deny or defeat such exclusive jurisdiction by motion or other request for leave from any such court; (c) irrevocably and unconditionally waives (and agrees not to plead or claim) any objection to the laying of venue, or the defense of an inconvenient forum to the maintenance, of any action, suit or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment; (d) agrees that it will not bring any action arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, in any court other than the Supreme Court of the State of New York sitting in New York County or the United States District Court of the Southern District of New York, or in each case any appellate court thereof; and (e) waives any right to trial by jury with respect to any action related to or arising out of this Agreement, or for recognition or enforcement of any judgment. Each of the parties hereto agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of the parties to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.03. Nothing in this Agreement will affect the right of either party to this Agreement to serve process in any other manner permitted by Law.

          SECTION 8.15. Termination; Survival. Notwithstanding anything to the contrary contained in this Agreement, this Agreement will automatically terminate at such time that the Stockholder Percentage Interest is less than 10%, and this Agreement shall thereafter be null and void, except that Article III, Article VIII, Section 2.01(c) (to the extent necessary to effect the resignation of the Stockholder Directors), Section 6.07(d) and Section 8.16 shall survive any such termination until Stockholder no longer holds Registrable Securities. Nothing in this Section 8.15 will be deemed to release either party from any liability for any willful and material breach of this Agreement or to impair the right of either party to compel specific performance by the other party of its obligations under this Agreement. For purposes of clarity, and notwithstanding anything to the contrary herein, no hedging transaction or other actions described in the first sentence of Section 6.02 will be deemed to reduce the Stockholder Percentage Interest, result in a termination of this Agreement or result in a loss of rights under Article II or any other provision hereof.

          SECTION 8.16. Confidentiality. (a) Stockholder agrees to maintain, and shall cause its Representatives to maintain, the confidentiality of all material non-public information obtained by it from the Company or any of its Subsidiaries or any of their respective Representatives, and not to use such information for any purpose other (i) than

56

the evaluation of its investment in the Company, (ii) the protection or Transfer of its investment in the Company (in each case, in accordance with the terms of this Agreement, and, in the case of any Transfer, so long as the Transferee (x) agrees to maintain the confidentiality of such information and (y) confirms that it is not a Grocery Retailer), (iii) the exercise of any of its respective rights under this Agreement and (iv) the exercise by the Stockholder Directors of their duties as Directors.

          (b) Notwithstanding the foregoing, the confidentiality obligations of Section 8.16(a) will not apply to information obtained other than in violation of this Agreement:

     (i) which Stockholder or any of its Representatives is required to disclose by judicial or administrative process, or by other requirements of applicable Law or regulation or any governmental authority (including any applicable rule, regulation or order of a self-governing authority, such as the NYSE); provided that, where and to the extent practicable, the disclosing party (A) gives the other party reasonable notice of any such requirement and, to the extent protective measures consistent with such requirement are available, the opportunity to seek appropriate protective measures and (B) cooperates with such party in attempting to obtain such protective measures;

     (ii) which becomes available to the public other than as a result of a breach of Section 8.16(a); or

     (iii) which has been provided to Stockholder or any of its Representatives by a Third Party who obtained such information other than from any such Person or other than as a result of a breach of Section 8.16(a).

          SECTION 8.17. No Joint and Several Liability. Notwithstanding anything to the contrary in this Agreement, all representations, warranties, covenants, liabilities and obligations under this Agreement are several, and not joint, to each Stockholder, and no Stockholder will be liable for any breach, default, liability or other obligation of the other Stockholders party to this Agreement.

          SECTION 8.18. No Liability of Partners. Notwithstanding anything that may be expressed or implied in this Agreement, the Company acknowledges and agrees that (i) notwithstanding that certain of the Stockholders below may be partnerships, no recourse hereunder or under any documents or instruments delivered by any Stockholders in connection herewith may be had against any officer, agent or employee of any Stockholders or any partner, member or stockholder of any Stockholder or any director, officer, employee, partner, affiliate, member, manager, stockholder, assignee or representative of the foregoing (any such Person or entity, a “Representative”), whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law and (ii) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any Representative under this Agreement or any documents or instruments delivered in

57

connection herewith or for any claim based on, in respect of or by reason of such obligations or by their creation.

58

          IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Stockholder Agreement as of the day and year first above written.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,
	by
		/s/ Brenda Galgano
		Name:	Brenda Galgano
		Title:	Senior Vice President, Chief Financial Officer

YUCAIPA CORPORATE INITIATIVES FUND I, LP,
	by
		Yucaipa Corporate Initiatives Fund I,
		LLC, its General Partner,
		/s/ Robert P. Bermingham
		Name:	Robert P. Bermingham
		Title:	Vice President

YUCAIPA AMERICAN ALLIANCE FUND I, LP,
	by
		Yucaipa American Alliance Fund I,
		LLC, its General Partner,
		/s/ Robert P. Bermingham
		Name:	Robert P. Bermingham
		Title:	Vice President
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP,
	by
		Yucaipa American Alliance Fund I,
		LLC, its General Partner,
		/s/ Robert P. Bermingham
		Name:	Robert P. Bermingham
		Title:	Vice President

S-1

YUCAIPA AMERICAN ALLIANCE FUND II, LP,
	by
		Yucaipa American Alliance Fund II,
		LLC, its General Partner,
		/s/ Robert P. Bermingham
		Name:	Robert P. Bermingham
		Title:	Vice President
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP,
	by
		Yucaipa American Alliance Fund II,
		LLC, its General Partner,
		/s/ Robert P. Bermingham
		Name:	Robert P. Bermingham
		Title:	Vice President

S-2

SCHEDULE I

INVESTMENT BANKS

Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Goldman Sachs & Co.
J.P. Morgan Securities Inc.
UBS Securities LLC

Sch I - 1

SCHEDULE II

		Series B Warrants to	Convertible Preferred
	Common Stock	Acquire	Stock
Yucaipa Corporate Initiatives Fund I, LP	892,372	2,397,648.39 Shares of Common Stock		0
Yucaipa American Alliance Fund I, LP	850,125	2,284,104.90 Shares of Common Stock		0
Yucaipa American Alliance (Parallel) Fund I, LP	850,113	2,284,104.90 Shares of Common Stock		0
Yucaipa American Alliance Fund II, LP	0	0		69,327
Yucaipa American Alliance (Parallel) Fund II, LP	0	0		45,673

Sch II - 1

EX-10.3

EXHIBIT 10.3

EXECUTION VERSION

REGISTRATION RIGHTS AGREEMENT

by and among

The Great Atlantic & Pacific Tea Company, Inc.,
the Guarantors Named Herein

and

Banc of America Securities LLC

Dated as of August 4, 2009

REGISTRATION RIGHTS AGREEMENT

     This Registration Rights Agreement (this “Agreement”) is made and entered into as of August 4, 2009, by and among The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”), the guarantors listed on Schedule A hereto (collectively, the “Guarantors”), and Banc of America Securities LLC (the “Initial Purchaser”), who has agreed to purchase the Company’s 11³/₈% Senior Secured Notes due 2015 (the “Notes”) fully and unconditionally guaranteed by the Guarantors (the “Guarantees”) pursuant to the Purchase Agreement (as defined below). The Notes and the Guarantees attached thereto are herein collectively referred to as the “Securities.”

     This Agreement is made pursuant to the Purchase Agreement, dated July 30, 2009 (the “Purchase Agreement”), by and among the Company, the Guarantors and the Initial Purchaser (i) for the benefit of the Initial Purchaser and (ii) for the benefit of the holders from time to time of Transfer Restricted Securities, including the Initial Purchaser. In order to induce the Initial Purchaser to purchase the Securities, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchaser set forth in Section 5(g) of the Purchase Agreement.

     The parties hereby agree as follows:

SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings:

     Additional Interest: As defined in Section 5 hereof.

     Advice: As defined in Section 6(c) hereof.

     Agreement: As defined in the preamble hereto.

     Broker-Dealer: Any broker or dealer registered under the Exchange Act.

     Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking institutions or trust companies located in the City of New York, New York are authorized or obligated to be closed.

     Closing Date: The date of this Agreement.

     Commission: The U.S. Securities and Exchange Commission.

     Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the registrar under the Indenture of Exchange Securities in the same aggregate principal

amount as the aggregate principal amount of the Securities that were tendered by Holders thereof pursuant to the Exchange Offer.

     Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

     Exchange Date: As defined in Section 3(a) hereto.

     Exchange Offer: The registration by the Company and the Guarantors under the Securities Act of the Exchange Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders.

     Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus.

     Exchange Securities: The 11³/₈% Senior Secured Notes due 2015, of the same series under the Indenture as the Securities to be issued to Holders in exchange for Transfer Restricted Securities pursuant to this Agreement.

     FINRA: Financial Industry Regulatory Authority, Inc.

     Holders: As defined in Section 2(b) hereof.

     Indemnified Holder: As defined in Section 8(a) hereof.

     Indenture: The Indenture, dated as of August 4, 2009, by and among the Company, the Guarantors and Wilmington Trust Company, as trustee (the “Trustee”), pursuant to which the Securities and the Exchange Securities are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof.

     Initial Placement: The issuance and sale by the Company of the Securities to the Initial Purchaser pursuant to the Purchase Agreement.

     Initial Purchaser: As defined in the preamble hereto.

     Interest Payment Date: As defined in the Indenture and the Securities.

     Person: An individual, partnership, corporation, limited liability company, trust or unincorporated organization, or a government or agency or political subdivision thereof or other similar entity.

     Prospectus: The prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.

-2-

     Registration Default: As defined in Section 5 hereof.

     Registration Statement: Any registration statement of the Company and the Guarantors relating to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein.

     Securities: As defined in the preamble hereto.

     Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

     Shelf Filing Deadline: As defined in Section 4(a) hereof.

     Shelf Registration Statement: As defined in Section 4(a) hereof.

     Transfer Restricted Securities: Each Security, until the earliest to occur of (a) the date on which such Security is exchanged in the Exchange Offer for an Exchange Security entitled to be resold to the public by the holder thereof without complying with the prospectus delivery requirements of the Securities Act, (b) the date on which such Security has been effectively registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement and (c) the date on which such Security ceases to be outstanding.

     Trust Indenture Act: The Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder.

     Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public.

SECTION 2. Securities Subject to this Agreement.

     (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities.

     (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.

SECTION 3. Registered Exchange Offer.

     (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) hereof have been complied with), or there are less than $26,000,000 of Transfer Restricted Securities outstanding, each of the Company and the Guarantors shall use its commercially reasonable efforts to (i) cause to be filed with the Commission a Registration Statement

-3-

under the Securities Act relating to the Exchange Securities and the Exchange Offer, (ii) cause such Registration Statement to become effective, (iii) in connection with the foregoing, file (A) all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) if applicable, a post-effective amendment to such Registration Statement pursuant to Rule 430B under the Securities Act and (C) cause all necessary filings in connection with the registration and qualification of the Exchange Securities to be made under the state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of such Registration Statement, commence the Exchange Offer. Each of the Company and the Guarantors shall use its commercially reasonable efforts to Consummate the Exchange Offer not later than 730 days following the Closing Date (or if such 730th day is not a Business Day, the next succeeding Business Day) (the “Exchange Date”). The Exchange Offer, if required pursuant to this Section 3(a), shall be on the appropriate form permitting registration of the Exchange Securities to be offered in exchange for the Transfer Restricted Securities and to permit resales of Transfer Restricted Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.

     (b) If an Exchange Offer Registration Statement is required to be filed and declared effective pursuant to Section 3(a) above, the Company and the Guarantors shall cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days after the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement.

     (c) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds Transfer Restricted Securities and that were acquired for its own account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company), may exchange the Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Securities received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not name any such Broker-Dealer or disclose the amount of Securities held by any such Broker-Dealer except to the extent required by the Commission.

-4-

     Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of Securities acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities.

     The Company shall provide sufficient copies of the latest version of such Prospectus to Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales.

SECTION 4. Shelf Registration.

     (a) Shelf Registration. If (i) the Company and the Guarantors are not required to file the Exchange Offer Registration Statement or to consummate the Exchange Offer solely because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) hereof have been complied with), (ii) for any reason the Exchange Offer is not Consummated by the Exchange Date, or (iii) prior to the Exchange Date: (A) with respect to any Holder of Transfer Restricted Securities such Holder notifies the Company that (i) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, (ii) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (iii) such Holder is a Broker-Dealer and holds Transfer Restricted Securities acquired directly from the Company or one of its affiliates or (B) the Initial Purchaser notifies the Company it will not receive freely tradable Exchange Securities in exchange for Transfer Restricted Securities constituting any portion of the Initial Purchaser’s unsold allotment, then the Company and the Guarantors shall:

     (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the “Shelf Registration Statement”) on or prior to the later to occur of (i) the 90th day after the date such obligation arises (or if such 90th day is not a Business Day, the next succeeding Business Day) and (ii) the 730th day after the Closing Date (or if such 730th day is not a Business Day, the next succeeding Business Day) (such date being the “Shelf Filing Deadline”), which Shelf Registration Statement shall provide for resales of all

-5-

Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and

     (y) use their commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or before the 90th day after the Shelf Filing Deadline (or if such 90th day is not a Business Day, the next succeeding Business Day).

     Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Transfer Restricted Securities by the Holders of such Securities entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years following the effective date of such Shelf Registration Statement (or shorter period that will terminate when all the Securities covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration Statement).

     (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.

SECTION 5. Additional Interest.

     If either (i) the Exchange Offer has not been Consummated by the Exchange Date, (ii) any Shelf Registration Statement, if required hereby, has not been declared effective by the Commission in accordance with the requirements of Section 4(a) or (iii) any Registration Statement required by this Agreement has been declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded immediately by a post-effective amendment to such Registration Statement that cures such failure and that is itself immediately declared or automatically becomes effective (each such event referred to in clauses (i) through (iii), a “Registration Default”), the Company hereby agrees that the interest rate borne by the Transfer Restricted Securities shall be increased by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.25% per annum at the end of each subsequent 90-day period (such increase, “Additional Interest”), but in no event shall such increase exceed 1.00% per annum. Following the earliest of (x) the cure of all Registration Defaults relating to the particular Transfer Restricted Securities and (y) the date on which such Transfer Restricted Securities cease to be Transfer Restricted

-6-

Securities, the interest rate borne by the relevant Transfer Restricted Securities will be reduced to the original interest rate borne by such Transfer Restricted Securities; provided, however, that, if after any such reduction in interest rate, a different Registration Default occurs, the interest rate borne by the relevant Transfer Restricted Securities shall again be increased pursuant to the foregoing provisions.

     Notwithstanding the foregoing, (i) the amount of Additional Interest payable shall not increase because more than one Registration Default has occurred and is pending and (ii) a Holder of Transfer Restricted Securities that is not entitled to the benefits of the Shelf Registration Statement (because, e.g., such Holder has not elected to include information or has not timely delivered such information to the Company pursuant to Section 4(b) hereof) shall not be entitled to Additional Interest with respect to a Registration Default that pertains to the Shelf Registration Statement.

     All obligations of the Company and the Guarantors set forth in the first paragraph of this Section 5 that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full.

SECTION 6. Registration Procedures.

     (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, if required pursuant to Section 3(a) hereof, the Company and the Guarantors shall comply with all of the provisions of Section 6(c) hereof, shall use their commercially reasonable efforts to effect such exchange to permit the sale of Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and shall comply with all of the following provisions:

     (i) If in the reasonable opinion of counsel to the Company, there is a question as to whether the Exchange Offer is permitted by applicable law, the Company and the Guarantors hereby agree to seek a favorable decision from the Commission allowing the Company and the Guarantors to Consummate an Exchange Offer for such Securities. The Company and the Guarantors hereby agree to pursue the issuance of such a decision to the Commission staff level but shall not be required to take commercially unreasonable action to effect a change of Commission policy. The Company and the Guarantors hereby agree, however, to (A) participate in telephonic conferences with the Commission, (B) deliver to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that such an Exchange Offer should be permitted and (C) diligently pursue a favorable resolution by the Commission staff of such submission.

     (ii) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the letter of

-7-

transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company or any Guarantor, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution of the Exchange Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange Securities in its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Company’s preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such Holder in exchange for the Securities acquired by such Holder directly from the Company.

     (b) Shelf Registration Statement. If required pursuant to Section 4, in connection with the Shelf Registration Statement, each of the Company and the Guarantors shall comply with all the provisions of Section 6(c) hereof and shall use its commercially reasonable efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company and the Guarantors will as expeditiously as is commercially reasonable prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof.

     (c) General Provisions. In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Registration Statement and the related Prospectus required to permit resales of Securities by Broker-Dealers), the Company and the Guarantors shall:

     (i) use their commercially reasonable efforts to keep such Registration Statement continuously effective during the period required by this Agreement and provide all requisite financial statements (including, if required by the Securities Act or any regulation thereunder, financial statements of the Guarantors for the period specified in Section 3 or 4 hereof, as applicable); upon the

-8-

occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use their commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;

     (ii) prepare and file with the Commission such amendments and post-effective amendments to the applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;

     (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, and (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or blue

-9-

sky laws, each of the Company and the Guarantors shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest practicable time;

     (iv) furnish without charge to the Initial Purchaser (to the extent it is a selling Holder and has requested such copies), each selling Holder named in any Registration Statement that has requested such copies, and each of the underwriter(s), if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Registration Statement), which documents will be subject to the review and comment of such requesting Holders and underwriter(s) in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus (including all such documents incorporated by reference) to which the Initial Purchaser of Transfer Restricted Securities covered by such Registration Statement, if applicable, or the underwriter(s), if any, shall reasonably object in writing within five Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period). The objection of the Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission;

     (v) to the extent practicable, promptly prior to the filing of any document that is to be incorporated by reference into a Registration Statement or Prospectus, provide copies of such document to the Initial Purchaser, each selling Holder named in any Registration Statement that has requested such documents, and to the underwriter(s), if any, make the Company’s and the Guarantors’ representatives available for discussion of such document and other customary due diligence matters, subject to customary confidentiality agreements, and include such information in such document prior to the filing thereof as such selling Holders or underwriter(s), if any, reasonably may request;

     (vi) make available, subject to customary confidentiality agreements, at reasonable times for inspection by the Initial Purchaser, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by the Initial Purchaser or any of the underwriter(s), all financial and other records, pertinent corporate documents and properties of each of the Company and the Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees to supply all information, in each case as shall be reasonably necessary to enable any such Holder, underwriter, attorney or accountant to exercise any applicable responsibilities in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its

-10-

effectiveness and to participate in meetings with investors to the extent reasonably requested by the managing underwriter(s), if any;

     (vii) if requested by any selling Holders or the underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;

     (viii) cause the Transfer Restricted Securities covered by the Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Securities covered thereby or the underwriter(s), if any;

     (ix) furnish to the Initial Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);

     (x) deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; each of the Company and the Guarantors hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;

     (xi) enter into such agreements (including an underwriting agreement), and make such representations and warranties, and take all such other commercially reasonable actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Shelf Registration Statement contemplated by this Agreement, all to such extent as may be reasonably requested by the Initial Purchaser or by any Holder of Transfer Restricted Securities or underwriter in connection with any sale or resale pursuant to any Shelf Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not

-11-

the registration is an Underwritten Registration, each of the Company and the Guarantors shall:

     (A) furnish to each selling Holder (including the Initial Purchaser, if applicable) and each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Shelf Registration Statement:

     (1) a certificate, dated the date of effectiveness of the Shelf Registration Statement executed by (y) in the case of the Company, the Chairman of the Board, Chief Executive Officer or President and the Chief Financial Officer or Chief Accounting Officer and (z) in the case of the Guarantors, the President or any Vice President, in each case, confirming, as of the date thereof, the matters set forth in paragraphs (ii), (iii) and (iv) of Section 5(e) of the Purchase Agreement and such other matters as such parties may reasonably request;

     (2) if requested by a majority of the Selling Holders, an opinion, dated the of effectiveness of the Shelf Registration Statement, as the case may be, of counsel for the Company and the Guarantors, covering the matters set forth in the opinion delivered pursuant to Section 5(c) of the Purchase Agreement and such other matters customarily covered in opinions requested in similar situations, and in any event including a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company and the Guarantors, representatives of the independent public accountants for the Company and the Guarantors, representatives of the underwriter(s), if any, and counsel to the underwriter(s), if any, in connection with the preparation of such Registration Statement and the related Prospectus and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing, no facts came to such counsel’s attention that caused such counsel to believe that the applicable Shelf Registration Statement, at the time such Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contained in such Shelf Registration Statement as of its date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements

-12-

therein not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of the financial statements, notes and schedules and other financial data included in any Shelf Registration Statement contemplated by this Agreement or the related Prospectus, and such opinion may be further subject to assumptions and qualifications substantially similar to those set forth in the opinions delivered pursuant to Section 5(c) of the Purchase Agreement; and

     (3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings, and covering or affirming the matters set forth in the comfort letters delivered pursuant to Section 5(a) of the Purchase Agreement, without exception;

     (B) set forth in full or incorporate by reference in the underwriting agreement, if any, the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and

     (C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with Section 6(c)(xi)(A) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company or any of the Guarantors pursuant to this Section 6(c)(xi), if any.

If at any time the representations and warranties of the Company and the Guarantors contemplated in Section 6(c)(xi)(A)(1) hereof cease to be true and correct, the Company or the Guarantors shall so advise the Initial Purchaser and the underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall confirm such advice in writing;

     (xii) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the registration and qualification of the Transfer Restricted Securities under the state securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that none of the Company or the

-13-

Guarantors shall be required to register or qualify as a foreign corporation where it is not then so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not then so subject;

     (xiii) issue, upon the request of any Holder of the Securities covered by the Shelf Registration Statement, Exchange Securities having an aggregate principal amount equal to the aggregate principal amount of the Securities surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Securities to be registered in the name of such Holder or in the name of the purchaser(s) of such Securities, as the case may be; in return, the Securities held by such Holder shall be surrendered to the Company for cancellation;

     (xvi) subject to the terms of the Indenture, cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such Holders or underwriter(s);

     (xv) use its commercially reasonable efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(xii) hereof;

     (xvi) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading;

     (xvii) provide a CUSIP number for all Securities not later than the effective date of the Registration Statement covering such Securities and provide the Trustee under the Indenture with printed certificates for such Securities which are in a form eligible for deposit with The Depository Trust Company and take all other action necessary to ensure that all such Securities are eligible for deposit with The Depository Trust Company;

     (xviii) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any

-14-

underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the rules and regulations of the FINRA;

     (xix) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 under the Securities Act (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the Registration Statement;

     (xx) cause the Indenture to be qualified under the Trust Indenture Act not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Securities to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and to execute, and to use its commercially reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner;

     (xxi) cause all Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Securities or the managing underwriter(s), if any; and

     (xxii) provide promptly to each Holder upon request each document filed with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.

     Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of such notice. In the event the Company shall give any

-15-

such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received the Advice; provided, however, that no such extension shall be taken into account in determining whether Additional Interest is due pursuant to Section 5 hereof or the amount of such Additional Interest, it being agreed that the Company’s option to suspend use of a Registration Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of Section 5 hereof.

SECTION 7. Registration Expenses.

     (a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance with this Agreement will be borne by the Company and the Guarantors, jointly and severally, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by the Initial Purchaser or Holder with the FINRA (and, if applicable, the fees and expenses of any “qualified independent underwriter,” and one counsel to such person that may be required by the rules and regulations of the FINRA)); (ii) all fees and expenses of compliance with federal securities and state securities or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Securities to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the Company, the Guarantors and, subject to Section 7(b) hereof, one counsel to the Holders of Transfer Restricted Securities; (v) all application and filing fees in connection with listing the Exchange Securities on a securities exchange or automated quotation system pursuant to the requirements thereof, if required to so list; and (vi) all fees and disbursements of independent certified public accountants of the Company and the Guarantors (including the expenses of any special audit and comfort letters required by or incident to such performance).

     Each of the Company and the Guarantors will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company or the Guarantors.

     (b) In connection with any Registration Statement required by this Agreement (including, without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement), the Company and the Guarantors, jointly and severally, will reimburse the Initial Purchaser and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to the “Plan of Distribution” contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Fried, Frank, Harris, Shriver & Jacobson LLP or

-16-

such other counsel as may be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared.

SECTION 8. Indemnification.

     (a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments, actions and expenses (including, without limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders expressly for use therein. This indemnity agreement shall be in addition to any liability that the Company or any of the Guarantors may otherwise have.

     In case any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder shall promptly notify the Company and the Guarantors in writing; provided, however, that the failure to give such notice shall not relieve any of the Company or the Guarantors of its obligations pursuant to this Agreement unless the Company or the Guarantors are materially prejudiced by such failure to give notice. Such Indemnified Holder shall have the right to employ its own counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by the Company and the Guarantors (regardless of whether it is ultimately determined that an Indemnified Holder is not entitled to indemnification hereunder). The Company and the Guarantors shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable

-17-

for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for such Indemnified Holders, which firm shall be designated by the Holders. The Company and the Guarantors shall be liable for any settlement of any such action or proceeding effected with the Company’s and the Guarantors’ prior written consent, which consent shall not be withheld unreasonably, and each of the Company and the Guarantors agrees to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any settlement of any action effected with the written consent of the Company and the Guarantors. The Company and the Guarantors shall not, without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Holder from all liability arising out of such action, claim, litigation or proceeding.

     (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors and their respective directors, officers of the Company and the Guarantors who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company or any of the Guarantors, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims and actions based on information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement. In case any action or proceeding shall be brought against the Company, the Guarantors or their respective directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have the rights and duties given the Company and the Guarantors, and the Company, the Guarantors, their respective directors and officers and such controlling person shall have the rights and duties given to each Holder by the preceding paragraph.

     (c) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the Company and the Guarantors shall be deemed to be equal to the total gross proceeds to the Company and the Guarantors from the Initial Placement), the amount of Additional Interest which did not become payable as a result of the filing of the Registration Statement resulting in

-18-

such losses, claims, damages, liabilities, judgments actions or expenses, and such Registration Statement, or if such allocation is not permitted by applicable law, the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Indemnified Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any of the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.

     The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that it would not be just and equitable if contribution pursuant to this Section 8(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, none of the Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to this Section 8(c) are several in proportion to the respective principal amount of Securities held by each of the Holders hereunder and not joint.

SECTION 9. Rule 144A.

     Each of the Company and the Guarantors hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial

-19-

owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A under the Securities Act.

SECTION 10. Participation in Underwritten Registrations.

     No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements.

SECTION 11. Selection of Underwriters.

     The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker(s) and managing underwriter(s) that will administer such offering will be selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in such offering; provided, however, that such investment banker(s) and managing underwriter(s) must be reasonably satisfactory to the Company.

SECTION 12. Miscellaneous.

     (a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate.

     (b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after the date of this Agreement enter into any agreement with respect to its securities that conflicts with the provisions hereof. Neither the Company nor any of the Guarantors has previously entered into any agreement granting any registration rights with respect to its securities to any Person pursuant to which any such Person would have the right to include any securities in any Registration Statement to be filed with the Commission as required under this Agreement. The rights granted to the Holders hereunder do not in any way conflict with the rights granted to the holders of the Company’s or any of the Guarantors’ securities under any agreement in effect on the date hereof.

     (c) Adjustments Affecting the Securities. The Company will not effect any change, or permit any change to occur, with respect to the terms of the Securities that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer.

     (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the

-20-

provisions hereof may not be given unless the Company has (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being tendered or registered; provided, however, that, with respect to any matter that directly or indirectly affects the rights of the Initial Purchaser hereunder, the Company shall obtain the written consent of the Initial Purchaser with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective.

     (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:

     (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and

     (ii) if to the Company:

The Great Atlantic & Pacific Tea Company
2 Paragon Drive
Montvale, New Jersey 07645
Facsimile: (201) 571-8715
Attention: Brenda M. Galgano, Senior Vice President and
Chief Financial Officer

     with a copy to:

Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Facsimile: (212) 872-1002
Attention: Patrick J. Dooley and Jeffrey L. Kochian

     All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when

-21-

receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.

     Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture.

     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including, without limitation, and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted Securities from such Holder.

     (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

     (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.

     (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.

     (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

[signature page follows]

-22-

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

THE GREAT ATLANTIC & PACIFIC TEA COMPANY
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary
ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.) NORTH JERSEY PROPERTIES, INC. VI AAL REALTY CORP. ADBRETT CORP. BERGEN STREET PATHMARK, INC. BRIDGE STUART INC. EAST BRUNSWICK STUART LLC LANCASTER PIKE STUART, LLC MACDADE BOULEVARD STUART, LLC PLAINBRIDGE LLC SUPERMARKETS OIL COMPANY, INC. UPPER DARBY STUART, LLC BEST CELLARS, INC. BEST CELLARS MASSACHUSETTS, INC. BEST CELLARS VA INC. GRAPE FINDS LICENSING CORP. GRAPE FINDS AT DUPONT, INC. BEST CELLARS DC INC. BEST CELLARS LICENSING CORP.
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	President
COMPASS FOODS, INC. FOOD BASICS, INC. HOPELAWN PROPERTY I, INC. KOHL’S FOOD STORES, INC. THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC    TEA COMPANY, INC. KWIK SAVE INC. MONTVALE HOLDINGS, INC.

-23-

SUPER FRESH FOOD MARKETS, INC. SUPER FRESH FOOD MARKETS OF MARYLAND, INC. SUPER FRESH / SAVE — A — CENTER, INC. SUPER MARKET SERVICE CORP. SUPER PLUS FOOD WAREHOUSE, INC. SUPERMARKET DISTRIBUTION SERVICES, INC. 2008 BROADWAY, INC. BEV, LTD. FARMER JACK’S OF OHIO, INC. SHOPWELL, INC. (DBA FOOD EMPORIUM) CLAY-PARK REALTY CO., INC. AMSTERDAM TRUCKING CORPORATION (F/K/A DAITCH CRYSTAL DAIRIES, INC.) DELAWARE COUNTY DAIRIES, INC. GRAMATAN FOODTOWN CORP. SHOPWELL, INC. (ORG IN CONN) SHOPWELL, INC. (ORG IN MASS) SHOPWELL, INC. (NEW JERSEY) THE FOOD EMPORIUM, INC. (CONN) THE FOOD EMPORIUM, INC. (DELAWARE) THE FOOD EMPORIUM, INC. (NJ) TRADEWELL FOODS OF CONN., INC. APW SUPERMARKET CORPORATION APW SUPERMARKETS, INC. WALDBAUM, INC. (DBA WALDBAUM, INC. AND    FOOD MART) LBRO REALTY, INC. MCLEAN AVENUE PLAZA CORP. SPRING LANE PRODUCE CORP. THE MEADOWS PLAZA DEVELOPMENT CORP. GREENLAWN LAND DEVELOPMENT CORP.
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Secretary
S E G STORES, INC. THE OLD WINE EMPORIUM OF    WESTPORT, INC.
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Secretary

-24-

PATHMARK STORES, INC.
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and
	Assistant Secretary
BORMAN’S, INC. (DBA FARMER JACK)
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant
	Secretary
MILIK SERVICE COMPANY, LLC By Pathmark Stores, Inc., its Manager
By	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and
	Assistant Secretary
LO-LO DISCOUNT STORES, INC.
By	/s/ William Moss
	Name:	William Moss
	Title:	Vice President and Treasurer

-25-

     The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written:

BANC OF AMERICA SECURITIES LLC
By:	/s/ John McCusker Name: John McCusker
	Title: Managing Director

-26-

SCHEDULE A

EXHIBIT A

Guarantors

	Name	Jurisdiction of Organization
1.	Compass Foods, Inc.	Delaware
2.	Food Basics, Inc.	Delaware
3.	Onpoint, Inc. (f/k/a Hamilton Property I, Inc.)	Delaware
4.	Hopelawn Property I, Inc.	Delaware
5.	Kohl’s Food Stores, Inc.	Wisconsin
6.	The South Dakota Great Atlantic & Pacific Tea Company, Inc.	South Dakota
7.	Kwik Save Inc.	Pennsylvania
8.	Lo-Lo Discount Stores, Inc.	Texas
9.	Montvale Holdings, Inc.	New Jersey
10.	Super Fresh Food Markets, Inc.	Delaware
11.	North Jersey Properties, Inc. VI	Delaware
12.	Super Fresh Food Markets of Maryland, Inc.	Maryland
13.	Super Fresh / Sav-A-Center, Inc.	Delaware
14.	Super Market Service Corp.	Pennsylvania
15.	Super Plus Food Warehouse, Inc.	Delaware
16.	Supermarket Distribution Services, Inc.	Delaware
17.	2008 Broadway, Inc.	New York
18.	The Old Wine Emporium of Westport, Inc.	Connecticut
19.	Borman’s, Inc. (d/b/a Farmer Jack)	Delaware

A-1

	Name	Jurisdiction of Organization
20.	BEV, Ltd.	Delaware
21.	Farmer Jack’s of Ohio, Inc.	Ohio
22.	S E G Stores, Inc.	Delaware
23.	Shopwell, Inc. (d/b/a Food Emporium)	Delaware
24.	Clay-Park Realty Co., Inc.	New York
25.	Amsterdam Trucking Corporation (f/k/a Daitch Crystal Dairies, Inc.)	New York
26.	Delaware County Dairies, Inc.	New York
27.	Gramatan Foodtown Corp.	New York
28.	Shopwell, Inc. (Org in Conn)	Connecticut
29.	Shopwell, Inc. (Org in Mass)	Massachusetts
30.	Shopwell, Inc. (New Jersey)	New Jersey
31.	The Food Emporium, Inc. (Conn)	Connecticut
32.	The Food Emporium, Inc. (Delaware)	Delaware
33.	The Food Emporium, Inc. (NJ)	New Jersey
34.	Tradewell Foods of Conn., Inc.	Connecticut
35.	APW Supermarket Corporation	Delaware
36.	APW Supermarkets, Inc.	New York
37.	Waldbaum, Inc. (d/b/a Waldbaum, Inc. and Food Mart)	New York
38.	LBRO Realty, Inc.	New York
39.	McLean Avenue Plaza Corp.	New York
40.	Spring Lane Produce Corp.	New York
41.	The Meadows Plaza Development Corp.	New York

A-2

	Name	Jurisdiction of Organization
42.	Pathmark Stores, Inc.	Delaware
43.	AAL Realty Corp.	New York
44.	Adbrett Corp.	Delaware
45.	Bergen Street Pathmark, Inc.	New Jersey
46.	Bridge Stuart Inc.	New York
47.	East Brunswick Stuart LLC	Delaware
48.	Lancaster Pike Stuart, LLC	Delaware
49.	MacDade Boulevard Stuart, LLC	Delaware
50.	Milik Service Company, LLC	Virginia
51.	Plainbridge LLC	Delaware
52.	Supermarkets Oil Company, Inc.	New Jersey
53.	Upper Darby Stuart, LLC	Delaware
54.	Best Cellars, Inc.	New York
55.	Best Cellars Massachusetts, Inc.	Massachusetts
56.	Best Cellars VA Inc.	Virginia
57.	Grape Finds Licensing Corp.	District of Columbia
58.	Grape Finds at Dupont, Inc.	District of Columbia
59.	Best Cellars DC Inc.	District of Columbia
60.	Best Cellars Licensing Corp.	New York
61.	Greenlawn Land Development Corp.	New York

A-3

EX-10.4

EXHIBIT 10.4

Execution Copy

INTERCREDITOR AGREEMENT

     THIS INTERCREDITOR AGREEMENT (this “Intercreditor Agreement”), dated as of August 4, 2009, is by and between (i) BANK OF AMERICA, N.A., as collateral agent (in such capacity, together with its successors, the “Revolving Credit Agent”), for the lenders from time to time party to the Revolving Credit Agreement (as hereinafter defined) (such lenders collectively, with the Revolving Credit Agent, the “Revolving Lenders”) and the other Revolving Secured Parties (as hereafter defined), and (ii) Wilmington Trust Company, as Note Collateral Agent (in such capacity, together with its successors, the “Note Collateral Agent”), under an Indenture dated as of August 4, 2009 with respect to the Secured HY Notes (as such term is defined below) issued by the Company in the face amount of $225,000,000. The Revolving Lenders and the Secured HY Note Holders (defined below) are sometimes individually referred to herein as a “Lender” and collectively as the “Lenders”, and the Revolving Credit Agent and Note Collateral Agent are sometimes individually referred to herein as an “Agent” and collectively as the “Agents”).

WITNESSETH:

     WHEREAS, (i) the Revolving Credit Agent, the Revolving Lenders, the Company (as such term is defined below) and the Persons listed on Schedule 1 hereto (collectively, the “Revolving Borrowers”) are parties to a Credit Agreement dated as of December 3, 2007, as amended and restated by the Amended and Restated Credit Agreement dated as of December 27, 2007 (as the same may be amended, modified, supplemented, extended, restated, renewed, refinanced, or replaced from time to time in accordance with the terms thereof and hereof, the “Revolving Credit Agreement”), (ii) the Persons listed on Schedule 2 hereto (collectively, together with any other Persons who become guarantors of the Revolving Loan Debt, the “Revolving Guarantors” and together with the Revolving Borrowers, the “Revolving Loan Parties”) have guaranteed the payment of the Revolving Debt (as hereinafter defined), and (iii) the Revolving Loan Parties have executed and delivered to the Revolving Credit Agent for the benefit of the Revolving Lenders (A) a Security Agreement dated as of December 3, 2007 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Revolving Security Agreement”), (B) a Pledge Agreement dated as of December 3, 2007 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Revolving Pledge Agreement”); and (C) Mortgages dated as of December 3, 2007 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Revolving Mortgages” and together with the Revolving Security Agreement, the Revolving Pledge Agreement, and any other Security Document referred to in the Revolving Credit Agreement, the “Revolving Security Documents”) which provide, among other things, that the Revolving Loan Parties’ obligations to the Revolving Lenders and other Revolving Secured Parties are secured by liens on and security interests in the Collateral (as hereafter defined);

     WHEREAS, Wilmington Trust Company, as Trustee and the Company are parties to an Indenture dated as of August 4, 2009 with respect to the Secured HY Notes (as such term is defined below) issued by the Company in the face amount of $225,000,000 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Indenture”), (ii) the Persons listed on Schedule 3 hereto (collectively, together with any other Persons who become guarantors of any or all of the Secured HY Debt, the “Secured HY Guarantors” and together with the Company, the “Secured HY Loan Parties”) have guaranteed the payment of all or a portion of the Secured HY Debt, and (v) the Secured HY Loan Parties have executed and delivered to the Note Collateral Agent for the benefit of the Secured HY Note Holders (A) a Security Agreement dated as of August 4, 2009 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Secured HY Security Agreement”), (B) a Pledge Agreement dated as of August 4, 2009 (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Secured HY Pledge Agreement”); and (C) Mortgages on certain of the properties subject to the Revolving Mortgages to be dated as of August 4, 2009 (or thereafter) (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof and hereof, the “Secured HY Mortgages” and together with the Secured HY Security Agreement, and the Secured HY Pledge Agreement, the “Secured HY Security Documents”) which provide, among other things, that the Secured HY Loan Parties’ obligations to the Secured HY Note Holders are secured by liens on and security interests in certain of the Collateral;

     WHEREAS, the Revolving Credit Agent, on behalf of itself and the other Revolving Secured Parties, and the Note Collateral Agent, on behalf of itself and the other Secured HY Note Holders desire to enter into this Intercreditor Agreement to (a) confirm the relative priorities of the liens and security interests of each Secured Party in the Collateral, (b) provide for the orderly sharing among the Secured Parties, in accordance with such priorities, of proceeds of such Collateral upon any foreclosure thereon or other disposition thereof, (c) to provide for the right of the Secured HY Note Holders to purchase the debt of the Revolving Lenders under certain circumstances, and (d) document certain other agreements;

     NOW, THEREFORE, in consideration of the mutual benefits accruing to the Lenders hereunder and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

     1. DEFINITIONS

     1.1 The following terms which are defined in the Uniform Commercial Code are used herein as so defined: Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Electronic Chattel Paper, Equipment, General Intangibles, Instruments, Inventory, Investment Property, Letter-of-Credit Rights, Payment Intangibles, Securities Accounts, Security Entitlements, Supporting Obligations and Tangible Chattel Paper.

2

     1.2 As used above and in this Intercreditor Agreement, the following terms shall have the meanings ascribed to them below:

     (a) “Affiliate” shall mean, with respect to a specified Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the Person specified.

     (b) “Agents” shall have the meaning specified in the preamble.

     (c) “Agreements” shall mean, collectively, the Revolving Loan Agreements and the Secured HY Documents.

     (d) “Bank Products Affiliate” shall mean any Revolving Lender or any Affiliate of a Revolving Lender that has entered into a Bank Products Agreement with a Revolving Loan Party, with the obligations thereunder secured by any of the Revolving Security Documents, together with their respective successors, assigns and transferees.

     (e) “Bank Products” shall have the meaning provided in the Revolving Credit Agreement.

     (f) “Bank Products Agreement” shall mean any agreement pursuant to which an Bank Products Affiliate agrees to provide Bank Products.

     (g) “Bankruptcy Code” shall mean Title 11 of the United States Code , as now or hereafter in effect or any successor thereto.

     (h) “Business Day” shall mean any day other than a Saturday or a Sunday, or any other day on which commercial banks are authorized or required to close under the laws of the State of New York or the Commonwealth of Massachusetts.

     (i) “Cash Management Affiliate” shall mean any Revolving Lender or any Affiliate of a Revolving Lender that provides Cash Management Services to any of the Revolving Loan Parties with the obligations of such Revolving Loan Parties thereunder being secured by one or more Revolving Security Documents, together with their respective successors, assigns and transferees.

     (j) “Cash Management Services” shall have the meaning provided in the Revolving Credit Agreement.

     (k) “Cash Management Services Agreement” shall mean any agreement pursuant to which a Cash Management Affiliate agrees to provide Cash Management Services.

     (l) “Collateral” shall mean all assets, property and interests in assets and property of any kind whatsoever, real or personal, tangible or intangible, and wherever located, of any Loan Party, now owned or hereafter acquired, in which any Agent has been, or is hereafter, granted a Lien, including, without limitation, the following:

3

          (1) all Accounts;

          (2) all Chattel Paper (including Tangible Chattel Paper and Electronic Chattel Paper);

          (3) (x) all Deposit Accounts and all cash, checks, other negotiable instruments, funds and other evidences of payments held therein, and (y) Securities Accounts, Security Entitlements and Securities, and, in each case, all cash, checks and other property held therein or credited thereto;

          (4) all Inventory;

          (5) all Documents, General Intangibles (including Payment Intangibles, Intellectual Property and Scripts), Instruments and Commercial Tort Claims;

          (6) all Supporting Obligations and Letter-of-Credit Rights;

          (7) all books, records and information relating to the Collateral (including all books, databases, customer lists, engineer drawings and records, whether tangible or electronic);

          (8) all Equipment and Investment Property;

          (9) all Real Property; and

          (10) all collateral security, liens, guarantees, rights, remedies and privileges with respect to any of the foregoing and all cash, money, policies and certificates of insurance, deposits or other property, insurance proceeds, refunds and premium rebates, including without limitation, proceeds of fire and casualty insurance, instruments, securities, financial assets and deposit accounts received as proceeds of any of the foregoing (“Proceeds”).

     (m) “Company” means The Great Atlantic & Pacific Tea Company, Inc.

     (n) “Control Collateral” shall mean any Collateral consisting of any Certificated Security (as defined in Section 8-102 of the Uniform Commercial Code), Investment Property, Deposit Account, Instruments and any other Collateral as to which a Lien may be perfected through possession or control by the secured party, or any agent therefor.

     (o) “DIP Financing” shall have the meaning set forth in Section 6.1.

     (p) “Discharge of Revolving Debt” shall mean the occurrence of all of the following:

4

          (1) termination or expiration of all commitments to extend credit that would constitute Revolving Loans, letters of credit, bankers’ acceptances and bank guaranties;

          (2) payment in full in cash of the principal of and interest and premium (if any) on all Revolving Debt (other than any undrawn letters of credit or bank guaranties);

          (3) discharge or cash collateralization of all outstanding letters of credit, bankers’ acceptances and bank guaranties constituting Revolving Debt; and

          (4) payment in full in cash of all other Revolving Obligations that are outstanding and unpaid at the time the termination, expiration, discharge and/or cash collateralization set forth in clauses (1) through (3) above have occurred (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other contingent liabilities in respect of which no claim or demand for payment has been made at such time).

     (q) “Discharge of Secured HY Debt” shall mean the occurrence of all of the following:

          (1) payment in full in cash of the principal of and interest and premium (if any) on all Secured HY Debt; and

          (2) payment in full in cash of all other Secured HY Debt that are outstanding and unpaid at the time the termination, expiration, discharge set forth in clauses (1) through (2) above have occurred (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other contingent liabilities in respect of which no claim or demand for payment has been made at such time).

     (r) “Enforcement Action” shall mean, except as otherwise provided in the final sentence of this definition:

          (1) the taking by any Agent of any action to enforce or realize upon any Lien, including the institution of any foreclosure proceedings or the noticing of any public or private sale pursuant to Article 9 of the Uniform Commercial Code;

          (2) the exercise by any Agent of any right or remedy provided to a secured creditor on account of a Lien, including the election to retain any of the Collateral in satisfaction of a Lien;

          (3) the taking of any action by any Agent or the exercise of any right or remedy by any Agent in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Collateral or the proceeds thereof;

          (4) the appointment of, or the application of any Agent for, a receiver, receiver and manager or interim receiver of all or part of the Collateral;

5

          (5) the sale, lease, license, or other disposition of all or any portion of the Collateral by private or public sale conducted by any Agent or any other means at the direction of any Agent permissible under applicable law;

          (6) the exercise of any other right of a secured creditor under Part 6 of Article 9 of the Uniform Commercial Code.

For the avoidance of doubt, none of the following shall be deemed to constitute an Enforcement Action: (i) the filing a proof of claim in bankruptcy court or seeking adequate protection in any Insolvency Proceeding, (ii) the exercise of rights (other than ones enumerated in clauses (1) through (6) above) by the Revolving Credit Agent provided for under the Revolving Credit Agreements upon the occurrence of a Triggering Event (as defined in the Revolving Credit Agreement) with respect to the Collateral, including, without limitation, the notification of account debtors, depository institutions or any other Person to deliver Proceeds of the Collateral to the Revolving Credit Agent, (iii) the consent by any Agent to a sale or other disposition by any Loan Party of any of its assets or properties, (iv) the acceleration of all or any portion of the Revolving Debt or the Secured HY Debt, (v) the reduction of advance rates or sub-limits by the Revolving Credit Agent, or (vi) the imposition of reserves against its borrowing base under the Revolving Credit Agreements by the Revolving Credit Agent.

     (s) “Enforcement Notice” shall mean a written notice delivered by either Party to the other Party announcing that an Enforcement Period has commenced.

     (t) “Enforcement Period” shall mean the period of time following the receipt by either Party of an Enforcement Notice from the other Party.

     (u) “Hedging Obligations” shall mean all Revolving Debt arising from (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

     (v) “Indenture” shall have the meaning set forth in the recitals.

     (w) “Indenture Event of Default” means an “Event of Default” as defined in the Indenture.

6

     (x) “Insolvency Proceeding” shall mean, as to any Person, any of the following: (i) any case or proceeding with respect to such Person under the Bankruptcy Code or any other federal or state bankruptcy, insolvency, reorganization or other law affecting creditors’ rights or any other or similar proceedings seeking any stay, reorganization, arrangement, composition or readjustment of the obligations and indebtedness of such Person or (ii) any proceeding seeking the appointment of any trustee, receiver, liquidator, custodian or other insolvency official with similar powers with respect to such Person or any of its assets or (iii) any proceeding for liquidation, dissolution or other winding up of the business of such Person or (iv) any assignment for the benefit of creditors or any marshalling of assets of such Person.

     (y) “Intellectual Property” shall mean all intellectual and similar property of every kind and nature now owned’ licensed or hereafter acquired by any Loan Party, including inventions, designs, patents, copyrights, licenses, trademarks, trade secrets, confidential or proprietary technical and business information, know how, show how, data or information, domain names, mask works, customer lists, vendor lists, subscription lists, software, databases, and all other proprietary information, and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

     (z) “Lenders” shall have the meaning specified in the preamble.

     (aa) “Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance (including, but not limited to, easements, rights of way and the like), lien (statutory or otherwise), security agreement or transfer intended as security, including without limitation, any conditional sale or other title retention agreement, the interests of a lessor under a capital lease or any financing lease having substantially the same economic effect as any of the foregoing.

     (bb) “Loan Parties” shall mean collectively, the Revolving Loan Parties and the Secured HY Loan Parties and shall include each of their respective successors and assigns, including, without limitation, any receiver, trustee, or debtor-in-possession on behalf of such Person or on behalf of such successor or assign.

     (cc) “Maximum Revolving Debt Amount” shall mean (a) the aggregate principal amount of Revolving Debt (including the maximum amount available to be drawn under then outstanding letters of credit but exclusive of Obligations on account of Cash Management Services and Bank Products) at any one time outstanding not exceeding the greater of (i) $850,000,000 less, without duplication, the amount of any permanent repayments thereof or permanent reductions in commitments thereunder from the proceeds of one or more Asset Sales (as defined in the Indenture) which are used to permanently prepay or repay Revolving Debt, or (ii) the Secured HY Borrowing Base plus Unintentional Overadvances, plus, in each case, the sum of accrued and unpaid interest, fees, expense reimbursements and other charges then due to the Revolving Lenders (including any such interest, fees, expense reimbursements and other charges

7

which would accrue and become due but for the commencement of an Insolvency Proceeding, whether or not a claim for such amounts is allowed or allowable in whole or in part in such case), (b) Obligations on account of Cash Management Services, (c) Hedging Obligations, and (d) Obligations on account of other Bank Products.

     (dd) “Note Collateral Agent” shall have the meaning specified in the preamble.

     (ee) “Party” shall mean the Revolving Credit Agent or the Note Collateral Agent, and “Parties” shall mean both the Revolving Credit Agent and the Note Collateral Agent, in each case, as the context requires, together with the Revolving Secured Parties or the Secured HY Note Holders, as applicable.

     (ff) “Person” shall mean any individual, sole proprietorship, partnership, corporation, limited liability company, limited liability partnership, business trust, unincorporated association, joint stock company, trust, joint venture, or other entity or any government or any agency or political subdivision thereof.

     (gg) “Proceeds” shall have the meaning provided in the definition of Collateral.

     (hh) “QUIBs Indenture” means the indenture dated January 1, 1991 with respect to the Company’s 9.375% Senior Notes due August 1, 2039 in the aggregate principal amount of $200,000,000.

     (ii) “Real Property” shall mean any right, title or interest in and to real property, including any fee interest, leasehold interest, easement, or license and any other right to use or occupy real property.

     (jj) “Revolving Credit Agreement” shall have the meaning set forth in the preamble.

     (kk) “Revolving Debt” shall mean any and all “Obligations” (as defined in the Revolving Credit Agreement and the Revolving Security Documents), including, without limitation, on account of Bank Products and Cash Management Services and on account of any DIP Financing.

     (ll) “Revolving Event of Default” means an “Event of Default” as defined in the Revolving Credit Agreement.

     (mm) “Revolving Guarantors” shall have the meaning set forth in the preamble and shall include each of their respective successors and assigns, including, without limitation, any receiver, trustee, or debtor-in-possession on behalf of such Person or on behalf of such successor or assign.

     (nn) “Revolving Lenders” shall have the meaning set forth in the preamble.

     (oo) “Revolving Loans” shall mean, collectively, “Revolving Credit Loans” and “Swing Line Loans” as defined in the Revolving Credit Agreement.

8

     (pp) “Revolving Loan Agreements” shall mean, collectively, the Revolving Credit Agreement, the Revolving Security Documents, all other “Loan Documents” (as such term is defined therein), all Cash Management Services Agreements, and all Bank Product Agreements, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced (in whole or in part and including any agreements with, to or in favor of any other lender or group of lenders that at any time refinances, replaces or succeeds to all or any portion of the Revolving Debt).

     (qq) “Revolving Loan Parties” shall have the meaning set forth in the Preamble and shall include each of their respective successors and assigns, including, without limitation, any receiver, Note Collateral Agent, or debtor-in-possession on behalf of such Person or on behalf of such successor or assign.

     (rr) “Revolving Secured Parties” shall mean, collectively, (a) the Revolving Lenders, (b) the Revolving Credit Agent, (c) each Issuing Bank (as defined in the Revolving Credit Agreement), (d) each Bank Product Affiliate, and (e) each Cash Management Affiliate, and (f) the successors and assigns of each of the foregoing.

     (ss) “Revolving Security Documents” shall have the meaning set forth in the recitals and shall include all other security agreements, mortgages, deeds of trust and other collateral documents executed and delivered in connection with the Revolving Credit Agreement, in each case as the same may be amended, supplemented, restated or otherwise modified from time to time.

     (tt) “Secured HY Borrowing Base” shall mean the sum of:

          (1) 80% of the book value of all Accounts of the Revolving Loan Parties; plus

          (2) 80% of the book value of all Inventory of the Revolving Loan Parties; plus

          (3) the greater of (A) 15% of the net book value of all property, plant and equipment of the Revolving Loan Parties, or (B) $259,000,000;

in each case, as such amounts are shown on the Company’s most recent publicly available balance sheet, or if greater, the amount determined under the definition of “Borrowing Base” in the Indenture (as such definition is amended and in effect from time to time).

     (uu) “Secured HY Collateral” shall mean that portion of the Collateral on which the Note Collateral Agent is granted a Lien.

     (vv) “Secured HY Debt” shall mean, without duplication:

          (i) all principal of and interest (including, without limitation, any interest which accrues after the commencement of any Insolvency Proceeding with

9

respect to any Secured HY Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on any Secured HY Note;

          (ii) all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Secured HY Loan Party (including, without limitation, any amounts which accrue after the commencement of any Insolvency Proceeding with respect to any Secured HY Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to any Secured HY Document;

          (iii) all expenses of the Note Collateral Agent, as to which such agent has a right to reimbursement under the Indenture or any other Secured HY Document including, without limitation, any and all sums advanced by the Note Collateral Agent to preserve the Secured HY Collateral or its security interest in the Secured HY Collateral; and

          (iv) in the case of each Secured HY Guarantor, all amounts now or hereafter payable by such Secured HY Guarantor and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Insolvency Proceeding with respect to any Secured HY Guarantor, whether or not allowed or allowable as a claim in any such proceeding) on the part of such Secured HY Guarantor pursuant to the Indenture or any other Secured HY Document;

     (ww) together in each case with all renewals, modifications, refinancings, consolidations or extensions thereof to the extent not prohibited by this Agreement.

     (xx) “Secured HY Documents” shall mean, collectively, the Indenture, all Secured HY Notes, and the Secured HY Security Documents, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced (in whole or in part and including any agreements with, to or in favor of any other lender, noteholder, or other financing source or group of lenders, noteholders, or other financing sources that at any time refinances, replaces or succeeds to all or any portion of the Secured HY Debt).

     (yy) “Secured HY Guarantors” shall have the meaning set forth in the recitals and shall include each of their respective successors and assigns, including, without limitation, any receiver, trustee, or debtor-in-possession on behalf of such Person or on behalf of such successor or assign.

     (zz) “Secured HY Loan Parties” shall have the meaning set forth in the Preamble and shall include each of their respective successors and assigns, including, without limitation, any receiver, trustee, or debtor-in-possession on behalf of such Person or on behalf of such successor or assign.

     (aaa) “Secured HY Mortgages” shall have the meaning set forth in the recitals.

10

     (bbb) “Secured HY Notes” means any Notes (as defined in, and issued pursuant to, the Indenture).

     (ccc) “Secured HY Note Holders” shall mean any Persons who are holders or Holders (as defined in the Indenture) of the Secured HY Notes and their successors and assigns.

     (ddd) “Secured HY Pledge Agreement” shall have the meaning set forth in the recitals.

     (eee) “Secured HY Security Documents” shall have the meaning set forth in the recitals and shall include and all other security agreements, mortgages, deeds of trust and other collateral documents executed and delivered in connection with the Indenture, in each case as the same may be amended, supplemented, restated or otherwise modified from time to time.

     (fff) “Shared Collateral” means any Collateral upon which both the Revolving Credit Agent and the Note Holder Agent hold a Lien, which as of the date hereof consists of the Secured HY Collateral.

     (ggg) “Standstill Period” shall mean a period of three hundred sixty-five (365) days following the date of receipt by the Revolving Credit Agent of written notice from the Note Collateral Agent of the declaration of an event of default under the Secured HY Documents and the intent of the Note Collateral Agent to commence one or more Enforcement Actions; provided, that, if at any time the event of default that was the basis for such notice from the Note Collateral Agent to Revolving Credit Agent is waived, cured or otherwise ceases to exist, no Standstill Period shall be deemed to have occurred based on such notice.

     (hhh) “Uniform Commercial Code” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided that to the extent that the Uniform Commercial Code is used to define any term in any security document and such term is defined differently in differing Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, publication or priority of, or remedies with respect to, Liens of any Person is governed by the Uniform Commercial Code or foreign personal property security laws as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” will mean the Uniform Commercial Code or such foreign personal property security laws as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

     (iii) “Unintentional Overadvance” means any Overadvance (as defined in the Revolving Credit Agreement) which did not constitute an Overadvance at the time when made, but has become an Overadvance as a result of changed circumstances beyond the

11

control of the Revolving Credit Agent or the Revolving Credit Secured Parties (such as a reduction in the collateral value of the assets included in the Tranche A Borrowing Base or Tranche A-1 Borrowing Base (each as defined in the Revolving Credit Agreement), as applicable, or by a misrepresentations by the Company or its Subsidiaries).

     1.3 All terms defined in the Uniform Commercial Code on the date hereof, unless otherwise defined herein, shall have the meanings set forth therein. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting and shall be deemed to be followed by the phrase “without limitation,” and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any reference herein to the repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in such other manner as may be approved in writing by the requisite holders or representatives in respect of such obligation, or in such other manner as may be approved by the requisite holders or representatives in respect of such obligation.

     2. SECURITY INTERESTS; PRIORITIES; REMEDIES

     2.1 Priority of Liens.

     (a) Notwithstanding (i) the date, time, method, manner, or order of grant, attachment, or perfection of any Liens granted to the Revolving Credit Agent in respect of all or any portion of the Collateral (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) or of any Liens granted to the Note Collateral Agent in respect of all or any portion of the Secured HY Collateral (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) and regardless of how any such Lien was acquired (whether by grant, statute, operation of law, subrogation or otherwise), (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of the Revolving Secured Parties or the Secured HY Note Holders in any Collateral, (iii) any provision of the Uniform Commercial Code, the Bankruptcy Code or any other applicable law, or of the Revolving Loan Documents or the Secured HY Documents, (iv) whether the Revolving Credit Agent or the Note Collateral Agent, in each case, either directly or through agents, holds possession of, or has control over, all or any part of the Collateral, (v) the date on which the proceeds of the Revolving Debt or the Secured HY Debt are advanced or made available to the Loan Parties (vi) the fact that any such Liens in favor of either Party securing any of the Revolving Debt or Secured HY Debt, respectively, are equitably subordinated, voided,

12

avoided, invalidated or lapsed, or (vii) on account of any other circumstance whatsoever, the Revolving Credit Agent, on behalf of itself and the Revolving Secured Parties, and the Note Collateral Agent, on behalf of itself and the Secured HY Note Holders, hereby agrees that:

          (1) any Lien in respect of all or any portion of the Shared Collateral now or hereafter held by or on behalf of the Note Collateral Agent or any Secured HY Note Holders that secures all or any portion of the Secured HY Debt shall in all respects be junior and subordinate to all Liens granted to the Revolving Credit Agent and the Revolving Secured Parties on the Shared Collateral to the extent (but only to the extent) the Revolving Debt does not exceed the Maximum Revolving Debt Amount;

          (2) any Lien in respect of all or any portion of the Shared Collateral now or hereafter held by or on behalf of the Revolving Credit Agent or any Revolving Secured Party that secures all or any portion of the Revolving Debt up to (but not exceeding) the Maximum Revolving Debt Amount, shall in all respects be senior and prior to all Liens granted to the Note Collateral Agent or any Secured HY Note Holder on the Shared Collateral;

          (3) any Lien in respect of all or any portion of the Shared Collateral now or hereafter held by or on behalf of the Revolving Credit Agent or any Revolving Secured Party that secures Revolving Debt which exceeds the Maximum Revolving Debt Amount shall in all respects be junior and subordinate to all Liens granted to the Note Collateral Agent and the Secured HY Note Holders on the Shared Collateral;

          (4) any Lien in respect of all or any portion of the Shared Collateral now or hereafter held by or on behalf of the Note Collateral Agent or any Secured HY Note Holder shall, except as provided in clause 5 hereof, in all respects be senior and prior to all Liens granted to the Revolving Credit Agent or any Revolving Secured Party on the Shared Collateral that secures Revolving Debt in excess of the Maximum Revolving Debt Amount;

          (5) any Lien in respect of all or any portion of the Collateral which does not constitute Shared Collateral now or hereafter held by or on behalf of the Revolving Credit Agent or any Revolving Secured Party that secures all or any portion of the Revolving Debt shall in all respects be senior and prior to all rights of the Note Collateral Agent or any Secured HY Note Holders thereto without regard to the Maximum Revolving Debt Amount.

          (6) As of the date hereof, neither the Note Collateral Agent nor any Secured HY Note Holder has any Lien on “Excluded Assets (as defined in the Indenture), including, without limitation, on any portion of the Real Property which constitutes a “Principal Property” (as defined in the QUIBs Indenture).

     2.2 Waiver of Right to Contest Liens.

13

     (a) Each of Revolving Credit Agent, on behalf of the Revolving Secured Parties and the Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees that it and they shall not (and hereby waives any right to) take any action to contest or challenge (or assist or support any other Person in contesting or challenging), directly or indirectly, whether or not in any proceeding (including in any Insolvency Proceeding), the validity, priority, enforceability, or perfection of the Liens of the Revolving Credit Agent and the Revolving Secured Parties in respect of the Collateral or Liens of the Note Collateral Agent and the Secured HY Note Holders in respect of the Secured HY Collateral or the provisions of this Agreement.

     (b) The Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees that none of the Note Collateral Agent or the Secured HY Note Holders will (i) contest, protest or object to any foreclosure proceeding or action brought by the Revolving Credit Agent or any Revolving Secured Party with respect to, or any other exercise by the Revolving Credit Agent or any Revolving Secured Party of any rights and remedies relating to, the Collateral under the Revolving Loan Agreements or otherwise, or (ii) subject to its rights under the Section 2.5, will not object to the forbearance by the Revolving Credit Agent or the Revolving Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral, in each case so long as the respective interests of the Secured HY Note Holders attach to the Proceeds thereof subject to the relative priorities described in Section 2.1. In furtherance of the foregoing but subject in all cases to the terms of this Agreement, the Note Collateral Agent, on behalf of the Secured HY Note Holders, hereby waives any and all rights it or the Secured HY Note Holders may have as a junior lien creditor or otherwise to contest, protest or object to the manner in which the Revolving Credit Agent or any Revolving Secured Party seeks to enforce its Liens in any Collateral. The foregoing shall not be construed to prohibit the Note Collateral Agent from enforcing the provisions of this Agreement as to the relative priority of the parties hereto.

     (c) The priorities of the Liens provided in Section 2.1 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement or refinancing of the Revolving Debt, the Secured HY Debt, or by any action or inaction which a Lender may take or fail to take in respect of the Collateral.

     (d) Each Agent shall be solely responsible for perfecting and maintaining the perfection of its Lien in and to each item constituting the Collateral in which such Agent has been granted a Lien. This Intercreditor Agreement is intended solely to govern the respective Lien priorities as between the Parties and shall not impose on any Party any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or other governmental authority or any applicable law.

     2.3 Remedies Standstill.

14

     (a) The Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees that until the Discharge of Revolving Debt, neither the Note Collateral Agent nor any Secured HY Note Holder will undertake any Enforcement Action with respect to any of the Collateral without the written consent of the Revolving Credit Agent, and will not take, receive or accept any proceeds of the Collateral, provided, that, (i) notwithstanding anything to the contrary contained in this Section 2.3(a) but subject at all times to the provisions of Section 4.1 hereof, the Note Collateral Agent shall have the right to commence any Enforcement Action commencing after the expiration of the Standstill Period, unless the Revolving Credit Agent has commenced one or more Enforcement Actions with respect to such Collateral before the end of the Standstill Period and is diligently pursuing in good faith such Enforcement Actions, (ii) if the Revolving Credit Agent commences one or more Enforcement Actions with respect to the Collateral prior to the expiration of the Standstill Period, and such Enforcement Actions are being diligently pursued by the Revolving Credit Agent in good faith, the Note Collateral Agent shall have no right to independently commence any Enforcement Actions unless and until such Enforcement Actions are completed or abandoned by the Revolving Credit Agent, and (iii) to the extent that the Note Collateral Agent does not commence an Enforcement Action promptly after the end of the Standstill Period, the Note Collateral Agent will give the Revolving Credit Agent not less than ten (10) Business Days prior written notice before the commencement of any Enforcement Action;

     (b) Notwithstanding the provisions of Section 2.3(a), nothing contained herein shall be construed to prevent the Note Collateral Agent or any Secured HY Note Holder from (i) filing a claim or statement of interest with respect to the Secured HY Debt owed to it in any Insolvency Proceeding commenced by or against any Loan Party, (ii) taking any action (not adverse to the priority status of the Liens of the Revolving Credit Agent and the Revolving Secured Parties on the Collateral) in order to create, perfect, preserve or protect (but not enforce) its Lien on any Collateral, (iii) filing any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of the Note Collateral Agent or any Secured HY Note Holder, (iv) voting on any plan of reorganization or filing any proof of claim in any Insolvency Proceeding of any Loan Party, or (v) objecting to the proposed retention of Collateral by the Revolving Credit Agent and the Revolving Secured Parties in full or partial satisfaction of any Revolving Debt, in each case above, to the extent not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.

     2.4 No New Liens or Guaranties.

     So long as the Discharge of Revolving Debt has not occurred, the parties hereto agree that the Loan Parties shall not grant or permit any additional Liens on any asset or property of any Loan Party to secure any Secured HY Debt and will not permit any Person to guaranty the Secured HY Debt unless it has granted or contemporaneously grants a Lien on such asset or property to secure the Revolving Debt having the relative priority described in Section 2.1 or such Person has executed a guaranty in favor of the Revolving Credit Agent and the Revolving Secured Parties. To the extent that the

15

provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other rights and remedies available to the Revolving Credit Agent and/or the Revolving Secured Parties, the Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens on the any assets or from any guaranties granted in contravention of the foregoing sentence shall be subject to Section 4.1(b).

     2.5 Exercise of Rights

     (a) No Other Restrictions. Except as expressly set forth in this Agreement, each of the Note Collateral Agent, each Secured HY Note Holder, the Revolving Credit Agent and each Revolving Secured Party shall have any and all rights and remedies it may have as a creditor under applicable law, including the right to undertake Enforcement actions to the extent permitted under Section 2.3(a). The Revolving Credit Agent may enforce the provisions of the Revolving Loan Agreements and, except as otherwise provided herein, the Note Collateral Agent may enforce the provisions of the Secured HY Documents and, except as otherwise provided herein, each may undertake Enforcement Actions, all in such order and in such manner as each may determine in the exercise of its sole discretion, consistent with the terms of this Agreement and mandatory provisions of applicable law; provided, however, that the Revolving Credit Agent agrees to provide to the Note Collateral Agent (x) an Enforcement Notice prior to undertaking any Enforcement Action, and (y) copies of any notices that it is required under applicable law to deliver to any Loan Party; provided, further, that the Note Collateral Agent shall provide to the Revolving Credit Agent copies of any notices sent to the Company of the occurrence of a Secured HY Event of Default, provided, further, however, any Party’s failure to provide any such copies to the other Party shall not impair any of the Party’s rights hereunder or under any of the Revolving Loan Agreements or under any of the Secured HY Documents, as applicable. Each Party agrees (i) that it will not institute any suit or other proceeding asserting and will not assert in any suit, Insolvency Proceeding or other proceeding, any claim against the other Party seeking damages from or other relief by way of specific performance, instructions or otherwise, with respect to, any action taken or omitted to be taken by such Person with respect to the Collateral which is consistent with the terms of this Agreement, and none of such Parties shall be liable for any such action taken or omitted to be taken, or (ii) it will not be a petitioning creditor or otherwise assist in the filing of an involuntary Insolvency Proceeding.

     (b) Subject to the rights of the Note Collateral Agent set forth in the proviso to Section 2.3(a) and 2.3(b) hereof, the Revolving Secured Parties shall have the exclusive right to manage, perform and enforce (or not enforce) the terms of the Revolving Loan Agreements with respect to the Collateral, to exercise and enforce all privileges and rights thereunder according to their discretion and the exercise of their good faith business judgment, including, without limitation, the exclusive right to take or retake control or possession of any Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate any Collateral. Notwithstanding any rights or remedies available to a Lender under any of the Agreements, applicable law or otherwise, the Secured HY Note Holders shall not, directly or indirectly, seek to foreclose or realize upon (judicially

16

or non-judicially) their Lien on any Collateral (including, without limitation, by setoff or notification of account debtors).

     2.6 Release of Liens and Loan Parties. Notwithstanding anything to the contrary contained in any of the Agreements, only the Revolving Secured Parties (and not the Note Collateral Agent or the Secured HY Note Holders) shall have the right to (a) restrict or permit, or approve or disapprove, the sale, transfer or other disposition of the Collateral or take any action with respect to the Collateral, or (b) release any Loan Parties from their obligations as borrowers or guarantors (other than the Company). In that regard, in the event (i) of any private or public sale of all or any portion of the Collateral (other than in connection with a refinancing as described in Section 5.2(c)) permitted by the Revolving Loan Agreements or consented to by the requisite Revolving Lenders, whether or not a Revolving Event of Default has occurred and is continuing, or (ii) the release of any Loan Party from its obligations as a borrower or guarantor (other than the Company) by the Revolving Credit Agent and the Revolving Credit Secured Parties, the Note Collateral Agent agrees, on behalf of the Secured HY Note Holders that (x) such sale will be free and clear of the Liens on such Collateral securing the Secured HY Debt, and the Note Collateral Agent’s and the Secured HY Note Holders’ Liens with respect to the Collateral so sold, transferred, disposed or released shall terminate and be automatically released without further action concurrently with, and to the same extent as, the release of the Revolving Lenders’ Liens on such Collateral, or (y) such Loan Party shall be released from its obligations with respect to the Secured HY Debt without further action concurrently with, and to the same extent as, the release of the Revolving Credit Agent and Revolving Secured Parties, provided that such release by the Note Collateral Agent and the Secured HY Note Holders (x) shall not apply to the Discharge of Revolving Debt as a result of a refinancing thereof pursuant to Section 8.8 hereof, and (y) shall not extend to or otherwise affect any of the rights, if any, of the Note Collateral Agent and the Secured HY Note Holders to the proceeds of any such sale or disposition of Collateral or received from such Loan Party to obtain such release, and provided further that the proceeds of such sale or disposition or guaranty are applied in accordance with the provisions of Section 4.1 hereof. In furtherance of, and subject to, the foregoing, the Note Collateral Agent agrees that it will promptly upon written request of the Revolving Credit Agent (which request shall specify the proposed terms of sale and the type and amount of consideration to be received in connection therewith) execute any and all Lien releases or other documents reasonably requested by the Revolving Credit Agent in connection therewith.

     2.7 Waiver of Marshalling. The Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Collateral or any other similar rights a junior secured creditor may have under applicable law. For clarity, the Revolving Credit Agent and Revolving Credit Secured Parties shall have no obligation to first realize upon that portion of the Collateral which does not also constitute Secured HY Collateral prior to exercising rights and remedies against the Secured HY Collateral.

     3. ACTIONS OF THE PARTIES

17

     3.1 Certain Actions Permitted. The Note Collateral Agent and the Revolving Credit Agent may make such demands or file such claims in respect of the Secured HY Debt or the Revolving Debt, as applicable, as are necessary to prevent the waiver or bar of such claims under applicable statutes of limitations or other statutes, court orders, or rules of procedure at any time. Nothing in this Agreement shall prohibit the receipt by either Party of the required payments of interest, principal and other amounts owed in respect of the Revolving Debt or the Secured HY Debt, as applicable, so long as such receipt is not the direct or indirect result of an Enforcement Action taken by such Party of rights or remedies as a secured creditor (including setoff) or enforcement in contravention of this Agreement.

     3.2 Agent for Perfection. The Revolving Credit Agent, for and on behalf of itself and each Revolving Secured Parties, and the Note Collateral Agent, for and on behalf of itself and each Secured HY Note Holders, as applicable, each agree to hold all Collateral in their respective possession, custody, or control (or in the possession, custody, or control of agents or bailees for either), including, without limitation all bailee’s waivers, as agent for the other solely for the purpose of perfecting the security interest granted to each in such Collateral, subject to the terms and conditions of this Section 3.2; provided however, that the Revolving Credit Agent’s obligations to the Note Collateral Agent under this Section 3.2 shall be limited to any Shared Collateral that is in the possession, custody, or control of the Revolving Credit Agent. In addition, the Revolving Credit Agent expressly agrees to act as agent and bailee for the benefit of the Note Collateral Agent and the Secured HY Note Holders with respect to any Control Collateral that constitutes Shared Collateral. To the extent that the Revolving Credit Agent has perfected its security interest in any deposit accounts (as such term is defined in the UCC) and the Note Collateral Agent has not so perfected its interest, the Revolving Credit Agent agrees, until such time as the Note Collateral Agent perfects its interest in such deposit account, that it will act as gratuitous bailee for the Noteholder Collateral Agent for the purpose of perfecting the Liens of the Note Collateral Agent and the Secured HY Note Holders in such deposit accounts and the cash and other assets therein (but will have no duty, responsibility or obligation to the Note Collateral Agent and the Secured HY Note Holders (including, without limitation, any duty, responsibility or obligation as to the maintenance of such control, the effect of such arrangement or the establishment of such perfection)). Unless the liens in favor of the Note Collateral Agent on the Shared Collateral shall have been or concurrently are released, after the Discharge of Revolving Debt, the Revolving Credit Agent shall, at the request of the Note Collateral Agent, cooperate with the Company and the Note Collateral Agent (at the expense of the Grantors) in permitting control of any other deposit accounts to be transferred to the Note Collateral Agent. No Party shall have any obligation whatsoever to the other Party to assure that the Collateral is genuine or owned by any Loan Party or any other Person or to preserve rights or benefits of any Person. The duties or responsibilities of the Revolving Credit Agent and the Note Collateral Agent under this Section 3.2 are and shall be limited solely to holding or maintaining control of the Collateral as agent for the other for purposes of perfecting the Lien held by the Note Collateral Agent or the Revolving Credit Agent, as applicable. Neither the Revolving Credit Agent nor the Note Collateral Agent is or shall be deemed to be a fiduciary of any kind for the other Agent, the other Lenders, or any other Person. In the event that, prior to the Discharge of Revolving Debt, the Note Collateral Agent or any Secured HY Note Holder receives any Collateral or proceeds of the Collateral in violation of the terms of this Agreement, then the Note Collateral Agent or such Secured HY Note Holder shall promptly pay over such

18

proceeds or Collateral to the Revolving Credit Agent, in the same form as received with any necessary endorsements, for application in accordance with the provisions of Section 4.1 of this Agreement. After the Revolving Debt has been irrevocably paid in full and all commitments of the Revolving Lenders under the Revolving Credit Agreement are terminated, the Revolving Credit Agent may, in its discretion, and shall, upon the written request of the Note Collateral Agent, deliver any Secured HY Collateral in its possession to the Note Collateral Agent and shall notify all parties to any such “control” agreements of the substitution of the Note Collateral Agent for the Revolving Credit Agent thereunder and the right of the Note Collateral Agent to exercise all rights under the “control” agreements.

     3.3 Insurance. Subject to the priorities and respective rights of the Lenders contained in this Intercreditor Agreement, each of the Revolving Credit Agent and the Note Collateral Agent shall be entitled to be designated as secured party and to obtain loss payee endorsements and additional insured status with respect to any and all policies of insurance now or hereafter obtained by the Loan Parties in Collateral in which such Party may have a Lien. The Revolving Credit Agent and the Revolving Secured Parties shall, subject to such Party’s rights under its Agreements with the Loan Parties, have the sole and exclusive right, as against the Note Collateral Agent and the Secured HY Note Holders, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of such Collateral. The Note Collateral Agent and the Secured HY Note Holders shall cooperate, if necessary, in a reasonable manner in effecting the payment of insurance proceeds to the Revolving Credit Agent and the Revolving Secured Parties. The Revolving Credit Agent and the Revolving Secured Parties shall have the right (as between the parties hereto) to determine whether such proceeds will be applied to the Revolving Debt or used to rebuild, replace or repair the affected Collateral.

     3.4 No Additional Rights for the Loan Parties Hereunder. If any Revolving Lender, Secured HY Note Holder, or Agent shall enforce its rights or remedies in violation of the terms of this Agreement, the Loan Parties shall not be entitled to use such violation as a defense to any action by any Revolving Lender or Secured HY Note Holder, nor to assert such violation as a counterclaim or basis for set off or recoupment against any Revolving Lender or Secured HY Note Holder.

     4. APPLICATION OF PROCEEDS

     4.1 Application of Proceeds.

     (a) Revolving Nature of Revolving Debt. The Note Collateral Agent on behalf of itself and the Secured HY Note Holders, expressly acknowledges and agrees that (i) the Revolving Credit Agreement includes a revolving commitment, that in the ordinary course of business the Revolving Credit Agent and the Revolving Lenders will apply payments and make advances thereunder, and that no application of any Collateral or the release of any Lien by the Revolving Credit Agent upon any portion of the Collateral in connection with a disposition by the Loan Parties permitted or consented to under the Revolving Credit Agreement shall constitute a Enforcement Action under this Agreement; (ii) the amount of the Revolving Debt that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and that the

19

terms of the Revolving Debt may be modified, extended or amended from time to time, and that the aggregate amount of the Revolving Debt may be increased, replaced or refinanced, in each event, without notice to or consent by the Note Collateral Agent or the Secured HY Note Holders and without affecting the provisions hereof (but without modification of the provisions of Section 2.1 as to Revolving Debt in excess of the Maximum Revolving Debt Amount); and (iii) all Collateral received by the Revolving Credit Agent may be applied, reversed, reapplied, credited, or reborrowed, in whole or in part, to the Revolving Debt at any time; provided, however, that from and after the date on which the Revolving Credit Agent commences an Enforcement Action, all amounts received by the Revolving Credit Agent or any Revolving Secured Party shall be applied as specified in this Section 4.1. The Lien priorities shall not be altered or otherwise affected by any such amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement, renewal, restatement or refinancing of either the Revolving Debt or the Secured HY Debt, or any portion thereof.

     (b) Application of Proceeds of Shared Collateral. The Revolving Credit Agent and the Note Collateral Agent hereby agree that all Collateral and all proceeds thereof (other than proceeds from any Excluded Assets (including Principal Property (as defined in the Revolving Credit Agreement)) and other Collateral not constituting Shared Collateral), received by either of them in connection with any Enforcement Action with respect to the Shared Collateral shall be applied,

first, to the payment of costs and expenses of the Revolving Credit Agent in connection with such Enforcement Action,

second, to the payment of the Revolving Debt up to the Maximum Revolving Debt Amount in accordance with the Revolving Loan Agreements,

third, to the payment of the Secured HY Debt in accordance with the Secured HY Documents,

fourth, to any other Revolving Debt outstanding in accordance with the Revolving Loan Agreements; and

fifth, the balance, if any, to the Loan Parties or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

     (c) Application of Proceeds of Excluded Assets. The Revolving Credit Agent and the Note Collateral Agent hereby agree that all Excluded Assets, including, without limitation, Principal Property (as defined in the Revolving Credit Agreement) and other Collateral not constituting Shared Collateral and all proceeds thereof received by either of them in connection with any Enforcement Action shall be applied,

first, to the payment of costs and expenses of the Revolving Credit Agent in connection with such Enforcement Action,

second, to the payment of Revolving Debt subject to and in accordance with the terms of the Revolving Credit Agreement, and

20

third, the balance, if any, to the Loan Parties or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

     (d) Payment Over of Proceeds. Any Collateral or proceeds thereof received by the Note Collateral Agent or the Secured HY Note Holders in connection with the exercise of any right or remedy (including set off) in contravention of this Agreement shall be segregated and held in trust and forthwith paid over to the Revolving Credit Agent in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.

     (e) Limited Obligation or Liability. In exercising remedies, whether as a secured creditor or otherwise, neither Party shall have any obligation or liability to the other Party, regarding the adequacy of any proceeds or for any action or omission, save and except solely for an action or omission that breaches the express obligations undertaken under the terms of this Agreement. Notwithstanding anything to the contrary herein contained, none of the Revolving Secured Parties, the Note Collateral Agent or the Secured HY Note Holders waives any claim that it may have against the other on the grounds that and sale, transfer or other disposition by such Person was not commercially reasonable in every respect as required by the Uniform Commercial Code.

     4.2 Specific Performance. Each of the Revolving Credit Agent and the Note Collateral Agent is hereby authorized to demand specific performance of this Agreement, whether or not any Loan Party shall have complied with any of the provisions of any of the Loan Documents, at any time when the other Party shall have failed to comply with any of the provisions of this Agreement applicable to it. Each of the Revolving Credit Agent, on behalf of the Revolving Secured Parties, and the Note Collateral Agent on behalf of itself and the Secured HY Note Holders, hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to such remedy of specific performance.

     5. INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS

     5.1 Notice of Acceptance and Other Waivers.

     (a) All Revolving Debt at any time made or incurred by any Revolving Loan Party shall be deemed to have been made or incurred in reliance upon this Agreement, and the Note Collateral Agent on behalf of itself and the Secured HY Note Holders, hereby waives notice of acceptance, or proof of reliance by the Revolving Credit Agent or any Revolving Secured Party of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the Revolving Debt. All Secured HY Debt shall be deemed to have been made or incurred in reliance upon this Agreement, and the Revolving Credit Agent, on behalf of the Revolving Secured Parties, hereby waives notice of acceptance, or proof of reliance, by the Note Collateral Agent or the Secured HY Note Holders of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the Secured HY Debt.

21

     (b) No Party or any of its respective Affiliates, directors, officers, employees, or agents shall be liable for failure to demand, collect, or realize upon any of the Collateral or any Proceeds, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Collateral or Proceeds thereof or to take any other action whatsoever with regard to the Collateral or any part or Proceeds thereof, except as specifically provided in this Agreement. If the Revolving Credit Agent or any Revolving Lender honors (or fails to honor) a request by any Loan Party for an extension of credit pursuant to the Revolving Credit Agreement or any of the other Revolving Loan Documents, whether the Revolving Credit Agent or any Revolving Lender has knowledge that the honoring of (or failure to honor) any such request would constitute a Secured HY Event of Default (but not a default under this Agreement) or an act, condition, or event that, with the giving of notice or the passage of time, or both, would constitute such a Secured HY Event of Default, or if any Party otherwise should exercise any of its contractual rights or remedies under any Revolving Loan Agreements or Secured HY Documents (subject to the express terms and conditions hereof), no Party shall have any liability whatsoever to the other Party as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement).

     5.2 Modifications to Revolving Loan Documents and Secured HY Documents.

     (a) The Note Collateral Agent, on behalf of itself and the Secured HY Note Holders, hereby agrees that, without affecting the obligations of the Note Collateral Agent hereunder, the Revolving Credit Agent and the Revolving Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to the Note Collateral Agent or the Secured HY Note Holders (except to the extent that such notice or consent is required pursuant to the express provisions of this Agreement), and without incurring any liability to the Note Collateral Agent or the Secured HY Note Holders or impairing or releasing the subordination provided for herein, amend, restate, supplement, replace, refinance, extend, consolidate, restructure, or otherwise modify any of the Revolving Loan Agreements in any manner whatsoever, including, without limitation, to:

(i) change the manner, place, time, or terms of payment or renew, alter or increase, all or any of the Revolving Debt or otherwise amend, restate, supplement, or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the Revolving Debt or any of the Revolving Loan Agreements;

(ii) retain or obtain a Lien on any property of any Person to secure any of the Revolving Debt, and in connection therewith to enter into any additional Revolving Loan Documents;

(iii) amend, or grant any waiver, compromise, or release with respect to, or consent to any departure from, any guaranty or other obligations of any Person obligated in any manner under or in respect of the Revolving Debt;

22

(iv) release its Lien on any Collateral; and

(v) exercise or refrain from exercising any rights against any Loan Party or any other Person;

provided that, no such amendment, restatement, supplement, replacement, refinancing, extension, consolidation, restructuring or modification shall, without the consent of the Note Collateral Agent contravene the provisions of this Agreement.

     The Revolving Credit Agent, on behalf of the Revolving Secured Parties, hereby agrees that, without affecting the obligations of the Revolving Credit Agent and the Revolving Secured Parties hereunder, the Note Collateral Agent and the Secured HY Note Holders may, at any time and from time to time, in their sole discretion without the consent of or notice to the Revolving Credit Agent or any Revolving Secured Party (except to the extent that such notice is required pursuant to the express provisions of this Agreement), and without incurring any liability to the Revolving Credit Agent or any Revolving Secured Party or impairing or releasing the subordination provided for herein, amend, restate, supplement, replace, refinance, extend, consolidate, restructure, or otherwise modify any of the Secured HY Documents in any manner whatsoever, including, without limitation, to:

(i) change the manner, place, time, or terms of payment or renew, alter or increase, all or any of the Secured HY Debt or otherwise amend, restate, supplement, or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the Secured HY Debt or any of the Secured HY Documents;

(ii) subject to Section 2.4, retain or obtain a Lien on any property of any Person to secure any of the Secured HY Debt, and in connection therewith to enter into any additional Secured HY Documents;

(iii) amend, or grant any waiver, compromise, or release with respect to, or consent to any departure from, any guaranty or other obligations of any Person obligated in any manner under or in respect of the Secured HY Debt;

(iv) release its Lien on any Collateral; and

(v) exercise or refrain from exercising any rights against any Loan Party or any other Person;

provided that, no such amendment, restatement, supplement, replacement, refinancing, extension, consolidation, restructuring or modification shall, without the consent of the Revolving Credit Agent contravene the provisions of this Agreement.

     (b) No consent furnished by the Revolving Credit Agent pursuant to Section 5.2(b) hereof shall be deemed to constitute the modification or waiver of any provisions

23

of the Revolving Loan Documents, each of which remain in full force and effect as written.

     (c) The Revolving Debt and the Secured HY Debt may be refinanced, in whole or in part, in each case, without notice to, or the consent of the Revolving Credit Agent, the Revolving Secured Parties, the Note Collateral Agent or the Secured HY Note Holders, as the case may be, all without affecting the Lien priorities provided for herein or the other provisions hereof, provided, however, that the holders of such refinancing Indebtedness (or an authorized agent or Note Collateral Agent on their behalf) bind themselves in writing to the terms of this Agreement pursuant to such documents or agreements (including amendments or supplements to this Agreement) as the Revolving Credit Agent or the Note Collateral Agent, as the case may be, shall reasonably request and in form and substance reasonably acceptable to the Revolving Credit Agent or the Note Collateral Agent, as the case may be.

     5.3 Reinstatement and Continuation of Agreement.

     (a) If the Revolving Credit Agent or any Revolving Secured Party is required in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the estate of any Loan Party or any other Person any payment made in satisfaction of all or any portion of the Revolving Debt (a “Revolving Recovery”), then the Revolving Debt shall be reinstated to the extent of such Revolving Recovery. If this Agreement shall have been terminated prior to such Revolving Recovery, this Agreement shall be reinstated in full force and effect in the event of such Revolving Recovery, and such prior termination shall not diminish, release, discharge, impair, or otherwise affect the obligations of the parties. All rights, interests, agreements, and obligations of the Parties under this Agreement shall remain in full force and effect and shall continue irrespective of the commencement of, or any discharge, confirmation, conversion, or dismissal of, any Insolvency Proceeding by or against any Loan Party or any other circumstance which otherwise might constitute a defense available to, or a discharge of any Loan Party in respect of the Revolving Debt or the Secured HY Debt. No priority or right of the Revolving Credit Agent or any Revolving Secured Party shall at any time be prejudiced or impaired in any way by any act or failure to act on the part of any Revolving Loan Party or by the noncompliance by any Person with the terms, provisions, or covenants of any of the Revolving Loan Documents, regardless of any knowledge thereof which the Revolving Credit Agent or any Revolving Secured Party may have.

     (b) If the Note Collateral Agent or the Secured HY Note Holders are required in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the estate of any Loan Party or any other Person any payment made in satisfaction of all or any portion of the Secured HY Debt (a “Secured HY Recovery”), then the Secured HY Debt shall be reinstated to the extent of such Secured HY Recovery. If this Agreement shall have been terminated prior to such Secured HY Recovery, this Agreement shall be reinstated in full force and effect in the event of such Secured HY Recovery, and such prior termination shall not diminish, release, discharge, impair, or otherwise affect the obligations of the parties from and after such date of reinstatement. All rights, interests,

24

agreements, and obligations of the Parties under this Agreement shall remain in full force and effect and shall continue irrespective of the commencement of, or any discharge, confirmation, conversion, or dismissal of, any Insolvency Proceeding by or against any Loan Party or any other circumstance which otherwise might constitute a defense available to, or a discharge of any Loan Party in respect of the Revolving Debt or the Secured HY Debt. No right of the Note Collateral Agent or the Secured HY Note Holders shall at any time be prejudiced or impaired in any way by any act or failure to act on the part of any Loan Party or by the noncompliance by any Person with the terms, provisions, or covenants of any of the Secured HY Documents, regardless of any knowledge thereof which the Note Collateral Agent or the Secured HY Note Holders may have.

     6. INSOLVENCY PROCEEDINGS

     6.1 DIP Financing.

     (a) If any Loan Party shall be subject to any Insolvency Proceeding at any time and the Revolving Credit Agent or the Revolving Lenders shall seek to provide any Loan Party with, or consent to a third party providing, any financing under Section 364 of the Bankruptcy Code or consent to any order for the use of cash collateral under Section 363 of the Bankruptcy Code (each, a “DIP Financing”), with such DIP Financing to be secured by all or any portion of the Collateral (including assets that, but for the application of Section 552 of the Bankruptcy Code would be Collateral), then the Note Collateral Agent, on behalf of itself and the Secured HY Note Holders, agrees that it will raise no objection and will not support any objection to such DIP Financing or use of cash collateral or to the Liens securing the same on the grounds of a failure to provide “adequate protection” for the Liens of the Note Collateral Agent securing the Secured HY Debt or on any other grounds (whether in its capacity as a secured or unsecured creditor), so long as (i) the Note Collateral Agent retains its Lien on the Shared Collateral to secure the Secured HY Debt (in each case, including proceeds thereof arising after the commencement of the case under the Bankruptcy Code), subject only to the Liens securing the DIP Financing, the Revolving Debt and other Liens having priority under applicable law, (ii) the terms of the DIP Financing do not compel the applicable Loan Party to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms of such plan are set forth in the DIP Financing documentation or related document; (iii) all Liens on the Collateral securing any such DIP Financing shall be senior to or on a parity with the Liens of the Revolving Credit Agent and the Revolving Secured Parties securing the Revolving Debt on the Collateral, and (iv) the maximum principal amount of the DIP Financing shall not exceed the Maximum Revolving Debt Amount. Nothing contained herein shall limit the Revolving Credit Agent and the Revolving Secured Parties from proposing any DIP Financing which does not comply with each of the foregoing requirements (including, without limitation, proposing DIP Financing in excess of the Maximum Revolving Debt Amount secured by first priority Liens on the Collateral); however, in such event the Note Collateral Agent may raise any objections to such DIP Financing as it deems necessary to protect the interests of the Secured HY Note Holders.

25

     (b) All Liens granted to the Revolving Credit Agent or the Note Collateral Agent in any Insolvency Proceeding, whether as adequate protection or otherwise, are intended by the parties to be and shall be deemed to be subject to the Lien priority and the other terms and conditions of this Agreement.

     6.2 Relief from Stay. The Note Collateral Agent, on behalf of itself and the Secured HY Note Holders, agrees not to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any portion of the Collateral without the Revolving Credit Agent’s express written consent. The Revolving Credit Agent shall furnish the Note Collateral Agent with three Business Days’ prior written notice prior to its seeking relief from the automatic stay, unless such period is agreed by both the Revolving Credit Agent and the Note Collateral Agent to be modified or unless the Revolving Credit Agent makes a good faith determination that either (A) the Collateral will decline speedily in value or (B) the failure to take any action will have a reasonable likelihood of endangering the Revolving Credit Agent’s ability to realize upon the Collateral.

     6.3 No Contest; Adequate Protection.

     (a) The Note Collateral Agent on behalf of itself and the Secured HY Note Holders, agrees that none of them shall contest (or support any other Person contesting) (a) any request by the Revolving Credit Agent or any Revolving Secured Party for adequate protection of its interest in the Collateral, (b) subject to Section 6.1(a), any proposed provision of DIP Financing by the Revolving Credit Agent and the Revolving Lenders (or any other Person proposing to provide DIP Financing with the consent of the Revolving Credit Agent) or (c) any objection by the Revolving Credit Agent or any Revolving Secured Party to any motion, relief, action, or proceeding based on a claim by the Revolving Credit Agent or any Revolving Secured Party that its interests in the Collateral are not adequately protected (or any other similar request under any law applicable to an Insolvency Proceeding).

     (b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency Proceeding if the Revolving Secured Parties (or any subset thereof) are granted adequate protection with respect to the Collateral in the form of additional collateral (even if such collateral is not of a type which would otherwise have constituted Collateral), then the Revolving Credit Agent, on behalf of itself and the Revolving Secured Parties, agrees that the Note Collateral Agent, on behalf of itself or any of the Secured HY Note Holders, may seek or request (and the Revolving Lenders will not oppose such request) adequate protection with respect to its interests in the Shared Collateral in the form of a Lien on the same additional collateral, which Lien will be subordinated to the Liens securing the Revolving Debt on the same basis as the other Liens of the Note Collateral Agent on the Collateral.

     6.4 Asset Sales. The Note Collateral Agent agrees, on behalf of itself and the Secured HY Note Holders, that it will not oppose any sale consented to by the Revolving Credit Agent of any Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any similar provision under

26

the law applicable to any Insolvency Proceeding), so long as in each case, the proceeds of such sale are applied in accordance with Section 4.1 of this Agreement.

     6.5 Separate Grants of Security and Separate Classification. Each Party acknowledges and agrees that (i) the grants of Liens pursuant to the Revolving Loan Agreements and the Secured HY Documents constitute two separate and distinct grants of Liens and (ii) because of, among other things, their differing rights in the Collateral, the Secured HY Debt is fundamentally different from the Revolving Debt and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the Revolving Secured Parties and the Note Collateral Agent in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Revolving Secured Parties and the Note Collateral Agent hereby acknowledge and agree that all distributions shall be made as if there were separate classes of Revolving Debt claims and Secured HY Debt claims against the Loan Parties, with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the other Parties), the Revolving Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest and other fees, expenses and charges that is available from the Collateral for the Revolving Secured Parties before any distribution is made in respect of the claims held by the Note Collateral Agent and the Secured HY Note Holders from such Collateral, with the Note Collateral Agent, by and on behalf of itself and the Secured HY Note Holders hereby acknowledging and agreeing to turn over amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries.

     6.6 Enforceability. The provisions of this Agreement are intended to be and shall be enforceable under Section 510(a) of the Bankruptcy Code.

     6.7 Revolving Debt Unconditional. All rights of the Revolving Credit Agent hereunder, and all agreements and obligations of the Note Collateral Agent and the Loan Parties (to the extent applicable) hereunder, shall remain in full force and effect irrespective of:

(a) any lack of validity or enforceability of any Revolving Loan Document;

(b) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Revolving Debt, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any Revolving Loan Document;

(c ) any exchange, release, voiding, avoidance or non perfection of any security interest in any Collateral or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding, restatement or increase of all or any portion of the Revolving Debt or any guarantee or guaranty thereof; or

27

(d) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Loan Party in respect of the Revolving Debt, or of the Note Collateral Agent or any Loan Party, to the extent applicable, in respect of this Agreement.

     6.8 Secured HY Debt Unconditional. All rights of the Note Collateral Agent hereunder, all agreements and obligations of the Revolving Credit Agent and the Loan Parties (to the extent applicable) hereunder, shall remain in full force and effect irrespective of:

(a) any lack of validity or enforceability of any Secured HY Document;

(b) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Secured HY Debt, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any Secured HY Document;

(c) any exchange, release, voiding, avoidance or non perfection of any security interest in any Collateral, or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding, restatement or increase of all or any portion of the Secured HY Debt or any guarantee or guaranty thereof; or

(d) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Loan Party in respect of the Secured HY Debt, or of any of the Revolving Credit Agent or any Loan Party, to the extent applicable, in respect of this Agreement.

     7. PURCHASE OPTIONS

     7.1 On or after the occurrence and during the continuance of a Revolving Event of Default and the acceleration of the Revolving Debt, the Person(s) designated by the Note Collateral Agent (the “Designated Note Purchaser(s)”) shall have the option, by written notice from the Note Collateral Agent to the Revolving Credit Agent, to purchase all of the Revolving Debt (including the Revolving Lenders’ collateral interest in the Collateral). On the date specified by the Note Collateral Agent in such notice (which may not be later than the Business Day prior to the date of commencement of the sale or other liquidation of the Collateral of which the Note Collateral Agent shall have been given no less than ten (10) days prior notice), the Revolving Lenders shall sell to the Designated Note Purchaser(s) such Revolving Debt. Upon the date of such purchase and sale, the Designated Note Purchaser(s) shall (a) pay to Revolving Credit Agent, for its account and the account of the Revolving Secured Parties, as the purchase price therefor the full amount of all such Revolving Debt (exclusive of Letter of Credit Outstandings) then outstanding and unpaid (including principal, interest, fees, indemnities, and expenses, including reasonable attorneys’ fees and legal expenses), and (b) in connection therewith furnish the Revolving Loan Agent with cash collateral in an amount equal to 103% of the maximum amount available to be drawn under outstanding Letters of Credit (as defined in the Revolving Loan Agreements). Such purchase shall be expressly made without representation

28

or warranty of any kind by the Revolving Credit Agent or the Revolving Secured Parties and without recourse to the Revolving Credit Agent or the Revolving Secured Parties, except that Revolving Lenders shall represent and warrant: (a) that the Revolving Lenders own the Revolving Debt free and clear of any Liens or encumbrances, (b) the Revolving Lenders have the right to assign the Revolving Debt, and (c) the assignment is duly authorized, executed and delivered. Any cash collateral furnished for outstanding letters of credit which is not required to be utilized to reimburse the Revolving Lenders for any drawings thereunder and fees and expenses associated therewith shall be returned to the Note Collateral Agent upon the expiration or cancellation of each such letter of credit or after each such letter of credit is fully drawn. The obligations of the Revolving Lenders to sell their respective Revolving Debt under this Section 7.1 are several and not joint, and if any Revolving Lender breaches its obligations to sell its Revolving Debt, the Designated Note Purchaser(s) may (but shall not be obligated to) purchase the Revolving Debt of the other Revolving Lenders; it being acknowledged that nothing in this Section 7.1 shall require the Designated Note Purchaser(s) to purchase less than all of the Revolving Debt.

     8. MISCELLANEOUS

     8.1 Rights of Subrogation. The Note Collateral Agent, on behalf of the Secured HY Note Holders, agrees that no payment to the Revolving Credit Agent or any Revolving Secured Parties pursuant to the provisions of this Agreement shall entitle the Note Collateral Agent or any Secured HY Note Holder to exercise any rights of subrogation in respect thereof prior to the Discharge of Revolving Debt. Following the Discharge of Revolving Debt, the Revolving Credit Agent agrees to execute such documents, agreements, and instruments as the Note Collateral Agent may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the Revolving Debt resulting from payments to the Revolving Credit Agent by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by the Revolving Credit Agent are paid by such Person upon request for payment thereof.

     8.2 Further Assurances. The Parties will, at their own expense and at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that either Party may reasonably request, in order to protect any right or interest granted or purported to be granted hereby or to enable the Revolving Credit Agent or the Note Collateral Agent to exercise and enforce its rights and remedies hereunder; provided, however, that no Party shall be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this Section 8.2, to the extent that such action would contravene any law, order or other legal requirement or any of the terms or provisions of this Agreement, and in the event of a controversy or dispute, such party may interplead any payment or distribution in any court of competent jurisdiction, without further responsibility in respect of such payment or distribution under this Section 8.2.

     8.3 Representations. The Note Collateral Agent represents and warrants to the Revolving Credit Agent that it has the requisite power and authority under the Indenture to enter into, execute, deliver, and carry out the terms of this Intercreditor Agreement, and that this

29

Intercreditor Agreement shall be binding obligations of the Note Collateral Agent and the Secured HY Note Holders, enforceable against the Note Collateral Agent and the Secured HY Note Holders in accordance with its terms. The Revolving Credit Agent represents and warrants to the Note Collateral Agent that it has the requisite power and authority under the Revolving Loan Documents to enter into, execute, deliver, and carry out the terms of this Intercreditor Agreement, and that this Agreement shall be binding obligations of the Revolving Credit Agent and the Revolving Secured Parties, enforceable against the Revolving Credit Agent and the Revolving Secured Parties in accordance with its terms.

     8.4 Amendments. No amendment or waiver of any provision of this Agreement nor consent to any departure by any party hereto shall be effective unless it is in a written agreement executed by the Note Collateral Agent and the Revolving Credit Agent and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

     8.5 Addresses for Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, faxed, or sent by electronic transmission, overnight express courier service or United States mail and shall be deemed duly given, made or received; if delivered in person, immediately upon delivery, if by electronic transmission or facsimile transmission, immediately upon sending and upon confirmation of receipt; if by nationally recognized overnight courier service with instructions to deliver the next Business Day, one (1) Business Day after sending; and if mailed by certified mail, return receipt requested, five (5) days after mailing to the Parties at their addresses set forth below (or to such other addresses as the parties may designate in accordance with the provisions of this Section. For the purposes hereof, the addresses of the parties hereto (until notice of a change thereof is delivered as provided in this Section) shall be as set forth below or, as to each Party, at such other address as may be designated by such party in a written notice to the other Party.

Revolving Credit Agent:	Bank of America, N.A.
	100 Federal Street
	Boston, Massachusetts 02110
	Attention: Mr. Thomas Bullard
	Telephone No: (617) 434-3824
	Telecopy No.: (617) 434-4312
With a copy to:	Riemer & Braunstein, LLP
	Three Center Plaza
	Boston, Massachusetts 02108
	Attention: David S. Berman, Esquire
	Telephone No: (617) 523-9000
	Telecopy No.: (617) 880-3456
Note Collateral Agent:	Wilmington Trust Company
	Rodney Square North

30

	1100 North Market Street
	Wilmington, DE 19890
	Attn: Corporate Capital Markets
	Telecopy No.: (302) 636-4145
With a copy to:	Covington & Burling LLP
	The New York Times Building
	620 Eighth Avenue
	New York, NY 10018-1405
	Attention: Bruce Bennett, Esquire
	Telephone No. (212) 841-1060
	Telecopy No.: (212) 841-1010

Any Party may change the address(es) to which all notices, requests and other communications are to be sent by giving written notice of such address change to the other Party in conformity with this Section, but such change shall not be effective until notice of such change has been received by the other party.

     8.6 No Waiver, Remedies. No failure on the part of any Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

     8.7 Preservation of Collateral. No Party shall have any duty to protect or preserve any rights pertaining to any of the Collateral in its possession and no Party shall have any liability to the other Party for any claims and liabilities at any time arising with respect to the Collateral in its possession so long as such Party shall use the same degree of care with respect thereto as it uses for similar property pledged to it as collateral for indebtedness of others to it.

     8.8 Continuing Agreement, Transfer of Secured Obligations.

     (a) This Agreement is a continuing agreement and shall (a) remain in full force and effect until the earlier of the Discharge of Revolving Debt or the Discharge of the Secured HY Notes, (b) be binding upon the parties and their successors and assigns, and (c) inure to the benefit of and be enforceable by the parties and their respective successors, transferees and assigns. Nothing herein is intended, or shall be construed to give, any other Person any right, remedy or claim under, to or in respect of this Intercreditor Agreement or any Collateral. All references to any Loan Party shall include any Loan Party as debtor-in-possession and any receiver or trustee for such Loan Party in any Insolvency Proceeding. Without limiting the generality of the foregoing clause (c), any Party may assign or otherwise transfer all or any portion of the Revolving Debt and Secured HY Notes (in accordance with the Indenture), as applicable, to any other Person (other than any Loan Party or any Affiliate of a Loan Party and any Subsidiary of a Loan Party, it being understood and agreed that in no event shall a Revolving Secured Party,

31

the Note Collateral Agent or any Secured HY Note Holder be deemed to constitute an Affiliate of a Loan Party), and such other Person shall thereupon become vested with all the rights and obligations in respect thereof granted to such Party, as the case may be, herein or otherwise. The Revolving Secured Parties and Secured HY Note Holders may continue, at any time and without notice to the other Party hereto, to extend credit and other financial accommodations, lend monies and provide Indebtedness to, or for the benefit of, any Loan Party on the faith hereof.

     (b) In connection with any assignment or transfer of any or all of the Revolving Debt or Secured HY Debt, as applicable, (other than an assignment or transfer of any Secured HY Notes in accordance with the Indenture or pursuant to a participation), the assigning Lenders agree that any such assignment or transfer shall expressly state in writing that such assignment or transfer is subject to the terms of this Agreement and that the assignee or transferee is entitled to all of the benefits of, and is subject to all of the obligations under, this Intercreditor Agreement. Further each Party acknowledges that this Intercreditor Agreement will inure to the benefit of any third Person who refinances or succeeds to or replaces any or all of any such Lender’s financing of the Loan Parties, to the extent such Person has a security interest in any of the Collateral, whether such successor financing or replacement occurs by transfer, assignment or repayment without the necessity of any further writing; however, each Party agrees, upon request of such third Person, to execute and deliver an agreement with such Person containing terms substantially identical to those contained herein (subject to changing names of parties, documents and addresses, as appropriate).

     8.9 Governing Law; Entire Agreement. The validity, performance, and enforcement of this Intercreditor Agreement shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to principles of conflicts of law). This Intercreditor Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes any prior agreements, written or oral, with respect thereto.

     8.10 Counterparts. This Intercreditor Agreement may be executed in any number of counterparts, and it is not necessary that the signatures of all parties be contained on any one counterpart hereof, each counterpart will be deemed to be an original, and all together shall constitute one and the same document. Delivery of an executed counterpart of a signature page of this Intercreditor Agreement by telecopy or electronic transmission shall be effective as delivery of a manually executed counterpart of this Intercreditor Agreement.

     8.11 No Third Party Beneficiaries. This Intercreditor Agreement is solely for the benefit of the Revolving Credit Agent, Revolving Secured Parties, Note Collateral Agent and the Secured HY Note Holders. No other Person (including any Loan Party or any Affiliate of a Loan Party, or any Subsidiary of a Loan Party) shall be deemed to be a third party beneficiary of this Intercreditor Agreement.

32

     8.12 Headings. The headings of the articles and sections of this Intercreditor Agreement are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof.

     8.13 Severability. If any of the provisions in this Intercreditor Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Intercreditor Agreement and shall not invalidate the Lien priority or the application of proceeds and other priorities set forth in this Intercreditor Agreement. The Parties hereto shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

     8.14 Attorneys Fees. The parties agree that if any dispute, arbitration, litigation, or other proceeding is brought with respect to the enforcement of this Intercreditor Agreement or any provision hereof, the prevailing party in such dispute, arbitration, litigation, or other proceeding shall be entitled to recover its reasonable attorneys’ fees and all other costs and expenses incurred in the enforcement of this Intercreditor Agreement, irrespective of whether suit is brought.

     8.15 VENUE; JURY TRIAL WAIVER.

     (a) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

     (b) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF SUCH STATE, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING

33

ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OR ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY REVOLVING LENDER OR ANY SECURED HY NOTE HOLDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY REVOLVING LOAN AGREEMENTS OR ANY SECURED HY DOCUMENTS AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

     (c) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

     (d) EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 8.5. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

     8.16 Intercreditor Agreement. This Agreement is the Intercreditor Agreement referred to in the Revolving Credit Agreement and the Indenture. Nothing in this Agreement shall be deemed to subordinate the obligations due to (i) any Revolving Secured Party to the obligations due to any Senior HY Note Holder or (ii) any Senior HY Note Holder to the obligations due to any Revolving Secured Party (in each case, whether before or after the occurrence of an Insolvency Proceeding), it being the intent of the parties that this Intercreditor Agreement shall effectuate a subordination of Liens but not a subordination of indebtedness.

     8.17 No Warranties or Liability. The Note Collateral Agent and the Revolving Credit Agent acknowledge and agree that neither has made any representation or warranty with respect to the execution, validity, legality, completeness, collectibility or enforceability of any other Revolving Loan Document or any Secured HY Document. Except as otherwise provided in this

34

Agreement, the Note Collateral Agent and the Revolving Credit Agent will be entitled to manage and supervise their respective extensions of credit to any Loan Party in accordance with law and their usual practices, modified from time to time as they deem appropriate.

     8.18 Conflicts. In the event of any conflict between the provisions of this Intercreditor Agreement and the provisions of any of the Revolving Loan Agreement, Revolving Security Documents, the Indenture or Secured HY Security Documents, the provisions of this Intercreditor Agreement shall govern.

     8.19 Information Concerning Financial Condition of the Loan Parties. Each of the Note Collateral Agent and the Revolving Credit Agent hereby assume responsibility for keeping itself informed of the financial condition of the Loan Parties and all other circumstances bearing upon the risk of nonpayment of the Revolving Debt or Senior HY Debt. The Note Collateral Agent and the Revolving Credit Agent hereby agree that no party shall have any duty to advise any other Party of information known to it regarding such condition or any such circumstances. In the event the Note Collateral Agent or the Revolving Credit Agent, in its sole discretion, undertakes at any time or from time to time to provide any information to any other Party to this Agreement, (a) it shall be under no obligation (i) to provide any such information to such other Party or any other Party on any subsequent occasion, (ii) to undertake any investigation not a part of its regular business routine, or (iii) to disclose any other information, or (b) it makes no representation as to the accuracy or completeness of any such information and shall not be liable for any information contained therein, and (c) the Party receiving such information hereby to hold the other Party harmless from any action the receiving party may take or conclusion the receiving party may reach or draw from any such information, as well as from and against any and all losses, claims, damages, liabilities, and expenses to which such receiving party may become subject arising out of or in connection with the use of such information.

[Signature pages follow]

35

     IN WITNESS WHEREOF, the Revolving Credit Agent, for and on behalf of itself and the Revolving Secured Parties, and the Note Collateral Agent for and on behalf of the Secured HY Note Holders, have caused this Agreement to be duly executed and delivered as of the date first above written.

BANK OF AMERICA, N.A., in its capacity as the Revolving Credit Agent
By:	/s/ Christine Hutchinson
	Name:	Christine Hutchinson
	Title:	Principal
WILMINGTON TRUST COMPANY, in its capacity as Note Collateral Agent
By:	/s/ Michael G. Oller, Jr.
	Name:	Michael G. Oller, Jr.
	Title:	Assistant Vice President

Signature Page to Intercreditor Agreement

ACKNOWLEDGMENT

     Each Party hereby acknowledge that it has received a copy of this Intercreditor Agreement and consents thereto, agrees to recognize all rights granted thereby to the Parties and will not do any act or perform any obligation which is not in accordance with the agreements set forth in this Agreement. Each Loan Party further acknowledge and agrees that it is not an intended beneficiary or third party beneficiary under this Agreement and (i) as between the Revolving Secured Parties and the Loan Parties, the Revolving Loan Agreements remain in full force and effect as written and are in no way modified hereby, and (ii) as between the Note Collateral Agent and the Loan Parties, the Secured HY Documents remain in full force and effect as written and are in no way modified hereby.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary

ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.) NORTH JERSEY PROPERTIES, INC. VI AAL REALTY CORP. ADBRETT CORP. BERGEN STREET PATHMARK, INC. BRIDGE STUART INC. EAST BRUNSWICK STUART LLC LANCASTER PIKE STUART, LLC MACDADE BOULEVARD STUART, LLC PLAINBRIDGE LLC SUPERMARKETS OIL COMPANY, INC. UPPER DARBY STUART, LLC BEST CELLARS, INC. BEST CELLARS MASSACHUSETTS, INC. BEST CELLARS VA INC. GRAPE FINDS LICENSING CORP. GRAPE FINDS AT DUPONT, INC. BEST CELLARS DC INC. BEST CELLARS LICENSING CORP.
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	President

Signature Page to Intercreditor Agreement

COMPASS FOODS, INC. FOOD BASICS, INC. HOPELAWN PROPERTY I, INC. KOHL’S FOOD STORES, INC. THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC      TEA COMPANY, INC. KWIK SAVE INC. MONTVALE HOLDINGS, INC. SUPER FRESH FOOD MARKETS, INC. SUPER FRESH FOOD MARKETS OF MARYLAND, INC. SUPER FRESH/SAV — A — CENTER, INC. SUPER MARKET SERVICE CORP. SUPER PLUS FOOD WAREHOUSE, INC. SUPERMARKET DISTRIBUTION SERVICES, INC. 2008 BROADWAY, INC. BEV, LTD. FARMER JACK’S OF OHIO, INC. SHOPWELL, INC. (DBA FOOD EMPORIUM) CLAY-PARK REALTY CO., INC. AMSTERDAM TRUCKING CORPORATION      (F/K/A DAITCH CRYSTAL DAIRIES, INC.) DELAWARE COUNTY DAIRIES, INC. GRAMATAN FOODTOWN CORP. SHOPWELL, INC. (ORG IN CONN) SHOPWELL, INC. (ORG IN MASS) SHOPWELL, INC. (NEW JERSEY) THE FOOD EMPORIUM, INC. (CONN) THE FOOD EMPORIUM, INC. (DELAWARE) THE FOOD EMPORIUM, INC. (NJ) TRADEWELL FOODS OF CONN., INC. APW SUPERMARKET CORPORATION APW SUPERMARKETS, INC. WALDBAUM, INC. (DBA WALDBAUM, INC. AND      FOOD MART) LBRO REALTY, INC. MCLEAN AVENUE PLAZA CORP. SPRING LANE PRODUCE CORP. THE MEADOWS PLAZA DEVELOPMENT CORP. GREENLAWN LAND DEVELOPMENT CORP.
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Secretary

Signature Page to Intercreditor Agreement

S E G STORES, INC. THE OLD WINE EMPORIUM OF WESTPORT, INC.
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Secretary
PATHMARK STORES, INC.
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary
BORMAN’S, INC. (DBA FARMER JACK)
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Vice President and Assistant Secretary
MILIK SERVICE COMPANY, LLC By Pathmark Stores, Inc., its Manager
By:	/s/ Christopher McGarry
	Name:	Christopher McGarry
	Title:	Senior Vice President and Assistant Secretary
LO-LO DISCOUNT STORES, INC.
By:	/s/ William Moss
	Name:	William Moss
	Title:	Vice President and Treasurer

Signature Page to Intercreditor Agreement

Schedule 1

Revolving Borrowers

The Great Atlantic & Pacific Tea Company, Inc.

APW Supermarkets, Inc.

Compass Foods, Inc.

Food Basics, Inc.

Hopelawn Property I, Inc.

Lo-Lo Discount Stores, Inc.

McLean Avenue Plaza Corp.

Shopwell, Inc. [DE]

Super Fresh Food Markets, Inc.

Super Fresh/Sav -A- Center, Inc.

Super Market Service Corp.

Super Plus Food Warehouse, Inc.

Tradewell Foods of Conn., Inc.

Waldbaum, Inc.

Pathmark Stores, Inc.

AAL Realty Corp.

Bergen Street Pathmark, Inc.

Bridge Stuart Inc.

East Brunswick Stuart LLC

Lancaster Pike Stuart, LLC

MacDade Boulevard Stuart, LLC

Plainbridge LLC

Upper Darby Stuart, LLC

Schedule 2

Revolving Guarantors

Kwik Save, Inc.

Montvale Holdings, Inc.

Super Fresh Food Markets of Maryland, Inc.

Supermarket Distribution Services, Inc.

2008 Broadway, Inc.

Clay-Park Realty Co., Inc.

Delaware County Dairies, Inc.

Gramatan Foodtown Corp.

Shopwell, Inc. [MA]

Shopwell, Inc. [NJ]

The Food Emporium, Inc. [DE]

The Food Emporium, Inc. [NJ]

APW Supermarket Corporation

The Meadows Plaza Development Corp.

Spring Lane Produce Corp.

Borman’s, Inc.

Bev, Ltd.

Farmer Jack’s of Ohio, Inc.

S E G Stores, Inc.

Kohl’s Food Stores, Inc.

The South Dakota Great Atlantic & Pacific Tea Co., Inc.

Adbrett Corp.

Milik Service Company, LLC

Supermarkets Oil Company, Inc.

Amsterdam Trucking Corporation

North Jersey Properties, Inc. VI

Onpoint, Inc. (f/k/a Hamilton Property I, Inc.)

Best Cellars, Inc.

Best Cellars Massachusetts, Inc.

Best Cellars VA Inc.

Grape Finds Licensing Corp.

Grape Finds at Dupont, Inc.

Best Cellars DC Inc.

Best Cellars Licensing Corp.

Shopwell, Inc. [CT]

LBRO Realty, Inc.

Greenlawn Land Development Corp.

The Food Emporium, Inc. [CT]

The Old Wine Emporium of Westport, Inc.

Schedule 3

HY Secured Guarantors

APW Supermarkets, Inc.

Compass Foods, Inc.

Food Basics, Inc.

Hopelawn Property I, Inc.

Lo-Lo Discount Stores, Inc.

McLean Avenue Plaza Corp.

Shopwell, Inc. [DE]

Super Fresh Food Markets, Inc.

Super Fresh/Sav -A- Center, Inc.

Super Market Service Corp.

Super Plus Food Warehouse, Inc.

Tradewell Foods of Conn., Inc.

Waldbaum, Inc.

Pathmark Stores, Inc.

AAL Realty Corp.

Bergen Street Pathmark, Inc.

Bridge Stuart Inc.

East Brunswick Stuart LLC

Lancaster Pike Stuart, LLC

MacDade Boulevard Stuart, LLC

Plainbridge LLC

Upper Darby Stuart, LLC

Kwik Save, Inc.

Montvale Holdings, Inc.

Super Fresh Food Markets of Maryland, Inc.

Supermarket Distribution Services, Inc.

2008 Broadway, Inc.

Clay-Park Realty Co., Inc.

Delaware County Dairies, Inc.

Gramatan Foodtown Corp.

Shopwell, Inc. [MA]

Shopwell, Inc. [NJ]

The Food Emporium, Inc. [DE]

The Food Emporium, Inc. [NJ]

APW Supermarket Corporation

The Meadows Plaza Development Corp.

Spring Lane Produce Corp.

Borman’s, Inc.

Bev, Ltd.

Farmer Jack’s of Ohio, Inc.

S E G Stores, Inc.

Kohl’s Food Stores, Inc. - All Closed

The South Dakota Great Atlantic & Pacific Tea Co., Inc.

Adbrett Corp.

Milik Service Company, LLC

Supermarkets Oil Company, Inc.

Amsterdam Trucking Corporation

North Jersey Properties, Inc. VI

Onpoint, Inc. (f/k/a Hamilton Property I, Inc.)

Best Cellars, Inc.

Best Cellars Massachusetts, Inc.

Best Cellars VA Inc.

Grape Finds Licensing Corp.

Grape Finds at Dupont, Inc.

Best Cellars DC Inc.

Best Cellars Licensing Corp.

Shopwell, Inc. [CT]

LBRO Realty, Inc.

Greenlawn Land Development Corp.

The Food Emporium, Inc. [CT]

The Old Wine Emporium of Westport, Inc.

EX-10.5

-1-

EXHIBIT 10.5

FORM OF
INDEMNIFICATION AGREEMENT

     This Indemnification Agreement, made and entered into as of the 4^th day of August, 2009 (“Agreement”), by and between The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (“Company”), and [ ] (“Indemnitee”):

     WHEREAS, highly competent persons have become more reluctant to serve corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such corporations;

     WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the business enterprise itself;

     WHEREAS, the uncertainties relating to such insurance and to indemnification have in-creased the difficulty of attracting and retaining such persons;

     WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

     WHEREAS, this Agreement is a supplement to and in furtherance of the charter of the Company (the “Charter”) and the by-laws of the Company (the “By-Laws”) and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;

     WHEREAS, Section 2-418 of the Maryland General Corporation Law (the “MGCL”) expressly recognizes that the indemnification provisions of such section are not exclusive of any other rights to which a person seeking indemnification may be entitled under the Charter, the By-Laws, a resolution of stockholders or directors, any agreement or otherwise;

-2-

     WHEREAS, the indemnification provisions of the Charter and By-Laws are nonexclusive and, therefore, contemplate that contracts may be entered into with respect to indemnification of directors, officers, employees and agents;

     WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and

     WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified;

     NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee, intending to be legally bound, do hereby covenant and agree as follows:

     Section 1. Services by Indemnitee.

     Indemnitee agrees to serve as a director, officer, employee and/or agent of the Company and/or any of its subsidiaries and may serve, at the request of the Company, as a director, officer, employee and/or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise (a “Relevant Enterprise”). Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries) and Indemnitee. Indemnitee specifically acknowledges that Indemnitee’s employment with the Company (or any of its subsidiaries), if any, is “at will,” and Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment contract between Indemnitee and the Company (or any of its subsidiaries), other applicable formal severance policies duly adopted by the Board, or, with respect to service as a director of the Company and/or any of its subsidiaries, under applicable law, by the relevant company’s charter or by-laws (or other relevant organizational documents). The foregoing notwithstanding, this Agreement shall continue in force after Indemnitee has ceased to serve as a director, officer, employee and/or agent, as the case may be, of the Company and its subsidiaries or of a Relevant Enterprise.

     Section 2. Indemnification — General

     The Company, without duplication, shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as provided in this Agreement and (b) (subject to the provisions of this Agreement) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time. The rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of this Agreement.

-3-

     Section 3. Proceedings Other Than Proceedings by or in the
Right of the Company and/or any of its Subsidiaries.

     Indemnitee shall be entitled to the rights of indemnification provided in this Section 3 if, by reason of his or her Corporate Status (as hereinafter defined), he or she is, or is threatened to be made, a party to or a participant in any Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company and/or any of its subsidiaries. Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, unless it is established that (a) the act or omission of Indemnitee was material to the matter giving rise to the Proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty, (b) Indemnitee actually received an improper personal benefit in money, property or services, or (c) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

     Section 4. Proceedings by or in the Right of the
Company and/or any of its Subsidiaries.

     Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, by reason of his or her Corporate Status, he or she is, or is threatened to be made, a party to or a participant in any Proceeding brought by or in the right of the Company and/or any of its subsidiaries to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses), judgments, penalties, tines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding, unless it is established that (a) the act or omission of Indemnitee was material to the matter giving rise to such a Proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty or (b) Indemnitee actually received an improper personal benefit in money, property or services. Indemnitee is not entitled to indemnification in connection with any Proceeding by or in the right of the Company in which he or she was adjudged liable to the Company, except as provided in Section 5 of this Agreement.

     Section 5. Court-Ordered Indemnification.

     Notwithstanding any other provision of this Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court shall require, may order indemnification in the following circumstances:

-4-

     (a) if it determines Indemnitee is entitled to indemnification under the MGCL, the court may order indemnification, in which case Indemnitee shall be entitled to recover, among other amounts, the expenses of securing such indemnification; or

     (b) if it determines that Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not Indemnitee (i) has met the standards of conduct set forth in Section 2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an improper personal benefit under Section 2-418(c) of the MGCL, the court may order such indemnification as the court shall deem proper. However, indemnification with respect to any Proceeding by or in the right of the Company or in which liability shall have been adjudged in the circumstances described in Section 2-418(c) of the MGCL, shall be limited to Expenses.

     Section 6. Partial Indemnification.

     Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in defense of any Proceeding, he or she shall be indemnified against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If Indemnitee is not wholly successful in defense of such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify, without duplication, Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses, judgments, penalties, fines and amounts paid in settlement {including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, penalties, fines and amounts paid in settlement) actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, but not, however, for the total amount thereof, the Company shall nevertheless indemnify, without duplication, Indeinnitee for the portion to which Indemnitee is entitled.

     Section 7. Indemnification for Additional Expenses.

          (a) The Company shall indemnify, without duplication, Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within seven (7) business days of such request) advance such Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification or advance payment of Expenses by the Company under this Agreement or any other agreement, the Charter or the By-Laws now or hereafter in effect; or (ii) recovery under any directors’ and officers’ liability insurance policies

-5-

maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be.

          (b) Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.

     Section 8. Advancement of Expenses.

     The Company shall advance, without duplication, all reasonable Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding within seven (7) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written affirmation by Indemnitee of lndemnitiee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized by law and by this Agreement has been met and a written undertaking by or on behalf of Indemnitee, in such form as may be required by applicable law as in effect at the time of the execution thereof, to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. The written undertaking required by this Section 8 shall be an unlimited general obligation by or on behalf of Indemnitee and shall be accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement to post security therefor. Notwithstanding the foregoing, the obligation of the Company to advance Expenses pursuant to this Section 8 shall be subject to the condition that, if, when and to the extent that the Company determines that Indemnitee would not be permitted to be indemnified under applicable law, the Company shall be entitled to be reimbursed, within thirty (30) days of such determination, by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Company that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any advance of Expenses until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed).

          Section 9. Procedure for Determination of Entitlement to Indemnification

          (a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine

-6-

whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

          (b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 9(a) hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change of Control (as hereinafter defined) shall have occurred since the date of this Agreement, by Independent Counsel (as hereinafter defined) in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board by a majority vote of a quorum consisting of Disinterested Directors (as hereinafter defined), or (B) if such a quorum consisting of Disinterested Directors cannot be obtained, then by a majority vote of a committee of the Board consisting of two or more Disinterested Directors, each of whom was duly designated to act in the matter by a majority vote of the full Board in which the members of the Board who are not Disinterested Directors may participate, or (C) if the requirements set forth in (A) or (B) above are not satisfied, or if directed by a quorum of Disinterested Directors or a majority vote of a duly authorized committee satisfying the requirements set forth in (A) or (B) above, as applicable, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within seven (7) days after such determination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company hereby agrees to indemnify and to hold Indemnitee harmless therefrom.

          (c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9(b) hereof, the Independent Counsel shall be selected as provided in this Section 9(c). The Independent Counsel shall be selected by (A) a majority vote of a quorum consisting of Disinterested Directors, or (B) if such a quorum consisting of Disinterested Directors cannot be obtained, then by a majority vote of a committee of the Board consisting of two or more Disinterested Directors, each of whom was duly designated to act in the matter by a majority vote of the full Board in which the members of the Board who are not Disinterested Directors may participate, or (C) if not selected pursuant to (A) or (B) above, by a majority vote of the full Board in which the members of the Board who are not Disinterested Directors may participate, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. Indemnitee may, within 10

-7-

days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 18 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee, as the case may be, may petition an appropriate court of the State of Maryland (a “Maryland Court”) for resolution of any objection which shall have been made by the Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Maryland Court or by such other person as the Maryland Court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 9(b) hereof. The Company shall pay, without duplication, any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 9(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 9(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 11(a)(iii) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

          (d) The Company shall not be required to obtain the consent of Indemnitee to the settlement of any Proceeding which the Company has undertaken to defend if the Company assumes full and sole responsibility for such settlement and the settlement grants Indemnitee a complete and unqualified release in respect of the potential liability. The Company shall not be liable for any amount paid by Indemnitee in settlement of any Proceeding that is not defended by the Company, unless the Company has consented to such settlement, which consent shall not he unreasonably withheld.

     Section 10. Presumptions and Effect of Certain Proceedings.

          (a) Subject to Section 10(c) below, in making a determination with respect to entitlement to indemnification or the advancement of expenses hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnitication or advancement of expenses under this Agreement if Indemnitee has submitted a request for indemnification or the advancement of expenses in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including its Board or Independent Counsel) to

-8-

have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including its Board or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

          (b) If the person, persons or entity empowered or selected under Section 9 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 10(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders of the Company pursuant to Section 9(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9(b) of this Agreement.

          (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order or settlement, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not meet the requisite standard of conduct described herein for indemnification. The termination of any Proceeding or of any claim, issue or matter therein by conviction, or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, shall create a rebuttable presumption that Indemnitee did not meet the standard of conduct described herein for indemnification.

          (d) For purposes of any determination of Good Faith, Indemnitee shall be deemed to have acted in “good faith” if Indemnitee’s action is based on the records or books of account of the Company or relevant subsidiary or Relevant Enterprise, including financial statements,

-9-

or on information supplied to Indemnitee by the officers of the Company or relevant subsidiary or Relevant Enterprise in the course of their duties, or on the advice of legal counsel for the Company or relevant subsidiary or Relevant Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or relevant subsidiary or Relevant Enterprise. The provisions of this Section 10(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

          (e) The knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Company or any of its subsidiaries or Relevant Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

     Section 11. Remedies of Indemnitee.

          (a) In the event that (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 9(b) of this Agreement within 90 days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 6 or 7 of this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by a Maryland Court of his or her entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 11(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her rights under Section 6 of this Agreement.

          (b) In the event that a determination shall have been made pursuant to Section 9(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 11 shall be conducted in all respects as a de novo trial, or arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 11, the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

          (c) If a determination shall have been made pursuant to Section 9(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such

-10-

determination in any judicial proceeding or arbitration commenced pursuant to this Section 11, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

          (d) In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication of or an award in arbitration to enforce his or her rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be indemnified by the Company against, any and all Expenses actually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he or she prevails therein. If it shall be determined in said judicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the Expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.

          (e) The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 11 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

     Section 12. Non-Exclusivity; Survival of Rights; Insurance;
Subrogation           

          (a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the relevant company’s charter or by-laws (or other relevant organizational document), any agreement approved by the board of directors, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the MGCL, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the relevant company’s charter and bylaws (or other relevant organizational documents) and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such

-11-

change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

          (b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company and its subsidiaries or of a Relevant Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.

          (c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

          (d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.

          (e) The Company’s obligations to indemnify or advance expenses hereunder to Indemnitee who is or was serving a Relevant Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such Relevant Enterprise.

     Section 13. Duration of Agreement.

     This Agreement shall continue until and terminate upon the later of: (a) 10 years after the date that Indemnitee shall have ceased to serve as a director, officer, employee and/or agent of the Company and its subsidiaries or of any Relevant Enterprise; or (b) the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns (including, without limitation, any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company) and shall inure to the benefit of Indemnitee and his or her heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance reasonably satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same

-12-

manner and to the same extent that the Company would be required to perform if no such succession had taken place.

     Section 14. Severability.

     If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

     Section 15. Exception to Right of Indemnification or Advancement of Expenses.

     Except as provided in Section 7(a) of this Agreement, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding (a) brought by Indemnitee (i) against the Company, unless a Change of Control shall have occurred (other than a Proceeding by Indemnitee to enforce his or her rights under this Agreement), or (ii) against any Person other than the Company, unless approved in advance by the Board; (b) instituted by Indemnitee to enforce or interpret this Agreement to the extent that a court of competent jurisdiction determines that any of the material assertions made by Indemnitee in such Proceeding were not made in good faith or were frivolous; (c) brought by the Company or any of its subsidiaries against Indemnitee prior to a Change of Control alleging (x) a willful violation by Indemnitee of the terms and conditions of any employment contract, (y) a willful misappropriation of corporate assets by Indemnitee or (z) any other willful and deliberate breach in bad faith of Indemnitee’s duty to the Company (or its subsidiaries) or its stockholders, if the bringing of such Proceeding against Indemnitee shall have been approved or subsequently ratified by the Board; (d) if the Company has a class of equity securities registered pursuant to Section 12 of the Act, for any Expenses or the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Act, or any similar successor statute; or (e) if it shall be determined by final judgment by a court having jurisdiction in the matter that such indemnification is not lawful.

     Section 16. Identical Counterparts.

     This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same

-13-

Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

     Section 17. Headings.

     The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof

     Section 18. Definitions.

     For purposes of this Agreement:

          (a) “Change in Control” shall mean the occurrence of any of the following events:

          (i) a majority of the members of the Board at any time cease for any reason other than due to death or disability to be persons who were members of the Board twenty-four months prior to such time (the “Incumbent Directors”); provided that any director whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the members of the Board then still in office who are Incumbent Directors shall be treated as an Incumbent Director;

          (ii) any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Act”), but excluding the Company, its subsidiaries, any employee benefit plan of the Company or any of its subsidiaries, employees of the Company or any of its subsidiaries or any group of which any of the foregoing is a member) other than Tengelmann Warenhanclelsgesellscliaft, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, including without limitation, by means of a tender or exchange offer, (x) of securities of the Company representing 30% or more of the combined voting power of the Company’s then outstanding securities and (y) of a greater percentage of the combined voting power of the Company’s then outstanding securities than the percentage thereof owned by Tengelmann Warenhandelsgesellschaft; or

          (iii) the stockholders of the Company shall approve a definitive agreement (x) for the merger or other business combination of the Company with or into another corporation immediately following which merger or combination (A) the stock of the surviving entity is not readily tradable on an established securities market, (B) a majority of the directors of the surviving entity are persons who (1) were not directors of the Company immediately prior to the merger and (2) are not nominees or representatives of the Company or (C) any “person,” including

-14-

a “group” (as such terms are used in Sections 13(d) and 14(d)(2) of the Act, but excluding the Company, its subsidiaries, any employee benefit plan of the Company or any of its subsidiaries, employees of the Company or any of its subsidiaries or any group of which any of the foregoing is a member) other than Tengelmann Warenhandelsgesellschaft, is or becomes the “beneficial owner” (as defined in Rule I3d-3 under the Act), directly or indirectly, (I) of 30% or more of the securities of the surviving entity and (II) of a greater percentage of the securities of the surviving entity than the percentage thereof owned by Tengelmann Warenhandelsgesellschaft or (y) for the direct or indirect sale or other disposition of all or substantially all of the assets of the Company.

Notwithstanding the foregoing, a “Change in Control” shall not be deemed to occur (x) so long as Tengelmann Warenhandelsgesellschaft (together with its affiliates) is the “beneficial owner” (as defined in Rule 13d-3 under the Act) of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities or (y) in the event the Company files for bankruptcy, liquidation or reorganization under the United States Bankruptcy Code.

          (b) “Corporate Status” describes the status of a person who is or was a director, officer, employee, fiduciary or agent of the Company and its subsidiaries or of a Relevant Enterprise.

          (c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

          (d) “Effective Date” means the date set forth in the first paragraph of this Agreement.

          (e) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding.

          (f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing in the State of Maryland, would have a conflict of

-15-

interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

          (g) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is, may be or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a director, officer, employee and/or agent of the Company and/or any of its subsidiaries or of a Relevant Enterprise or by reason of any action taken by him or her or of any inaction on his or her part while acting in such capacity, in each case whether or not he or she is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement; except for (i) one initiated by an Indemnitee pursuant to Section 10 of this Agreement to enforce his or her rights under this Agreement or (ii) one pending or completed on or before the Effective Date, unless otherwise specifically agreed in writing by the Company and Indemnitee.

          Section 19. Enforcement.

          (a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer, employee and/or agent of the Company and/or any of its subsidiaries and/or a Relevant Enterprise, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving in such capacity.

          (b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.

     Section 20. Modification and Waiver.

     To supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

-16-

     Section 21. Notice by Indemnitee.

     Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise.

     Section 22. Notices.

     All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after being deposited in the mail:

               (a) If to Indemnitee, at the address heretofore provided to the Company; and

(b) If to the Company to:

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, New Jersey 07645
Attention: Vice President — Legal Services;

     or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.

     Section 23. Contribution.

     To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company, on the one hand, and Indemnitee, on the other, as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company, on the one hand (and its directors, officers, employees and agents), and Indemnitee, on the other, in connection with such event(s) and/or transactions(s).

-17-

      Section 24. Governing Law; Submission to Jurisdiction;
Appointment of Agent for Service of Process.

     This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Maryland, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 11(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in a Maryland Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of any such Maryland Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) consent, to the extent such party is not a resident of the State of Maryland, except where prohibited by law, to service of process in connection with any action or proceeding arising out of or in connection with this Agreement by (a) U.S. registered mail at such party’s address set forth herein, or (b) any other valid manner of service of process in the jurisdiction in which such party resides, with the same legal force and validity as if served upon such party personally within the State of Maryland, (iv) waive any objection to the laying of venue of any such action or proceeding in a Maryland Court and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in a Maryland Court has been brought in an improper or otherwise inconvenient forum.

     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY INC.
By:
	Name:
	Title:
INDEMNITEE

EX-10.6

EXHIBIT 10.6

EXECUTION VERSION

SECURITY AGREEMENT

Dated as of August 4, 2009

among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,

THE SUBSIDIARIES FROM TIME TO TIME PARTY HERETO

and

Wilmington Trust Company,
as Collateral Agent

TABLE OF CONTENTS^*

	Page
ARTICLE I DEFINITIONS
Section 1.01 Definition of Terms Used Herein		3
Section 1.02 Definition of Certain Terms Used Herein		3
Section 1.03 Rules of Interpretation		13
ARTICLE II SECURITY INTEREST
Section 2.01 Security Interest		13
Section 2.02 No Assumption of Liability		13
ARTICLE III REPRESENTATIONS AND WARRANTIES
Section 3.01 Title and Authority		14
Section 3.02 Filings		14
Section 3.03 Validity of Security Interest		14
Section 3.04 Absence of Other Liens		15
Section 3.05 [Reserved]		15
Section 3.06 Claims		15
Section 3.07 Instruments and Chattel Paper		16
Section 3.08 Securities Accounts and Commodity Accounts		16
Section 3.09 Electronic Chattel Paper and Transferable Records		16
Section 3.10 Fair Labor Standards Act		16
ARTICLE IV COVENANTS
Section 4.01 Change of Name; Location of Collateral; Records; Place of Business		16
Section 4.02 Periodic Certification		16
Section 4.03 Protection of Security Interest		17
Section 4.04 Further Assurances		17
Section 4.05 Inspection and Verification		18
Section 4.06 Taxes; Encumbrances		18
Section 4.07 Assignment of Security Interest		18
Section 4.08 Continuing Obligations of the Grantors		18
Section 4.09 Use and Disposition of Collateral		18
Section 4.10 Limitation on Modification of Accounts		19
Section 4.11 Insurance		19
Section 4.12 Legend		19
Section 4.13 Covenants Regarding Patent, Trademark and Copyright Collateral		19

^* Table of Contents is not a part of the Security Agreement.

- i -

Table of Contents (cont.)

	Page
Section 4.14 Warehouse Receipts		21
Section 4.15 Claims		21
Section 4.16 Other Actions		21
Section 4.17 Joinder of Additional Grantors		23
ARTICLE V COLLECTIONS
Section 5.01 Accounts		23
Section 5.02 Collections		24
Section 5.03 Power of Attorney		25
ARTICLE VI REMEDIES
Section 6.01 Remedies upon Default		26
Section 6.02 Application of Proceeds		29
Section 6.03 Grant of License to Use Intellectual Property and Other Property		29
ARTICLE VII MISCELLANEOUS
Section 7.01 Notices		30
Section 7.02 Security Interest Absolute		30
Section 7.03 Survival of Agreement		30
Section 7.04 Binding Effect; Several Agreement		30
Section 7.05 Successors and Assigns		30
Section 7.06 Collateral Agent’s Fees and Expenses; Indemnification		30
Section 7.07 GOVERNING LAW		31
Section 7.08 Waivers; Amendment		31
Section 7.09 WAIVER OF JURY TRIAL		32
Section 7.10 Severability		32
Section 7.11 Counterparts		32
Section 7.12 Headings		32
Section 7.13 Jurisdiction; Consent to Service of Process		32
Section 7.14 Termination		33
Section 7.15 Headings and Recitals		33
Section 7.16 Intercreditor Terms Prevail		33
Section 7.17 Limitation on Duties of Collateral Agent		33

Schedules:

Schedule I	—	Copyrights
Schedule II	—	Licenses
Schedule III	—	Patents
Schedule IV	—	Trademarks
Schedule V	—	Claims
Schedule VI	—	Instruments and Chattel Paper
Schedule VII	—	Securities Accounts and Commodity Accounts
Schedule VIII	—	Electronic Chattel Paper and Transferable Records

- ii -

Exhibits:

Exhibit A	Form of Accession Agreement
Exhibit B	Form of Perfection Certificate
Exhibit C	Form of Grant of Security Interest in US Patents and Trademarks
Exhibit D	Form of Grant of Security Interest in US Copyrights

- iii -

     SECURITY AGREEMENT (this “Agreement”) dated as of August 4, 2009, among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the “Company” and a “Grantor”), a Maryland corporation, each of the undersigned Subsidiaries of the Company and each other Subsidiary of the Company which becomes a party hereto (each such Subsidiary individually a “Grantor” and collectively with the Company, the “Grantors”) and Wilmington Trust Company, as collateral agent (together with any successor or successors in such capacity, the “Collateral Agent”) for the benefit of the Trustee (as defined below) and the Holders (as defined below).

          Reference is made to the 11³/₈% Senior Secured Notes due 2015 of the Company (as amended, restated, supplemented or modified from time to time, the “Notes”), in the original aggregate principal amount of $260,000,000 issued pursuant to the Indenture, dated as of August 4, 2009 (as amended, restated, amended and restated, modified or supplemented from time to time and including any agreement extending the maturity of, refinancing or otherwise amending, amending and restating or otherwise modifying or restructuring all or any portion of the obligations of the Company under the Notes or such agreement or any successor agreement, the “Indenture”) among the Company, the Grantors, the Collateral Agent and Wilmington Trust Company, as trustee (together with any successor or successors in such capacity, the “Trustee”). Each Grantor has, pursuant to the Indenture, unconditionally guaranteed the Obligations (as defined below).

          The Company and each other Grantor will materially benefit from the issuance of the Notes and it is a condition to the issuance of the Notes that the Grantors execute and deliver this Agreement.

          The Company and all direct and indirect domestic Subsidiaries of the Company that become a party thereto from time to time (such Subsidiaries being herein collectively referred to as the “ABL Subsidiary Borrowers”) are also parties to (i) an Amended and Restated Credit Agreement dated as of December 27, 2007 (as amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and as the same may be amended, restated, modified, renewed, refunded, replaced or refinanced from time to time, regardless of whether such amendment, restatement, modification, renewal, refunding, replacement or refinancing is with the same financial institutions or otherwise, the “ABL Credit Agreement”) with the lenders from time to time party thereto (the “ABL Lenders”), Bank of America, N.A., a national banking association (“Bank of America”), as issuing bank for certain letters of credit (the “ABL L/C Issuer”), Bank of America, acting through its Retail Finance Group (“BofA Retail Finance”), as Administrative Agent for the ABL Lenders (together with its successor or successors in such capacity, the “ABL Administrative Agent”), BofA Retail Finance, as Collateral Agent (together with its successor or successors in such capacity, the “ABL Collateral Agent”), (ii) a Security Agreement dated as of December 3, 2007 (as amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof, the “ABL Security Agreement”), and (iii) a Pledge Agreement dated as of December 3, 2007 (as amended, modified, supplemented, extended, restated, renewed or replaced from time to time in accordance with the terms thereof, the “ABL Pledge Agreement”).

          Certain ABL Lenders and their Affiliates at the time acting as Hedging Providers may from time to time provide forward rate agreements, options, swaps, caps, floors and other hedging agreements (the “ABL Hedging Agreements”) to the ABL Obligors (as defined below). The ABL Lenders, the ABL L/C Issuer, the ABL Administrative Agent, each co-agent or sub-agent appointed by the ABL Administrative Agent from time to time pursuant to the ABL Credit Agreement, the ABL Collateral Agent, each co-agent or sub-agent appointed by the ABL Collateral Agent from time to time pursuant to the ABL Security Agreement and each Indemnitee (as defined in the ABL Credit Agreement)

and their respective successors and assigns are herein referred to individually as an “ABL Credit Party” and collectively as the “ABL Credit Parties” and the ABL Credit Parties, the Hedging Providers and their respective successors and assigns are herein referred to individually as an “ABL Secured Party” and collectively as the “ABL Secured Parties”.

          To induce the ABL Lenders to enter into the ABL Credit Agreement and the other Loan Documents (as defined in the ABL Credit Agreement) and the Hedging Providers to enter into the ABL Hedging Agreements contemplated by the ABL Credit Agreement (such Loan Documents and the ABL Hedging Agreements being herein collectively referred to as the “ABL Loan Documents”), and as a condition precedent to the obligations of the ABL Lenders under the ABL Credit Agreement, certain Subsidiaries of the Company who are not ABL Subsidiary Borrowers (each an “ABL Subsidiary Guarantor” and, collectively, the “ABL Subsidiary Guarantors”) have agreed, jointly and severally, to provide a guaranty of all obligations of the Company and the ABL Subsidiary Borrowers under or in respect of the ABL Loan Documents. The Company, the ABL Subsidiary Borrowers and ABL Subsidiary Guarantors are herein collectively referred to as the “ABL Obligors” and individually as an “ABL Obligor”.

          Revolving loans and term loans (collectively, “ABL Loans”) are now and may hereafter be outstanding under the ABL Credit Agreement. The payment of the principal of and interest on the ABL Loans and all other Obligations (as defined in the ABL Credit Agreement and the ABL Security Agreement, the “ABL Loan Obligations” and, together with all ABL Hedging Obligations (as defined below), the “ABL Obligations”) are secured pursuant to the ABL Security Agreement and various other security documents by a first priority security interest in all of the ABL Obligors’ right, title and interest in all of their present and future personal and real property and proceeds thereof (other than Excluded Assets as described in the ABL Loan Documents) (all such non-excluded personal and real property and proceeds thereof being herein collectively referred to as the “ABL Collateral”).

          The Indenture requires the Grantors to secure their obligations under the Notes and the Indenture by a second priority security interest in the assets constituting or intended to constitute ABL Collateral, subject to exceptions (the “Note Collateral”).

          The ABL Collateral Agent and the Collateral Agent will enter into an Intercreditor Agreement dated as of the date hereof (as amended, restated, supplemented or modified from time to time, the “Intercreditor Agreement”) to provide among other things that:

               (i) the ABL Loan Obligations, plus obligations on account of Cash Management Services (as defined in the Intercreditor Agreement), ABL Hedging Obligations and obligations on account of other Bank Products (as defined in the Intercreditor Agreement) are secured on a first priority basis by all ABL Collateral up to the Maximum Revolving Debt Amount (as defined in the Intercreditor Agreement);

               (ii) the Obligations are secured by the Note Collateral (which includes some, but not all, of the assets constituting or intended to constitute ABL Collateral);

               (iii) the security interest securing the Obligations in the ABL Collateral (x) is of a second priority subject only to the first priority security interest securing an amount of ABL Obligations that does not exceed the Maximum Revolving Debt Amount and (y) is of a first priority with respect to that portion of the ABL Obligations which exceeds the Maximum Revolving Debt Amount.

          Accordingly, the Grantors and the Collateral Agent, on behalf of itself and each Secured Party (and each of their respective successors or assigns), hereby agree as follows:

- 2 -

ARTICLE I
DEFINITIONS

          Section 1.01 Definition of Terms Used Herein. Unless the context otherwise requires, all capitalized terms used but not defined herein shall have the meanings set forth in the Indenture, all references to the Uniform Commercial Code or “UCC” shall mean the Uniform Commercial Code in effect in the State of New York as of the date hereof and any uncapitalized terms used herein which are defined in the UCC have the respective meanings provided in the UCC; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning set forth in Article 9, and provided further that if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of the Security Interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.

          Section 1.02 Definition of Certain Terms Used Herein. As used herein, the following terms shall have the following meanings:

          “ABL Cash Management Requirements” shall have the meaning given that term in Section 4.16(e) of this Agreement.

          “ABL Hedging Obligations” shall mean all Hedging Obligations (as defined in the Indenture) of the Company or any of its Subsidiaries or Cash Management Obligations (as defined in the Indenture) of the Company or any of its Subsidiaries in each case owing to an ABL Lender or an Affiliate of an ABL Lender at the time of entry into such Hedging Obligations or Cash Management Obligations.

          “Accession Agreement” shall mean an Accession Agreement, substantially in the form of Exhibit A hereto, executed and delivered by an additional Grantor after the Issue Date pursuant to Section 4.17 of the Indenture and/or Section 4.17 of this Agreement.

          “Accessions” shall have the meaning given that term in the UCC.

          “Account Debtor” shall mean any person who is or who may become obligated to any Grantor under, with respect to or on account of a Receivable.

          “Accounts” shall mean “accounts” as defined in the UCC, and all right, title and interest of any Grantor to payment for goods and services sold or leased, including any such right evidenced by Chattel Paper, whether due or to become due, whether or not it has been earned by performance, and whether now or hereafter acquired or arising in the future, including, without limitation, (i) accounts receivable from Affiliates of the Grantors, (ii) health-care insurance receivables (as defined in the UCC), and (iii) rights to payment arising out of the use of a credit or charge card or information contained on or used with that card.

          “Accounts Receivable” shall mean all Accounts and all right, title and interest in any returned goods, together with all rights, titles, securities and guarantees with respect thereto, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, liens and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired.

- 3 -

          “Agent’s Account” shall (i) have the meaning set forth in Section 5.14(f) of the ABL Credit Agreement; or (ii) if the ABL Obligations are no longer outstanding, mean an account of the Collateral Agent to be notified to the Company by the Collateral Agent.

          “Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq., as amended from time to time.

          “Blocked Account Agreement” means with respect to a Blocked Account, an agreement, in form and substance satisfactory to the Collateral Agent, establishing Control of such Blocked Account by the Collateral Agent and whereby the Blocked Account Bank maintaining such Blocked Account agrees, upon notification by the Collateral Agent (or any agent or bailee thereof) of the occurrence and during the continuance of an Event of Default, to comply only with the instructions originated by the Collateral Agent (or the ABL Collateral Agent acting as agent and bailee on behalf of the Collateral Agent and the other Secured Parties) without the further consent of any Grantor.

          “Blocked Account Bank” shall have the meaning given that term in Section 5.01(a) of this Agreement.

          “Blocked Accounts” shall have the meaning given that term in Section 4.16(e) of this Agreement.

          “Blue Sky Laws” shall have the meaning given that term in Section 6.01(c) of this Agreement.

          “Books and Records” means all instruments, files, records, ledger sheets and documents covering or relating to any of the Collateral.

          “Chattel Paper” shall have the meaning given that term in the UCC.

          “Claims” means all “commercial tort claims” (as defined in the UCC), including, without limitation, each of the claims described on Schedule V hereto, as such Schedule may be amended, modified or supplemented from time to time, and also means and includes all claims, causes of action and similar rights and interests (however characterized) of a Grantor, whether arising in contract, tort or otherwise, and whether or not subject to any action, suit, investigation or legal, equitable, arbitration or administrative proceedings.

          “Collateral” shall mean all personal property of each Grantor, including, without limitation, all:

               (i) Accounts Receivable,

               (ii) Chattel Paper,

               (iii) Claims, Judgments and/or Settlements,

               (iv) Deposit Accounts and securities accounts and all cash and cash equivalents or other assets in each such account,

               (v) Documents,

               (vi) Equipment,

- 4 -

               (vii) Fixtures,

               (viii) General Intangibles (including Payment Intangibles and Intellectual Property),

               (ix) Goods,

               (x) Instruments,

               (xi) Inventory,

               (xii) Investment Property,

               (xiii) Letter-of-Credit Rights,

               (xiv) Software,

               (xv) Supporting Obligations,

               (xvi) money, policies and certificates of insurance, deposits, cash, or other property,

               (xvii) all Books and Records and information relating to any of the foregoing ((i) through (xvi)) and/or to the operation of any Grantor’s business, and all rights of access to such Books and Records and information, and all property in which such Books and Records and information are stored, recorded and maintained,

               (xviii) all insurance proceeds, refunds, and premium rebates, including, without limitation, proceeds of fire and credit insurance, whether any of such proceeds, refunds, and premium rebates arise out of any of the foregoing ((i) through (xvii)) or otherwise,

               (xix) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((i) through (xviii)), including the right of stoppage in transit, and

               (xx) any of the foregoing, whether now owned or now due, or in which any Grantor has an interest, or hereafter acquired, arising, or to become due, or in which any Grantor obtains an interest, and all products, Proceeds, substitutions, and Accessions of or to any of the foregoing;

provided, however, that Collateral shall not include Excluded Assets; provided that the Proceeds from any sale, transfer or assignment or other voluntary or involuntary disposition of such Excluded Assets, shall not be excluded from the definition of Collateral to the extent that the assignment of such Proceeds is not prohibited or to the extent not otherwise required to be paid to the holder of the Indebtedness secured by such Excluded Assets; and provided, further, that the term “Collateral” as used in this Agreement shall not include any “Collateral” as defined in the Pledge Agreement.

          “Commodity Account” shall have the meaning given that term in the UCC.

          “Commodity Intermediary” shall have the meaning given that term in the UCC.

          “Computer Hardware” means all computer and other electronic data processing hardware of a Grantor, whether now or hereafter owned, licensed or leased by such Grantor, including, without

- 5 -

limitation, all integrated computer systems, networks, central processing units, memory units, display terminals, printers, features, computer elements, card readers, tape drives, hard and soft disk drives, storage devices, cables, electrical supply hardware, generators, power equalizers, accessories, peripheral devices and other related hardware, all documentation, flowcharts, logic diagrams, manuals, specifications, training materials, charts and pseudo codes associated with any of the foregoing and all options, warranties, services contracts, program services, test rights, maintenance rights, support rights, renewal rights and indemnifications relating to any of the foregoing.

          “Control”, with respect to (i) Deposit Accounts, shall have the meaning given that term in Section 9-104 of the UCC; (ii) Electronic Chattel Paper, shall have the meaning given that term in Section 9-105 of the UCC; (iii) Investment Property, shall have the meaning given the term in Section 9-106 of the UCC; and (iv) Letter-of-Credit Rights, shall have the meaning given that term in Section 9-107 of the UCC.

          “Copyright License” shall mean any written agreement, now or hereafter in effect, granting any right to any third party, whether exclusive or non-exclusive, under any Copyright now or hereafter owned by any Grantor, whether or not registered, or which such Grantor otherwise has the right to license, or granting any right, whether exclusive or non-exclusive, to such Grantor under any Copyright now or hereafter owned by any third party, and all rights of such Grantor under any such agreement.

          “Copyrights” shall mean all of the following now owned or hereafter acquired by any Grantor:

               (i) all copyright rights in any work subject to the copyright laws of the United States or any other country (whether or not the underlying works of authorship have been published), whether as author, assignee, transferee or otherwise, and

               (ii) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule I and any renewals and extensions thereof,

               (iii) all Software, computer programs, web pages, computer data bases and computer program flow diagrams, including all source codes and object codes related to any or all of the foregoing,

               (iv) all tangible property embodying or incorporating any or all of the foregoing, whether in completed form or in some lesser state of completion, and all masters, duplicates, drafts, versions, variations and copies thereof, in all formats,

               (v) all claims for, and rights to sue for, past, present and future infringement of any of the foregoing,

               (vi) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including, without limitation, damages and payments for past, present or future infringements thereof and payments and damages under all Copyright Licenses in connection therewith,

               (vii) all rights in any of the foregoing, arising under the Laws of the United States, to copy, record, synchronize, broadcast, transmit, perform, distribute, create derivative

- 6 -

works of, and/or display any of the foregoing or any matter which is the subject of any of the foregoing in any manner and by any process now known or hereafter devised, and

               (viii) the name and title of each Copyright item and all rights of any Grantor to the use thereof, including, without limitation, rights protected pursuant to trademark, service mark, unfair competition, anti-cybersquatting and/or the rules and principles of any other applicable statute, common law or other rule or principle of law now existing or hereafter arising.

          “Daily Receipts” shall mean all amounts received by the Company and the other Grantors, whether in the form of cash, checks, any moneys received or receivable in respect of charges made by means of credit cards, and other negotiable instruments, in each case as a result of the sale of Inventory.

          “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

          “De Minimis Deposit Account” shall have the meaning given that term in Section 4.16(e) of this Agreement.

          “De Minimis Deposit Amount” shall have the meaning given that term in Section 4.16(e) of this Agreement.

          “Deposit Account” shall have the meaning given that term in the UCC and shall also include all demand, time, savings, passbook, or similar accounts maintained with a bank or other financial institution, whether or not evidenced by an Instrument, all cash and other funds held therein and all passbooks related thereto and all certificates and Instruments, if any, from time to time representing, evidencing or deposited into such deposit accounts.

          “Deposit Account Control Agreement” or “DACA” shall mean with respect to a Deposit Account, an agreement by and among the bank at which such Deposit Account is maintained, the Grantor that is the bank’s customer with respect to such Deposit Account, and the Collateral Agent (and which may but is not required to include the ABL Collateral Agent as a party), in form and substance satisfactory to the Collateral Agent and in compliance with the terms of the Intercreditor Agreement, establishing Control of such Deposit Account by the Collateral Agent and whereby the bank maintaining such Deposit Account agrees, upon notification by the Collateral Agent of the occurrence and during the continuance of an Event of Default, to comply only with the instructions originated by the Collateral Agent (or the ABL Collateral Agent if the ABL Collateral Agent is a party to such agreement), without the further consent of any Grantor. A DACA may (but is not required to) take the form of an amended (or amended and restated) Blocked Account Agreement.

          “Documents” shall have the meaning given that term in the UCC.

          “Electronic Chattel Paper” shall have the meaning given that term in the UCC.

          “Equipment” shall mean “equipment”, as defined in the UCC, and shall also mean all Computer Hardware, furniture, store fixtures, motor vehicles, rolling stock, machinery, office equipment, plant equipment, tools, dies, molds, and other goods, property, and assets which are used and/or were purchased for use in the operation or furtherance of a Grantor’s business, and any and all Accessions or additions thereto, and substitutions therefor.

- 7 -

          “Excluded Assets” means (i) any permit, lease, license, contract, agreement, joint venture agreement, or other instrument to which the Company or any Grantor is a party and any Equity Interests in a joint venture to the extent the Company or such Grantor is prohibited from granting a Lien in its rights thereunder pursuant to the terms of such permit, lease, license, contract, agreement, or other instrument, or the shareholder or other similar agreement governing such joint venture, or under applicable law (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law or principles of equity); (ii) any Excluded Equipment; (iii) any United States intent-to-use trademark application to the extent and for so long as creation by a Grantor of a Security Interest therein would impair the validity or enforceability of such intent-to-use trademark applications as determined by the Company; (iv) any assets or Equity Interests acquired by the Company or any Grantor after the date hereof in a transaction not prohibited by the Indenture to the extent such assets or Equity Interests are subject to a Lien permitted by clauses (v) or (vi) of the definition of “Permitted Liens” in the Indenture so long as the documents applicable to such Lien prohibit any other Lien on such assets or Equity Interests; (v) each Principal Property (as defined in the Indenture), except as otherwise provided under Section 4.10 of the Indenture; (vi) any property or assets to the extent such property or assets does not constitute ABL Collateral; provided, however, that this clause (vi) shall be applicable only at such time or times as the ABL Credit Agreement is in effect; (vii) any voting Equity Interests of a Foreign Subsidiary in excess of 65% of all outstanding voting Equity Interests of a first-tier Foreign Subsidiary; and (viii) any property or assets owned by any Foreign Subsidiary.

          “Excluded Equipment” means at any date any assets of the Company or any Grantor which are subject to a Lien securing Indebtedness permitted by clause (iv) of Section 4.08(b) of the Indenture if and to the extent that (i) the express terms of a valid and enforceable restriction in favor of a Person who is not the Company or a Grantor contained in the agreements or documents granting or governing such Indebtedness prohibits, or requires any consent or establishes any other conditions for, an assignment thereof, or a grant of a security interest therein, by the Company or the applicable Grantor and (ii) such restriction relates only to the asset or assets acquired by the Company or the applicable Grantor with the proceeds of such Indebtedness and attachments thereto or substitutions therefor.

          “Financial Officer” of any Person means the chief financial officer, principal accounting officer, treasurer, controller or any vice precident-finance, vice-president-financal services or vice president-treasury services of such Person.

          “Financing Statement” shall have the meaning given that term in the UCC.

          “Fixtures” shall have the meaning given that term in the UCC.

          “General Intangibles” shall mean “general intangibles” as defined in the UCC, and all choses in action and causes of action and all other assignable intangible personal property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including all Payment Intangibles, all rights and interests in partnerships, limited partnerships, limited liability companies and other unincorporated entities which interests do not constitutes Securities, corporate or other business records, indemnification claims, contract rights (including rights under personal property leases, whether entered into as lessor or lessee, hedging agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor to secure payment by an Account Debtor of any of the Receivables.

          “Goods” shall have the meaning given that term in the UCC.

- 8 -

          “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central bank).

          “Holders” means the holders from time to time of the Notes.

          “Indemnitee” shall have the meaning given that term in Section 7.06(b) of this Agreement.

          “Indenture” shall have the meaning given to that term in the preliminary statement of this Agreement.

          “Intellectual Property” shall mean all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, technology, confidential or proprietary technical and business information, know-how, show-how, data or information, domain names, mask works, customer lists, vendor lists, subscription lists, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

          “Instruments” shall have the meaning given that term in the UCC.

          “Inventory” shall mean “inventory” as defined in the UCC, and all goods of any Grantor, whether now owned or hereafter acquired, held for sale or lease, or furnished or to be furnished by any Grantor under contracts of service, or consumed in any Grantor’s business, including raw materials, intermediates, work in process, packaging materials, finished goods, semi-finished inventory, scrap inventory, manufacturing supplies and spare parts, and all such goods that have been returned to or repossessed by or on behalf of any Grantor.

          “Investment Property” shall have the meaning given that term in the UCC.

          “Judgments” shall mean all judgments, decrees, verdicts, decisions or orders issued in resolution of or otherwise in connection with a Claim, whether or not final or subject to appeal, and including all rights of enforcement relating thereto and any and all Proceeds thereof.

          “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directives, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

          “Leaseholds” means with respect to any Person all of the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

          “Letter-of-Credit Right” shall have the meaning given that term in the UCC and shall also mean any right to payment or performance under a letter of credit, whether or not the beneficiary has demanded, or is at the time entitled to demand, payment or performance.

- 9 -

          “Letters of Credit” shall have the meaning given that term in the UCC.

          “License” shall mean any Patent License, Trademark License, Copyright License, software license or other license or sublicense to which any Grantor is a party, which license or sublicense is, or would reasonably be expected to be, material to the business, condition (financial or otherwise) or operations of the Company and its Subsidiaries taken as a whole, including those listed on Schedule II.

          “Note Documents” means the Indenture, the Notes, any registration rights agreement related thereto and the Collateral Documents, in each case including all exhibits and schedules thereto, and all other agreements, documents and instruments relating to the Notes, in each case as the same may be amended, modified or supplemented from time to time in accordance with the provisions thereof.

          “Obligations means, without duplication:

               (i) all principal of and interest (including, without limitation, any interest which accrues after the commencement of any proceeding under any Debtor Relief Law with respect to any Grantor, whether or not allowed or allowable as a claim in any such proceeding) on the Notes;

               (ii) all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Grantor (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to any Grantor, whether or not allowed or allowable as a claim in any such proceeding) pursuant to the Indenture, the Notes, the Intercreditor Agreement, any Collateral Document or any other Note Document;

               (iii) all expenses of the Collateral Agent or the Trustee as to which the Collateral Agent or the Trustee has a right to reimbursement under the Indenture or under any other similar provision of any Collateral Document, the Intercreditor Agreement, or any other Note Document including, without limitation, any and all sums advanced by the Collateral Agent to preserve the Collateral or its security interest in the Collateral; and

               (iv) all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Debtor Relief Law with respect to any Grantor, whether or not allowed or allowable as a claim in any such proceeding) on the part of any Grantor pursuant to the Indenture, the Notes, the Intercreditor Agreement, any Collateral Document or any other Note Document;

together in each case with all renewals, modifications, refinancings, consolidations or extensions thereof.

          “Patent License” shall mean any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a Patent, now or hereafter owned by any Grantor or which any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a Patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.

          “Patents” shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all letters patent of the United States, all registrations and recordings thereof, and all applications for letters patent of the United States, including registrations, recordings and pending applications in the United States Patent and Trademark Office, including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the

- 10 -

inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.

          “Payment Intangible” shall have the meaning given that term in the UCC and shall also mean any General Intangible under which the Account Debtor’s primary obligation is a monetary obligation.

          “Perfection Certificate” shall mean a certificate substantially in the form of Exhibit B hereto, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Financial Officer and the chief legal officer of the Company.

          “Pledge Agreement” shall mean the Pledge Agreement, dated as of the date hereof (as the same may be amended, modified, supplemented, extended, restated, renewed or replaced from time to time), among the Company, the grantors party thereto and the Collateral Agent.

          “Proceeds” shall mean “proceeds” as defined in the UCC, and any consideration received from the sale, exchange, license, lease or other disposition of any asset or property that constitutes Collateral, any value received as a consequence of the possession of any Collateral and any payment received from any insurer or other person or entity as a result of the destruction, loss, theft, damage or other involuntary conversion of whatever nature of any asset or property which constitutes Collateral, and shall include

               (i) all cash and negotiable instruments received by or held on behalf of the Collateral Agent pursuant to the provisions of the Indenture, this Agreement or otherwise, in respect of any Collateral,

               (ii) in the case of Collateral constituting Intellectual Property, any claim of any Grantor against any third party for (and the right to sue and recover for and the rights to damages or profits due or accrued arising out of or in connection with)

               (A) past, present or future infringement of any Patent now or hereafter owned by any Grantor, or licensed under a Patent License,

               (B) past, present or future infringement or dilution of, or any unfair competition with, any Trademark now or hereafter owned by any Grantor or licensed under a Trademark License or injury to the goodwill associated with or symbolized by any Trademark now or hereafter owned by any Grantor,

               (C) past, present or future breach of any License and

               (D) past, present or future infringement of any Copyright now or hereafter owned by any Grantor or licensed under a Copyright License and

               (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

          “Real Property” means, with respect to any Person, all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

          “Receivables” shall mean all Accounts, all Payment Intangibles, all Instruments, all Chattel Paper and all Letter-of-Credit Rights.

- 11 -

          “Secured Parties” shall mean

               (i) the Collateral Agent and any co-agents or sub-agents;

               (ii) the Trustee and any co-agents or sub-agents;

               (iii) the Holders;

               (iv) the beneficiaries of each indemnification obligation undertaken by any Grantor under any Note Document, and

               (v) the successors and assigns of each of the foregoing.

          “Securities Act” shall have the meaning given that term in Section 6.01(c) of this Agreement.

          “Securities Account” shall have the meaning given that term in the UCC.

          “Securities Intermediary” shall have the meaning given that term in the UCC.

          “Security” shall have the meaning given that term in the UCC.

          “Security Interest” shall have the meaning given that term in Section 2.01.

          “Settlements” shall mean all right, title and interest of a Grantor in, to and under any settlement agreement or other agreement executed in settlement or compromise of any Claim, including all rights to enforce such agreements and all payments thereunder or arising in connection therewith.

          “Software” shall have the meaning given that term in the UCC.

          “Supporting Obligation” shall have the meaning given that term in the UCC and shall also refer to a Letter-of-Credit Right or secondary obligation that supports the payment or performance of an Account, Chattel Paper, a Document, a General Intangible, an Instrument, or Investment Property.

          “Trademark License” shall mean any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Grantor or which any Grantor otherwise has the right to license, or granting to any Grantor any right to use any Trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.

          “Trademarks” shall mean all of the following now owned or hereafter arising, used, acquired or owned by any Grantor:

               (i) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, certification marks, collective marks, brand names, trademark rights arising out of domain names, and other identifiers of source or goodwill, along with all prints and labels on which any of the foregoing have appeared or appear, package and other designs, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof; and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office, any State of the

- 12 -

United States, or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule IV,

               (ii) all goodwill associated therewith or symbolized thereby

               (iii) all claims for, and rights to sue for, past, present or future infringements, dilution, or unfair competition with any of the foregoing,

               (iv) all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including, without limitation, damages and payments for past, present or future infringements, dilution or unfair competition with any of the foregoing and payments and damages under all Trademark Licenses in connection therewith and

               (v) all other assets, rights and interests that uniquely reflect or embody such goodwill.

          Section 1.03 Rules of Interpretation. The rules of interpretation specified in Section 1.03 of the Indenture shall be applicable to this Agreement.

ARTICLE II
SECURITY INTEREST

          Section 2.01 Security Interest. As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under the Collateral (the “Security Interest”). Without limiting the foregoing, each Grantor hereby designates the Collateral Agent as such Grantor’s true and lawful attorney, exercisable by the Collateral Agent or its nominee or custodian whether or not an Event of Default exists, with full power of substitution, at the Collateral Agent’s option, to file one or more Financing Statements, continuation statements, filings with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) or other documents as it determines reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor (each Grantor hereby appointing the Collateral Agent as such Person’s attorney to sign such Person’s name to any such instrument or document, whether or not an Event of Default exists), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. Any such Financing Statement may indicate the Collateral as “all assets of the Grantor”, “all personal property of the debtor” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC.

          Section 2.02 No Assumption of Liability. The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral.

ARTICLE III
REPRESENTATIONS AND WARRANTIES

          The Grantors jointly and severally represent and warrant to the Collateral Agent and the Secured Parties that:

- 13 -

          Section 3.01 Title and Authority. Each Grantor has good and valid rights in and title to the Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Collateral Agent the Security Interest in such Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval which has been obtained except where the failure to obtain such consent or approval, individually or in the aggregate, could not reasonably be expected to result in a material adverse effect on the ability of any Grantor to perform any of its obligations under the Note Documents, the rights of or benefits available to the Collateral Agent and the Secured Parties under any Note Document or the Collateral as a whole.

          Section 3.02 Filings. (a) The Perfection Certificate has been duly prepared, completed and executed and the information set forth therein is correct and complete in all material respects. Uniform Commercial Code financing statements or other appropriate filings, recordings or registrations containing a description of the Collateral have been delivered to the Collateral Agent or its nominee or custodian for filing in each central-filing office specified in Schedule 6 to the Perfection Certificate, which are all the filings, recordings and registrations (other than filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the security interest in Collateral consisting of United States Patents, Trademarks and Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Collateral Agent or its nominee or custodian (for the ratable benefit of the Secured Parties) in respect of all Collateral in which the security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions, and no further or subsequent filing, refiling, recording, rerecording, registration or re-registration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements.

          (b) Fully executed security agreements in the forms of Exhibits C or D hereto (as applicable) and containing a description of all Collateral consisting of Intellectual Property registered with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, have been delivered to the Collateral Agent or its nominee or custodian for recording by the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable, and otherwise as may be reasonably required pursuant to the laws of any other reasonably necessary jurisdiction, to protect the validity of and to establish a legal, valid and perfected Security Interest in favor of the Collateral Agent or its nominee or custodian (for its own benefit and the benefit of the other Secured Parties) in respect of all Collateral consisting of Patents, Trademarks and Copyrights in which a security interest may be perfected by filing, recording or registration in the United States Patent and Trademark Office or United States Copyright Office, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary (other than such actions as are necessary to perfect the Security Interest with respect to any Collateral consisting of Patents, Trademarks and Copyrights (or registration or application for registration thereof) acquired or developed after the date hereof).

          Section 3.03 Validity of Security Interest. The Security Interest constitutes:

          (a) a legal and valid Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all the Collateral securing the payment and performance of the Obligations;

          (b) subject to the filings described in Section 3.02 above, a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all Collateral in which a security interest may be perfected by filing, recording or registering a financing

- 14 -

statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other applicable Law in such jurisdictions;

          (c) with respect to:

               (i) Blocked Accounts or Deposit Accounts, upon delivery of a Blocked Account Agreement with respect to a Blocked Account or a DACA with respect to a Deposit Account, a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in such Blocked Account or Deposit Account, as applicable;

               (ii) Electronic Chattel Paper, upon compliance by the relevant Grantor with Section 4.16 hereof, a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all Electronic Chattel Paper;

               (iii) Investment Property, a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all Investment Property to the extent that perfection can be accomplished by compliance with the terms of Section 9-106 of the UCC; and

               (iv) Letter-of-Credit Rights, upon delivery of a control agreement as provided in Section 4.16(d) hereof, a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all Letter-of-Credit Rights; and

          (d) a perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all Collateral in which a security interest may be perfected upon the receipt and recording of this Agreement with the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205.

          Section 3.04 Absence of Other Liens. The Collateral is owned by the Grantors free and clear of any Lien, except for Liens expressly permitted pursuant to Section 4.10 of the Indenture (including, without limitation, Liens granted in the ABL Collateral in favor of the ABL Collateral Agent pursuant to the ABL Loan Documents). The Grantors have not (i) filed or consented to the filing of (A) any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Collateral, (B) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any Collateral with the United States Patent and Trademark Office or the United States Copyright Office or (C) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect or (ii) entered into any agreement in which any Grantor grants Control over any Collateral, except, in each case, with respect to Liens expressly permitted pursuant to Section 4.10 of the Indenture (including, without limitation, Liens granted in the ABL Collateral in favor of the ABL Collateral Agent pursuant to the ABL Loan Documents).

          Section 3.05 [Reserved]

          Section 3.06 Claims. As of the date hereof, none of the Collateral consists of a Claim with respect to which any Grantor is a party to any judicial action or arbitration proceeding having a value in excess of $1,000,000, except as set forth on Schedule V hereto.

- 15 -

          Section 3.07 Instruments and Chattel Paper. As of the date hereof, no amounts payable under or in connection with any of the Collateral are evidenced by any Instrument or Chattel Paper with an individual face value in excess of $500,000 (or, with respect to all such Instruments or Chattel Paper, an aggregate face value in excess of $1,000,000), other than such Instruments and Chattel Paper listed in Schedule VI hereto.

          Section 3.08 Securities Accounts and Commodity Accounts. As of the date hereof, no Grantor has any Securities Accounts or Commodity Accounts other than those listed in Schedule VII hereto.

          Section 3.09 Electronic Chattel Paper and Transferable Records. As of the date hereof, no amount under or in connection with any of the Collateral is evidenced by any Electronic Chattel Paper or any “transferable record” (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act, as in effect in any relevant jurisdiction) with an individual face value in excess of $500,000 (or, with respect to all such Electronic Chattel Paper or transferable records, an aggregate face value in excess of $1,000,000), other than such Electronic Chattel Paper and transferable records listed in Schedule VIII hereto.

          Section 3.10 Fair Labor Standards Act. All of such Grantor’s Inventory has or will have been produced in compliance with the applicable requirements of the Fair Labor Standards Act, as amended from time to time, or any successor statute, and regulations promulgated thereunder.

ARTICLE IV
COVENANTS

          Section 4.01 Change of Name; Location of Collateral; Records; Place of Business.

          (a) Each Grantor agrees to furnish to the Collateral Agent at least fifteen (15) days (or such shorter period of time as may be agreed to by the Collateral Agent) prior written notice of any change (i) in its corporate, limited liability company or partnership name, (ii) in the location of its chief executive office or its principal place of business (including the establishment of any such new office or facility), (iii) in its organizational structure or (iv) in its Federal Taxpayer Identification Number or state organizational number. Each Grantor agrees not to effect or permit any change referred to above in this Section 4.01 unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens) in all the Collateral. Each Grantor agrees promptly to notify the Collateral Agent if any material portion of the Collateral owned or held by such Grantor is damaged or destroyed.

          (b) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, but in any event to include complete accounting records indicating all payments and proceeds received with respect to any part of the Collateral, and, at such time or times as the Collateral Agent may reasonably request, promptly to prepare and deliver to the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent showing the identity, amount and location of any and all Collateral.

          Section 4.02 Periodic Certification. Each year, at the time of delivery (or filings with the Commission) of annual financial statements with respect to the preceding fiscal year pursuant to

- 16 -

Section 4.19(a)(1) of the Indenture, the Company shall deliver to the Collateral Agent a certificate executed by a Financial Officer and the chief legal officer of the Company (i) setting forth the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the date of such certificate or the date of the most recent certificate delivered pursuant to this Section 4.02 and (ii) certifying that (A) all Uniform Commercial Code financing statements or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above and with the United States Patent and Trademark Office or the United States Copyright Office to the extent necessary to protect and perfect the Security Interest for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period) and (B) valid Blocked Account Agreements and/or DACAs are in effect with respect to all Blocked Accounts and each Deposit Account of any Grantor as to which the ABL Collateral Agent (or its agent) has Control as of such date, or if ABL Cash Management Requirements are not in effect, all Deposit Accounts (other than De Minimis Deposit Accounts). Each certificate delivered pursuant to this Section 4.02 shall identify in the format of Schedule I, II, III, or IV, as applicable, all Intellectual Property of any Grantor in existence on the date thereof and not then listed on such Schedules or previously so identified to the Collateral Agent.

          Section 4.03 Protection of Security Interest. Each Grantor shall, at its own cost and expense, take any and all actions necessary to defend title to the Collateral against all persons and to defend the Security Interest of the Collateral Agent in the Collateral against any Lien not expressly permitted pursuant to Section 4.10 of the Indenture and the priority thereof as a Lien (prior and superior in right and interest to any other Person other than with respect to Permitted Liens).

          Section 4.04 Further Assurances. Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further documents, Financing Statements, agreements and instruments and take all such further actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby or the validity or priority of such Security Interest, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any Financing Statements or other documents in connection herewith or therewith. Notwithstanding anything to the contrary, each Grantor shall not be required to (nor shall the Collateral Agent) mark or otherwise notate certificates of title relating to motor vehicles to indicate the Lien in favor of the Collateral Agent except to the extent that the ABL Collateral Agent proceeds to mark or otherwise notate certificates of title relating to motor vehicles to indicate the Lien in favor of the ABL Collateral Agent. Without limiting the foregoing, each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further documents, Financing Statements, agreements and instruments and take all such further actions as the Collateral Agent may from time to time reasonably request to perfect the Collateral Agent’s Security Interest in all Collateral and the Proceeds therefrom (including causing the Collateral Agent to have Control of any such Collateral to the extent required under the Indenture or this Agreement and to the extent perfection in such Collateral can be accomplished by Control). Upon the occurrence and during the continuance of an Event of Default, if any amount payable by parties other than the Grantors under or in connection with any of the Collateral shall be or become evidenced by any promissory note or other instrument, such note or instrument, duly endorsed, shall be immediately pledged and delivered to the Collateral Agent.

          Without limiting the generality of the foregoing, each Grantor hereby shall, and authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to supplement this Agreement by supplementing Schedule I, II, III, or IV, or adding additional schedules hereto to specifically identify

- 17 -

any asset or item that may constitute Copyrights, Licenses, Patents or Trademarks or to correct any inaccuracy of any information contained in such Schedules. Each Grantor agrees that it will use commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 30 days after the date it has been notified by the Collateral Agent of the specific identification of such Collateral.

          Section 4.05 Inspection and Verification. The Collateral Agent and such persons as the Collateral Agent may reasonably designate shall have the right, at the Grantors’ own cost and expense, to inspect the Collateral, all records related thereto (and to make extracts and copies from such records) and the premises upon which any of the Collateral is located, to discuss the Grantors’ affairs with the officers of the Grantors and their independent accountants and, only upon the occurrence and during the continuance of a Default, to verify Accounts or Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Collateral for the purpose of making such a verification. The Collateral Agent shall, upon the occurrence and during the continuance of a Default, have the absolute right to share any information it gains from such inspection or verification with any Secured Party.

          Section 4.06 Taxes; Encumbrances. At its option, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral and not permitted pursuant to Section 4.10 of the Indenture (or after the occurrence and during the continuation of an Event of Default, whether or not permitted pursuant to Section 4.10 of the Indenture), and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so as required by the Indenture or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent on demand for any payment made or any expense reasonably incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this Section 4.06 shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Note Documents.

          Section 4.07 Assignment of Security Interest. If at any time any Grantor shall take a security interest in any property of an Account Debtor or any other person to secure payment and performance of an Account, such Grantor shall promptly assign such security interest to the Collateral Agent. Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent has requested the filing of such assignment, such assignment need not be filed of public record unless necessary to continue the perfected status of the security interest against creditors of and transferees from the Account Debtor or other person granting the security interest.

          Section 4.08 Continuing Obligations of the Grantors. Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance; provided that such indemnity shall not, as to the Collateral Agent or any of the Secured Parties, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final judgment to have resulted from the gross negligence or willful misconduct of such party.

          Section 4.09 Use and Disposition of Collateral. None of the Grantors shall make or permit to be made an abandonment, assignment, pledge, transfer or hypothecation of the Collateral or

- 18 -

shall grant any other Lien in respect of the Collateral, except as expressly permitted by Sections 4.09, 4.10, 10.03, 10.04 or 11.03 of the Indenture, in each case subject to the following sentence. Unless and until the Collateral Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or otherwise dispose of any Collateral (which notice may be given by telephone if promptly confirmed in writing), the Grantors may use and dispose of the Collateral in any lawful manner not inconsistent with the provisions of this Agreement, the Indenture or any other Note Document.

          Section 4.10 Limitation on Modification of Accounts. None of the Grantors will, without the Collateral Agent’s prior written consent, grant any extension of the time of payment of any of the Receivables, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, compromises or settlements granted or made in the ordinary course of business and consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged.

          Section 4.11 Insurance. The Grantors, at their own expense, shall maintain or cause to be maintained insurance covering physical loss or damage to its property in accordance with Section 4.23 of the Indenture. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, during the continuance of any Event of Default, of making, settling and adjusting claims in respect of Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Collateral Agent may, without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems commercially reasonable. All sums disbursed by the Collateral Agent in connection with this Section 4.11, including reasonable attorneys’ fees, court costs, expenses and other reasonable charges relating thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent and shall be additional Obligations secured hereby.

          Section 4.12 Legend. To the extent that the Collateral Agent may reasonably request, in order to perfect the Security Interest or to enable the Collateral Agent to exercise its rights and remedies hereunder, each Grantor shall legend, in form and manner satisfactory to the Collateral Agent, its Accounts Receivable and its Books and Records and documents evidencing or pertaining thereto with an appropriate reference to the fact that such Accounts Receivable have been assigned to the Collateral Agent for the benefit of the Secured Parties and that the Collateral Agent has a security interest therein.

          Section 4.13 Covenants Regarding Patent, Trademark and Copyright Collateral. (a) Each Grantor agrees that it will not, and will use commercially reasonable efforts not to permit any of its licensees to, do any act, or omit to do any act, whereby any Patent which is material to the conduct of such Grantor’s business may become invalidated or dedicated to the public, and agrees that it shall continue to mark any products covered by a Patent with the relevant patent number as necessary and sufficient to establish and preserve its maximum rights under applicable patent laws.

          (b) Each Grantor (either itself or through its licensees or its sublicensees) will, for each Trademark material to the conduct of such Grantor’s business, (i) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use other than such claims contested in

- 19 -

good faith by such Grantor in appropriate proceedings in the proper forums, (ii) maintain the quality of products and services offered under such Trademark, (iii) display such Trademark with notice of Federal or foreign registration to the extent necessary and sufficient to establish and preserve its rights under applicable Law and (iv) not knowingly use or knowingly permit the use of such Trademark in violation of any third party rights.

          (c) Each Grantor (either itself or through licensees) will, for each work covered by a material Copyright, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient to establish and preserve its rights under applicable copyright laws.

          (d) Each Grantor shall notify the Collateral Agent promptly if it knows or has reason to know that any Patent, Trademark or Copyright material to the conduct of its business may become abandoned, lost or dedicated to the public, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office or any court) regarding such Grantor’s ownership of any material Patent, Trademark or Copyright, its right to register the same, or to keep and maintain the same.

          (e) In no event shall any Grantor, either itself or through any agent, employee, licensee or designee, file an application for the registration of any Patent, Trademark or Copyright with the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States, unless it promptly informs the Collateral Agent, and, upon request of the Collateral Agent, executes and delivers any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Collateral Agent’s security interest in such Patent, Trademark or Copyright, and each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes to the extent that such Grantor fails to promptly do so, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.

          (f) Each Grantor will take all necessary steps that are consistent with customary practice in any proceeding before the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States, to maintain and pursue each material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registration of the Trademarks and Copyrights that is material to the conduct of any Grantor’s business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties.

          (g) In the event that any Grantor has reason to believe that any Collateral consisting of Intellectual Property material to the conduct of any Grantor’s business has been or is about to be infringed, misappropriated or diluted by a third party, such Grantor promptly shall notify the Collateral Agent and shall, if consistent with good business judgment, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Collateral.

          (h) Upon and during the continuance of an Event of Default, upon the Collateral Agent’s written request, each Grantor shall use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of each Copyright License, Patent License or Trademark License to

- 20 -

effect the assignment of all of such Grantor’s right, title and interest thereunder to the Collateral Agent or its designee and such Grantor shall provide immediate written notice to the Collateral Agent upon failure to obtain any such consent or approval.

          (i) Each Grantor will use commercially reasonable efforts so as not to permit the inclusion of any provisions that could or might in any way impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests therein in any license, contract or agreement governing or relating to any Trademarks, Patents or Copyrights or Equity Interests in joint ventures obtained after the date hereof.

          Section 4.14 Warehouse Receipts. Each Grantor agrees that if any warehouse receipt or receipt in the nature of a warehouse receipt is issued with respect to any of its Inventory, such warehouse receipt or receipt in the nature thereof shall not be “negotiable” (as such term is used in Section 7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction or under other relevant Law).

          Section 4.15 Claims. If any Grantor shall at any time hold or acquire a Claim with respect to which any Grantor is a party to any judicial action or arbitration proceeding having a value in excess of $1,000,000, such Grantor shall promptly (but, in any event, within thirty (30) Business Days) notify the Collateral Agent in writing of the details thereof, and update Schedule V and the Grantors shall take such other actions as the Collateral Agent shall reasonably request in order to grant to the Collateral Agent, for the ratable benefit of the Credit Parties, a perfected security interest therein and in the Proceeds thereof.

          Section 4.16 Other Actions. In order to further ensure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, the Collateral Agent’s Security Interest in the Collateral, each Grantor covenants and agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Collateral:

          (a) No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary (excluding for purposes of this Section 4.16 money market accounts created by a Grantor in the ordinary course of business for the purpose of funding temporary investments of cash used in the day-to-day of operations of such Grantor’s business) unless (i) such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent, and (ii) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall have duly executed and delivered a control agreement with respect to such Securities Account or Commodity Account, as the case may be. Each Grantor shall accept any security entitlements in trust for the benefit of the Collateral Agent and within two (2) Business Days of actual receipt thereof, deposit any and all security entitlements (excluding Investment Property in money market accounts created by a Grantor in the ordinary course of business for the purpose of funding temporary investments of cash used in the day-to-day of operations of such Grantor’s business) received by it into a Securities Account subject to the Collateral Agent’s Control. The provisions of this Section 4.16(a) shall not apply to any financial assets credited to a Securities Account for which the Collateral Agent or its nominee or custodian is the Securities Intermediary. No Grantor shall grant Control over any Investment Property that constitutes Collateral to any person other than the ABL Collateral Agent or the Collateral Agent.

          (b) As between the Collateral Agent and the Grantors, the Grantors shall bear the investment risk with respect to the Investment Property and Securities, and the risk of loss of, damage to, or the destruction of, the Investment Property and Securities, whether in the possession of, or maintained

- 21 -

as a security entitlement or deposit by, or subject to the Control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Grantor or any other Person.

          (c) If any amount payable under or in connection with any of the Collateral shall become evidenced by any Electronic Chattel Paper or any transferable record with an individual face value in excess of $500,000 (or, with respect to all such Electronic Chattel Paper or transferable records, an aggregate face value in excess of $1,000,000), other than such Electronic Chattel Paper and transferable records listed in Schedule VIII hereto, upon and during the continuance of an Event of Default, the Grantor acquiring such Electronic Chattel Paper or transferable record shall promptly notify the Collateral Agent thereof and shall take such action as the Collateral Agent may reasonably request to vest in the Collateral Agent Control of such Electronic Chattel Paper under Section 9-105 of the UCC or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as in effect in such jurisdiction, of such transferable record.

          (d) If any Grantor is at any time a beneficiary under a Letter of Credit now or hereafter issued having a face value in an amount in excess of $500,000 (or with respect to all such Letters of Credit, having an aggregate face value in an amount in excess of $1,000,000), upon and during the continuance of an Event of Default, such Grantor shall promptly notify the Collateral Agent thereof and such Grantor shall, at the request of the Collateral Agent, use commercially reasonable efforts to enter into an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (i) arranging for the issuer and any confirmer of such Letter of Credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under the Letter of Credit and to cause the proceeds of any drawing under such Letter of Credit to be paid directly to the Collateral Agent, or (ii) arranging for the Collateral Agent to become the transferee beneficiary of such Letter of Credit, with the Collateral Agent agreeing, in each case, that the proceeds of any drawing under the Letter of Credit are to be paid directly to the Collateral Agent and applied as provided in the Indenture.

          (e) (i) If and so long as any ABL Credit Agreement is in effect and contains the provisions in Section 5.14 of the existing ABL Credit Agreement or other analogous provisions with respect to cash management (“ABL Cash Management Requirements”), each Grantor agrees to enter into and maintain in effect a Blocked Account Agreement substantially in the form attached as Exhibit M to the ABL Credit Agreement (or in such other form reasonably acceptable to the Collateral Agent) with the banks with which such Grantor maintains accounts into which the DDAs (as defined in the ABL Credit Agreement) are concentrated (collectively, the “Blocked Accounts”) within the time period prescribed by the ABL Credit Agreement; provided, however, that the obligations of the Company and each Grantor with respect to such Deposit Accounts at JPMorgan Bank, N.A. and Bank of America, N.A. at the Issue Date shall be governed by the next sentence. With respect to each Deposit Account of any Grantor as to which the ABL Collateral Agent (or its agent) has Control as of the Issue Date, the Grantors shall use commercially reasonable best efforts to enter into a DACA by December 31, 2009 and if a DACA with respect to any such Deposit Account as to which the ABL Collateral Agent has Control is not entered into and in effect by December 31, 2009, to close such Deposit Account. After December 31, 2009, and if and so long as ABL Cash Management Requirements are in effect, no Grantor shall establish or maintain any Deposit Account as to which the ABL Collateral Agent has Control unless a DACA with respect to such Deposit Account has been entered into and is in effect.

          (ii) If ABL Cash Management Requirements are not in effect, (A) each Grantor agrees to enter and maintain in effect into a Blocked Account Agreement or a DACA with the banks with which such Grantor maintains any Deposit Account and covering such Deposit Accounts; provided, that, no Grantor shall be required to execute and deliver a Blocked Account Agreement or a DACA for, or grant the Collateral Agent control over, any Deposit Account the daily balance of which, when added to

- 22 -

the daily balance of each other Deposit Accounts with respect to which a Blocked Account Agreement or a DACA has not been executed and delivered in accordance with this Section 4.16, is in the aggregate for all such Deposit Accounts less than the De Minimis Deposit Amount (each such Deposit Account, a “De Minimis Deposit Account”), (B) each Grantor shall further execute and deliver such other agreements and documents as the Collateral Agent may reasonably require to grant the Collateral Agent Control over all Deposit Accounts (other than De Minimis Deposit Accounts) and (C) no Grantor shall establish any Deposit Account, unless the applicable Grantor has complied in full with the provisions of this Section 4.16(e)(ii) with respect to such Deposit Account (except to the extent such Deposit Account is a De Minimis Deposit Account). “De Minimis Deposit Amount” means an amount equal to the highest five (5) Business Day moving average during the last full fiscal quarter during which ABL Cash Management Requirements were in effect of the aggregate amount held at the end of each Business Day in Deposit Accounts of the Company and the other Grantors that were not Blocked Accounts.

          Section 4.17 Joinder of Additional Grantors. Upon the formation or acquisition of any new direct or indirect Subsidiary of the Company that is required to be a Guarantor pursuant to Section 4.17 of the Indenture, then the Grantors shall, at the Grantors’ expense, cause such Subsidiary to execute and deliver to the Collateral Agent an Accession Agreement and to comply with the requirements of Section 4.17 of the Indenture, within the time periods specified therein, and, upon such execution and delivery, such Subsidiary shall constitute a “Grantor” for all purposes hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such Accession Agreement shall not require the consent of any Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.

ARTICLE V
COLLECTIONS

          Section 5.01 Accounts. (a) If and so long as any ABL Credit Agreement is in effect and contains ABL Cash Management Requirements, each Grantor agrees as follows.

               (i) From and after the Issue Date, each Grantor agrees to deposit all Daily Receipts into the DDAs (as defined in the ABL Credit Agreement) on a daily basis.

               (ii) From and after the Issue Date, the Grantors agree to transfer, or cause to be transferred, all Cash Receipts (as defined in the ABL Credit Agreement) on deposit in any DDA (except, such amounts necessary (i) for the payment of routine bank service fees and (ii) to reconcile deposit balances) to a Blocked Account. Such transfers shall occur no less than three (3) times a week.

               (iii) Except upon the occurrence and during the continuance of an Event of Default, the Company may instruct each bank or other financial institution at which the Grantors maintain a Blocked Account (each, a “Blocked Account Bank”) as to the application of any Cash Receipts contained in any Blocked Account if and so long as such application and use does not violate, or result in a Default under, the Indenture and the other Note Documents.

               (iv) Upon the occurrence and during the continuance of an Event of Default, the Company may continue to instruct each Blocked Account Bank as to the application of any Cash Receipts until and unless the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian shall notify the Company and the Grantors with respect to each Blocked Account that such account shall be closed and/or under the exclusive dominion and control of the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or

- 23 -

custodian with funds therein held subject to the rights of the Collateral Agent hereunder and under the other Note Documents. During the continuance of an Event of Default and upon and after such notice, no Grantor shall have any right or power to withdraw any funds from any Blocked Account without the prior written consent of the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian.

               (v) All taxes payable on the income of the cash and cash equivalents upon any disposition thereof shall be paid by Grantors and the Collateral Agent shall have no obligations with respect thereto.

               (vi) In the event that a Grantor directly receives any remittances on Receivables, notwithstanding the arrangements for payment directly into the Blocked Accounts pursuant to Section 5.02, such remittances shall be held for the benefit of the Collateral Agent and the Secured Parties and shall be segregated from other funds of such Grantor, subject to the Security Interest granted hereby, and such Grantor shall cause such remittances and payments to be deposited into a Blocked Account as soon as practicable after such Grantor’s receipt thereof. After the occurrence of an Event of Default, upon the notice by the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian to the Grantors, such remittances and payments shall be deposited into the Agent’s Account as soon as practicable after such Grantor’s receipt thereof.

               (vii) All payments by any Grantor into any Blocked Account or the Agent’s Account pursuant to this Section 5.01 or Section 5.02, whether in the form of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, shall be deposited in the relevant Blocked Account or Agent’s Account in precisely the form in which received (but with any endorsements of such Grantor necessary for deposit or collection), and until they are so deposited such payments shall be held in trust by such Grantor for the benefit of the Collateral Agent subject to the Security Interest granted hereby.

          (b) If ABL Cash Management Requirements are not in effect, each Grantor shall deposit all Daily Receipts on a daily basis, and shall instruct all Account Debtors to make payment, into a Deposit Account subject to a Blocked Account Agreement or a DACA (or if and to the extent permitted by Section 4.16(e)(ii) of this Agreement into a De Minimis Deposit Account), and all amounts received by the Grantors in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash be deposited on a daily basis in a Deposit Account subject to a Blocked Account Agreement or a DACA (or if and to the extent permitted by Section 4.16(e)(ii) of this Agreement into a De Minimis Deposit Account).

          Section 5.02 Collections. (a) If and so long as any ABL Credit Agreement is in effect and contains ABL Cash Management Requirements, each Grantor agrees as follows.

               (i) Each Grantor shall at all times operate its cash management system in accordance with the provisions of Section 5.14 of the ABL Credit Agreement or other analogous provisions with respect to cash management in any other ABL Credit Agreement, including, without limitation, upon the occurrence and during the continuance of an Event of Default and upon notice from the Collateral Agent, causing the transfer on each Business Day of all Cash Receipts into the Agent’s Account.

               (ii) Without the prior written consent of the Collateral Agent, no Grantor shall modify or amend the instructions pursuant to any Blocked Account Agreement or notification required by Section 5.14 of the ABL Credit Agreement or other analogous provisions

- 24 -

with respect to cash management in any other ABL Credit Agreement. Each Grantor agrees that with respect to Account Debtors and every other Person required to receive a notification identified in the preceding sentence, it shall have instructed each such Account Debtor or other Person to make all such payments to a Blocked Account established by it (or upon the occurrence and during the continuance of an Event of Default and upon the notice by the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian, the Agent’s Account). Each Grantor shall use commercially reasonable efforts to cause each Account Debtor and every other Person identified in the preceding sentence to make all payments with respect to the Receivables or other Collateral directly to such Blocked Account (or upon the occurrence and during the continuance of an Event of Default and upon the notice by the Collateral Agent or its agent (including the ABL Collateral Agent), nominee or custodian, the Agent’s Account).

               (iii) Without the prior written consent of the Collateral Agent, no Grantor shall change the general instructions given to Account Debtors in respect of payment on Receivables to be deposited in a Blocked Account or the Agent’s Account. Each Grantor shall, and the Collateral Agent hereby authorizes each Grantor to, enforce and collect all amounts owing on the Inventory and Receivables, for the benefit and on behalf of the Collateral Agent and the other Secured Parties; provided, however, that such privilege may at the option of the Collateral Agent be terminated upon the occurrence and during the continuance of any Event of Default upon notice to the Grantors.

          (b) If ABL Cash Management Requirements are not in effect, each Grantor shall at all times comply with the provisions of the Blocked Account Agreements or DACAs entered into, or required to be entered into, pursuant to Section 4.16(e)(ii), which will include, without limitation, the requirement that the Grantors shall, upon the occurrence and during the continuance of an Event of Default and upon notice from the Collateral Agent, cause the transfer on each Business Day of all available cash balances and cash receipts into the Agent’s Account. So long as no Event of Default has occurred and is continuing, the Grantors may direct the manner of disposition of funds in the Deposit Accounts subject to Blocked Account Agreements or DACAs and compliance with the Indenture, this Security Agreement and the other Note Documents. Without the prior written consent of the Collateral Agent, no Grantor shall modify or amend the instructions pursuant to any Blocked Account Agreement.

          Section 5.03 Power of Attorney. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent and attorney-in-fact, and in such capacity the Collateral Agent shall have the right, with power of substitution for each Grantor and in each Grantor’s name or otherwise, for the use and benefit of the Collateral Agent and the Secured Parties, (i) at any time, whether or not a Default or Event of Default has occurred, to take actions required to be taken by the Grantors under Section 2.01 of this Agreement, (ii) upon the occurrence and during the continuance of an Event of Default, (A) to take actions required to be taken by the Grantors under Section 5.01 of this Agreement, (B) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (C) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (D) to sign the name of any Grantor on any invoices, schedules of Collateral, freight or express receipts, or bills of lading storage receipts, warehouse receipts or other documents of title relating to any of the Collateral; (E) to sign the name of any Grantor on any notice to the Grantor’s Account Debtors (including licensees under any license agreements); (F) to sign the name of any Grantor on any proof of claim in bankruptcy against Account Debtors (including licensees under any license agreements); (G) to sign change of address forms to change the address to which any Grantor’s mail is to be sent to such address as the Collateral Agent shall designate; (H) to receive and open any Grantor’s mail, remove any Proceeds of Collateral therefrom and turn over the balance of such mail either to such Grantor or to any trustee in

- 25 -

bankruptcy or receiver of such Grantor, or other legal representative of such Grantor whom the Collateral Agent determines to be the appropriate person to whom to so turn over such mail; (I) to send verifications of Receivables to any Account Debtor; (J) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (K) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (L) to repair, manufacture, assemble, complete, package, deliver, alter or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any customer of the Grantor; (M) to use, license or transfer any or all General Intangibles of any Grantor; and (N) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes and (iii) upon the occurrence of an Event of Default, to notify or to require any Grantor to notify Account Debtors to make payment directly to the Collateral Agent (or its nominee or custodian); provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent or any Secured Party to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent or any Secured Party, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby, and no action taken or omitted to be taken by the Collateral Agent or any Secured Party with respect to the Collateral or any part thereof shall give rise to any defense, counterclaim or offset in favor of any Grantor or to any claim or action against the Collateral Agent or any Secured Party other than arising out of the gross negligence or willful misconduct of the Collateral Agent or any such Secured Party. It is understood and agreed that the appointment of the Collateral Agent as the agent and attorney-in-fact of the Grantors for the purposes set forth above is coupled with an interest and is irrevocable. The provisions of this Section shall in no event relieve any Grantor of any of its obligations hereunder or under any other Note Document with respect to the Collateral or any part thereof or impose any obligation on the Collateral Agent or any Secured Party to proceed in any particular manner with respect to the Collateral or any part thereof, or in any way limit the exercise by the Collateral Agent or any Secured Party of any other or further right which it may have on the date of this Agreement or hereafter, whether hereunder, under any other Note Document, by law or otherwise.

ARTICLE VI
REMEDIES

          Section 6.01 Remedies upon Default. Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Collateral Agent shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) or other applicable Law. The rights and remedies of the Collateral Agent shall include, without limitation, the right to take any or all of the following actions at the same or different times:

          (a) With respect to any Collateral consisting of Accounts, General Intangibles (including Payment Intangibles), Letter-of-Credit Rights, Instruments, Chattel Paper, Documents, and Investment Property, the Collateral Agent may collect the Collateral with or without the taking of possession of any of the Collateral.

          (b) With respect to any Collateral consisting of Accounts, the Collateral Agent may: (i) demand, collect and receive any amounts relating thereto, as the Collateral Agent may determine; (ii) commence and prosecute any actions in any court for the purposes of collecting any such Receivables and enforcing any other rights in respect thereof; (iii) defend, settle or compromise any action brought and, in connection therewith, give such discharges or releases as the Collateral Agent may reasonably deem

- 26 -

appropriate; (iv) without limiting the Collateral Agent’s rights set forth in Section 5.03 hereof, receive, open and dispose of mail addressed to any Grantor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to such Receivables or securing or relating to such Receivables, on behalf of and in the name of such Grantor; and (v) sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any such Receivables or the goods or services which have given rise thereto, as fully and completely as though the Collateral Agent was the absolute owner thereof for all purposes.

          (c) With respect to any Collateral consisting of Investment Property, the Collateral Agent may: (i) exercise all rights of any Grantor with respect thereto, including without limitation, the right to exercise all voting and corporate rights at any meeting of the shareholders of the issuer of any Investment Property and to exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any Investment Property as if the Collateral Agent was the absolute owner thereof, including the right to exchange, at its discretion, any and all of any Investment Property upon the merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, all without liability; (ii) transfer such Collateral at any time to itself, or to its nominee, and receive the income thereon and hold the same as Collateral hereunder or apply it to the Obligations; and (iii) demand, sue for, collect or make any compromise or settlement it deems desirable. The Grantors recognize that (i) the Collateral Agent may be unable to effect a public sale of all or a part of the Investment Property by reason of certain prohibitions contained in the Securities Act of 1933, 15 U.S.C. §77, (as amended and in effect, the “Securities Act”) or the Securities laws of various states (the “Blue Sky Laws”), but may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Investment Property for their own account, for investment and not with a view to the distribution or resale thereof, (ii) that private sales so made may be at prices and upon other terms less favorable to the seller than if the Investment Property were sold at public sales, (iii) that neither the Collateral Agent nor any other Secured Party has any obligation to delay sale of any of the Investment Property for the period of time necessary to permit the Investment Property to be registered for public sale under the Securities Act or the Blue Sky Laws, and (iv) that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner. Notwithstanding anything herein to the contrary, no Grantor shall be required to register, or cause the registration of, any Investment Property under the Securities Act or any Blue Sky Laws.

          (d) With respect to any Collateral consisting of Inventory, Goods, and Equipment, the Collateral Agent may conduct one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Such sale(s) may be conducted upon any premises owned, leased, or occupied by any Grantor. The Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Grantor nor any Person claiming under or in right of any Grantor shall have any interest therein. Each purchaser at any such going out of business sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.

          (e) With or without legal process and with or without prior notice or demand for performance, the Collateral Agent may enter upon, occupy, and use any premises owned or occupied by each Grantor, and may exclude the Grantors from such premises or portion thereof as may have been so entered upon, occupied, or used by the Collateral Agent. The Collateral Agent shall not be required to remove any of the Collateral from any such premises upon the Collateral Agent’s taking possession

- 27 -

thereof, and may render any Collateral unusable to the Grantors. In no event shall the Collateral Agent be liable to any Grantor for use or occupancy by the Collateral Agent of any premises pursuant to this Section 6.01, nor for any charge (such as wages for the Grantors’ employees and utilities) incurred in connection with the Collateral Agent’s exercise of the Collateral Agent’s rights and remedies hereunder, other than for direct or actual damages resulting from the gross negligence, bad faith or willful misconduct of the Collateral Agent as determined by a final and nonappealable judgment of a court of competent jurisdiction.

          (f) The Collateral Agent may require any Grantor to assemble the Collateral and make it available to the Collateral Agent at the Grantor’s sole risk and expense at a place or places which are reasonably convenient to both the Collateral Agent and such Grantor.

          (g) Each Grantor agrees that the Collateral Agent shall have the right, subject to applicable Law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor.

          (h) Unless the Collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event the Collateral Agent shall provide the Grantors such advance notice as may be practicable under the circumstances), the Collateral Agent shall give the Grantors 10 days’ prior written notice, by authenticated record, of the time and place of any proposed sale. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in Section 9-613 of the UCC, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. Each Grantor agrees that such written notice shall satisfy all requirements for notice to that Grantor which are imposed under the UCC or other applicable Law with respect to the exercise of the Collateral Agent’s rights and remedies hereunder upon default. The Collateral Agent shall not be obligated to make any sale or other disposition of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale or other disposition of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned.

          (i) Any public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice of such sale. At any sale or other disposition, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. If any of the Collateral is sold, leased, or otherwise disposed of by the Collateral Agent on credit, the Obligations shall not be deemed to have been reduced as a result thereof unless and until payment in full is received thereon by the Collateral Agent. In the event that the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and, subject to the terms of the Intercreditor Agreement, apply the proceeds from such resale in accordance with the terms of Section 6.02 of this Agreement.

          (j) At any public (or, to the extent permitted by applicable Law, private) sale made pursuant to this Section 6.01, the Collateral Agent or any other Secured Party may bid for or purchase, free (to the extent permitted by applicable Law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor, the Collateral or any part thereof offered for sale and may make payment on

- 28 -

account thereof by using any claim then due and payable to the Collateral Agent or such other Secured Party from any Grantor on account of the Obligations as a credit against the purchase price, and the Collateral Agent or such other Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor.

          (k) For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof. The Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full.

          (l) As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.

          (m) To the extent permitted by applicable Law, each Grantor hereby waives all rights of demand, redemption, stay, valuation and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

          Section 6.02 Application of Proceeds. Subject to the terms of the Intercreditor Agreement, after the occurrence and during the continuance of an Event of Default, the Collateral Agent shall apply the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash, in accordance with the provisions of Section 6.10 of the Indenture. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.

          Section 6.03 Grant of License to Use Intellectual Property and Other Property. For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Article, effective upon the occurrence of an Event of Default and during the continuance thereof, each Grantor hereby grants to the Collateral Agent (and its agents and contractors) (i) an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to the Grantors) to use, license or sub-license any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof and (ii) the right to utilize (exercisable without any compensation to the Grantors) all other property and assets of the Grantors (including, without limitation, furniture, fixtures and equipment) to the extent necessary or appropriate to sell, lease or otherwise dispose of any of the Collateral and to the extent such right can be granted by the Grantors without the consent of any third party. The foregoing rights may be exercised, at the option of the Collateral Agent, upon the occurrence and during the continuation of an Event of Default; provided that any license, sub-license or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default.

- 29 -

ARTICLE VII
MISCELLANEOUS

          Section 7.01 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 13.02 of the Indenture.

          Section 7.02 Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest and all obligations of the Grantors hereunder shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of the Indenture, any other Note Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture, any other Note Document or any other agreement or instrument, (iii) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, (iv) the existence of any claim, set-off or other right which any Grantor may have at any time against any other Grantor, the Collateral Agent , any other Secured Party, or any other Person, whether in connection herewith or any unrelated transaction; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim or (v) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or this Agreement.

          Section 7.03 Survival of Agreement. All covenants, agreements, representations and warranties made by any Grantor herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Holders or other Secured Parties and shall survive the issuance of the Notes, regardless of any investigation made by any of the Holders or on their behalf, and shall continue in full force and effect until this Agreement shall terminate.

          Section 7.04 Binding Effect; Several Agreement. This Agreement shall become effective as to any Grantor when a counterpart hereof executed on behalf of such Grantor shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Grantor and the Collateral Agent and their respective successors and assigns, and shall inure to the benefit of such Grantor, the Collateral Agent and the other Secured Parties and their respective successors and assigns, except that no Grantor shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Indenture. This Agreement shall be construed as a separate agreement with respect to each Grantor and may be amended, modified, supplemented, waived or released with respect to any Grantor without the approval of any other Grantor and without affecting the obligations of any other Grantor hereunder.

          Section 7.05 Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.

          Section 7.06 Collateral Agent’s Fees and Expenses; Indemnification. (a) Without limitation of its indemnification obligations under the other Note Documents, each Grantor jointly and severally agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable

- 30 -

expenses, including the reasonable fees, disbursements and other charges of its counsel and of any experts or agents, which the Collateral Agent may incur in connection with (i) the administration of this Agreement (including the customary fees and charges of the Collateral Agent), (ii) the custody or preservation of, or the sale of, collection from or other realization upon any of the Collateral, (iii) the exercise, enforcement or protection of any of the rights of the Collateral Agent hereunder or (iv) the failure of any Grantor to perform or observe any of the provisions hereof.

          (b) Without limitation of its indemnification obligations under the other Note Documents, each Grantor jointly and severally agrees to indemnify the Collateral Agent, its partners, directors, officers, employees, agents and advisors (each an “Indemnitee”) against, and hold each of them harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable fees, disbursements and other charges of counsel, asserted against or reasonably incurred by any of them arising out of, in any way connected with, or as a result of, the execution, delivery or performance of this Agreement or any claim, litigation, investigation or proceeding relating hereto or to the Collateral, whether or not any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.

          (c) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Collateral Documents. The provisions of this Section 7.06 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Note Document, the consummation of the transactions contemplated hereby, the repayment of any of the Notes, the invalidity or unenforceability of any term or provision of this Agreement or any other Note Document, or any investigation made by or on behalf of the Collateral Agent or any Holder. All amounts due under this Section 7.06 shall be payable on written demand therefor.

          Section 7.07 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCEPT FOR THE CONFLICT OF LAWS RULES THEREOF, BUT INCLUDING GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402).

          Section 7.08 Waivers; Amendment. (a) No failure or delay of the Collateral Agent in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent hereunder and of the Collateral Agent, the Trustee, the Holders and the other Secured Parties under the other Note Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisions of this Agreement or any other Note Document or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Grantor in any case shall entitle such Grantor or any other Grantor to any other or further notice or demand in similar or other circumstances.

          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantor or Grantors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Article IX of the Indenture.

- 31 -

          Section 7.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

          Section 7.10 Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

          Section 7.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract (subject to Section 7.04), and shall become effective as provided in Section 7.04. Delivery of an executed signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.

          Section 7.12 Headings. Article and Section headings used herein are for the purpose of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

          Section 7.13 Jurisdiction; Consent to Service of Process. (a) Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Note Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Note Document shall affect any right that, the Collateral Agent, the Trustee, any Holder or any other Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or any other Note Document against any of the Grantors or their respective properties in the courts of any jurisdiction.

          (b) Each Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Note Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby

- 32 -

irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

          (c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

          Section 7.14 Termination. (a) This Agreement and the Security Interest shall terminate when all the Obligations have been indefeasibly paid in full in accordance with the terms and conditions of the Indenture (other than contingent indemnification obligations with respect to then unasserted claims which, pursuant to the terms of this Agreement or the other Note Documents survive the termination of this Agreement or the other Note Documents), at which time the Collateral Agent shall promptly deliver to the Grantors written authority to terminate, at the Grantors’ request and expense, all Uniform Commercial Code financing statements and similar documents which the Grantors shall reasonably request to evidence such termination. Any execution and delivery of termination statements or documents pursuant to this Section 7.14 shall be without recourse to or warranty by the Collateral Agent. A Subsidiary that is a Grantor shall automatically be released from its obligations hereunder and the Security Interest in the Collateral of such Grantor shall be automatically released in the event that all the capital stock of such Grantor shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of the Company in a transaction permitted by the terms of Section 4.09 of the Indenture. Upon any sale or other transfer by any Grantor of any Collateral that is permitted under the Indenture and this Agreement to any Person that is not a Grantor the security interest in such Collateral shall be automatically released.

          (b) To the extent that a Lien permitted by clauses (ix), (xi), (xii), (xiii), (xvi), (xxiv), (xxvii) and (xxxii) of the definition of Permitted Liens in the Indenture is granted and the holder of such Lien requests, the Collateral Agent will execute any documents required to demonstrate to such holder that the Lien is a Permitted Lien and any requisite priority thereof, and, to the extent reasonably necessary, take appropriate steps to provide for the release of the Collateral.

          Section 7.15 Headings and Recitals. The recitals at the beginning of this Agreement and the headings of the sections and subsections hereof are provided for convenience only and shall not be construed as representations made by any Grantor, and shall not in any way affect the meaning or construction of any provision of this Agreement.

          Section 7.16 Intercreditor Terms Prevail. notwithstanding anything herein to the contrary, the lien and security interest granted to the collateral agent pursuant to this agreement and the exercise of any right or remedy by the collateral agent hereunder with respect to abl collateral are, until discharge of all abl obligations, subject to the provisions of the intercreditor agreement. in the event of any conflict between the terms of the intercreditor agreement and this agreement, the terms of the intercreditor agreement shall govern and control. The parties hereto acknowledge that pursuant to the Intercreditor Agreement, the ABL Collateral Agent has agreed to act as agent and bailee for the Collateral Agent for purposes of perfecting the Lien of the Collateral Agent in all Control Collateral (as defined in the Intercreditor Agreement).  Accordingly, delivery or grant of control of such Collateral to the ABL Collateral Agent shall constitute effective delivery to the Collateral Agent for purposes of this Agreement.

          Section 7.17 Limitation on Duties of Collateral Agent. Beyond the exercise of reasonable care in the custody and preservation thereof, the Collateral Agent will not have any duty as to

- 33 -

any Collateral in its possession or control or in the possession or control of any sub-agent or bailee or any income therefrom or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent will be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equal to that which it accords its own property, and will not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of any act or omission of any sub-agent or bailee selected by the Collateral Agent in good faith or by reason of any act or omission such sub-agent or bailee selected by the Collateral Agent pursuant to instructions from the Collateral Agent, except to the extent that such liability arises from the Collateral Agent’s gross negligence, bad faith or willful misconduct. The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.

- 34 -

          IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Vice President and Assistant Secretary
ONPOINT, INC. (F/K/A HAMILTON PROPERTY I, INC.) NORTH JERSEY PROPERTIES, INC. VI AAL REALTY CORP. ADBRETT CORP. BERGEN STREET PATHMARK, INC. BRIDGE STUART INC. EAST BRUNSWICK STUART LLC LANCASTER PIKE STUART, LLC MACDADE BOULEVARD STUART, LLC PLAINBRIDGE LLC SUPERMARKETS OIL COMPANY, INC. UPPER DARBY STUART, LLC BEST CELLARS, INC. BEST CELLARS MASSACHUSETTS, INC. BEST CELLARS VA INC. GRAPE FINDS LICENSING CORP. GRAPE FINDS AT DUPONT, INC. BEST CELLARS DC INC. BEST CELLARS LICENSING CORP.
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	President
COMPASS FOODS, INC. FOOD BASICS, INC. HOPELAWN PROPERTY I, INC. KOHL’S FOOD STORES, INC. THE SOUTH DAKOTA GREAT ATLANTIC & PACIFIC TEA      COMPANY, INC. KWIK SAVE INC. MONTVALE HOLDINGS, INC. SUPER FRESH FOOD MARKETS, INC. SUPER FRESH FOOD MARKETS OF MARYLAND, INC. SUPER FRESH/SAV-A-CENTER, INC.

Signature Page to Security Agreement

SUPER MARKET SERVICE CORP. SUPER PLUS FOOD WAREHOUSE, INC. SUPERMARKET DISTRIBUTION SERVICES, INC. 2008 BROADWAY, INC. BEV, LTD. FARMER JACK’S OF OHIO, INC. SHOPWELL, INC. (DBA FOOD EMPORIUM) CLAY-PARK REALTY CO., INC. AMSTERDAM TRUCKING CORPORATION (F/K/A DAITCH CRYSTAL DAIRIES, INC.) DELAWARE COUNTY DAIRIES, INC. GRAMATAN FOODTOWN CORP. SHOPWELL, INC. (ORG IN CONN) SHOPWELL, INC. (ORG IN MASS) SHOPWELL, INC. (NEW JERSEY) THE FOOD EMPORIUM, INC. (CONN) THE FOOD EMPORIUM, INC. (DELAWARE) THE FOOD EMPORIUM, INC. (NJ) TRADEWELL FOODS OF CONN., INC. APW SUPERMARKET CORPORATION APW SUPERMARKETS, INC. WALDBAUM, INC. (DBA WALDBAUM, INC. AND FOOD MART) LBRO REALTY, INC. MCLEAN AVENUE PLAZA CORP. SPRING LANE PRODUCE CORP. THE MEADOWS PLAZA DEVELOPMENT CORP. GREENLAWN LAND DEVELOPMENT CORP.
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Vice President and Secretary
S E G STORES, INC. THE OLD WINE EMPORIUM OF WESTPORT, INC.
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Secretary
PATHMARK STORES, INC.
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Senior Vice President and Assistant Secretary

Signature Page to Security Agreement

BORMAN’S, INC. (DBA FARMER JACK)
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Vice President and Assistant Secretary
MILIK SERVICE COMPANY, LLC
By Pathmark Stores, Inc., its Manager
By:	/s/ Christopher McGarry
Name:	Christopher McGarry
Title:	Senior Vice President and Assistant Secretary
LO-LO DISCOUNT STORES, INC.
By:	/s/ William Moss
Name:	William Moss
Title:	Vice President and Treasurer

Signature Page to Security Agreement

WILMINGTON TRUST COMPANY,      as Collateral Agent
By:	/s/ Michael G. Oller, Jr.
Name:	Michael G. Oller, Jr.
Title:	Assistant Vice President

Signature Page to Security Agreement

Schedule I Copyrights

Copyrights

I-1

Schedule II Licenses

Licenses

II-1

Schedule III Patents

Patents

III-1

Schedule IV Trademarks

Trademarks

IV-1

Schedule V Claims

Claims

V-1

Schedule VI Instruments and Chattel Paper

Instruments and Chattel Paper

VI-1

Schedule VII Securities Accounts and Commodity Accounts

Securities Accounts and Commodity Accounts

VII-1

Schedule VIII Electronic Chattel Paper and Transferable Records

Electronic Chattel Paper and Transferable Records

VIII-1

EXHIBIT A to Security Agreement

Form of Accession Agreement

          ACCESSION AGREEMENT dated as of [Date] (as amended, modified or supplemented from time to time, this “Agreement”) among [New Grantor Name], [New Grantor Description] ( the “New Grantor”), and Wilmington Trust Company, as collateral agent (together with any successor or successors in such capacity, the “Collateral Agent”) for the benefit of Wilmington Trust Company, as trustee (together with any successor or successors in such capacity, the “Trustee”) and the Holders (as defined in the Security Agreement).

          Reference is made to the 11³/₈% Senior Secured Notes due 2015 of The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the “Company”) (as amended, restated, supplemented or modified from time to time, the “Notes”), in the original aggregate principal amount of $260,000,000 issued pursuant to the Indenture, dated as of August 4, 2009 (as amended, restated, amended and restated, modified or supplemented from time to time and including any agreement extending the maturity of, refinancing or otherwise amending, amending and restating or otherwise modifying or restructuring all or any portion of the obligations of the Company under the Notes or such agreement or any successor agreement, the “Indenture”) among the Company, Guarantors, the Collateral Agent and the Trustee. Each Grantor has, pursuant to the Indenture, unconditionally guaranteed the Obligations (as defined in the Security Agreement).

          As a condition to the issuance of the Notes under the Indenture, the Company and certain Subsidiaries of the Company (each such Subsidiary individually a “Grantor” and collectively with the Company, the “Grantors”) have executed and delivered a Security Agreement, dated as of August 4, 2009 (as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), among the Company, the other Grantors that are parties thereto and the Collateral Agent. Capitalized terms used but not defined herein have the meanings assigned in, or by reference in, the Security Agreement.

          The New Grantor, was [formed] [acquired] by the [Company] [Relevant Grantor] and is a Subsidiary of the [Company] [Relevant Grantor]. [Describe formation or acquisition transaction, as applicable.]

          Section 4.17 of the Security Agreement requires that upon formation or acquisition of any new direct or indirect Subsidiary of the Company that is required to be a Guarantor pursuant to Section 4.17 of the Indenture, the Grantors shall, at the Grantors’ expense, cause such Subsidiary to execute and deliver to the Collateral Agent an Accession Agreement and to comply with the requirements of Section 4.17 of the Indenture, within the time periods specified therein, and, upon such execution and delivery, such Subsidiary shall constitute a “Grantor” for all purposes thereunder with the same force and effect as if originally named as a Grantor therein.

          The New Grantor has agreed to execute and deliver this Agreement in order to evidence its agreement to become a “Grantor” under the Security Agreement. Accordingly, the parties hereto agree as follows:

          Section 1. Security Agreement. In accordance with Section 4.17 of the Security Agreement, the New Grantor hereby (i) agrees that, by execution and delivery of a counterpart signature page to the Security Agreement in the form attached hereto as Exhibit A, the New Grantor shall become a “Grantor” under the Security Agreement with the same force and effect as if originally named therein as a Grantor, (ii) acknowledges receipt of a copy of and agrees to be obligated and bound as a “Grantor” by all

Form of Accession Agreement

A-1

of the terms and provisions of the Security Agreement, (iii) grants to the Collateral Agent for the benefit of the Secured Parties a continuing security interest in all of its right, title and interest in, to and under the Collateral, in each case to secure the full and punctual payment of the Obligations in accordance with the terms thereof and to secure the performance of all of the obligations of each Grantor under the Indenture and the other Note Documents, (iv) represents and warrants that each of Schedules I, II, III, IV, V, VI, VII, and VIII to the Security Agreement, as amended, supplemented and modified as set forth on Schedules I, II, III, IV, V, VI, VII, and VIII hereto, is complete and accurate with respect to the New Grantor as of the date hereof after giving effect to the New Grantor’s accession to the Security Agreement as an additional Grantor thereunder and (v) acknowledges and agrees that, from and after the date hereof, each reference in the Security Agreement to a “Grantor” or the “Grantors” shall be deemed to include the New Grantor.

          Section 2. Representations and Warranties. The New Grantor hereby represents and warrants that:

          (a) This Agreement has been duly authorized, executed and delivered by the New Grantor, and each of this Agreement and the Security Agreement, as acceded to hereby by the New Grantor, constitutes a valid and binding agreement of the New Grantor, enforceable against the New Grantor in accordance with its terms, except in each case as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of creditors’ rights generally and by equitable principles of general applicability (regardless of whether such enforceability is considered in a proceeding in equity or at law).

          (b) Attached hereto as Exhibit B is a correct and complete Perfection Certificate relating to the New Grantor and its Collateral.

          Section 3. Effectiveness. This Agreement and the accession of the New Grantor to the Security Agreement as provided herein shall become effective with respect to the New Grantor when the Collateral Agent shall have received (i) a counterpart of this Agreement duly executed by the New Grantor and (ii) a duly executed counterpart signature page to the Security Agreement as contemplated hereby.

          Section 4. Integration; Confirmation. On and after the date hereof, the Security Agreement and the Schedules thereto shall be supplemented as expressly set forth herein; all other terms and provisions of the Security Agreement and the Schedules thereto shall continue in full force and effect and unchanged and are hereby confirmed in all respects.

          Section 5. Expenses. The New Grantor agrees to pay (i) all out-of-pocket expenses of the Collateral Agent, including reasonable fees and disbursements of special and local counsel for the Collateral Agent, in connection with the preparation, execution and delivery of this Agreement and any document or agreement contemplated hereby and (ii) all taxes which the Collateral Agent or any Secured Party may be required to pay by reason of the security interests granted in the Collateral (including any applicable transfer taxes).

Form of Accession Agreement

A-2

          Section 6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

          Section 7. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may be transmitted and/or signed by facsimile and if so transmitted or signed, shall, subject to requirements of law, have the same force and effect as a manually signed original and shall be binding on the New Grantor, the Collateral Agent and the other Secured Parties. The Administrative Agent may also require that this Agreement be confirmed by a manually signed original hereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.

[Signature Pages Follow]

Form of Accession Agreement

A-3

          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

[NEW GRANTOR NAME]
By:
	Name:
	Title:
WILMINGTON TRUST COMPANY,      as Collateral Agent
By:
	Name:
	Title:

Signature Page to Accession Agreement

EXHIBIT A

Counterpart to Security Agreement

          The undersigned hereby executes this counterpart to the Security Agreement dated as of                     , 20___ by the Grantors party thereto from time to time in favor of Wilmington Trust Company, as Collateral Agent, and, as of the date hereof, assumes all of the rights and obligations of a “Grantor” thereunder.

Date:                                        

[NEW LOAN PARTY NAME]
By:
	Name:
	Title:

[New Grantor Notice Address]

Exhibit A to Accession Agreement

EXHIBIT B

Perfection Certificate

Exhibit B to Accession Agreement

Schedule I to the Security Agreement

Schedule I

Schedule II to the Security Agreement

Schedule II

Schedule III to the Security Agreement

Schedule III

Schedule IV to the Security Agreement

Schedule IV

Schedule V to the Security Agreement

Schedule V

Schedule VI to the Security Agreement

Schedule VI

Schedule VII to the Security Agreement

Schedule VII

Schedule VIII to the Security Agreement

Schedule VIII

EXHIBIT B to Security Agreement

PERFECTION CERTIFICATE

          Reference is made to (i) the Security Agreement, dated as of August 4, 2009 (as amended, supplemented or otherwise modified from time to time, the “Security Agreement”), among The Great Atlantic & Pacific Tea Company, Inc. (the “Company” and a “Grantor”), the Subsidiaries of the Company that are parties thereto (each a “Grantor” and collectively with the Company, the “Grantors”) and Wilmington Trust Company, as collateral agent (together with any successor or successors in such capacity, the “Collateral Agent”) for the benefit of the Trustee and the Holders, and (ii) the Pledge Agreement, dated as of August 4, 2009 (as amended, supplemented or otherwise modified from time to time, the “Pledge Agreement”), among the Company, the Subsidiaries of the Company that are parties thereto and the Collateral Agent. Capitalized terms used but not defined herein have the meanings assigned in, or by reference in, the Security Agreement or the Pledge Agreement, as applicable.

          The undersigned hereby certify to the Collateral Agent and each other Secured Party that, on the Issue Date:

          1. Names.

          (a) The exact corporate name of each Grantor, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth on Schedule 1(a).

          (b) Set forth on Schedule 1(b) is each other corporate name each Grantor has had in the past five years, together with the date of the relevant change.

          (c) Except as set forth in Schedule 1(c) hereto, no Grantor has changed its identity or corporate structure in any way within the past five years. Changes in identity or corporate structure would include mergers, consolidations and acquisitions, as well as any change in the form, nature or jurisdiction of corporate organization. If any such change has occurred, include in Schedule 1(c) the information required by Sections 1 and 2 of this certificate as to each acquiree or constituent party to a merger or consolidation.

          (d) Set forth in Schedule 1(d) hereto is the state of formation of each Grantor, the organizational identification number, if any, of each Grantor that is a registered organization and the Federal Taxpayer Identification Number of each Grantor. Each Grantor is (i) the type of entity disclosed next to its name in Schedule 1(d) and (ii) a registered organization except to the extent disclosed in Schedule 1(d).

          2. Current Locations.

          (a) The chief executive office of each Grantor is located at the address set forth in Schedule 2(a) attached hereto.

          (b) Set forth in Schedule 2(b) attached hereto are all locations where each Grantor maintains any books or records relating to any Accounts Receivable (with each location at which chattel paper, if any, is kept being indicated by an *)

          (c) Set forth in Schedule 2(c) are all the locations where each Grantor maintains any Equipment or other physical Collateral not identified above.

          (d) Set forth in Schedule 2(d) opposite the name of each Grantor are all the places of business of such Grantor not identified in paragraphs 2(a), (b) or (c) above.

          (e) Set forth in Schedule 2(e) opposite the name of each Grantor are the names and addresses of all Persons other than such Grantor that have possession as a bailee, consignee or warehouseman of any of the Collateral of such Grantor.

          (f) Set forth on Schedule 2(f) is a list of each deposit account, brokerage account or securities investment account maintained by any Grantor, including the name and address of the institution at which the account is located, the type of account, and the account number. Also set forth on Schedule 2(f) is a true and correct list of all securities intermediaries with respect to any such securities accounts, including the name and address of any such securities intermediary.

          (g) Set forth on Schedule 2(g) is a list of all real property held by each Grantor, whether owned or leased, and the name of the Grantor that owns or leases said property.

          (h) Set forth on Schedule 2(h) is a list of all locations currently used by any Grantor as distribution centers or warehouses, to the extent not specifically identified as such in paragraph 2(g) above, in which Collateral of any such Grantor is located. For each such location that is leased by any Grantor, set forth below is the name and address of the landlord of such location. For each such location that is a warehouse, set forth below is the name and address of the operator of such warehouse.

          3. Unusual Transaction. Except for those purchases, acquisitions, and other transactions as set forth in Schedule 3 attached hereto or otherwise disclosed in Section 1, all Accounts Receivable have been originated by the Grantors and all Inventory has been acquired by the Grantors from a Person in the ordinary course of business.

          4. File Search Reports. File search reports have been obtained from each central-filing Uniform Commercial Code filing office identified with respect to such Grantor in Section 1(d) hereof, and such search reports reflect no liens against any of the Collateral other than those permitted under the Indenture and Liens that will be terminated on the Issue Date.

          5. UCC Filings. Financing statements on Form UCC-1 in substantially the form of Schedule 5 hereto have been prepared for filing in the Uniform Commercial Code filing office in each jurisdiction identified with respect to such Grantor in Section 1(d) hereof (for each Grantor that is a registered organization) and in each jurisdiction identified with respect to such Grantor in Section 2 hereof hereof (for each Grantor that is not a registered organization).

          6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting forth, with respect to the filings described in Schedule 5 above, each filing and the filing office in which such filing is to be made.

          7. Stock Ownership and other Equity Interests. Attached hereto as Schedule 7 is a true and correct list of all the issued and outstanding stock, partnership interests, limited liability company membership interests or other equity interest (the “Equity Interests”) held by, directly or indirectly, any Grantor and the record and beneficial owners of such Equity Interests. Also set forth on Schedule 7 is each Equity Interest held by, directly or indirectly, any Grantor that represents 50% or less of the Equity Interests of the Person in which such investment was made. Attached hereto as Schedule 7A is an organizational chart for the Grantors.

          8. Debt Instruments. Attached hereto as Schedule 8 is a true and correct list of all promissory notes and other evidence of indebtedness with a face amount of $500,000 or more held by any Grantor, including all inter-company notes by any Grantor in favor of any other Grantor or any other Affiliate of such Grantor.

          9. Intellectual Property.

          (a) Attached hereto as Schedule 9(a) is a list of each Grantor’s copyrights (including copyrights of software) which are registered with the United States Copyright Office. (Please include the name of the applicable Grantor, the name of the copyright, registration number, and date of registration.) Also attached hereto as Schedule 9(a) is a list of each Grantor’s applications for copyrights (including for copyrights of software) which are pending with the United States Copyright Office. (Please include the name of the applicable Grantor, the name of the copyright for which an application has been filed, application number, and date of application.) Also attached hereto as Schedule 9(a) is a list of copyrights licensed by any Grantor. (Please include the name of the applicable Grantor, the name of the copyright licensed, the name of the licensor or licensee, and the date of the agreement reflecting such license arrangement.)

          (b) Attached hereto as Schedule 9(b) is a list of each Grantor’s patents which are registered with the United States Patent Office. (Please include the name of the applicable Grantor, the name of the patent, registration number, and date of registration.) Also attached hereto as Schedule 9(b) is a list of each Grantor’s patents which are pending with the United States Patent Office. (Please include the name of the applicable Grantor, the name of the patent, application number, and date of application.) Also attached hereto as Schedule 9(b) is a list of patents licensed by any Grantor. (Please include the name of the applicable Grantor, the name of the patent licensed, the name of the licensor or licensee, and the date of the agreement reflecting such license arrangement.)

          (c) Attached hereto as Schedule 9(c) is a list of each Grantor’s registered trademarks, trade names, and service marks. (Please include name of each trademark, registration number, date of registration, and jurisdiction in which the trademark is registered) Also attached hereto as Schedule 9(c) is a list of each Grantor’s applications for trademarks, trade names, and service marks. (Please include name of each trademark, application number, date of application, and jurisdiction in which the application is pending) Also attached hereto as Schedule 9(c) is a list of trademarks licensed by any Grantor. (Please include the name of the applicable Grantor, the name of the copyright licensed, the name of the licensor or licensee, and the date of the agreement reflecting such license arrangement.)

          10. Commercial Tort Claims. Attached hereto as Schedule 10 is a true and correct list of commercial tort claims with a value in excess of $1,000,000 held by any Grantor, including a brief description thereof.

[Signature Pages Follow]

          IN WITNESS WHEREOF, the undersigned has duly executed this certificate on this                      day of August, 2009.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By:
	Name:
	Title:
EACH OF THE GRANTORS LISTED ON ANNEX A HERETO
By:
	Name:
	Title:
EACH OF THE GRANTORS LISTED ON ANNEX B HERETO
By:
	Name:
	Title:
EACH OF THE GRANTORS LISTED ON ANNEX C HERETO
By:
	Name:
	Title:

ANNEX A

GRANTORS

ANNEX B

GRANTORS

ANNEX C

GRANTORS

EXHIBIT C to Security Agreement

FORM OF GRANT OF SECURITY INTEREST

IN UNITED STATES PATENT AND TRADEMARKS

     This GRANT OF SECURITY INTEREST IN UNITED STATES PATENTS AND TRADEMARKS, dated as of August 4, 2009 (this “Grant”), is made by and among (i) THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the “Company”), a Maryland corporation, (ii) each subsidiary of the Company listed on Schedule I attached hereto (each such subsidiary individually a “Guarantor” and collectively, the “Guarantors”) (the Company and the Guarantors are hereinafter referred to, collectively, as the “Grantors”), and (iv) WILMINGTON TRUST COMPANY, as collateral agent (in such capacity, the “Collateral Agent”) for the benefit of Wilmington Trust Company, as trustee (together with any successor or successors in such capacity, the “Trustee”) and the Holders (as defined in the Security Agreement), in consideration of the mutual covenants contained herein and benefits to be derived herefrom.

W i t n e s s e t h:

      WHEREAS, Grantors are party to an Indenture, dated as of the date hereof (as amended, restated, amended and restated, modified or supplemented from time to time and including any agreement extending the maturity of, refinancing or otherwise amending, amending and restating or otherwise modifying or restructuring all or any portion of the obligations of the Company under the Notes or such agreement or any successor agreement, the “Indenture”) among the Company, the Guarantors, the Collateral Agent and the Trustee. Each of the Grantors has, pursuant to the Indenture, unconditionally guaranteed the Obligations (as defined in the Security Agreement);

     WHEREAS, Grantors are party to a Security Agreement, dated as of the date hereof, in favor of the Collateral Agent and the Secured Parties (as amended, restated, or otherwise modified from time to time, the “Security Agreement”); and

     WHEREAS, pursuant to the Security Agreement, Grantors have executed and delivered this Grant for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Intellectual Property (as defined below) with the United States Patent and Trademark Office (“PTO”);

     NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein and in the Security Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Grantors and the Collateral Agent, on its own behalf and on behalf of the other Secured Parties (and each of their respective successors or assigns), hereby agree as follows:

     SECTION 1. Defined Terms. Unless otherwise defined herein, terms used herein have the meaning given to them in the Security Agreement. The following terms shall have the following meanings:

     “Intellectual Property” shall mean all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents (as defined herein), Licenses, Trademarks (as defined herein), trade secrets, technology, confidential or proprietary technical and business information, know-how, show-how, data or information, domain names, mask works, customer lists, vendor lists, subscription lists, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

Form of Grant of Security Interest in United States Patents and Trademarks

C-1

     “Patents” shall have the meaning given in the Security Agreement and shall include the patents set forth on Exhibit A.

     “Trademarks” shall have the meaning given in the Security Agreement and shall include the trademarks set forth on Exhibit B.

     SECTION 2. GRANT OF SECURITY INTEREST. IN FURTHERANCE AND AS CONFIRMATION OF THE SECURITY INTEREST GRANTED BY THE GRANTORS TO THE COLLATERAL AGENT (FOR ITS OWN BENEFIT AND THE BENEFIT OF THE OTHER SECURED PARTIES) UNDER THE SECURITY AGREEMENT, AND AS FURTHER SECURITY FOR THE PAYMENT OR PERFORMANCE, AS THE CASE MAY BE, IN FULL OF THE OBLIGATIONS, EACH OF THE GRANTORS HEREBY RATIFIES SUCH SECURITY INTEREST AND GRANTS TO THE COLLATERAL AGENT (FOR ITS OWN BENEFIT AND THE BENEFIT OF THE OTHER SECURED PARTIES) A CONTINUING SECURITY INTEREST, IN ALL OF THE PRESENT AND FUTURE RIGHT, TITLE AND INTEREST OF SUCH GRANTOR IN, TO AND UNDER ITS INTELLECTUAL PROPERTY, WHETHER NOW OWNED OR EXISTING OR HEREAFTER ACQUIRED OR ARISING, TOGETHER WITH ALL PRODUCTS, PROCEEDS, SUBSTITUTIONS, AND ACCESSIONS THEREOF, INCLUDING ANY CLAIM BY GRANTORS AGAINST THIRD PARTIES FOR PAST, PRESENT, OR FUTURE INFRINGEMENT, DILUTION, MISAPPROPRIATION, VIOLATION, OR UNFAIR COMPETITION WITH ANY INTELLECTUAL PROPERTY (COLLECTIVELY, THE “INTELLECTUAL PROPERTY COLLATERAL”).

     SECTION 3. Intent. This Grant is being executed and delivered by the Grantors for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Intellectual Property Collateral with the United States Patent and Trademark Office. It is intended that the security interest granted pursuant to this Grant is granted in conjunction with, and not in addition to or limitation of, the Security Interest granted to the Collateral Agent, for its own benefit and the benefit of the other Secured Parties, under the Security Agreement. All provisions of the Security Agreement shall apply to the Intellectual Property Collateral. The Collateral Agent shall have the same rights, remedies, powers, privileges and discretions with respect to the security interests created in the Intellectual Property Collateral as in all other Collateral. In the event of a conflict between this Grant and the Security Agreement, the terms of the Security Agreement shall control.

     SECTION 4. Recordation. Each Grantor authorizes and requests that the Commissioner for Patents, and the Commissioner for Trademarks and any other applicable government officer record this Grant.

     SECTION 5. Collateral Agent As Attorney-In-Fact. Each of the Grantors hereby irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as and for such Grantor’s true and lawful agent and attorney-in-fact in accordance with Section 5.03 of the Security Agreement:

          (a) To supplement and amend from time to time EXHIBITS A and B of this Grant to include any newly developed, applied for, registered, or acquired Intellectual Property of such Grantor and any intent-to-use Trademark applications for which a statement of use or an amendment to allege use has been filed and accepted by the PTO.

          (b) To execute all such instruments, documents, and papers as the Collateral Agent reasonably determines to be necessary or desirable in connection with the exercise of such rights and remedies and to cause the sale, license, assignment, transfer, or other disposition of the Intellectual Property.

Form of Grant of Security Interest in United States Patents and Trademarks

C-2

     SECTION 6. Termination; Release of Intellectual Property Collateral . Upon termination of the Security Interest in the Intellectual Property Collateral in accordance with the Security Agreement, the Collateral Agent shall promptly execute, acknowledge, and deliver to the Grantor, at such Grantor’s expense, an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in the Intellectual Property Collateral under this Grant. Any execution and delivery of termination statements, releases or other documents pursuant to this SECTION 6 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.

[SIGNATURE PAGE FOLLOWS]

Form of Grant of Security Interest in United States Patents and Trademarks

C-3

     IN WITNESS WHEREOF, the Grantors and the Collateral Agent have caused this Grant to be executed by their duly authorized officers as of the date first above written.

GRANTORS:	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
	By:
		Name:
		Title:

THE ENTITIES LISTED ON SCHEDULE I HERETO, as Guarantors

By:

Name:

Title:

Signature Page to Grant of Security Interest in United States Patents and Trademarks

COLLATERAL AGENT:	WILMINGTON TRUST COMPANY, as Collateral Agent
	By:
		Name:
		Title:

Signature Page to Grant of Security Interest in United States Patents and Trademarks

EXHIBIT A

Patents

Exhibit A to Grant of Security Interest in United States Patents and Trademarks

EXHIBIT B

Trademarks

Exhibit B to Grant of Security Interest in United States Patents and Trademarks

Schedule I

(Guarantors)

Schedule I to Grant of Security Interest in United States Patents and Trademarks

EXHIBIT D to Security Agreement

FORM OF GRANT OF SECURITY INTEREST

IN UNITED STATES COPYRIGHTS

     This GRANT OF SECURITY INTEREST IN UNITED STATES COPYRIGHTS, dated as of August 4, 2009 (this “Grant”), is made by and among (i) THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the “Company”), a Maryland corporation, (ii) each subsidiary of the Company listed on Schedule I attached hereto (each such subsidiary individually a “Guarantor” and collectively, the “Guarantors”) (the Company and the Guarantors are hereinafter referred to, collectively, as the “Grantors”), and (iv) WILMINGTON TRUST COMPANY, as collateral agent (in such capacity, the “Collateral Agent”) for the benefit of Wilmington Trust Company, as trustee (together with any successor or successors in such capacity, the “Trustee”) and the Holders (as defined in the Security Agreement), in consideration of the mutual covenants contained herein and benefits to be derived herefrom.

W i t n e s s e t h:

      WHEREAS, Grantors are party to an Indenture, dated as of the date hereof (as amended, restated, amended and restated, modified or supplemented from time to time and including any agreement extending the maturity of, refinancing or otherwise amending, amending and restating or otherwise modifying or restructuring all or any portion of the obligations of the Company under the Notes or such agreement or any successor agreement, the “Indenture”) among the Company, the Guarantors, the Collateral Agent and the Trustee. Each of the Grantors has, pursuant to the Indenture, unconditionally guaranteed the Obligations (as defined in the Security Agreement);

     WHEREAS, Grantors are party to a Security Agreement, dated as of the date hereof, in favor of the Collateral Agent and the Secured Parties (as amended, restated, or otherwise modified from time to time, the “Security Agreement”); and

     WHEREAS, pursuant to the Security Agreement, Grantors have executed and delivered this Grant for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Intellectual Property (as defined below) with the United States Copyright Office;

     NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein and in the Security Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Grantors and the Collateral Agent, on its own behalf and on behalf of the other Secured Parties (and each of their respective successors or assigns), hereby agree as follows:

     SECTION 1. Defined Terms. Unless otherwise defined herein, terms used herein have the meaning given to them in the Security Agreement. The following terms shall have the following meanings:

     “Copyrights” shall have the meaning given in the Security Agreement and shall include the copyrights set forth on Exhibit A.

     “Intellectual Property” shall mean all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Copyrights (as defined herein), Licenses, trade secrets, technology, confidential or proprietary technical and business information, know-how, show-how, data or information, domain names, mask works, customer lists, vendor lists, subscription lists, software and databases and all embodiments or fixations thereof and related documentation, registrations and

Form of Grant of Security Interest in United States Copyrights

D-1

franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

     SECTION 2. GRANT OF SECURITY INTEREST. IN FURTHERANCE AND AS CONFIRMATION OF THE SECURITY INTEREST GRANTED BY THE GRANTORS TO THE COLLATERAL AGENT (FOR ITS OWN BENEFIT AND THE BENEFIT OF THE OTHER SECURED PARTIES) UNDER THE SECURITY AGREEMENT, AND AS FURTHER SECURITY FOR THE PAYMENT OR PERFORMANCE, AS THE CASE MAY BE, IN FULL OF THE OBLIGATIONS, EACH OF THE GRANTORS HEREBY RATIFIES SUCH SECURITY INTEREST AND GRANTS TO THE COLLATERAL AGENT (FOR ITS OWN BENEFIT AND THE BENEFIT OF THE OTHER SECURED PARTIES) A CONTINUING SECURITY INTEREST, IN ALL OF THE PRESENT AND FUTURE RIGHT, TITLE AND INTEREST OF SUCH GRANTOR IN, TO AND UNDER ITS INTELLECTUAL PROPERTY, WHETHER NOW OWNED OR EXISTING OR HEREAFTER ACQUIRED OR ARISING, TOGETHER WITH ALL PRODUCTS, PROCEEDS, SUBSTITUTIONS, AND ACCESSIONS THEREOF, INCLUDING ANY CLAIM BY GRANTORS AGAINST THIRD PARTIES FOR PAST, PRESENT, OR FUTURE INFRINGEMENT, DILUTION, MISAPPROPRIATION, VIOLATION, OR UNFAIR COMPETITION WITH ANY INTELLECTUAL PROPERTY (COLLECTIVELY, THE “INTELLECTUAL PROPERTY COLLATERAL”).

     SECTION 3. Intent. This Grant is being executed and delivered by the Grantors for the purpose of recording and confirming the grant of the security interest of the Collateral Agent in the Intellectual Property Collateral with the United States Copyright Office. It is intended that the security interest granted pursuant to this Grant is granted in conjunction with, and not in addition to or limitation of, the Security Interest granted to the Collateral Agent, for its own benefit and the benefit of the other Secured Parties, under the Security Agreement. All provisions of the Security Agreement shall apply to the Intellectual Property Collateral. The Collateral Agent shall have the same rights, remedies, powers, privileges and discretions with respect to the security interests created in the Intellectual Property Collateral as in all other Collateral. In the event of a conflict between this Grant and the Security Agreement, the terms of the Security Agreement shall control.

     SECTION 4. Recordation. Each Grantor authorizes and requests that the Register of Copyrights, and any other applicable government officer record this Grant.

     SECTION 5. Collateral Agent As Attorney-In-Fact. Each of the Grantors hereby irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as and for such Grantor’s true and lawful agent and attorney-in-fact in accordance with Section 5.03 of the Security Agreement:

          (a) To supplement and amend from time to time EXHIBIT A of this Grant to include any newly developed, applied for, registered, or acquired Intellectual Property of such Grantor.

          (b) To execute all such instruments, documents, and papers as the Collateral Agent reasonably determines to be necessary or desirable in connection with the exercise of such rights and remedies and to cause the sale, license, assignment, transfer, or other disposition of the Intellectual Property.

     SECTION 6. Termination; Release of Intellectual Property Collateral. Upon termination of the Security Interest in the Intellectual Property Collateral in accordance with the Security Agreement, the Collateral Agent shall promptly execute, acknowledge, and deliver to the Grantor, at such Grantor’s expense, an instrument in writing in recordable form releasing the collateral pledge, grant, lien and security interest in the Intellectual Property Collateral under this Grant. Any execution and delivery of

Form of Grant of Security Interest in United States Copyrights

D-2

termination statements, releases or other documents pursuant to this SECTION 6 shall be without recourse to, or warranty by, the Collateral Agent or any other Secured Party.

[SIGNATURE PAGE FOLLOWS]

Form of Grant of Security Interest in United States Copyrights

D-3

     IN WITNESS WHEREOF, the Grantors and the Collateral Agent have caused this Grant to be executed by their duly authorized officers as of the date first above written.

GRANTORS:	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
	By:
		Name:
		Title:
	THE ENTITIES LISTED ON SCHEDULE I HERETO, as Guarantors
	By:
	Name:
	Title:

Signature Page to Grant of Security Interest in United States Copyrights

COLLATERAL AGENT:	WILMINGTON TRUST COMPANY, as Collateral Agent
	By:
		Name:
		Title:

Signature Page to Grant of Security Interest in United States Copyrights

EXHIBIT A

Copyrights

Exhibit A to Grant of Security Interest in United States Copyrights

Schedule I

(Guarantors)

Schedule I to Grant of Security Interest in United States Copyrights

EX-99.1

Exhibit 99.1

News

The Great Atlantic & Pacific Tea Company, Inc.
2 Paragon Drive
Montvale, NJ 07645

Investor contact: William J. Moss
Vice President, Treasurer
(201) 571-4019
Press contact: Lauren La Bruno
Senior Director, Public Relations
(201) 571-4495

THE GREAT ATLANTIC AND PACIFIC TEA CO.
COMPLETES $435MM CAPITAL RAISING EFFORT

NEW CAPITAL SIGNIFICANTLY STRENGTHENS A&P AND BRINGS TOGETHER TWO
PROLIFIC INVESTORS IN THE SUPERMARKET INDUSTRY

A&P TO ACCELERATE FORMAT OPTIMIZATION, BUSINESS IMPROVEMENT INITIATIVES
AND PATHMARK TURNAROUND

COMPANY ELECTS TWO NEW DIRECTORS

MONTVALE, N.J. — August 4, 2009 — The Great Atlantic & Pacific Tea Company, Inc. (A&P) (NYSE:GAP) announced today that affiliates of The Yucaipa Companies LLC (“Yucaipa”) invested $115 million in A&P by purchasing 115,000 shares of A&P’s newly created 8.0% Cumulative Convertible Preferred Stock, Series A-Y pursuant to an investment agreement executed among Yucaipa and A&P dated as of July 23, 2009. In addition, partners of Tengelmann Warenhandelsgesellschaft KG (“Tengelmann”) invested $60 million in A&P by purchasing 60,000 shares of A&P’s newly created 8.0% Cumulative Convertible Preferred Stock, Series A-T pursuant to an investment agreement executed among partners of Tengelmann and A&P dated as of July 23, 2009. A total of $175 million was invested in A&P pursuant to a private offering. At the same time, A&P announced today the completion of its previously announced offering of $260 million of 11.375% senior secured notes due 2015 (the “Notes”), successfully accomplishing a fund raising effort resulting in gross proceeds to the Company of $435 million.

The injection of $175 million of equity capital, combined with raising $260 million through the issuance of the Notes, significantly strengthens A&P’s balance sheet and provides additional liquidity for the Company to pay down a portion of its senior credit facility and compete in the dynamic food retail industry.

The equity investments bring together two of the most prolific investors in the US grocery retail industry: Tengelmann, one of the world’s largest family owned operators of diversified retail businesses comprising global revenues in excess of $35 billion; and Yucaipa, one of the most successful investors in the US supermarket industry in the last 15 years. Together they will provide A&P with unparalleled knowledge, resources and expertise in this difficult environment. This relationship is expected to enable A&P to accelerate its format optimization strategy, drive the implementation of its business improvement initiatives and facilitate the turnaround of its Pathmark business. The new funds provide the Company significant additional cash resources to successfully execute its strategies and navigate through this difficult economy effectively with a focus on building sustainable profitability in the longer-term.

On a fully diluted basis, Tengelmann remains the largest single shareholder of the Company with an ownership interest of 38.6 percent. Yucaipa’s ownership interest has increased to 27.6 percent. The preferred stock will be convertible, under certain conditions, at an initial conversion price of $5.00 per share, subject to adjustment. This conversion price represents a premium of approximately 20% to the 20-day volume weighted average sale price of A&P’s common stock prior to the announcement of the transaction of $4.15. Tengelmann and Yucaipa, as holders of the preferred stock will have the right to vote together with the holders of common stock on all matters upon which the holders of common stock are entitled to vote, on an as-converted basis, subject to certain New York Stock Exchange stockholder approval requirements.

In connection with the preferred stock investment, A&P’s Board of Directors added two new members to its board of directors, bringing the size of the board of directors to eleven. The new board members include Mr. Terrence Wallock and Mr. Frederic Brace, each elected by Yucaipa. Mr. Wallock, 64, has served as a senior executive officer and general counsel to a number of large grocery retailers and foodservice operators, including Ralph’s Grocery Company, the Vons Companies and Denny’s, Inc. Mr. Brace, 51, has served as a senior executive officer in the airline industry and was the former Chief Financial Officer of United Airlines.

“Working together with Yucaipa is an exciting opportunity to collaborate with one of the most successful investors in the supermarket industry. I have enjoyed a productive relationship with Ron Burkle for many years and I believe that together we will drive significant performance improvement in the business and realize the tremendous potential and strategic value of A&P” said Christian Haub, Executive Chairman, A&P and Co-Chief Executive of Tengelmann.

“I also want to welcome Terry and Jake to our Board of Directors. The addition of their knowledge and experience will further enhance the strength of our Board and I’m looking forward to working with them in creating value for our shareholders” concluded Mr. Haub.

About A&P

Founded in 1859, A&P is one of the nation’s first supermarket chains. The Company operates 435 stores in 8 states and the District of Columbia under the following trade names: A&P, Waldbaum’s, Pathmark, Pathmark Sav-a-Center, Best Cellars, The Food Emporium, Super Foodmart, Super Fresh and Food Basics.

About Yucaipa

The Yucaipa Companies is a premier investment firm that has established a record of fostering economic value through the growth and responsible development of companies. Since its founding in 1986, the firm has completed mergers and acquisitions valued at more than $30 billion. As an investor, Yucaipa works with management to strategically reposition businesses and implement operational improvements, resulting in value creation for investors.

Forward-looking statements

This release contains forward-looking statements about the future performance of the Company, which are based on Management’s assumptions and beliefs in light of the information currently available to it. The Company assumes no obligation to update the information contained herein. These forward-looking statements are subject to uncertainties and other factors that could cause actual results to differ materially from such statements including, but not limited to: competitive practices and pricing in the food industry generally and particularly in the Company’s principal markets; the Company’s relationships with its employees and the terms of future collective bargaining agreements; the costs and other effects of legal and administrative cases and proceedings; the nature and extent of continued consolidation in the food industry; changes in the financial markets which may affect the Company’s cost of capital and the ability of the Company to access capital; supply or quality control problems with the Company’s vendors; and changes in economic conditions which affect the buying patterns of the Company’s customers.

###